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The United Tribes of Ottawas. Chippewas, and Potawatomis residing on the Illinois and Milwaukee Rivers and their waters, as well as the southwestern parts of Lake Michigan". entered into a treaty of friendship with the United States on August 24. 1816.7 Stat. 146. Article I of the Treaty of August 24. 1816 provided that the United Tribes would relinquish to the United States all rights, claim, and title to the northem portion of those lands in northwestern Illinois which the United States acquired by cession from the United Sac and Fox Tribes in the Treaty of November 3.1804, 7 Stat. 84. Pursuant to Article 2 of the Treaty of August 24. 1816. the United States relinquished its interest in the southern portion of the United Sac and Fox cession of 1804 to the United Tribes and confirmed and recognized the title of the United Tribes to the area.

Some thirteen (13) years later, the United Nations of Chippewa, Oñawa, and Potawatomi Indians of the waters of the Illinois, Milwaukee, and Manitoouck Rivers ceded their lands around the southern shore of Lake Michigan and in northern Illinois to the United States in the Treaty of Prairie du Chien of July 29, 1829, 7 Stat. 320. The lands which were ceded were the same lands to which the United Tribes received recognized title pursuant to Article 2 of the Treaty of August 24, 1816. Article 3 of the Treaty of July 29,1829 provided that the lands of three chiefs and their bands would be reserved from the cession. Among the lands reserved from cession were those of Chief Shab-ch-nay, a prominent leader among the Potawatomi, and his Band, who received two sections (1,280 acres) at their village near Paw Paw Grove, Illinois. In Citizen Band of Potawatomi Indians of Oklahoma v. United States, 391 F. 2d 614 (CL Cl. 1967), cert. denied 389 U.S. 1046 (1968), the Court of Claims held that by the Treaty of August 24, 1816, the United States conveyed recognized title to the lands ceded to the United Tribes of Ottawas, Chippewas, and Potawatomis. While most of lands conveyed to the United Tribes in 1816 were reconveyed to the United States in the Treaty of Prairie du Chien of July 29,1829, the legal status of the lands of the three chiefs and their bands did not change. The three chiefs and their bands held recognized title to the lands reserved for them in the 1829 treary.

As its non-Indian population increased, the United States bought more land from the tribes in Ohio, Michigan, Illinois, Indiana, Wisconsin, and Minnesota to sell to nou-Indian settlers. As part of its effort to remove all Indian tribes from Illinois, the United States purchased tribal lands and began to settle the ladian population of Illinois on reservations west of the Mississippi. Additional treaties ceding tribal lands were negotiated with the Potawatomi bands and other tribes in the 1830's. The treaties which are pertinent with regard to the Prairie Band of Potawatomi's claim to the Shab-ch-nay Band Reservation are the Treaty of October 20, 1832, 7 Stat 378, which was signed at Tippecanoe, and the Treaty of September 26, 1833, 7 Star 431,

of this preliminary report, the Office of the Solicitor has relied on the correctness of these copies and has not obtained certified copies of the documents or conducted independent research in the National Archives.

? The United Tribes of Ottawas, Chippewas, and Potawatomis were designated the United Nations of Chippewa, Ottawa, and Potawatomi Indians in subsequent treaties with the United States..

which was signed at Chicago.

The Treaty of October 20, 1832, also referred to as the Treaty of Tippecanoe, contained cessions of land by the Potawatomi Tribe of Indians of the Prairie and Kankakee to the United States. Article 2 of the treaty provided that several tracts for individuals would be excluded from the cession. Among the areas excluded was a tract of two sections (1,280 acres) for Sho-bon-ier at his village. Sho-bon-ier, who was French and Potawatomi, was a less prominent chief than Shab-ch-nay. Because he was half French. Sho-bon-ier was referred to in some contemporary documents as Chevalier. Article 4 required the United States to pay money to a number of individuals for the loss of their horses. Among those receiving such payments was Sho-bon-jer., even though he was a signatory to the treaty. Many chiefs signed the treaty, including Shab-chnay, whose name was transcribed as Shab-eh-neai.

The Treaty of September 26, 1833, 7 Stat. 431, also known as the Treaty of Chicago, was a cession of approximately five million acres in Illinois and Wisconsin by the United Nation's of Chippewa, Ottowa, and Potawatomi Indians to the United States. It should be noted that both Shab-ch-nay and Sho-bon-ier were signatories to this treaty as well. The Treaty of Chicago also contained modifications of title to some of the lands reserved in the Treary of Prairie du Chien and the Treaty of Tippecanoe. In particular, Article 5 of the Treary of Chicago provided that the title to the Shab-ch-nay Band Reservation would be converted to the private property of Shab-chnay and his heirs.

During its deliberations on the ratification of the Treaty of September 26, 1833 (the Treaty of Chicago), the Senate rejected Article 5, striking it from the document 4 Journal of the Executive Proceedings of the Senate 384 (April 7, 1834). With the elimination of Article 5, title to the two sections of land in what is now De Kalb County retained the status of tribal communal land with recognized title remaining in Shab-ch-nay and his Band. The Senate's rejection of Article 5 is one of the sources of the confusion concerning the ownership of the property in later years. Apparently unaware that Article 5 was no longer part of the treaty, Shab-eh-nay's Band acted in accordance with the belief that the treaty provision required them to leave Illinois with the other Indian tribes. In an 1859 letter, a former officer in the United States Army, Captain J. B. F. Russell, stated that he had been employed in 1836 by the War Department to remove the Potawatomis near Chicago to Council Bluffs, Missouri. In his letter, Captain Russsell also stated that Shab-ch-nay had assisted in the successful removal of his tribe'.

Another account of the removal of Shab-ch-nay and his Band is found in the affidavit of George E. Walker, a resident of La Salle County who had known Shab-ch-nay since 1827. According to Walker, Shab-ch-nay and his Band accompanied hundreds of Indians from the tribes that were

J Letter of May 31, 1859 to Lewis Cass, Secretary of State, from J. B. F. Russell. Captain Russell's account notwithstanding, it is believed that Shab-ch-nay and his Band made the move withour reliance on a government conductor since there are no official records showing who traveled with Shab-ch-nay. See, Affidavit of Dr. James Clifton 12 (Jan. 5, 1998).

being removed from the area cast of the Mississippi to the west bank of the river in Kansas [Territory) in 1837. Affidavit of George E. Walker (October 24. 1864). Walker's affidavit also states that Shab-eh-nay and his family returned to Shab-eb-nay`s or Shabonna's Grove (the Shabch-nay Band Reservation) about two years later in 1839.

Walker's recollection of the events surrounding the removal of the Indian tribes from Illinois, as stated in his affidavit of October 24, 1864, is consistent with Shab-ch-nay ́s understanding of the 1833 treaty. Pursuant to Article 5 of the Treaty of 1833, which was striken from the Treaty by the Senate during ratification, title to the Shab-ch-nay Band Reservation would have been converted to Shab-eh-nay`s personal property. The return of Shab-eh-nay to Illinois after the 1836 removal of the tribes provides an indication that Shab-eb-nay did not know that the Senate had rejected Article S of the 1833 treaty. On his return journey to Illinois, he was accompanied solely by his family and not by any other members of the Band because it was believed that the Reservation had become his personal property, and that the Treaty of 1833 required all of the tribes to leave Illinois. Affidavit of Dr. James A. Clifton (January 5, 1998) at pages 12-13'.. Shab-eb-nay and his family lived on the Reservation in Illinois from 1839 to 1849, making three or four trips to Kansas to visit relatives who had moved with the Prairie Band to the reservation in Kansas. Shab-ch-nay's loss of possession of the Reservation had its origin in his purported sale of part of the Reservation. According to an October 15, 1845 letter to President James K. Polk written by Coalman Olmstead, a resident of Shabbona's Grove, Shab-ch-nay sold the west half section of Section 25 (320 acres) of the Reservation to Wilbur F. Walker for $600 dollars in 1839. According to Olmstead, Walker paid Shab-ch-nay only $200 of the agreed purchase price of $600.

In a July 25, 1864 letter to Secretary of the Interior J.P. Usher, Shab-eh-nay's widow, three of her daughters, and a grandson wrote that they had requested E. S. Smith, a Chicago attorney, to initiate an ejectment suit or otherwise reclaim their rights, as survivors of Shab-chnay's Band, to the land granted in the 1829 treaty. Apparently Mr. Smith requested affidavits from George E. Walker, General R. K. Swift, William Norton, and Levi Kelsey (or Kelsig) because he subseqently enclosed those affidavits and written statements in a January 27, 1865 letter to H. J. Alvord, requesting the matter be investigated and action taken. This letter has been published in James P. Dowd's biography of Shab-ch-nay, Built Like a Bear (Fairfield, Washington, 1979), at pages 165-166. The letter is at the National Archives in Reserve File A416.

" Dr. Clifton is a well known ethnohistorian and author of a history of the Potawatomis entitled People of the Prairie. He was retained as an expert by the attorneys for the Prairie Band of Potawatomi Indians of Kansas to assist in the preparation of the Prairie Band's claim to the Shab-ch-nay Band Reservation.

6 A transcription of that letter is in Dowd's Built Like a Bear at pages 145-146. The letter is at the National Archives in File A-416.

In his October 15, 1845 letter to President Polk. Olmstead claimed that Shab-ch-nay refused to give Walker a deed for the 320 acres because Walker had not paid him the remaining balance of the purchase price. Olmstead claimed that he purchased the property from Walker for $1.400 in 1840 and received a deed from Walker, adding that he. Olmstead, offered to pay Shab-ch-nay the S400 balance due from Walker in order to obtain a deed to the 320 acres. Despite Shab-eh-nay`s purported consent to the arrangement. Olmstead did not receive the deed. Olmstead asserted that Shab-eb-nay was persuaded not to go through with the transaction by one of the Gates Brothers. who were land speculators. Olmstead asked President Polk to withhold approval of any deed issued by Shab-eb-nay to the Gates Brothers. Olmstead requested that the President approve a deed from Shab-eh-nay to him, provided that he paid Shab-eh-pay the $400 balance due from Walker. It appears that Olmstead did not receive a reply to his request because he wrote to the Commissioner of Indian Affairs, William Medill. on November 24, 1845, offering to pay Shabch-nay $400 in exchange for a deed.'

While Olmstead was corresponding with government officials to get approval of the proposed payment to Shab-ch-nay to complete the alleged sale of 320 acres of the Reservation, Orrin (aka William. Worsham, Wiram or Wyram, Wyman) Gates, one of the Gates Brothers, was attempting to get deeds for the entire Reservation approved in Washington with the assistance of his district's representative, John Wentworth. In a May 6, 1848 letter to Commissioner of Indian Affairs Medill, Representative Wentworth requested that the three deeds enclosed with his letter, which were for the purported sale of the Shab-eh-nay Band Reservation by Shab-eb-pay to the Gates Brothers, be approved. Wentworth stated that the Gates Brothers had informed him that Shab-eb-nay sold the Reservation to them in 1845. Two of the deeds enclosed with the letter were made to Ansel (aka Asel) Gates, one for 320 acres and one for 640 acres, while the third deed was made to his brother, Orrin (aka Wyman) Gates, for 320 acres. All three deeds were

'Olmstead's claim that Shab-eh-nay attempted to sell part of the Reservation to Walker has not been confirmed by any documentation that has been cited by the Prairie Band's experts or the attorneys for the State of Illinois in their analysis of the Reservation.

'A transcript of this letter appears in Dowd's Built Like a Bear at page 146. The document is in Reserve File A-416 at the National Archives. The letter states that deeds were enclosed, and references other unspecified letters that Representative Wearworth sent to the Department of War.

'The three deeds were mentioned briefly in a May 27, 1848 letter from Commissioner of Indian Affairs Medill to Representative Wentworth. The transcript of that letter appears in Dowd's Built Like a Bear at pages 146-147. The document is in Reserve File A416 at the National Archives. In that letter Commissioner Medill stated that the three deeds, which had been submitted with Representative Wentworth's letter of May 6, 1848, were being returned.

dated December 1, 1845 and were reputedly signed by Shab-eh-nay in Washington. D.C."

In his May 27, 1848 letter responding to Representative Wentworth. Commissioner of Indian Affairs Medill stated that Article 3 of the Treaty of Prairie du Chien of July 29,1829 granted two sections of land to Shab-eh-nay and his band. He declared that he believed that the 1829 treaty did not give Shab-eb-nay authority to sell the Reservation. Commissioner Medill stated that the Treaty of Prairie du Chien gave Shab-ch-nay and his band the right to use the two sections, bur when the property was abandoned it became part of the public domain. Commissioner Medill declared that since the people for whom the Reservation was created (Shab-ch-nay and his band) appeared to have ceased to use it, the Commissioner of the General Land Office had the right to reclaim it as public land. There is no indication that Commissioner Medill made any inquiries or conducted an investigation to determine whether or not Shab-ch-nay and his family had actually abandoned the Reservation. His letter of May 27, 1848 implies that the alleged attempt by Shabeh-nay to sell the Reservation was sufficient to establish that the Reservation had been abandoned.

On August 12. 1848, the General Land Office issued an order to sell the Shab-eh-nay Band Reservation at public auction". At the request of Orrin (aka William) Gates, the auction was postponed on October 17, 1848 to permit him time to seek Congressional authorization for the


1o In a July 3, 1849, letter to the Commissioner of Indian Affairs Medill, Orrin Gates admitted that he did not pay the remaining balance to Shab-eh-nay for land on the Reservation. A transcript of that letter appears in Dowd's Built Like a Bear at pages 147-148. The document is in Reserve File A-416 at the National Archives.

The purported deeds that Gates and his brother presented to Representative Wentworth may have been fraudulent. This inference prompted by a deed dated March 5, 1847 and recorded March 11, 1847 in De Kalb County, Illinois, which is an "indenture” between Asel A. Gates and his wife, Mary, and Francis Howe, trustee for Shambenee [Shab-eh-nay], an Indian Chief of Chicago, Illinois. The "indenture" is for the sale of 50 acres in the South East corner of Section 26, T. 38 N, Range 3 E, Third Prinicipal Meridian in Illinois for $450. The land in the legal description is within the external boundaries of the Reservation. If the three 1845 deeds were valid, this 1847 purchase would not be necessary. The 1847 deed implies that at least one of the Gates Brothers did not believe that they owned all of the two sections that constituted the Reservation. A copy of the 1847 was provided by the attorneys for the Prairie Band of Potawatomi.

"This information was obtained from a July 14, 1849 leuer from the Commissioner of the General Land Office, Butterfield, to the Commissioner of Indian Affairs, Brown. The letter is printed in Dowd's Built Like a Bear at pages 149-150.


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