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Legal expert: Shawnee land claim not frivolous
Entered into the database on Tuesday, July 05th, 2005 @ 15:19:41 MST


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SHAWNEE TOWNSHIP — Did the Eastern Shawnee Tribe of Oklahoma wait too long to file a land claim to its ancestral homeland?

The question is one of many certain to dominate the legal landscape as the tribe’s land claim lawsuit, filed Monday in U.S. District Court in Toledo, proceeds. The tribe is certain to say no, while the state was quick to hail a court opinion this week that seems to indicate the time has passed.

“This is a legitimate claim for land. The tribe wants to pursue this to the end,” Mason Morisset, a Seattle-based attorney representing the tribe, said. “One outcome could be taking land in place of these lands included in the claim. A settlement would be preferable as opposed to going all the way through the litigation.”

The tribe is seeking title to more than 92,800 acres of former reservation land in Allen and Auglaize counties, repayment of taxes and other revenues collected by the state since 1831, as well as use and access rights to more than 11,315 square miles of territory in 36 counties in central and southern Ohio.

Ohio Attorney General Jim Petro praised a decision by the 2nd Circuit U.S. Court of Appeals in New York that overturned a $247 million award to the Cayuga Indian Nation because the tribe had waited too long to file its claim. The appeals court decision follows a U.S. Supreme Court ruling earlier this year that also ruled a tribe had waited too long to file a claim.

“This decision is important to Ohioans because it supports our point that the Eastern Shawnee have no legal claim to lands in our state,” Petro said.

Blake Watson, a law professor at the University of Dayton and an expert in federal Indian law, said the ruling in New York marks an interesting development but said that court has no bearing on the U.S. District Court in Toledo.

“I think it is a significant development because the appeals court case in New York is the first to address whether a tribe can bring a land claim out of a treaty from 150 to 200 years ago. The outcome was bad for that tribe and presumably for the Eastern Shawnee,” Watson said. “I don’t think their claims are frivolous. They’ve pointed out some problems with how land was sold and with the treaties. They may have a claim, but it may be too late.”

Watson said it doesn’t appear from the tribe’s rhetoric that the lawsuit is about forcing people off their land.

“Certainly these types of claims have the potential to be very significant. There have been claims that have been successful,” Watson said. “The tribe, of course, is quite open that it is not trying to dispossess anyone and are willing to settle.”

Charles Enyart, chief of the Eastern Shawnee, confirmed the tribe’s intentions in a letter to Petro in May.

“Unlike what was done to the Shawnee 150 years ago, the Tribe does not want to dispossess Ohioans of their lands,” Enyart wrote. “The Tribe remains interested in working with the state and local communities to help return the Eastern Shawnee to their homeland.”

Morisset said the land claim has been viewed by the tribe as a last resort, a measure to get state officials to engage in a dialogue about the future of the tribe and its casino ambitions in the state.

“They’ve been working for some time on perfecting their claim. They’ve been working very closely with local communities,” Morisset said. “They’ve tried to engage the state in the same manner but have been rebuffed. The only thing I would hope is that we don’t continue to get the slammed-door approach from state officials.”