Fire Starter
Jimmie Oyler’s white tent is stocked with Little Dynamite firecrackers, Road Rage artillery shells, rolls of 16,000 Black Cats, Star Spangled Cannons and other celebratory explosives, all lining a 40-foot table. There,”
Along 83rd Street just west of the Lenexa city limits, where the lush sod and lawn ornaments of suburban farmettes border cornfields with stock tanks, a half-dozen banner signs lure drivers: “Fireworks sold here by the United Tribe of Shawnee.” Not just because it’s the Fourth of July, either: “Sales available all year long.”
Just off the gravel parking lot, though, another sign bears a warning:
“State, county and city officials on-duty not allowed and will be in trespass — Off-duty officials welcome.”
Selling fireworks is illegal in Johnson County. But for a long time now, Jimmie Oyler has been arguing that his 20 acres are not in Johnson County. After all, the Shawnee Tribe settled in the area before Johnson was a county, before Kansas was even a state.
“Johnson County is sitting on our reservation,” Oyler says. “They are the ones that are trespassing.”
Yet Oyler has had to fight for his treaty-granted rights to sell fireworks and cigarettes. “They use taxpayer money to keep throwing you in court,” Oyler gripes. “They are racist bastards is what they are.”
Assistant Johnson County Counselor Robert Ford says it was nothing personal. He just thought Oyler was subject to county regulations two years ago when he dispatched the county building administrator to write Oyler a ticket. Apparently he was wrong.
In March, Johnson County District Judge Thomas Bornholdt said the same thing Oyler had been saying for three decades — the county has no authority over his hills and trees.
Jimmie Oyler finally won.
Oyler can sell fireworks. He can remodel his house without a permit. He can open a no-holds-barred strip club. “We could build a skyscraper. We could build a school. We could build a lake,” Oyler says.
He could build a 300-foot sculpture of a hand with its middle finger extended. The county couldn’t stop him.
Beyond the field near the water tower, a couple of miles west of Kansas Highway 7, Oyler spends his days trading discounted cigarettes for money — $1.50 a pack, $15 a carton. “The price includes federal and tribal tax,” reads a sign on the wall. “Cash only.”
Subtract the Kansas sales tax, and Oyler sells a carton of smokes as low as the cheapest generics. And these are good cigarettes, he’ll tell you. G-Smoke is made by Star Tobacco and has fewer additives than the name brands. Check out its Web site.
The prices draw a steady flow of nicotine addicts into the tan, panel-board outbuilding Oyler put up himself. They pick by color — red, gold, green or white — and by pack, box or soft. The box is better when you are working in the woods, Oyler says. The cigarettes don’t get so soggy from sweat.
“What’s he been smoking?” he asks a woman who is buying for her husband.
“The cheapest,” she answers. “He’s trying to quit.”
Oyler produces a carton of lights, offering to trade her for regulars if her husband doesn’t like them. If he’s been smoking awhile, he won’t want the ultra lights, Oyler explains. “I got to chew one if I smoke them.”
Regulars load up. One woman, buying for her coworkers at the plant, walks out with a rainbow assortment of 25 cartons. An older man drops by, making a similar run for his friends at the senior home — who are doing fine, he assures Oyler.
Sidearm at his hip, Oyler steps around his old Chihuahua as he pulls stock from adjustable shelves and slaps the cartons down on a salvaged bar top. Decorating the inside of Oyler’s smoke shop are framed Native American prints, a couple of bull skulls (one with an arrow poking through it) and a bulletin board papered with his customers’ business cards.
“Between Lyme disease, West Nile and the goddamn monkeypox, I don’t know what the country is coming to,” he tells one man.
To another, he bemoans the plight of a mutual acquaintance who is still drinking at the VFW, despite his doctor’s objections.
“He’s not looking too whuppy,” the customer says.
“He’s going to do himself in,” Oyler agrees.
“We’ll bury him when he does.”
Oyler can expound on world issues as well. He claims to read fifty online newspapers a day while keeping his eye on a mounted television tuned to CNN.
In Johnson County, Oyler is known for his longtime antagonism of local and state officials. He doesn’t just bombard them with political commentary in caustic e-mails; he’s been to court dozens of times, insisting on his treaty-granted rights and fighting off governmental efforts to regulate him.
His victory in March made him a little more legit.
Oyler was born in 1932. He grew up in northeast Oklahoma counties with names like Cherokee, Pawnee and Osage. In small towns, his dad taught high school math and science; his mom was the home ec teacher.
Constantly in trouble at school, Oyler and his friends retreated into the woods, where they shot rabbits and possums. Squirrels got branches blasted out from under them, the stunned animals falling unconscious to the ground, where the boys could dispatch them bloodlessly with conks to the head.
When he was fifteen, Oyler’s parents agreed to let him join the Oklahoma Army National Guard. Oyler had been inspired by seeing the 45th Infantry Division’s wartime convoys stirring up red dust as they rolled down the highways. Besides, joining the military was just something you did out of patriotism and family pride.
“That was the way you was brought up,” Oyler says. “You gotta do it. You can’t let guys like Hitler and Stalin and Mussolini and Tito and Saddam…. You can’t have guys like that.”
Oyler volunteered to serve in Korea and spent nine months in a field artillery unit. “I was so mean, had I been captured they’d either have to kill me or let me go,” he says.
Oyler returned to Oklahoma in June 1952, a combat veteran at nineteen. He enrolled in the forestry program at Oklahoma A&M University, hitching to California and Idaho to fight forest fires during the summers.
One day in the student union, a Navy recruiter’s model-airplane display caught his eye. He remembered how he’d envied the pilots flying over Korea, knowing they were going back to warm showers. The model planes were like the ones he’d tossed from the top of Oklahoma oil derricks. He asked if he could have one. “Not only will I give you a model airplane — I’ll teach you to fly,” the recruiter responded.
He spent twenty years in the Navy, skimming 100 feet over the North Sea surface, looking for the subtle wake of a Soviet submarine periscope and patrolling the Arctic for Russian Bear bombers that dared cross into U.S. airspace. All the time, Oyler imagined the wooded hills of Johnson County, Kansas, a slice of land his grandmother had told him about but he’d never visited. A little less than 100 acres. The property had briefly been home to Oyler’s great-great-great-grandparents, Newton and Nancy McNear, assigned to them by treaty in 1854.
Oyler’s great-grandmother had been orphaned at age twelve, when her mother was killed in what Oyler calls an “Indian uprising” during a visit to Oklahoma. His grandmother married a railroad worker, but she stayed in touch with her tribe.
“Our ancestors fought and died for this fucking land,” Oyler says. “My family had always told me about it. They wanted me to come back.”
Retiring from the Navy in 1975, Oyler went straight to Johnson County, intent on reassembling his grandmother’s tribe, the tribe of the McNears, the tribe of great Shawnee leader Tecumseh.
By that time, though, the tribe existed only in history books. Historians can’t be sure how many Shawnee lived in America, but there were thousands, maybe tens of thousands. Remnants of their villages have been found in every state east of the Mississippi River and in Canada.
By the 1600s, they had become concentrated in the Ohio River Valley in what is now Ohio, West Virginia and Pennsylvania. During the middle 1600s, struggles over control of the fur trade prompted the British-supplied Iroquois to fight their way into the valley, scattering the Shawnee to the Carolinas, Tennessee, Illinois and Pennsylvania. A hundred years later, the tribe had drifted back, but by then European settlers were pouring over the Appalachian Mountains to claim land for farms and homes.
The Shawnee fought alongside the British during the American Revolution. One group of Shawnee, called Black Bob’s Band, moved west in 1793, seizing on a Spanish offer of 625 square miles around Cape Girardeau, Missouri. Others stayed east, opposing the French in the French and Indian War and bargaining with other tribes in an effort to carve out territory. In the early 1800s, Tecumseh almost brokered an alliance of tribes in hopes of holding back the white tide, but he was killed in the Battle of the Thames east of Detroit in 1813.
Some Shawnee lingered in northwest Ohio, living on 173 square miles of reservation there. Others moved south to Texas’ Canadian River. The Missouri group remained, 1,400 strong. But Missouri Senator Thomas Hart Benton didn’t want them there and pushed a bill offering the Shawnee an immense tract of land if they’d move west of his state. The resulting 1825 treaty awarded the transient natives 1.6 million acres stretching 120 miles into what was then known as the Great American Desert.
Six years later, the Missouri Shawnee were joined by about 400 of their Ohio brothers. The treaty of 1831 promised the Ohio Shawnee 100,000 acres, “two hundred blankets, forty ploughs, forty sets of horse gears, one hundred and fifty hoes, fifty axes, and Russia sheeting sufficient for fifty tents.” In addition, the government would provide a sawmill and a grist mill, “built in the best manor,” along with $13,000 and a “guarantee that said lands shall never be within the bounds of any State or territory, nor subject to the laws thereof.”
The treaty was “as strong a treaty as was ever signed by any tribe in the United States,” says John Ragsdale Jr., a UMKC law professor who has helped Oyler make some of his legal arguments.
But settlers were discovering that the Great American Desert could be farmed. So in 1854, the Shawnee were pressured to sign another treaty, giving up the 1.4 million acres for $829,000. This time, though, most of the property went to individual owners — 200 acres a person — rather than to the entire tribe.
The Shawnee tried to make it work. Historically hunters and gardeners, they made good farmers. Like their white neighbors, they built log cabins and plowed the Kansas sod. They opened businesses.
Newton and Nancy McNear claimed 500 acres of timbered hills and flat bottomland blessed with a couple of springs. Federal records called it Lot 206.
Instead of being an oasis, McNear found himself at a crossroads. Northeastern Kansas erupted from a settler’s highway into a battleground. McNear and his fellow Shawnee were besieged by night riders, bushwhackers and jayhawkers warring over the questions of slavery and states’ rights.
Perhaps more damaging, though, were the bureaucrats and businessmen who illegally taxed the Shawnee on their property or negotiated rock-bottom purchase prices.
As part of the treaty, the feds had agreed to act as trustee for the land and to ensure that no one took advantage of the Indians. The government did a poor job, Ragsdale says, and allowed Indians to sell their land for an average of six cents an acre.
“By 1869, almost all the Shawnee sold, abandoned or had been swindled out of their allotments,” Ragsdale says. One at a time and in groups, the Shawnee traveled to Oklahoma, where they cut a deal for honorary membership in the Cherokee Tribe. But back in Kansas, the McNears never sold 94 of their acres. No one knows exactly why. “Too mean,” Oyler figures.
The surrounding terrain offers one clue. Oyler’s property is a steep slope divided by a ravine. Across 83rd Street to the north, the land levels out. Farther west, it eases into fertile bottomland. By comparison, Oyler’s stake is a poor piece of real estate.
But it was beautiful to him. And when he and his wife and son parked their trailer on the remnants of Shawnee Indian land, Oyler says, they became the tribe mentioned in the 1831 treaty — the United Tribe of Shawnee Indians.
Yes, its members moved to Oklahoma. Yes, they agreed to move in with the Cherokee. And yes, there may not have been a single Shawnee living in Johnson County. But as far as Oyler is concerned, the tribe never left.
“A tribe can have every member dead and deceased and still be a tribe,” he argues.
He knew he wasn’t necessarily welcome. “The neighbors ’round here thought I was trespassing,” he says.
Oyler had income from his military retirement, but he worked as well, first selling irrigation equipment and then designing generators for Burma Oil Company. In his off hours he designed and built a house set into the hillside.
Then he built Shawnee Jim’s Indian Country Smoke Shop.
He started selling the tax-free cigarettes in 1988, ignoring the Kansas Department of Revenue’s orders to stop. So in January 1990, the state raided Shawnee Jim’s. Agents seized business records, cash, and 8,888 cartons of tobacco and arrested Oyler. He was convicted of misdemeanor possession and sale of untaxed cigarettes, sentenced to 180 days in jail and ordered to pay a $2,000 fine. The jail time was later reduced to two years’ probation.
In response, Oyler drove his pickup to the Kansas Court of Appeals in Topeka to argue that the state had no jurisdiction over his property. He claimed that when Congress gave the state of Kansas criminal authority over the Iowa, Sac and Fox, Kickapoo and Potawatomi tribes, that action didn’t apply to the Shawnee. The court didn’t agree.
Oyler turned to federal court with the same argument. He lost at both the federal and appellate levels. But with his defeat came validation. “There is no evidence … that the 1869 merger of the Shawnee and the Cherokee altered any rights vested under previous Shawnee treaties,” 10th Circuit Court Judge David Ebel determined.
Ragsdale explained the decision in a UMKC Law Review article. The 10th Circuit “had clearly concluded that Shawnee treaty rights were still alive, that they embraced Lot 206, and that Jim Oyler was a proper party to raise them.”
The ruling convinced Oyler that he was not subject to the civil laws of the state of Kansas or of Johnson County. In 1994, he tried to get a federal court to hear his complaint about the cigarette raid again, but the statute of limitations had run out.
Oyler also turned to the state, telling the Kansas Board of Tax Appeals that he didn’t have to license his cars. The Kansas Board of Tax Appeals thought otherwise, saying Oyler did not merit the same treatment as the Sac and Fox, the Iowa and other, larger Kansas tribes because he was not a federally recognized tribe with an organized tribal government. The Kansas courts agreed.
Oyler decided that if the state said he needed a tribal government, he’d give it one. That Christmas, eight of his relatives elected him principal chief. Then Oyler set to work on a tribal constitution, even though he wasn’t particularly interested in having one.
“Who the fuck needs a constitution? That’s white man’s way,” Oyler says.
In this case, the tribal way hasn’t been any easier for Oyler. The Shawnee who joined the Cherokee in Oklahoma believe they’re the ones who have authority over Lot 206.
“This thing will twist your mind greatly,” says John Todd, a Wichita real estate broker who is one of the McNears’ great-great-grandchildren.
Like Oyler, Todd had long heard about the ancestral property in Johnson County. He’d visited it as a child during family reunions and, later, just for fun. It was during one such visit with his brother and father in 1978 that Todd bumped into his distant cousin Jimmie.
“Lo and behold, we found Jimmie Oyler had started occupying the land,” Todd says. “His mother wasn’t even dead then. Jimmie wasn’t an heir.”
Todd says the land came close to selling once in the mid-1960s, when his uncle, Paul Todd, got the signatures of all the surviving heirs — except one. Todd says a relative of Oyler’s refused to sign, objecting to the sales commission for an attorney who had helped put together the deal. Over the next couple of decades, the ownership fragmented further, among fifty to sixty other people spread out from California to Georgia, from Texas to New Jersey.
Todd resolved to do something about it. Ultimately, he turned to then-U.S. Senator Bob Dole, who sponsored a bill that would allow the partition and sale of Lot 206 and two other tracts in Kansas. The bill passed in 1982, and President Ronald Reagan signed it into law. That didn’t mean anyone bought it, though.
Ten years later, in 1992, Oyler went to federal court to get ownership of Lot 206. Armed with the law Todd helped pass and Kansas law of adverse possession, Oyler argued that he had been occupying the land for eighteen years and, therefore, had earned the right to own the property. In addition, he’d negotiated with a few of the other heirs for their shares.
“By this time, he felt like he was the only one who had done anything, and he basically was trying to protect his own interest,” Todd says.
Todd and a group of heirs hired their own lawyer, Kip Kubin, with financial backing from Butler National Corporation of Olathe, which manufactures airplane parts, modifies aircraft and wants to manage Indian casinos. Company officials told Todd they wanted to build a casino there. “They fronted the money for our group to fight this thing in court,” Todd says.
The Butler proposal included startling projections of wealth. Even Todd’s 4 percent share would have been significant. “Our family would get ten million a year,” he says. “Four percent of that is a nice chunk.”
Oyler represented himself in court. “He did an amazingly good job for not having any legal training,” Kubin says.
The judge agreed to divide the land. The court gave Oyler 20 acres, but the other 70 remained with the other heirs, including Todd. Oyler was disappointed that he had received so little land, but Todd sees the situation differently.
“Jimmie has been the big winner,” Todd says.
But while Oyler was waging legal battles with the remnants of the McNear family and with the state of Kansas, the Oklahoma Shawnee tribe was pursuing its own agenda.
In 2000, the tribe’s work paid off when Congress passed a bill separating the Shawnee from the Cherokee for the first time since 1869. The bill gave the Oklahoma Shawnee instant credibility, with a place on the Bureau of Indian Affairs’ list of federally recognized tribes. With such recognition came the ability to govern Lot 206, says Greg Pitcher, a spokesman for the tribe.
For the time being, Pitcher says, his tribe has no interest in policing Oyler’s business, nor are its members much bothered by his claim to be chief. “We think when the time is right, there won’t be a problem as far as resolving who does have jurisdiction,” Pitcher says.
Pitcher and the Oklahoma Shawnee have more pressing concerns. “As a restored tribe, we need to restore our land base,” he says.
The Oklahoma Shawnee have a good idea of how they can do it. They plan to take over the Sunflower Army Ammunition Plant near DeSoto. Federal laws allow Indian tribes to make claims on unused government property. The motion is pending; hearings should begin sometime this fall.
Oyler was making the same claim to Sunflower as early as 1997, an argument that eventually grew tangled in the legal brambles surrounding a proposed Wizard of Oz theme park at Sunflower. UMKC’s Ragsdale and one of Ragsdale’s law students, Sean Picket, believed that the federal government had done a terrible job as trustee of the property allotted to the Shawnee who relocated to Kansas in the 1800s and that approximately 6,000 of Sunflower’s 9,000 acres were part of the Shawnee land. Now that the U.S. government no longer needs the land, it should be returned to the tribe.
A federal court refused to hear Oyler’s case because he was not a member of a federally recognized tribe. “In order to exert jurisdiction, you must be federally recognized,” Pitcher says. “It’s hard for Mr. Oyler to exert jurisdiction over it until he gets the federal government to recognize him as an Indian tribe.”
Oyler has applied to the BIA for recognition, a process renowned for its difficulty. Hundreds of groups of Indians have applied for such status; once they’re considered official tribes, with their own governments and sovereign lands, they can pursue the possibility of casino riches.
The Oklahoma Shawnee, however, might have a solid case for their claim to Sunflower. “That tribe has some real recognition and some real standing,” says Assistant Johnson County Counselor Ford. “They probably have a claim to Sunflower if anybody does.”
The Shawnee argument had enough merit to get the attention of Kansas Attorney General Phill Kline. In May, he told the Johnson County Commissioners that he would fight to keep the property from being turned over to the Indians, because he feared it would lead to a Johnson County casino.
Until Johnson Countians bathe in an all-night neon glow, enjoy the clanging of slot machines and dine on endless supplies of peel-and-eat shrimp, though, there’s the sound of the cash register in Jimmie Oyler’s outbuilding and tent.
Three years ago, County Building Official Jerry Mallory heard that Oyler and his son were running a fireworks stand. On June 29, 2000, Mallory was just enforcing the county ordinance against selling fireworks. He had no idea he was trespassing on the sovereign land of a self-proclaimed tribal chief — and his son.
“I was really looking for Jimmie Sr. and stumbled upon Jimmie Jr.,” Mallory says. “He just got very upset, and he said we had no right to be there and no right to do that.”
Mallory drew his cell phone to call the sheriff for support, but Oyler’s son knocked the phone out of his hand, Mallory says.
“He went inside and got a handgun and waved it around. He was mad. He didn’t shoot me, so I’m pretty happy,” Mallory recalls. “Looking back, maybe I should have mailed the citation to them.”
Johnson County prosecutors charged Oyler’s son with battery and property damage; he eventually paid a $100 fine for disorderly conduct.
The next year, county officials sent a sheriff’s deputy to serve the papers. Oyler’s son told the deputy that he had no right to be there. He closed one of the gates to the parking lot, and the deputy called for backup.
Oyler arrived and was opening the gate when another cruiser pulled up, slid in the gravel and bumped the gate. The impact threw Oyler across the parking lot.
Oyler and his son received $1,000 fines for the fireworks. The younger Oyler earned a charge for assault and interference with service of process. That case is still pending.
The Oylers appealed the fireworks convictions.
Defending itself in an Olathe courtroom on December 6, 2002, the county questioned Oyler’s legitimacy. “I argued there was no federal Indian tribe,” Ford says. “The [United Tribe of Shawnee Indians] is not really a tribe. He just made it up. The real one is down in Oklahoma.”
On March 14, District Judge Bornholdt ruled for Oyler.
He didn’t say that Oyler was an Indian chief or that the United Tribe of Shawnee Indians was even a tribe. He simply ruled that as federal trust land, Lot 206 is special and outside the civil jurisdiction of the county.
Ford decided against an appeal. “We had to make a decision on whether we had a decent chance of getting it reversed on appeal and thought no, we probably didn’t.”
In the unlikely case that he hasn’t sufficiently worn down the county’s opposition, Oyler has plenty of ammunition. Next to his tent is a mobile home filled to its 7-foot-high ceiling with pyrotechnics. Oyler and his son aren’t going anywhere. The fireworks and tax-free tobacco sales will continue all year.
“We are a United States treaty tribe. The treaty was negotiated with the president, ratified by the Senate, confirmed by the U.S. Supreme Court and the BIA’s own records,” he says.
“The big stick has just hit. Now they don’t know what the hell’s up.”
