Introduction
In April of 2007,[1]former Prairie Band Potawatomi Chairwoman Tracy
Stanhoff stated in regard to the lands at issue within the Town of Shabbona,
Illinois, that “This is our reservation
held in trust by the Potawatomi Nation.” Despite her obvious misstatement
concerning the tribe holding the lands in trust, she identified one of the
central historical questions surrounding this controversy; that is, whether the
lands set aside for the use of Shabenay and his band by the treaty of Prairie
du Chien in 1829 which designated the site of Shabenay’s village at what is
known as Shabbona’s Grove is a federally established reservation.
The second central issue is one of title. Was Indian
title of the lands at Shabbona’s Grove ever existent? Was it extinguished? The tribe claims that on
the basis of un-extinguished title, they have uncontested right to the lands
set aside for then use of Shabenay and his band in 1829.
In support of their claims the Tribe has produced a
January 18, 2001 informal Solicitors Opinion in the form of a letter from
Interior Department Solicitor John D. Leshy to Representative Dennis Hastert.[2]
This letter asserts that a “reservation
was set aside in Article II of the Treaty of Prairie du Chien.” Solicitor
Leshy goes on to say, “Such reservations
of Indian land constitute Indian title…The Indian Non-intercourse Act, 25 USC
177…makes void any conveyance of Indian title without the consent of Congress.”
Solicitor Leshy proffers two conclusions: The lands were illegally sold at
public auction by the General Land Office in 1849 without the approval of
Congress ;”Our research has led us to the
conclusion that the Prairie Band is the lawful successor in interest to Chief
Shab-eh-nay and his band.” Leshy goes on to suggest to Congressman Hastert,
“The success of any litigation to vindicate
this claim is necessarily uncertain, and there is much to be said for pursuit
of a settlement for ratification by Congress that should avoid the time,
expense, and acrimony of litigation….”
Additionally a legal evaluation of these claims was
prepared by the law firm of Hobbs, Strauss, Dean, and Walker LLP on March 13,
2007. Their legal conclusion, “Based upon
the above, the reservation status of the Shab-eh-nay lands is beyond argument.”
The structure of the arguments set forth above makes
it appear that the tribe is trying to fit their data to conform to a novel
opinion advanced by NIGC Acting General Counsel, Peggy Coleman. In a letter
regarding the issue of gaming on fee-owned lands within a reservation by the
Osage tribe of Oklahoma to Richard Meyers, Assistant Solicitor, Division of
Indian Affairs, Department of the Interior, Acting Counsel Coleman concluded,
Based on
the above documents, we understand that at least some offices within the
Department of the Interior have concluded that the Osage Nation Reservation has
not been disestablished. Since gaming
on fee land or trust land
within the boundaries of the
reservation is lawful gaming on Indian lands under the IGRA, we
conclude that gaming on the two parcels is authorized. Please advise us immediately if your office
disagrees with our understanding of the status of the Tribe’s reservation
Such legal conclusions proffered by Solicitor Leshy
and Strauss, Dean, and Walker may very well be premature
On the basis of historical research conducted on this
issue, the following conclusions have been made on the basis of the historical
record.
That Shabenay’s band village at Shabbona’s Grove lay
outside the boundaries established by the participating tribes themselves for
the “Ottawa, Chippewa, and Potawatomie
tribes of Illinois” in the August 19, 1825 Treaty held at “Prairie du Chiens”, thereby negating
legal claims of “treaty-recognized title”
which forms the basis of the tribe’s title claims to the lands at Shabbona.
That the lands reserved for the use of Shabenay and
his band, in their corporate capacity at Shabbona’s Grove in DeKalb, County
Illinois under the stipulations of the July 29, 1829 treaty held at Prairie du
Chien were usufructory in nature. No title or right was ever vested in either
Shabenay as a tribal leader or “okama” or the corporate band. The responsible Federal authorities
during that era consistently voiced that opinion. Thus Solicitor Leshy’s
conclusion pertaining to Indian title, based on the establishment of a
reservation via the 1929 Prairie du Chien treaty, appears to be ill-founded.
The lands at Shabbona’s Grove were part of the territory
ceded by the “United Nations of Chippewa,
Ottawa and Potawatamie Indians” to the United States in the 1829 Prairie du
Chien treaty. Shabenay and his Potawatomi band resided at Shabbona Grove as “usufructory tenants at will”, who in
1837 were required, on this basis, to abandon Shabbona’s Grove by
representatives of the Federal Government.
The September 26, 1833 treaty at Chicago with “the United Nation of Chippewa, Ottawa, and
Potawatamie Indians” encompassed the cession of all the lands from the west
shoreline of Lake Michigan to the Mississippi south of the Michigan territory
boundary line to the southern-most point of Lake Michigan. This treaty required
the Indians residing in northern Illinois to remove upon the treaty’s
ratification (1835). In August/September of 1837, the members of Shabenay’s
band (130 individuals) removed to Council Bluffs, Missouri. Shabenay
accompanied them. The following year, Shabenay returned to Shabbona Grove, no
longer a band “okama”, accompanied
only by his immediate family (25 persons). His return was due to revenge
threats against him and his family by nearby Fox and Sacs as well as the result
of resentment against him from within his own tribe at Council Bluffs for his
advocacy of western removal to Missouri.
The 1833 treaty at Chicago by which Shabenay’s
abortive attempt to have a reservation established at Shabbona’s Grove and
title vested in him and his band demonstrated that no
Indian reservation was established at Shabbona’s Grove prior to this treaty and
that neither Shabenay nor his band had fee title to these lands at
Shabbona’s Grove. The United States Senate rejected this section of the treaty.
In the 1846 Council Bluff/Osage River treaty with the
“Pottowautomie Nation”, the
Potawatomi ceded all their remaining lands to the United States. This cession
included any lands remaining within the State of
Illinois that were not held in fee title. As a result of the band’s abandonment
of the lands at Shabbona’s Grove in 1837, the Government Land Office at Dixon,
Illinois, declared in 1848 the lands at Shabbona eligible for sale. The Office sold the lands at Shabbona’s
Grove at public auction on November 5, 1849 to Reuben Allen and William Marks.
Federal patents were subsequently issued to both purchasers attesting to the
validity of the act.
The historical data presented below support the
conclusion that the lands currently fee-held by the Prairie Band Potawatomi in
Shabbona, Dekalb County, Illinois, are not a Federal
Indian reservation nor are they Indian lands, nor are they held in trust
as Indian lands by the Federal Government, nor are there any alienation
restrictions upon the lands at issue as defined by 25 USC 2703 (4),
The term Indian lands means-
(a) Land within the limits of an Indian reservation; or
(b) Any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.
or, under the definition of Indian lands as defined by
the National Indian Gaming Commission Regulations (502.12):
(a) Land lying within the limits of an Indian reservation; or
(b) Land over which an Indian tribe exercises governmental power
and that is either-
(1) Held in trust by the United States for the benefit of any
Indian tribe or individual; or
(2) Held by an Indian tribe or individual subject to restriction
by the United States against alienation.
As an editorial note
all appendix exhibits provided with this report will be noted in the citation
footnotes as EXH. , followed by the
exhibit number.