## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 5 1998 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CITIZEN BAND POTAWATOMI INDIAN TRIBE OF OKLAHOMA, Plaintiff-Appellee,

v. L. W. COLLIER, in his official capacity as the area Director of the Anadarko Area Office of the Bureau of Indian Affairs, Department of the Interior, Defendant, and ABSENTEE SHAWNEE TRIBE OF OKLAHOMA, Defendant-Appellant. No. 96-6219

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CIV-92-2161-R)

F. Browning Pipestem (Dena L. Silliman, with him onthe briefs), of F. Browning Pipestem & Associates, Norman, Oklahoma, for Defend ant-Appellant.-2-

Michael Minnis (David McCullough, with him on the b rief), of Michael Minnis & Associates, P.C., Oklahoma City, Oklahoma, for Plai ntiff-Appellee.

Before SEYMOUR , Chief Judge, LOGAN , Senior Circuit Judge, and MURPHY , Circuit Judge.

SEYMOUR , Chief Judge.1 The government filed an appeal which was subsequently dismissed on the

government’s motion before appellate briefing. -3- The Citizen Band Potawatomi Indian Tribe of Oklahom a (Potawatomi Tribe) brought this action against L.W. Collier, an area director for the Bureau of Indian Affairs (BIA), seeking a declaration that th e BIA is required to obtain the Tribe’s consent before placing into trust land with in the boundaries of the former Potawatomi reservation. The lawsuit was precipitat ed when the Absentee Shawnee Tribe of Oklahoma (Absentee Shawnee Tribe) applied to the BIA to place such land in trust and the BIA informed the P otawatomi Tribe that its consent was not required under the relevant statute and regulations. In a thorough and well-reasoned opinion, the district court grant ed the Potawatomi Tribe’s motion for summary judgment, holding that a prior r uling on the matter by the Interior Board of Indian Appeals (IBIA) for the Abs entee Shawnee Tribe was contrary to law. The Absentee Shawnee Tribe, an in tervenor below, appeals and we affirm. 1

I The governing statute provides in relevant part: The Secretary of the Interior is hereby authorized, in his discretion, to acquire, through purchase, relinquis hment, gift, exchange, or assignment, any interest in lands, wat er rights, or surface rights to lands, within or without existing reservations,-4-

including trust or otherwise restricted allotments, whether the allottee be living or deceased, for the purpose of providing land for Indians. 25 U.S.C. § 465. The regulations governing the acq uisition of trust land under the above statute provide as follows:

Unless another definition is required by the act of Congress authorizing a particular trust acquisition, Indian reservation means that area of land over which the tribe is recognize d by the United States as having governmental jurisdiction, except that, in the State of Oklahoma . . . , Indian reservation means that area of land constituting the former reservation of the tribe as defined by the Secretary. 25 C.F.R. § 151.2(f) (1997). The regulations furth er provide:

An individual Indian or tribe may acquire land in t rust status on a reservation other than its own only when the g overning body of the tribe having jurisdiction over such reservation consents in writing to the acquisition; provided, that such consent sha ll not be required if the individual Indian or the tribe already owns an undivided trust or restricted interest in the parcel of land to be acq uired. Id. § 151.8. In the district court, the BIA asserted that the Po tawatomi Tribe’s consent was not required under section 151.8 because it shared the former reservation with the Absentee Shawnee Tribe. On appeal, the Ab sentee Shawnee Tribe likewise contends that section 151.8 does not applybecause it has historically shared the reservation with the Potawatomi Tribe, a nd that the reservation should therefore be considered that of the Absentee Shawne e as well as that of the Potawatomi. This appeal therefore requires an asse ssment of the status of the-5-

land that comprises the former reservation vis-a-vi s the two tribes, as revealed by the relevant treaty, statutes, and prior proceeding s. We begin our review with a description of the legal history of the land at iss ue. The land initially gained reservation status in 186 7 pursuant to a treaty between the United States and the Potawatomi Tribe. The treaty recites that its purpose was to secure a home for the Tribe, which w as being removed from the state of Kansas to what was to become the state of Oklahoma. See Treaty with the Potawatomi, Feb. 27, 1867, 15 Stat. 531. The T ribe and a government commission were to visit the area to select a suita ble location, “and if such location shall be found satisfactory to the Pottawatomies, and approved by the Secretary of the Interior, such tract of land, not exceeding thirty miles square, shall be set apart as a reservation for the exclusi ve use and occupancy of that tribe.” Id. art. 1. It nonetheless appears undisputed that in dividual Absentee Shawnees, who had separated from the Shawnee Nation , had already settled on a portion of the tract selected as the Potawatomi res ervation. The Absentee Shawnees petitioned the President to grant them tit le to the land on which they had settled. Although the Potawatomi Tribe agreed not to disturb the Absentee Shawnees, it in turn requested that the Potawatomi reservation be extended2 These background facts are taken from a decision o f the Indian Claims

Commission, The Citizen Band of Potawatomi Indians of Okla. v. United States , 6 I.C.C. 646 (Sept. 18, 1958), which we discuss infra . The findings were recited by the IBIA in its ruling and are essentially undisput ed. -6- westward to include an area equivalent to that occupied by the Absentee Shawnees. 2 Apparently in response to this situation, an Act wa s passed in 1872 authorizing the allotment of land within the Potawatomi reservation to each member of the Potawatomi Tribe, and to those Absent ee Shawnee Indians who had been residing therein. See Act of May 23, 1872, ch. 206, 17 Stat. 159. The Act provided that “allotments of land lying within the thirty-mile square tract heretofore selected for the Pottawatomie Indians, . . . shall be made to each member of the Pottawatomie band, known as the Pottawatomie citizen band,” and further stated that “they may enforce the laws and usages heretofore enforced among them as an Indian tribe, . . . and shall be e ntitled to equitable representation in the general territorial council, and subject to general laws which it may legally enact.” Id. § 1, at 159-60. The Act also provided for allotme nts to “any Indian of pure or mixed blood of the Absentee Shawnees,” who was either a head of a family or over twenty-one years of age, h ad resided continuously within the reservation for three years, and had made subst antial improvements to the land. Id. § 2, at 160. No Absentee Shawnee Indians and onlya handful of-7-

Potawatomi Tribe members received allotments under the 1872 Act, although both Absentee Shawnees and Potawatomi Tribe members cont inued to reside on the reservation. The Potawatomi Tribe has continuouslymaintained that the land was reserved to the Tribe under the 1867 Treaty and that the Absentee Shawnees were there only with the Tribe’s permission. In 1887, Congress passed the General Allotment Act, 25 U.S.C. § 331. The Secretary of the Interior determined that the Act applied to the reservation and authorized allotments of land within the reservatio n to both Potawatomi Tribe members and Absentee Shawnees. Allotments were the reafter made to members of both groups. The government entered into an agreement with the P otawatomi Tribe on June 25, 1890, and with the Absentee Shawnees the n ext day, under which the reservation was ceded to the government. In 1891, an Act was passed setting out those agreements. See Act of Mar. 3, 1891, ch. 543, 26 Stat. 989, 1016-2 2. The Act provided that the Potawatomi Tribe “hereby cede , relinquish, and forever and absolutely surrender to the United States all theirclaim, title and interest of every kind and character in and to” the Potawatomi reserv ation. Id. § 8, Art. I, at 1016. As consideration for the relinquishment, the Act fu rther provided that the “United States will pay to said Citizen Band of Pottawatomi e Indians” $160,000. Id. § 8, Art. IV, at 1018. With respect to the Absentee Shawnee Indians, the Act-8-

embodied the agreement entered into between “Commis sioners on the part of the United States and the Absentee Shawnees residing onwhat is commonly known as the Pottawatomie Reservation.” Id. § 9, at 1019. The Act provided that the Absentee Shawnees likewise relinquished their claimto any interest in the reservation, id. § 9, Art. I, at 1019, and agreed to provide as con sideration the payment of $65, 000 to be distributed per capita to allottee Absentee Shawnees on the reservation for their homes and other improveme nts on their allotments, id. § 9, Art. IV, at 1020-21. Finally, the Act conferred jurisdiction upon the Court of Claims to hear and determine all claims the Potawat omi Tribe might have against the United States arising from the preceding events . Id. § 12, at 1021. There was no similar provision for the Absentee Shawnees. Years later, the Potawatomi Tribe filed a claim aga inst the United States with the Indian Claims Commission (ICC) to recover additional compensation for the surplus lands in the former reservation, that i s, those lands left in the reservation after allotments had been made to the i ndividual members of the Potawatomi Tribe. The government contended that th e Tribe was not entitled to compensation for that portion of the reservation oc cupied by the Absentee Shawnees because the Tribe had consented and agreed that the Absentee3 The government also defended on the ground that a patent to the

reservation was never issued to the Potawatomi Trib e because the Tribe never paid the agreed consideration and therefore had no compensable interest in the reservation. The ICC rejected this argument, holdi ng that the United States received the proceeds from the Tribe’s sale of its lands in Kansas before the move pursuant to the 1867 Treaty, and that the governmen t had held these funds in trust for the Tribe. The ICC held that the government’s failure, if any, to pay over these funds as consideration for the purchase of th e reservation at issue could not be charged to the Tribe. See The Citizen Band of Potawatomi Indians of Okla. , 6 I.C.C. at 661-63. -9- Shawnees could remain on the land. 3 The ICC rejected this contention as unsupported. We do not find any evidence in the record of any co nsent or waiver on the part of the Citizen Band to a tract of land containing less than 900 square miles. That the Citizen Band did not wa ive its claim of ownership of the lands occupied by the Shawnee is e videnced by the Band’s willingness to have their west boundary exte nded sufficiently to add an equivalent area of land to that occupied by the Shawnees within the 900 square mile tract that had been appr oved for the Citizen Band by the Government, if the Government d esired to let the Shawnee remain permanently on the Oklahoma Reservat ion tract. (Finding 9). It is undisputed that the Absentee Shawnee’s posses sion of such Oklahoma lands were not “locations made for th em” by the Government. They were, as defendant [the governmen t] states, “in the nature of squatters” (Def. Br. p. 9) whose poss ession was neither from time immemorial nor was their possession of lands within the Oklahoma Reservation obtained under any color of ti tle or recognition of ownership by the Congress or the exc lusive [executive] branch of the Government or by the Citi zen Band. (Finding 8) The agreement of June 26, 1890, (26 Stat. 1019) whe rein the Absentee Shawnees ceded the entire Oklahoma Reservation for a consideration of $65,000 and confirmation of their allotments cannot be construed as a ratification of a “reservation ti tle” or of a use and occupancy title from time immemorial. Their posses sory right was in-10-

the nature of a tenancy at will; they were in “peac eable possession” after the arrival of the Citizen Band only because the Citizen Band expressed a willingness not to disturb them provide d the Government extended the Citizen Band’s reservation to include an equivalent area westward. (Finding 8) The Citizen Band of Potawatomi Indians of Okla. v. United States , 6 I.C.C. 646, 663-65 (Sept. 18, 1958).

II In 1992, the Potawatomi Tribe received information leading it to believe that the Absentee Shawnee Tribe had applied to the BIA to take into trust lands lying within the former Potawatomi reservation. Ac cordingly, the Potawatomi Tribe asked the BIA if any such applications were p ending. In a letter to the Tribe dated September 17, 1992, Mr. Collier, for th e BIA, refused to confirm or deny the existence of Absentee Shawnee applications . Nonetheless, and notwithstanding the ICC opinion quoted above, Mr. C ollier set out the BIA’s view that the two Tribes shared a common former reservat ion area and that the consent of the Potawatomi Tribe was therefore not a necessa ry predicate to placing that land into trust status under the statute and regulations set out in Part I supra. In support of the BIA’s position Mr. Collier relied onthe 1872 Allotment Act which, as discussed above, authorized the allotment both t o members of the Potawatomi-11-

Tribe and to Absentee Shawnees of “land lying withi n the thirty-mile square tract heretofore selected for the Pottawatomie Indians.” 17 Stat. at 159. The Potawatomi Tribe filed suit in federal districtcourt, seeking to prevent the BIA from placing into trust lands lying within the former Potawatomie reservation. The government filed a motion to dism iss for failure to join the Absentee Shawnee Tribe as an indispensable party an d for failure to exhaust administrative remedies. The district court ruled that the Absentee Shawnee Tribe was an indispensable party and dismissed the action on that ground. The Potawatomi Tribe appealed and this court reversed. See Citizen Band Potawatomi Indian Tribe of Okla. v. Collier , 17 F.3d 1292 (10th Cir. 1994). We held that, standing alone, Mr. Collier’s September 17 letter stating the BIA’s position on the matter was insufficient to satisfy the BIA’s burden of demonstrating the Absentee Shawnee Tribe’s interestin the former reservation. Id. at 1293-94. We also rejected as “irrelevant” the 1872 Act upon which the BIA relied, pointing out the Act does not create any “undivided trust or restricted interest” of the Absentee-Shawnee tribe in the Potawatomi tribe’s land for purposes of 25 C.F.R. § 151.8. It merely grants the Secreta ry of the Interior the power to allot land to individualAbsentee-Shawnee tribesmen. The Act does not mention any power to allot lands t o the AbsenteeShawnee collectively as a tribe

. Id. at 1294.-12-

On remand, the government renewed its motion to dis miss for failure to exhaust administrative remedies, and the district c ourt directed the Potawatomi Tribe to pursue administrative relief, if available . Upon instructions from the BIA, the Tribe appealed Mr. Collier’s position lett er to the IBIA, which issued an opinion affirming Mr. Collier’s decision. See Citizen Band Potawatomi Indian Tribe of Okla. v. Anadarko Area Director, Bureau of Indian Affairs , 28 IBIA 169 (Sept. 12, 1995). The IBIA held that it was bound by the ICC’s decision that the Potawatomi Tribe owned the entire reservation as of June 25, 1890. The IBIA concluded, however, that because the ICC opinion de termined the ownership of the reservation lands only as of that date, the ICC opinion was not determinative of rights in the land arising thereafter. The IBIAsupported its conclusion by referring to Shoshone Tribe of Indians of the Wind River Reservation in Wyo. v. United States , 299 U.S. 476 (1937), which the IBIA described as bearing a resemblance to the history of the Potawatomi reserv ation. The IBIA also concluded that this court’s ruling in the first app eal did not preclude consideration of the merits because we had considered only whethe r the Absentee Shawnee Tribe was an indispensable party. The IBIA then de termined that the language and the legislative history of the 1891 Act, when c onsidered together with Shoshone Tribe , “support a conclusion that Congress intended to r ecognize some-13-

rights of the Absentee Shawnees in the Potawatomi R eservation.” 28 IBIA at 183. The Potawatomi Tribe filed an amended complaint in district court alleging that the IBIA decision was entitled to no deference because it was contrary to law, and was arbitrary, capricious, and an abuse of disc retion in any event. The Tribe accordingly renewed its motion for summary judgmenton those grounds. The BIA filed a cross-motion for summary judgment, and the Absentee Shawnee Tribe was allowed to intervene. The district court granted summary judgment for the Potawatomi Tribe. The court agreed with the IBIA that the ICC decisio n determined ownership rights only as of June 25, 1890 and held that defendant Mr . Collier was thus precluded from asserting that the Absentee Shawnee Tribe had an interest in the reservation prior to that time. Rejecting the government’s arg ument that the ICC did not have jurisdiction to decide the matter, the court pointe d out that the issue of ownership as of June 25, 1890, had already been litigated in the ICC proceeding where the government argued that the Absentee Shawnees had anownership interest in the reservation to avoid paying compensation to the Pot awatomi Tribe for at least that portion of the reservation occupied by the Absentee Shawnees. The resolution of the issue was therefore necessary to the judgment r endered by the ICC. The court further ruled that, because the United States was afiduciary or trustee for the4 In so doing, the court noted that even if the ICC ruling were not given

preclusive effect, the well-settled rule that Congr essional intent to abrogate treaty rights must be clear and plain would require a find ing that the 1867 Treaty granting the Potawatomi Tribe the exclusive right t o the land had not been abrogated. App., vol. III, at 868. -14- Absentee Shawnee Tribe, the Tribe was in privity wi th and represented by the government in the ICC proceedings, and is likewise bound by that decision and precluded from relitigating its ownership interest in the reservation prior to June 25, 1890. In addressing the merits, the district court review ed the events leading up to the June 25 agreement and the 1891 Act, and found n othing to indicate that a reservation had been created or recognized for the Absentee Shawnees. The court held: [I]t is anomalous to suggest that by the 1891 Act, Congress at once created or recognized a reservation in favor of the [Absentee Shawnee] Tribe while agreeing to confirm allotments made to individual members of the Tribe and accept relinqui shment or whatever claim, title or interest the Tribe had in the remainder of the land, which must have necessarily comprised the res ervation then being created or recognized. App., vol. III, at 867. Pointing to its holding th at in view of the ICC opinion the Absentee Shawnee Tribe had no interest in the reservation before June 25, 1890, 4 and to the lack of any evidence that Congress or th e executive branch created a reservation for the Tribe after that date and befor e the 1891 Act, the court viewed the Absentee Shawnees’ agreement to relinquish any interest in the reservation as-15-

a quit claim deed. The court found additional supp ort for its conclusion in the legislative history of the 1891 Act, which stated t hat the Absentee Shawnees were on the land selected for the Potawatomi Tribe underthe 1867 Treaty “‘not . . . by any treaty or Executive order, but the Government h as long known of their presence there .’” Id. at 869 (quoting H.R. Rep. No. 51-3481, at 2-3 (189 1)). Finally, the court pointed to the definition of a “ reservation” set out in the Indian Reorganization Act, 25 U.S.C. § 461, which the court viewed as implicitly defining a reservation as land “‘created or set apa rt by treaty or agreement with the Indians, Act of Congress, Executive order, purc hase or otherwise.’” App., vol. III, at 872 (quoting 25 U.S.C. § 461). Becaus e the record contained no evidence that land within the Potawatomi reservatio n had been set apart for the Absentee Shawnee Tribe within the language of secti on 461, the court ruled that “[a]t best the 1891 Act confirms an agreement with the [Absentee Shawnee] Tribe to make allotments to individual [Absentee Shawnee] members.” Id. at 873. Accordingly, the court held that the IBIA opinion w as contrary to clear legislative intent. On appeal, the Absentee Shawnee Tribe contends the district court failed to afford the IBIA decision proper deference, arguing that the agency’s decision was5 The Absentee Shawnee Tribe also asserts that the d istrict court improperly

granted summary judgment because the record contain s material issues of fact. We disagree. The historical facts are essentially undisputed and have been recited by both the ICC and the IBIA, as well as by the parties and the district court. It is not the facts which are in dispute, but their legal significance.

6 The Absentee Shawnee Tribe’s assertion that the Po tawatomi Tribe is (continued...) -16- well-reasoned and factually supported. 5 The Tribe also asserts the earlier ICC decision is not binding on it because it was not a party or in privity with a party to that proceeding, and because the ICC lacked jurisdi ction to decide the matter of tribal rights in the former reservation. Finally, the Tribe contends that if anyone is barred by the ICC proceeding, it is the Potawato mi Tribe. The Absentee Shawnee Tribe does not challenge on ap peal the IBIA determination that it is bound by the ICC’s holding that the Potawatomi Tribe had exclusive ownership of the reservation as of June 2 5, 1890. Indeed, the Absentee Shawnee Tribe has maintained throughout this appeal that the issue is whether the Tribe had recognized rights in the Potawatomi reservation arising afterJune 25, 1890. Because the ICC opinion by its terms address es only the status of the reservation as of

that date, it could have no binding effect as to o wnership of the land thereafter in any event, which is the issue th e Tribe contends is dispositive here. Accordingly, we need not address whether the ICC had jurisdiction to determine the ownership of the reservation, or whet her its opinion is binding on the government and/or the Tribe. 6 We therefore turn to the Tribe’s argument that6 (...continued)

estopped by the ICC decision from pursuing the reli ef it requests in this action is without merit. The bar upon which the Absentee Shawnee Tribe relies is found at 25 U.S.C. § 70u, and provides that payment of a cla im bars further demands against the United States arising from the controve rsy. The Potawatomi Tribe is not seeking additional compensation here and the ba r thus does not apply. -17- the district court erred in ruling that the IBIA de cision is contrary to law and in holding, contrary to the IBIA, that the Tribe did n ot obtain rights in the Potawatomi reservation between June 25, 1890, and the passage of the 1891 Act.

III We begin by considering the Absentee Shawnee Tribe’ s assertion that the district court erred in failing to accord the IBIA decision proper deference. Courts must, of course, defer to an agency’s delegated authority to interpret by regulation the statute that it administers. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council , 467 U.S. 837, 843-44 (1984). Nonetheless, “[t]he judiciary is the final authority on issues of statu tory construction and must reject administrative constructions which are contrary to clear congressional intent.” Id. at 843 n.9. “If a court, employing traditional too ls of statutory construction, ascertains that Congress had an intention on the pr ecise question at issue, that intention is the law and must be given effect.” Id

.7The IBIA likewise addressed the nature of the BIA’ s determination of the

former reservation status of the Potawatomi reservation, and the degree of (continued...) -18- Although we are to give deference to an agency’s co nstruction of the statute it is entrusted to administer, here we are not concerned solely with construing the Secretary’s discretion to place rese rvation land in trust under 25 U.S.C. § 465. The question before us on appeal is whether we must defer to the IBIA’s decision that the Absentee Shawnee Tribe hada cognizable interest in the Potawatomi reservation after June 25, 1890. This a ssessment, in turn, requires that we decide whether the IBIA’s determination is contrary to Congressional intent. Accordingly, we must ascertain the intent of Congress in passing the 1891 Act, which embodies the agreements under which the reservation was ceded to the government. Because determining the status of the land at issue thus requires construing the 1891 Act, a statute that is not one Congress gave the agency discretion to administer, there is considerable for ce to the Potawatomi Tribe’s argument that Chevrondeference is not appropriate. Cf. Adams Fruit Co. v.
Barrett , 494 U.S. 638, 649-50 (1990). We need not decide the issue, however, because upon applying the traditional principles of statutory construction regarding treaty abrogation, we conclude that the I BIA’s interpretation is clearly contrary to Congressional intent and thus not entit led to Chevrondeference in any

event. 77 (...continued)

deference to be accorded that determination on revi ew by the IBIA. See Citizen Band Potawatomi Tribe of Okla. v. Anadarko Area Dir ector, Bureau of Indian Affairs , 28 IBIA 169, 176-78 (Sept. 12, 1995). The IBIA o bserved that it had previously recognized “the need for legal and histo rical underpinnings for BIA’s definitions of former reservations under [25 C.F.R. § 151.2(f)].” Id. at 177-78. Accordingly the IBIA concluded that “the better vie w is that BIA’s determination concerning former reservation status is a legal con clusion subject to de novo review by the [IBIA].” Id. at 178. We agree with the IBIA’s characterization of the determination as a legal one requiring de novo review of its legal and historical bases. Moreover, the IBIA has acknowled ged that the Secretary does not, by “defining” a former rese rvation under 25 C.F.R. 151.2(f), purport to proclaim or create a tr ue reservation or to vest the defined area with the attributes of reserv ation status for jurisdictional purposes. Rather, the Secretary si mply describes areas with respect to which the reservation-based provisi ons of 25 C.F.R. Part 151 will apply. Id. at 177 n.11. -19- The Treaty creating the Potawatomi reservation set the land apart “for the exclusive use and occupancy” of the Potawatomi Trib e. See Treaty with the Potawatomi, supra , art. I. The IBIA concluded that the Potawatomi T ribe’s treaty right to the exclusive use of the land was abrogate d by the agreement between the Absentee Shawnees and the federal government embodi ed in the 1891 Act. The district court disagreed, holding that neither the language of the Act nor the circumstances surrounding its passage indicated a C ongressional intent to abrogate the Potawatomi Tribe’s pre-existing owners hip rights. “Congress has the power to abrogate Indians’ treatyrights, though we usually insist that Congress clearly express its intent to do so.” South Dakota v.-20-

Bourland , 508 U.S. 679, 687 (1993) (citations omitted). “C ongressional intent to abrogate treaty rights will not be lightly inferred ; such purpose must be ‘clear and plain.’” Oyler v. Allenbrand , 23 F.3d 292, 296 (10th Cir. 1994) (quoting United States v. Dion , 476 U.S. 734, 738 (1986)). Accordingly, we must first examine the language of the Act itself to determine whetherit contains a sufficiently clear expression of an intent to abrogate the Potawatomi Tribe’s exclusive rights in the land by granting rights to the Absentee Shawnees. In the Act, both the Potawatomi Tribe and the Absen tee Shawnees, in virtually identical language, ceded their interest in the land comprising the Potawatomi reservation. See 26 Stat. at 1016-17, 1019. The Act also provided that the United States would pay sums of money to b oth tribes for the relinquishment of their interests. See id. at 1018, 1020. These provisions are not an unambiguous expression of an intent to abrogate the Potawatomi Tribe’s preexisting treaty rights to the land. The language i s at least as consistent with Congressional intent to receive a quit claim deed f rom the Absentee Shawnees as with an intent to recognize or create a legitimate claim of ownership rights. Indeed, we agree with the district court that it is most logical to view the above provisions as conveying a quit claim deed rather th an as simultaneously granting and taking back an ownership interest.-21-

Our view is reinforced by the difference in treatme nt accorded the Potawatomi Tribe and the Absentee Shawnees elsewher e in the Act. The Act addressed the 1867 Treaty, and provided that if the Potawatomi Tribe had paid the government for the reservation land in accordance w ith the Treaty provisions and the government had retained the funds, the governme nt would pay that sum to the Tribe. See 26 Stat. at 1021. The Act also conferred jurisdic tion on the Court of Claims to hear and determine the question of paymen t for the reservation, as well as all questions between the Potawatomi Tribe and t he government relative to the Tribe’s accounts under various treaties. See id. These provisions, which are addressed to the Potawatomi Tribe and not to the Ab sentee Shawnees, clearly recognize the Potawatomi Tribe’s exclusive reservat ion rights and are inconsistent with the creation of any such rights in the Absente e Shawnees. Our view is confirmed by the legislative history of the Act, which states that “[t]he said Citizen Band of Pottawatomie India ns are now, and for more than twenty years have been, occupying a reservation in the Indian Territory . . . about 30 miles square, and containing an area of 575,870. 42 acres. This tract was selected by said Indians under the provisions of th e treaty of 1867 . . . .” H.R. Rep. No. 51-3481, at 1 (1891). Significantly, the Report describes the Absentee Shawnees as follows:

As to the Absentee Shawnees, it seems that some tim e about 1840 they left the main band then located upon the Shawnee-22-

Reservation in Kansas, and after roaming and huntin g for some time settled down upon some of the country embraced with in the limits of [the Potawatomi] reservation, where they have remai ned ever since. They were not there by any treaty or Executive orde r, but the Government has long known of their presence there. Id. at 2-3 (emphasis added). This description unambig uously reveals that Congress did not view the Absentee Shawnees as havi ng rights in the Potawatomi reservation, and it is hardly clear evidence of Con gressional intent to create such rights by passage of the Act. Nonetheless, the IBIA construed the 1891 Act and it s legislative history as evincing an intent to create reservation rights in the Absentee Shawnee, relying on the opinion in Shoshone Tribe of Indians , 299 U.S. 476, which the IBIA viewed as addressing analogous factual circumstance s. However, the historical facts upon which that decision was based are distin guishable in critical respects from those before us and the case is therefore inap posite. In Shoshone Tribe , the Tribe sued the United States for breach of a treaty granting the Tribe absolute and undisturbed use of reservation land. The Tribe all eged that this right had been breached when the federal government brought a band of Northern Arapahoes onto the reservation under military escort, establi shed schools for their children, irrigated their ranches, and indicated “their equal ity of right and privilege” “[i]n numberless other ways.” Id. at 488. The Court held that the Commissioner of Indian Affairs and Congress had acted “on the assumption that the occupancy of-23-

the Arapahoes, initiated, as we have seen, under mi litary escort, was permanent and rightful.” Id. at 489. Accordingly, the Court concluded that the Arapahoes obtained equal rights in the reservation as of the time they were placed there under military escort. Id. at 495-96. The affirmative acts by the government that the Cou rt found compelling in Shoshone Tribe are the very factors missing in the instant case. At most, the circumstances surrounding the 1891 Act reveal that Congress was aware of the Absentee Shawnees’ presence on land that had been s et aside by treaty for the exclusive use of the Potawatomi Tribe. Absent any affirmative actions indicating an intent to legitimize that presence, however, mer e knowledge is simply not sufficient to abrogate the treaty rights granted th e Potawatomi Tribe. Moreover, the Court in Shoshone Tribe concluded that the government’s conduct from the outset of the Arapahoes’ occupancy indicated a Cong ressional intent to recognize their claim of rights in the reservation as of thattime. See id. at 495. Here, to the contrary, the ICC ruled that the government’s c onduct up until July 25, 1890, did not establish such a claim of right on behalf o f the Absentee Shawnees. We find no support for the IBIA decision in Shoshone T ribe

. In sum, we conclude that the language, legislative history, and historical circumstances of the 1891 Act do not evince a suffi ciently clear Congressional intent to abrogate the Potawatomi Tribe’s treaty ri ght to the exclusive use and-24-

occupancy of its former reservation. The Secretary is therefore required under its own regulations to obtain the consent of the Potawatomi Tribe before acquiring such land in trust for the Absentee Shawnee Tribe. The judgment of the district court is AFFIRMED.