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its title to it over a period of years. See New York Indians v. United States. 170 U.S. 1 (1898). modified on other grounds, 170 U.S. 614 (1898).
Furthermore, Commissioner of Indian Affairs Medill`s conclusion that the Shab-eh-nay Band Reservation had been abandoned was factually erroneous. It was erroneous because Shab-eh-nay and his family, who were members of the Band resided on the Reservation from 1839 to 1849. when they were dispossessed. During this period of residency. Shab-ch-nay placed the property under the care of a friend or neighbor when he and his family went to visit his relatives in Kansas. See Affidavits of George E. Walker and William Norton.
Congress has never passed any statute or ratified any treaty which would have extinguished the Shab-ch-nay Band's title to the Shab-eb-nay Band Reservation. In fact, the Court of Claims ruled that the Potawatomi successors in interest to the United Nations of Chippewa. Ottawa, and Potawatomi Indians were to receive the value of Royce Area 148 (where the Shab-ch-nay Band Reservation is located) less the 16,640 acres which had been reserved for the individual bands under Articles 3 and 4 of the Treaty of Prairie du Chien of 1829. Citizen Band of Potawatomi Indians of Oklahoma v. United States 391 F.2d 614, 622-625 (Ct. CL. 1967) cert denied 389 U.S. 1046 (1968). Because no statute or treaty has been enacted or ratified which would provide for the payment of compensation for the Shab-eh-nay Band Reservation, the Reservation continues to exist.
II. What tribe is the successor in interest to the Shab-ch-nay Band?
Because a reservation was retained for Shab-ch-nay and his Band out of the cession of the Treaty of Prairie du Chien of July 29, 1829, it is necessary to determine what current tribe is entitled to assert a claim to that reservation. It is clear that the Shab-ch-nay Band no longer exists as a separate entity. Therefore, we had to determine what tribe, if any, is the successor in interest to the Shab-eh-nay Band. Both the Prairie Band of Potwatomi Indians of Kansas and the Ottawa Tribe of Oklahoma have alleged that they are the successor in interest to the Shab-eh-nay Band. The Prairie Band of Potawatomi have presented substantial materials to support their claim and the Ottawa bave indicated that they intend to submit materials, though they have not done so to date. No other tribes have expressed an interest in pursuing this claim.
Based on our review of historical documents and legal analysis", we have determined that the Prairie Band of Potawatomi Indians of Kansas has the strongest claim that it is the successor in interest to the Shab-ch-way Band and is entitled to enforce the land claim. The Prairie Band has shown that the Shab-ch-nay Band merged with the Prairie Band while they were on the Council
"The Branch of Tribal Government and Alaska within the Division of Indian Affairs has prepared a more extensive memorandum addressing the historical record, the legal arguments, and the potential claimants. The memorandum is available upon request. The analysis was based primarily on materials submitted by the Prairie Potawatomi. We are certainly willing to consider any materials presented by other tribes.
Bluffs Reservation in lowa. Because the two groups merged the Prairie Band at Council Bluffs became the successor in interest to the Shab-eh-nay Band, and the rights of the Shab-eh-nay Band became those of the larger group. The present day Prairie Band of Potawatomi Indians of Kansas evolved from the Prairie Band at Council Bluffs. Therefore, the Prairie Band of Potawatomi Indians of Kansas is entitled to assert the claim to the Shab-eh-nay Band Reservation.
REBUTTAL TO THE ARGUMENTS PRESENTED BY THE
STATE OF ILLINOIS IN SUPPORT OF THE DISESTABLISHMENT OF
The Governor of Illinois, through private counsel, has presented a number of factual and legal arguments in suppon of the theory that the Shab-eh-nay Band Reservation has been
disestablished by Congress. Some of these arguments are based on erroneous facts or erroneous statements of law. The following is a discussion of those errors:
1. Shab-eh-nay and his band held only aboriginal title, and lost that title when they abandoned the Reservation voluntarily.
This statement is both legally and factually inaccurate. In the Treaty of November 3, 1804, 7 Stat. 84, the United States acquired the interest of the United Sac and Fox Tribe. Then, the United States conveyed its interest in that land to the United Tribes of Onawas, Chippewas, and Potawatomis in the Treary of August 24,1816, 7 Stat. 146. The tide that the United States conveyed to the United Tribes was recognized title, according to the ruling of the Court of Claims in Citizen Band of Potawatomi Indians of Oklahoma v. United States, 391 F. 2d 614. 622-625 (Ct. Cl. 1967) cert. denied 389 U.S. 1046 (1968). Thus, reservations for the three chiefs and their bands that were provided for in the Treaty of Prairie du Chien of July 29,1829 were not lands that were held under aboriginal tide, but were lands that were held under treaty recognized title.
The State of Illinois is also relying on a September 20, 1833 opinion written by Attorney General Roger B. Taney on the title to the Potawatomi reservations created by the Treary of October 20, 1832 at Tippecanoe, 7 Star 378. 2 Op. Atty. Gen. 587, Sept. 20, 1833. Attomey General Taney concluded that Indian title (î.e, aboriginal title) to the reservations which were withheld from the lands ceded to the United States was not extinguished by the ratification of the Treaty of Tippecanoe. The State of Illinois argues that the Potawatomis held merely the right to use (usufruct) the lands that were reserved for individuals from the cession made in the Treaty of Tippecanoe, or in other words, that recognized treaty title was not created by the Treaty. By making this argument, the State is trying to provide a legal basis for the assertion that title to the Reservation was extinguished by unilateral, voluntary abandonment. Furthermore, the State of Illinois contends that the type of title or interest the Potawatomis held in lands reserved by the Treaty of Tippecanoe is the same type of title under which the reservations referred to in the Treaty of Prairie du Chien were held.
The State of Illinois' arguments are invalid because, as discussed above, the Shab-eh-nay Band Reservation was created by treaty, which conveyed recognized title to Shab-ch-nay and his Band. Voluntary abandonment is a defense to aboriginal title because aboriginal title is dependent on actual, continuous, and exclusive possession of the land. Cayuga Indian Nation of New York v. Cuomo, 758 F. Supp. 107, 110 (N.D. New York 1991). Voluntary abandonment is not a defense to treaty recognized title because extinguishment of treaty recognized title requires the consent of the sovereign. United States v. Santa Fe Pacific Rail Road Co., 314 U.S. 339 (1941); Buuz v. Nonthem Pacific Railroad. 119 U.S. 55 (1886). Treaty recognized title can be extinguished only by statute or treaty expressing a clear intention by Congress to extinguish it. Oneida Indian Nation v. County of Oneida, 414 U.S. 66Į (1974); Lipan Apache Tribe v. United States. 180 Cr. Cl. 487 (1967): United States v. Northern Paiute Nation, 183 Ct. CL 321, 393 F.2d 786 (1968).
The distinction between treaty recognized title and aboriginal title emerged after the Supreme Court's decision in Tee Hit-Ton v. United States, 348 U.S. 272 (1955). In Tee Hit-Ton, the Supreme Court held that the Fifth Amendment did not apply to aboriginal title but did attach to recognized or treary title. Recognized or treaty title must be extinguished by Congress in a statute or treaty and the tribe must be compensated. Recognized or treaty title cannot be extinguished by the mere assertion of an official of the executive branch that the Indians occupying the land have abandoned it. Rather, Congress must clearly express its intent to permit extinguishment of title to an Indian reservation. United States v. Santa Fe Pacific Rail Road, 314 U.S. 339, 347 (1941). In addition, Illinois' argument that aboriginal title can be voluntarily abandoned ignores the policy that the United States pursued during that period, which was to compensate Indian tribes for all lands they occupied and used. Id. at page 345. That policy also required that Indian title (which at that time included aboriginal title as well as recognized title) be extinguished by obtaining a voluntary cession of the land. Congress pursued a policy of negotiating cessions of tribal lands from 1795 through 1871. Those negotiations included aboriginal as well as treaty recognized lands. Cohen, Handbook of Federal Indian Law (1982 ed.), at page 517.
With regard to the factual issue of voluntary abandonment, Illinois is relying upon Commissioner Medill's letter of May 27,1848 and Commissioner Manypenny's leuer of April 12, 1856, both of which are contained in House Report 34–40, as evidence that Shab-eh-nay and his Band abandoned the Reservation. A careful reading of the correspondence between the Office of Indian Affairs and the General Land Office indicates that no investigation was ever conducted to determine whether or not Shab-eb-nay and his family or members of his band were occupying the Reservation in 1849. However, there are two 1864 affidavits by George Walker and William Norton which state that Shab-ch-nay and his family were living on the Reservation in 1848 and had just departed for Kansas for a period of one to two years to visit friends and relatives when the General Land Office sold the Reservation in 1849. Both men declared that Shab-eh-nay left the Reservation in the care of non-Indian friends during his periodic trips to Kansas.
2. Congress extinguished any tribal title through the appropriation of 1852.
This assertion is factually inaccurate and emphasizes the confusion that has occurred because Shab-ch-nay and Sho-bo-nier (aka Chevalier) were contemporary Potawatomi leaders of separate bands that received reservations in provisions of two distinct treaties. The property which was the subject of the Act of July 21,1852, 10 Stat. 20, was land which was reserved for the Potawatomi chief. Sho-bo-nier. He received a reservation of two sections of land near his village under Article 2 of the Treary of October 20,1832, 7 Stat. 378. However, Sho-bo-nier's village was in Indiana and was not part of the land ceded to the United States in Illinois in the 1832. treaty". Letter of July 29, 1851 from Parks and Elwood, attomeys for Shab-ch-nay, to Commissioner of Indian Affairs Lea, and letter of September 24, 1863 from Acting Commissioner of Indian Affairs Mix to Secretary of the Interior Usher. Due to the mistaken description of his village's location. Sho-bo-nier did not receive actual possession of any land in the ceded area. Lefter of September 24, 1863 from Acting Commissioner of Indian Affairs Mix to Secretary of the Interior Usher. However, it was determined that he should be paid an amount equivalent to the value of two sections of land in the area of the cession. Letter of July 1, 1839 from Thomas H. Crawford, War Department's Office of Indian Affairs to Major John Dougherty. Although Sho-bo-nier died in 1851, his heirs received payment for his interests in two unspecified sections of land in the ceded area in accordance with the Act of July 21, 1852. On March 21, 1853 the heirs of Sho-bo-nier relinquished their claim to the land for $1,600. Letter of October 26, 1877 from E. Haut to S.C. Linn. The documents referenced in this paragraph are in Reserved File B-27 at the National Archives. Transcripts of these documents were published in Dowd's Built Like a Bear at pages 115-133.
3. Most historians agree that the Treaty of October 20, 1832 at Tippecanoe merely confirmed those lands reserved in the Treaty of Prairie du Chien of 1829.
This argument is also incorrect. Dr. James Clifton, an expert ethnohistorian, was retained to assist in the preparation of the Prairie Band of Potawatomi's claim to the Shab-ch-Day Band Reservation. In his July 21, 1998 supplementary affidavit, Dr. Clifton addressed the validity of the sources of information used by the historians of the nineteenth century who wrote about the Shab-ch-nay Band Reservation. Dr. Clifton points out the factual inaccuracies in the works of those historians, most of which were based on secondary sources. He observed that those historians appear to have been unaware that Shab-ch-nay and Sho-bo-nier were two different Potawatomi leaders.
Regardless of what may have been the opinions of most nineteenth century historians, it is clear from reading the two treaties that the assertion that the reservations contained in both documents are the same is not based on fact. Articles 3 and 4 of the Treaty of Prairie du Chien of 1829 contain a list of reservations to separate bands and individuals which are readily distinguishable from those persons named in articles 2 and 3 of the Treaty of Tippecanoe of 1832. The reservation for Shab-eh-nay in the 1829 treaty is not related in any way to the reservation for
25 Reserved File B-27 at the National Archives contains the documentation related to Sho-bo-nier and the purchase of his reserved sections of land.
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.
STATEMENT OF GARY MITCHELL, VICE CHAIRMAN,
PRAIRIE BAND POTAWATOMI TRIBE OF KANSAS 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