IV. Treaty Language
What does the language present in other Potawatomi
treaties tell us? Let us compare.
In the October 20, 1832 Camp Tippecanoe treaty
(ratified January 31, 1833)[1]
we find in Article II the following: “From
the cession aforesaid the following tracts shall reserved, to wi…t” which is similar to the wording in Article three of the
1829 Prairie du Chien treaty; “From the
cessions aforesaid, there shall be reserved…” We find in a letter from
the Commissioner of Indian Affairs referring to Sho-bon-iers reserve dated March
21, 1838[2],“..that Sho-bon-ier, has only a temporary
use and enjoyment of the land which he claims, that a patent ought not to be
issued to him.”
Thus we know on the basis of the June 25, 1853
Commissioner’s opinion (supra) that “From
the cession aforesaid the following tracts shall reserved, to wit” is equivalent
in meaning to the language present in Article II of the July 29, 1829 treaty at
Prairie du Chien, “From the cession
aforesaid the following tracts shall be reserved, for the use of the undernamed
Chiefs and their bands, the following tracts of land, viz:” Both
represented a usufruct relationship by the
occupants of the land.
The usufruct concept is also present in a different
form in the August 24, 1816 Treaty ratified December 30, 1816)[3]
with “the united tribes of Ottawas, Chippewas,
and Pottowomees…”,
That the said tribes shall be permitted to hunt and fish within the limits of the land hereby relinquished and ceded, so long as it may continue to be the property of the United States…
Here is a very clear statement of intent by the Federal
Government, that usufructory lands were not intended to remain permanently
under Federal ownership or for use by the Indians.
In contrast, we find in Article 4.of the October 2,
1818 treaty at St. Mary’s with the “Potawatamie
nation of Indians” the following,
The United States agree to grant to the persons named in the annexed schedule, and their heirs, the quantity of land therein stipulated to be granted; but the land so granted shall never be conveyed by either of the said persons or their heirs, unless by consent of the President of the United States.
Here we have a conditional fee granted to the grant recipients
who, if still living in tribal relations would be subject to alienation restrictions
of the 1802 enactment of the Federal Indian Trade and Intercourse Acts[4]
…Sec.6
or by reduction of their numbers, it would undoubtedly. And be
it enacted and declared, That no sale of lands by any Indians, or any
nation or tribe of Indians within the United States, shall be valid to any
person or persons or to any State, whether having the right of pre-emption to
such lands or not, unless the same shall be made, and duly executed at some
public treaty, held under the authority of the United States…
The consent of the President would come with the
ratification of the treaty under his signature. We note no such stipulation in Article
II of the July 29, 1829 Prairie du Chien treaty. But in contrast we do find in
Article IV, “There shall be granted by
the United States, to each of the following persons...” This article goes
on to state, in a manner similar to Article 4 of the October 2, 1818 treaty the
following,
The tracts of land herein stipulated to be granted, shall never be leased or conveyed by the grantees, or their heirs, to any persons whatever, without the permission of the President of the United States.
Thus a distinction is clearly made between
the usufructory nature of “…be reserved, for the use…” and a
pre-emptive right of purchase or a resumption of unfettered title that is
present in “There shall be granted...”
The September 20, 1828 (ratified January 7, 1829)
treaty[5]
with the Potawatomi on the St. Joseph River provides us with a somewhat
different twist to the granting of lands. Within Article 2 of this treaty we
find the “half breed” (“Indians by descent”) concept that we
found in Article IV of the 1829 Praire du Chien treaty. What makes this treaty
different is the fact that the Indians will be placed as “the President may direct, after the country may be surveyed, and to
correspond with the surveys,..” Additionally there were alienation
restrictions, “nor shall the tracts there
granted be conveyed by the grantees, without the consent of the President of
the United States...” These grants were not directed towards tribal or band
entities, they were to individuals of Indian descent. The Federal Government
maintained reversionary rights via the alienation text. In this situation it
appears that the grants were non-Trade and Intercourse, but upon Federally-
owned lands that could not be alienated by the resident grantee. There was no
mention in the treaty of inheritance rights being accorded the grantees.
The October 26, 1832 Tippecanoe River treaty with the
“Pottawatimie Indians” is very
distinct and interesting. In Article II we find a clear expression of
reservations being established for the most part for distinct tribal band
entities. These reservations were carved out of cession lands contained within
the treaty. Article II reads in part,
“From the cession aforesaid, the following
reservations are made, (to wit:)
For the band of Aub-be-naub-bee, thirty-six
sections, to include his village….”
When compared to the text used in the July 29, 1829
Prairie du Chien treaty we clearly see the textual difference between the
creation of “reservations” and lands
being allowed to be used, “From the
sessions aforesaid, there shall, be reserved for the use of the undernamed Chiefs
and their bands, the following tracts of land, viz…
For
Shab-eh-nay, two sections at his village near the Paw-paw Grove….” (emphasis added)
The operant phrases here are, “…reservations are made…” in textual contrast to “…reserved for the use...” We know from
the chain of documentary communications out of the Office of the Commissioner
of Indian Affairs from 1843-1863 that Shabenay’s band had only usufructory
privileges, that is, there were no alienation rights given to Shabenay or his
band to the Shabbona lands. Title rights were never vested with the band
corporate entity, nor despite Shabenay’s attempts in 1833 where such vested
rights or interest given to him. Shabenay’s band simply occupied Shabbona Grove
as tenants at will of the Federal Government. The proof came when the Federal Removal
Agent informed Shabenay that it was time for his band to leave Shabbona’s Grove
to be resettled west of the Mississippi in Missouri, and they removed in
September of 1837. If a federally recognized reservation had been established
at Shabbona’s Grove, such a move would not have been required without the
specific sanction of the President. Instead, the usufruct nature of the band’s
occupation in conjunction with the removal stipulation present in the 1833
Chicago treaty mandated their removal as the band members were only tenants at
will upon the federally-owned Grove lands.
It appears in
the October 27, 1832 Tippecanoe River treaty that the Potawatomi, after ceding
all their lands in Indiana did attain limited rights of interest that were
created by the establishment of reservations by the Federal Government on Government
lands for the named corporate entities, the bands. The same appears to have
occurred for the two Potawatomi bands named in Article II of the October 27,
1832 treaty at Tippecanoe River who also had reservations “made” for them.[6]
The presence of these many reservations, were in
retrospect deleterious to the Federal policy of removal west of the
Mississippi. As Clifton[7]
noted:
...These were the small “ band reservations” awarded by the Tippecanoe treaties in October 1832. By 1834 these reservations were occupied by twenty-six “chiefs and headmen,” the leaders of as many small villages…It was the recognition of the problems caused by these small reservations that had made Secretary of War Cass insist that no personal or “band” reservations be allowed at the Chicago negotiations in 1833.
This situation in turn precisely led to the denial to
Shabenay of his request as part of the “stricken”
Article 5 of the September 26, 1833 treaty at Chicago for a reservation in fee
simple holding; “ aforesaid reservation
to Shab eh nay shall be a grant in fee simple to him, his heirs and assigns
forever…” These words yield to us two very important facts: Shabenay and
his band did not have a reservation at Shabbona’s Grove as a result of the July
29, 1829 Prairie du Chien treaty; neither Shabenay nor his band held any fee
title interest to the lands there.
[1] EXH.8. Kappler, Charles J., 1904, Indian Affairs. Laws and Treaties, Volume II, Treaties:353,
Washington, Government Printing Office.
[2] EXH. 13.Letter
, Commissioner of Indian Affairs, March 21, 1838, Dowd, James, 1979, Built
Like A
Bear:120, Ye Galleon Press, Washington.
[3] EXH.37. Kappler, Charles J., 1904, Indian Affairs. Laws and Treaties, Volume II, Treaties:132,
Washington, Government Printing Office.
[4] An Act to regulate Trade and Intercourse with the
Indian Tribes. (1790) Acts Passed at a Congress of the
United States of America MDCCXCI.:197-198.
[5] EXH.38. Kappler, Charles J.,1904, Indian Affairs. Laws and Treaties, Volume II, Treaties:294,
Washington, Government Printing Office.
[6] EXH:39 Kappler, Charles J., 1904, Indian Affairs. Laws and Treaties, Volume II, Treaties:372,
Washington, Government Printing Office.
[7] EXH.28.Clifton,
James A., The Prairie People: Continuity and Change in Potawatomi Indian
Culture
1665-1965,: 244 University of Iowa Press, Iowa City.