PART IV. ORDINANCE FOR THE GOVERNMENT OF THE TERRITORY OF THE UNITED STATES NORTHWEST OF THE OHIO RIVER. Be it ordained by the United States in Congress assembled, * ART. III. * Northwest Ordinance [July 13, 1787] 1 Stat., 52. * The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them. Done by the United States in Congress assembled the thirteenth day of July, in the year of our Lord one thousand seven hundred and eighty-seven, and of their sovereignty and independence the twelfth. WILLIAM GRAYSON, Chairman. TREATY OF FORT LARAMIE, 1851. Articles of a treaty made and concluded at Fort Laramie, in the Indian Territory, between D. D. Mitchell, superintendent of Indian Affairs, and Thomas Fitzpatrick, Indian agent, commissioners specially appointed and authorized by the President of the United States, of the first part, and the chiefs, headmen, and braves of the following Indian nations, residing south of the Missouri River, east of the Rocky Mountains, and north of the lines of Texas and New Mexico, viz, the Sioux or Dahcotahs, Cheyennes, Arrapahoes, Crows, Assinaboines, Gros Ventre, Mandans, and Arrickaras, parties of the second part, on the seventeenth day of September, A. D. one thousand eight hundred and fifty-one. ARTICLE 1. The aforesaid nations, parties to this treaty, having assembled for the purpose of establishing and confirming peaceful relations amongst September 17, 1851. themselves, do hereby covenant and agree to abstain in future from ate with amendment all hostilities whatever against each other, to maintain good faith ment ratified by the and friendship in all their mutual intercourse, and to make an effectribes. By inadvert- tive and lasting peace. Ratified by the Sen May 24, 1852. Amend ence not proclaimed or Large.1 printed in Statutes at ART. 2. The aforesaid nations do hereby recognize the right of the United States Government to establish roads, military and other posts, within their respective territories. ART. 3. In consideration of the rights and privileges acknowledged in the preceding article, the United States bind themselves to protect the aforesaid Indian 1 This treaty as signed was ratified by the Senate May 24, 1852, with an amendment changing the annuity in Article 7 from 50 years to 10 years, with an additional 5 years in the discretion of the President, subject to acceptance by the tribes. Assent of all tribes was procured, the last acceptance being by the Crows September 18, 1854. By inadvertence on the part of the Interior Department, ratification by the tribes was not certified to the State Department and therefore the treaty was not promulgated by the President. However, in subsequent agreements this treaty has been recognized as in force and Congress made appropriations thereunder. The Court of Claims in Moore v. the United States (32 Ct. Cl. 593) and in Roy. The United States (45 Ct. Cl. 177) held that the treaty was legal and binding on the United States. There is no doubt that the Fort Laramie treaty is in full force and effect. The compiler was in error in stating at the bottom of page 594, Volume 2, that all the tribes had not ratified the Senate amendment to this treaty. (Indian Office files, Upper Platte C-670-1853-S. 555-1854. Also, Ft. Berthold and Upper Missouri Agency.) nations against the commission of all depredations by the people of the said United States, after the ratification of this treaty. ART. 4. The aforesaid Indian nations do hereby agree and bind themselves to make restitution or satisfaction for any wrongs committed, after the ratification of this treaty, by any band or individual of their people, on the people of the United States, whilst lawfully residing in or passing through their respective territories. ART. 5. The aforesaid Indian nations do hereby recognize and acknowledge the following tracts of country, included within the metes and boundaries hereinafter designated, as their respective territories, viz: The territory of the Sioux or Dahcotah Nation, commencing at the mouth of the White Earth River, on the Missouri River; thence in a southwesterly direction to the forks of the Platte River; thence up the north fork of the Platte River to the forks of the Platte River; thence up the north fork of the Platte River to a point known as the Red Bute, or where the road leaves the river; thence along the range of mountains known as the Black Hills, to the headwaters of Heart River; thence down Heart River to its mouth; and thence down the Missouri River to the place of beginning. The territory of the Gros Ventre, Mandans, and Arrickaras Nations, commencing at the mouth of Heart River; thence up the Missouri River to the mouth of the Yellowstone River; thence up the Yellowstone River to the mouth of Powder River in a southeasterly direction, to the headwaters of the Little Missouri River; thence along the Black Hills to the head of Heart River, and thence down Heart River to the place of beginning. The territory of the Assinaboine Nation, commencing at the mouth of Yellowstone River; thence up the Missouri River to the mouth of the Muscle-shell River; thence from the mouth of the Muscle-shell River in a southeasterly direction until it strikes the headwaters of Big Dry Creek; thence down that creek to where it empties into the Yellowstone River, nearly opposite the mouth of Powder River, and thence down the Yellowstone River to the place of beginning. The territory of the Blackfoot Nation, commencing at the mouth of Muscleshell River; thence up the Missouri River to its source; thence along the main range of the Rocky Mountains, in a southerly direction, to the headwaters of the northern source of the Yellowstone River; thence down the Yellowstone River to the mouth of Twenty-five Yard Creek; thence across to the headwaters of the Muscle-shell River, and thence down the Muscle-shell River to the place of beginning. The territory of the Crow Nation, commencing at the mouth of Powder River on the Yellowstone; thence up Powder River to its source; thence along the main range of the Black Hills and Wind River Mountains to the headwaters of the Yellowstone River; thence down the Yellowstone River to the mouth of Twenty-five Yard Creek; thence to the headwaters of the Muscle-shell River; thence down the Muscleshell River to its mouth; thence to the headwaters of Big Dry Creek, and thence to its mouth. The territory of the Cheyennes and Arrapahoes, commencing at the Red Bute, or the place where the road leaves the north fork of the Platte River; thence up the north fork of the Platte River to its source; thence along the main range of the Rocky Mountains to the headwaters of the Arkansas River; thence down the Arkansas River to the crossing of the Santa Fe road; thence in a northwesterly direction to the forks of the Platte River, and thence up the Platte River to the place of beginning. It is, however, understood that in making this recognition and acknowledgment the aforesaid Indian nations do not hereby abandon or prejudice any rights or claims they may have to other lands; and further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described. ART. 6. The parties to (of) the second part of this treaty having selected principals or head chiefs for their respective nations, through whom all national business will hereafter be conducted, do hereby bind themselves to sustain said chiefs and their successors during good behavior. ART. 7. In consideration of the treaty stipulations, and for the damages which have or may occur by reason thereof to the Indian nations, parties hereto, and for their maintenance and the improvement of their moral and social customs, the United States bind themselves to deliver to the said Indian nations the sum of $50,000 per annum for the term of 10 years, with the right to continue the same at the discretion of the President of the United States for a period not exceeding five years thereafter, in provisions, merchandise, domestic animals, and agricultural implements, in such proportions as may be deemed best adapted to their condition by the President of the United States, to be distributed in proportion to the population of the aforesaid Indian nations. ART. 8. It is understood and agreed that should any of the Indian nations parties to this treaty violate any of the porvisions thereof, the United States may withhold the whole or a portion of the annuities mentioned in the preceding article from the nation so offending, until, in the opinion of the President of the United States, proper satisfaction shall have been made. In testimony whereof the said D. D. Mitchell and Thomas Fitzpatrick, commissioners as aforesaid, and the chiefs, headmen, and braves, parties hereto, have set their hands and affixed their marks on the day and at the place first above written. D. D. MITCHELL, THOMAS FITZPATRICK, Commissioners. Sioux: Mah-toe-wha-you-whey (his x mark); Mah-kah-toe-zah-zah (his x Crows: Arra-tu-ri-sash (his x mark); Doh-chepit-seh-chi-es (his x mark). Arickarees: Koun-hei-ti-shan (his x mark); Bi-atch-tah-wetch (his x mark). INDIAN OFFICE MEMORANDUM CONCERNING THE TREATY OF SEPTEMBER 17, 1851, AT FORT LARAMIE, BETWEEN THE UNITED States and the SIOUX, CHEYENNES, ARAPAHOES, CROWS, GROS-VENTRE, MANDANS, AND ARICKAREES, TRIBES OF INDIANS. (KAPPLER'S LAWS AND TREATIES, VOL. II, p. 594.) The question to be considered in this memorandum is concerning the ratification of the treaty by the Senate and the assent of the Indians to certain changes made in section 7 of that instrument. Mr. Kappler, the author of Laws and Treaties, in a footnote at the bottom of vol. 2, page 594, says: This treaty as signed was ratified by the Senate with an amendment changing the annuity in article 7 from 50 to 10 years, subject to acceptance by the tribes. Assent of all tribes except the Crows was procured (see Upper Platte C., 570, 1853, Indian Office) and in subsequent agreements this treaty has been recognized as in force (see post p. 776). Reference is also made to 11 Stats., page 749, at the bottom of which the publisher of that volume inserts the following note: This treaty was concluded September 17, 1851. When it was before the Senate for ratification, certain amendments were made which require the assent of the tribes parties to it before it can be considered a complete instrument. This assent of all the tribes has not been obtained, and, consequently, although Congress appropriates money for the fulfillment of its stipulations, it is not yet in a proper form for publication. This note is added for the purpose of making the references from the Public Laws complete, and as an explanation why the treaty is not published. It may be stated as a fact that that part of Mr. Kappler's note saying that all the tribes except the Crows had assented to the Senate amendment was erroneous, for the original records of the Indian Office conclusively show that the consent of the Crows was procured. It might also be stated as a fact that at the time Volume 11, of the United States Statutes at Large was printed in which appears the footnote of the publisher above referred to, the assent of all the tribes had been procured to the Senate amendment of the treaty of 1851 and such consent is conclusively shown by the original records of the Indian Office. The consent of all the Indians had been given to the treaty on or before 1854, but it appears that the original treaty of 1851, which is still in the files of the Indian Office, together with the papers showing the assent of all the tribes formally given, was never submitted to the State Department in order that the instrument might be formally promulgated. The State Department has informally advised that it is the universal practice where the Senate ratifies a treaty with certain amendments, whether with Indians or foreign nations, and the consent of the signatory parties to the changes is afterwards given, it is never necessary to submit the instrument to the Senate for reaffirmation or approval. The Senate took formal action on the treaty which it considered on the 24th day of May, 1852, in executive session of two and one-half hours, and communicated its views with the return of the instrument to the President. This will receive consideration further on. Attention is invited to the case of Moore v. United States (32 Ct. Cl., p. 593), in which that court held that the treaty of 1851 was legal and binding on the United States, using the following language: Although the treaty was not formally proclaimed, yet both the Congress and the President recognized the validity and binding force of the same as to the United States, the Congress by making appropriations to carry the treaty into effect from 1853 to 1865, and the President by extending the time for the payment of annuities for five additional years, as provided by the Senate amendment might be done, while the Secretary of the Interior recognized the same as binding between the Indians and a citizen. The appropriations thus made, amounting to nearly a million dollars, were paid to and accepted by the Indians as in conformity with the treaty. Attention is also invited to the case of Roy v. the United States (Ct. Cl. Repts., vol. 45, p. 177), in which that court again upheld the legality of the treaty of 1851, from which decision the following is quoted: This treaty was negotiated with several tribes of Indians besides the Sioux. It was ratified by the Senate with an amendment changing the period during which the annuities therein provided for should be paid from 50 to 10 years. The treaty was then sent back to procure the assent of the various tribes to the Senate amendment. The assent of the Sioux and of all of the tribes who were parties, except the Crows, was given. (Kappler's Laws and Treaties, Vol. Il, p. 594, note.) The treaty was never formally proclaimed by the President, but it was acted upon by the Congress by making appropriations to pay the annuities therein provided for from March 3, 1852, to March 3, 1865, which included an extension of five years made by the President. (10 Stat. L. 238; 13 ibid. 550.) This treaty was also referred to in a subsequent treaty with the same Indians. (Revision of Indian Treaties, 885, 886.) It is contended by the claimant that this treaty never was completed or 'made' so as to be of binding force because of the fact, as stated, that it never was formally proclaimed by the President. * Certainly, as to Indian treaties the contention that proclamation is necessary to give them binding force as between the parties is without reason. These Indians were our wards, and we thus occupied a fiduciary relation to them. The Sioux signed the treaty in the first instance, and when ratified and amended by the Senate they agreed to it as amended. They afterwards received annuities under it, and their rights to the lands described in it were repeatedly recognized, to which particular reference will hereafter be made. To now hold that that treaty never had any binding force on the United States or its citizens would be contrary to good faith and common honesty. This treaty was before this court in Moore v. The United States (32 Ct. Cls., 593), and it was there held that it was valid as to the Sioux Indians themselves. It would indeed, be a harsh rule which would bind them to its provisions and release the United States and its citizens. From the foregoing it will be seen that the Court of Claims rendered its decisions under the unquestioned belief that all of the tribes had not assented to the 1851 treaty. It is now an established fact beyond question or controversy that the consent of all the tribes was given during the year 1854, and if this had been known to the Court of Claims undoubtedly it would have been an added reason for sustaining the legality of the agreement referred to. Referring again to the action of the Senate in executive session on May 24, 1852, and in order to set at rest any doubt whatsoever as to what occurred during the executive session, there is inserted at this point an exact copy of the whole proceeding regarding this treaty as the same appears in Senate Journal, 1st session, Thirtysecond Congress, page 701, No. 555, J. 35 (references being made to volume in Congressional Library): Monday, April 19, 1852. Mr. Atchison, from the Committee on Indian Affairs, to whom was referred, the 17th February last, the treaty with certain Indian tribes at Fort Laramie, on the 17th September, 1851, reported it without amendment. Monday, May 24, 1852. The articles of a treaty made and concluded at Fort Laramie, in the Indian Territory, between D. D. Mitchell, Superintendent of Indian Affairs, and Thomas Fitzpatrick, Indian agent, commissioners specially appointed and authorized by the President of the United States, of the first part, and the chiefs, headmen, and braves of the following Indian Nations residing south of the Missouri River, east of the Rocky Mountains, and north of the lines of Texas and New Mexico, viz, the Sioux or Dahco-tahs, Cheyennes, Arapahoes, Crows, Assiniboines, Gros-Ventres, Mandans, and Ariccarees, parties of the second part, on the seventeenth day of September, anno Domini one thousand eight hundred and fifty-one, were read the second time, and considered as in Committee of the Whole; and no amendment being made thereto, they were reported to the Senate. On motion by Mr. Atchison, To amend the treaty by striking out the words "fifty years," from the seventh article, The question was stated. Shall these words stand as part of the article? So those words were stricken out of the treaty. On motion by Mr. Badger, To fill the blank with the words twenty-five years, The question was stated, Shall these words stand as part of the seventh article? and, It was determined in the negative... (Yeas... Nays... |