Thank you for your May 14, 2002 letter regarding H.R. 791. I am glad to respond to your specific question about payment having been made to the heirs of Shab-eh-nay. The answer lies in the confusion of the identity of two individuals, Shab-eh-nay and Sho-bon-ier, confusion likely resulting from references in the 1979 book, Built Like a Bear, by James Patrick Dowd, a biography of Shab-eh-nay. I am submitting with this letter the affidavit of Mr. Dowd attesting that his references to the two individuals as one and the same are in error and attesting how that error occurred. Chief Shab-eh-nay was the leader of an Illinois River Potawatomi Band called the Shab-ehnay Band. Article III of the Treaty of Prairie Du Chien, July 29, 1829, 7 Stat. 320, reserved two sections of land in Northern Illinois for the Potawatomi Chief Shab-eh-nay (spelling used in the treaty) and his Band. As a treaty reservation for a Band, the land could not be sold by anyone, including Chief Shab-eh-nay, without an Act of Congress. The man named "Sho-bon-ier," received his land as an individual, not as a reserve for a Band, pursuant to Article II of the Treaty with the Potawatomi, Oct. 20, 1832. On July 21, 1852, in 10 Statutes at Large 20, Congress appropriated $1600.00, for "Shobonnier," conditioned upon the relinquishment of all rights in that land by him or his heirs, to the U.S. The distinction between Shab-eh-nay and Shobonnier is clearly evidenced in the September 26, 1833, Treaty of Chicago, 7 Stat. 433, which Shab-eh-nay and Shobonnier both signed. Shab-eh-nay died in 1859. See my May 8th testimony; Sextant's Records, Evergreen Cemetery, Morris, Illinois. Sho-bon-ier died in 1851, having previously petitioned Congress for compensation for his land, and in 1853 his heirs, David Edward Samson, John Aquaneid and Ma-Ma-ke, in consideration of the 1852 appropriation, relinquished to the U.S. their right and title to the 1832 Treaty land. See letter from E.A. Haut to Shobonnier's descendants, (Oct. 26, 1877)(on file with National Archives, M 234, Kansas Potawatomi Agency Letters, Roll 693). The Prairie Band did bring a claim against the United States under the Indian Claims Commission Act of 1946, for underevaluation of certain lands ceded in the 1829 to the United States, but the reservation land reserved for Chief Shab-eh-nay and his Band was specifically excluded from the lands for which payment was awarded because the lands reserved in Article III of that treaty were a valid reservation, had not been sold and therefore should be excepted from the land for which the Potawatomi could be compensated. Citizen Band of Potawatomi Indians v. United States, 11 Ind. Cl. Comm. 693), aff'd Citizen Band of Potawatomi Indians v. United States, 179 Cl. C. 473 (1967, cert. denied, 389 US. 1046 (1968). This decisions are clear evidence that Chief Shab-eh-nay, his Band nor his heirs received compensation in 1852 for the land reserved under the Treaty of 1829. The issue of genealogy was raised in the May 8th hearing. Although the primary legal issue in the entitlement to 1829 Treaty claim is the political entity, genealogy aside, which succeeded to the treaty rights. I am including the affidavit of certified genealogist, James Patrick Dowd, that the Prairie Band of Potawatomi in Kansas have numerous descendants who are our tribal members, members and that the critical linage of historical documents connects early Illinois Shab-eh-nay family members with an early 1865 Prairie Band tribal roll (or census). I want to state briefly that the January 18 letter opinion of Solicitor John Leshy was a well-researched, analyzed legal opinion. The Nation submitted five volumes of legal, historical, anthropological and genealogical materials to the Department in January 1998. In July of 2000, two lengthy legal memoranda were written in the Solicitor's Office examining the Nation's claim, and providing ample support for the Leshy opinion. We have submitted for the Committee's files examples of the correspondence between the Tribe and the Interior over the course of three years regarding Interior's intent to bring closure to this issue. The Leshy opinion does, in the first paragraph, refer to his office's "considerable review" of the Nation's claim. We understand that the Committee has requested the July 2000 opinions. The Shab-eh-nay Band and the Prairie Band have records of attempts over the course of 150 years to regain the 1829 Treaty land. Two recent examples are evidenced by a July 31, 1890, letter of the Minneapolis Interior Field Solicitor to the Minneapolis BIA Area Director and a 1980 memorandum from the BIA Acting Director of Trust Responsibilities to the Minneapolis Area Director. Please note that the latter specifically explains that Shab-eh-nay and Shabonnier are two different individuals and notes that Shab-eh-nay left numerous heirs, none of whom were related to the four heirs of Shabonnier. We can also provide copies of these documents for the Committee's files. I am submitting for the Committee's printed record a copy of the affidavit of Dr. James A. Clifton, distinguished social anthropologist and ethnohistorian, and expert on the historic bands of Potawatomi and the Prairie Band of Potawatomi. Dr. Clifton attests the accuracy of the statements in my testimony of May 8th and in this letter. He attests that our Nation is the successor in interest to the rights of the Shab-eh-nay Band under the 1829 Treaty of Prairie du Chine and that no other tribe is a successor to those treaty rights. Finally, I refer you to my testimony regarding the Nation's commitment to negotiation, not litigation. Our claim is strong and well-documented, but we have chosen to seek agreement with the State, the County and the landowners in the 1280 acre claim area (including clearance of title to land whose owners do not wish to convey to us), which can be affirmed in legislation. The limitations inherent in a brief congressional hearing and its limited record are inadequate to address the Potawatomi claim or to distinguish its merits from others. There is no statute of limitations on tribal land claims. If the Congress wishes to consider legislation extinguishing Indian treaties, the law of the land under the Constitution, it should not do so as proposed in H.R. 791. Such legislation would be a radical departure from 150 years of judicial and congressional policy. If such is even thought about, it should be addressed extensively by Congress in extensive consultation and hearings, as was done with a similar bill in 1982, the "Ancient Indian Land Claims Bill," whose printed Senate Committee record is about three inches deep. 1 respectfully request that my letter and three affidavits be printed in the record. AFFIDAVIT OF JAMES PATRICK DOWD 1. I, James Patrick Dowd, am a certified genealogist who has specialized for more than twenty years in the family history of Potawatomi Indians who inhabited northern Illinois. I am the author of the 1979 book Built Like A Bear, a biography of the Potawatomi Chief Shabbona. (Attachment A, Dowd Certification) 2. I understand that the issue of genealogical descendancy from members of the historic Shabbona Band was raised during a hearing held in the House Natural Resources Committee on May 8, 2002. 3. I have examined hundreds of historical documents while conducting extensive genealogical research regarding the Prairie Band Potawatomis of Kansas. These documents include numerous federal documents, including but not limited to annuity payrolls, emigration journals, heirship documents, probate records, allotment rolls, and census records. I have also conducted extensive research at local and regional archives in Illinois and Kansas that shed additional documentary light on the federal record. 4. My research has focused specifically on lineal descendants of the Shabbona Band. The documentation concerning Shabbone Band families show that at least four Shabbone Band members have numerous descendants who are members of the Prairie Band Potawatomi. 5. The critical linkage of historical documents connects early Illinois Shabbona family members with the 1865 Prairie Band tribal roll. Subsequent census and heirship records, probate files, allotment rolls and tribal enrollment files all contribute strong evidence of lineal descent between modern-day Prairie Band Potawatomi members and their Shabbona Band ancestors. FURTHER AFFIANT SAITH NOT. James Patrick Dowd Subscribed and sworn to before me this 23 day of May, 2002. Paulette & Chachut "OFFICIAL SEAL" Jamn Whores Aren May 23, 2002 5. At the time, I also inadvertently concluded that Shab-eh-nay had received payment for the sale of his reservation. He did not. In 1992 I found documentation in the National Archives showing that "Shobonnier" descendants received $1,600 for the land reserved in Indiana, not for land in Illinois. Further, none of the three Shobbonier descendants listed in reference to the payment documents descend from Shab-eh-nay. 6. I have reviewed, collected, amassed and referenced thousands of documents about Shab-ehnay since the 1979 book publication. I have not seen any documents showing that Shab-eh-nay ever received payment for his Illinois reservation. FURTHER AFFIANT SAITH NOT. James Patrick Dowd Subscribed and sworn to before me this 23 day of May, 2002. Paulette & Chachut "OFFICIAL SEALTM PAULETTE E. CHARHUT Notary Public, State of Illinois !: Commission Expires 7/13/04 James Katorek Jowe May 23, 2002 AFFIDAVIT OF DR. JAMES A. CLIFTON 1, Dr. James A. Clifton, being duly sworn, do hereby state as follows: 1. I am presently the Scholar-in-Residence of the Department of Anthropology at Western Michigan University, and Adjunct Professor with the United States Marine Corps Command and Staff College. In 1990, I retired from my position as Frankenthal Professor of Anthropology and History at the University of Wisconsin in Green Bay. Over the past thirty-eight years I have worked as a professional social anthropologist and ethnohistorian. In this period, my research and writing have emphasized contemporary community studies and longitud:nal historical studies of the native peoples of North America, especially so those of the western Great Lakes region. I am author of a dozen scholarly books and monographs and some one hundred and forty essays in peer-reviewed journals and standard reference works. My resume is set forth more fully in Exhibit 1, amached to this Affidavit. I researched the Prairie Band of Potawatomi intensively in the period 1962-1968; and since that date have continued these anthropological and historical studies intermittently, often with respect to other Potawatomi communities, sometimes in connection with other research projects. I have published Rumerous books, monographs, and essays conceming Potawatomi culture and history, and on various occasions I have spent time among all of the numerous Potawatomi communities in the United States and Canada, excepting the Citizens Band of Oklahoma. My peers in anthropology and history commonly identify me as a leading scholarly authority on Potawatomi culture and history. I have also conducted considerable research on and written about other tribes of the western Great Lakes region, with whom the Potawatomi were historically associated. In particular, I have conducted an intensive, long-term study of the application of the American Indian Removal Policy to all the native communities of the Old Northwest, including the Potawatomi and their neighbors. That comparative research is especially pertinent to certain opinions expressed in this affidavit. In connection with this and other research, I have developed a computerized database which abstracts and categorizes salient features of all ratified American Indian treaties, which I have drawn upon for parts of this affidavit. I have been retained as an expert social anthropologist-ethnohistorian by Marisset, Schlosser, Ayer, and Jozwiak, attomeys representing the Prairie Band of Potawatomi, in connection with matters associated with the consequences of the Treaty of July 29, 1829 (7 Stat, 320) These attorneys have delivered me a series of queries pertinent to these matters; and my responsibility has been to develop documented, fact-based expert opinions in response to each query. In forming these opinions, I have relied on my own publications, the publications of other recognized scholarly authorities, numerous original (primary source) documents, my own research archives, the computerized treaty database aforesaid, and my own special knowledge concerning Potawatomi culture and history. The following statements of fact and opinion are based upon these sources. 2. In negotiating the 1829 Prairie du Chien treaty the United States acknowledged that certain "bands" (i e., local communities) of Potawatomi held two tracts of land located in northern Illinois and southern Wisconsin in recognized (rather than original) Indian title 3. In the 1829 treaty, these bands were identified as the "United Nations of Chippewa, Ottawa, and Potawatomie Indians, of the waters of the lilinois, Milwaukee, and Manitoouck Rivers. This "United Nations" appellation was a legal fiction constructed by the United States for its purposes, especially so as to forestall the possibility that Ottawa and Chippewa bands located in other regions might subsequently press a claim for the two tracts that were being ceded by this treaty. There were in fact small minorities of ethnic Chippewa and Ottawa resident among, as guests and by the permission of these Potawatomi communities, communities which for years had occupied and exploited parts of the two arcas intensively At the time of the 1829 treaty, the ethnic Chippewa among these Potawatomi villages constituted about eight per cent (8%) of the total population, and the guest Ottawa about fifteen per cent (15%). Moreover, at the time that these Illinois-Wisconsin Potawatomi bands were obligated to evacuate the region (starting in 1835) under the removal policy, nearly all of the visitant Chippewa and Ottawa refused to migrate westward with them, instead electing to move back into Chippewa and Ottawa tribal territory in northern Wisconsin, Michigan, or Canada 4. A more accurate designation for the communities involved in and affected by the 1899 treaty is as follows: the "Potawatomi bands of northern Illinois and southern Wisconsin." Such an appeliation is based on the scholarship of various anthropologists and historians, and will be used hereafter in this affidavit. At that time, there were approximately fifteen such band-villages in this region. All of these bands spoke a single separate language in common with all other Potawatomi, which was most closely related to the Chippewa Ottawa language. 5. By the time of the 1829 treaty, the historic Potawatomi tribal polity was breaking up. This was the consequence of two major factors. ONE: the great territorial spread of the Potawatomi population had created internal stresses, problems of coordination and cooperation between the many widely separated Potawatomi villages, as well as regional differences in subsistence patterns and political-economic interests. TWO: in order to deal more effectively with the Potawatomi tribal polity, the United States had been following a policy of divide and dispossess. Indeed, the 1829 treaty was both an example of the application of this divisive policy, and an example of the growing schisms within the historic tribal entity, since for this treaty the United States elected to deal exclusively with the Illinois-Wisconsin bands, and these bands cooperated without consulting others in distant locales. Eventually (by the late 1820s), the consequence of these developments was the establishment of several emergent, geographically isolated, autonomous (multiple band) tribal peoples, and several other isolated, smaller bandcommunities of Potawatomi. By the early 1840s, approximately two thousand Potawatomi, as individuals and family groups, had sloughed off and become assimilated into other tribes and Indian communities, including the Kansas and Mexican Kickapoo, the Mesquakie, and the American and Canadian Chippewa and Ottawa. 6. At the time of the 1829 treaty, one of these several emergent Potawatomi tribal polities consisted of the fifteen or so northern Illinois-southern Wisconsin Potawatomi bands. At that time, these bands were functioning as a solidary coalition in their political-economic affairs-in process of developing a separate tribal polity-particularly so in their dealings with the United States, and they had been doing so for several years beforehand. The external affairs of this coalition of bands or emergent tribal people were then being administered by a type of "council-manager" governing system. The governing tribal *council" was composed of the most influential, well respected senior chiefs of the constituent bands. The "managers" employed by this council were outsiders with special talents and skills (e.g., bilingualism, iteracy, bookkeeping, etc.), men such as Billy Caldwell, Alexander Robinson (AKA Chichibinway), and, the last of these (as of 1846), Richard Smith Elliott. After 1846, the band chiefs and their successors no longer employed an outsider as manager to serve their interests, to assist, and to represent them. These constituent bands were commonly identified by the names of their principal wkamek (chiefs) 7. One such constituent band making up this emergent northern Illinois-southern Wisconsin Potawatomi tribal polity was that of a senior chief camed Shabeni (this phonetic spelling is used by anthropologists, while the name is rendered in historical documents variously, eg, Shab-ch-nay). Shabeni, by birth and through his young manhood an ethnic Ottawa, more than a decade before 1829 had settled among and married into the northern Illinois Potawatomi, in a village where he achieved the position of wkama (chief). Throughout the balance of his life, until his retirement from an active tribal leadership position (ca. 1846), Shabeni served as a prominent member of this emergent tribe's governing council of band chiefs. In contemporary social science terms, after about 1816 Shabeni had become an assimilated Potawatomi. 8. When the three American treaty commissioners and the Illinois-Wisconsin tribal council assembled to negotiate the 1829 treaty, the Potawatomis' then business manager, the Anglo Irish-Mohawk frontier businessman, Billy Caldwell, handed the American commissioners the written draft of a treaty which had beca prepared beforehand on behalf of these Potawatomi. 9. Included in the Potawatornis' own draft of a proposed treaty were two requirements concerning the reservation of several tracts from the areas they offered to cede to the United States. One consisted of "grants" of twelve allotments to as many named individuals, all of themn identified as either "half-breeds" or the Potawatomi wives of French and American men. The others consisted of the establishment of three reservations, within one of the ceded areas, for the bands of three chiefs, namely, the Wabansi band, the Awnkote band, and the Shabeni band. 10. The American treaty commissioners accepted the Potawatomis' written proposals concerning reserved tracts (as well as other tenders) and--with one qualification as regards the twelve individuzi grants-wrote them into the final treaty almost verbatim. These Potawatomi requirements became Article III (for the three band reservations) and Article IV (the twelve individual grants) of the final treaty. This engrossed draft treaty the Potawatomi chiefs and the treaty commissioners signed. Subsequently, the United States Senate ratified the 1829 treaty unchanged, including the language of Articles III and IV 11. The one qualification, which the American treaty commissioners insisted on, affected only the titles to the twelve individual grants. Article V clarified this matter by stipulating that these twelve allotments were to be restricted fee titles held by the named individuals. That is, these twelve grants were heritable private property, but they could not be conveyed to third-parties without the permission of the President 12. No such qualification, nor any other, was attached to the titles of the three band reservations being established by this treaty. Therefore, because these tracts had not been ceded to the United States but had been withheld and allocated to the three named bands as political entities, the recognized Indian title remained intact. That is, these tracts were not the private property of the three named chiefs; and the band reservations could not be conveyed to anyone except the United States. 13. Similarly, there were no other qualifications or restrictions stipulated in Article III of the 1829 treaty concerning the possibility of loss, cancellation, alteration, or conveyance of title to these newly established band reservations, qualifications such as title loss because of abandonment or depopulation, etc Such restrictions on or qualifications to the continuity of title to reservations were sometimes written into other treaties, whenever the United States saw fit to include such provisions. Therefore, each of these newly established reservations was to be held in unqualified, perpetual, recognized title collectively, as the in-common property of one or another of the three bands, or until the lilinois-Wisconsin Potawatorni saw. fit to negotiate their cession to the United States. 14. These three band reservations were contained within the boundaries and were withheld from the cession of one of the two large tracts the Illinois-Wisconsin Potawatorni ceded to the United States that year. This tract is commonly identified as Royce Area 148. There were no known permanent |