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Mr. CARSON. Mr. Chairman, can I ask unanimous consent also to submit an opening statement for the record, please?

Mr. HAYWORTH. Without objection, the Chair would welcome opening statements from all those inclined to offer them this morning, and we make note of that and thank the gentleman from Oklahoma.

[The prepared statement of Mr. Carson follows:]

Statement of The Honorable Brad Carson, a Representative in Congress from the State of Oklahoma

Thank you Chairman Hansen and Ranking Member Rahall for providing this Committee with the opportunity to examine the serious implications of this legislation. I would also like to thank the witnesses for being here today to present their testimony.

H.R. 791 would extinguish treaty claims to land within the State of Illinois by the Miami and Ottawa Tribes of Oklahoma, two Tribes within my district, and the Prairie Band of Potawatomi Nation. Furthermore, the bill would limit the Tribes to monetary damages filed against the Federal Government in the United States Court of Federal Claims.

I have some serious concerns about this bill. While I can appreciate the land claim as a regional issue that the Members from Illinois would like resolved for their constituents, I do not support the Federal Government unilaterally abrogating terms of a treaty entered into in good faith by an Indian Nation. I hope that the parties involved can work to find a better alternative.

In following this issue, I have noted a common statement made by property owners and other affected parties. They state that, although historically Native Americans in this country have been treated very poorly, today's property owners are not to be punished for the sins of the past. With this thought in mind, I would like to conclude my statement with one question-by unilaterally and irrevocably terminating the terms of a Treaty, agreed to in good faith by an Indian Tribe and the Federal Government, are we not in fact repeating the sins of the past?

Mr. HAYWORTH. With that in mind, we welcome our friends from Illinois to the dais if that accommodates their schedules.

And even as we welcome them to the dais, we welcome panel two concerning H.R. 791, and our panelists include Gary Mitchell, the Vice Chairman of the Prairie Band of the Potawatomi Tribe of Kansas; Larry Angelo, the Second Chief of the Ottawa Tribe of Oklahoma; and Jacqueline L. Johnson, Executive Director of the National Congress of American Indians.

Again, we welcome you to our hearing this morning. We look forward to your testimony, and again, the Chair would note that your entire statements would be included in our record, and we would appreciate a summation in a 5-minute time period of the gist of your statements, and then, of course we invite you to remain for questions.

So with that in mind, we are ready to begin the testimony from our second panel, and we would begin with Vice Chairman Mitchell of the Prairie Band Potawatomi Tribe of Kansas.

Mr. Vice Chairman, we welcome you, and we would appreciate hearing your testimony now, sir.


Mr. MITCHELL. OK; good morning, Mr. Chairman and members of the Committee. My name is Gary Mitchell. I am the Vice Chairman of the Prairie Band Potawatomi Tribe in Kansas. Our reservation is located 20 miles north of Topeka and 80 miles due west of

Kansas City. And in some circles, I am regarded as a tribal historian. I have a B.A. in political science and a master's degree in history, and I wrote a history of our tribe, and we have that on the Internet if anyone wants to read it.

And I am thankful and honored that you asked me to come here and talk in front of this Committee. We would just like to outline— we already had this testimony submitted already, and I would just like to outline some of the things that went on with our tribe here and our association with Shab-eh-nay, the Shab-eh-nay land up there.

We had a treaty in 1829, the Prairie-Du-Chien treaty, and our tribe, we gave up quite a bit of land there in the Illinois area. And we were relocated to Missouri, the Black Country. Then, we went to the Council Bluffs area then to Kansas in 1846. So we had 5 million acres at those two sites. And the Shab-eh-nay land, he was married into our tribe, and that is how the association came about with our tribe. And he had-he believed in our people, and he followed us down when we went to the Council Bluffs area. And he did not want to leave us, because we wanted to stay together.

Then, eventually, he had time to-when he went down there, they made all of these claims that he abandoned his land. And he did not abandon any of the land. They just made an opinion. There was another tribal member-his name was Shab-eh-nera, and they thought that when he died in 1852, that was him that was the man of record. The Shab-eh-nay were still there.

And our focus is not so much like some of the testimony you heard here before. We are not here to say no, we are just going to take this land away from them. What we want to do is to do a fair and equitable manner here. You know, we want to buy the land back at whatever today's prices are. We are not trying to take anything away from anybody. That has not been our focus at all.

Like I said, in that area, Shab-eh-nay, the people thought a lot of him because he helped them there. And they gave him 20 acres of land just south of there, and he eventually died there, and that is where he is buried today. So we have documentation of all of the Boy Scout markers; the school kids, what they did with his-they wanted to remember him. And we have, as this lady over here said, we are submitting the BIA's opinion on that where it says that we have some say in this yet. So we submitted that part of the record, and we have another one that I would like to submit sometime. It is testimony from one of our tribal members. Her name is Elizabeth Hale, and she was 92 at the time she signed this affidavit. And she was the granddaughter of Shab-eh-nay, and she outlines in this affidavit how our governing body was there for the last 150 years, and we have been trying all this time to get this land back. It has not been something that we have done just here in the last few years. This has been an ongoing effort, and that was what our people believed in.

It was our land, and we wanted to keep it. And we are going to try to be as fair as possible in all of our dealings with everybody here. We are not going to go into a court case and say we want this back and take it away from people. Like it was stated earlier, that is not our primary focus here.

And just some of the-I want to, like they said in that movie, the Godfather, I do not want to insult your intelligence here, so I do not want to read word-for-word what I submitted here. So if you want to ask, you know, any questions, I could do the best I can to answer them.

[The prepared statement of Mr. Mitchell follows:]

Statement of Gary Mitchell, Vice Chairman, The Prairie Band of
Potawatomi Nation

Good morning, Mr. Chairman and Members of this Committee. My name is Gary Mitchell. I am the Vice Chairman of the Prairie Band of Potawatomi Nation, a Federally recognized tribe presently located on our reservation 20 miles north of Topeka and 80 miles northwest of Kansas City. I am also the Tribe's historian. The Tribe maintains a government-to-government relationship with the United States. Thank you for inviting me to testify before you today on H.R. 791, a bill "to provide for the equitable settlement of certain Indian land disputes regarding land in Illinois."

The Prairie Band does not want a dispute with its Illinois neighbors and wishes a truly fair settlement of its land claim in Illinois. The Shab-eh-nay land and Shabeh-nay himself have been a part of the Tribe's interest, history and culture for more than 150 years and earlier efforts have been made to pursue the Potawatomi Nation's claim. We do not believe that H.R. 791 would provide such a settlement, as I will explain to you.

Perhaps I should say right up front that the Prairie Band's claim is to 1280 acres of land set aside by treaty, that the reservation still exists, that the Prairie Band is the legal successor in interest to the rights under that treaty and that the Nation does not want to displace any land owners from their homes. As an Indian Nation, we know all too well how that feels and its devastating effect.

May I first tell you about the history of the Potawatomi Nation in relation to the treaty and land referred to in H.R. 791. On July 29, 1829, the Treaty of Prairie du Chien between the United States and The United Nations of Chippewa, Ottawa and Potawatomi, reserved two sections of land in Northern Illinois, the future Dekalb County, as a reservation for the Potawatomi Chief Shab-eh-nay and his Band. Although the Illinois-Wisconsin Potawatomi ceded 5 million acres west of the Mississippi in the 1833 Treaty of Chicago and most were removed west, they did not cede the Shab-eh-nay Band's reservation. Nonetheless, in late 1836, the Shab-ehnay Band was driven from their land and eventually relocated to Council Bluffs, Iowa, where they merged politically and culturally with most of the IllinoisWisconsin Potawatomi removed west after the 1833 Treaty. This coalition, including the Shab-eh-nay Band proper, relocated to a new reservation in Kansas after the Treaty of 1846, which officially renamed the United Bands the "Potawatomi of the Prairie," already known as the Prairie Band Potawatomi.Based on falsified deeds submitted by Ansel and Orin Gates, the Gates brothers whose sordid and criminal reputation was well known in Illinois, commonly known as the "Bogus" Gates, part "of the west Paw Paw banditti, linked with horse thieving and counterfeiting," the Commissioner of Indian Affairs determined that Shab-eh-nay's Band had abandoned the Illinois reservation. Then the Commissioner mistakenly concluded that Shab-ehnay was another Indian, Shobonnier, who died in 1852 and had received his land as an individual grant under the Treaty of 1832.

Based on these misassumptions, on November 5, 1849, the Shab-eh-nay Band's reservation was sold by the United States General Land Office. Shab-eh-nay died in 1859 and the Illinois lands were reserved by the Treaty of 1829 for his band, not for him or his family as individuals. Tribal treaty title is recognized and held in trust by the United States. The lands were not public lands within the General Land Office's jurisdiction. They could neither be abandoned nor sold absent express congressional authorization. The patents issued on the lands in 1850 are void, and the land remains in trust.

When the Shab-eh-nay Band merged with the Prairie Band Potawatomi at Council Bluffs, it conveyed to the Prairie Band any treaty rights the Shab-eh-nay Band held at the time. Thus, the Prairie Band is the rightful beneficiary of the lands originally reserved for Chief Shab-eh-nay and his Band under the 1829 Treaty of Prairie du Chien.

After the disgraceful theft of the Illinois reservation lands, Shab-eh-nay struggled in vain to regain their possession. The Prairie Band has continued that struggle to this date. The historical record is replete with documentation of this 150-year

tragedy. We would be glad to present to you that documentation. The Nation's interest in this land did not arise within the last thirteen years.

The historical record is also replete with evidence of the affection and respect of the non-Indian people in the now Dekalb County area for Shab-eh-nay as a great leader and friend. In that regard, I would like to tell you a few things. By 1857, Shab-eh-nay, disposed of the Band's reservation in northeastern Illinois, moved around the surrounding area continuing to pursue recourse from the Federal Government. Local settlers in the area of Morris, Illinois (about 20 miles southeast of the reservation) took up a collection to purchase a tract of land for Shab-eh-nay to provide him with a permanent home. Shab-eh-nay selected a 20-acre parcel on a bluff overlooking the Illinois River. This land was set aside for the chief and his heirs forever and removed from the tax rolls. P.A. Armstrong, The Black Hawk War 591-593, Springfield, Illinois (1887)(no publisher listed). The deed granting “20 acres off S.E. T420: 33.6, [from] John Batcheller and Wife," dated June 27, 1857, reads as follows:

"This grant to be held in trust for the use and benefit of Cabana, Indian Chief of the Pottawattamie tribe, and his heirs forever, the use, rents and profits thereof to be enjoyed by said Shabana and his heirs exclusively." Recorded 9-23-1857, Book R., Page 215, Grundy County Courthouse, Morris, Illinois. That same year, a group of women in Ottawa, Illinois organized a fund-raiser ball to erect a small cabin on the land. Shab-eh-nay attended the ball. Armstrong 592.

In 1958, local Boy Scout Troop 25, Theodore St. Ev. Lutheran Church, Joliet, Illinois, erected a marker on the site of Shab-eh-nay's cabin with a granite memorial; "On this site Chief Shab-eh-nay occupied a cabin given to him by white friends in 1857, resided here until his death, July 27, 1859." Records of the Shabbona Trail Committee, Troup 25, Boy Scouts of America, 1015 Bury Ave., Joliet, IL 60435.

Shab-eh-nay died on July 17, 1859, from an illness following a hunting excursion. He was buried in Lot 59, Block 7, in the Evergreen Cemetery in Morris, Illinois, about twenty miles south east of Shab-eh-nay's cabin. Sextant's Records, Evergreen Cemetery, Morris, Illinois. Evergreen Cemetery in Morris, Illinois. The exact site is Lot 59, Block 7.

A project was begun in 1861 to raise the funds needed for a monument to Shabbona, but the Civil War left the project incomplete. Letter from Frances Rose Howe to Charles Goold (September 1, 1860), on file with Chicago Historical Society. On August 19, 1897, the 29th reunion of the Old Settlers of La Salle County discussed placing a monument for Shab-eh-nay. It was unanimously agreed that a committee should be formed to devise ways and means for the erection of a suitable monument. Letter of P.A. Armstrong to Miss McIlcvane (17 October 1903), on file with Chicago Historical Society.

The monument decided upon was a large boulder inscribed simply, “Shabbona 1775-1859." It was placed on his grave at Evergreen Cemetery in 1903. Letter from P.A. Armstrong to Miss McIlvane (17 October 1903), on file with Chicago Historical Society.

In 1922, construction began on Shabbona Elementary School near Shabbona Grove. The students of the classes of 1922-1923 dedicated a handsome monument, containing his sculptured image, to Shab-eh-nay. shabbonaelementary/history

Now, I would like to turn to the legal aspects of the Prairie Band's efforts to obtain conformation of its Shab-eh-nay claim by the Department of the Interior. For two and one-half years, the Potawatomi Tribe submitted extensive supporting materials from esteemed legal and academic professionals to support the Tribe's claim. In July 2000, the Office of the Solicitor, Division of Indian Affairs, issued two internal legal opinions concluding that based on their review of the Potawatomi Tribe's submitted materials, the Tribe has a credible claim that the lands reserved for the Shab-eh-nay Band by the 1829 Treaty of Prairie du Chien constitute a treaty reservation and that the Prairie Band Potawatomi Nation is the sole successor in interest to the rights of the Shab-eh-nay Band under that treaty. Relying on those opinions, the Tribe's research and additional research by the Division of Indian Affairs, on January 18, 2001, the Solicitor, John Leshy, sent a letter opinion to the Illinois governor and the congressional representative in whose district the Shab-eh-nay reservation is located. The Solicitor concluded that the Prairie Band is the lawful successor in interest to Chief Shab-eh-nay and his Band, that the reservation still exists and that the United States owes a trust responsibility to the Prairie Band Potawatomi for these lands. I have the January 18th Solicitor's opinion with me ask that it be made a part of the record of this earing. I would like to quote just one paragraph from page two of that opinion to you:

79-494 D-2

Our research has also led us to the conclusion that the Prairie Band is the lawful successor in interest to Chief Shab-eh-nay and his Band. The Prairie Band did bring a claim against the United States under the Indian Claims Commission Act of 1946 and was paid for the loss of certain lands in northern Illinois. However, the reservation of land for Chief Shab-eh-nay and his Band was specifically excluded from the lands for which the Commission awarded payment. 11 Ind. Cl. Comm. 693, 710 (1962). As a result, we believe the U.S. continues to bear a trust responsibility to the Prairie Band for these lands.

The Tribe has arranged to maintain an option on a portion of privately owned property defined as reservation land by the Department of the Interior. The Tribe wants to clear title of the landowners, have first right of refusal to purchase land within the reservation boundaries from willing sellers and reach an agreement with the state and the county regarding ownership, access to and management of the wildlife refuge and park within the reservation boundaries. The Tribe wants to work with the state, the county and individual landowners.

Please note that during the entire time of our preparation of the legal, historical and anthropological elements of the Tribe's claim and also during the entire time of its consideration by the Department of the Interior, and since the issuance of the legal opinions by the Office of the Solicitor, there has been no animosity or legal threat by the Tribe. Neither, we note, has there been any such animosity or legal threat to the Tribe by the state, county or individual landowners.

Land title records show that approximately 52% of the two sections of reservation land is now an Illinois state park, 7% is a Dekalb County Forest Preserve, 10 %is a 128 acre farm owned by the Ward family, 5% is owned by the Indian Oaks Country Club, 10% is owned by nine separate landowners and the remaining 2% comprises homes on small tracts owned by 21 separate landowners. It is the Tribe's hope that it can reach an agreement with all parties which can be affirmed by Federal legislation. To do so has been the announced policy of the Prairie Band of Potawatomi Nation since 1997. The Nation has advised the Illinois governor's representatives and the Speaker of the House of Representatives in whose district the reservation lands is located of its policy.

H.R. 791 would extinguish the rightful claim of the Prairie Band Potawatomi Nation to its treaty rights under the Treaty of Prairie du Chine. It would rob the Tribe of a significant part of its heritage. I am sure you must ask why money damages are insufficient for the Potawatomi Nation. I ask you simply, "Could money replace your ancestry, your religion, your home?"

We hope that the two opinions, two legal memoranda, from the Division of Indian Affairs of the Office of the Solicitor have been transmitted by the Department of the Interior to you and that they will be made a part of the record of this hearing. If this has not yet transpired, we request that this Committee obtain those opinions, consider them and make them a part of the record.

Thank you for giving me the opportunity to present the strongly held beliefs and legal position of the Potawatomi Nation to you today. I ask that my written testimony be made a part of the record.

[A letter and affidavits submitted for the record by Mr. Mitchell follow:]

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