As the Shawnee Tribe continues its campaign to take over the Shawnee Indian Mission in Fairway, there is a growing dispute over what exactly could happen to the the land if the state loses ownership of the 12-acre historic site.
The city, which helps maintain the site, contends that if the land were ceded to the Shawnee, then the sovereign tribal government would have near unlimited ability to do what it wanted with the Mission land, including build a casino.
But tribal leaders and an outside legal expert the Post consulted both say local and municipal regulations would still apply to the property, meaning the tribe would not have carte blanche to do whatever it wanted with the site.
Here’s where things stand:
City raises warning in new email
- In an email newsletter sent Tuesday, Fairway city officials said they are concerned about losing public access to the historic landmark and “what the Shawnee Tribe could do with the land.”
- The message references Article II of the Shawnee Constitution which discusses sovereign authority and jurisdiction over Shawnee lands.
- It also references an August 2020 resolution that declares the Mission a sacred site, and includes two clauses about sovereignty and the Tribe’s “unrestricted right to self-government.”
- “It is clear,” the city’s message reads, “the Tribe could immediately assert a claim the land is sovereign and thus, not subject to state and local jurisdiction.”
- The city says local governments and the state would have “no jurisdiction” to intervene on how the tribe uses the land, “whether it be for historic preservation, housing, economic development or even a casino.”
Tribe disputes city’s interpretation
- In a response sent to the Post, Maggie Boyett, the Shawnee Tribe’s chief communications officer, reiterated Chief Ben Barnes’ position that conveying the Mission land to the tribe would still mean the property would be subject to local laws and regulations.
- Boyett went on to say that nothing in the city or foundation’s research “contradicts this fact,” and says “this position [expressed in the city’s email] is as ill-informed as it is shameful.”
- Boyett told the Post that tribal sovereignty is not “a magic wand,” and the tribe cannot “just walk in, set up shop and all of a sudden the Shawnee Constitution is the law of the land.”
Tribal law expert weighs in
- For an outside opinion, the Post reached out to Gary Pitchlynn, an adjunct law professor at the University of Oklahoma, who is an expert on tribal sovereignty and tribal gaming law and regulation.
- Pitchlynn says a land conveyance — like that being sought by the Shawnee Tribe — means a tribal government would be treated like any other land owner.
- He agreed with the Shawnee Tribe’s position that the Mission land would be subject to all local and state laws if its ownership were transferred.
- “I understand the concerns of the government and the local community up there, but the long and short of it is that if the Shawnee Tribe purchases that land, they’re just another land owner,” Pitchlynn said.
U.S. Supreme Court case may offer guidance
- Pitchlynn told the Post that land conveyed back to Native tribes does not automatically become sovereign territory, a point underlined by a 2005 U.S. Supreme Court opinion in a case from New York state called City of Sherrill v. Oneida Indian Nation of New York.
- In that case, the Oneida Tribe was not able to assert total sovereign rights to a piece of land within the limits of Sherrill, a city in upstate New York, even though that land had once been part of the tribe’s reservation.
- The court, in that case, pointed to the “longstanding, distinctly non-Indian character” of that area and how the “Oneidas had ‘relinquished governmental reins'” of its land in the 19th Century in its decision favoring the city.
- Pitchlynn said that if a tribe wants to turn a piece of land into “Indian Country” — a legal term that includes reservations and trust lands — then that would require an act of Congress or approval from the Secretary of the Interior.
- “The Tribe can’t willy nilly do what it wants on that property without having some oversight and approval from the Secretary of the Interior,” Pitchlynn said. “Finally, it certainly doesn’t mean the tribe can develop that property any way it wants, certainly not for gaming without having to go through some hoops that the state of Kansas would have veto authority over.”
A scenario where sovereign rights could be declared
- Pitchlynn said under one particular scenario, tribal governments can assert sovereignty, though it likely doesn’t apply in the Shawnee Indian Mission case.
- When a tribe uses trust assets to buy land, they may have freer reign to do with that land what they will.
- An example would be when the federal government compensates a tribal nation for the loss of land and that tribal nation then uses that money to purchase another piece of land.
- Boyett with the Shawnee Tribe told the Post on Tuesday that there is no plan to take the Mission land into trust should it be acquired by the Tribe.
Kaw Nation still asserts rights to land
- The Kaw Nation earlier this month sent a letter to Kansas Gov. Laura Kelly requesting a “first right of refusal” — essentially, prioritized negotiation rights — over any decision to convey the Mission land to another tribe.
- The Kaw Nation, also known as the Kansa, contend that they are the original inhabitants of the state of Kansas and the land on which the Mission site sets.
- Pitchlynn said the federal government typically tries to accommodate conflicting interests between tribes like this by looking at who last had reservations or official status with that land.
- The Kansas Historical Society, which is the entity that owns the Mission site, says the Shawnee Tribe was relocated to present-day Kansas, mostly in Wyandotte and Johnson counties, in 1825.
- The Shawnee lands in Kansas were then reduced in 1854 with most of the Shawnee tribal members relocated to the Cherokee reservation in Oklahoma by the late 1860s.
