DCTAC response to the John Leshy DOI memo of 2001

On January 18, 2001, Department of the Interior official John D Leshy wrote a letter to then-Illinois-governor George Ryan and then-Illinois-congressman Dennis Hastert, in response to the Prairie Band's request from the Prairie Band Potawatomi to “review the Band's claim” to the Shab-eh-nay site. Famously, Leshy wrote that the “Prairie Band has a credible claim for unextinguished Indian title to this land.” Ever since, this letter is trotted out as an official DOI finding in favor of the Tribe.

But it is not that at all.

First, Leshy seems to still believe that the 1829 Treaty of Prairie du Chien created “reservation title” to the land. This idea has, however, been thoroughly debunked: allocations of land “for the use” of a tribe have never been treated as having treaty-recognized title. The boundaries of the land were not even identified in the 1829 treaty. Other treaties that have created genuine reservations use language like the word “grant”, and “permanent”, and specify the boundaries. The 1832 opinion by Attorney General Taney also spelled this out. No nineteenth-century federal official thought this “for the use” language created permanent title.

Second, “credible” does not mean that Leshy or anyone else necessarily thought the claim was actually valid; it should be read as a synonym for “maybe plausible”, which, in this context, means absolutely nothing. If Leshy thought the land might have been a reservation, then, yes, the claim is “credible.” But while the Tribe's claim might be “credible”, the State of Illinois' counterclaim is also “credible”. Leshy does not say that he believes the Tribe's claim is correct; his letter is entirely devoid of any actual findings.

Third, Leshy writes “there is evidence that Chief Shab-eh-nay tried to regain possession of these lands before his death....” We are aware of no such evidence. Shab-eh-nay signed deeds intended to sell the land. Shab-eh-nay had his attorneys Paddock and Ward write to the federal government in 1854 to try to get the full amount of money he was owed; there was no attempt to regain possession. In July 1855 Shab-eh-nay grants Power of Attorney to one James Sheahan of Chicago to “obtain any and all sum or sums of money – that may be due me – on account of my relinquishing to the said Government two Sections of land owned by me....”

Fourth, Leshy's letter was dated two days before the inauguration of George W Bush. Leshy knew full well that neither he nor any other senior Interior officials would continue to be in office, and that his letter would never have any official consequences. This makes it a purely political letter; it represents a weakly researched parting shot from the Clinton administration. Such parting shots are not uncommon in Washington; they are mostly ignored.

Finally, Leshy acknowledges in his final paragraph that “litigation to vindicate this claim is necessarily uncertain.” No kidding. He is, overall, advocating for a financial settlement in lieu of litigation. But giving away Shabbona Lake State Park is another matter entirely; the park is irreplaceable.

Leshy is wrong about the reservation status of the land, and he is wrong about Shab-eh-nay trying to regain possession. It's time to put this letter to rest.

DCTAC