John W. Ragsdale, Jr. is a William P. Borland Professor of Law, University of Missouri - Kansas City School of Law; B.A. Middlebury College, 1966; J.D. University of Colorado, 1969; L.L.M. University of Missouri - Kansas City, 1972; S.J.D. Northwestern University, 1985. The author would like to dedicate this article to Janith English, principal chief of the Wyandot Nation of Kansas, who furnished inspiration and much help. Any and all mistakes are those of the author. The author would also like to thank Susie Bryan, Gloria Herron, Brad Allen and Lauren Wagner for help in the preparation of this article.
John W. Ragsdale, Jr. is a William P. Borland Professor of Law, University of Missouri - Kansas City School of Law; B.A. Middlebury College, 1966; J.D. University of Colorado, 1969; L.L.M. University of Missouri - Kansas City, 1972; S.J.D. Northwestern University, 1985. The author would like to dedicate this article to Janith English, principal chief of the Wyandot Nation of Kansas, who furnished inspiration and much help. Any and all mistakes are those of the author. The author would also like to thank Susie Bryan, Gloria Herron, Brad Allen and Lauren Wagner for help in the preparation of this article.
The Huron Indian Cemetery1 sits on a hill above the confluence of the Missouri and Kansas Rivers. It is several acres of predominant green, with grass, mature trees, and modest, weathered gravestones, surrounded by the sterile concrete of a struggling Midwestern city. Desultory businesses, colorless governmental offices, a casino, and strong evidence of poverty and vandalism lap at the shores of the small sanctuary. Yet despite the drabness and essential joylessness of the encircling faded modernity, the cemetery holds a surprising sense of peace and even timelessness.2 The serenity may seem incongruous, not only because of the tawdry surroundings, but also because of the cemetery’s chaotic history as a center of numerous legal and economic conflicts.
Perhaps the quiet dignity of the place may have been the source of the strength that enabled survival. It may have been a force that emanated outward and simultaneously drew energy and passion within.
This article will focus on the story of endurance and on the reciprocating feelings inspired by and invested in this unique burial place. It will deal with the general, perhaps inevitable, tension between the sacred and the profane3 — the clash between the emotion, solemnity, and repose of a spiritual site, the transformative calculations of economic and political expediency, and the law that may bridge that gap. It’s perhaps useful — or even necessary — to have some working conception of the sacred, especially if it is to be pitted against — or acknowledged within — the persuasive, dollar-based, cost-benefit analysis used by businesspeople, legislators, and courts. It is essential to have discourse or dialogue that advocates directly for the sacred rather than attempting to operate behind an opaque veil of unexplained and unchallengeable faith or emotion.4 It is also imperative for real discussion that economic realists avoid cynically or condescendingly questioning the relevance of all emotion or belief in intangibles. Thus, each side of the debate must avoid assertions for total definitional domination if compromise rather than capitulation is desired.5
One way to begin a discourse on the sacred is to acknowledge the absolute unfathomability of infinity, eternity, being, and nothingness.6 Science cannot explain nor, in all honesty, can our minds even comprehend space without end, the essence of timelessness, or creation emergent out of a void. We can profess an understanding of the abstract concepts but attempts at explanation chase a horizon line that always retreats beyond our grasp.7 Thus we are doomed to live on an island of tentative reality rather than one of absolute, discernible truth; although we may successfully attempt to ignore the infinite night that surrounds, it is still — always — there. It would seem that even the most fervent of realists, or brilliant of physicists, or dedicated deniers of God must contemplate the darkness beyond the light.8 There are, as they say, no atheists in foxholes.
Anglo-Americans and their European predecessors have tended to go aggressively about the business of living. They brought with them a focus on property, efficiency, and profit that exploded beyond community and custom and became a central personal and societal quest.9 This obsession led to a commodification of land and resources, a reduction of natural worth to monetary pricing, and a flattening of quality into quantitative and linear measurements.10 In short, exponential economic growth became the secular religion of the new nation.11 Formal religion was conscripted into the cause of authorizing the subjugation of the natural; the sacred was confined behind the walls of the churches, and within the prayers for eternal salvation after death.12 Eventually the United States Constitution would enshrine this secular religion, though the Declaration of Independence would link it to God’s will.13 The Constitution itself would forbid (1) the government’s establishment of religion; (2) the interference with its free exercise; (3) the retroactive impairment of contract; and (4) the taking of private property for public use without the payment of just compensation.14
American Indians have generally been more expansive, if not purely pantheistic, in their view of sacredness and obligation.15 Most groups believed in the reciprocal relationships between all things in existence, and the imperative human obligation to maintain balance.16 It is true that a tribe could exhibit hostility against another, have disagreements and divisions within, and mismanage the environment.17 The tribes still, however, exhibited an overriding sense of community, within the group and with the earth.18 There was an embracing sense of permanence and balance, in contrast to an Anglo-American notion of ongoing, exponential linear increase.19 The primal, intense relations with the land, traced through the tribal histories, legends, and culture, can stretch these sacred concerns across extensive sweeps of time and space — far beyond an immediate presence or physical control.20 Within this revered fabric were and are special places of even more intense emotional sanctity, commemoration, or revelation. These sites are the sacred polestars of the tribal communities — the hubs around which all life, ceremony, and worldview revolve. Even in times of physical dislocation and stress, these center places could maintain or reunite the tribal community:
The vast majority of Indian tribal religions, therefore, have a sacred center at a particular place, be it a river, a mountain, a plateau, valley, or other natural feature. This center enables the people to look out along the four dimensions and locate their lands, to relate all historical events within the confines of this particular land, and to accept responsibility for it. Regardless of what subsequently happens to the people, the sacred lands remain as permanent fixtures in their cultural or religious understanding. Thus, many tribes now living in Oklahoma, but formerly from the eastern United States, still hold in their hearts the sacred locations of their history, and small groups travel to obscure locations in secret to continue tribal ceremonial life.21
Over the course of the four centuries since the European incursion, the Indians’ sacred world was physically shattered; many of the most revered sites were on lands lost along the various “Trails of Tears,”22 or on lands threatened by the non-Indians’ relentless, uncaring economy, law, and politics.23
The laws and the courts of the conqueror24 have, in the latter part of the twentieth century, provided significant protection for nonpossessory sacred sites,25 but the reach of the laws has still been limited by the lateness of their arrival, by legislative and judicial compromise, and by the protection of private property through the Takings Clause.26 Much of the sacred has slipped through the gaps and been lost forever; much that remains is still threatened.27 In a few cases, the dedication and extraordinary efforts of the individuals may transcend the available law and pave a way to future reconsiderations.28
This article chronicles the odyssey of the Wyandot people and a place of burial along their journey way. It deals with the fierce dedication of some singular individuals to this sacred cemetery, which saved it when the law faltered. It concludes that the preservation of this sacred cemetery not only sustained the local community, but also reunited the tribe after secular forces had forced a schism. It also suggests that both the place and the people that have uncompromisingly loved it provide a source of inspiration and aspiration for non-Indian people.
II. The Removal of the Wyandots — 1842
The Wyandot Indians, descended in part from the once powerful Hurons,29 were less oriented toward war than their militant ancestors, in part because they were relatively small in number. They, instead, were oriented toward a stable-state, subsistence lifestyle featuring agriculture, hunting, fishing, and fur-trapping, especially after the arrival of the French traders.30 By the beginning of the eighteenth century, when the white incursion into the trans-Appalachian area was gathering force, the Wyandots had come to occupy a somewhat uneasy balance point south of Lake Erie, with the Iroquois to the East, and the Sioux to the West.31 The Wyandots began their interactions in a friendly fashion, first dealing with the French fur traders, then allying with them when subsequent tensions emerged between the French and their English competitors.32 By 1754, full-scale war had broken out. Although the French and their Indian allies were successful at the outset, the English numbers and firepower eventually prevailed, and the French withdrew from the Ohio Valley.33
The still-resistant Wyandots, along with their long-time allies, the Ottawa, participated in the Pontiac Rebellion, which followed the conclusion of the French and Indian War.34 The effort, though unsuccessful in daunting the British,35 still influenced the British Crown to continue the Indian pacification efforts manifested in the Proclamation of 1763.36 The Proclamation forbade the settlement of English colonists in the Ohio Valley, and precluded their acquisition of Indian land.37 In a sense, the proclamation was the first reservation of land as sovereign Indian country in the Americas:38
In short, the Proclamation of 1763 sought to resolve the three most important struggles that plagued the management of colonial Indian affairs and which, ironically, epitomized the focus the Euro-American/ Indian conflict over the next 225 years. These three struggles involved: (1) the contest between centralized and colonial — now state — management of relations with Indian tribes; (2) conflicts between honoring legal and treaty guarantees of Indian land rights and autonomy and the Euro-American settlers’ economic need for land and resources; and (3) difficulties involved in reconciling Indian political sovereignty with the authority of surrounding governments, particularly colonial — now state — authority. The Proclamation was designed to resolve these issues in favor of centralized control, through agents responsible to London, through protecting Indian treaty guarantees, land rights, and access to hunting and fishing resources necessary to their survival and through recognizing and respecting tribal sovereignty and autonomy.39
The Proclamation also proved to be a legal linchpin for the Supreme Court’s later incorporation of the Doctrine of Discovery40 into the center of future land titles emanating from the United States. Johnson v. M’Intosh41 affirmed that the discoverer of the new lands in the Americas, and the successor, acquired not only priority with respect to other contending Christian explorers,42 but also a legal fee title that would become a transferable fee simple absolute after the extinguishment of Indian possessory title.43 The discoverer or successor had the exclusive power to extinguish Indian possessory title, either through purchase or conquest.44 Thus, unauthorized attempts to acquire possession after the Proclamation of 1763, after the transfer of English sovereignty to the states, or after the passage of ultimate sovereignty to the United States were void.45
The Proclamation of 1763 was also a substantial factor in colonial irritation with Great Britain’s economic domination and in the ensuing revolution.46 Indeed, the freedom sought by the colonists, and lauded in The Declaration of Independence, was, in significant part, the freedom to appropriate the land and resources of the Indians west of the Appalachians.47
The Articles of Confederation, adopted by the revolutionary states in 1777, did not unify Indian affairs in the new Continental Congress, but reserved power to deal with Indian lands in the individual states.48 By 1787, the uncertainty over the fragmented land power and the direct actions of frontier whites, who were pouring into the Ohio Valley, had created general chaos and threats of Indian wars.49
The Constitution of the United States, drafted in 1787 and ratified in 1788, consolidated the power over Indian lands in Congress.50 It responded with the Trade and Intercourse Act of 1790, which prohibited the sale of Indian lands to states or private persons except under the authority of the United States. Despite the unifying of treaty and land acquisition power in the federal government, conflict with the tribes escalated.51
Responding to the threats of rising violence and possible united Indian action, George Washington sent military expeditions into the Ohio Valley.52 After initial defeats were suffered by Generals Harmar and St. Clair, Washington dispatched General Anthony Wayne who defeated the Indians decisively at the Battle of Fallen Timbers in 1794.53 The Treaty of Greenville was signed in 179554 by the surviving Indian leaders including Tarhe, the chief of the Wyandots.55
The Greenville Treaty line, drawn through Ohio, ceded Indian territory south and east of the line, and confined the Wyandots and other tribes to the Great Lakes area.56 It was not the last of the cessions. By 1817, the Wyandots — withered by war and disease to less than one tenth of their pre-incursion number — had ceded all their Ohio Valley land with the exception of the Grand Reserve at Upper Sandusky (approximately 110,000 acres) and a small reserve of 5000 acres on the Huron River, near Detroit.57
The compression of their sovereign land holdings forced the Wyandots to modify their economy, turning from hunting and trapping to a concentration on agriculture. The resilient Wyandots, from the time of Tarhe and the signing of the Greenville Treaty, acknowledged the inevitability of the white western advancement and the necessity of fundamental adjustment.58 Thus, they turned to white methodology — fencing, plowing, and animal husbandry.59 They lived in log houses, wore white clothing, and substantially embraced the Methodist church.60 Indeed, the Wyandots — through adoption and marriage — had become racially mixed with few, if any, remaining full-bloods.61 Despite the substantial racial, material, and economic blending, however, the tribe firmly maintained its cultural, political, and linguistic integrity.62
The experience of the Cherokee had recently demonstrated that tribal advancements in white economy and material society were no assurance that the white wave could be stemmed.63 A mere defusing of the pretextual claim that tribalism and savagery were incompatible with ascendant white society could not defeat the rapacious land hunger that grew increasingly frustrated with Indian assertions of political sovereignty and territorial control.64
The national response, in 1830, was the Indian Removal Act.65 The legislation was born from an odd combination of motivations including the desire for free land, a concern for the internal protection of states’ rights, and a general humanitarian feeling that Indian societies would be eroded or destroyed by corrosive contact with whites.66 The possibility of removal, as a unified, out-of-sight-and-mind solution, was made theoretically possible by the vast Louisiana Purchase of trans-Mississippi lands.67 Thomas Jefferson, in fact, was among the architects of Indian removal, several decades before.68 He overcame his constitutional equivocations about executive power and national land holding to buy the land that could make this happen.69 The Act, despite its draconian-sounding title, professed to call for voluntary and negotiated departure, rather than extermination, and thus called for treaties of cession with willing tribes.70
The Wyandots, however, were not eager to sell, although they did go west to the frontier to inspect some of the proffered land.71 William Walker Jr., a mixed race Wyandot leader, a formidable intellectual, and later to be the first provisional governor of the Nebraska Territory, led an exploratory expedition, the first of several, and in general found the lands — and the rough frontier whites nearby — unsuitable.72 In 1839, however, the Wyandots concluded that Shawnee lands, west of the Missouri line near Westport, were satisfactory and a draft treaty to purchase 58,000 acres was composed, but was never ratified by the Senate.73
The inertia and indecision of the Wyandots was broken, however, in November of 1840 when the Wyandot Principal Chief, Summudowat, and his family were robbed and murdered by whites in Henry County, Ohio.74 The dismissal of indictments convinced the Wyandots that white law would not protect them, and that it was time to leave.75 They were the last of the Northeastern tribes to agree to remove.76
Under the terms of the treaty,77 the tribe ceded the Grand Reserve of Ohio (109,144 acres) and the Wyandot Reserve of Michigan (4,996 acres).78 The United States granted an indeterminate tract of 148,000 acres to be located west of the Mississippi “on any lands owned by the United States . . . not already assigned to any other tribe or nation.”79 The Wyandot still hoped to buy land from the Shawnee, but they left Ohio without an agreement, and with no other definite, settled destination.80
III. A New Beginning Around the Cemetery on the Hill — and Another Removal
Indian removal was a low point of federal policy, and despite the veil of negotiation, was designed to be destructive in both a cultural and perhaps physical sense.81 It is appropriate to view this as genocidal.82 The Wyandots, despite their advancement in, or adaptations to, white society and economy, received no respite.83 The end of their trek from Ohio to Kansas ended in driving rain and uncertainty.84 Because the land promised was neither provided nor obtainable, they were forced to camp in the swampy bottoms of the Missouri River.85 Almost a tenth of the tribal population, many of them children, died within the first few months.86 Thus, before the Wyandots had even procured land to live on, they had to find places for the dead.87
The Wyandots believed that ultimately they could buy land from the Delaware, who held a reserve stretching west, across the Missouri and north of its junction with the Kansas River.88 The Delaware, who had been allies with the Wyandots in Ohio, gave their permission, pending the negotiations, and the Wyandots crossed the river with their dead.89 They buried them on a high point of land above the confluence of the two rivers, and this spot was to become known as the Huron Indian Cemetery.90 By the end of 1843, the Wyandots and the Delaware had forged a treaty, without any United States involvement, and agreed to a Wyandot purchase of thirty-six sections.91 The Delaware, remembering past Wyandot favors, added three more sections as a gift.92 Though the treaty was ratified by the United States in 1848, the 148,000 acres promised by the United States in 1842 remained unforthcoming, and the Wyandots were forced to buy their new reserve with their own money and credit.93
The Wyandots built their new settlement surrounding the cemetery, which, due to its location between the rivers, had both strategic commercial potential as well as vulnerability to the seamier sides of frontier life such as thieves and whiskey peddlers.94 However, the building of homes, the establishment of church and schools, and the rich agriculture lands had a stabilizing influence on the new community.95 Led by the educated Wyandot intelligentsia — the Walkers, Zanes, Tauromees, Northrups, Hicks, and Armstrongs — the new town of Wyandot City became a vibrant jumping-off place for the cresting wave of western expansion.96
The Wyandots, far from eschewing white contact and seeking isolation, embraced the white society and sought to emulate it and profit from it. The tribe formed a new, progressive constitutional government, complete with a balanced division of power, strong property laws, economic ambitions, and Christian temperance; and they blended it with their traditional culture.97 In a sense, they retrofitted their historic society both for interaction with the surrounding, inescapable white society and for the simultaneous maintenance of their internal sovereignty and traditions. This is much the same as would be attempted under John Collier and Felix Cohens’ Indian Reorganization Act almost a century later.98
The question was, in 1850, would the non-Indian society regard the Wyandots as deserving of acceptance and equal protection, or would they, because of unabated racial and cultural prejudices, regard them as expendable? Once again, as in Ohio, the Wyandot may have mistaken the effect that their sophisticated formal structure and “civilized” veneer would have on the white society. The forces of western advance sought cheap land and right-of-way to the Pacific, and if the Indians could be induced to move, regardless of their priority of occupation or their institutions, that would be preferable.99 Though the removal treaties of the 1830s and 1840s had promised a permanent repose in the lands west of Missouri and Iowa,100 honor and theory was no match for economic realities and the apologies of “superior” culture and race.101
In March of 1853, a rider to an Indian appropriation bill authorized the President to negotiate removal with the tribes west of the Missouri and Iowa lines102 and the following year, the Kansas–Nebraska Act created official territories and opened the area to settlement.103 Paul Gates later stated, “[T]here was not . . . an acre of land that was availle for sale,” instead there was “a formidable array of Indian reserv [ations] . . . to which the owners clung tenaciously ”104 In the winter of 1853-1854, George Manypenny, the Commissioner of Indian Affairs, arrived on the Indian Frontier with the objective of negotiating a new round of treaties with the barely-settled emigrant tribes.105 Manypenny was sensitive to the fact that the Indians had received the most solemn and absolute promises of permanence only a few decades earlier.106 Likewise, he did not adhere to the expedient, self-serving view that Indians were racial and cultural inferiors that would hold land perpetually in a state of nature, and deny the dominant cultures right of subjugation.107 Realistically, however, Manypenny and many of the educated tribal leaders recognized the flood-like, dispassionate economic forces that had been unleashed by the discovery of western gold, and the annexation of Texas and the Mexican Cession.108
Manypenny’s resolution was a series of treaties in 1854 and 1855 with the emigrant eastern tribes along the permanent Indian frontier.109 In general the treaties featured large cessions of land that opened the way to travel and settlement, and some reduced reservations and individual allotments for the tribes.110 The device of allotment would convert collectively-held tribal land into individualized tracts, paralleling in size those available under the federal land disposition scheme.111 Federal officials believed that allotments would free up land for whites, teach Indians the value of farming and private property, and disempower the tribes.112 The experiments in Kansas paved the way for general utilization of allotments as the primary tool of assimilation.113
Manypenny and others also felt that individualized property and smaller reserves would be more easily protected.114 It was to his chagrin that his inclusionary experiment came largely to naught; by the mid 1870s most of the allotments had been lost through duress, fraud, and the pressures of poverty, and only small reservations, and a few allotments still remained in central Kansas.115
The Wyandot Treaty of 1855,116 was not an immediate outgrowth of Manypenny’s involvement, but was instead the culmination of five years of negotiations conducted by the Wyandot intelligentsia as a facet of the tribe’s continuing claim for the 148,000 acres promised, but unfulfilled, by the Treaty of 1842.117 These discussions broached, but did not resolve, the additional issues of citizenship and land in severalty.118 They did, however, make a formalistic attempt to rectify the failures of 1842. The Treaty with the Wyandot of 1850119 promised the Wyandots $185,000 in return for their release of claims to the promised, but unreceived, 148,000 acres.120 The United States again failed to fulfill its promise, and the Wyandot leaders redoubled their efforts to parlay their small, but strategic thirty-nine section reserve into economic and political advantage.121
In 1855, a small faction of progressives, in clear violation of the Wyandot Constitution,122 signed a document that agreed to dissolve the tribe, apportion the land in individualized severalty to all the members, and make United States citizenship available to those deemed competent who chose it.123
More specifically, the tribe agreed, in Article One, to dissolve its organization and terminate its relations with the United States, except as necessary to carry out the stipulations within the treaty.124 In this regard, there were several continuing obligations. In one sense, the land held as tribal property would, under the treaty, be ceded to the United States for survey125 and redistribution to “all the individuals and members of the Wyandot Tribe.”126 Each tribal member, then, either as an individual or part of a family, could share equally in the former tribal lands.127 In addition, the United States agreed to pay $380,000, plus accrued annuities and unpaid investments from the Treaty of 1850, in return for the general relinquishment of all tribal claims, including former treaties.128
The strings that remained were several. A list of Wyandots deemed incompetent by reason of age, mental capacity, or orphan status was to be prepared; guardians were to be appointed; and review was to be made by the Commissioner of Indian Affairs.129 In addition, though citizenship was available to competent Wyandots who wanted it, those who didn’t could apply for temporary exemptions and continued protection and assistance from the United States.130
Finally, the treaty specified that two acres “now enclosed and used as a public burying ground be permanently reserved and appropriated for that purpose.”131 The treaty doesn’t say who, exactly, was the beneficiary of this trust, but it does seem to assume the United States as the trustee-obligor, and as the stakeholder for much of the ensuing conflict.132
The treaty purported to dissolve the tribe,133 but it contained a provision allowing competent class Wyandots to defer citizenship.134 At least sixty Wyandots, more concerned with maintenance of the traditional community than with individual financial and political prospects, formed an Indian party under the leadership of Tauromee, a former principal chief.135 These traditionalists continued to observe the past customs, practices and ceremonies.136 Among these tribalists was Hannah Zane, grandmother of the Conley sisters whose life mission would be the preservation of the sanctity of Huron Indian Cemetery.137
In 1857, a group of the traditionalists and incompetent noncitizens emigrated to the Seneca Reserve in northern Oklahoma, but many returned to Kansas after the Confederate invasion of the Reserve in 1862.138 Relations between the returning emigrants and the citizen- class Wyandots remained strained139 and in 1867, after negotiations in Washington by Tauromee, the United States signed an omnibus treaty which, in part, allowed the Indian-party Wyandots to purchase land from the Seneca in Northern Oklahoma and resume tribal status.140
Thus, the Wyandots who emigrated to Oklahoma, either because they refused citizenship and chose tribalism, or because they were labeled incompetent to choose, established the new Wyandot tribe in Oklahoma, and were legally wards of the United States, and entitled to the benefits and prerogatives of recognized tribal Indians.141 The tribe refused to grant membership to citizen-Wyandots who remained in Kansas,142 but some of the Kansas Wyandots had never sought citizenship and wished to be listed on the Indian role, and thus eligible for tribal membership.143 Among them was Eliza Burton Zane Conley, daughter of Hannah Zane who requested that she and her family be placed on the official Indian list — a request that failed.144 Conley and her children were mistakenly placed on the citizen-Wyandot list, a mistake that would play a significant role in Lyda Conley’s subsequent suit to protect the cemetery.145
IV. Sanctity and Assault
A. The Sanctity of Burials
Most societies, present and past, have protected their burial grounds and remains against disturbance.146 James Frazier concluded, “the place where the dead are deposited all civilized nations and many barbarous ones regard . . . as consecrated ground.”147 American common law would support this in theory, and disturbing burials is generally permitted only under careful supervision or compelling circumstances.148 Disturbance does occur, however, and not infrequently, even in the case of Anglo-American remains, when development requires it, or when family or cultural linkages grow dim.149
The common law and statutory law of the United States has, in general, shown far less protection and respect for the graves and remains of traditional Indians. The law has allowed Indian remains, found on land not owned by descendants or culturally affiliated tribes, to be excavated, removed, possessed and displayed by landowners, scientists, museums, hobbyists, and macabre profit-seekers.150 Not until 1990 did Congress enact a real semblance of protection and property rights with the passage of the Native American Grave Protection and Repatriation Act (NAGPRA).151 Under NAGPRA, rights of possession are declared in lineal descendants and culturally affiliated tribes for remains found on federal or tribal lands after 1990.152 Rights of repatriation for remains held in federally-funded museums both in 1990 and thereafter are likewise vested in lineal descendants and culturally affiliated tribes.153 NAGPRA does not apply to remains found on state or private land unless they are thereafter placed in the legal possession of a federally funded museum or a funded entity such as a school or town that is deemed a museum for NAGPRA repatriation purposes.154
Before and even after the passage of NAGPRA, the sanctity of an Indian burial site was — and is — not afforded the right of repose.155 The best that descendants can really achieve is the property rights of repatriation, and even these rights may be subject to definitional limitation or problems of proving cultural affiliation.156
The less than complete protection of all burials, under the American common law, which allows expediency to trump sanctity, and the historically abject insensitivity of the American law toward tribal cemeteries and burials are compounded in their impact on traditional Indian communities, which tend to uncompromisingly sacralize their burial sites.157 This unqualified regard stems from several deep sources. In one sense, the graves are part of the land itself, and the land, for traditional Indian peoples, is itself sanctified.158 It has been said that the Indians’ “belief in the sacredness of the earth is the basis for their belief in the holiness of particular places.”159 Reverence for the remains of ancestors buried at particular places may itself blend several sources. It is seldom suggested that the dead themselves are deities,160 but there is strong indication, especially among Indians of the Great Lakes region, that reverence is based in respect, love, and the desire for spiritual guidance.161 In a related sense, the ancestors may be seen as intermediaries with higher spiritual beings, or as personal guardians to their descendants.162
In a related manner, the sacred dead, as intermediaries between the gods, the past, the present and future, demonstrate the fundamental Indian belief in interdependency, and balanced relationships that is “at the root of native North American sacred tradition.”163 It may also demonstrate what is found in Indian thought — a non-linear, holistic, cyclical view of life and time.164 Thus ancestors, as intermediaries or personal guardians, are seen as present, and not just remembered.165 Consciousness can be collective among the living members of a tribe or community, and can simultaneously embrace the past and future in a timeless whole. 166Jan English, principal chief of the Kansas Wyandot, remembered the ancestors in conversations at the Huron Indian Cemetery:
English sits, remembering sack lunches here with her Aunt Edith, who would tell stories about the great Wyandot leader Chief Tarhe and her other ancestors. English is French and English, too but her aunt’s stories made her feel more Wyandot than anything else. “Timeless,” is the word she uses to describe the feeling.167
Eliza Burton “Lyda” Conley,168 a Kansas Wyandot Indian, spoke of the sacred centrality of Indian burial grounds in general, and Huron Indian Cemetery, in particular, to the Supreme Court of the United States.169 More will be discussed about Lyda Conley and the case later,170 but in the context of the general focus on the sanctity of burials, it is worthwhile to read here her presentation to the Court. It was the first argument made to the Supreme Court by an Indian woman,171 and the first time the Court was called on to deal with the topic of sacred Indian burials.172 Conley said:
History tells us that a superstitious reverence for and burial of the dead has been found a distinguishing trait of Indian character — to some extent we believe this to be true — as graves of the redmen were their only monuments, so traditions were their only history. . . . Like Jacob of old I too, when I shall be gathered unto my people, desire that they bury me with my fathers in Huron Cemetery, the most sacred and hallowed spot on earth to me, and I cannot believe that this is superstitious reverence any more than I can believe that the reverence every true American has for the grave of Washington as Mount Vernon is a superstitious reverence. The wisest man the world has ever known admonishes, ‘Remove not the ancient (landmark), which thy fathers have set’ and that the hand of the desecrator ‘remove not the old landmark; and enter not unto fields of the fatherless; For their redeemer is mighty; he shall plead their cause with thee.’ Man goeth to his long home, and the mourners go about the street; or ever the silver could be loose, or the golden bowl be broken, or the pitcher be broken at the fountain; or the well broken at the cistern. Then shall the dust return to the earth as it was; and the spirit shall return unto God who gave it.173
Stepping outside the positivistic boundaries of the law for a moment, one can question: What is owed to the sacred and why? This query needs a framework, as all altruistic behavior may necessitate borders.174 We can loosely posit the community as the arena, but this needs some further definition. We can describe the community within which the accounting to the sacred is examined, as an aggregate of reciprocal, balanced interactions, or as a collection of common beliefs, attitudes, characteristics, or interests.175
Within a community, then, at a minimum, respect and reverence are generally afforded to final resting places — by the descendants, by the friends, and usually by visitors. Beyond this, however, burial places may be the recipients of affirmative duty and obligation — acts of maintenance, protection, and even worship. Where do these enhanced duties come from? It may, as mentioned, be positivistic—if not from for- mal law, from176 the deep-set commands of custom. The devout may infer a mandate directly from God.177 But a larger sense — duty — may be chosen. Lawrence Tribe said that the choice to be obligated, to things, ideas, and circumstances beyond oneself, is the highest exercise of freedom.178 Such choice could, but need not be, the self-consuming duty of martyrdom or sacrifice. More realistically for most, the guardian of the sacred may choose a living duty of protection and thereby become part of the coherent, timeless continuum between the past and the future.179 Indeed, in a life of service to the scared, one may achieve personal meaning, enlightenment and fulfillment; one may, in a simpler sense, achieve peace.180
B. The First Assault on the Sacred
The splitting of the Wyandot tribe, fostered by the dissolution provision of the Treaty of 1855,181 the tribal resumption Treaty of 1867,182 the post- Civil War movement of citizen Wyandots to Oklahoma, and their adoption back into the resurrected tribe, resulted in an 1881 membership of 292.183 A number of the citizen and non-citizen Wyandots in Kansas never moved to Oklahoma or rejoined the Wyandot tribe. Instead they remained in the Kansas City, Kansas area, and maintained both their own version of the tribal customs and their close relationship with sacred grounds at Huron Indian Cemetery.184
By 1890, Kansas City, Kansas had become not just a jumping-off place for the west, but a vibrant destination in its own right.185 The increasing land values at its center became focused on the open lands of the cemetery.186 Kansas senator Preston Plumb hit upon the idea of having Congress declare the cemetery a nuisance, then removing the bodies to a better (and less valuable) place and selling the site for development.187 The designation of nuisance was and is a frequent ploy of urban entrepreneurs and their legislative accomplices as, if unchallenged, it avoids the pesky inconvenience of the takings clause, contract clause, and the due process clause.188 Cases of the time, prior to Pennsylvania Coal Co. v. Mahon,189 dealt with these issues usually under substantive due process, and sustained extreme urban exercises of authority, as long as, arguably, the purpose was legitimate and the means reasonable.190
The anomaly, however, of having the legal trustee of reserved property declare that the beneficial interest is a nuisance was too much even for the often expedient morality of Washington in the 1890s, and Plumb’s subterfuge was rejected.191 The attempt was not unnoticed, however, and the Wyandot community of Kansas voiced strong disapproval. Lucy Armstrong wrote in June of 1890, “To remove the burying ground would be to scatter the dust of the dead to the winds. Such a sale is repugnant to every sentiment we cherish for our dead, as well as being offensive to the highest impulses of a Christian nation.”192
The lives and the fortunes of the preservationists are never easy. To preserve a scarce resource, or a unique, sacred site requires incessant vigilance. Transformative forces of growth and neglect never sleep; they may be resisted, perhaps many times, but they never cease. The single time that they penetrate the shield of protection is almost always the last. The priceless, the vulnerable, the rare, and the sacred are lost; and like extinction, the loss is forever.193
It is even more troubling when an ally loses his way. William Elsey Connelley was a significant historian of Indian Kansas and the Wyandots in particular.194 However his economic desires took precedence over his morality and his art, at least at times. In 1898 he presented the Oklahoma Wyandotte Tribe with a real estate proposal involving the strategic site occupied by the Huron Indian Cemetery.195 The Wyandotte Tribal Council gave Connelley the power of attorney to move the bodies and sell the reserve for a commission of fifteen per- cent of the sale price.196 In 1906, Congress passed an appropriations bill which included a hidden rider that authorized the Secretary of the Interior to provide for removal of the bodies and the sale of the site.197 The Secretary then appointed commissioners who came to Kansas City, Kansas and prepared to contract for the removal and re- burial of the remains, and for the property itself.198
The plans of Connelley, the Oklahoma Wyandottes, and the Department of the Interior were disrupted, however, by the intervention of the Conley sisters — Eliza (Lyda) and Helena (Lena). The sisters were direct descendants of numerous Wyandots buried in the cemetery including parents, grandparents, and even the great chief Tarhe, and had cousins and a sister buried there as well.199 They undertook the duty of protection in the most direct of manners; they built a shack in the cemetery and moved in with shotguns and a steely resolve.200 They hung a sign saying “Trespass at your peril,”201 and Lyda declared, “[W]oe be the man that first attempts to steal a body . . . . [W]e are part owners of the ground and have right . . . to keep off trespassers, the right a man has to shoot a burglar who enters his home.”202 Helena, self-professed to be a sorceress, cursed those who would disturb the graves, and today is buried in the cemetery with a tombstone warning, “Cursed be the villain that molests their graves.”203
It is noteworthy that Lyda Conley’s defense contained, in addition, a legal foundation: an assertion of ownership and a right of resistance against trespass that could extend, perhaps, to the use of deadly force.204 The origin of such rather nuanced legal accompaniment to otherwise dire physical threats was Lyda’s rather formidable education, unique enough for a woman at the frontier’s edge at the end of the 19th century, and even more so for a woman of Indian origin.
Lyda had rowed a boat daily across the Missouri River to attend Park College,205 and, in 1900, had entered Kansas City College of Law, later to become the University of Missouri - Kansas City School of Law.206 She graduated in 1902, one of four women in a class of sixty-seven, and was admitted to the Missouri Bar.207 She was the first Indian woman attorney in the United States to argue before the United States Supreme Court.208
She eschewed her formal training at the outset of the assault on the Cemetery, and opted for direct self-help, which proved effective in the immediate sense — a sort of de facto temporary restraining order. The Interior Commission, unable to arrange a sale, left for Washington empty-handed, tails clamped firmly between their legs.209 They had been deterred by both direct force, and by the ground swell of popular support for the courageous “Conley girls” — but they had not been defeated.210 The threats posed by the Act of 1906 were still in place and, for this Sword of Damocles, Lyda turned to her legal training. On June 11, 1907, she filed suit in federal court to enjoin James Garfield, the Secretary of the Interior, from executing the statutory authorization of sale.211 The district court rather summarily dismissed her pleadings for lack of jurisdiction, but allowed appeal, which would lead to argument before the United States Supreme Court.212 Though she did not get any traction in the lower court, Conley had introduced some interesting ideas that would come to fruition and play later roles in the Federal Indian Law.
Lyda Conley, by seeking to enjoin the Secretary of the Interior’s disposal of Indian land, had drawn a vital distinction between the authority of the executive to extinguish Indian title, and the authority of Congress.213 Case law would come later to confirm that only Congress has this authority. Lane v. Pueblo of Santa Rosa held that the Secretary of the Interior had no inherent authority to dispose of Pueblo lands, in disregard of Indian ownership,214 even if the Indians were in generally deemed wards,215 subject to guardianship.216 Congress, on the other hand, had the plenary power to abrogate a treaty and extinguish Indian title.217 Though Lone Wolf v. Hitchcock218 suggested that Indian interests in lands might not be within the protection of the Fifth Amendment,219 the case ultimately decided that the actions of Congress, in abrogation and allocation of treaty lands, were not an unconstitutional taking but were “a mere change in the form of investment” and presumed to be “in perfect good faith.”220 Subsequent cases in the twentieth century made it clear, however, that Indian treaty land was property protected by the Fifth Amendment, and that Congress’ administrative transformations must in fact be in good faith to earn managerial discretion on the form and results of investment.221 In United States v. Sioux Nations of Indians,222 the Court said, with respect to the seizure, under duress of starvation, of the Black Hills in 1877:
In sum, we conclude that the legal analysis and factual finding of the Court of Claims fully support its conclusion that the terms of the 1877 Act did not effect “a mere change in the form of investment of Indian tribal property.” Lone Wolf v. Hitchcock, 187 U.S. at 568, 23 S. Ct. at 222. Rather, the 1877 Act effected a taking of tribal property, property which had been set aside for the exclusive occupation of the Sioux by the Fort Laramie Treaty of 1868. That taking implied an obligation on the part of the Government to make just compensation to Sioux Nation, and that obligation, including an award of interest, must now, at last, be paid.223
Conley asserted in the federal courts that a Wyandot Indian with citizenship had an individualized standing based on a “seisin and a legal estate” in the cemetery land.224 In a related sense, she was also contending status as a third-party beneficiary of the Treaty of 1855 between the United States and the simultaneously terminated Wyandot Tribe.225 These rights in land and contract would be secured, she asserted, under both the Fifth Amendment prohibition against taking without due process, and under the Supremacy Clause of Article VI.226
The claim of a personal legal estate, based on the burial of ancestors, even on land held in trust or fee by another, has a resonance that in- creases during the twentieth century. Cases from the common or civil law have declared descendants’ interest in the un-abandoned bodies of ancestors buried on private land of another.227 After 1990, the Native American Grave Protection and Repatriation Act (NAGPRA)228 provided a statutory declaration that lineal descendants have priority in the control of remains that are found on federal or tribal lands,229 or in the legal custody of a federally funded museum.230 The linkage of NAGPRA to the Huron Indian Cemetery was to reemerge at the end of the twentieth century.231
Conley’s assertion of third party beneficiary status under a treaty with a terminated tribe also surfaces again in the post-World War II termination era when Congress severed relations with a number of recognized tribes.232 Subsequently, a number of cases emerged when individual members of the former tribes successfully asserted individualized rights in treaty promises regarding hunting, fishing, and jurisdiction.233
Conley and other Kansas Wyandots were, likewise, claiming standing with regard to personal interests in ancestral remains in the aftermath of the termination of the treaty tribe.234 But, there was a significant difference that made their argument even stronger. Not only were the rights under the Wyandot Treaty of 1855 essentially individual ones, as they related to the burials and interest of lineal descendants, but, in addition, the termination of the treaty tribe was not later, in the future, it was simultaneous with ratification of the treaty.235 Individualization of rights in the Huron Indian Cemetery was present from the outset.
There may be another modern parallel to Lyda Conley’s argument for personal standing in treaty land cases. Aboriginal, pre-treaty rights in land are clearly dealt with as a tribal claim,236 and individuals have never been able to make a claim for tribal aboriginal rights.237 Individual Indians have, however, been able to establish protectable rights in land to which the United States holds legal title, sometimes called individual aboriginal rights.238 The individual must be able to demonstrate actual, exclusive occupation since time immemorial or, more realistically, since before the operation of United States land management law.239
It might have been argued by Lyda Conley, that since the Wyandot Treaty of 1855 and the dissolution of the Tribe, the federal government has held legal title to the Huron Indian Reservation, at least until the 1867 treaty,240 without an indicated tribal beneficiary. There was, however, from 1843 until 1867, an actual, exclusive occupation of a defined portion of the land by various sets of remains, and by the visitation of descendants. Lyda Conley was the direct inheritor of the actual, exclusive, individualized occupation of her ancestors and, under cases like Dann and Cramer,241 she could have had standing before the federal courts to protect her possessory and visitation rights.
One further development in Indian sacred site law has recently emerged and might have provided Conley with standing to enjoin disinterment. In the late 1970s, Indian tribes began to invoke the First Amendment Free Exercise Clause in cases where government management of the federal public lands threatened religious sites with substantial burdens.242 These cases, at first unsuccessful, employed the logic of Sherbert v. Verner243 which held that governmental actions and regulations that substantially burdened the free exercise of religion are presumed invalid unless shown to further compelling state interests with the least restrictive means.244 The first major victory for the tribes was in N.W. Indian Cemetery Protective Assn. v. Peterson,245 where the Ninth Circuit found that a proposed logging road, on nontribal land in a national forest, would virtually destroy the tribes’ ability to practice religion.246 The Supreme Court reversed, however, in Lyng v. N.W. Indian Cemetery Protective Ass’n.247 The Court held that a prima facie violation of the Free Exercise Clause, necessitating a compelling state interest for validity, would require a showing of intentional discrimination, prohibition, or coercion of belief. Indirect impacts of government land management would not, even if devastating to a sacred site, be enough to trigger strict scrutiny.248
Employment Division v. Smith249 went beyond Lyng’s focus on public land management and held that governmental actions would be judged on the reasonable basis test and not under strict scrutiny, if the substantial burden “is not the object of the [law] but merely the incidental impact of a generally applicable and otherwise valid provision.”250 Congress responded to the scope of Smith by passing the Religious Freedom and Restoration Act (RFRA) which professed to “restore251 the compelling state interest test252 as set forth in Sherbert and Yoder.”
The Supreme Court was not amused by the attempted overrule of Smith and charged Congress with an unauthorized use of the Fourteenth Amendment’s Section Five enforcement power — at least with respect to state and local governments.253 RFRA continued to be applicable to the federal government, as Congress can police itself under Article I plenary power, without recourse to Section Five of the Fourteenth Amendment.254 RFRA’s use for strict scrutiny protection of tribal sacred sites was, however, undercut by a split in the lower courts. The Ninth Circuit read “substantial burden” as unchanged from Lyng255 and, thus, still demanding of a showing of intentional discrimination, prohibition, or coercion of belief before strict scrutiny would be forthcoming.256 An Oklahoma district court case, however, allowed a prima facie case under RFRA to be made on a basis of a substantial, though indirect, exercise of adjacent land management.257
The Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc.258 seems to stretch the reach of the RFRA and the compelling interest test to the far edges of substantial burden,259 as well as extending religious-based standing beyond tribes and individuals to corporations.260 Under the Oklahoma district court ruling in Comanche261 and clearly under Burwell, Lyda Conley could have established standing by asserting that the federal disinterment of her ancestors, and sale of sacred burial ground was a substantial, devastating burden on religious practice, even if not intentionally designed to prohibit or coerce belief. She would have had a basis for injunction unless the government could show a compelling state interest and no less restrictive means.
But the reality of time over a century ago intrudes on reverie. Let us explore what Oliver Wendell Holmes and the Supreme Court did in 1910.
C. Conley v. Ballinger262 — The Supreme Courts Weighs In
To raise the substance of issues that might merit equitable relief in federal court, Lyda Conley needed first to demonstrate justiciability sufficient to satisfy the Constitution. In particular, she had to show that the federal law authorizing the sale of Huron Cemetery was an imminent threat to a legally protected interest, and might thus deprive her of her property without due process of law.263 She reiterated some of her arguments below that she was both a citizen of the State of Kansas, a descendent of Wyandot tribal members who signed the Wyandot Treaty of 1855, and had parents who were buried in the cemetery.264 She asserted possessory right on those bases, and additionally asserted rights as a third-party beneficiary of the treaty.265
Holmes marginalized Lyda’s seisin argument by expanding it be- yond realistic application. “The allegation of plaintiff’s interest plainly does not mean that she has taken possession of the whole burying ground, and has acquired seisin of the whole by wrong.”266 He then focused on the idea of a third party beneficial interest in severalty, established by the treaty:
The argument that vested rights were conferred upon individuals by that treaty, stated as strongly as we can state it, would be that, as the tribe was to be dissolved by the treaty, it cannot have been the beneficiary of the agreement for the permanent appropriation of the land in question as a public burying ground, that the language used imported a serious undertaking, and that to give it force as such the United States must be taken to have declared a trust. If a trust was declared, the benefit by it must have been limited to the members of the integrated tribe . . . and their representatives, whether as individuals or as a limited public, and this it might be possible to work out a right of property in the plaintiff, as a first step towards maintaining her bill.267
Holmes rejected this approach with a tautology: “[B]ut we do not pursue the attempt to state the argument on that side because we are of the opinion that it is plainly impossible for the plaintiff to prevail.”268 The “plain impossibility” was not only defused by subsequent cases such as Menominee Tribe v. United States,269 but was inconsistent with Lone Wolf v. Hitchcock,270 which Holmes saw as precedent.271 Holmes felt that, under Lone Wolf, the United States remained a trustee of the cemetery, even after the dissolution of the tribe, but not a trustee for the citizen descendants of ancestors, buried in the reserved land.272 Rather, it was a trustee for Indian wards, and this could include the new tribe recognized in 1867, regardless of its identity with the tribe that signed the Treaty of 1855.273 As trustee for the new ward, the United States had, under Lone Wolf, the power to change or transmute the land interest reserved and hold the monetary return for the new members:
The government cannot be supposed to have abandoned merely for a moment and for a secondary matter its general attitude toward the Indians as wards over whom and whose property it retained unusual powers, so long as they remained set apart from the body of the people. The very treaty of 1867, cited in the bill, providing for the resumption of the tribal mode of life by the Wyandottes, shows that the United States assumed still to possess such unusual powers. It seems to us that the reasonable interpretation of the language as to the burying ground is . . . that the words, ‘shall be permanently reserved and appropriated for that purpose,’ like the rest of the treaty, were addresses only to the tribe, and rested for their fulfillment on the good faith of the United States, a good faith that would not be broken by a change believed by Congress to be for the welfare of the Indians.
We are driven to the conclusion that . . . the United States retained the same power that it would have had if the Wyandotte tribe had continued in existence after the treaty of 1855; that the only rights in and over the cemetery were tribal rights; and that the plaintiff cannot establish a legal or equitable title . . . or indeed any right to have the cemetery remain undisturbed by the United States.274
The doctrine of the unreviewable discretion of the federal trustee to transmute Indian ward trust assets without constitutional consequence, sustained in the notorious Lone Wolf case,275 but overturned in United States v. Sioux Nation of Indians,276 was allowed to expand its reach. It now permitted the federal courts to extend wardship in an inchoate form beyond the dissolution of the treaty tribe, to apply it in favor of new wards in a new tribe which favored the exchange of treaty lands for money, and to deny the justiciability of inherently individualized treaty rights of descendants to the sanctity of the very burials that held their ancestors’ bodies.277
D. The Various Failures to Sell Huron Indian Cemetery
The Supreme Court’s opinion let stand the lower court’s denial of an injunction against the legislation authorizing the sale of the cemetery so that the threat persisted, as did the resistance of the unrepentant Conleys as well as the Kansas Wyandot community.278 McIntyre Armstrong despaired, “Huron cemetery is to be sold. The government has broken every treaty it has made with the Indians and they have been driven from place to place until even the dead are not allowed to rest in peace.”279
The Wyandots, however, managed to enlist the support of Senator Charles Curtis, who was of Indian descent when it was to his advantage.280 He convinced his colleagues that it would be better to retain the cemetery as a monument than to sell it.281 Congress, in 1913, repealed the legislation authorizing the sale of the cemetery and recommended that it become a national monument.282 Three years later, it authorized $10,000 for improvements to the grounds and contracted with Kansas to “forever maintain, care for and preserve Huron Cemetery.”283 The Conley sisters, who had failed to achieve third party beneficiary standing under the treaty, did not place full trust in this legislative pledge either. They continued to respond with direct action to the practical realities and the corrosive forces of neglect, vandalism, and opportunism.284 They cared for the birds and squirrels, chased away trespassers, pulled up surveyor stats and even served time (ten days) for disturbing the peace.285
On May 28, 1946, Lyda Conley died at the age of ninety-two and was buried in the Huron Cemetery next to her parents.286 Her sister, Helena, died twelve years later and was likewise buried with her family and a gravestone reading “Floating Voice . . . Cursed be the villain that molests these graves.”287 Their deaths, in part, lowered the preservationist guard and enabled the inexorable growth forces to rekindle.
In 1947 and 1949, Senate bills were introduced which called for, again, a sale of the cemetery and the distribution of the proceeds to the Wyandotte Tribe of Oklahoma.288 The Wyandottes had, in 1937, incorporated under the Oklahoma Indian Welfare Act of 1936,289 and under their constitution, only those on the roll in Oklahoma in 1937 were eligible to be tribal members.290 The Senate bills — as well as the Wyandottes’ exclusionary policies — provoked strong opposition from the Kansas Wyandot community, and the introduction of House Bill 3659 to make the cemetery a National Monument.291 Though neither billed passed, the post-War winds of change were blowing.
The first to feel them, ironically, was not the cemetery but the driving force from Oklahoma. In 1956, Congress terminated the Oklahoma Wyandottes from federal recognition and supervision.292 Termination was similar to nineteenth century allotment in that it was designed to weaken, if not necessarily to end, tribalism.293 It went even further by literally purporting to end the special federal relationship and protective duties.294 The purpose, often dramatically stated, was to set the Indians free of the federal custodial yoke, in a manner similar to the Emancipation Proclamation.295 More precisely, the termination of federal trusteeship would end special protection for Indian property, such as the Non-Intercourse Acts restraint on alienability, and subject both the tribe and its property to state law and taxation.296 Though sometimes the terminated tribes got direct control of their property, freed from federal supervision, in other cases the federal government preempted the ownership, and sold the property as a part of termination with cash distributions to be made to individual tribal members.297
Under Section Five of the Termination Law,298 the Secretary of the Interior was authorized to transfer title to Huron Cemetery to a corporation organized by the tribe for management or sale and distribution among the members.299 This was an ironic twist on an all-too-frequent pattern of termination where a terminated tribe lost its land base — its sovereign, economic, political, and cultural center — in exchange for relatively small distributions of cash.300 These were quickly spent on maintenance, leaving the individuals unbuffered and without a cohesive center:
The check did not compensate for the loss of federal benefits of the new tax bur- dens. It could not pay for the loss of tribal governmental authority, or compensate for the discrimination that followed in the state agencies and courts. Perhaps most tragic of all, the check could not possibly pay for the psychological costs of “not being an Indian anymore.”301
In the case of the Wyandottes of Oklahoma, the terminated tribe got the right to sell reserved land in another state that had been abandoned and never used by the Oklahoma tribe, but which was the center of the cultural, spiritual and community life of the Kansas Wyandots who had never left, and who had guarded the cemetery with unceasing passion.302
George Zane Jr., the Kansas Wyandots, and the City of Kansas City, Kansas filed suit in the United States District Court for the District of Kansas to enjoin both the Wyandotte Tribe of Oklahoma and Fred Seaton, the Secretary of the Interior from selling the Huron Place Cemetery and removing the bodies for reburial in another place.303 The court noted the clear division between the interests of the Oklahoma Tribe and the plaintiffs.304 The Kansas Wyandots desperately wanted to continue to use and protect the sanctity of the cemetery, while the defendants excluded the Kansas tribe from membership, had not used the cemetery since their removal to Oklahoma over a hundred years before, and had no interest in maintaining it as a burial ground.305 But, having observed this, the court afforded the plaintiffs no better result than that achieved by Lyda Conley. The court said: “If Conley, an individual, had no individual rights under the Treaty which she could enforce in a court of law, then plaintiffs in this action, and those similarly situated, have no individual rights which they may enforce herein.”306
But indeed, things had changed since Conley v. Ballinger. The Fifth Amendment right to just compensation for takings of treaty rights questioned in Lone Wolf307 was distinctly confirmed in a series of Supreme Court cases including United States v. Creek Nation,308 Lane v. Pueblo of Santa Rosa309 and United States v. Shoshone Tribe.310 Secondly, the individual assertion of certain severable treaty guarantees such as hunting and fishing rights, and ancestral gravesites seemed increasingly clear. Indeed, the Supreme Court, shortly after this case, recognized the continuing validity of constitutionally protected tribal hunting and fishing rights after termination,311 and lower courts specifically viewed the protection as individualized as well as tribal.312
In United States v. Felter,313 a Tenth Circuit Court of Appeals case paralleling the Wyandotte situation in several respects, the court examined the Ute Termination Act of 1954,314 which terminated the mixed-blood Utes, and continued recognition of the full-bloods.315 The court held, Equal Protection considerations aside, that individuals among the terminated mixed-bloods retained the rights to hunt and fish on the Uintah Reservation, even if the full-bloods retained ownership and sovereign power.316 Likewise, even the sovereign ownership of treaty rights to the cemetery by the Oklahoma Wyandottes should not preempt the right of individual Kansas Wyandots to assert constitutionally protected property rights in the remains of their ancestors and their particular gravesites.317 Perhaps, in the Tenth Circuit, this would not prevent a decision by the Oklahoma Wyandottes to disinter and rebury,318 but it would not preclude the standing of the Kansas Wyandot descendants to seek an injunction.319
After the Supreme Court refused to overturn the three-judge district court’s dismissal of the Wyandot suit320 or reconsider Conley v. Ballinger, the fate of the cemetery remained in limbo. No buyers emerged, no attempts at disinterment were made and, although the Oklahoma Wyandottes and the Department of the Interior remained interested in sale, and reburial, there was a growing movement in the United States for preservation.321
V. Historic Preservation Comes to Kansas City, Kansas — Sort of
As the United States began its extrication from the grinding futility of the war in Vietnam, it turned its attention toward the seemingly more relevant and tractable problems of the domestic environment, poverty, and discrimination.322 Part of the refocus was on historic preservation which had some successful local precedents in well-known venues like Williamsburg, Charleston, New Orleans, and Santa Fe.323 These cities made a special use of zoning power — sometimes on their own initiative and sometimes with authorization from state constitutions or enabling legislation — to protect landmarks and historic districts threatened by the pace and insensitivity of growth, redevelopment, and decay.324 The inspiration for historic preservation was, in central part, educational and cultural.325 It manifested a concern with time and the past, with history and with context, and with the vulnerability of iconic and anachronistic benchmarks to the relentless cost-benefit, dollar-based calculus, and the pursuit of profits and growth.326 Historic urban protection, however, had its own economic potential as landmarks and historic districts could attract tourism and could generate internal synergy that might dilute the forces of inner-city decay and might counter the centrifugal tendencies toward suburbia.327
In 1966, Congress passed the National Historic Preservation Act (NHPA),328 which aided local preservation efforts in several distinct ways. In one thrust, the Act established the National Register of Historic Places, and a process for inclusion.329 The Register automatically lists National Historic Sites and Landmarks designated under the Historic Sites Act of 1935,330 and other historic areas within the National Park Systems.331 Future nominations can be presented by federal agencies, state historic preservation officers, and tribal historic preservation officers, who identify potentially eligible buildings, districts, or sites within the jurisdictions.332 National Register criteria, at least one of which must be met, include: a property making a contribution to a major pattern of American history; a building with distinctive architecture or construction; a property associated with the life of a significant person in history; or a site that has provided or may provide important historical or prehistorical information.333
The criteria are developed and applied by the National Park Service, and state and tribal historic preservation officers.334 Cemeteries are presumptively excluded from eligibility on the National Register,335 but the National Park Service may make an exception for “[a] cemetery that derives its primary significance from the graves of persons of transcendent importance, from age, from distinctive design features, or from association with historic events. . . .”336
This exception clearly could reach the Huron Indian Cemetery and, on September 3, 1971, it was listed on the National Register.337 This alone does not assure protection, as the owner remains legally free to modify or demolish the inclusion, or even delist the site.338 There is, however, some indirect federal protection afforded by Section 106 of the National Historic Preservation Act.339 This section, procedural in nature rather than substantive, requires federal agencies to take account of the impact of their undertakings, such as direct action, financing, or regulation affecting properties on or eligible for the National Register.340 If a federal agency undertaking could have an effect on a listed site such as the Huron Indian Cemetery, then the agency is obligated to consult with the state or tribal historic preservation officers and possibly the Advisory Council on Historic Preservation (ACHP).341 Consultation generally leads to a memorandum of agreement outlining measures to avoid or limit the adverse effects.342
Theoretically, a failure to reach agreement, even after the commentary of the ACHP, is not substantively binding on an unrepentant agency, but the procedure and the considerations are mandatory.343 Furthermore, the NHPA allows both the ACHP as well as the agencies to promulgate binding rules and regulations on the implementation of Section 106,344 and some of these regulations may go beyond procedure to substantive demand.345
Still, even assuming that any federal agency involved with a covered undertaking has complied with the procedures of Section 106 and its own formally adopted regulations, the undissuaded property owner, without more, remains free to undertake his desired transformation.346 But there can be, and often is, more. Direct substantive restraints against modification or demolition of historic structures may be provided by state statutes or local preservation ordinances that are keyed to inclusions on the National Register and the National Park Services’ criteria, as well as the standards of the enacting body.347 This is, in fact, the situation in Kansas City, Kansas with respect to the Huron Indian Cemetery. Kansas City adopted its first historic preservation ordinance in 1970,348 and a year later, listed the Huron Indian Cemetery among its first inclusions.349
The ordinance would seem on its face to provide complete substantive protection for its inclusions. It states, “It shall be unlawful for any person to construct, reconstruct, structurally alter, remodel, renovate, restore, demolish, raze, maintain, excavate, zone, or place signs in or on any historic landmark within a historic district in violation of the provisions of this article.”350
This prohibition must, however be read in conjunction with the Kansas Historic Preservation Statute,351 which states,
If the state historic preservation officer determines, with or without having been given notice of the proposed project, that the proposed project will damage or destroy any historic property include in the national register of historic places or the state register of historic places the project shall not proceed until . . . the governing body of the political subdivision, in the case of a project of a political subdivision or an instrumentality thereof, has made a determination, based on a consideration of all relevant factors, that there is no feasible and prudent alternative to the proposal and that the program includes all possible planning to minimize harm to such historic property resulting from such use.352
The ability of a property owner to contend that the ordinance and the statute bear so heavily on the possible utility of the property that there are no feasible and prudent economic options left means that the government may have to afford a variance to avoid the finding of an unconstitutional inverse condemnation.353
VI. Leaford Bearskin and The Rising Tide of Indian Gaming
A. A Casino on Stilts?
Leaford Bearskin was born in 1921 on his family’s Indian allotment, and grew up near the Oklahoma Wyandotte Reservation — or what was left of it.354 The Oklahoma Wyandottes, after emigration from Kansas, acquired 21,000 acres in Northeastern Oklahoma Indian Territory after the Civil War.355 This was dissipated into individual allotments to 214 tribal members by 1893.356 Though the tribe was recognized by the United States and organized under the Oklahoma Indian Welfare Act (in 1937)357 the tribal holdings had withered away to 287 acres in 1971 when Bearskin returned from forty years of military service.358 Bearskin had been a war hero and had retired as a Lt. Colonel.359 He had flown forty-six combat missions, in World War II, participated in Berlin air lift, been a squadron commander in Korea, and had won, among numerous citations, the Distinguished Flying Cross and the Medal for Humane Action.360
Bearskin was, in sum, a tough, competent, disciplined man, and he was disturbed by the desuetude he found in his home country.361 Bearskin resolved to use his leadership skills, practical education, and familiarity with the connections beyond the insularities of the tribal world to revive the Wyandotte culture, identity, and pride.362 He rightly believed that economy on a sovereign land base was essential for the renaissance.363
Upon his election to chief, in 1983, he revised the tribal constitution and began the restructuring and expansion of the desultory business and service activities.364 He pursued the capital needed for physical improvements; instituted legal proceedings for land payments owed by the United States; and, in addition, began focusing on the issues and potential for Indian gaming.365
Gambling began to emerge in the 1980s as the new “white buffalo,”366 portending an economic survival on Indian reservations desperate for self-sufficiency.367 Many tribes had been severely handicapped by truncated land holdings that inhibited traditional economies such as hunting, gathering, ranching, and even agriculture.368 Compounding the economic complexities for many tribalists was the isolation from most national business centers and the unavailability of easy access to a cash economy.369 Gaming, however, might provide a low investment means of attracting some of the urban consumers to the forbidden fruit of gaming made legal within the cocoon of tribal sovereignty.370 Money from the gaming could pay for the prizes, cover the labor and overhead, and provide a surplus for the rebuilding of tribal government and culture.371
In the early 1980s, Seminole Indians in Florida decided to open a bingo hall on their reservation, and offer games with higher prizes, better hours, and stronger refreshments than those offered at the area churches where state law limited jackpots, and the Bible counseled temperance.372
States, made more nervous by the competition than the taint of decadence, pursued litigation — which was unsuccessful as long as the state did not prohibit gambling altogether but permitted gaming in some form, even if not as full-blown as on the reservations.373 In 1981, the Fifth District Court of Appeal in Florida held that bingo games on federally-recognized reservations were immune from Florida jurisdiction.374 Six years later, in California v. Cabazon Band of Mission Indians,375 the United States Supreme Court confirmed that, when states allow gaming in some form, and do not prohibit it in its entirety, efforts to regulate and restrict more extensive tribal gaming are necessarily civil in nature.376 This means that such state efforts are not included within the grants of criminal jurisdiction over tribes made to states under Public Law 280.377
The ensuing Indian Gaming Regulatory Act of 1988 (IGRA)378 was not so much a grant of gaming authority to tribes, which seemed to already possess this power within their retained sovereignty, as it was a comprehensive but restrictive approach that would balance tribal sovereignty and economic needs against state desires to regulate competition in an enterprise it was not willing to criminalize and prohibit.379
One of the keystones to gaming under the IGRA is “Indian lands” which means: “all lands within the limits of any Indian reservation; and . . . any land . . . held in trust by the United States for the benefit of any Indian tribe or individual . . . and over which an Indian Tribe exercises governmental power.”380 Another requirement for utilization of the IGRA is that the tribe seeking to game is “recognized as eligible . . . for the special programs and services provided by the United States to Indians because of their status as Indians and . . . is recognized as possessing the powers of self-government.”381
The Oklahoma Wyandotte Tribe has twice been recognized as a partner in a nation-to-nation relationship,382 and is thus capable of both receiving special programs and services, and exercising the powers of self-government.383 It holds reservation land in Oklahoma that is capable of supporting Class III casino gaming under the IGRA384 and which does in fact house the Wyandotte Nation Casino.385 However, a major key to successful gaming is location in or near a substantial metropolitan area, and the reservation headquarters in Wyandotte, Oklahoma are almost 200 miles from Wichita, Kansas and 100 miles from Tulsa, which are the nearest metropolitan areas of more than 500,000 people. In addition, the Wyandotte Nation Casino faces stiff competition from other tribal casinos in more strategic Oklahoma locations.386
Leaford Bearskin, however, contemplated an additional angle of attack — reserved land in a big city market. The Huron Indian Cemetery, in the heart of the Kansas City metropolitan area, was, by its treaty terms and the rulings of the federal courts, a reservation held in trust by the United States for the benefit of the Wyandot Tribe. Not only that, but tribal gaming competitors in Kansas were located ninety miles to the northwest on fairly remote, less attractive sites.387 True, the cemetery was only two acres in size, and thus capable of supporting only a small facility,388 but, perhaps, it could be a springboard to — or a stalking horse for — a larger complex at a more compatible site — such as one at the struggling Woodlands racetrack.389 Woodlands was clearly not federal property but, perhaps the Department of the Interior could be induced to acquire Woodlands in trust under its statutory authority.390 All prospects would stem from a plan — sure to be controversial — to retrofit the cemetery for gaming.
Bearskin’s first proposal, in February 1994, was to disinter the graves at Huron, rebury the remains at the nearby Quindaro Cemetery, and then seek a compact with the State for a high-stakes bingo parlor on the now secularized premises.391 Almost immediately the Bureau of Indian Affairs office at Andarko, Oklahoma stated that no action requiring the BIA’s involvement would occur without “consent from the lineal descendants of individuals interred at the Huron Park Cemetery, as required in the Native American Grave Protection and Repatriation Act of 1990” (NAGPRA).392
NAGPRA does indeed show distinct, preeminent concern for the lineal descendants of buried ancestors — but not in the fashion asserted by the Andarko office. The Act was passed, in substantial part, to deal with the rights of possession to remains discovered on federal or tribal lands after 1990,393 and to remains and cultural patrimony in the legal custody of federally funded museums.394 Property rights in such remains and items would indeed be within the priority of those able to establish lineal descendancy with a preponderance of evidence.395 Here, however, the Andarko BIA asserted that lineal descendants would not only have a property priority but, in addition, a right to insist on nondisturbance — against even a federally recognized tribe with full beneficial ownership of the site.396
NAGPRA does not go this far. Indeed, a federally recognized tribe has sovereign jurisdiction over reservation land use decisions, and can insist on compliance by others,397 even by lineal descendants of a nonrecognized tribe like the Kansas Wyandots.398 The Oklahoma Wyandottes, willing to transfer possession of the remains, but not sovereignty over land use, were not precluded either by the language or the intent of NAGPRA.399 They could have insisted that disinterment and repatriation of remains at another site take place, and that no nonmembers, even if lineal descendants, had the right to prohibit or condition their sovereign discretion.400
Bearskin, however, had his sights set on the bigger prize of the Woodlands, and didn’t wish to needlessly antagonize the Kansas Wyandots, many of whom were friends and relatives.401 Instead, he floated the possibility of a creative use of the unused airspace over the cemetery — much the same as the proposal by Penn Central Railroad in the classic New York City preservation case.402 If the disputed use can be elevated above the ground, then there is no physical disturbance, only visual or qualitative change.403 The sacred and profane can be neatly balanced.
Penn Central wished to build a modern tower over the iconic rail- road station, and thus make physical and financial use of the unused air space extending above the relatively squat station all the way to the lofty regulatory height limit.404 The City, however, used its historic preservation ordinance to block not only physical transformation, but also the character — diminishing indignity of a modern skyscraper on stilts rising over the enfolded landmark.405
The United States Supreme Court held that the ordinance, though denying Penn Central Railroad the use of substantial, buildable air space between the legal height limit and the top of the station, still did not, in regulatory taking parlance, go “too far.”406 The substantial impact on the regulated property site was partially offset by the showing of some economic return on the still-operational station, tax abatement, and the potential of transferable development rights.407 Penn Central could, in theory, transfer some of the unused building potential to other sites where construction could then exceed the structures of the zoning envelope without changing the overall density limits of the zoning area.408
In the case of Huron Cemetery, the constitutional argument for use of the airspace was considerably stronger. Since the BIA had effectively precluded disturbance of the surface, the use of the airspace was necessary to allow any reasonable economic use of the trust land and avoid the declaration of a categorical taking.409
Though Bearskin would later claim that the casino-on-stilts idea was hyperbole and an attempt to force action on the Woodlands site,410 the Kansas Wyandots felt that he meant it. Holly Zane, tribal attorney and a daughter of former Chief George Zane, said, “if the cemetery came between his casino, he’d take a shovel and dig up the bodies himself.”411
The fight was on. On May 12, 1994, Jan English, the second chief of the Kansas Wyandots, filed a letter of intent to petition for federal recognition with the Office of Acknowledgement within the BIA.412 The process of acknowledgement is long, expensive, and uncertain, but, if successful, would place the Kansas Wyandots on an equal footing with the Oklahoma Wyandottes in future battles over the cemetery.413
Though federal recognition of Indian tribes has historically been accorded by treaty, statute, and court decision,414 the approach since 1994 has involved a multi-fact administrative procedure outlined in the Code of Federal Regulations.415 Among the most significant of the mandatory criteria are: (a) “petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900”; (b) a predominant part of the petitioning group “comprises a distinct community” and “has existed as a community from 1900 until the present”; (c) “[t]he petitioner has maintained political influence or authority over its members as an autonomous entity from 1900 until the present”; and (d) the “membership consists of individuals who descend from a historical Indian tribe.”416
Most of the nearly 400 Kansas Wyandot members live in the Kansas City metropolitan area and have maintained tribal and corporate relations since the treaty-induced split of 1855.417 Land is perhaps the critical core of sovereignty418 and, although the Kansas Wyandots did not have a true tribal land base, they did have, at Huron Cemetery, an emotional center.419 Jan English, who became the tribe’s principal chief following the retirement of George Zane and is the driving force behind the quest for recognition,420 has written about her entrance into the embrace of the sacred cemetery:
Our walk toward the peaceful and quiet graves serenaded by the songs of birds and the soft percussion of creatures rustling through dried leaves, was interrupted by my grandmother’s cry of “Come Back here!” One of the three teen-aged boys running away from the graves toward the back exit of the cemetery stopped, briefly talked with my grandmother, dropped his head and loped off to join companions who laughed at us from a distance. One held a small metal sign attached to a stake, and taunted us by waving it in our direction.
Grandmother turned and walked toward me. For the first time I saw that she was crying and that tears ran down her face. When I asked what was wrong, she told me that the boys had stolen the modest little metal marker that served as a monument over her baby son’s graves in order to be the first to obtain a list of items that were required in order to win a game called “Scavenger Hunt.” We walked back in silence, and I was somewhat uncomfortable as we passed the graves of Hannah Zane, my third great-grandmother, her children, and grandchildren.
I later learned the stories that connected these women to our sisters whose courage and determination link them with Indigenous women throughout the world; for their stories contain the contemporary themes that today resonate among people who must engage in a struggle to preserve rights of justice and self-identity for them- selves and their families. Within these stories is interwoven the thread of grief that arises from the tension created when a paradigm of fear, power and control is pitted against a journey toward interconnectedness and interdependence.
It was on that day I began to internalize the oft told story of the daughters of my great-great aunt’s Eliza Burton Conley, Sr., the three Conley sisters who referred to themselves as Ida, Lyda, and Lena. Our family simply called them, “The Sisters” or “The Cousins.” Their lives were full of stories of heroism and heartache, respect and humiliating derision; inspiration for our people, and headaches for those who would intrude upon the rights of our People and, especially, to disrespect the bones and resting place of Our Ancestors.421
Sam Brownback, the current governor of Kansas, was newly elected to Congress in 1994.422 Characterized by core values of faith and morality, he became an ally of the Kansas Wyandots, in part because of his respect for the sacred, and also because of his basic opposition to gaming.423 When Leaford Bearskin announced plans to build a casino over the cemetery, in lieu of his preferred but unfulfilled dream of a casino at the Woodlands, Brownback preempted the ploy with an amendment to the appropriation legislation for the Department of the Interior: “[T]he lands of the Huron Cemetery shall be used only — (a) For religious and cultural use that are compatible with use of the lands as a cemetery; and (b) As a burial ground.”424
Brownback stated, “It’s beyond decency to do something like that. This is an ancestral burial ground and it should be left as such.”425 To which Bearskin replied, “Apparently the senator is of the old school that believes that treaties with Indian Tribes were meant to be broken.”426 Bearskin had a point. The only way Brownback’s legislation could square with the language of the Treaty of 1855 — and with the Constitution — was if the words “the portion now enclosed and used as a public burying ground shall be permanently reserved and appropriated for that purpose” were intended by both parties to be words of limitation or prescription.427 Many treaties contained language of reservation seemingly qualified and limited to particular uses, but the United States Supreme Court has consistently read the words as words merely of description that did not impair the tribes’ residual sovereignty, proprietary interests, or discretion.428 The Supreme Court has long felt that the tribes, ceding land to another party in control of the language, the drafting, and the negotiating power, should be accorded the benefit of the doubt in cases of ambiguity and vagueness, and an interpretation in accord with their expectations.429 Thus, clearly since the Indian Reorganization Act of 1934, the Court has viewed even vague descriptions of reservation as affording a full beneficial interest, constitutionally protected against an uncompensated taking.430
The language of the Wyandot Treaty of 1855, though referring to the present use as a burial ground, did not prohibit other uses or perhaps more significantly, did not purport to retain any beneficial interest in the United States.431 Yet that, in fact, is what Brownback’s amendment did. The Wyandotte stilt proposal, though not inconsistent with the cemetery use as a burial ground, was deemed by Congress to be incompatible with its view of decency and proper spiritual observation.432 Those interests, certainly not illegitimate, were, however, not beneficial interests that the United States had clearly sought to retain.
It would seem that the Oklahoma Wyandotte had the basis for a Tucker Act proceeding in the United States Court of Federal Claims for Fifth Amendment compensation,433 or, at least, for additional leverage in the quest for gaming at the Woodlands.434 In fact, the House Resource Committee voted to pursue the Woodlands compromise because Brownback’s amendment had been unfair and perhaps illegal.435
B. Acquisition of the Scottish Rite Temple Tract
Leaford Bearskin was proceeding on a number of fronts in Kansas, even though his central quest was the expansive opportunities at the Woodlands. It may well have been that collateral endeavors such as the casino on stilts was a diversion designed to bring the Woodlands venture to fruition. Another brushfire — or so it may have seemed — was the idea of gaming at the Scottish Rite Temple, adjacent to the Huron Cemetery.
The temple, only three stories in height, represented at best less than 30,000 square feet of interior space436 — hardly enough for a destination casino. In addition, the temple had been listed on the National Register since 1985, and, since 1983, was a Kansas Historic Landmark.437 The procedural provision of Section 106 of the National Historic Preservation Act and the substantive protections of the city and state preservation legislation would thus come into play in the event of a transformative threat.438 It is ironic at the least that, of all Bearskin’s Kansas plans, this was the one that first became reality.
Bearskin had acquired an option on the temple in 1996, and was proposing to use money to be received from the United States in settlement of historic treaty underpayments, as both purchase money and the lever to precipitate automatic trust status.439 Congress had passed a law in 1984 to appropriate and distribute money awarded to the Wyandottes by the Indian Claims Commission and the Court of Claims.440 One directive in the 1984 statute stated “$100,000 of such funds shall be used for the purchase of real property which shall be held in trust by the Secretary for the benefit of such Tribe.”441
In January of 1996, the Oklahoma Wyandottes requested that the Department of Interior take the Shriner Tract into trust, and on June 12, 1996, the Assistant Secretary for Indian Affairs posted a notice expressing BIA consent.442 Reaction was swift.
A month later, the state of Kansas, the Kickapoo Tribe, the Iowa Tribe, the Prairie Band Potawatomi, the Sac and Fox, and the Kansas Wyandots sought a temporary injunction against trust acquisition which was granted by the district court on July 12, 1996443 — and lifted three days later by the Tenth Circuit Court of Appeals, which preserved the rights of the parties to seek ultimate resolution of the issues.444 The same day, July 15, the Secretary took title to the temple tract into trust for the benefit of the Oklahoma Wyandottes.445
C. The Settlement Contract and the Wendat Confederacy
The Kansas Wyandots, plaintiffs in the suit to enjoin the trust acquisition of the temple, made a dramatic and unusual turn away from the arena of litigious battle and toward the healing of the chasm that had split the Wyandots for nearly a century and a half. In July of 1998, the Wyandotte Tribe of Oklahoma and the Wyandot Nation of Kansas signed a settlement agreement that largely ended the squabbles over the cemetery and promised alliance, cooperation and support for the future.
It was not total consensus, it might be noted upfront, because the Oklahoma tribe still claims, by virtue of Supreme Court precedent, that it holds the full beneficial interest, while the Kansas Wyandots still feel that their individualized treaty rights passed from signatory ancestors to their descendants.446 More significantly, however, the parties agreed that Huron Cemetery shall be used only for that purpose, and the respective parties shall never permit construction, development, or business on, over, or under the site.447
The Wyandot Nation also agreed that, if it received federal recognition, it would not seek to obtain a gaming facility in Kansas, an assurance that it gave to all the other Kansas-based tribes.448 It also promised the Oklahoma tribe that it would drop out of the multi-plaintiff lawsuit challenging the trust status of the temple449 — at least if the Department of the Interior approved the compact.450 Because the agreement bore on the usage of Indian trust land, it theoretically required the assent of the trustee.451 Holly Zane, attorney for the Wyandot Nation, felt that though approval was desirable, it was not necessary to bind the parties452 — which was fortunate since the BIA, enmeshed in the Cobell453 litigation, never responded.454
The agreement did not prohibit — nor encourage — gaming on the temple site, and the Kansas Wyandots clearly were not happy with any gaming in the vicinity of the cemetery. But, as Holly Zane said, “Our top priority with the agreement was to prevent gambling on the cemetery site. We don’t think the temple is the right place either. But we have shut off any possibility of gambling at the cemetery itself.”455
The agreement proved to be a watershed—not only a binding statement on the mutual desire to preserve the cemetery but a beginning to the end of discord and a foothold for the reunification of cultural relations of the former Wendat Confederacy. The Confederacy consists of the four existing tribes, two in Canada and two in the United States that descended from the original Wendat/ Ouendat Nation, which was in effect before European incursion into the Hudson Lake-Great Lakes region.456 The Nation, scattered and distracted by the external forces, retained a common spiritual essence within the several parts and this was reunited in a cultural cohesion on August 27, 1999, in Midland, Ontario.457 The leaders of the respective tribes — Chief Willie Piccard, Huron Wendat of Wendake, Chief Leaford Bearskin, Wyandotte Nation of Oklahoma, Second Chief Jim Bland, Wyandotte Nation of Oklahoma, Chief Janith K. English, Wyandot Nation of Kansas, Spokesperson Steven A. Gronda, Wyandot Nation of Anderdon — adopted a foundational document for the Wendat Confederacy. It states:
Over ten generations ago, the Wendat people were driven to many directions from our beloved homeland. Today, 350 years later, we stand with our children and grand children at our sides and come together once again to affirm the Wendat Confederacy. . . .
The Wendat Peacemaker once outlined the path towards unity. Leaders were ad- monished to never disagree seriously among themselves, for to do might cause the loss of rights of their grandchildren. May we always cultivate feelings of friendship, love, and honor for each other so that the good tiding of Peace and Power of Righteousness will be our guide.
May our leaders endeavor to serve each nation in a manner that will bring peace, happiness and prosperity for all the people. May the thickness of our skin be seven spans — which is to say the span should protect against anger, offensive actions, and criticism. May our hearts be full of peace and good will and our minds filled with a yearning for the welfare of the people of the Confederacy. With endless patience, may we fulfill our duty, and may our firmness be tempered with tender- ness and compassion. May neither anger nor fury find lodging in our minds; and may all our words and actions be marked by calm deliberation.
Finally, if any nation of the Confederacy should ever need help. [L]et it call out the others to come to its aid. We vow to attempt to work together in way that embers of long ago council fires may be fanned into a flame of kinship, culture and love that will warm countless generations of Wendat people.458
Historian Lee Sultzman once wrote that, “factionalism has plagued the Huron and/ or Wyandot for the last 400 years. The bitter fight for recognition between the Citizens and Indian Parties has persisted to the present day between the Wyandot Nation of Kansas and the Wyandotte Tribe of Oklahoma.”459 The modern Wendat Confederacy, reborn in 1999, represents a cultural and spiritual, if not political, reunion, and an end to fighting over the future of the cemetery, if not a common economic agenda.
D. Attacks on the Land in Trust
The reestablishment of the Wendat Confederacy and the healing of intertribal relationships did not, however, soften the economic necessities and aspirations of Leaford Bearskin. He may have foresworn intentions for the cemetery, but he still wanted a Kansas City casino — and he had title to the Scottish Rite Temple tract. Its status as a base for gaming, however, was under continued legal attack by the Kansas tribal coalition, and was not warmly embraced by the Kansas Wyandots who saw it as a profane and discordant contrast to the sacredness of the cemetery.460 Bearskin saw it as less desirable than the Woodlands but, if necessary, he could accept it as a not inconsistent economic polarity to the otherworldly repose of the cemetery.461
After the Tenth Circuit Court of Appeals vacated the 1996 temporary injunction,462 the plaintiffs — now without the company of the Kansas Wyandots — again challenged the legality of the Department of the Interior’s trust acquisition of the temple tract.463 On March 2, 2000 the District Court dismissed the complaint for failure to join the Wyandottes as a necessary and indispensable party.464 On appeal, the Tenth Circuit concluded that the Wyandotte Tribe was not essential to a determination465 and then proceeded to deal with the validity of the trust acquisition and the intended use of gaming.
The Tenth Circuit felt that, in spite of the Indian Reorganization Act’s provision on the acquisition of land for Indians,466 and notwithstanding the implementing regulations’ emphasis on agency discretion,467 the Distribution Act of 1984468 had clearly indicated that the Secretary had a non-discretionary mandate to take into trust property purchased with Indian Claim Commission awards.469 Thus, the Secretary was obligated to take the temple tract directly into trust, and was not obligated or entitled to comply with either the National Historic Preservation Act470 or The National Environmental Protection Act471 before acting. The Court was not, however, able to conclude from the facts shown that only funds appropriated under the Distribution Act were used to purchase the temple tract, and thus remanded the case for consideration by the Department of the Interior.473
The Secretary later confirmed that the allotted funds, together with interest, was more than enough to cover the purchase price.474 The clogged plaintiffs, however, refused to quit and filed yet another action in district court challenging the Secretary’s determination of the funds and decision on the trust as arbitrary and unsupported by the evidence.475 Judge Julie Robinson affirmed the trust status, finding that there was substantial evidence to support the Secretary,476 and that any interpretation of ambiguities in the language of the Distribution Act were entitled to Chevron deference.477
Before reaching the merits of any disputes over monetary evidence or statutory construction, the Tenth Circuit Court of Appeals put what seemed to be the final stopper in the incessant paper wars, relentlessly waged by the State of Kansas and the Horton area Indian Tribes.478 The Secretary raised, for the first time in the case, a preclusive jurisdictional argument that sovereign immunity barred the challenge to title in trust for Indians.479 The Court, considering the claim because claims of sovereign immunity are an exception to the general rule against considering new arguments on appeal,480 noted that, at the time the complaint was filed, the tract was already held in federal trust.481 The Court further agreed with the Secretary that the Quiet Title Act482 provided no waiver of sovereign immunity for suits by third parties challenging the United States title in trust for Indian lands.483 The appeal was dismissed and the case remanded to the district court with instructions to vacate the judgment for lack of jurisdiction.484
The gates of sovereign immunity had swung shut with Leaford Bearskin’s little casino tucked safely inside as Indian trust property. Perhaps now the litigation could end and the Oklahoma Wyandotte’s might reap some modest profits for the persevering tribe. Almost simultaneously with the Tenth Circuit opinion, the tribe opened the doors of the 7th Street Casino on January 10, 2008:485
After years in court, Chief Bearskin said, the fight is over and the tribe won. “We went by all the rules and regulations set up by Washington,” said Chief Bearskin. “We went by the law and came out on top. We’re going to stay on top. The people of Kansas City will never be sorry the Wyandotte are here.”486
Well, perhaps a bit more litigation. Even after the opening of the casino, and even after the city seemed to embrace it and appreciate the boost it provided to the struggling urban economy, the state of Kansas and the Kansas Tribes, plowed ahead with yet another lawsuit. The plaintiffs claimed that they had originally sued in 1996 before the temple tract was purchased and taken into trust,487 and had alleged facts that made taking the land into trust decision improper as a matter of substantive administrative law.488 The District Court, feeling that the current status of land in trust was determinative on the issue of sovereign immunity, and not the date of filing, dismissed the action.489 The Tenth Circuit agreed, holding that the Quiet Title Act (QTA) pro- vides the “exclusive means [to] challenge the United States’ title to real property.”490 Moreover, said the Court, the QTA may bar suit even when the plaintiff does not claim an interest in the property, but only the propriety of acquisition:
In determining whether a suit must be treated as a quiet title action sufficient to invoke the QTA, we ‘focus on the relief sought by the plaintiffs. Seeking to remove land currently held in trust by the United States or to encumber that land constitutes a challenge to the government’s title sufficient to bring a claim within the ambit of the QTA, despite the fact that plaintiffs do not themselves seek title to the land. Consequently, if plaintiffs’ case is to proceed, it must do so exclusively under the QTA; the APA is no longer relevant given the relief sought.491
It is noteworthy — and ominous — that, for this holding, the Court relied on the precedent of Neighbors for Rational Development v. Norton.492 This presents a problem that will be explored in Section VIII.
VII. The Quixotic Quest for the Lowlands
Off to the side of the decades of litigation over the cemetery, the temple and trust status was a land-claim joy-ride brought by Leaford Bearskin and his merry band of litigators. In truth it seemed in retrospect more like a ploy — perhaps tongue in cheek — to promote or provoke a settlement on the Woodlands, rather than a sincere effort at reclamation.493 Still, it had some wheels and raised some nervous eyebrows.
In June of 2001, the Oklahoma Wyandottes sued the Unified Government of Kansas City and Wyandotte County, Kansas, and numerous private landowners including International Paper, Owens Corning Fiberglass, and General Motors.494 The suit claimed ownership of three sections of land and riverbed accretions that the plaintiffs alleged were not ceded to the United States under the Wyandot Treaty of 1855, and had been illegally granted to non-Indians.495 The tribe asserted that under Article 2 of the Treaty, the tribe agreed to cede only the land that “was purchased by them of the Delaware Indians”496 and did not agree to give up the three sections of land that had been gifted.497 Furthermore, the Tribe contended that “patents by the United States to land within the sections, and subsequent transfers by the grantee are all invalid.”498
Larry Hancks, the foremost Wyandot historian in the Kansas City area, states that, “[h]istorically, this was nonsense, although obviously very few people were aware of that.”499 Hancks notes that the three gifted sections were only referred to as a general, undivided measurement of land at the time of the transfer from the Delaware, and later under the Wyandot Treaty of 1855; the three sections were included in the whole and were not separately surveyed until after the Treaty.500 Thus, there was no way that the plaintiffs could determine which three sections of land had actually been gifted.
Furthermore, Hancks says, the claim that the United States sold the ceded lands, as it chose, was wrong. The Wyandots had sought the treaty, citizenship, and allotments in severalty and had been the original holders in severalty of all the ceded lands, including the gifted sections, after the survey was completed.501
Hancks and others think that the tribe was trying to state a claim with just enough credibility to escape sanctions for frivolous litigation and put some concern into the minds of titleholders and insurers of some of the most valuable industrial and governmental property in the city.502 Hancks said, “This in turn could give the tribe a strong bargaining chip in dealing with the State and Federal governments, possibly leading to an out-of-court settlement giving the tribe both money and a grant of land in Wyandotte County on which to establish a casino, which had always been Chief Bearskin’s long term goal.”503
The worth of the chips was defused, however, by the federal courts’ interpretive and procedural approach to dismissal of the claim. In the first sense, the court felt that the treaty language of cession to both land and sovereignty within “Wyandott country” referred to all of Wyandotte land, including the gifted sections.504 The court felt that this interpretation was clear, unambiguous, in accord with the tribal understanding, and thus within the interpretive canon that calls for ambiguities to be construed in the Indians’ favor.505
In a procedural sense, the court found that the Kansas statute of limitations on land claims had run.506 Under the terms and intent of the 1855 treaty, the tribe had ceded its land to the United States for survey and reconveyance in severalty to the individuals, and had agreed to the dissolution and termination of the tribe.507 The use of termination in this sense was even broader than the post-World War II experience in that it contemplated ending not only the nation-to-nation trust relationship, but the tribe itself.508 Of course, attempting to end future internal association is both impossible and generally unconstitutional.509 In the immediate sense, however, the jurisdiction of the territory of Kansas was extended over the “Wyandott country” in the same manner as over the other parts of the territory, and over individual Indian citizens, no longer within a recognized tribe, as early at 1859:
The court finds that, given the clear language in Article I of the 1855 treaty making state and federal law applicable not only to the individual Wyandottes, but also to the “Wyandott country” as a whole within the Territory of Kansas, that once the lands were allotted to individual Wyandottes and restraints on alienation removed, Kansas law applies to subsequent claims regarding the lands at issue in this case. . . . Applying these principles, Kansas law began to apply to any challenges to the land patents to the gifted sections no later than their issuance of 1859 to Wyandottes who were members of the competent class, and no later than 1867 to members of the incompetent class.510
Since Kansas law had never provided more than twenty-one years in which to bring claims for the recovery of real property, the limitations had long expired and plaintiffs’ complaint was time-barred.511
As an alternative argument, the defendants stated that the tribe’s claims should be dismissed for failure and inability to join the United States as a party.512 The court swept aside plaintiffs’ collateral estoppel arguments from a prior case513 because, at this later point in time, numerous additional defendants had been added.514 It then considered whether claims could exist against the federal government for wrongful issuance of patents from the gifted section and against the holders of such invalid titles.515 The court found that, under Tenth Circuit law, tribal claims against the United States for wrongful taking of land, before August 13, 1946, had to be filed with the Indian Claims Commission by August 13, 1951:
Certainly, plaintiff was aware of such claims prior to August 1946, when the ICC was formed and in August 1951, when the five-year statute of limitations under the ICCA expired. Plaintiff cannot, in good faith, assert that it was not aware that the United States had issued patents inconsistent with its title to the disputed lands prior to 1946, or that no claim against the United States arose before it decided to bring this lawsuit in 2001. As a result, plaintiff would be barred from pursing such claims against the United States in this court, or in any other forum. “By sleeping on its claim, the Tribe simply lost its forum to litigate the pre-1946 actions of the Government that were inconsistent with its alleged title.”516
Having concluded that the Treaty of 1855 gave up all the Wyandotte lands, including the gifted sections, and that the state and federal statute of limitation had run, the court added another millstone on the neck of this highly problematic claim: It stated that no suit could be brought against the individual landowners if the United States, as original grantor and indispensable party, could not be joined.517 Indeed, the court’s rejection was so complete that the Oklahoma Wyandottes did not appeal the case, and Larry Hancks reported that disgruntled defendants, forced to defend a near-frivolous lawsuit, were seeking to recover some of their considerable expenses from the Tribe.518
VIII. Conclusion: The Supreme Court and the Future of Trust Lands, Indians and Sacred Sites
A. Trust Lands
There are few things more important to the future of Indian sovereignty than the federal land trust.519 Though some have denigrated the trust as paternalistic, an anachronism, or a constraint on self-determination,520 in fact, the trust has shielded the land base and the Indians’ sovereignty from the almost consistently hostile forces of the surrounding states and the local governments.521 From the inception of the new American nation and the Non-Intercourse Act restraint on alienation of land without federal consent,522 Indian trust land has been, with the exception of periods of termination for certain tribes, shielded from theft, trespass, fraud, and state procedural provisions like tax foreclosure, adverse possession, and statutes of limitations that operate remorselessly against the often unwary and usually impecunious tribes.523 In addition, the Non-Intercourse Act is coupled, under the trust doctrine and the federal common law, with an overarching federal presence that has both plenary power under the Constitution524 and the ownership of a legal property title in trust.525 The result is the power of preemption over unauthorized state intrusion,526 as well as the duty of oversight and protection.527 The tribe enjoys a presumptive immunity from state and local regulation and taxation,528 and an economic initiative that, though not total, is still basic to a functioning self-determination and to the prospect of long-term sustainability.529 The tribe’s land interest is, generally, one of full beneficial ownership rather than dictated federal management, and the United States’ interest is essentially one of naked legal ownership and trust responsibility.530 This is, however, enough to create the shield.531
The tribes know very well the essential nature of the trust. Though the terminationists might tout the ending of the trust as the prelude to freedom and equality, the Indians are clearly aware that it would really be the obituary to measured separation and meaningful self-determination.532
Since 1934, tribal land has been held in trust under the general operation of the Indian Reorganization Act (IRA), which stopped the hemorrhaging of allotment and extended all trusts previously established by statute and treaty indefinitely into the future.533 The forward-looking thrust of the IRA, necessary for the future of tribalism, for newly recognized tribes, and for the reconstitution of the decimated tribal land bases, was implemented by 25 U.S.C. § 465,534 the land-in-trust provision that authorized the Secretary of the Interior to acquire lands for the tautologically-stated purpose of “providing lands for Indians.”535 The section also provides that title to the land “shall be taken into trust for the Indian tribe or individual Indian for which the land is acquired, and such land shall be exempt from state and local taxation.”536
The distinction between trusts for tribes or individuals has been blurred and the operation of Section 465 obstructed by the recent Supreme Court decision in Carcieri v. Salzar,537 which has clear implications for the future plans for the Oklahoma Wyandotte — and may portend problems for even the security of the Huron Cemetery and the future options of a recognized Kansas Wyandot tribe.
In Carcieri, the Court examined the language of 25 U.S.C. § 479, which defines the word “Indian” and at least partially qualifies the delegated power to take land into trust for Indian Tribes and individuals. Section 479 states,
The term “Indian” as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood.538
Though research has demonstrated that the “recognized Indian Tribe now under Federal jurisdiction” addition was indeterminate in meaning and purpose,539 Justice Thomas, writing for the majority, felt that the clause was clear and unambiguous.540 The ameliorating approach of the Department of the Interior, which viewed “now” as meaning at the time of the taking into trust,541 was thus not entitled to Chevron deference, despite eighty years of consistent practice.542 The Court instead felt that “now” included only members of tribes federally recognized as of June 1934, when the IRA was passed, and did not include tribes that might be recognized thereafter.543 Thus, the Court held that there was no authority under Section 465 to take land into trust for Indians in tribes that gained federal recognition after that date or were unable to show federal jurisdiction before that time.544
This was judicial monkey wrenching at its most extreme.545 Literally hundreds of tribes in the United States have received recognition since 1934, and hold or have applied for land in trust under Section 465.546 This would include the Oklahoma Wyandotte who were first clearly recognized in 1937 under the Oklahoma Indian Welfare Act, terminated in 1956, and then recognized again in 1978. Assuming that the latest recognition, after a termination, is the most significant, the Oklahoma Wyandotte trust lands might seem vulnerable.547
The status of such lands and the scope of modern tribal land protection was thrown into further doubt by the Court’s follow-up decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak.548 Patchak lived in Michigan, in the immediate vicinity of land taken into trust for the Pottawatomi Tribe by the Secretary in 2009.549 He sued, challenging the Secretary’s authority in light of the Carcieri decision, and was met with the argument that he lacked standing as, under the Quiet Title Act,550 there is no waiver of sovereign immunity for claims against lands in trust for Indians.551 The Court of Appeals, however, concluded that Patchak did have prudential standing and that the Quiet Title Act did not bar actions contesting agency authority under the APA, in contrast to precluding actions to asserting a competing claim of ownership.552
The Supreme Court affirmed the Court of Appeals. It felt that there was a general waiver of sovereign immunity in the APA for suits seeking nonmonetary agency conduct,553 and that Patchak’s action sought no title, but only injunctive relief against a trust decision allegedly in violation of federal law.554 It is noteworthy—and of concern to the Oklahoma Wyandottes — that Patchak’s action was based on an allegation that the Secretary was not authorized to take land into trust for a tribe that was not recognized in 1934, but was later recognized in 1999.555 Furthermore, the Supreme Court overturned one of the cases foundational to the Secretary’s arguments that the Quiet Title Act failed to displace sovereign immunity for suits against Indian lands in trust — a case that had been crucial to the result of the Governor of Kansas v. Kempthorne case,556 which held that the Quiet Title Act’s exception for sovereign immunity waivers in the case of Indian trust land prevented the application of the APA and its general waiver of immunity.557 Is the trust status of the Scottish Rite Temple tract — now the operating 7th Street Casino — going to be relitigated? This may depend in part on the future of Carcieri and its interpretations.
It has been pointed out that there are potential avenues — or alleyways — around the Carcieri roadblock.558 These may be necessary for the Oklahoma Wyandottes who were recognized in 1936 and again in 1978, and for any future recognition of the Kansas Wyandots.
For one thing, the word “now” in the infamous phraseology of Section 465 does not modify “recognized,” it modifies “under federal jurisdiction;”559 the Supreme Court graciously accepted the Narragansetts’ tactical pleading error that the tribe was, in 1934, “neither federally recognized nor under the jurisdiction of the federal government.”560 The proof of the former could thus be deemed, unreasonably, proof of the latter.561 One could easily postulate authority under Section 465 to take land into trust for tribes that are recognized at the time of trust, and were under federal jurisdiction in 1934.562 It would seem clear that “federal jurisdiction” is broader than “recognition,” a concept that was still in evolution in the 1970s.563 It was not until 1978 that the Department of the Interior first promulgated regulations for the demonstration of tribal status sufficient for recognition.564 The concept of jurisdiction, however, began with the Non- Intercourse Act of 1790565 and expanded to a scope of plenary power by the end of the nineteenth century.566 Cohen’s Treatise states that
The authority of Congress extends to all Indian communities in the United States, including terminated and non-federally recognized tribes. The relationship need not be continuous. The relevant question is whether and to what extent Congress has chosen to exercise its authority with respect to a particular tribe. Congress has exercised its authority to restore the federal-tribal relationship with a number of terminated tribes.567
In addition, the non-alienation provisions of the Non-Intercourse Act have applied to the land of any Indians who are identifiable as a tribe, even if the tribe is not formally recognized by treaty, statute or administrative action.568 In sum, these concepts of jurisdiction are clearly broad enough to allow Congress to assert authority and protection over unrecognized tribes and to acquire land for them after 1934, when recognition is formally accorded.
However, the possibility of establishing eligibility for Section 465 trust acquisition solely on the basis of federal jurisdiction in 1934, does not assuage the increased complexity and uncertainty. It was noted by the United Southern and Eastern Tribes, Inc., that,
Carcieri has significantly slowed DOI’s processing of trust land applications — even for those Tribes who may not have a “Carcieri problem.” The uncertainty and delay that accompanies the “under federal jurisdiction” analysis, which is determined on a Tribe-by-Tribe basis, can jeopardize potential economic development opportunities as well as core governmental functions including but not limited to health care provision, housing, and education for all Tribes. Until Congress restores the Secretary’s authority to acquire land in trust for all Tribes. Tribal opponents can use Carcieri to bring litigation challenges on proposed acquisitions and even some lands that are already in trust. Even for those Tribes that believe they were “under federal jurisdiction” in 1934, the prospect of costly, drawn out litigation may frighten away potential partners and investors for economic development projects. The negative consequences of the Carcieri decision impact ALL of Indian Country.569
The Indian world, including the Wyandottes of Oklahoma and the Wyandots of Kansas await the passage of a bill, such as Senate Bill 732, which would amend the Indian Reorganization Act and allow the Secretary of the Interior to take land into trust for, simply and appropriately, all recognized tribes.570
When tribes assert a legal claim to measured sovereignty, federal services, and immunity from state and local regulatory jurisdiction, they often face the backlash argument that the insulation of Indian interest from laws, taxation, and competition is a form of odious redistribution, special privilege or reverse racism:
The modern anti-Indian movement was created out of a white “backlash” against gains made by the modern Indian movement since the 1960’s [sic]. At least five major factors motivate anti-Indian groups. The first is the call for “equal rights for whites”—that the increased legal powers of the tribes infringes on the liberties of the individual white American taxpayer. The second factor is access to natural resources. These resources can be fish or game, land or water, but the case is the same: no citizens should have “special rights” to use the resources. The third factor is the issue of economic dependency and sovereignty. In a rural reflection of the “Welfare Cadillac” myths used against urban African Americans, all reservation Indians are said to wallow in welfare, food stamps, free housing and medical care, affirmative action programs, and gargantuan federal cash payments — all tax-free, of course. . . . The fourth factor is the attitude of cultural superiority . . . and [t]he fifth factor is simple racism.571
Under this argument, government should focus on individual freedom, private property rights, and common law protections, and deemphasize special subsidies, redistributions, and central regulation of economy, environment, and society.572
Implicit in this free market decentralized paradigm is the classless, raceless society of equal opportunity, and, by necessity, the incompatibility of the special, protected Indian status that has been observed since before the nation’s founding.573 The lynchpin for the unique, separate status of Indian tribes is the case of Morton v. Mancari574, which has, thus, become the target for free market proponents who desire at least the illusion of a level playing field.575
Morton dealt with a provision of the IRA which authorized the Secretary of the Interior to afford a hiring preference to “qualified Indians,”576 which, under BIA regulations, required one fourth or more Indian blood and membership in a federally recognized Tribe.577 The provision was challenged by non-Indian plaintiffs as “invidious racial discrimination,”578 and the issue was, in part, the level of review. A strict judicial scrutiny presumes burdened racial classification invalid unless the government can demonstrate a compelling interest and narrowly tailored means,579 while nonracial classes might be judged by either a rational basis review — a legitimate objective and debatably reasonable means580 — or by an intermediate scrutiny approach assuring substantially reasonable means to an important end.581
In Morton, the Court chose to use a less demanding scrutiny, one that would sustain the use of classifications keyed to “Indians” or “Indian blood” if the classification was “tied rationally to the fulfillment of Congress’ unique obligation toward the Indians”582 — an objective that had been described as important and perhaps compelling but achievable with means accorded substantial flexibility.583
The court indicated a variety of reasons for the more lenient test, including Congressional plenary power under the Indian Commerce Clause, a provision that literally singles out Indians as a proper subject for legislature classification.584 The Court also pointed to the long history of the “Indian” classification in treaties, statutes, cases and administrative regulations such as those of the BIA.585 Finally, the Court asserted, somewhat reticently, in a footnote, that the classification in the hiring preference was “political rather than racial in nature” as “it applies only to members of ‘federal recognized tribes.’”586
Morton has held an uneasy position in the surrounding sea of unviable suspect classifications. Cases such as Rice v. Cayetano587 nibbled hard at its flanks. In Rice the Court invalidated a Hawaiian statute that limited the franchise in voting for trustees to the Office of Hawaiian Affairs to those of native Hawaiian ancestry.588 The majority held that “[a]ncestry can be a proxy for race”589 and that Morton v. Mancari dealt with a preference,
granted to Indians not as a discrete racial group, but, rather, as members of quasi- sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion. The opinion was careful to note, however, that the case was confined to the authority of the BIA, an agency described as “sui generis.”590
Marcia Zug wrote, immediately before the Supreme Court came down with its 2013 Indian Child Welfare Act case, called Adoptive Couple v. Baby Girl,591 that
[t]here is no question that ICWA treats Indian children differently than non-Indian children. Nevertheless, under well-settled law, this distinction is not constitutionally problematic. In Morton v. Mancari, the Court explained that “Indian” is a political affiliation rather than a racial category. It is uncertain whether the Roberts Court would agree with this distinction. The Roberts Court has indicated its strong disapproval of racial preferences, stating “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The Court could reach a similar conclusion regarding ICWA in Baby Girl. But if the Court were to do so, this holding would not only destroy ICWA but it would almost completely eliminate existing Indian law.592
The Supreme Court, however, did not touch Morton v. Mancari, though Justice Thomas did, in concurrence, lobby for a restrictive view of Article I’s Indian Commerce Clause and limits on the federal power to override state law.593 Thus, Morton v. Mancari carries Indian law and the Indian Trust responsibilities forward into the future, despite the narrowing in Cayetano with respect to the Fifteenth Amendment and the Hawaiian situation and despite some overt discontent in the lower court cases.594 One of the most recent opinions from the Ninth Circuit stated, in affirmance of Mancari,
We recognize that Mancari addressed a political classification providing a general Indian hiring preference rater than a tribe-specific preference. But Mancari’s logic applies with the equal force where a classification addresses differential treatment between or among particular tribes or groups of Indians. Indeed, based on Mancari, the Court has specifically upheld differential treatment among Indians.595
Though the United States Supreme Court has not been particularly supportive of American Indian sovereignty in the modern era, there are still some examples of continuing (though divided) support for sovereignty and treaty rights.596 In addition, Kansas tribes, including the Oklahoma Wyandotte and the Kansas Wyandots might derive some solace from the attitude of Governor Sam Brownback. Though Brownback is clearly a free market adherent and a firm believer in limited government regulation, taxation, and spending,597 he is still a resolute supporter of Indian rights and treaties.598 With regard to his anti-federalism, he stated, “We will continue our fight against the intrusive reach of the federal government [including] [e]nergy regulations . . . Obamacare . . . the U.S. Fish and Wildlife Service . . . [and] the EPA.”599 However, with regard to relations with the Indian tribes, he said, in 2007 as a senator:
For centuries, relations between the United States and the Native peoples of this land have been in disrepair. For too much of our history, Federal-Tribal relations have been marred by broken treaties, mistreatment, and dishonorable dealings. I believe it is time we worked to restore these relationships to good health.
Certainly, we cannot erase the record of our past; however, we can acknowledge our past failures, express sincere regrets, and work toward establishing a brighter future for all Americans. To achieve these goals, I have introduced Senate Joint Resolution 4 to extend a formal apology from the United States to tribal governments and Native people nationwide.600
The apology passed in 2009 as a part of the Defense Appropriation Act of 2009.601
C. The Protection of the Sacred
The sacred places of the Indian people and their protection have followed a winding course in the federal courts over the last quarter century.602 A central pivot point was the Supreme Court’s denial of First Amendment, Free Exercise protection in Lyng603 but, simultaneously, its affirmance of a zone of possible religious accommodation presumably within the limits of the Establishment Clause.604 The affirmative efforts of the federal land managers — at places like Devil’s Tower,605 Rainbow Bridge,606 Cave Rock,607 and the Bighorn Medicine Wheel608 — were unsuccessfully attacked by conservative litigators as transgressions of the First Amendment Establishment Clause. The United States and the tribes were repeatedly able to show a secular purpose.609 There clearly is not a doctrinal purpose in sacred site cases as Indian religion is essentially ceremonial and non-proselytizing.610 In addition, the United States had, in virtually all cases, its own compatible historic and recreational concerns.611
The defendants were also able to meet the demand of an absence of coercion because, in most cases, the land management plans were voluntary,612 and in other cases, closures were temporary613 or non exclusive614 and not accompanied by controversial imagery.615 Finally, the plans or laws operated prospectively and did not offend vested rights.616 Indeed, in some of the cases, the plaintiffs were not even able to argue the Establishment Clause because they could not show a constitutional basis for standing.617
The Supreme Court and Congress have recently rolled out the welcome mat of protection and accommodation for Christian interest in a way that may make the Indian concerns seem almost quaint. The Court was able to find that the Religious Freedom and Restoration Act (RFRA)618 and standing were available to protect sensitive concerns of corporate employers who feared that their Obamacare tax dollars would go towards forms of employee birth control that operate post- conception and offend the owners’ religious convictions.619 This was rather confusing to the Navajo and Hopi.
While the right cheered and the left wept, advocates for native religious rights were left scratching their heads. After all, Indian tribes and their members have attempted to use RFRA since it was enacted to protect sacred land from desecration, maintain access to religious sites, and otherwise protect their religious freedoms, only to be told over and over again that the challenged government activity did not impose a substantial burden on their free exercise of religion.620
The Supreme Court also found only accommodation and no Establishment Clause problems with the use of federal personnel, land transfers, and congressional funding decisions to protect the continued display of a crucifix surrounded by federal land;621 and the Court found no Establishment Clause issues with Christian prayer preceding local legislative council meetings.622 Congress joined the parade with a recent law allowing the transfers of the Mount Soledad cross and its federal land to private ownership, despite a Ninth Circuit ruling that the cross was an unconstitutional endorsement of religion.623
In sum, the federal government — Court and Congress — seem, perhaps, more inclined lately to guard the spiritual essence of symbols and places — and this might include Indian sacred sites, at least if there is no expansion of Indian sovereignty, and no interference with the gain-seeking that the United States might engage in on “what is, after all its land.”624
In the end, Lyda Conley might be partially satisfied — pleased that the tiny cemetery and its mystical aura have survived the full thrust and weight of urbanism. It exists, for the time being, in a web of case law, statutes, and history. But she, and her resolute kinspeople patriots — such as Jan English and Holly Zane — would be still wary that the pendulum of soulless, expedient, economic gain seeking might swing back toward the fragile miner’s canary625 in the central city. She would hope, along with her modern relatives, that this sacred heart, still beating in the desultory urban core, could support the Kansas Wyandots in their quest for recognition, and be an alienable, invaluable part of enduring sovereign future.
- It is also known as the Wyandot National Burying Ground. See Suzanne Hogan, The Story Behind the Historic American Indian Cemetery in Downtown KCK, KCUR 89.3 (Oct. 29, 2014) http://kcur.org/post/story-behind-historic-american-indian-cemetery-downtown-kck.
- For similar sentiments in another threatened place, see Charles Wilkinson, The Public Lands and the National Heritage, 3 HASTINGS W.-NW. J. ENVTL. L. & POL’Y 499, 503-04 (2008).
The languid stillness of Kaiparowits turns your mind gently and slowly to wondering about time, to trying to comprehend the long, deep time all of this took, from Cretaceous, from back before Cretaceous, and to comprehend, since Lake Powell and the seventy-story stacks of Navajo Generating Station also now play part of the vista, how it is that our culture has so much might and how it is that we choose to exert it so frantically, with so little regard of the time that you can see, actually see, from here. Perhaps somehow by taking some moments now, here in this stark pinon-juniper rockland place, here in this farthest-away place, a person can nurture some of the fibers of constancy and constraint that our people possess in addition to the might. The silence is stunning, the solitude deep and textured.Id.
- MIRCEA ELIADE, THE SACRED AND THE PROFANE 14-15 (Willard R. Trask trans.) (1957).
- Mircea Eliade wrote:
Revelation of a sacred space makes it possible to obtain a fixed point and hence to acquire orientation in the chaos of homogeneity, to “found the world” and to live in a real sense. The profane experience, on the contrary, maintains the homogeneity and hence the relativity of space. No true orientation is now possible, for the fixed point no longer enjoys a unique ontological status; it appears and disappears in accordance with the needs of the day.ELIADE, supra note 3, at 23.
- See JOSEPH L. SAX, MOUNTAINS WITHOUT HANDRAILS 108-09 (1980); see also Lawrence Tribe, Ways Not to Think About Plastic Trees: New Foundations for Environmental Law, 83 YALE L.J. 1315 (1974). “At a minimum, we must begin to extricate our nature-regarding impulses from the conceptually oppressive sphere of human want satisfaction . . . .” Id. at 1341.
- See generally JEAN-PAUL SARTRE, BEING AND NOTHINGNESS (1953). “[N]othingness haunts [B]eing.” Id. at 19.
- Tribe, supra note 5, at 1346. “The vision of process I have sought to sketch transcends the intermediate stances of consciousness achieved at discrete points along the spiral’s path.” Id.
- See Kenneth Minogue, The Guru, in THE DON JUAN PAPERS 178, 188 (Richard De Mille ed., 1990). “We live in ‘the island of the tonal’,[sic] and we could not live without it. Nevertheless, it limits us; and we may break out of these limits if we can come to apprehend the nagual . . . by which our world is surrounded, and out of which it has been created.” Id.
- See VINE DELORIA, JR., RED EARTH, WHITE LIES 16-18 (1995) [hereinafter, RED EARTH, WHITE LIES].
- See Tribe, supra note 5, at 1332; see also Douglas O. Linder, A New Direction For Preservation Law: Creating an Environment Worth Experiencing, 20 ENVTL. L. 49, 70–72 (1990).
- WILLIAM OPHULS, ECOLOGY AND THE POLITICS OF SCARCITY 184-85 (1977).
- See Lynn White, Jr., The Historical Roots of Our Ecologic Crisis, 155 SCIENCE 1203, 1205–06 (1967).
We are superior to nature, contemptuous of it, willing to use it for our slightest whim. The newly elected Governor of California, like myself a churchman but less troubled than I, spoke for the Christian tradition when he said (as is alleged), “when you’ve seen one redwood tree, you’ve seen them all." To a Christian a tree can be no more than a physical fact. The whole concept of the sacred grove is alien to Christianity and to the ethos of the West. For nearly 2 millennia Christian missionaries have been chopping down sacred groves, which are idolatrous because they assume spirit in nature.Id. at 1206.
- See JOHN FEA, WAS AMERICA FOUNDED AS A CHRISTIAN NATION? 131–33 (2011).
- See John Ragsdale, To Return from Where We Started: A Revisioning of Property, Land Use, Economy and Regulation in America, 45 URB. LAW. 631, 650–59 (2013); U.S. CONST. amend. IV; U.S. CONST. art. 1, § 10, cl. 1.
- See PEGGY V. BECK, ANNA LEE WALTERS & NIA FRANCISCO, THE SACRED: WAYS OF KNOWLEDGE, SOURCES OF LIFE 3–32 (1977) [hereinafter THE SACRED].
- Id. at 102.
- See SHEPARD KRECH III, THE ECOLOGICAL INDIAN: MYTH AND HISTORY 27 (1999).
- JOHN COLLIER, THE INDIANS OF THE AMERICAS 15–28 (1947). “What, in our human world, is this power to live? It is the ancient, lost reverence and passion for human personality, joined with the ancient, lost reverence and passion for the earth and its web of life.” Id. at 15.
- David H. Getches, A Philosophy of Permanence: The Indian Legacy for the West, 29 J.W. 54, 54–68 (July 1990).
Indians survived on the American continents for thousands of years based on a pervasive set of cultural values integrating human life with other forms of life. Today these same values guide tribes in the United States as they move into an era of unprecedented sophistication in managing reservation environments. Most important for the non-Indian West, Indian values arc crucial for the future of a region where resource issues are intertwined with economic and social survival.Id. at 54.
- JOHN G. NEIHARDT, BLACK ELK SPEAKS 20–47 (1959).
Then I was standing on the highest mountain of them all, and round about beneath me was the whole hoop of the world. And while I stood there I saw more than I can tell and I understood more than I saw; for I was seeing in a sacred manner the shapes of all things in the spirit, and the shape of all shapes as they must live together like one being. And I saw the sacred hoop of my people was one of the many hoops that made one circle, wide as daylight and as starlight, and in the center grew one mighty flowering tree to shelter all the children of one mother and one father. And I saw that it was holy.Id. at 43.
- VINE DELORIA, JR., GOD IS RED: A NATIVE VIEW OF RELIGION 66 (2003).
- These are the pathways along which the tribes traveled, usually under duress, from their ancestral homelands to distant places of relocation. The most well known trail—but not the only one—was The Cherokee Trial. See generally GRANT FOREMAN, INDIAN REMOVAL (1972); Debbi Snook, Ohio’s Trail of Tears, THE PLAIN DEALER (July 6-12, 2003).
- VINE DELORIA, JR., SPIRIT AND REASON 323–28 (1999) [hereinafter SPIRIT AND REASON].
- See WALTER R. ECHO-HAWK, IN THE COURTS OF THE CONQUEROR (2010) [hereinafter CONQUEROR].
- See infra text accompanying notes 602–617.
- See Patty Gerstenblith, Protection of Cultural Heritage Found on Private Land: The Paradigm of the Miami Circle and the Regulatory Takings Doctrine after Lucas, 13 ST. THOMAS L. REV. 65, 78–104 (2000).
- See CONQUEROR, supra note 24, at 325–56 (detailing how courts in the United States find little basis to protect remaining sacred spaces).
- See generally OFFICE OF ARCHEOLOGY AND HISTORIC PRES., COLO. HISTORICAL SOC’Y, STRATEGIES FOR PROTECTING ARCHEOLOGICAL SITES ON PRIVATE LAND available at http://www.historycolorado.org/sites/default/files/files/OAHP/crforms_edumat/pdfs/1617.pdf (last visited Dec. 26, 2015) (providing strategies to help preserve sites that are on private land).
- FRANCIS JENNINGS, THE AMBIGUOUS IROQUOIS EMPIRE 101–02, 352–53 (1984).
- Elisabeth Tooker, Wyandot, in 15 HANDBOOK OF NORTH AMERICAN INDIANS, 398–99 (William C. Sturtevant ed., 1978).
- JENNINGS, supra note 29, at 352–53.
- Tooker, supra note 30, at 399.
- Douglas Edward Leach, Colonial Indian Wars, in 4 HANDBOOK OF NORTH AMERICAN INDIANS, 137–39 (William C. Sturtevant ed., 1988).
- Id. at 141–42.
- Leach, supra note 33, at 141–42.
- Wilbur R. Jacobs, British Indians Policies to 1783, in 4 HANDBOOK OF NORTH AMERICAN INDIANS, 10–12 (William C. Sturtevant ed., 1988).
- See Dorothy V. Jones, British Colonial Indian Treaties, in 4 HANDBOOK OF NORTH AMERICAN INDIANS 189–90 (William C. Sturtevant, ed., 1988).
- Robert N. Clinton, The Proclamation of 1763: Colonial Prelude to Two Centuries of Federal-State Conflict Over the Management of Indian Affairs, 69 B.U. L. REV. 329, 369–80 (1989).
- Id. at 370.
- See ROBERT A.WILLIAMS, THE AMERICAN INDIAN INWESTERN LEGAL THOUGHT 13–58 (1990).
- 21 U.S. 543 (1823).
- Id. at 573.
- Id. at 574.
- Id. at 587.
- See id. at 604–05.
- DAVID H. GETCHES, CHARLES F. WILKINSON, ROBERT A. WILLIAMS, JR. & MATTHEW L.M. FLETCHER, FEDERAL INDIAN LAW 60–61 (6th ed. 2011) [hereinafter FEDERAL INDIAN LAW].
- Id. at 62.
- Id. at 62–63; see Oneida Indian Nation of New York v. New York, 860 F.2d 1145, 1154 (2nd Cir. 1988); U.S. ARTICLES OF CONFEDERATION, art. IX, para. 4 (1777).
- STUART BANNER, HOW THE INDIANS LOST THEIR LAND 124–59 (2005); BILL GILBERT, GOD GAVE US THIS COUNTRY 114–17 (1989).
- COHEN’S HANDBOOK OF FEDERAL INDIAN LAW 22 (2012) [hereinafter COHEN’S); see U.S. CONST. art. I, § 8.
- COHEN’S, supra note 50, at 36; see Act of July 22, 1790, ch. XXXIII, 1 Stat. 137; 25 U.S.C. § 177 (2015).
- See John K. Mahon, Indian-United States Military Situation, 1775-1848, in 4 HANDBOOK OF NORTH AMERICAN INDIANS 144–48 (William C. Sturtevant, ed., 1988).
- ANGIE DEBO, A HISTORY OF THE INDIANS OF THE UNITED STATES 74–77 (1970).
- Treaty with the Wyandot, etc., 7 Stat. 49 (1795).
- See Jan English, The Wyandot Nation of Kansas, in THE CONSOLIDATED ETHNIC HISTORY OF WYANDOTTE COUNTY 517, 526 (2000) [hereinafter Jan English].
- See Mahon, supra note 52, at 152.
- Jan English, supra note 55, at 528; see also Tooker, supra note 30, at 402.
- Jan English, supra note 55, at 526–527.
- Tooker, supra note 30, at 402.
- Kimberly Dayton, “Trespassers Beware!”: Lyda Burton Conley and the Battle for Huron Place Cemetery, 8 YALE J.L. & FEMINISM 1, 5 (1996).
- See Duane King, Introduction, in THE CHEROKEE INDIAN NATION ix, xv–xvi (Duane King ed., 1979).
- Act of May 28, 1830, ch. CXLVIII, 4 Stat. 411.
- FRANCIS PAUL PRUCHA, THE GREAT FATHER, 195–99 (1984).
- Id. at 183.
- PRUCHA, supra note 66, at 183–84; see also JON MEACHAM, THOMAS JEFFERSON: THE ART OF POWER 389–92 (2012).
- COHEN’S, supra note 50, at 44.
- GRANT FOREMAN, THE LAST TREK OF THE INDIANS 92–93 (1946) [hereinafter LAST TREK].
- Treaty with the Shawnee, Dec. 18, 1839, in VINE DELORIA, JR. & RAYMOND J. DEMALLIE, DOCUMENTS OF AMERICAN INDIAN DIPLOMACY 781 (1999).
- LARRY HANCKS, THE EMIGRANT TRIBES: WYANDOT, DELAWARE AND SHAWNEE 146 (1998).
- Dayton, supra note 61, at 5.
- Treaty with the Wyandot, 1842, 11 Stat. 581 (March 17, 1842).
- Id. art. 1.
- Id. art. 2.
- WILLIAM ELSEY CONNELLEY, A STANDARD HISTORY OF KANSAS AND KANSANS 257 (1918).
- PATRICIA NELSON LIMERICK, THE LEGACY OF CONQUEST 194 (1987).
- Lindsay Glauner, The Need for Accountability and Reparation: 1830-1976 the United States Government’s Role in the Promotion, Implementation, and Execution of the Crime of Genocide Against Native Americans, 51 DEPAUL L. REV. 911, 912–13, 931–34 (2002).
- See LAST TREK, supra note 71, at 93–96.
- Id. at 97.
- See id. at 97–98; Jan English, supra note 55, at 530–31.
- See JOHN P. BOWES, EXILES AND PIONEERS: EASTERN INDIANS IN THE TRANS-MISSISSIPPI WEST 95 (2007).
- GRANT W. HARRINGTON, HISTORIC SPOTS OR MILE-STONES IN THE PROGRESS OF WYANDOTTE COUNTY, KANSAS 113–14 (1935). “Death began its work early among the tribe. While still in camp on the east bank of the Kansas river an epidemic carried away 60 members of the tribe . . . .” Id.
- HANCKS, supra note 74, at 155.
- See CONNELLEY, supra note 80, at 257.
- HANCKS, supra note 74, at 155.
- Id. at 158.
- See Agreement with the Delawares and the Wyandot, 1843, 9 Stat. 337, in CHARLES KLAPPER, INDIAN TREATIES 1178-1883 1048 (1972).
- See BOWES, supra note 86, at 179.
- LAST TREK, supra note 71, at 98.
- See id. at 193–95.
- See Dayton, supra note 61, at 8; HANCKS, supra note 74, at 155–93.
- BOWES, supra note 86, at 178–84.
- 25 U.S.C. §§ 461–494a (2015). See generally COHEN’S, supra note 50, at 81–84.
- See ANGIE DEBO, AND STILL THE WATERS RUN 3–6 (1984).
- See H. CRAIG MINER & WILLIAM E. UNRAU, THE END OF INDIAN KANSAS 5–6 (1978); PAUL WALLACE GATES, FIFTY MILLION ACRES 15–16 (1954) [hereinafter FIFTY MILLION ACRES].
- BRIAN W. DIPPIE, THE VANISHING AMERICAN 10–11 (1982).
- See PRUCHA, supra note 66, at 345–50; Act of Mar. 3, 1853, 10 Stat. 238.
- Act of May 30, 1854, 10 Stat. 277; see MINER&UNRAU, supra note 100, at 145 n.14.
- FIFTY MILLION ACRES, supra note 100, at 3.
- GEORGE W. MANYPENNY, OUR INDIAN WARDS 117 (1880).
- Id. at 131.
- Id. at 132–33.
- See DIPPIE, supra note 101, at 76.
- See MANYPENNY, supra note 105, at 111–16.
- PRUCHA, supra note 66, at 348–50.
- See generally PAUL W. GATES, HISTORY OF PUBLIC LAND LAW DEVELOPMENT 87–435 (1968).
- See FREDERICK E. HOXIE, A FINAL PROMISE: THE CAMPAIGN TO ASSIMILATE THE INDIANS, 1880-1920 24–39 (1984).
- COHEN’S, supra note 50, at 61–64. The comprehensive use of allotment, as an attempt to assimilate the Indians and unlock their land holdings, was employed in the General Allotment Act of 1887, 24 Stat. 388, which was formerly codified at 25 USC § 331, and commonly referred to as the Dawes Act. Id. at 72; see also JANET A. MCDONNELL, THE DISPOSSESSION OF THE AMERICAN INDIAN 1887-1934 1–18, 121–25 (1991).
- MANYPENNY, supra note 105, at 116–25.
- See MANYPENNY, supra note 105, at 131. See generally Annie Heloise Abel, Indian Reservations in Kansas and the Extinguishment of Their Title (December 2, 1902) (unpublished M.A. dissertation, University of Kansas), avaiable at https://kuscholarworks.ku.edu/handle/1808/8221. See also MINER & UNRAU, supra note 100, at 139–41.
- Treaty with the Wyandot, 1855, 10 Stat. 1159 (1855) [hereinafter Wyandot Treaty of 1855].
- See 11 Stat. 581, art. II (1842); Abel, supra note 115, at 26; Dayton, supra note 61, at 9–10.
- See Jan English, supra note 55, at 535; HANCKS, supra note 74, at 200; BOWES, supra note 86, at 182–83.
- 9 Stat. 987 (1850).
- Id. art. I.
- Dayton, supra note 61, at 9; see BOWES, supra note 86, at 202–07.
- BOWES, supra note 86, at 206 (“Yet, approximately thirty men authorized the treaty negotiations in 1855. In a clear violation of the laws set forth in their 1851 constitution, a small faction decided the fate of the entire nation.”).
- Wyandot Treaty of 1855, supra note 116.
- Id. art. I.
- Id. art. II.
- Id. art. III.
- See HANCKS, supra note 74, at 230.
- Wyandot Treaty of 1855, supra note 116, arts. XI–XII.
- Id. art III.
- Wyandot Treaty of 1855, supra note 116, art. III.
- Id. art. II.
- See Conley v. Ballinger, 216 U.S. 84, 89–91 (1910).
- BOWES, supra note 86, at 210. (“The driving force behind the treaty was a group of men who believed both that they could better secure their property with the protection offered by citizenship and that they had a real stake in the future of Kansas Territory.”).
- Wyandot Treaty of 1855, supra note 116, art. I.
- HANCKS, supra note 74, at 230; see also BOWES, supra note 86, at 217.
- Dayton, supra note 61, at 10.
- Dayton, supra note 61, at 10; see also infra Part IV.
- See UNITED GOVERNMENT OF WYANDOTTE COUNTY, HURON INDIAN CEMETERY (WYANDOT NATIONAL BURYING GROUND 5, http://www3.wycokck.org/WorkArea/DownloadAsset.aspx?id=8290 [hereinafter HURON INDIAN CEMETERY].
- Id.; see Treaty with the Seneca, Mixed Seneca and Shawnee, Qupaw, etc. 1867, art. XIII, 15 Stat. 513 (1867) [hereinafter Treaty with the Seneca]; BOWES, supra note 86, at 217.
- See COHEN’S, supra note 50, at 152.
- Dayton, supra note 61, at 12. The fact that noncitizen Wyandots from Kansas were part of the tribalists arguably recognized by the Treaty of 1862, see infra note 382, has induced some to assert that the present day Wyandot Nation of Kansas need not continue its petition for recognition before the Bureau of Indian Affairs, see infra notes 413–417 and accompanying text, because they are still recognized and, indeed, have a judicial claim against the United States for mismanagement of trust assets. See Andrew Westney, Kansas Tribe Says DOI Mismanaged Trust Lands in KC, LAW 360 (June 2, 2015), http://www.law360.com/articles/662714, which states:
The Wyandot Nation of Kansas hit the federal government with a complaint Monday in the U.S. Court of Federal Claims, alleging the U.S. Department of the Interior failed to require Kansas City, Kansas, to pay for easements on tribal trust land in a cemetery and mismanaged the nation’s trust lands and funds.
The government failed to fulfill its trust duties for the sale of historical tribal trust lands under an 1867 treaty and failed to charge the city of Kansas City for its use of two streets that run through the edges of the nation’s trust land in the Huron Indian Cemetery.
The breach of trust claims include the government’s “failure to collect, deposit, account for and invest plaintiff’s trust funds derived from its treaty lands” and its failure to protect the nation’s ownership interest in the lands and funds, according to the complaint.
While the nation isn’t included in the BIA’s list of federally recognized tribes, it claims it is federally recognized under the 1867 treaty, according to the complaint.
The predecessor to the current Wyandot Nation acquired the 2 acres in the cemetery among other trust lands it received from the Delaware Nation under an 1843 treaty, according to the complaint.
The Bureau of Indian Affairs has had complete control over the cemetery lands since 1855, including executing a 1918 contract with the city for the care and preservation of the grounds, according to the complaint.
But the DOI grossly mismanaged the lands, in part by failing to require that Kansas City obtain and pay for easements, as required by federal law, for portions of Minnesota Avenue and Seventh Street in the city that pass through corners of the nation’s cemetery trust land.
The nation asserts four claims for relief, including for funds owed to the nation by the government for the cemetery lands and funds owed for the sale of trust lands under the 1867 treaty and the 1994 American Indian Trust Fund Management Reform Act, as well as mismanagement by the government of both those categories of funds.
The nation alleges the government breached its constitutional, treaty, statutory and fiduciary duties. The amount of monetary damages the nation is owed is uncertain because of the government’s failure to account for the nation’s trust funds, according to the complaint.
See also Wyandot Nation of Kansas v. United States, 115 Fed. Cl. 595, 598 (2014) (barring Tribe’s claims under statutes precluding courts jurisdiction because plaintiff had suit with respect to same claim pending in Federal District Court).
The Tribe may prove to have a further problem with their claim for damages to the property of a recognized fiduciary, caused by mismanagement, because of a recent holding that federal recognition can be lost by abandonment or gaps in the pattern of services or identifications over a period of time. See Mowekma Ohlone Tribe v. Salazar, 708 F.3d 209 (D.C. Cir. 2013). “A once-recognized tribe can fade away,” id. at 219, and the entity, in order to regain recognized status, must proceed, not through the courts, but through the administrative petition process in 25 C.F.R. § 83.8. See id. at 218–20.
- Dayton, supra note 61, at 12.
- RICHARD B. CUNNINGHAM, ARCHAEOLOGY, RELICS, AND THE LAW 539 (2d ed. 2005) [hereinafter CUNNINGHAM].
- Jack Trope & Walter R. Echo-Hawk, The Native American Graves Protection and Repatriation Act: Background and Legislative History, 24 ARIZ. ST. L.J. 35, 38 (1925) [hereinafter Trope].
- See H. MARCUS PRICE III, DISPUTING THE DEAD 20–24 (1991) [hereinafter PRICE].
- CUNNINGHAM, supra note 146, at 539–41.
- Trope, supra note 147, at 39–40.
- 25 U.S.C. §§ 3001–3013 (2015); see Trope, supra note 147, at 58–76; CUNNINGHAM, supra note 146, at 692–713.
- 25 U.S.C. § 3002 (a)(1)–(2).
- 25 U.S.C. § 3005 (a)(1).
- Pueblo of San Ildefonso v. Ridlon 103 F.3d 936, 938 (10th Cir. 1996); Thorpe v. Borough of Jim Thorpe, 770 F.3d. 255, 262 (3d Cir. 2014).
- CUNNINGHAM, supra note 146, at 668; Yankton Sioux Tribe v. U.S. Army Corps of Engineers, 83 F. Supp. 2d 1047, 1057–59 (D.S.D. 2000).
- See, e.g., Bonnichsen v. United States, 367 F.3d 864, 882 (9th Cir. 2004).
- See Trope, supra note 147, at 45–47, 59–60.
- THE SACRED, supra note 15, at 67–80; see also Russell L. Barsh, Grounded Visions: Native American Conceptions of Landscapes and Ceremony, 13 ST. THOMAS L. REV. 127, 129 (2000). (“Among indigenous peoples who choose to continue close physical, social, and emotional relationships with their ancestral landscapes, the land creates a universe of shared meanings. . . . Landscape is the central integrating principle of culture and artistic expression.”).
- Richard Pemberton, Jr., ‘I Saw That It Was Holy’: The Black Hills and the Concept of Sacred Land, 3 LAW & INEQ. 287, 243 (1985).
- See Ake Hultkrantz, The Cult of the Dead Among North American Indians, in EXPERIENCE OF THE SACRED 201, 202 (Sumner B. Twiss & Walter H. Conser, Jr., eds., 1992).
- Id. at 209–10.
- Id. at 210–11, 217–18.
- THE SACRED, supra note 15, at 13.
- Benjamin L. Whorf, Time, Space, and Language, in CULTURE IN CRISIS 160, 160–71 (Laura Thompson ed., 1973).
- See, e.g., JOSEPH EPES BROWN, THE SPIRITUAL LEGACY OF THE AMERICAN INDIAN, 53–55, 115–21.
- RED EARTH, WHITE LIES, supra note 9, at 51–57.
- Snook, supra note 22, at 22.
- She apparently disliked the name “Eliza.” See Dayton, supra note 61, at 15 n.49.
- See Ballinger, 216 U.S. 84 (1910).
- See infra Part IV.B–C.
- Dayton, supra note 61, at 25.
- Stacy L. Leeds, Resistance, Resilience and Reconciliation: Reflections on Native American Women and the Law, 34 T. JEFFERSON L. REV. 303, 316–17 (2012).
- Jan English, supra note 55, at 554.
- See GARRETT HARDIN, THE LIMITS OF ALTRUISM 26–27 (1977).
- See JOHN COLLIER, ON THE GLEAMING WAY 29–30 (1962). “[T]hese incomparable religious expressions are incomparable educational forces too; they form the Indian soul and being, perpetually renew it, induct each generation into the whole of the heritage, sustain the society, discipline as well as nurture its members, and insure their . . . military efficiency.” Id.
- See id.; see also THE SACRED, supra note 15, at 8–9.
- See Hultkrantz, supra note 160, at 218.
- Tribe, supra note 5, at 1326–27.
- See genearlly Erica-Irene A. Daes, The Indispensable Function of the Sacred, 13 ST. THOMAS L. REV. 29, 29–34 (2000).
Tagore feared that technology and consumerism would transform the entire planet into what he described as the “feast . . . of grossness.” This result could be avoided, he argued, only if human beings learned once again to enjoy and love one another, and the rest of creation. Tagore equated the sacred with the joy of discovering the mysterious unity in diversity of the universe. For him, and I believe for the majority of indigenous peoples, the sacred was not terrifying and threatening, but joyful and filled with song. The sacred is the joy of discovering how we are not alone, and have no need for loneliness.Id. at 30–31.
- Black Elk spoke to Joseph Epes Brown about the peace and fulfillment within the sacred:
You have noticed that everything an Indian does is in a circle, and that is because the Power of the World always works in circles, and everything tries to be round. In the old days when we were a strong and happy people, all our power came to us from the sacred hoop of the nation, and so long as the hoop was unbroken, the people flourished. . . . The life of a man is a circle from childhood to childhood, and so it is in everything where power moves. Our teepees were round like the nests of birds, and these were always set in a circle, the nation’s hoop, a nest of many nests, where the Great Spirit meant for us to hatch our children.Snook, supra note 22, at 35.
- Wyandot Treaty of 1855, supra note 116, art. I.
- Treaty with the Seneca, supra note 140, art. XIII.
- HANCKS, supra note 74, at 421.
For a number of years, citizens continued to be adopted back into the Wyandot tribe, and familiar names again began to dominate on the council. By 1881, ten years after reorganization, the tribal roster stood at 292, but by then included a number of individuals who lived somewhere other than the new reserve. Many Citizen Class Wyandots and their descendants never moved to Indian Territory and were never readmitted to the reorganized tribe. As Indian Agent H.W. Jones had feared, this eventually resulted in the splitting of families. A substantial number of Citizen Class Wyandots continued to live in the Kansas City area, but eventually Wyandot descendents [sic] were scattered all across the country.Id.
- Id. see also Jan English, supra note 55, at 551–52.
- See RAYMOND A. MOHL, THE NEW CITY: URBAN AMERICA IN THE INDUSTRIAL AGE 1860-1920 67–72 (1985); Dayton, supra note 61, at 12; Loren J. Taylor, An Overview and Introduction to the Ethnic History of Wyandotte County, in THE CONSOLIDATED ETHNIC HISTORY OF WYANDOTTE COUNTY 72–73 (2000).
- HANCKS, supra note 74, at 421.
- Dayton, supra note 61, at 12.
- BARLOW BURKE, THE LAW OF ZONING AND LAND USE CONTROLS 39 (3d ed. 2013).
- 260 U.S. 393 (1922).
- BURKE, supra note 188, at 39; see, e.g., Mugler v. Kansas, 123 U.S. 623 (1887); Hadacheck v. Sebastian, 239 U.S. 394 (1915). Unparticularized individual impact, which is always the case of nuisance, is used to discount the impact on property and is not a factor in consideration of the general validity of regulation tested by substantive due process. Compare Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1925), with Nectow v. City of Cambridge, 277 U.S. 183 (1928); see STEVEN J. EAGLE, REGULATORY TAKINGS 96–110 (4th ed. 2009).
- Dayton, supra note 61, at 12–13.
- Jan English, supra note 55, at 552.
- See generally John W. Ragsdale, Jr., Possession: An Essay on Values Necessary for the Preservation of Wild Lands and Traditional Tribal Cultures, 40 URB. LAW. 903, 903–18 (2008).
- See CONNELLEY, supra note 80.
- HANCKS, supra note 74, at 421; Dayton, supra note 61, at 13. “Connelly, who is still infamous among local historians for his entrepreneurial skills, must have felt very pleased with himself. He was on the verge, he believed, of accomplishing what the great Senator Plumb could not- the sale of the ‘eyesore’ that was the Huron Place Cemetery.” Id.
- Jan English, supra note 55, at 552.
- HANCKS, supra note 74, at 422.
- Dayton, supra note 61, at 18.
- See Jan English, supra note 55, at 553; Henry Van Brunt, Three Sisters’ Defense of Cemetery Continued for Nearly Forty Years, WYANDOT NATION OF KANSAS, http://www.wyandot.org/sisters.html (last visited Jan. 29, 2016) (article originally published in the Kansas City Times on June 7, 1946).
- Van Brunt, supra note 199.
- Van Brunt, supra note 199.
- Jan English, supra note 55, at 553; see also Robert C. Downs, From Petticoats to Briefs; A History of Women at the University of Missouri—Kansas City School of Law, 72 UMKC L. REV. 1011, 1016 (2004), where he quotes the sisters: “[T]he first man to turn a sod over one of those graves would either turn another for the Conley sisters or have some other person bury him.”
- Jay Lastelic, Curse May Play a Role in Cemetery Combat, WYANDOT NATION OF KANSAS, http://www.wyandot.org/curse.htm (last visited Jan. 29, 2016) (article originally published in the Kansas City Star and Times on May 17, 1959).
Miss Conley said the power of the curse was transmitted to her by a woman of the tribe, known as a witch who is buried in the cemetery. "She asked me," Miss Conley used to tell, "if I would rather have power or money. I said power." . . . “My father’s spirit came to me in a dream and was unhappy and I knew what that meant,” Helena said then, “The dead want this holy place defended and it will be.” . . . Helena Conley was the last survivor of the family. She died September 15, 1958, at the age of 94. Often she wondered about her longevity. “Our body has to return to mother earth and our spirit to God who made it,” she said. “We don’t know how we came here, nor why, nor where we go. I don’t know why I’m left in this Godforsaken place. It’s a cursed world—a separation from God.”Id.
- See, e.g., State v. Bellinger, 278 P.3d, 975 (2012). Prior to 2011, Kansas law, K.S.A. § 21-3213, permitted one in lawful possession of property other than a dwelling to use force as a reasonable person would deem necessary to prevent an unlawful interference with such property. Id.
- Jan English, supra note 55, at 553.
- See generally Downs, supra note 202.
- Id. at 1016.
- Id. at 1016; see also Dayton, supra note 61, at 25.
- Dayton, supra note 65, at 19.
- Dayton, supra note 61, at 19.
- HANCKS, supra note 74, at 422.
- See Dayton, supra note 61, at 23 nn.99–100, citing Filing No. 8548, Conley v. Garfield, 216 U.S. 84 (C.C.D. Kan. 1907), sub nom Conley v. Ballinger, 216 U.S. 84 (1910). “Richard A. Ballinger became Secretary of the Interior during the pendency of the appeal to the Supreme Court and was substituted as party-defendant in the case of Conley v. Garfield on January 31, 1910.” Dayton, supra note 61, at 24 n.102.
- Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 113–114 (1919).
- Id. The Court held that unilateral disposition “would not [have been] an exercise of guardianship, but an act of confiscation.” Id. at 113.
- United States v. Kagama, 118 U.S. 375, 383–84 (1886).
- Id. at 384–85.
- Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
- Id. at 565–66.
- Id. at 568.
- See United States v. Sioux Nation of Indians, 448 U.S. 371, 416 (1980).
- 448 U.S. 371 (1980).
- Id. at 423.
- See Dayton, supra note 61, at 20, quoting Conley v. Garfield, 216 U.S. 84; see also Ballinger, 216 U.S. at 88.
- See Ballinger, 216 U.S. at 89–90.
- See Dayton, supra note 61, at 22.
- See Charrier v. Bell, 496 So. 2d 601, 607 (La. Ct. App. 1986); PRICE, supra note 148, at 23–24.
- 25 U.S.C. §§ 3001–3013 (1990); see supra notes 151–157 and accompanying text.
- 25 U.S.C. § 3002.
- 25 U.S.C. § 3005.
- See infra Part VI.A.
- See generally DONALD L. FIXICO, TERMINATION AND RELOCATION (1986).
- See, e.g., Kimball v. Callahan, 493 F.2d 564, 569 (9th Cir. 1974); United States v. Felter, 752 F.2d 1505, 1509–10 (1985).
- See Ballinger, 216 U.S. at 88–89 “The plaintiff’s parents and sister are buried in this ground, and she alleges that she has seisen and a legal estate and vested rights in and to the same.” Id.
- See Wyandot Treaty of 1855, supra note 116, art. I.
- See Johnson v. M’Intosh, 21 U.S. 543, 574 (1823).
- MICHAEL LIEDER & JAKE PAGE, WILD JUSTICE 266–67 (1997).
- See United States v. Dann, 470 U.S. 39, 50 (1985); United States v. Dann, 873 F.2d. 1189, 1195 (9th Cir. 1989).
- See Dann, 873 F.2d at 1199–1200; Cramer v. United States, 261 U.S. 219, 234–35 (1923).
- See Treaty with the Seneca, supra note 140.
- See supra notes 238–239 and accompanying text.
- See Sequoyah v. Tennessee Valley Authority, 480 F. Supp. 608 (E.D. Tenn. 1979); Badoni v. Higginson, 455 F. Supp. 641 (D. Utah 1977); Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983).
- 374 U.S. 398 (1963); see also Wisconsin v. Yoder, 406 U.S. 205 (1972).
- Sherbert, 374 U.S. at 404–07.
- 795 F.2d 688 (9th Cir. 1986).
- Id. at 693.
- 485 U.S. 439 (1988).
- Id. at 451.
- 494 U.S. 872 (1990).
- Id. at 878.
- 42 U.S.C. §§ 2000bb–bb-4 (1993).
- See 42 U.S.C. § 2000 bb (b)(1).
- City of Boerne v. Flores 117 S. Ct. 2157, 2170 (1997).
- See Guam v. Guerrero, 290 F.3d 1210, 1220 (9th Cir. 2002).
- 485 U.S. 439 (1988).
- See Navajo Nation v. U.S. Forest Service, 535 F.3d 1058, 1069–74 (9th Cir. 2008).
- Comanche Nation v. United States, No. CIV-08-849-D, 2008 WL 4426621 at *3, *17 (W.D. Okla. Sept. 23, 2008).
- 134 S. Ct. 2751 (2014).
- Rather than examine the extent of the burden in terms of the ability to practice or hold religious beliefs, the Court looked at the burden in a cumulative financial sense. Id. at 2779.
- Id. at 2771.
- Comanche Nation, 2008 WL 4426621 at *20.
- Ballinger, 216 U.S. 84 (1910).
- See supra notes 212—241 and accompanying text.
- See supra note 36.
- Ballinger, 216 U.S. at 88–89.
- Id. at 89.
- Id. at 89–90.
- Id. at 90.
- 391 U.S. 404 (1968). The Menominee Court held that the Treaty with the Menominee, 1854, 10 Stat. 1064, vested hunting and fishing rights which are necessarily individualized in practice, and which cannot be abrogated without constitutional consequence. Id. at 413.
- 187 U.S. 553 (1903).
- See Ballinger, 216 U.S. at 90.
- Id. at 91.
- Id. at 90–91.
- Ballinger, 216 U.S. at 90–91.
- See CONQUEROR, supra note 24, at 161–86.
- 448 U.S. 371 (1980).
- See Ballinger, 216 U.S. at 90–91.
- See HANCKS, supra note 74, at 423.
- See Rachel Armstrong, “When Can They Rest?”: The History of the Huron Indian Cemetery, WYANDOT NATION OF KANSAS, http://www.wyandot.org/huroncem.html (last visited Nov. 22, 2015).
- HANCKS, supra note 74, at 423.
- See Dayton, supra note 61, at 28 (citing Act of Feb. 13, 1913, ch. 44, 37 Stat. 668).
- Id. (citing Act of Sept. 8, 1916, ch. 468, 39 Stat. 844).
- Van Brunt, supra note 199.
- Id.; see also Jan English, supra note 55, at 558.
- Jan English, supra note 55, at 563.
- Id. at 558.
- 25 U.S.C. §§ 501–509; COHEN’S, supra note 50, at 82.
- See CONSTITUTION OF THE WYANDOTTE TRIBE OF OKLAHOMA, art. V, § 1, http://www.wyandotte-nation.org/government/legal-documents/constitution/ (last visited Nov. 22, 2015).
- Jan English, supra note 55, at 561.
- See Act of August 1, 1956, 70 Stat. 893; 25 U.S.C. § 791.
- See COHEN’S, supra note 50, at 91.
- See generally FIXICO, supra note 232.
- 295. Senator Arthur Watkins stated:
In view of the historic policy of Congress favoring freedom for the Indians, we may well expect future Congresses to continue to endorse the principle that ‘as rapidly as possible’ we should end the status of Indians as wards of the Government and grant them all the rights and prerogatives pertaining to American citizenship.Gary Orfield, A Study of the Termination Policy, in FEDERAL INDIAN LAW, supra note 46, at 201.
- Charles F. Wilkinson & Eric R. Biggs, The Evolution of the Termination Policy, 5 AM. INDIAN L. REV. 139, 151–54 (1977), in FEDERAL INDIAN LAW, supra note 46, at 204–07.
- See Act of August 1, 1956, supra note 292.
- Id.; see City of Kan. City v. United States, 192 F. Supp. 179, 181 (D. Kan. 1960).
- See COHEN’S, supra note 50, at 91.
- See Wilkinson & Biggs, supra note 296, at 207.
- See Indians: Ambush, TIME MAG. (Sept. 17, 1956), http://content.time.com/time/magazine/article/ 0,9171,893532,00.html.
- See City of Kan. City v. United States, 192 F. Supp. 179 (D. Kan. 1960).
- Id. at 181.
- 192 F. Supp. at 181.
- Id. at 182.
- 187 U.S. 553 (1903).
- 295 U.S. 103, 110 (1935).
- 249 U.S. 110, 113 (1919).
- 299 U.S. 476, 497 (1937).
- See Menominee Tribe of Indians, 391 U.S. at 412–13.
- See Kimball, 493 F.2d at 569.
- United States v. Felter, 752 F.2d 1505 (10th Cir. 1985).
- 25 U.S.C. §§ 677–677aa.
- Id. at § 677.
- Felter, 752 F.2d at 1512. The court held that the canons of construction favored the claims of the terminated mixed-blood Ute individuals. Id.
- See id.
- See Thiry v. Carlson, 78 F.3d 1491 (10th Cir. 1996). “Christian beliefs in the sanctity of burial sites are not violated by moving gravesites when necessary, and moving the gravesites would not be inconsistent with tenets of American Indian spirituality . . .” Id. at 1494.
- See Jan English, supra note 55, at 570.
- See ALFRED RUNTE, NATIONAL PARK 4–9 (2010) (describing the growing preservation movement inspired by the potential loss of scenery around landmarks such as Niagara Falls).
- See generally CHARLES REICH, THE GREENING OF AMERICA 1–19 (1970).
- See Norman Tyler, Ted Ligibel & Ilene Tyler, Historic Preservation: An Introduction to Its History, Principles and Practice, in SARA C. BRONIN & J. PETER BYRNE, HISTORIC PRESERVATION LAW 1, 4–5 (2012).
- See Julia H. Miller, National Trust for Historic Preservation, A Layperson’s Guide to Historic Preservation Law, in BRONIN & BYRNE, supra note 323, at 268–69.
- See SARA C. BRONIN & RYAN ROWBERRY, HISTORIC PRESERVATION LAW 12–16 (2014).
- See John W. Ragsdale, Jr., Possession, 40 URB. LAW. 903, 913–18 (2008).
- David Listokin, Barbara Listokin & Michael Lahr, The Contributions of Historic Preservation to Housing and Economic Development, in BRONIN & BYRNE, supra note 323, at 23–28.
- 16 U.S.C. §§ 470–470x-6 (2014) (now codified at 54 U.S.C. §§ 100101–305306 (2015)).
- See BRONIN & BYRNE, supra note 323, at 57–73.
- 16 U.S.C. §§ 461–467 (2014) (now codified at 54 U.S.C. §§ 320101–320106 (2015)).
- See BRONIN & BYRNE, supra note 323, at 57; Historic Green Springs, Inc. v. Bergland, 497 F. Supp. 839, 846–47 (E.D. Va. 1980).
- BRONIN & BYRNE, supra note 323, at 58–64.
- See 36 C.F.R. §§ 60.3–60.4.
- See 16 U.S.C. §§ 470a(a)(1)(A) and 470a(b)(3)(B) (2014) (now codified at 54 U.S.C. §§ 302101–302303 (2015)).
- BRONIN & BYRNE, supra note 323, at 58.
- 36 C.F.R. § 60.4(d).
- See CEMETERIES ON THE NATIONAL REGISTER OF HISTORIC PLACES IN KANSAS, http://www.snipview.com/q/Cemeteries%20on%20the %20 National%20 Register%20of%20 (last visited Nov. 23, 2015).
- See Moody Hill Farms v. U.S. Dept. of the Interior, 205 F.3d 554, 562–563 (2d. Cir. 1999).
- 16 U.S.C. §470f (2014) (now codified at 54 U.S.C. § 306108 (2015)).
- 36 C.F.R. § 800.1(a).
- 36 C.F.R. § 800.2(a)–(d). See generally BRONIN & BYRNE, supra note 323, at 144–47.
- BRONIN & BYRNE, supra note 323, at 164–65; 36 C.F.R. § 800.16.
- City of Alexandria v. Slater, 198 F.3d. 862, 871 (D.C. Cir. 1999).
- 16 U.S.C. § 470s (2014) (now codified at 54 U.S.C. § 304108 (2015)).
- See Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800, 808 (9th Cir. 1999); 36 C.F.R. § 800a(c)(1)–(3).
- Pennsylvania v. Morton, 381 F. Supp. 293, 299 (D.D.C. 1974).
- See, e.g., UNIFIED GOVERNMENT, WYANDOTTE COUNTY, KAN., CODE OF ORDINANCES § 27-147(a)(1)-(a)(10).
- UNIFIED GOVERNMENT, WYANDOTTE COUNTY, KAN., CODE OF ORDINANCES, Ord. No. 49004, § 2 (Sept. 1, 1970).
- See Landmark Designations, KAN. CITY, KAN. DEPT. OF URB. PLAN. & LAND USE, http://www.wycokck.org/historicpreservation/ (last visited Jan. 30, 2016).
- UNIFIED GOVERNMENT, WYANDOTTE COUNTY, KAN., CODE OF ORDINANCES § 27-83(a).
- KAN. STAT. ANN. § 75-2724(a) (2015).
- See Mount St. Scholastica, Inc. v. Atchison, 482 F. Supp. 2d 1281, 1291–99 (D. Kan. 2007).
- See S.R. 1867, 2011 Leg., Reg. Sess. (Kan. 2011) (titled “A Resolution Congratulating Chief Bearskin on his Service to all Citizens in the State of Kansas and the United States of America”), available at https://legiscan.com/KS/text/SR1867/id/552832.
- See LAST TREK, supra note 71, at 197.
- Id. at 198–99; see also Rick Stansfield, Wyandotte, THE ENCYCLOPEDIA OF OKLAHOMA HISTORY AND CULTURE, www.okhistory.org/publications/enc/entry.php?entry=WY001.
- Stansfield, supra note 356; see Act of June 26, 1936, 49 Stat. 1967, codified at 25 U.S.C. § 501–509; COHEN’S, supra note 50 at 288–310.
- T.R. Witcher, Bearskin’s Gamble, THE PITCH (Sept. 12, 2002), http://www.pitch.com/kansascity/bearskins-gamble/Content?oid=2166674.
- Leaford Bearskin, WYANDOTTE NATION, http://www.wyandotte-nation.org/community/tribal-profiles/bearskin/ (last visited Jan. 30, 2016).
- Wyandotte Chief Bearskin Dies, WYANDOTTE NATION OF OKLAHOMA, http://www.diannshaddox.com/uploads/1/3/9/6/13963482/wyandotte_nation_of_oklahoma_chief_bearskin_pdf.pdf (last visited Jan. 30, 2016).
- Witcher, supra note 358.
- See id.
- “Gaming is for many isolated, neglected and destitute Native Americans the modern version of the myth of survival, called by some the White Buffalo.” Tess Johnson, Fencing the Buffalo: Off-Reservation Gaming and Possible Amendments to Section 20 of the Indian Gaming Regulatory Act, 5 UNLV GAMING L.J. 101, 101 (2014). (quoting Pierre C. Van Rysselberghe, People of the White Buffalo: Gambling is the Modern Version of the Myth of Survival for Many Native Americans, OR. ST. B. BULL. 41 (Dec. 1995)).
Tribal gaming has frequently been compared to the buffalo as it has successfully fed, clothed, and sheltered numerous tribal communities, and generally improved the quality of life on many reservations. Tribal gaming has changed the lives of countless Native Americans by giving tribes a real opportunity to be economically independent.Id.
- JANET A. MCDONALD, THE DISPOSSESSION OF THE AMERICAN INDIAN 1887-1934 120–25 (1991).
- See id. at 26–42.
- Robert J. Miller, American Indian Entrepreneurs: Unique Challenges, Unlimited Potential, 40 ARIZ. ST. L.J. 1297, 1317–18 (2008).
- See KIM ISAAC EISLER, REVENGE OF THE PEQUOTS 89–107 (2001).
- W. DALE MASON, INDIAN GAMING 3–8 (2000).
- EISLER, supra note 370, at 101–03.
- California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).
- Seminole Tribe of Fl. v. Butterworth, 658 F.2d 310, 313 (5th Cir. 1981).
- 480 U.S. 202 (1987).
- See id. at 207–12.
- Cabazon Band of Mission Indians, 480 U.S. at 202.
- 25 U.S.C. §§ 2701–2721.
- See MASON, supra note 371 at 45; see also G. WILLIAM RICE, TRIBAL GOVERNMENTAL GAMING LAW 71 (2006) [hereinafter RICE].
- 25 U.S.C. § 2703(4).
- 25 U.S.C. § 2703(5).
- The tribe was originally recognized in 1937, was terminated in 1956, and was recognized again in 1978. See supra, notes 288–297 and accompanying text and 25 U.S.C. § 861 (1978) which repealed the termination provisions of 25 U.S.C. §§ 791–807 and restored all the rights and privileges of protecting supervision and recognition to the Wyandottes. It is possible to argue that formal jurisdictional recognition, on a government-to-government, basis was confirmed conceptionally in The Kansas Indians, 72 U.S. 737 (1866), and could have been intended by the Treaty with the Seneca of 1867, supra note 140, art. XIII. However, research suggests that the concept of jurisdictional recognition, as opposed to mere cognitive recognition, of a tribe as a tribe, did not become a centralized concept until the Indian Reorganization Act of 1934. See William W. Quinn, Jr., Federal Acknowledgement of American Indian Tribes: The Historical Development of a Legal Concept, 34 AM. J. OF LEGAL HIST. 331, 333–32 (1990).
- Quinn, supra note 382.
- See 25 U.S.C. §§ 2703(4), 2703(8); 25 U.S.C. § 2719(a) (2015).
- The casino is located at 100 Jackpot place in Wyandotte, Oklahoma, several miles west of the Indigo Sky Casino, which is owned by the Eastern Shawnee Tribe and sits on the Oklahoma border, just west of Seneca, Missouri.
- Oklahoma Casinos, 500 NATIONS, http://500nations.com/Oklahoma_Casinos.asp (last visited Jan. 30, 2016). Oklahoma has 124 Indian Casinos owned by thirty tribes with the majority located near population centeres in central Oklahoma. Id.
- The Golden Eagle Casino (Kickapoo Tribe), The Sac and Fox Casino, and The Prairie Band (Potawatomi) Casino are all located near Horton, Kansas, north of Topeka and west of St. Joseph, Missouri.
- Witcher, supra note 358.
- 25 U.S.C. § 465; see infra, notes 519–570.
- HANCKS, supra note 74, at 425.
- See Janith English, A Brief Chronological Overview of the Wyandot Nation of Kansas and the Huron Indian Cemetery, WYANDOT NATION OF KANSAS, http://www.wyandot.org/cemetery.html (last visited Feb. 7, 2016).
- 25 U.S.C. § 3002.
- 25 U.S.C. § 3005.
- See Fallon Paiute-Shoshone Tribe v. U.S. Bureau of Land Mgmt., 455 F. Supp. 2d 1207, 1214–15 (D. Nev. 2006).
- See supra text accompanying note 393.
- See, e.g., 25 U.S.C. § 470cc(9)(2). The relevant section states:
In the case of any permits for the excavation or removal of any archaeological resource located on Indian lands, the permit may be granted only after obtaining the consent of the Indian or Indian tribe owning or having jurisdiction over such lands. The permit shall include such terms and conditions as may be requested by such Indian or Indian tribe.Id. Since Huron Cemetery is owned by the Oklahoma Wyandottes, and not the Kansas Wyandots, and since the Oklahoma Wyandottes have jurisdiction, under Conley v. Ballinger, the Kansas Wyandot descendants would have a proprietary interest in remains but no jurisdiction to resist disinterment. See supra notes 262–276 and accompanying text.
- See Abenaki Nation of Mississquoi v. Hughes, 805 F. Supp. 234, 251 (D. Vt. 1992); see also Ballinger, 216 U.S. at 89–91.
- See Abenaki, 805 F. Supp. at 251.
- 25 U.S.C. § 470cc(9)(2).
- See supra text accompanying notes 389–390.
- See Penn Cent. Trans. Co. v. City of New York, 438 U.S. 104 (1978).
- See id. at 115–19.
- Id. at 115–16.
- See id. at 117–19.
- Id. The inherent and resolutely indeterminate line between the legitimate use of the police power and the nether reaches requiring just compensation for validity was described by Justice Holmes as the point at which power has gone “too far.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).
- Penn Cent., 438 U.S. at 118–19, 137–38.
- See generally John J. Costonis, Development Rights Transfer, An Exploratory Essay, 83 YALE L.J. 75 (1973); John J. Costonis, The Chicago Plan: Incentive Zoning and the Preservation of Urban Landmarks, 85 HARV. L. REV. 574 (1972).
- See Lucas v. S.C. Coastal Comm’n, 505 U.S. 1003 (1992). “[W]hen the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is to leave his property economically idle, he has suffered a taking.” Id. at 1019.
- Witcher, supra note 358, at 9. “‘We never intended to build a casino over the cemetery,’ Bearskin now says about what would have been not only a logistical and an engineering nightmare but a political one.” Id.
- Jan English, supra note 55, at 572.
- See Mike Belt, Wyandots Seek Tribal Status, WYANDOT NATION OF KANSAS, http://www.wyandot.org/recogn.htm (last visited Feb. 7, 2016) (article originally published in the Kansas City Kansan on Apr. 16, 1995).
- See Public Law 103-454, 108 Stat. 4791 § 303(b) (Nov. 2, 1994).
- See 25 C.F.R. Part 83 (2015).
- 25 C.F.R. § 83.11.
- See Belt, supra note 413. The Kansas Wyandots incorporated under state law as a non-profit corporation in 1959. Id.
- See Charles Wilkinson & Eric Biggs, The Evolution of the Termination Policy, 5 AM. IND. L. REV. 139, 151–54 (1977).
- Witcher, supra note 358, at 8.
- See Belt, supra note 413.
- See Jan K. English, Tears of the Grandmothers, 2 (unpublished manuscript on file with the author).
- See Brownback, Sam Dale, BIOGRAPHICAL DIRECTORY OF THE UNITED STATES CONGRESS, http://bioguide.congress.gov/scripts/biodisplay.pl?index=B000953 (last visited Feb. 7, 2016).
- See Jeff Sharlet, Gods Senator, KANSAS PRAIRIE, http://www.kansasprairie.net/kansasprairieblog/?p=11445 (last visited Feb. 7, 2016) (article originally published in the Rolling Stone on Jan. 25, 2006).
- Department of the Interior and Related Agencies Appropriations, Pub. L. No. 105-83, 111 Stat. 1543 (1997).
- Libby Quaid, Brownback Legislation Would Bar Tribe From Building Bingo Hall Atop Indian Cemetery in Kansas City, Kan., TOPEKA CAP. J., (Sept. 19, 1997) http://cjonline.com/stories/091997/gambling.html.
- Wyandot Treaty of 1855, supra note 116, art. II; Lucas, 505 U.S. at 1027 (holding in part, “Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with.”). Id.
- See, e.g., Worcester v. State of Ga., 31 U.S. 515, 553 (1932). In describing the Treaty of Hopewell language of land “allotted” as “hunting grounds,” the Court said the language was descriptive rather than restrictive.
- See Charles Wilkinson & John Volkman, “Judicial Review of Treaty Abrogation: As Long as Water Flows or Grass Grows Upon the Earth”—How Long a Time is That, 63 CAL. L. REV. 601, 617–19 (1975).
- See United States v. Shoshone Tribe of Indians of Wind River Reservation in Wyo. (Shoshone Wind River), 304 U.S. 111, 117–18 (1938).
- See id.
- See supra text accompanying notes 425–426.
- See Shoshone Wind River, 304 U.S. at 112–16.
- See supra text accompanying note 411.
- See Libby Quaid, Bill Would Pave Way For a Casino, TOPEKA CAP. J. (May 20, 1998), http://cjonline.com/stories/051598/bus_dogtrackbuy.shtmo#.VkU8M7xlmt8.
- See Scottish Rite Temple, National Park Service Nomination Form for National Register of Historic Places (Sept. 11, 1985), http://focus.nps.gov/pdfhost/docs/NRHP/Text/85002127.pdf. The nomination form was prepared by Richard Cawthon of the Kansas State Historical Society, on June 24, 1985, and was based on a draft submitted by Larry C. Hancks. Id.
- See Larry Hancks, Unified Government of Wyandotte County, Scottish Rite Temple, available at http://www3.wycokck.org/WorkArea/DownloadAsset.aspx?id=8300 (last visited Feb. 7, 2016) [hereinafter Scottish Rite Temple].
- See supra Part V.
- See Sac & Fox Nation of Mo. v. Norton, 240 F.3d 1250, 1255–56 (10th Cir. 2001).
- Pub. L. 98-602, 98 Stat. 3149 (1984), cited in Sac & Fox, 240 F.3d at 1255.
- Admin Record at 77, 98 Stat. 3151, quoted in Sac & Fox, 240 F.3d at 1255; see also Andrew Miller, Iowa Tribe of Kansas and Nebraska v. Salazar: Sovereign Immunity as an Ongoing Inquiry, 7 SETON HALL CIRCUIT REV. 409, 409 (2011).
- See Penny Coleman, Memorandum to Phillip Hogen, Chairman, National Indian Gaming Commission 6–7 (July 19, 2004), www.nigc.gov/images/uploads/indianlands/60_wyandotentinshrnrtrct.pdf.
- Coleman, supra note 442, at 7.
- Id.; see also Sac & Fox, 240 F.3d at 1257; Miller, supra note 441, at 409.
- See supra Part IV.C.
- See John Carras, Wyandotte/Wyandot Peace Pact Signed, KANSAS CITY KANSAN, at 1 (July 15, 1998) (Part 1(2)(3) on file with the author. This draft was formally agreed to, substantially as written.) (discussing Draft Settlement Agreement between The Wyandotte Nation of Oklahoma, and the Wyandotte Nation of Kansas, Inc.).
- Carras, supra note 447, at 1.
- See Coleman, supra note 442.
- Carras, supra note 447.
- See 25 U.S.C. §§ 61, 177.
- Carras, supra note 447, at 1.
- The Cobell litigation, which began in 1996 as Cobell v. Babbitt, spanned four different Secretaries of the Interior, 13 years of litigation and over 20 legal opinions. It was finally settled in 2010 by the Claims Resolution Act which provided 3.4 billion dollars for the plaintiffs in the Cobell v. Salazar class action trust case. See Patrick Reis, Obama Administration Strikes $3.4B Deal in Indian Trust Lawsuit, N.Y. TIMES (Dec. 8, 2009), http://www.nytimes.com/gwire/2009/12/08/08greenwire-obama-admin-strikes-34b-deal-in-indian-trust-l-92369.html.
- Stated to the author on several occasions by Janeth English, principal chief of the Wyandot Nation of Kansas. See also Darren Zane English, Another Perspective on the Reconciliation in Midland Ontario, WYANDOT NATION OF KANSAS, http://www.wyandot.org/reconcil.htm (describing the experience of attending the reconciliation).
- Carras, supra note 447, at 1.
- See Wendat Confederacy, ENCYCLOPEDIA BRITANNICA ONLINE, http://www.britannica.com/topic/Wendat-Confederacy (last visited Nov. 12, 2015).
- See WYANDOT NATION OF KANSAS, www.wyandot.org (last visited Nov. 12, 2015).
- See Wendat Confederacy, WYANDOT NATION OF KANSAS, http://www.wyandot.org/confederacy.html (last visited Nov. 12, 2015).
- Lee Sultzman, Huron History, TOLATSGA, www.tolatsga.org/hur.html (last revised Oct. 2, 2000). Sultzman also stated that “Americans usually do not realize that Huron and Wyandot are the same people.” Id. This may account for the oftvoiced confusion over the name of the “Huron Indian Cemetery.”
- See Carras, supra note 447.
- See ELIADE, supra note 3, at 23.
- See supra text accompanying notes 443–444.
- See Sac & Fox Nation of Mo. v. Babbitt, 92 F. Supp. 2d 1124, 1125 (D. Kansas 2000).
- Babbitt, 92 F. Supp. 2d at 1127; see Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991).
- Sac & Fox, 240 F.3d at 1258.
- 25 U.S.C. § 465.
- 25 C.F.R. § 151.3(a).
- Pub. L. 98-602, 98 Stat. 3149; see supra Part VI.B.
- See Sac & Fox, 240 F.3d at 1261–62.
- 16 U.S.C. §§ 470-470x-6 (2014) (now codified at 54 U.S.C. §§ 100101–305306 (2015)).
- 42 U.S.C. §§ 4321–4370h.
- Sac & Fox, 240 F.3d at 1262.
- Id. at 1263–64 (emphasis added).
- Letter from Kevin K. Washburn, Assistant Secretary—Indian Affairs, to Billy Friend, Chief, Wyandotte Nation (July 3, 2014), available at http://www.indianaffairs.gov/cs/groups/webteam/documents/text/idc1-027181.pdf.
The Bureau of Indian Affairs previously had published an official notice in the Federal Register confirming that The Secretary of the Interior has determined that the funds used to purchase the Shriner’s Property in Kansas City, Kansas were from the section 602 settlement of specific land claims. The Secretary affirms that trust status of the subject lands. Determination of Trust Land Acquisition, 67 Fed. Reg. 10926-01 (Mar. 11, 2002).
- Governor of Kan. v. Norton, 430 F. Supp. 2d. 1204, 1208 (D. Kan. 2006).
- Norton, 430 F. Supp. 2d at 1222-26.
- Id. at 1218–21 (citing Chevron U.S.A. v. Natural Res. Defense Council, 467 U.S. 837, 842–43 (1984)).
- See generally Governor of Kan. v. Kempthorne, 516 F.3d 833 (10th Cir. 2008).
- Id. at 840–41.
- Id. at 841.
- Id. at 844.
- 28 U.S.C. § 4209a (1986); see Miller, supra note 441, at 410.
- Kempthorne, 516 F.3d at 845–46.
- Id. at 846.
- Lloyd Divine, 7th Street Casino Opens, WYANDOTTE NATION (Feb. 10, 2008), http://www.wyandotte-nation.org/tribal-news/7th-street-casino/.
- See supra Part VI.B.
- See Sac & Fox Nation of Mo. v. Kempthorne, No. 96-4129-RDR, 2008 WL 4186890, at *1–2 (D. Kan. Sept. 10, 2008).
- Id. at *10.
- Iowa Tribe of Kan. and Neb. v. Salazar, 607 F.3d 1225, 1230 (10th Cir. 2010). Only the Iowa Tribe had appealed to the Tenth Circuit. Id. at 1229.
- Id. at 1230–31.
- 379 F.3d 956, 961–62 (10th Cir. 2004); see Iowa Tribe, 607 F.3d at 1230–31.
- Larry Hancks, a historian working for the Unified Government of Wyandotte County, wrote:
It was speculated by some of the more cynical observers that one possible purpose of the lawsuit was not to seriously claim that the Wyandotte Tribe of Oklahoma was the legitimate owner of the properties in question, but rather to state a claim with just enough apparent validity that it could raise questions about land titled, making the obtaining of loans and the sale of property more difficult for the present property owners of record to accomplish.Scottish Rite Temple, supra note 437, at 10.
- Id. at 7.
- Id. at 7.
- See Wyandotte Nation v. Unified Gov’t of Wyandotte Cnty./Kan. City, Kan., 222 F.R.D. 490, 493 (2004) (emphasis added).
- Id. at 494.
- See Scottish Rite Temple, supra note 493, at 7; see also HANCKS, supra note 74.
- Scottish Rite Temple, supra note 437, at 7–8.
- Id. at 9.
- See supra, note 493 and accompanying text.
- Scottish Rite Temple, supra note 493, at 10.
- Wyandotte Nation, 222 F.R.D. at 497.
- See id. at 496–98.
- Id. at 499–500.
- Id. at 497.
- See supra Part III, at notes 123–133.
- See Thomas Emerson, Freedom of Association and Freedom of Expression, 74 YALE L.J. 1 (1964).
- Wyandotte Nation, 222 F.R.D. at 499 (citing Schrimpser v. Stockton, 183 U.S. 290, 296 (1902); South Carolina v. Catawba, 476 U.S. 498, 507–09 (1986)).
- Id. at 499–500.
- Id. at 500.
- Wyandotte Nation v. City of Kan. City, Kan., 200 F. Supp. 2d 1279, 1294–99 (D. Kan. 2002).
- Wyandotte Nation, 222 F.R.D. at 500.
- Id. at 502.
- Id. at 502 (citations omitted) (citing Indian Claims Commission Act § 12, 25 U.S.C. § 70k (1976) and Navajo Tribe v. State of N.M., 809 F.2d 1455, 1460–61 (10th Cir. 1987)). This seems additionally appropriate in light of the Wyandotte Tribes use of the Indian Claim Commission to secure finds for the purchase of the Scottish Rite Temple. See supra Part VI.B.
- Wyandotte Nation, 222 F.R.D. at 504–05.
- Scottish Rite Temple, supra note 437, at 10.
- See COHEN’S, supra note 50, at 997–99.
- See FEDERAL INDIAN LAW, supra note 46, at 201, 440.
- Wilkinson & Biggs, supra note 418, at 152–54 (quoted in FEDERAL INDIAN LAW, supra note 46, at 205–07.
- 25 U.S.C. § 177; see COHEN’S supra note 50, at 997–99.
- See supra Part VII; County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 234–40 (1985).
- Oneida, 470 U.S. at 234–40.
- COHEN’S, supra note 50, at 997–99.
- Worcester v. Georgia, 31 U.S. 515, 561–63 (1832). The partial limitation of the Worcester holding was recognized in Nevada v. Hicks, 533 U.S. 353, 361–62 (2001). “[T]he principle that Indians have the right to make their own laws and be governed by them requires ‘an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other.’” Id. at 362.
- United States v. White Mountain Apache Tribe, 537 U.S. 465, 474–75 (2003).
- White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141–45 (1980).
- See Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024 (2014).
A key goal of the Federal Government is to render Tribes more self-sufficient, and better positioned to fund their own sovereign functions, rather than relying on federal funding. 25 U.S.C. §2702(1) (explaining that Congress’ purpose in enacting IGRA was “to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.)Id. at 2043 (Sotomayor, J., concurring).
- See Shoshone Wind River, 304 U.S. at 117–18.
Although the United States retained the fee, and the tribe’s right of occupancy was incapable of alienation or of being held otherwise than in common, that right is as sacred and as securely safeguarded as is fee simple absolute title. . . . The authority of the United States . . . detracts nothing from the tribe’s ownership, but was reserved for the more convenient discharge of the duties of the United States as guardian and sovereign.Id. As discussed above, this general holding seems fundamentally inconsistent with the Brownback Bill limitation on the use of the Huron Cemetery. See supra Part VI.A
- See Charles Wilkinson, Shall the Islands be Preserved?, in THE EAGLE BIRD 41 (1999) [hereinafter THE EAGLE BIRD].
- 25 U.S.C. §§ 461–464.
- 25 U.S.C. § 465 (2015).
- Id. (“The Secretary of the Interior is authorized, in his discretion, to acquire, through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments, whether the allottee be living or deceased, for the purpose of providing land for Indians.”).
- Id. (“Title to any lands or rights acquired pursuant to this Act or the Act of July 28, 1955 (69 Stat. 392), as amended (25 U.S.C. 608 et seq.) shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.”).
- 555 U.S. 379 (2009).
- 25 U.S.C. § 479 (2015) (emphasis added).
- See Memorandum from Hilary Thompkins, U.S. Dep’t of the Interior, Office of the Solicitor, to Sec’y (Mar. 12, 2014) [hereinafter Thompkins Memo] (on file with author).
- See Carcieri, 555 U.S. at 391.
- See id. at 382. The Court and the parties agreed that the only two interpretive options were 1934 or 1998. Since the Narragansett Tribe was not formally recognized until 1983, the plaintiffs apparently put all their marbles into the contention that “recognized Indian Tribe now under Federal jurisdiction” applied to 1998, and did not argue that, though unrecognized in 1934, they were still under federal jurisdiction. Id. at 384.
We hold that the term “now under Federal jurisdiction” in § 479 unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934. None of the parties or amici, including the Narragansett Tribe itself, has argued that the Tribe was under federal jurisdiction in 1934. And the evidence in the record is to the contrary. Moreover, the petition for writ of certiorari filed in this case specifically represented that “[i]n 1934, the Narragansett Indian Tribe . . . was neither federally recognized nor under the jurisdiction of the federal government.Id. at 395-96 (citations omitted).
Thus, the Court and the parties ignored the possible argument that the tribe though unrecognized in 1934, was still under federal jurisdiction and an appropriate recipient of trust land under 25 U.S.C. § 465. See Thompkins Memo, supra note 539; see also 555 U.S. at 396-400 (Breyer, J., concurring); id. at 400-01 (Souter, J. and Ginsburg, J., dissenting).
- Chevron, which authorizes deference by a court to agency construction of ambiguous language, 467 U.S. at 843, was not applied by the majority, which felt the language of 25 U.S.C. § 479 was clear and unambiguous. See 555 U.S. at 386, 389–95.
- See Chevron, 555 U.S. at 394-95.
- See supra note 541 and accompanying text.
- The term is derived from Edward Abbey’s iconic novel THE MONKEY WRENCH GANG (1975), and suggests disingenuous sabotage to force either paralysis or legislative reform.
- See Noah Nehemiah Gillespie, Preserving Trust: Overruling Carcieri and Patchak while Respecting the Takings Clause, 81 GEO. WASH. L. REV. 1707, 1715–17 (2013).
- Though the Court in Carcieri seems to leave room for an application of 25 U.S.C. § 465 based on federal jurisdiction alone in 1934, see supra notes 539, 541, many commentators seem to feel that the case, implicitly if not explicitly, calls for a showing of recognition in 1934 and not just jurisdiction. This may be a misreading of the case or a foreboding of its possible interpretations. See, e.g, Gillespie, supra note 546, at 1716.
- 132 S. Ct. 2199 (2012).
- Id. at 2203.
- 28 U.S.C. § 2409a.
- Patchak v. Salazar, 646 F. Supp. 2d 72, 76 (D.D.C. 2009), rev’d by Patchak v. Salazar, 632 F.3d 702 (D.C. Cir. 2011), aff’d by Patchak, 132 S. Ct. 2199 (2012).
- See Patchak, 632 F.3d. at 707–11.
- 5 U.S.C. § 702 waives Federal sovereign immunity from an action “seeking relief other than money damages, and stating a claim that an agency or an officer or an employee thereof acted or failed to act in an official capacity or under color of legal authority.” Patchak, 132 S. Ct. at 2204.
- 132 S.Ct. at 2208–11.
- Id. at 2204.
- Kempthorne, 516 F.3d 833; see supra notes 478–484 and accompanying text.
- See Kempthorne, 516 F.3d at 841, n.4. The case overturned was Neighbors for Rational Development v. Norton, 379 F.3d 956, 961–62 (10th Cir. 2004). It was noted by the Supreme Court as one of three circuit decisions that clashed with the D.C. Circuit, and held that the United States had immunity from suits like Patchak’s. Kempthorne, 132 S. Ct. at 2204.
- See supra notes 539, 541 and accompanying text.
- See Thompkins Memo, supra note 539, at 24.
- Carcieri, 555 U.S. at 394-95; see supra at note 541 and accompanying text.
- See supra at note 547.
- See Carcieri, 555 U.S. at 396 (Breyer, J., concurring).
- Thompkins Memo, supra note 539, at 24; see also Quinn, supra note 382.
- 25 C.F.R. § 83.2 (1978).
- 25 U.S.C. § 177.
- See Lone Wolf, 187 U.S. at 567–68; see United States v. Lara, 541 U.S. 193, 200 (2004).
- See COHEN’S, supra note 50, at 167.
- Joint Tribal Council of the Pasamaquocly Tribe v. Morton, 528 F.2d 370, 376–77 (1st Cir. 1975); see COHEN’S, supra note 50, at 1033.
- See Should I Care About the Carcieri Fix? (Mar. 2014), http://www.usetinc.org/wp-content/uploads/bvenuti/WeeklyWampum/PDF/Should%20I%20Care%20About%20the%20Carcieri%20Fix%20-%20%20March%202014.pdf.
- See Matt Sharp, Senate Bill Would Restore DOI Power Over Tribal Lands (Mar. 12, 2014), http://www.law360.com/articles/631284/senate-bill-would-restore-doi-power-over-tribal-lands. Senate Bill 732 has been referred to the Committee of Indian Affairs and, as of Feb. 7, 2016, has not recorded further attention. See https://www.congress.gov/bill/114th-congress/senate-bill/732/all-actions, for bill tracking.
- Zoltan Grossman, Treaty Rights and Responding to Anti-Indian Activity, THE FOURTH WORLD DOCUMENTATION PROJECT AT THE CENTER FOR WORLD INDIGENOUS STUDIES, http://www.dickshovel.com/anti.html (last visited Feb. 7, 2016).
- See generally Sam Brownback, Road Map for Kansas, 2.0, http://brownback.com/road-map-kansas/ [hereinafter Sam Brownback Roadmap].
- See FIXICO, supra note 232, at 93.
- 417 U.S. 535 (1974).
- See Carol Goldberg, American Indians and Preferential Treatment, 49 UCLA L. REV. 943 (2002).
- 25 U.S.C. § 272.
- See Morton, 417 U.S. at 535 n.24 (citing 44 BIAM 335, 3.1) Since this time the regulation has been changed to reach members of “any recognized tribe now under federal jurisdiction” who are of “Indian descent” and “[a]ll others of one-half or more Indian blood of tribes indigenous to the United States.” 25 C.F.R. § 5.1.
- Morton, 417 U.S. at 551.
- Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
- United States v. Carolene Products Co., 304 U.S. 144, 152–54 (1938).
- See Craig v. Boren, 429 U.S. 190, 197 (1976).
- Morton, 417 U.S. at 555.
- Id. at 552–54.
- Id. at 551–52. The court noted “Article II, s 2, cl.2, gives the President the power, by and with the advice and consent of the Senate, to make treaties.” Id. at 552; see Robert Clinton, Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government, 33 STAN. L. REV. 979, 1011–12 (1981).
- Morton, 417 U.S. at 552.
- Id. at 553, n.24. “The preference is not directed towards a ‘racial’ group consisting of ‘Indians’; instead, it applies only to members of ‘federally recognized’ tribes. This operates to exclude many individuals who are racially to be classified as ‘Indians.’ In this sense, the preference is political rather than racial in nature.” Id.
- 528 U.S. 495 (2000).
- Id. at 510–11.
- Id. at 514.
- Id. at 520. The Court also stated that “Hawaii would extend the limited exception of Mancari to a new and larger dimension.” Id. at 520 (emphasis added).
- 133 S. Ct. 2552 (2013).
- Marcia Zug, Adoptive Couple v. Baby Girl: Two-and-a-Half Ways to Destroy Indian Law, 111 MICH. L. REV. FIRST IMPRESSIONS, 46, 49–50 (2013) (quoting Justice Roberts in Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007)).
- See 133 S.Ct. at 2567.
- See, e.g., KG Urban Enterprises LLC v. Patrick, 839 F. Supp. 2d 388, 404 (D. Mass. 2012).
- Equal Emp. Opportunity Comm’n v. Peabody W. Coal Co., 753 F.3d 977, 987 (2014) (citing Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73 (1977)).
- See, e.g., Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024 (2014) (upholding the application of tribal sovereign immunity in commercial gambling operations on non-Indian land); Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) (upholding Indian treaty rights to hunt and fish on ceded lands after statehood).
- See Sam Brownback Roadmap, supra note 572.
- See infra note 601.
- Sam Brownback, Fighting for Kansas, http://brownback.com/?s=We+will+continue+our+fight+against&submit=Go. (last visited Feb. 7, 2016)).
- Sam Brownback, RE: Native American Apology Resolution (S.J.Res. 4) (March 16, 2007), http://www.usccb.org/issues-and-action/cultural-diversity/nativeamerican/resources/upload/Brownback_apology_2007.pdf.
- Pub. L. No. 111-118, 123 Stat. 3409, § 8113.
- See supra notes 242–261 and accompanying text.
- See Lyng, 485 U.S. at 448.
- Id. at 453–54.
- Bear Lodge Multiple Use Ass’n v. Babbitt, 2 F. Supp. 2d 1448 (D. Wyo. 1998).
- Natural Arch & Bridge Society v. Alston, 209 F. Supp. 2d 1207 (D. Utah 2002).
- Access Fund v. U.S. Dep’t of Agriculture, 499 F.3d 1036 (9th Cir. 2007).
- Wyoming Sawmills, Inc. v. U.S. Forest Service, 179 F. Supp. 2d 1279 (D. Wyo. 2001).
- The most complete discussion—and dismissal—of the Establishment Clause argument was rendered by the Wyoming District Court in the Devil’s Tower case. See Bear Lodge, 2 F. Supp. 2d at 1453–58.
- See Ellen M.W. Sewell, The American Indian Religious Freedom Act, 25 ARIZ. L. REV. 430, 462 (1983).
- See, e.g., Access Fund, 499 F.3d at 1946. “[T]he Establishment Clause does not bar the government from protecting an historically and culturally important site simply because the site’s importance derives at least in part from its sacredness to certain groups.” Id.
- Bear Lodge, 2 F. Supp. 2d at 1453–55.
- Id. at 1451.
- Access Fund, 499 F.3d at 1045.
- Wyoming Sawmills, 179 F. Supp. 2d at 1294.
- See Wyoming Sawmills v. U.S. Forest Service, 383 F.3d 1241, 1249 (10th Cir. 2004).
- Id.; see also Natural Arch and Bridge Society v. Alston, 98 Fed. Appx. 711, 715 (10th Cir. Utah); Bear Lodge Multiple Use Ass’n v. Babbitt, 175 F.3d 814, 822 (10th Cir. 1999).
- 42 U.S.C. § 2000 bb-1; see supra notes 251–257 and accompanying text.
- See Hobby Lobby, 134 S. Ct. at 2779; see also supra notes 258–261 and accompanying text.
- Winter King, Could the Hobby Lobby Ruling Have Saved the San Francisco Peaks?, INDIAN COUNTRY TODAY, (July 15, 2014), http://indiancountrytodaymedianetwork.com/2014/07/15/could-hobby-lobby-ruling-have-saved-san-francisco-peaks. It is noteworthy, however, that the Supreme Court denied certiorari in the Navajo Nation case after the Ninth Circuit failed to find a substantial burden. See Navajo Nation, 129 S. Ct 2763.
- Salazar v. Buono, 559 U.S. 700, 715–22 (2010).
- See Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811, 1824–28 (2014).
- See Kristina Davis, Soledad Cross Land Transfer Approved, SAN DIEGO UNION-TRIBUNE, (Dec. 12, 2014), http://www.utsandiego.com/news/2014/dec/12/soledad-cross-transfer-congress-land/all?p. The Ninth Circuit had previously held that the cross on federal land conveyed a message of governmental endorsement of Christian religion that violated the Establishment Clause. See Trunk v. City of San Diego, 629 F.3d 1099, 1117–25 (9th Cir. 2011). The Ninth Circuit will revisit the Establishment Clause soon in Freedom From Religion Foundation, Inc. v. Weber, 951 F. Supp. 2d 1123 (D. Mont. 2013), where the district court found that the statute of “Big Mountain Jesus,” located for almost sixty years on leased federal land, surrounded by the Big Mountain Ski Area, had historical value and did not violate the Establishment Clause. Freedom From Religion Found., 951 F. Supp. 2d at 1134–36.
- See Lyng, 485 U.S. at 453. The proprietary tone of Lyng is, of course, less applicable to situations such as Huron Cemetery, which are under treaty and, one might assume, under the holdings that accord treaty rights the status of full beneficial ownership. See Shoshone Wind River, 304 U.S. at 117. But then, Senator Brownback’s Bill, which preserved the sacredness of Huron Cemetery, also amounted to a Federal usurpation of the Oklahoma Wyandotte’s vested economic rights.
- Felix Cohen wrote:
[T]he Indian plays much the same role in our American society that the Jews played in German. Like the miner’s canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere, and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.Steven P. McSloy, The ‘Miner’s Canary’: A Bird’s Eye View of American Indian Law and Its Future, 37 NEW. ENG. L. REV. 733 (2003). McSloy described Cohen as “the Blackstone of American Indian law.” Id.; see also Rennard Strickland, Indian Law and the Miner’s Canary: The Signs of Poison Gas, 39 CLEV. ST. L. REV. 483 (1991).