Wadase update: February 2015
February 16, 2015
Firelake Grocery Specials: February 25th – March 3rd
February 18, 2015

Tribal land detachment fails despite no opposing public comments

On January 20, 2015, City of Shawnee commissioners denied a request from the Citizen Potawatomi Nation to detach its tribal lands south of the North Canadian River. The hearing on the issue was ordered by a Pottawatomie County judge after a city court clerk denied the tribe’s Sept. 10, 2014 detachment request.

Shawnee City Clerk Phyllis Loftis stated in her notice of insufficiency that of the 1,724 acres requested for detachment, the Citizen Potawatomi Nation only owned 566 acres. The remaining lands, Loftis wrote, belonged to the government of the United States due to their status as trust land.

A letter dated Oct. 6, 2014 from Assistant Secretary of Indian Affairs Kevin Washburn addressed that issue, with the federal official stating emphatically that tribes are the owners of such land.

“Indian tribes are the beneficial owners of land held for them in trust by the United States. As such, tribes enjoy full and exclusive possession, use, and enjoyment of trust lands. Further, tribal governments exercise jurisdiction over trust lands, and trust lands are generally exempt from the jurisdiction of local and state governments, except where Congress has specifically authorized such jurisdiction,” Washburn says in the letter.

Loftis also wrote in her notice of insufficiency that she had not determined if Vice-Chairman Linda Capps had the authority to bind the Citizen Potawatomi Nation, essentially ruling that the Tribe’s second highest office holder had no right to petition on behalf of CPN.

Article 6, Section 3 of the CPN Constitution states “the Vice-Chairman shall perform the duties of the Chairman in his absence or during his incapacity to act as defined by law, and shall undertake such other duties as may be assigned to him by the Chairman or by law.”

On Jan. 20, 2015, prior to the start of the public hearing on detachment, Mayor Mainord expressed that he’d only allow 30 minutes for comments from those supporting the detachment petition. Mainord’s decision was without precedent, especially considering that a separate detachment petition brought in September 2014 had no time restrictions placed on it.{jb_quoteright}Some of you have been witnesses to the Tribe’s ability to assist the city in repairing some of its most important roads. I am referring to the Tribe’s 2012 agreement with the city to provide $625,000 for the resurfacing of the James W. Allen Bridge, which is the beginning of Gordon Cooper Drive. That was a project where a combination of tribal and federal money specifically designated for Native American governments saved this town’s government more than half a million dollars to repair a municipal road. – CPN Roads Director Art Muller.{/jb_quoteright}

When CPN counsel Tom Ferguson advised Mainord that the judge had not limited the time for the hearing, the mayor replied that it was not the judge’s meeting and he would decide the time limits.

During the commissioners’ comments portion of the meeting, Commissioner Lesa Shaw expressed her disappointment at the Tribe not being allowed to speak during the body’s Oct. 20, 2014 meeting. Shaw also said she regretted that issue had to be decided by the court and encouraged fellow commissioners to listen to the public comments and move the issue forward.

Commissioner Michael Dykstra echoed those sentiments and urged a decision based on the facts and opinions represented at the evening’s hearing.

CPN counsel Bruce Winston was the first to speak and previewed presentations showing the Tribe’s original detachment petition was sufficient, that Vice-Chairman Linda Capps did have the authority to sign it on behalf of the Tribe and that Shawnee continues to neglect a reasonable level of services south of the river.

Tribal Chairman John “Rocky” Barrett spoke next and reiterated that the CPN constitution allows for Vice-Chairman Capps to act on behalf of the Tribe in signing the petition. Chairman Barrett stated that he authorized her to do so in this specific case, and also referred to the letter from Bureau of Indian Affairs head Kevin K. Washburn, explaining that it included information on federal preemption on tribal land.

The Washburn letter states that “tribal governments exercise jurisdiction over trust lands, and trust lands are generally exempt from the jurisdiction of local and state governments, except where Congress has specifically authorized such jurisdiction.”

Federal preemption, as the chairman clarified, means federal and tribal laws applied on Indian trust land, overruling claims of state, county and municipal laws. Only the United States Congress can overturn such statutes.

Dr. Kelli Mosteller, an expert in Potawatomi history, discussed how the Citizen Potawatomi Nation came to be in Oklahoma and the manner in which Tribal land was illegally annexed into the town of Shawnee.

Referencing nineteenth century treaties signed with the U.S. government, Dr. Mosteller described the conditions for the Tribe’s move from Kansas to Indian in February of 1838. According to Dr. Mosteller, the Kansas-Indian Territory migration was the third removal forced upon the Tribe in forty years. An 1867 treaty stipulated that a Tribal delegation would travel to Indian Territory and select a thirty square mile reservation purchased with proceeds from a sale of Kansas-based Tribal lands to the railroad. In 1869, a group of Citizen Potawatomi traveled more than three hundred miles and selected a tract of land in the center of the territory to become the site of the Citizen Potawatomi reservation. CPN paid $119,790, or approximately $325 million in today’s money, for the land that would become Pottawatomie County, Oklahoma.

The first, and larger, parcel of land allegedly annexed by this city ordinance was a 194-acre tract that presently houses the Absentee Shawnee Tribal gift shop and offices as well as the CPN Cultural Heritage Center. This parcel was controlled by the Bureau of Indian Affairs until it was divided between the Citizen Potawatomi Nation and the Absentee Shawnee Tribe in 1963.

The second, and smaller, parcel of 57.99 acres includes present-day Tribal businesses, including FireLake Discount Foods, was given to the Citizen Potawatomi Nation by the secretary of the interior in September 1960, more than a year before the alleged annexation.

In April of 1962, four months after the supposed annexation of the lands, the business committee of the Citizen Potawatomi Nation approved a resolution outlining how the lands being relinquished by the Bureau of Indian Affairs were to be divided between CPN and the Absentee Shawnee Tribe in Pottawatomie County. Tribal resolutions and minutes from the business committee meetings suggest the Citizen Potawatomi Nation believed that the federal government, specifically the United States Public Health Service, still owned the land in 1962.

Because the two parcels in question were owned by the federal government and the tribes, Dr. Mosteller concluded, federal law required the signature and authority of the secretary of interior before it was sold. The City of Shawnee never determined who owned the land and never requested permission of the secretary of the interior or the Citizen Potawatomi Nation business committee or tribal members before their rushed annexation.

CPN Assistant Environmental Director Shawn Howard then spoke, explaining that in 2013 CPN received $315,000 from the U.S. Environmental Protection Agency to assess air and water quality in the Tribal jurisdiction. Within months of receiving these federal funds both Shawnee and CPN benefitted from this program.

Howard discussed the city’s lack of diligence compared to CPN in regulating and monitoring environmental quality and cited recent examples of how this lack of oversight negatively impacted Tribal lands.

“On Sept. 5, 2013, our department staff noticed an illegal discharge of raw sewage from the city’s lift station directly into the North Canadian River,” said Howard. “Just months later, on Dec. 4, 2013, our workers again witnessed and reported a separate sewage pipe leak that was, again, flowing directly into river.”

As Howard noted, if Tribal environmental quality staff had not noticed the sewage discharges into the river, the issue would have continued unabated.

“Though our department monitors environmental factors in our tribal jurisdiction, the very nature of our work means we also look out for our neighbors in Shawnee and other surrounding communities…I imagine residents further down the river in places like South Rock Creek and other municipalities are thankful that we caught the city’s sewage leaks in 2013,” concluded Howard.

Art Muller, director of the CPN Roads Department, spoke about the impact of federal dollars brought to the community by Citizen Potawatomi Nation. Since 2012, CPN has paid for and overseen $9.6 million in construction and repairs of roads, parking lots and other motor vehicle infrastructure.

“Some of you have been witnesses to the Tribe’s ability to assist the city in repairing some of its most important roads,” stated Muller. “I am referring to the Tribe’s 2012 agreement with the city to provide $625,000 for the resurfacing of the James W. Allen Bridge, which is the beginning of Gordon Cooper Drive. That was a project where a combination of tribal and federal money specifically designated for Native American governments saved this town’s government more than half a million dollars to repair a municipal road.”

Muller also mentioned the Tribe’s $500,000 contribution to fund a street widening project of Gordon Cooper Drive from Benson Park Road to Bob Crouch Drive in Tecumseh. He also detailed Tribal provisions of rock, gravel and other support to Pottawatomie County Commissioners Melissa Dennis and Eddie Stackhouse for upkeep on separate county roads.

“I can guarantee you, the people driving on these thoroughfares don’t care about who repaired the roads, they just care that good work is done. That is what the tribe does in this community; good work,” added Muller.

Vice-Chairman Capps then spoke to the Tribe’s development of infrastructure south of the river.{jb_quoteleft}When my family moved to the area in the late 1970s, Gordon Cooper Drive and what is now the Tribal headquarters seemed like one of the darkest spots on earth after the sun went down. It took until 2007 when the Nation finally reached an agreement with OG&E to put street lights on both Gordon Cooper Drive and Hardesty Road. – Vice-Chairman Linda Capps{/jb_quoteleft}

“When my family moved to the area in the late 1970s, Gordon Cooper Drive and what is now the Tribal headquarters seemed like one of the darkest spots on earth after the sun went down. It took until 2007 when the Nation finally reached an agreement with OG&E to put street lights on both Gordon Cooper Drive and Hardesty Road,” said Vice-Chairman Capps.

She went on to detail the Tribe’s payments to the state’s largest electricity provider. Vice-Chairman Capps also pointed out to that Tribal payment for streetlights on a city street are unprecedented in terms of any other customer in Shawnee’s city limits.

Tribal Economic Development Director Dr. Jim Collard then provided an overview of the impact of CPN, which has been a tremendous boost to the local economy for a total of $558 million in 2013. Dr. Collard educated commissioners on the more than $10 million in sales tax revenue generated by CPN employees annually and the 30 cents of every dollar in the local community spent by Tribal businesses.

The county’s largest employer by far, CPN is responsible for seven of every 10 jobs created in Shawnee in the past decade according to Dr. Collard.

Also speaking in his role as police chief, Dr. Collard described the role of the CPNPD, which oversees a 900-square mile jurisdiction in three counties.

“Our officers are first responders and essential backup to our brother agencies like the Shawnee Police Department and the Pottawatomie County Sheriff’s Department,” said Dr. Collard as he urged commissioners to vote for the detachment. “Our Tribal police will continue to back up our fellow officers whenever they need, as is our duty as public servants. Detachment means more cooperation between neighbors, no more, no less.”

Although more speakers were prepared to give statements, CPN Tribal member and employee Tesia Zientek was the last person allowed to speak.

Zientek, who lives in Shawnee and is a graduate of Bethel High School, spoke to the commissioners about her status as a citizen of the U.S., City of Shawnee and Citizen Potawatomi Nation.

“All of these statuses…feed into my multi-faceted identity,” said Zientek. “Consequently, I have several layers of civic duties, which means that I vote in U.S. federal, state, and city elections as well as Tribal elections.”{jb_quoteright}Following Zientek’s remarks, Mayor Mainord opened the hearing to anyone who wished to speak in opposition to the detachment.{/jb_quoteright} {jb_quoteright}No one came forward.{/jb_quoteright}

She went on to explain that many voters in Shawnee shared similar backgrounds, and urged commissioners to act with respect to the urgings of many who were in the crowded commission hall that night and to detach.

Recent events have led to the decision to detach, but this decision was made with the goal of limiting resources spent on conflicts that do not benefit either the Tribal or Shawnee community. I believe that even after detachment, however, the Tribe will continue its collaborative efforts that positively impact the City of Shawnee.”

Following Zientek’s remarks, Mayor Mainord opened the hearing to anyone who wished to speak in opposition to the detachment.

No one came forward.

Former city commissioner and Shawnee resident Tom Claybrook came forward and said he was neither for nor against the petition for detachment. He then went on to ask the current city commissioners’ what the logic was in keeping CPN in the city before being cut off by the mayor.

Commissioners then opened time for their own discussion of the matter, with Ward 2’s Linda Agee asking what the tax implications would be for new businesses on Tribal trust land following the 2013 passage of the HEARTH Act. Further discussion followed on that matter before Ward 4’s Keith Hall praised CPN for its philanthropic efforts in town.

However, Hall contended that while he did not wish to threaten litigation against CPN for failure to collect municipal grocery sales taxes, he was looking out for all of the town’s residents, not just those who were Tribal members or employees.

Hall made no mention of his push to change to amend the city charter in November 2014 allowed the city’s voters to have the final say, even if the commission voted for detachment.

The legitimacy of his Sept. 4, 2014 statement that, “the city commission is not smarter than all the city’s voters. The people should have the ability to make a decision on such an important matter,” was apparently lost on the Ward 4 representative.

See the Sept. 2, 2014 city commission meeting video below in which Commissioner Hall explains his reasoning for changing the city charter to allow a vote of the people decide detachments.

 

 

Vice-Mayor James Harrod briefly disputed Dr. Mosteller’s presentation in his remarks. Harrod, who represents Ward 3, said that he disputed the Tribal expert’s claim about the illegal annexation. In 1961, said Harrod, Oklahoma had no open meeting laws and even if they were in place, “no one paid any attention to them.”

Click here to see the 1961 statutes on land detatchment.

Finally, with all comments concluded, the commissioners cast a 3-3 tie, with Commissioner Gary Vogel absent. Commissioner Hall, Vice-Mayor Harrod and Mayor Mainord all voted against the detachment while commissioners Agee, Shaw and Dykstra cast ballots in the affirmative. Given that a majority is needed to affirm such measures, the detachment petition failed.

For Vogel, his absence reflects a generally anti-tribe trend in his voting record when it comes to matters concerning CPN. He has either abstained, which by state law counts as a no vote, or voted against measures that Tribal representatives or interests required an affirmative vote.

The entire hearing’s proceedings can be seen at http://tinyurl.com/ShawneeCommission