Note V-6 — Chapter V · CORRESPONDENCE AND CONFERENCES.[V-1]

As explained in note1, p. 221, this article requires separation from Art. 4, from which it is totally distinct, though the two form undistinguished parts of one Doc. No. 3, of the orig. ed. I accordingly set them apart, and supply a new heading for Art. 5; but I reprint the latter precisely as it stands in the orig. ed., for reasons which will presently appear. As originally drafted by Pike, and by him communicated to General Wilkinson under cover of a letter of equal date, it appears to have been "scarcely legible," as the general informs the Secretary of War in a letter before me (see Art. 6). I doubt that this extraordinary document ever existed in a form which might not be set aside as fatally defective; and I do not doubt that we acquired legal title to the lands by some means subsequent to this invalid instrument. The probability is that upon due and sufficient investigation of points of law involved it would appear that the supposed cession of lands was not a legally accomplished fact until made such by later negotiation or legislation, with which we have here nothing to do. The following argument concerning Pike's treaty, as simply a starting-point for further steps in the transaction, was submitted in the press-proofs to my relative James M. Flower, Esq., of Chicago, who had no material modification to suggest.

Let us first examine that version of the document which Pike presents upon his own page, and which is therefore presumably authentic.

1. The preamble recites that a conference was held "between the United States of America and the Sioux nation of Indians." But it does not appear that either of the alleged parties to the transaction was officially and legally represented. The Sioux nation consisted in 1805 of at least seven tribes, only one of which was concerned in the affair; and if only the consent of this one tribe was required to effect the cession the conference is erroneously described. Furthermore, it does not appear by what authority Pike assumed to represent the United States. He signs himself "agent" at the conference. Agent of whom or of what? He was certainly not an Indian agent, empowered by the United States to effect treaties with aliens; and though it is true that he was instructed by his military superior to obtain if possible certain cessions, among which was the cession of land at and near the mouth of St. Peter's r., the question recurs whether General Wilkinson was competent to issue military orders to that effect without the authority of the government; and no such authority is expressed or necessarily implied in the terms of the alleged treaty.

2. Art. 1, which ostensibly declares what lands were supposed to be ceded, does in fact declare or describe no such lands sufficiently or recognizably, and is furthermore vitiated by a blunder which would constitute a fatal flaw in the title, if contested. (a) "Nine miles square at the mouth of the St. Croix," is in the first place an impossibility, because the mouth of the St. Croix has no such dimensions; and in the second place may mean either a tract of 81 square miles, whose center is at the mouth of the said river, or any one of four or more square tracts of the said extent, any one of whose angles, or any indetermined point of one of whose sides, is at the mouth of the said river; and in no one of these contingencies is the direction in which the remaining bounds are to be laid off described either by points of the compass or by natural landmarks. (b) The asterisk set at the words "St. Croix" refers to a memorandum which Pike causes to appear as a clause of the treaty itself, interpolated of his own motion, without the knowledge or consent of the other party to the transaction; it is also unintelligible on its face. "My demand was one league below." Below what? Below the mouth of the St. Croix? That would be the obvious inference; but it would be erroneous to so infer. "Their reply was 'from below.'" This is absolutely unintelligible as it stands; it has no meaning whatever. "I imagine (without iniquity) they may be made to agree." Is it Pike's imagination that is without iniquity? Or is it some agreement that may be brought about without iniquity between his demands and the terms of the cession? Or is it the Indians who can without iniquity be made to agree with a demand that conflicts with the terms of the cession as understood by them? In point of fact, however, this interpolated clause of the treaty, or interpolated memorandum relating to the terms of the cession, has nothing whatever to do with the lands at or near the St. Croix r., because the asterisk which points out the place of the interpolation is misplaced by error of the types. The words which stand "St. Croix,* also from," etc., should stand "St. Croix. *Also from," etc. The printer foiled Pike's intention of placing the asterisk at the beginning of the clause to which it pertains, by setting it at the end of the preceding clause, to which it does not pertain.

3. Now making the actually required transference of the asterisk to its proper and intended position (where it stands correctly on a manuscript copy of the orig. doc. now before me), the whole difficulty which this obnoxious interpolation occasions is shifted to a much more important clause of the treaty, upon which it remains in full force. Accordingly we find that this most important clause beginning "*Also from below," etc., includes an irreconcilable discrepancy between Pike's demand and the Indians' concession. He appears to have demanded that the tract of land ceded should begin "one league" below the confluence of St. Peter's with the Mississippi r.; and the Indians appear to have agreed, not to this demand, but to a cession of a tract of land which should begin "from below" the said confluence; though how far "from below" is not said, and there is nothing to show whether the distance should be more or less than the "one league" which Pike demanded and to which the Indians did not agree. But it is impossible, either with or without "iniquity," to come to any incontestable conclusion concerning a boundary so unintelligibly indicated. The most we can do is to "imagine," as Pike did, that what the Indians were willing to cede and did in fact cede by the terms of the treaty, was a tract which began on one side at no appreciable or no considerable distance below the said confluence, i. e., exactly or immediately at the mouth of St. Peter's r. This is a reasonable and natural, if not the only, inference to be drawn from the obscure and scarcely intelligible terms of the article in question; and I believe that such has always been the assumption of its true purport. The initial point assumed, then, is the mouth of St. Peter's r.; but the article does not show in what, if any, direction a line is to be drawn through this point for the purpose of establishing a practicable boundary. No line can be determined by fewer than two points; yet the article specifies no second point to or from which a line may be drawn from or to the mouth of St. Peter's r. to represent one side of the tract supposed to have been ceded. The further terms of the article throw no light on the case. These terms are only "to include the falls of St. Anthony, extending nine miles on each side of the river." This clause of the cession does not specify which one of the two said rivers the Falls of St. Anthony extend nine miles on each side of, and it is also a natural impossibility for the said falls to extend any miles on either side of any river. Seeking some other construction to be put upon terms which are obviously absurd if taken literally, we drag from obscurity a semblance of meaning they may be assumed to have. This meaning is, that the tract of land ceded does to all intent and purpose extend from a point at the mouth of St. Peter's r. to some point in or on the Mississippi r., at or beyond the Falls of St. Anthony; but to what point is not specified. However, we may assume that the phrase "to include the falls of St. Anthony" is to be construed to include no more than these falls. This assumption gives us a second datum-point of the required boundary, but does not in any way assist us to an intelligible connection between the first point and the second one, along which any line can be drawn as a boundary. This deficiency of any line whatever may be assumed to be supplied by the only remaining clause of the article, namely, "extending nine miles on each side of the river." But in what direction are nine miles on each side of the river to be taken? For anything that appears to the contrary, the distance between the mouth of St. Peter's r. and the Falls of St. Anthony may be nine miles, and there is nothing in the terms of the article which forbids the measurement of nine miles to be made up each side of the Mississippi from the mouth of St. Peter's r. to the Falls of St. Anthony, and as much further as nine miles may be found to reach. On such assumption, the cession included only a section of the Mississippi r., and not any land on either side of this river beyond its immediate banks; all that was ceded by the Sioux being in such event a waterway and a waterpower. To claim as ours by the terms of the treaty any land on either side of the river, we have to proceed upon yet another assumption, namely, that the nine miles in question were to be measured in a direction away from the river "on each side." But even assuming such to have been the intent and purport of the article, several further questions arise. The first of these concerns the meaning of the word "each" in its present connection. This word means either one of two or more things in their reciprocal relation, and thus implies both; in the present instance, as a river has only two sides, "each side" means both sides. It is clear that a distance of nine miles is to be measured away from each side of the river, i. e., is to include some distance on both sides of the river; but the terms of the article do not state whether the whole of nine miles' distance from one side of the river, and the whole of nine miles' distance from the other side of the river, was ceded, or whether a part of these nine miles on one side and the rest of these nine miles on the other was ceded; or, in the latter case, what part of these nine miles on one side and what part of these nine miles on the other side were ceded. In other words, is the tract of land ceded eighteen miles wide, or only nine miles wide? In the former case it would of course lie in two equal tracts, one on each side of the river; in the latter case, its location would be wholly indeterminate (within certain obvious limitations); for it might be four and a half miles on each side, or four miles on one side and five on the other, and so on. Even were all the foregoing questions settled—arbitrarily, conventionally, or otherwise—yet others would arise. Among these would be the shape of the two lateral boundaries of the tract of land. This tract is described as "extending nine miles on each side of the river." That is, each boundary furthest from the river is to be at the same distance from its own side of the river at every point of its own extent. This requires that these bounds should be parallel with each other, and such parallelism involves the meandering of two lines parallel at every point with the meanders of the river. Assuming that this were satisfactorily done, it would still be impossible to determine the connection of these two sides of a theoretical tract of land with the other two sides required for actual boundary. For there is nothing in the article to show the direction in which either the line which crosses the mouth of St. Peter's r., or the line which crosses the Falls of St. Anthony, is to be extended to intersect any lines, however the latter may have been projected. We are forced to yet further assumptions, for which the terms of the cession give no warrant whatever. No determinable shape is given to the tract of land by the terms of the cession. If we assume that a square was intended—as was expressly the intention in the case of the land about the mouth of the St. Croix—we are confronted with some terms of the article which put a square out of the question. By these terms the land can only be a square in case the mouth of the St. Peter's r. be nine miles below the Falls of St. Anthony, and in the further case that we measure four and a half miles from one and four and a half miles from the other side of the Mississippi, and make all connections at right angles by means of right lines. It is needless to push the difficulty further. Nothing of this sort, we may be sure, was in the minds of the Sioux at the time, and it may be doubted that anything of the sort occurred to Pike. The patent fact remains that even if both parties to the transaction were competent to execute the instrument by which certain lands were ceded, neither the situation, nor the shape, nor the size of the tract ceded can be determined from the article of the treaty relating thereto. How the cession thus left in the air may have been subsequently determined, it is not to my present purpose to inquire. My contention is simply that we acquired by Article 1 of this famous treaty no tract or tracts of land which can be located according to the terms of the article; and that if there be not a cloud upon the title to every foot of land between and including Fort Snelling and Minneapolis, and for some distance on each side of those places, then such cloud has been removed by legislative or other action subsequent to the supposed cession. It will also be remembered by those interested in such things that the question has been raised whether the Sioux who seem to have ceded this land to us had at the time a clear title to it; for Carver claimed, and some of his heirs have since sought to establish his claim, that the Sioux had at one time made over to him, for a valuable consideration, certain lands supposed to be the same, wholly or in part, as those which they made over to Pike. This case I understand was tried, and decided adversely in law; whether it be not a good case in equity is another question.

4. With the competency of both parties to the transaction brought into question, and with the size, shape, and situation of the land-grant shown to be indeterminable, we have next to consider whether Article 2 does not invalidate, vitiate, or void the whole instrument. In the version which Pike's printer offers us, it reads: "Art. 2. That in consideration of the above grants, the United States shall pay (filled up by the senate with 2000 dollars)." This is simply ridiculous. By the terms of Article 2, the valuable consideration which the Sioux received is an imaginary nonentity described as "(filled up by the senate with 2000 dollars)." However, this absurdity in the wording of an international document is so clearly due to the heedlessness of an inexperienced young officer, and what Pike meant by such phraseology is so obvious, that we can let it go with only the further remark that the purport of Article 2, as it stands on his page, is clearer than anything in Article 1. For it is an obvious editorial interpolation of his own, forming no part of the original document, but simply intended to inform the reader that at some time subsequent to the execution of the instrument by the contracting parties, the Senate of the United States voted to fill up a place which had been left blank in the original document with a clause which provided that the United States should pay $2,000 to the Indians in consideration of the grant which the latter had made. But this very fact goes far to show that the instrument was in the first place fatally defective, no valuable or any consideration whatever having been originally expressed or implied in the terms of Article 2. On this point I have carefully examined two manuscript copies of the "treaty," both made soon after the transaction in question, and both now on file in the War Department. One of the manuscripts reads: "Article 2^nd.—That in consideration of the above Grants, the United States" The other manuscript reads: "Art. 2^d That in consideration of the above grants the U. S." A third version of Article 2, in an official imprint of the treaty, published by the Indian Bureau, is: "Article 2. That in consideration of the above grants the United States ******" Whence it appears that the words "shall pay," which occur in the version our young friend offers in his book, were also an editorial invention of his own; there is no hint in the original instrument that the United States was to pay anything. For anything that appears to the contrary, the United States might have declared war with England, or amended the Constitution, or done nothing, in consideration of the above grant. Pike could give the Indians no assurance that the United States would do anything whatever—that they would even accept the lands as a gift, because he had no knowledge of future Acts of Congress, and no authority to make any stipulations which should be binding on the government. What is perhaps the most extraordinary thing about this extraordinary transaction is that Pike informs Wilkinson by letter of equal date that lands to the extent of about 100,000 acres had been obtained "for a song"; calls the general's attention pointedly to the fact "that the 2d article, relative to consideration, is blank;" that the "song" in mention was worth about $250, being the value of certain presents with which he had personally and privately feed the two chiefs who signed the treaty, these presents being partly from articles of his personal property; and suggests to the general "to insert the amount of those articles as the considerations to be specified in article 2d." General Wilkinson expresses unfeigned surprise at this, in a letter before me addressed to the Secretary of War, dated St. Louis, Nov. 26th, 1805, in which he says: "You have a copy of the agreement under cover, in which, for what reason I cannot divine, he [Pike] omits the stipulation on the part of the United States;" and again, after quoting some clauses of Pike's letter to himself, he remarks: "I do not fairly comprehend this reasoning, but I dare say Mr. Pike will be able to explain it satisfactorily, tho' it is unquestionable he is a much abler soldier than negotiator." We need not take the view that this was a shady transaction; yet if Wilkinson had inserted $250 as the consideration to be paid for the land, no more than this could have been claimed by the Sioux, and as this was in part Pike's personal property, some land would have been his own unless he had chosen to make it over to the United States on being reimbursed in a like amount—that is, if such a treaty was worth any more than the paper on which it was written. The facts appear to be that Pike hobnobbed with two chiefs till he got them to make him a present of the land he wanted, in consideration of some presents which he had already made to these two Indians privately.

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.