If Kansas transfers the Shawnee Indian Mission to the Shawnee Tribe, can the state still enforce a no-gaming restriction?

Plain-English summary

A state representative asked about 2025 House Bill 2384, which would let the Kansas State Historical Society transfer the Shawnee Indian Mission in Fairway to the Shawnee Tribe, subject to restrictions written into the deed, including a ban on using the site for gaming or gambling and a historical preservation easement. The question was whether those restrictions could actually be enforced against the Tribe once it owned the land.

The Attorney General explained that federally recognized tribes like the Shawnee Tribe have broad sovereign immunity from lawsuits in both state and federal court, covering conduct on and off tribal land and reaching even suits brought by a state itself. That immunity can only be overcome two ways: Congress abrogating it, or the tribe itself clearly and unequivocally waiving it. The bill as drafted has the Tribe "agree" to the restrictions but says nothing about waiving immunity, and courts have consistently held that an agreement to abide by conditions, without an explicit waiver, is at most an "implied" waiver, which is legally no waiver at all. So if the Mission is transferred without the Tribe separately and explicitly waiving immunity, the Tribe could invoke that immunity to block any lawsuit trying to enforce the deed restrictions. The opinion noted the bill gives the Attorney General discretion to review and approve the deeds and conveyances, which creates an opportunity to condition that approval on securing an actual waiver.

What this means for you

Legislators and bill drafters working on HB 2384 or similar tribal-transfer legislation: the opinion holds that restrictive covenants in a deed to a sovereign tribe are unenforceable unless the tribe explicitly and unequivocally waives immunity from suit; simply having the tribe "agree" to conditions in the bill's text does not accomplish that.

Kansas State Historical Society and Attorney General's office staff reviewing the deed and conveyance: the opinion signals that the discretion to approve deeds and conveyances under the bill is the practical point at which an explicit sovereign-immunity waiver could be required as a condition of approval.

Common questions

Can Kansas make a tribe waive its sovereign immunity just by passing a state law?
No. The opinion explains that a state legislative measure cannot unilaterally waive a tribe's sovereign immunity; only Congress or the tribe itself can do that.

If the Shawnee Tribe agrees in writing to the no-gaming restriction, is that enough to enforce it later?
Not by itself, according to the opinion. Courts require a waiver of sovereign immunity to be clearly and unequivocally expressed, not implied from an agreement to comply with conditions.

Are there any other ways to enforce the restrictions if the Tribe never waives immunity?
The opinion notes that tribal immunity does not bar lawsuits for injunctive relief against individual tribal officers responsible for unlawful conduct, but describes obtaining an explicit waiver as the most straightforward path to enforcement.

Background and statutory framework

K.S.A. 75-2701(a) generally authorizes the Kansas State Historical Society to acquire and dispose of historical property, and K.S.A. 75-2756 already authorizes the Society to transfer the related Shawnee Indian Cemetery to the Shawnee Tribe. 2025 House Bill 2384 would extend similar authority to the Shawnee Indian Mission itself, conditioning any transfer on deeds and conveyances reviewed and approved by the Attorney General and containing restrictive covenants such as a ban on gaming or gambling use.

Federal law treats federally recognized tribes as sovereign entities immune from suit absent a clear waiver or congressional abrogation, a doctrine the U.S. Supreme Court has applied broadly, including to suits arising from contracts and to suits brought by states in their own courts. The opinion applied that framework to conclude the bill's current text, which has the Tribe agree to restrictions without addressing immunity, would leave the restrictions unenforceable unless a separate, explicit waiver is obtained, most practically as a condition the Attorney General could impose when reviewing the deed and conveyance documents the bill directs to that office.

Citations and references

Statutes:
- K.S.A. 75-2701(a)
- K.S.A. 75-2756

Selected cases:
- Nanomantube v. Kickapoo Tribe in Kan., 631 F.3d 1150 (10th Cir. 2011)
- Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751 (1998)
- Michigan v. Bay Mills Indian Cmty., 572 U.S. 782 (2014)
- Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)

Source

• Landing page: https://www.ag.ks.gov/reports-resources/ag-opinions
• Original PDF: https://www.ag.ks.gov/home/showpublisheddocument/23874/638851706798730000

Original opinion text

June 10, 2025

ATTORNEY GENERAL OPINION NO. 2025-12

The Honorable Dan Osman
State Representative, 48th District
State Capitol, Room 451-S
300 SW 10th St.
Topeka, Kansas 66612

Re: State Departments; Public Officers and Employees—State Historical
Society—State Historical Society; Acquisition and Disposition of
Property

Synopsis: A recent bill in the Kansas House of Representatives, 2025 House Bill
2384, would authorize the Kansas State Historical Society to transfer
the Shawnee Indian Mission in Fairway to the Shawnee Tribe. Certain
restrictions would be included in the deeds and conveyances. If the
Mission were transferred to the Tribe, then the restrictions could be
enforced against the Tribe if it clearly and unequivocally waived its
sovereign immunity. Cited herein: K.S.A. 75-2701; K.S.A. 75-2756.

                        *               *         *

Dear Representative Osman:

As State Representative for the 48th District, you ask whether restrictions on the
use of the Shawnee Indian Mission in Fairway could be enforced if the Kansas State
Historical Society transferred the Mission to the Shawnee Tribe, a federally

recognized Native American tribe.1 Your inquiry is based on 2025 House Bill 2384,2
which would authorize such a transfer with certain restrictions (e.g., prohibiting
using the Mission for gaming, requiring a historical preservation easement).3 We
believe the restrictions would be enforceable against the Tribe if the Tribe clearly
and unequivocally waived its sovereign immunity with respect to these restrictions.

Federally recognized tribes are sovereign entities that possess immunity against
suits in both federal and state court.4 Their immunity is quite broad; it covers
conduct on and off tribal land, including conduct related to contracts,5 and it bars
suits brought by the States.6 The only two avenues through which this immunity
may be overcome are (1) abrogation by Congress and (2) waiver by a tribe.7 To be
effective, a tribal waiver "'must be unequivocally expressed'" rather than implied.8

HB 2384 provides that the Society may only transfer the Mission to the Tribe
pursuant to deeds and conveyances that are "reviewed and approved" by the
Attorney General and that, among other things, "contain restrictive covenants
prohibiting any gaming or gambling activities." The bill further asserts that the
Tribe "agrees" to certain conditions, including that the Mission "shall not be used as
a casino or other gaming facility." HB 2384 does not address tribal sovereign
immunity.

If the Tribe accepts the Mission without waiving sovereign immunity, then the
Tribe could invoke its immunity in response to suits over its use of the Mission. HB
2384, like any other state legislative measure, cannot unilaterally waive the
Tribe's immunity; only Congress and the Tribe may remove this impediment to

1 Should a transfer occur, the property's eventual status under federal law is uncertain. Accordingly,

we focus on the heart of your question: the enforceability of the restrictions against the Tribe itself.
2 The Committee on Federal and State Affairs has held a hearing on the bill, which has not received

a vote. See Kan. Legislature, HB 2384, https://perma.cc/PSK5-P4H2 (last accessed June 4, 2025).
3 If authorized, the Society may transfer the Mission to the Tribe. See K.S.A. 75-2701(a); see also

K.S.A. 75-2756 (authorizing the Society to transfer the Shawnee Indian Cemetery to the Tribe).
4 Nanomantube v. Kickapoo Tribe in Kan., 631 F.3d 1150, 1151-52 (10th Cir. 2011).
5 See Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 760 (1998); Somerlott v. Cherokee

Nation Distribs., Inc., 686 F.3d 1144, 1148 (10th Cir. 2012).
6 See Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 789 (2014) ("[T]ribal immunity applies no

less to suits brought by States (including in their own courts) than to those by individuals.").
7 Nanomantube, 631 F.3d at 1152; see also Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 546

F.3d 1288, 1293 (10th Cir. 2008) (recognizing tribal immunity "may only be overcome in one of two
ways"). Although there is a common-law "immovable-property exception" to sovereign immunity, the
Supreme Court has not yet found that it extends to tribes and, in any event, the exception would
likely not apply in a suit to enforce the restrictions because title to the Mission would not be in direct
dispute. See generally Cayuga Indian Nation of N.Y. v. Seneca County, 978 F.3d 829, 834-40 (2d Cir.
2020) (discussing exception and its inapplicability to tax foreclosure actions against tribe).
8 Nanomantube, 631 F.3d at 1152 (quoting Native Am. Distrib., 546 F.3d at 1293); see also Conf. of

W. Att'ys Gen., American Indian Law Deskbook § 7:18 (May 2024 update) ("As a general matter,
contractual waivers of tribal sovereign immunity should be as explicit as possible.").

suit.9 And even if the Tribe agreed to the terms in the bill, at most that would
amount to an "implied waiver" of sovereign immunity, which is no waiver at all.10

Although the bill requires that the deeds and conveyances contain certain
restrictions, there is no requirement that the Tribe waive its immunity from suits
designed to enforce these restrictions. Of course, a waiver could still be obtained
during the process through which the deeds and conveyances are formulated. HB
2384 vests the Attorney General with discretion to approve the deeds and
conveyances, which could be conditioned on a valid waiver.11 Otherwise, the
restrictions would be rendered meaningless were the Mission to be transferred.

Ultimately, if the Society transfers the Mission to the Tribe without obtaining a
valid waiver of sovereign immunity, then the Tribe could invoke its immunity in
response to suits over its use of the property.12

9 See Native Am. Distrib., 546 F.3d at 1293.
10 See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) ("It is settled that a waiver of sovereign

immunity cannot be implied but must be unequivocally expressed." (quotation marks omitted));
Nanomantube, 631 F.3d at 1153 (holding that "a tribe's agreement to comply with [federal anti-
discrimination law], without more," is not "an unequivocal waiver of tribal sovereign immunity");
Allen v. Gold Country Casino, 464 F.3d 1044, 1047 (9th Cir. 2006) (finding that although statements
by a tribe in its job application and employee handbook "might imply a willingness to submit to
federal lawsuits," there was no waiver because "waivers of tribal sovereign immunity may not be
implied"); Lorenzo E. Gudino, Who, What, Where, and How: The Fundamental Elements for
Contracts Implicating Tribal Sovereign Immunity, 2022 Wis. L. Rev. 239, 249 (2022) ("[A] tribe's
voluntary consent to enter into a contract does not implicitly waive tribal sovereign immunity.").
11 Depending on how the transfer is handled, such a waiver may require a "resolution of the . . .

Tribe's Business Committee" and approval "by the Chairman." Shawnee Legis. Acts § 10.20.020(B)
(2025) (available at https://perma.cc/J7RP-234C).
12 As previously noted, we focus on the enforceability of the restrictions against the Tribe itself given

the uncertainty over the Mission's eventual status (i.e., whether it would be taken into trust). That
said, there may still be other avenues through which restrictions could be enforced. The Supreme
Court has recognized that "tribal immunity does not bar [lawsuits by States] for injunctive relief
against individuals, including tribal officers, responsible for unlawful conduct," and also that in
certain circumstances, States may be able to use other tools to enforce their laws. See Bay Mills
Indian Cmty., 572 U.S. at 795-96. But, of course, the most straightforward method for ensuring
enforcement is obtaining a waiver of sovereign immunity. See id. at 796.

             Sincerely,

             /s/ Kris W. Kobach

             Kris W. Kobach
             Attorney General

             /s/ Adam T. Steinhilber

             Adam T. Steinhilber
             Assistant Solicitor General