purported 1845 sale". In a July, 1849 letter to the Commissioner of Indian Affairs, Gates acknowledged that he was not successful in getting an act of Congress passed and would not be able to pay Shab-ch-nay what he owed him for the land."

la a letter dated July 10, 1849. Commissioner of Indian Affairs Orlando Brown, wrote to the Commissioner of the General Land Office, J. Butterfield, about Shab-ch-nay`s purported sale of the Reservation to the Gates Brothers, and enclosed a copy of a leaer he received from William (aka Orrin) Gates". In his July 14, 1849 letter's responding to Commissioner Brown. Commissioner J. Butterfield, suggested that the Office of Indian Affairs conduct an investigation into the purported sale of the Shab-eh-nay Band Reservation, including the consideration paid for the land and the length of time Shab-eh-nay occupied the Reservation. Commissioner Butterfield stated that he knew Shab-eh-nay personally and was aware of his good character and long period of residence on the Reservation. He suggested that the Office of Indian Affairs sponsor legislation to grant fee title to Shab-ch-nay, subject to the restriction that the President approve any conveyance.

Commissioner Brown rejected both of Commissioner Butterfield's suggestions in his letter of July 18,1849. Brown stated that a review of the records of the Office of Indian Affairs indicated that on November 8, 1841 Shab-eb-nay applied to Congress for an appropriation of $1,600 as compensation for the two sections of land he received in the Treaty of Prairie du Chien, but noted that no subsequent action was taken. He also stated that other people had alleged claims to portions of the two sections that composed the Reservation, claiming that the land had been purchased. He added that in each case, the claimants had been informed that the treaty did not grant Shab-eh-nay or his band authority to sell the Reservation, and that e President could not sanction any sale that might have been made. In addition, Commissioner Brown asserted that the Treary of Prairie du Chien had not vested any title in Shab-eh-nay and his band because it only granted them the right to use the land. In particular, he relied on the fact that the Senate had removed Article 5, which would have granted the title to the Reservation in

12 The transcript of a letter dated July, (the date is not legible) 1849 from William (Orrin) Gates to Commissioner Medill requesting the delay was printed in Dowd's Built Like a Bear at pages 147-148. The letter is in Reserve File A-416 at the National Archives.

13

" Id.

14 Id. at pages 148-149. The letter is in Reserve File A-416 at the National Archives. is Id. at pages 149-150. The letter is in Reserve File A-416 at the National Archives.

16 Id. at page 151. The letter is in Reserve File A-416 at the National Archives.

fee simple to Shab-eh-nay and his Band". from the Treaty of Chicago of 1833. He noted that the attempts by the Gates Brothers to obtain legislation authorizing the sale had failed. In light of those circumstances, he would not reopen the case or otherwise alter Commissioner Medill's decision.

The General Land Office at Dixon. Illinois held a public auction of the two sections of the Shabeh-nay Band Reservation on November 5, 1849. The lands were acquired by non-Indians, who received patents from the United States on June 1. 1850". When Shab-eh-nay and his family returned to Illinois in 1851 or 1852 after an exteaded visit with relatives in Kansas, non-Indians had taken possession of the Reservation. According to the information submined by attorneys for the Prairie Band all subsequent attempts by Shab-eh-nay and his relatives and friends to regain possession of the Reservation were unsuccessful. Shab-eh-nay was able to remain in the area near the Reservation through the generosity of his non-Indian friends. He died in 1859 in Grundy County, Illinois without regaining possession of the Reservation or receiving compensation for its loss. Like Shab-eh-nay, his heirs were not able to obtain any form of redress for the loss of the Reservation despite numerous attempts.

Walker's account of the movements of Shab-ch-nay and his family is corroborated by William Norton in an affidavit dated October 18, 1864. Norton, a resident of De Kalb County Illinois, stated that Shab-eh-nay and his family were living on the Reservation at Shab-ch-nay's or Shabonna's Grove when he arrived in 1845. According to Norton, Shab-eh-nay and his family left their home on the Shab-ch-nay Band Reservation to go to Kansas in about 1848 (but it may have been 1849) and stayed there for about a year (probably longer), leaving the Reservation in his care. Approximately two months after Shab-eh-nay and his family departed for Kansas, an agent of the General Land Office sold the Shab-ch-nay Band Reservation at public auction.

17 Commissioner Brown's statement is incorrect. Article 5 of the 1833 Treaty of Chicago would have granted fee simple title to Shab-ch-nay and his heirs, and would not have granted such title to the Band.

"Letter of May 2, 1896 from D. F. Best, Assistant Commissioner of the General Land Office, to the Commissioner of Indian Affairs. A transcript of this letter appears in Dowd's Built Like a Bear at page 175. The letter is in Reserve File A-416 at the National Archives.

19 United States Patent Certificates 31284 through 31291 were issued to Reuben Allen and United States Patent Certificates 31290 through 31299 were issued to William Marks by the General Land Office. Copies of these patent certificates were provided by the attorneys for the Prairie Band of Potawatomi Indians of Kansas.

* Affidavit of William Norton (October 18, 1864) was enclosed with E. ́S. Smith's letter of January 27, 1865 to H. J. Alvord. Transcripts of the letter and the affidavit, which was one of three, were printed in Dowd's Built Like a Bear at pages 165-167 and 169-171. Both of the documents, the letter and the affidavit, are in Reserve File A-416 at the National Archives.

Norton stated that Shab-ch-nay was unaware of the sale of the Reservation until about later, when he and his family returned to Illinois and Norton told him about it.

The events recounted by Walker and Norton were substantiated several years later by nay himself. when he sought to regain possession of the Reservation with the help of attorneys and friends. In a June 17,1853 letter written by John H. Kinzie" to the Commissioner of Indian Affairs. and a September 6. 1854 letter from his attorney. J. W. Paddock of Paddock and Ward, to the Secretary of the Interior. Shab-eh-nay requested information on the status of the title of the Reservation and the basis for its sale. A response to Mr. Kinzie was provided by the Acting Commissioner of Indian Affairs Charles E. Mix in a letter dated June 25, 1853". Acting Commissioner Mix responded to Messrs. Paddock and Ward in a letter dated October 5, 1854. In each response Acting Commissioner Mix repeated the assertion that Shab-eh-nay and his Band only had the right to use the Reservation, repeating Commissioner of Indian Affairs William Medill's erroneous statements of fact and law by asserting that Shab-eh-nay and his Band lost the right to use the Reservation by abandoning it. Years later, the assertions in Commissioner of Indian Affairs Medill's letter were cited again as fact by government officials who received inquiries concerning the existence of the Band's reservation".

ISSUES

I.

What type of title to the Reservation did Shab-eh-nay and his band possess? Has that title been extinguished?26

"The transcript of this letter appears in Dowd's Built Like a Bear at page 152. The letter is in the National Archives in Reserve File A-416.

"The transcript of this letter appears in Dowd's Built Like a Bear at pages 153- 154. The letter is in the National Archives in Reserve File A-416.

"The transcript of this letter appears in Dowd's Built Like a Bear at pages 152- 153. The letter is in the National Archives in Reserve File A-416.

24 The transcript of this letter appears in Dowd's Built Like a Bear at page 154. The letter is in the National Archives in Reserve File A-416.

"Shab-ch-nay submitted letters of inquiry through his friends and attorneys in 1853, 1854, and 1859. Following his death in 1859, Shab-ch-nay's family continued the attempt to regain possession of the Reservation, corresponding with government officials in 1864, 1896, 1897, and 1902. The transcripts of these documents appear in Dowd's Built Like a Bear at pages 152-178. The documents are in Reserve File A-416 at the National Archives.

* This discussion of recognized title and aboriginal title does not include an analysis of . the Court of Federal Claims' decision in Alabama-Coushatta Tribe v. United

Under the doctrine of discovery, legal title vested immediately in the sovereign nation of the explorer who discovered it, subject to the right of use and occupancy of the Indians who were living on it. Sac and Fox Tribe of Indians v. United States, 383 F. 2d 991,996-997 (Ct. CI.1967). In that case, the Court of Claims discussed both the title of the United States, which possessed sovereign title, and the title of the Tribe, which possessed Indian (aboriginal) title. Id. Referring to Justice Marshall's decision in Johnson and Graham's Lessee v. Macintosh, 21 U.S. 543, 570-603 (1823), the Court of Claims stated that discovery of new land by European nations carried with it the right of sovereignty or sovereign title. Sovereign title gave the government of the European nation that discovered the land the legal title and the absolute right to extinguish Indian title. However, the right of sovereignty over discovered land was always subject to the right of use and occupancy of the land by the Indians inhabiting it. This right of use and occupancy is known as Indian title. Indian title is owned by a tribe and is subject to the tribe's laws and customs. Furthermore, Indian title may not be sold to another sovereign nor to any person without the approval of the government of the discovering nation. Holden v. Joy, 84 U. S. (17 Wall.) 211 (1872) quoted in Felix S. Cohen, Original Indian Title, 32 Minnesota Law Review 28, S2 (1947).

The right of an Indian tribe to use and occupy land that it inhabited was acknowledged by the United States Government in its acquisition and sale of land subject to Indian title. The Sac and Fox Tribe of Indians v. United States, 383 F. 2d. 991,996-997 (Ct Cl.1967). Indian title can be extinguished only by an act of the sovereign, and only Congress can divest an Indian tribe of its uide to land. United States v. Celestine, 215 U.S. 278, 285 (1909) quoted in Solem v. Barden, 465 U.S. 464, 470 (1984). The Supreme Court has ruled that Indian title may be abrogated “by treaty, by the sword, by purchase, [or] by the exercise of complete dominion adverse to the right of occupancy" United States v. Santa Fe Pacific Railroad, 314 U.S. 339, 347 (1941). However, Indian title is not extinguished in the absence of a plain and unambiguous expression by Congress of its intent to do so. Id. at 353-354.

In the early to mid-nineteenth century, Indian title included both treaty recognized title and aboriginal title. The distinction between the two types of "Indian title" was not important because the United States paid compensation to Indian tribes for their lands whether or not their title had been recognized in a treaty or statute. Kelly, Indian Title: The Rights of American Natives in Lands They Have Occupied Since Time Immemorial. 75 Columbia Law Review, 655686 (1975). As Felix Cohen stated in Original Indian Title, 32 Minnesota Law Review 28-59 (1947), much of the United States' territorial expansion was accomplished through treaties in which American Indian tribes ceded lands to which they held Indian (aboriginal) title in exchange for treaty recognized title to smaller portions of that land which became known as reservations. In Lac Courte Oreilles Band v. Voigt, 700 F.2d 341, 352 (7th Cir. 1983), the Court noted that "treaty recognized title" referred to congressional recognition of a tribe's right to occupy land permanently, and constituted a legal interest in the land. As such, it could be

States, Congressional Referral 83,- which was released on June 19, 2000. The decision and its possible impact on the Shab-eh-nay Band Reservation is being studied.

extinguished only upon the payment of compensation. United States v. Creek Nation. 295 U.S. 103 (1935) and United States v. Sioux Nation. 448 U.S. 371, 415 n. 29 (1980).

As Kelly observed, the respect for Indian tide that has been demonstrated in Congressional recognition of Indian tribal lands was the result of an awareness that Indian tribes could be formidable enemies. Early in the history of the United States, the Supreme Court held that the Constitution vested the whole power of regulating political and economic relations with Indian tribes in the federal government. Worcester v. Georgia, 31 U.S. 515 (1832), and Cherokee Nation v. Georgia, 30 U.S. I (1831). Having established that relations with Indian tribes were exclusively within the purview of the federal government, the Supreme Court held that abrogation of treaty recognized property rights was not to be lightly imputed to Congress. Menominee Tribe v. U.S., 391 U.S. 404, 412413 (1968).

In Lone Wolf v. Hitchcock, 187 U.S. 553. 564–565 (1903), the Supreme Court acknowledged that Congress has exclusive and plenary power to deal with matters of Indian title. The unilateral action of an officer of the executive branch which has not been authorized by Congress cannot eliminate or extinguish Indian title. Cramer v. United States, 261 U.S. 219 (1923), Turtle Mountain Band of Chippewa Indians v. United States, 490 F.2d 935, 945 (Ct. Cl. 1974), 203 CL CL 426. Any actions taken by the executive branch to extinguish Indian title depend for their efficacy upon Congress' acquiescence. United States v. Southern Pacific Transportation Co., 543 F.2d 676, 689 (9th Cir. 1976). Furthermore, the United States cannot convey an interest that it does not possess. United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339 (1941), Mitchel v. United States, 34 U. S. (9 Pet.) 711, 743 (1835).

When the foregoing rulings are applied to the Shab-ch-nzy Band Reservation, it becomes evident that the Shab-eh-nay Band Reservation continues to exist. In Citizen Band of Potawatomi Indians of Oklahoma v. United States, 391 F. 2d 614 (Ct. Cl. 1967), cat. denied 389 U.S. 1046 (1968), the Court of Claims held that under the terms of the Treaty of August 24, 1816 the United States conveyed recognized title to the United Tribes of Ottawas, Chippewas, and Potawatomis in the areas that were subsequently ceded to the United States in the Treaty of Prairie du Chien of 1829. Thus, the three individual leaders and their bands that retained reservations in the ceded area pursuant to the Treaty of Prairie du Chien of July 29, 1829 held recognized title, rather than mere aboriginal title, to those reservations. Through ratification of the Treaty of Prairie du Chien of July 29,1829, the United States confirmed its recognition of tribal title to the lands the tribes retained under the treaty.

Moreover, there is no evidence to support the contention that Shab-ch-nay and his band voluntarily abandoned the Reservation. However, even if it were true that Shab-ch-nay's Band had abandoned the land, the Band's treaty recognized title to that land could not be extinguished without Congressional action. As a matter of law, voluntary abandonment could not extinguish recognized útle without Congressional action. The necessity for the expression of Congressional intent and action on recognized Indian tide is so important that land which had never been occupied by an Indian tribe has been held to be that tribe's land because Congress had recognized