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Tribal sovereignty is not necessarily a function of land area, population size or competitive significance. The essence lies in the freedom to make or recognize rules and principals of personal conduct and social order. This essential liberty springs from the community between particular people, their past, future and their sacred land base. The legislative history of the Federal Recognized Indian Tribe List Act of 1994 states that recognition of a tribe is critical, not just to the tribe's interests, but to the legitimacy of federal power, as the Constitution empowers Congress to legislate only with respect to Indian tribes rather than mere individuals. Since the promulgation of the recognition regulations in 1978, tribes have on a number of occasions attempted to secure or affirm rights or recognition without proceeding through the uncertain labyrinth of the BIA's administrative process. One general approach has been to seek a judicial declaration from the federal district court that the tribe has already been recognized by previous legislative, executive or judicial decision, thus, the tribe deserves to be included in the list of recognized tribes without further administrative process. Another approach has been to assert that certain rights do not depend on formal administrative recognition and can flow from a judicial determination of tribal status. Such contentions have involved several procedural and substantive issues. This article analyzes such issues as it documents the United Tribe of Shawnee Indians' (UTS) claim for a declaration of federal recognition in Johnson County, Kansas.

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University of Missouri Kansas City Law Review





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