VI. The Trigger: The 1846 Council Bluffs Treaty.
Although the earlier illicit attempt by Shabenay to sell the lands at Shabbona’s Grove to Ansel and Orrin Gates in December of 1845 failed, the 1,280 acres within the surveyed bounds of the Grove were not officially declared available for disposal at public auction until August 12, 1848. In a letter from the Commissioner of the General Land Office to the Commissioner of Indian Affairs dated July 14, 1849, the Commissioner stated,
…In connexion with this matter, you refer to the decision of the Indian Office of the 27th May 1848, stated in the transcript of a letter of that date to Mr. Wentworth, as communicated to my predecessor, in which decision it is held that “ as the lands referred to are no longer occupied by the persons for whose use they were reserved, that it is competent for the Commr. of the General Land Office to dispose of the same as other public lands of the United States.” I find consequently that under date 12 August 1848 these lands had been ordered into market…(emphasis added)
Was there another action that clearly eliminated any possibility that residual rights to the land at Shabbona’s Grove or anywhere else within the State of Illinois remained? The answer is yes. The June 5/17 1846 Treaty at Council Bluffs (ratified July 22, 1846)provided such an action.
The second article of the 1846 Council Bluffs treaty stated the following,
Article 2. The said tribes of Indians hereby agree to sell and cede, and do hereby sell and cede, to the United States, all the lands to which they have claim of any kind whatsoever, and especially the tracts or parcels of lands ceded to them by the treaty of Chicago, and subsequent thereto, and now, in whole or part, possessed by their people…It being understood that these cessions are not to affect the title of the said Indians to any grants or reservations made to them by former treaty.
One significant question arises from this article. What Chicago treaty is this article referring to? There were two involving the Potawatomi. The first was the treaty of September 26, 1833, the second was the Chicago treaty of August 29, 1821. The language in “Article 2.” of the 1846 treaty differentiates between the two Chicago treaties with the wording “…especially the tracts or parcels of lands ceded to them by the treaty of Chicago,” There were no land cessions to Indians in the September 26, 1833 treaty. The deletion of Article 5 in the treaty by the Senate ensured that. On the other hand, the Chicago treaty of August 21, 1821, Article 2 reserved five tracts of land and granted numerous parcels of land to individuals. Therefore all the tracts reserved in the 1821 Chicago treaty “…and subsequent thereto….” to which title was not held by the Potawatomi were ceded by the Prairie Potawatomi at Council Bluffs in their June 5 1846 treaty.
It is clear from the historical record that neither Shabenay nor his band held title to the lands at Shabbona’s Grove. If this were not the case why did he attempt to gain personal title via the 1833 Chicago treaty? We also have shown that no tribal treaty title was derived from the 1825 Prairie du Chien treaty, given that Shabenay’s village was located outside the established boundaries of the agreed upon Chippewa, Ottawa and Potawatomi tribal lands. This 1846 cession would include any residual usufructory rights, if any, remaining on the lands at Shabbona’s Grove. This could be the reason why the Grove was not released for public auction until August 12, 1848. The General Land Office at Dixon wanted to make absolutely sure that all right, title, and interest to lands in Illinois, including those at Shabbona’s Grove, were clear.
 EXH.34. Letter, J. Butterfield, Commissioner, General Land Office to Orlando Brown Esq.,
Commissioner of Indian Affairs. , Dowd, James, 1979, Built Like A Bear:149-150, Ye Galleon Press,
 EXH.46. Kappler, Charles J., 1904, Indian Affairs. Laws and Treaties, Volume II, Treaties:557,
Washington, Government Printing Office.
 EXH.47. Kappler, Charles J., 1904, Indian Affairs. Laws and Treaties, Volume II, Treaties:198,
Washington, Government Printing Office.