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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 get 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 Şenate 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. 1, 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.
Š. 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 Ilinois reservation.
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 longitudinal 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, attached 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 numerous books, monographs, and essays concerning 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 Morisset, Schlosser, Ayer, and Jozwiak, attorneys 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 bracts 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 cornmunities, 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 appellation 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 hands 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-southera 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 liinois 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 been prepared beforehand on behalf of these Potawatomi.
9. Included in the Potawatomis' 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 them 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 individual grants-wrote them into the final treaty almost verbatim. These Potawaton; requirements became Anicle 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 IV clarified this matter by stipulating that these twelve allotments were to be restricted fee titles held by the named individuals. That is, these tweive 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 rities 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 withhold and allocated to the three named hands 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 lillinois-Wisconsin Potawatorni saw fit to negotiate their cession to the Unned 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
Potawatomi villages in the second tract, identified as Royce Area 147 (ie, the so-called "mineral" or "lead mine region"). The latter point is significant because it indicates that these Potawatorni well understood that they did not have to actually occupy an area to hold it in recognized indian title, and the United States as well.
15. The 1829 treaty established the Shabeni band's new reservation at the site where this band had located itself on Big Indian Creek, more than a decade earlier. The fact that this location was, at the time of its founding, distant from other Northern Illinois Potawatomi band-villages would not have had and did not have any effect on the affiliation of the Shabeni band with the other bands making up the lilinois-Wisconsin coalition Historically, the Potawatomi expanded their termory by establishing new villages some distance removed from affiliated kindred bands; and, customarily, they periodical.y moved their villages sites short cistances to compensate for the exhaustion of local resources (e.g., declining soil fertility and fuel sources), without affecting their standing regional alliances. So there was nothing unusual about the Shabeni band's criginal settlement at a distance from others in this coalition.
16. Two documented historical incidents are particularly telling in demonstrating the emergent autonomous tribal identity of the Illinois-Potawatomi bands. FIRST: At a time when the Illinois-Wisconsin bands were being pressured to abandon their western lowa reservation and to join the Michigan and Indiana Potawatomi (or "Mission bands") on a "national reservation" in Kansas, their subagent at Council Bluffs, Dr. Edmund James, on December 18, 1837, explained to St Louis Superintendent William Clark why they were opposed to doing so. Dr. James stressed, "I hope it will be remembered that they [the Prairie bands] are essentially a distinct people from the Potawatomies of Indiana and by far the larger and more reputable part of them wish to remain so." Dr. James was a highly educated physician-geographer-linguist well experienced with Great Lakes area Indians SECOND. Following Billy Caldwell's death in 1841, the council of chiefs petitioned the Commissioner of Indian Affairs, requesting that thereafter they be called "The Prairie Indians of Caldwell's Band of Potawatomies." Although this appellation was never formally adopted or used, its significance is that these northern Illinois-southern Wisconsin "Prairie Potawatom" were signaling to American authorities their intention to continue their opposition to arbitrary treatment, and their desire to be treated as a tribal entity separate from the other Potawatomi groups. This petition is of interest, also, because it is one of the first instances where these Illinois-Wisconsin bands referred to themselves as the Prairie Band Potawatomi.
17. Following the 1829 treaty, which established the Illinois reservation allocated to the Shabeni Band, the emergent Prairie Band tribal council negotiated four successive additional treaties, any one of which might conceivably have included stipulations altering that Illinois reservation's starus, by converting its title to fee simple, for instance, or by ceding it to the United States. None of these treaties, as amended and ratified by the Senate, included provisions doing so. These were the treaties of Chicago, September 26 and 27, 1833 (7 Stat., 431 and 442); the treaty of June 5 and 17, 1846 (9 Stat., 853); the treaty of November 13, 1861 (12 Stat., 1191), and the treaty of February 27, 1867 (15 Stat., 531).
18. In Article 3 of the ratified 1833 treaty, two of the three band reservations established by the 1829 treaty were in fact ceded to the United States. These were the reservations of the Wabansi band and the Awnkote band, and these two bands were compensated for these cessions. In contrast, Article 5 of the original draft treaty in 1833 contained provisions for converting the Shaberri band's reservation title to fee simple. However, the Senate flatly and pointedly refused to give its advice and consent to this change in title, and struck out Article 5. So, once ratified, the 1833 treaty left intact the recognized Indian title of the Illinois-Wisconsin Potawatomis' Shabeni band to this reservation.
19. In the 1846 treaty, the Prairie Band ceded their separate lowa reservation and accepted, in partial compensation therefor, & share of the new "national reservation" in Kansas. Article 2 of the 1846 treaty stipulated that it was mutually understood that, "these cessions are not to affect the title of said Indians to any grants or reservations made them by former treaties "Therefore, rather than altering the status of the Shabeni 3and's title to the Illinois reservation, the 1846 treaty reaffirmed and reinforced it.
20. The 1861 treaty partitioned the "national reservation" in Kansas, which had been established by the 1846 treaty. A pro rata portion of this reservation was allocated to the Prairie band, to be held in-common by them, with the balance of the lands to be allotted in severalty to the members of the now detribalized Citizens (or Mission) band, or declared surplus and sold to third-parties. Nothing in this treaty had any explicit, specific bearing on the Shabeni band's reservation in Illinois.
21. The last of the Potawatomis extraordinarily lengthy series of treaties was that of 1867, reestablishing the Citizens Band on a new reservation in Oklahoma The Prairie Band, whose autonomous tribal status was now fully recognized by the 1861 treaty, was not directly involved in this treaty. So, this treaty had no effect on the title or tenure rights to the Illinois reservation.
22. The Chicago treaty of 1833 obligated the Illinois and the Wisconsin bands to evacuate the ceded territory and to make their way the West, where they were to resettle on lands assigned them in westemmost Missouri on a tract known as the "Platte Purchase " Because at the time the State of Missouri was in process of annexing that same area, the emigrant Potawatomi were allowed to remain on the Platte Purchase tract only temporarily, and they soon agreed to substitute a reservation in westernmost lowa. This 1833 treaty obligated the Illinois bands to emigrate immediately upon ratification of the treaty, while the Wisconsin bands were allowed a three year grace period before being required to emigrate.
23. The removal provisions of the 1833 Chicago treaty created an anomaly with respect to the Shabeni band. The anomaly rested on two facts. ONE: although the Shabeni band held title to an unceded reservation in Illinois, they also shared in the rights this treaty granted the Illinois-Wisconsin Potawatorni coalition of bands to a new, separate reservation in the West; and, TWO despite their valid title to the Hlinois reservation, like almost all other Potawatomi signatory to this treaty, they were nominally supposed to evacuate Illinois at a time-certain (upon the treaty's ratification) and emigrate to their new lands 24 So, soon after the 1833 treaty was ratified (February 21, 1835), Shabeni and his hand had to confront and cope with several eonflicting, interlocked problems. FIRST: he himself remained one of the senior, most influential wkamek of the Illinois Wisconsin bands' governing council; but these bands were soon to evacuate their ceded lands and resettle in the West SECOND he had to deal with the anomaly of his own band's holding recognized title to both the Illinois reservation and their in-common share of the new, valuable, game-rich tract west of the Mississippi, with the possibility of their being subject to pressure for resettlement there. THIRD, the environment surrounding the Ilinois reservation had so changed-with increasing American settlement, the decline or disappearance of the big game herds on which the Potawatomi had depended for subsistence, and competition between the remaining Potawatomi and the settlers for the remaining game that it was no longer possible for his entire band to sustain themselves by hunting while based on that reservation. FOURTH the whole Shabeni band, numbering approximately 130-140 persons, could not sustain themselves if confined to the resources available on the Illinois reservation, which consisted of merely 1,280 acres. FIFTH: Article 4 of the 1833 Chicago treaty stipulated that, after three years, all annuities due the Potawatomi signatories would be paid only in the West, and only to those Potawatomi who were located there 1837 was to be the last year any annuities would be paid to any Potawatomi who had not resettled in the West (This stipulation did not apply to Shabent's personal lifetime annuity of $200 granted him by this treaty.)
25. Saabeni, certainly after seeking the consensus of the headmen of his band and his own adult sons, resolved these conflicting problems, in part by adopting a strategy that had been traditional among the Potawatomi for several centuries-fission and migration. When faced with the problem of declining local resources insufficient to support a growing band population, for many decades Potawatomi bands had habitually subdivided or fissioned, with part of the population resettling elsewhere. In addition, Shabeni himself (with some of his family) adopted a pattern of alternating residence, between the collectively held new lands at Council Bluffs and the band's reservation in Illinois. This enabled him, for several years, to continue to discharge his responsibilities as a senior chief in the Prairie Band's tribal council on the Council Bluffs reservation, to collect his family's per capita share of tribal annuities when they were paid at that location, and also, with much reduced population pressure, to maintain his ties to the now adequate in size - Illinois reservation. It should be added that, as one of the principal negotiators of the 1829 treaty, in which the Illinois-Wisconsin Potawatomi bands ceded a tract to which they held recognized title but which they did not actually occupy, and in which no conditions or limitations were attached to perpetual title of the three band reservations established thereby, Shabeni understood that continuous week-to-week occupation of the Illinois reservation was not required of him or his people in order to maintain their treaty granted tenure rights
26. It should be emphasized that the pattern of alternating residence adopted by Shabeni was not unique. In 1847, for example, Little Miami declined to settle on the newly established "national" reservation in Kansas but instead led most of his band back to Wisconsin, where their descendents remain today. 27 The efforts of Indian Department agents to implement the removal provisions of the 1833 treaty commenced in early summer, 1835. That June, as provided for by the treaty, a large exploring party supervised by William Gordon and led by Billy Caldwell journeyed west and examined the tracts in western lowa and Missouri that had been set aside as a reservation for the signatories to the Chicago treaty. Then, the first organized removal party of 712 persons was assembled by subagent John Russell and departed Illinois in late September, destination the Platte region. Shabeni had not joined the exploring party, and declined Russell's overtures to add his band to the group of Potawatomi emigrants this "conductor" had assembled that year.
28 Russell was replaced by Gholson Kercheval as the subagent responsible for removing the Illinois Potawatomi bands July 26, 1836, and shortly thereafter the latter started work trying to persuade the remaining bands to join his emigrating party that fall in his reports on these efforts, Kerdheval indicated that Wabansi and his band had refused his overtures to remove that season. This probably included Shabeni's band, as well, because as events determined Wabansi and Shabeni were making their own joint arrangements for traveling west, independently of Kercheval and party, relying on their own transportation and securing their own subsistence (mainly by hunting along the way). This reluctance to rely on government "conductors" and the services they provided was not unusual for the Illinois-Wisconsin Potawatomi bands: a substantial majority of these, similarly, arranged their own transportation and subsistence, traveling in their own time by routes they preferred. However, this means that there are available no official rolls for Shabent's party of emigrants. Such lists were kept only by the government conductors for groups whose cmigration they managed. Two such lists were required by Indian 2