The cession as a transaction, and the reserve test

20 SEPTEMBER 1828

The townsite's Indian title was extinguished by one instrument, and the instrument's own terms are the record: The treaty concluded 20 September 1828 "at the Missionary Establishments upon the St. Joseph, of Lake Michigan" — Carey Mission, by present Niles — between Lewis Cass and Pierre Menard for the United States and the Potawatomi (7 Stat. 317; proclaimed 7 January 1829) took two cessions: the first on the Michigan side of the river country, the second in northern Indiana. In the Indian Claims Commission's later accounting the two are Areas 145 and 146. The Mishawaka townsite ground — Sections 9, 10, 15 and 16 of Township 37 North, Range 3 East — lies inside the second, Indiana cession: that is the transaction that made the rapids ground saleable. The treaty as tribal history — the councils, the bands, the removals that followed — belongs to the Tribes section of this record; what belongs here is the paper: cession first, then survey, then sale, in that order, the sequence the federal system required. The consideration the United States paid for the cessions — the annuities, goods and service money the articles itemize — is carried in the treaty's text and in the Before the City section's accounting of the instrument.

The third article of the same treaty granted individual tracts — eighteen reservations, in the standard study of the reservations, all of them in Indiana — to named persons "all of whom are Indians by descent," the tracts "to be located upon the second cession above described, where the President of the United States may direct, after the country may be surveyed, and to correspond with the surveys," with one express restriction: "no location shall be made upon the Elkheart Prairie, nor within five miles of the same." The article itself fixes the location of only two of the grants — the reservation of Peter Langlois's wife "upon the north side of Eel river, between Peerish's village and Louison's reservation," and Betsey Ducharme's "at Louison's run" — both in the Eel River country, far south of the St. Joseph valley. The test this section was charged to run is therefore answered at the strength of the instrument: the 1828 grants were floating grants, to be located after survey; no location on the Mishawaka townsite sections appears in the treaty, in the county histories, or in any source reached; and the village ground at the rapids was sold through the ordinary channels the next entries describe — its south-bank section through the school-land sale, its other sections through the land office. Where any individual 1828 grant was in the end located is a matter of the patents, which stand in the General Land Office records and the land-office tract books named below; those records are the settling source, and no reserve is printed on this ground without them.

Sources:

1. Treaty with the Potawatomi, 20 September 1828, 7 Stat. 317 (text in Kappler, Indian Affairs: Laws and Treaties, Vol. II, and the Avalon Project) — the two cessions; Article 3's grants, their floating terms, the Elkhart Prairie restriction, and the two locations the article itself fixes on the Eel River.
2. Indian Claims Commission, 27 Ind. Cl. Comm. 187 — Areas 145 and 146 for the 1828 cessions, as carried in this build's Before the City section (South Bend).
3. Larry M. Wyckoff, "Potawatomi Reservations in Indiana and Illinois, 1818–1832" (2020) — eighteen reservations granted under the 1828 treaty, all in Indiana.