5. The third article of the treaty is intelligible, though it is not clear what "exceptions" were "specified" in Article 1, as recited in Article 3. The purport seems to be that the Sioux should retain right of way in the land, and such other use of it as should not be abridged or nullified by our occupation. At the same time it is not clear that, since the United States were to have "full sovereignty and power," by the terms of Article 1, they were not authorized to withdraw all the privileges of Article 3 if they saw fit to do so.
6. The question of the validity of many legal documents is affected by the presence or absence of witnesses to the same. In the present case no signatures of witnesses appear on the face of the instrument, and there is nothing whatever to show that it is anything more than a part of a speech which Pike made to certain Indians, and which two of them subscribed besides himself. None of the published versions of the "treaty" which I have seen includes this important feature. But one of the manuscript copies before me has the names of four persons as witnesses, all whites. Reference to the second paragraph of Pike's speech will show him to have spoken of "a form of agreement which we will both sign in the presence of the traders now present." Four names which appear on the face of the manuscript copy just mentioned, in the usual place of witnesses' signatures, and under a word which I make out to be "Tests," (i. e., teste or testibus, in the ablative sing. or pl.) are: Wm. Meyer, M[urdoch] Cameron, James Frazer, Duncan Graham. It is remarkable that, if these names appear on the original document, they were not transcribed on all the copies, and also printed with the published versions, as an integral part of the same.
7. The names of the two chiefs who are supposed to have "touched the quill" to this transaction, i. e., signed with their respective marks, occur in variant forms in the several copies; but this is the rule in such cases, and has no significance except of clerical incompetency. In the officially published version above mentioned the two names stand "Le Petit Carbeau" and "Way Aga Enagee," each of which only differs by one letter from the correct form (in the case of the French) or from a usual form (in the case of the Sioux). Each of these chiefs has been already identified: see [note2], p. 85 and p. 86.
The subsequent history of this mock instrument or valid document is not less singular than the conditions and circumstances under which it originated. Diligent search for it among the treaties duly published in the U. S. Statutes at Large fails to show that it was ever included in that collection of official papers. But certain facts were furnished, with the text of the treaty itself, to the Indian Bureau by Mr. C. C. Royce of the Bureau of Ethnology at Washington, and printed by the former Bureau in an editorial note explanatory of that text, on p. 316 of its official publication entitled "Laws of the United States relating to Indian Affairs," etc., Washington, Government Printing Office, 1884. It appears in this place that the treaty (in some form) was submitted by the President to the Senate, March 29th, 1808, thus more than two years after the execution of the instrument in writing; that the Senate reported favorably upon it April 13th, 1808, with the following amendment to fill the blank in Article 2: "After the word 'States' in the second article insert the following words: 'shall, prior to taking possession thereof, pay to the Sioux two thousand dollars, or deliver the value thereof in such goods and merchandise as they shall choose.'" With this amendment the Senate unanimously advised and consented to its ratification, April 16th, 1808. Examination of the records of the State Department fails to disclose that any subsequent action was taken by the President; and the ratification of the treaty does not appear to have ever been proclaimed. This is a very unusual circumstance; for such treaties ordinarily have three official dates of as many stages in their progress from inception to full effect, viz.: date of agreement between the contracting parties; date of ratification by the proper authority; and date of proclamation by the President. In the present case the principal evidence that the alleged cession of lands was ever a legally accomplished fact is said by Mr. Royce to consist in certain correspondence of the War Department more than twenty-five years after the date of ratification of the amended treaty by the Senate. But that the cession was effected, legally or otherwise, is certain. In 1819 Major Thomas Forsyth, Indian Agent at St. Louis, had received instructions from the War Department to deliver "a certain quantity of goods, say $2,000 worth," "in payment of lands ceded by the Sioux Indians to the late Gen. Pike for the United States": see Forsyth's Narrative, as orig. pub. in Wis. Hist. Coll., 1872, with notes by Lyman C. Draper, and repub. in Minn. Hist. Coll., III. 1874, pp. 139-67. Yet we find General H. H. Sibley saying, ibid., p. 174: "In the year 1821, Col. Leavenworth called together the chiefs and head men of the Sioux bands, and procured from them a grant of land nine miles square at the junction of the Mississippi and Minnesota rivers." What can one make of such conflicting statements? Here it is said that Colonel Leavenworth procured in 1821 a grant of land which Major Forsyth is said to have paid for in 1819, and which Pike is said to have secured in 1805. In the same place General Sibley says that there was an article in the Leavenworth-Sioux treaty of 1821 by which the Indians "donated" Pike's isl. to Mr. J. B. Faribault.
[V-7] "The within articles" are those of the Sioux Treaty of same date, inclosed in this letter to General Wilkinson, which reached St. Louis on or about Nov. 26th, 1805, and was immediately communicated in full to the Secretary of War. A manuscript copy of the original is on file in the Record Division of the War Department, together with two copies of General Wilkinson's own letter to General Dearborn on the same subject and other topics. I might reproduce the manuscript of Pike's letter textually, but as the copy before me is in a clerk's hand, its peculiarities being thus not Pike's own, it is not worth while to replace the above fair imprint of the original with another version which would show no difference except in its clerical errors. See [preceding article] for a criticism of the treaty itself which formed the inclosure of the present letter. One passage from General Wilkinson's unpublished letter to the Secretary of War may be here cited: "He [Pike] tells me he has no doubt of being able to make Lake Sable in pretty good Season, but observes that the source of the River is in 'Lake Sang Sue,' about sixty Leagues further North & that He must 'see that also'—in which case he will have stretched his orders & we shall not hear of Him before the Spring—He reports that our flag is every where received with pleasure, & that he had patched up a Peace between the Scioux & Chepaways, who are generally at War——"
[V-8] This is the "Original Leve" of [p. 85]—the chief whose name would be in English Standing Elk or Standing Moose: see [note2], p. 87. Élan is French for such an animal; it is the same word as the Dutch eland, which we have borrowed for a South African species.
[V-9] "Mareir" and "Tremer" are both wrong, no doubt, but I do not know what the right names are. A clerk's copy of the original letter before me has "Mercier" and "Fener"—latter perhaps François Fennai: cf. W. H. S. C., XII. p. 160.
[V-10] Article 7 was misplaced in the orig. ed. as No. 16, being brought in at the end of all the rest of the correspondence. I transfer it to its present proper place in chronological sequence of these documents. It requires no comment, being simply the written orders which the commanding officer gave his sergeant for the guidance of the latter during the former's absence, and which Kennerman proceeded to disobey in general and in particular.
[V-11] The first visit of white men to the Mandans was made in 1738, under the leadership of Pierre Gaultier de Varennes, otherwise Le Sieur Verendrye. A relation of this journey, by Rev. Dr. Edward D. Neill, occupies pp. 113-119 of the Macalester College Contributions, Department of History, Literature, and Political Science, Second Series, No. 5, which I extract in substance, as follows:
On Sept. 24th, 1738, Verendrye was at the confluence of the Red River of the North with the Assiniboine r. Two days afterward he began his journey up the latter, and on the 30th, having found a suitable place, he established Fort La Reine. Within a week, Mgr. de La Marque (otherwise Charles Nolan, Noland, or Nolant, son of J. B. Nolan and Marie Anne La Marque, b. 1694), and his brother, Sieur Nolan, with eight men, arrived in two canoes from Mackinac. On Oct. 16th Verendrye selected 10 of his own men and 10 of La Marque's party for the Mandan expedition, and their march began on the 18th. The party consisted of Verendrye, with two of his sons; La Marque and his brother Nolan; together with some voyageurs and Indians—in all 52 persons. On the 21st, at the distance of 26 leagues from Fort La Reine, they reached the first (no doubt Turtle) mountain. After slow marches southwestwardly, the first Mandans were met on the morning of the 28th. A chief came and stood near Verendrye, and one of his band presented corn on the cob and some tobacco. These Indians were only covered with a buffalo-robe, wearing no breech-clout. The Mandan chief requested the French to visit his village, and left on the 30th, accompanied by about 600 Indians. On the evening of the third day's march an Assiniboine, one of a number of this tribe who had already joined the expedition, stole a bag containing Verendrye's papers and other valuables; two men were hired to pursue the thief, and they captured him. On the morning of the fourth day's march camp was broken early in order to reach the Mandan settlement. A short distance from the village they were met on an elevation by a delegation of Mandans, who presented the calumet. Verendrye directed his son, the chevalier, to draw up the French in line, place the flag of France four paces before them, and fire three volleys. At 4 p. m., Dec. 3d, Verendrye and his associates entered the village and were conducted to the lodge of the principal chief, where a bag containing presents, and also 300 livres, was stolen. The Assiniboines were much afraid of the Sioux, from whom they had separated years before, and the Mandans, not wishing to entertain Verendrye's escort, purposely raised a rumor that the Sioux were coming, whereupon the Assiniboines decamped. Verendrye was embarrassed for want of a good interpreter, but learned that on the banks of the Missouri, lower down, were the Pananas, and then the Pananis, at war with each other. Six days after the Assiniboines decamped, Chevalier Verendrye, Sieur Nolan, six Frenchmen, and several Mandans visited a settlement on the bank of the river, and then Sieur Verendrye and Mgr. de La Marque inspected the village. There were 130 cabins. A fort was built on an elevation in the open prairie, surrounded by a ditch about 15 feet deep and from 15 to 18 feet wide. (Compare A. J. Hill's plot of Mandan fortification, in T. H. Lewis' Minor Antiq. Art. No. iv, p. 5, 1884.) The cabins were spacious, separated into several apartments by thick planks, and goods were hung on posts in large bags. The men were naked, covered only with a buffalo robe; the women also, excepting a loose apron about a foot long. On the evening of Dec. 4th Verendrye's son and Nolan came back and reported that the village they had visited was twice as large as that where they were. On Dec. 8th the latitude was taken and found to be 48° 12´ N. It was now decided to leave two men to winter with the Mandans to acquire their language, and return with the rest to Fort La Reine. Before they departed the head chief was presented with a flag, and a leaden plate upon which the arms of France were cut. When ready to leave, Verendrye fell sick and could not travel for two or three days. On Dec. 24th, still weak, he reached the Assiniboine village, and was agreeably surprised when the box of papers which had been stolen was returned in good order. On Jan. 9th, 1739, the first height of land between the Missouri and Assiniboine rivers was reached; here Verendrye remained, while La Marque hurried on to Fort La Reine. There he arrived Feb. 1st, and sent back assistance to Verendrye, who reached the post, greatly fatigued, on the 10th of this month. The two voyageurs who had been left with the Mandans returned to the fort Sept. 27th, 1739, with reports representing more fiction than fact.