Fee simple

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We checked into a motel in Wapakoneta late on August 29. There was just enough time for me to get in a brief starter ride, shown in green on the above Google map.

I decided that a reachable destination before dark was a small piece of road that follows the old boundary of the Wapakoneta Reservation. This was a Shawnee reservation that was in existence from 1817 to 1831. The place is marked with a green marker.

The reservation boundary forms a rectangle that is shown by a thin violet line. I drew it with the help of this 1880 atlas map at HistoricMapWorks.com . If you examine that map, you’ll see that although it’s rectangular in shape, the boundary doesn’t quite align with the section lines of the rectangular survey system.

Just to the south of the old reservation, almost adjoining it, is St Mark’s Evangelical Lutheran Church. The cornerstone says the congregation (though not the building) dates back to 1835. That was just three years after the Shawnee people were forced to leave.

This view is to the north of the church, where the road makes a turn to the right, i.e. to the east, where it follows the old reservation boundary for all of a quarter mile.

The most prominent leader of the Shawnee people at Wapakoneta was Black Hoof. There is at least one street in the town that’s named after him, and there are monuments and markers about him at St Johns, which I visited on a ride in July 2007.

Black Hoof was a Shawnee who allied himself with the United States during the War of 1812, much to the displeasure of Tecumseh and Tenskwatawa, who were allied with the British and who wanted to drive the Americans out.

The reservation was sort-of a reward for Black Hoof’s service during the war, though I suppose it’s not everyone’s idea of a reward. The result of the war was that the Shawnee people had to cede land north of the old boundary, the Greenville Treaty Line. The Wapakoneta Reserve was a part of that land that the Shawnee were allowed to keep — for a while.

I thought I had read elsewhere that Black Hoof had wanted to own land in fee simple so it could not be taken away from him, but that the United States was not willing to let Indians hold land under those terms. (This despite the fact that the U.S. kept telling Indians that they needed to settle down and farm, and use their land like the white people did.)

I just now read the relevant parts of the treaty document by which the Wapakoneta reserve was granted and the treaty document by which it was taken away. I was somewhat surprised at what I found. The treaty that “granted” the reserve was the 1817 Treaty of St. Mary’s. It says:

The United States also agree to grant, by patent, in fee simple, to Catewekesa or Black Hoof, Byaseka or Wolf, Pomthe or Walker, Shemenetoo or Big Snake, Othawakeseka or Yellow Feather, Chakalowah or the Tail’s End, Pemthala or John Perry, Wabepee or White Colour, chiefs of the Shawnese tribe, residing at Wapaghkonetta, and their successors in office, chiefs of the said tribe, residing there, for the use of the persons mentioned in the annexed schedule, a tract of land ten miles square, the centre of which shall be the council-house at Wapaghkonetta.

That sounds just like what Black Hoof wanted: “by patent, in fee simple.”

Black Hoof refused to sign the 1831 treaty by which the land was taken away. That document also refers to the “fee simple” ownership.

The tribe or band of Shawnee Indians residing at Wapaghkonnetta and on Hog Creek in the State of Ohio, in consideration of the stipulations herein made, on the part of the United States, do for ever cede, release and quit claim to the United States the lands granted to them by patent in fee simple by the sixth section of the treaty made at the foot of the Rapids of the Miami river of Lake Erie on the 29th day of September in the year of our Lord 1817, containing one hundred and twenty-five sections or square miles, and granted in two reservations and described in the said sixth section of the aforesaid treaty as follows:—“A tract of land ten miles square, the centre of which shall be the council house at Wahpaghkonnetta;” and “a tract of land containing twenty-five square miles, which is to join the tract granted at Wapaghkonnetta, and to include the Shawnee settlement on Hog creek, and to be laid off as nearly as possible in a square form,” which said two tracts or reservations of land were granted as aforesaid to the said Shawnee Indians by the patents signed by the Commissioner of the General Land Office and certified by the Secretary of War dated the 20th day of April 1821. Also, one other tract of land, granted to the said Shawnees by the second article of the treaty made at St. Mary’s in the state of Ohio, on the 17th day of September in the year 1818, and described therein as follows: “Twelve thousand eight hundred acres of land to be laid off adjoining the east line of their reserve of ten miles square at Wapaghkonnetta,” making in the whole of the aforesaid cessions to the United States by the aforesaid Shawnees, one hundred and forty-five sections or square miles, which includes all the land now owned or claimed by the said band or tribe of Shawnees in the State of Ohio.

Now I am not a lawyer, but that sounds to me like a special definition of “fee simple.” Land patents certified by the Secretary of War? I haven’t seen any other land patents at the GLO database like that. The one that includes the small acreage we own in Michigan is not like that. I just now did a search in the database for all the land patents in Township 5S, Range 6E, in Auglaize County, to see if there were any for Black Hoof or any Algonquian-sounding names. I didn’t see any.

If the chiefs owned the land in fee simple, they should have been allowed to sell or not sell, as they saw fit, using the ordinary legal system for land transactions. That would have had its own dangers for the Shawnee people, but the process by which they ceded the land was not anything like it is when most of us sell property.

It must have been a very special definition of “fee simple” by which Black Hoof and the other chiefs owned this land — and not at all what he had in mind. I wonder if he brought up that point when he refused to sign. Maybe it was considered an eminent domain proceeding — a very eminent domain.

Edit:  Here is a link to the googlemap that’s not constrained by the dimensions of my WordPress blog.