Well said! For more, see Economic Impact, or our page on Problem Gamblers.

The Prairie Band in 2022

The tribe is back with a new proposal. This time they will try to get Congress to authorize a "replacement" reservation, still in the area. This is spelled out in S.3242, recently introduced by Sen. Jerry Moran (R, Kansas). The tribe would buy up to 1151 acres of land on the open market, somewhere (their choice) between IL 23 and I-39, and between I-88 and US 30 / Preserve Road. The land would then automatically and immediately become eligible for a casino. The tribe would also receive a large cash payment; the first installment would be $10 million.

This would bypass all the historical debate, and the Dept of the Interior's Land-into-Trust process.

One benefit -- maybe the only one -- is that the casino that would eventually be built might not be quite so close to Shabbona Lake State Park.

However, the tribe is pushing this as an alternative to litigation to "reclaim" their 1832 land. But that's not an actual option: as we have shown in our extensive documentation at the left, the US government made a finding in 1848 that the land had been abandoned, or would soon be abandoned, and abandonment was quite sufficient to extinguish Shab-eh-nay's "for the use of" title. There was never a reservation, and thus no reservation title that would have taken an act of Congress to extinguish. In 2020, in McGirt v Oklahoma, the US Supreme Court ruled that some Oklahoma tribes did still hold reservation title, but that was a completely different historical situation.

This new Prairie Band proposal is still a bad idea. First, justification for S.3242 still relies on the discredited claim that the deal would be a settlement for a lost reservation.

Second, gambling is still bad for our community. Money would be pumped out of DeKalb and surrounding counties and teleported to Kansas. Tribal gambling would bypass Illinois laws intended to protect citizens, such as the limits on hours of operation (a tribal casino would never close) and protections for self-registered problem gamblers.

And third, this law would set a terrible precedent. There are over 500 tribes in the US, and as soon as the law was passed they would all be clamoring for similar remote casinos. And, ironically, they would all argue that they were just as entitled, because there was no Shab-eh-nay reservation. The Catawba tribe of South Carolina got just such a law passed in 2022. It's time to say no.

Casinos aren't Entertainment

A question keeps coming up: how is a casino different from Wal*Mart? Both pay lower-wage salaries, and both take dollars out of the community.

The difference is that you go home from Wal*Mart with things that you've bought. You leave a casino with, in the long run, nothing.

You also leave the movies with nothing, though, and the casino industry has long tried to claim that they to offer "entertainment". But this is a myth; most people go to casinos because they hope to win (and they spend there a heck of a lot more than they would on movie tickets, too). Casinos do whatever they can to encourage this hope, but, ultimately, they give the lie to it: in the long run, the casino is the only winner.

To put it another way, every other form of entertainment -- movies, dining, cable TV, shows, etc -- has a fixed upfront cost. Gambling? If you gamble $10, that's what you spent on "entertainment". Likewise $100. Gambling expenditures don't come in set units. It is not like buying anything else; in particular, it's not like spending your money on true entertainment.

Land Into Trust, 2015 version

Back in 2007, the Prairie Band tried to argue that their Shabbona land was still a reservation. This claim went nowhere with the National Indian Gaming Commission.

Now in 2015 they're trying a different strategy: they are asking the Department of the Interior to take the land into trust for a casino. This time they don't need to prove the land is part of a reservation. Here's the relevant part of the Indian Gaming Regulatory Act:

... gaming regulated by this chapter shall not be conducted on lands acquired by the Secretary in trust for the benefit of an Indian tribe after October 17, 1988, unless ...

(A) the Secretary, after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary’s determination

But there's also a twist: because the Prairie Band no longer needs to prove the land is part of a reservation, they are no longer tied to their Shabbona property. They could just as easily build their casino somewhere else, say, closer to Chicago. That would mean that their economic impact was spread over a much larger population. It would also leave the Shabbona natural areas undisturbed.

The first step would be to have the land taken into trust by the Department of Interior, either under the so-called on-reservation or off-reservation acquisitions rules (most likely the Prairie Band will argue the former).

However, to open an off-reservation casino the PBPN will need to demonstrate that their project will not harm the interests of the local community.

We, however, believe the local community will be harmed. Look at a map. Where will the customers come from? Our big neighbors to the east and west already have casinos. See our Economic Impact analysis, and our discussion of the impact on Problem Gamblers.

The 2007 reservation claim

The Prairie Band Potawatomi Nation (PBPN) has purchased 128 acres outside of Shabbona, which is part of a 1280-acre allocation made for Chief Shab-eh-nay in 1829. The Nation has long claimed that this property still has status as a reservation. If that is true, the Nation would be able to open a Class-II casino on the property.

While we welcome our new neighbors, their reservation claim is far from clear. DCTAC firmly believes that no reservation exists. This question is currently before the National Indian Gaming Commission; everyone involved agrees that it is up to the federal government to answer it. DCTAC also believes, regardless of the reservation status, that all legal rules and regulations should be followed; we are committed to resisting claims that the Nation can rekindle its ancient sovereignty without due process.

In the 1829 Treaty of Prairie du Chien, the combined nations of Chippewa, Ottawa, and Potawatomi ceded to the United States much of northern Illinois, thus giving up their "aboriginal title" to the land. This treaty also provided that 1280 acres was "reserved, for the use of" Shab-eh-nay and his band. In the early nineteenth century, "reserved" simply meant "held back"; property that was "reserved" for a tribe or band was simply property that was being excluded from a larger area ceded to the United States. Such reserved property, soon referred to colloquially as a "reservation", represented a hole in a larger treaty-recognized "cession"; the land "reserved" for Shab-eh-nay was an exception from the large northern-Illinois cession.

By the middle of the nineteenth century, the word "reservation" also came to denote parcels of land for which a tribe was awarded what is known (both then and now) as treaty-recognized title; that is, allocations for which tribal ownership was formally recognized by the United States. The word "reservation" can thus refer to land for which a tribe held treaty-recognized title, or to land for which a tribe held only the much weaker aboriginal (or Indian) title; the first usage is the most common.

And here is where the PBPN's reservation claim begins to break down. In order for the PBPN's rights still to exist after 160 years of abandonment (voluntary or not), it is essential that the tribe have treaty-recognized title. However, in 1833, United States Attorney General Roger Taney issued an opinion that reservations of Shab-eh-nay's type, above, representing holes in larger cessions,did not create treaty-recognized title. Tribes held only their aboriginal title to such "reserved" parcels, and that title does go away if abandoned. (Due to the confluence of two treaties of 1816 and 1825, Chief Shab-eh-nay did not even hold aboriginal title to his land.)

Neither the PBPN nor its historian, James McClurken, has presented any evidence that the critical treaty-recognized title was ever awarded or was intended to be awarded. And aside from the Taney opinion, there is additional compelling circumstantial evidence that the authorities of the era did not believe they were creating treaty-recognized title.

Taney's opinion was echoed by a succession of federal officials: TH Crawford in 1843, Wm Medill in 1848, Chas Mix in 1853 and 1854, and the House Committee on Indian Affairs in 1856. It was Medill's 1848 opinion that declared the Shab-eh-nay property abandoned, and thus that the aboriginal title was extinguished. The PBPN has worked hard to portray Medill as careless and ignorant, but in fact he was quite aware of Taney's opinion and its subsequent interpretations, and he had compelling documentary evidence of Shab-eh-nay's intent to abandon his parcel.

Shab-eh-nay left his DeKalb home in 1849. When he returned four years later, he discovered that his parcel had been declared abandoned and sold to settlers. However, the reason the land was declared abandoned was not the Chief's prolonged absence; it was because he had signed deeds before he left agreeing to sell the land to the Gates brothers. Medill interpreted these attempted sales as evidence of intent to abandon, and, under a widely understood legal principle, abandoned Indian lands without treaty-recognized title reverted to the United States. When Shab-eh-nay hired attorneys in 1854 to argue his case, he acknowledged selling the land and asked only for the sale proceeds due him.

The 1829 treaty allocated the land for "Shab-eh-nay and his band". Despite the inclusion of the band, some officials of the era appeared to treat the allocation as for Shab-eh-nay alone. His band left Illinois in 1837. Regardless of whether one chooses the individual or the communal interpretation, the land was abandoned and the right to use ended.

Particulars about the nature of title might seem unfair to Chief Shab-eh-nay, and in fact there is a general federal rule that treaties are to be interpreted "as the Indians understood them". However, this doesn't help the PBPN's case at all, as it is well documented that Shab-eh-nay himself understood that the land was being granted to him personally, and thus was not a reservation in either sense of the word.

Many of these facts come from the Lynch reports, available at left under "NIGC submissions". Our 2007 BIA filings are now online, here and here, or see the "BIA submissions" menu item at left.