I. Tribal Claims

In a legal Memorandum from Charles A Hobbs and M. Francis Ayer of the law firm of Hobbs, Strauss, Dean & Walker LLP. of Washington D.C.[1] (the Firm) addressed the tribe’s claims to lands at Shabbona Illinois. The attorneys rendered a series of legal opinions based upon a legal reading, apparently without in-depth historical research or knowledge of the historical context or the existing documentary record that is related to the issue at hand.

As a general statement, this Memorandum clearly demonstrates

the pitfalls associated with the overt reliance both on a legal interpretation of historical documentary texts and the false assumptions posited by that process of strict legal construction. Wherein, when legal precedents are applied to the understanding or interpretation of text of a document within a contemporary environment, a false assumption can be made, without thorough historical research ensuring that the situation or contextual and factual setting concerning the document examined, is identical to that of facts and setting of the precedent being applied.

Such an example is the repeated use of the word “reservation” within the January 18, 2001 informal opinion supplied to Representative Dennis Hastert[2] in the closing days of the administration of President Clinton[3]. Not one document found in the historical record pertaining to Shabbona’s Grove during the period examined (1816-1864) declared Shabbona’s Grove to be an Indian Reservation as defined by the Federal Government in 25 CFR 151.2 (f)[4]. The Governments documentary record for the period is, as we shall see, remarkably consistent in its opinion that the band’s “use” of Shabbona’s Grove was strictly usufruct in nature. The use of the phrase “reserved for the use” did not, within the historical context of the period, imply or equate to the permanent establishment of an Indian reservation at that time nor as defined in the 25 CFR 151 footnote six below. Historically, the word “reserved”, beginning in 1474 was commonly accepted and understood to mean “excepted”, “Restrained or restricted in some way”, Set or kept apart; specially retained for some person or purpose.”[5] This points to one major pitfall of legal interpretation of historical documents and is the very reason for the “Ancient Documents” doctrine being applied to an expert historical witness’s testimony. A contemporary definition of a word, be it common, or legal, cannot be summarily applied in interpreting historical documents. The document’s text must be understood within the then contemporary understanding of its meaning and also within the historical context of the time period being examined. Additionally, historical analysis rarely bases conclusions on a single document. The context of the times must be considered (Federal Indian policy circa 1800-1870) other documents peripheral to the document in question must be examined ( Instructions to Treaty Commissioners, the record of the treaty negotiations, correspondence to the Commissioner of Indian Affairs, the report of the Commissioners upon agreement, the Senate’s actions and debates during ratification process). All of these peripheral documents drive the interpretation of the final text of a treaty as signed by the President. It is a fool’s errand to interpret such a text at face value. We see none of this caution in the Leshy 2001 informal opinion. When one sees such statements as Solicitor Leshy’s reference to the July 29, 1829 Prairie du Chien treaty wherein he concludes, “Such reservations of Indian land constitute recognition of Indian title”, one cannot help but believe that Leshy did not review or comprehend the historical record. We shall see there was abundant contemporaneous documentation that stated otherwise.[6]

The Firm in its March 13, 2007 Memorandum goes on to depict the “Potawatomie” lands, “…in northern Illinois…”, as described in Article 9 of the August 19, 1825 Treaty with the Sioux and Chippewa, Sacs, and Fox, Menominie, Ioway, Sioux, Winnebago, and a portion of the Ottawa, Chippewa, and Potawatomi Tribes,[7] as having “ treaty-recognized title”. The implication of this assertion was that Shabenay’s Grove lay within these described bounds and thus became tribal, title-held land protected by the Federal Indian Trade and Intercourse Acts. Did it?

The 1825 treaty ceded no lands to the United States. In Article 10, the tribes,

acknowledge the general controlling power of the United States, and disclaim all dependence upon, and connection with any other power. And the United States agree to, and recognize the preceding boundaries,..

The United States in this Treaty agreed to respect the boundaries created by the tribes themselves.

The United States representatives to the treaty proceedings only function was that of peace mediators. The treaties preamble clearly states this purpose,

The United States has seen with much regret, that wars have for many years been carried on between the Sioux and the Chippewas, and more recently between the confederated tribes of Sacs and Foxes, and the Sioux; which if not terminated, may extend to the other tribes, and involve the Indians upon the Missouri, the Mississippi, and the Lakes, in general hostilities. In order, therefore, to promote peace among the tribes, and to establish boundaries among them and the other tribes who live in their vicinity, and thereby to remove all causes of future difficulty, the United States have invited the Chippewa, Sac, and Fox, Menominie, Ioway, Sioux, Winnebago, and a portion of the Ottawa, Chippewa and Pottawatomie tribes living upon the Illinois, to assemble together, and in a spirit of mutual conciliation to accomplish these objects;…

By discussion and agreement between the attending tribes, mediated by the Federal Commissioners, the individual participating tribes, among themselves, came to an understanding of, and agreement to, the land boundaries for their own respective tribes. The Commissioners did not assign lands or boundaries to them. The tribes did so of their own accord. No reservations external to the tribe’s set boundaries were established by this treaty.

Most importantly and of special note were those boundaries agreed upon by the presiding tribes for the Potawatomi, Ottawa, and Chippewa combined that were stated in Article 9 of the treaty,

The Country secured to the Ottawa, Chippewa, and Potawatomie tribes of the Illinois, is bounded as follows: Beginning at the Winnebago village, on Rock River forty miles from its mouth and thence running down the Rock river to a line which runs from Lake Michigan to the Mississippi, opposite to Rock Island; thence up that river to the United States reservation, at the mouth of the Ouisconsin; thence with the south and east lines of the said reservation to the Ouisconsin; thence southerly, passing the heads of the small streams emptying into the Mississippi, to the Rock river at the Winnebago village…

These lands as described in the treaty were north and west of the Rock River, running north up the Mississippi River to the Ouisconsin (Wisconsin), then on a line south to the Winnebago village on the Rock River. Shabenay’s village at Shabbona’s Grove was not within this boundary defined area. There was no “treaty-recognized title” established by the Federal Government for the Shabbona lands at issue. It is apparent that the firm, prior to writing this Memorandum to Attorney Whittlesey, did not do historical research or have a comprehension of the region’s historical geography. If they had examined available maps of the region for this time period, especially those found in Tucker’s 1942 and Temple’s 1975 Supplement of “Indian Villages of the Illinois Country”[8] in particular the following; Plates LII (1829), which depicts the Rock River, Mississippi River, and Ouisconsin (Wisconsin) Rivers; Plate LXXXVI (1822) depicts the Indian boundary line from Lake Michigan to the Mississippi River that is mentioned in the 1825 Treaty; Plate XCIII which depicts the area ceded by the Potawatomi in the 1829 Treaty that included Shabbona’s Grove; Plate LXXXVII (1829 Chandler map) which clearly denotes the bounds set by the 1825 treaty, including the site of the Winnebago village on the Rock River as well as two others, and Royce’s 1899, “Indian Land Cessions in the United States”[9] in particular Map :Illinois 1 Plate #17, which shows the location of Shabbona’s Grove (“Shab-en-nay’, vill” ) in Township plat number 38 south-southwest of Chicago, west of the Fox River, and east of Rock River, the location of the Winnebago village on that River (in Township plat #20) 40 miles south from the river’s mouth at Lake Winnebago and almost due west from Shabenay’s village, they would have realized that there was no historical foundation to their “treaty-recognized title” assertion applying to the lands at Shabbona’s Grove. Together, these maps negate the basic legal claim of un-extinguished title to the lands in Shabbona Township. The lands at Shabbona’s Grove were not part of those lands within the tribal boundaries so agreed upon for “…a portion of the Ottawa, Chippewa, and Potawattomis…” by the tribes participating in the August 19, 1825 Treaty that also included the Sioux and Chippewa, Sacs, and Fox, Menominie, Ioway, Sioux, Winnebago Tribes.

Did the 1829 Treaty at Prairie du Chien establish “…a permanent reservation…” for Shabenay and his band? As suggested by the Tribe’s legal counsel, without a previous “treaty-recognized title” to the lands at Shabbona’s Grove that could not have happened. Without this foundation Shabbona’s Grove cannot be considered tribal Indian land. The nature of Shabenay’s band holding of the lands at Shabbona’s Grove will be dealt with below. But first, we must address certain issues in regard to the “historic persona” of Shabenay.

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[1] Legal Memorandum, March 13, 2007 From Charles A. Hobbs and M. Francis Ayer to Dennis Whittlesey entitled: Issue Regarding Status of Land Reserved to Shab-en-ay and his Band by Article 3, 1929 Treaty of Prairie du Chien.

[2] Letter, January 18, 2001, from John D. Leshy, Solicitor, United States Department of the Interior to

Honorable Dennis J. Hastert and Governor George H. Ryan.

[3] A critical reading of this document, especially the last paragraph, leads to the conclusion that this informal

opinion was an attempt to push Representative Hastert into sponsoring legislation favorable to the tribe in

regard to the lands at Shabbona, Illinois. The Solicitor, by his comments did not perform an historical

evaluation of the documents readily available at the National Archives (Correspondence of the

Commissioner of Indian Affairs) and the records available at the Bureau of Land Management at

Springfield, Virginia (Government Land Office Correspondence. Records of the Danville and Dixon sub

agencies) nor the records available at the Illinois State Archives in Springfield, Illinois.

[4] “Indian reservation means that area of land over which the tribe is recognized by the United States as

having governmental jurisdiction…”

[5] Onions,C.T., 1950 ed., The Shorter Oxford English Dictionary on Historical Principles, Third Edition,

Volume II:1713,Clarendon Press, Oxford University.

[6] 1843, January 17, Letter, T.H. Crawford, Commissioner of Indian Affairs to Thos. H. Blake, Commissioner, General Land Office; 1845, November 18, Letter, Commissioner of Indian Affairs to Coalman Olmstead, Shabbona’s Grove, DeKalb County, Illinois; 1848, May 27, Letter, War Department, Office of Indian Affairs, to Hon. John Wentworth, House of Representatives; 1849, July 18, Letter, Orlando Brown Esq., Commissioner of Indian Affairs to J. Butterfield, Commissioner, General Land Office; 1849, July 14, Letter, J. Butterfield, Commissioner, General Land Office to Orlando Brown Esq., Commissioner of Indian Affairs; 1854, October 5, Letter, Chas A. Mix, Acting Commissioner of Indian Affairs, to Messrs Paddock & Ward Attorneys; 1863.September 24, Letter, Charles E. Mix, Acting Commissioner of Indian Affairs to J.P. Usher, Secretary, Department of the Interior.

[7] EXH 1. Kappler, Charles J., 1904, Indian Affairs. Laws and Treaties, Vol. II. (Treaties):250, Washington, Government Printing Office.

[8] EXH. 2. Tucker, Sarah J. 1942, Indian Villages of the Illinois Country, Volume II, Scientific Papers,

Illinois State Museum, Springfield Plates LII, LXXXVI,XCII, LXXXVII.

[9] EXH.3. Royce, Charles C., 1899, Indian Land Cessions in the United States, in Eighteenth Annual

Report of the Bureau of American Ethnology to the Secretary of the Smithsonian Institution,

Washington, Government Printing Office Map Illinois 1#17..