Charles D. Bernholz, Love Memorial Library, University of Nebraska, Lincoln, NE 68588 ^[*]

Brian L. Pytlik Zillig, Center for Digital Research in the Humanities, Love Memorial Library, University of Nebraska, Lincoln, NE 68588 ^[**]

Abstract

The Treaty of Fort Laramie with Sioux, etc., 1851 was an important transaction formed by the federal government with a number of prominent American Indian tribes of the Great Plains. Its creation and provisions were a demonstration of the growing need for less animosity among the tribes themselves, in part to yield increased security for an ever-growing flow of settlers into the western United States who traversed in the process the tribes' historical lands. However, over the years, a true version of the final transaction — reflecting intervention by the Senate after the original signing — has never been published. A proposed correct text is presented here.

"It doubtless is important that all treaties and compacts formed by the United States with other nations, whether civilized or not, should be made with caution and executed with fidelity."

George Washington, 17 September 1789 ^[1]

The formation of treaties with the American Indian tribes in the mid-nineteenth century was firmly placed in the hands of the Indian Department through an appropriations act in 1851: "And be it further enacted, That hereafter all Indian treaties shall be negotiated by such officers and agents of the Indian department as the President of the United States may designate for that purpose" (9 Stat. 574, 586). Such authorization allowed the Commissioners of Indian Affairs to implement across the full expanse of this country, with its mixture of both well- and just-established states and remaining Territories, a broad program to address Indian issues. ^[2] The text of one of the transactions created under this power remains absent from the Statutes at Large: the Treaty of Fort Laramie with Sioux, etc., 1851 (Kappler, 1904b, pp. 594-596; henceforth Fort Laramie). ^[3] This instrument was only recognized as valid at the turn of the twentieth century, and only then through the actions of the United States Court of Claims in the two Indian depredation cases Moore v. United States (1897) and Roy v. United States and the Ogallala Tribe of Sioux Indians (1910). Even though the pertinent Statutes volume was printed in 1859, a treaty stub — at 11 Stat. 749 — states only "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." Charles J. Kappler's Indian Affairs: Laws and Treaties, first compiled in 1903, has thus served for over a century as the main source for this document.

Charles J. Kappler's Indian Affairs: Laws and Treaties

During the nineteenth century and as a path other than by referring to the Statutes at Large, four attempts were made to assemble relevant American Indian treaty materials for use by federal agencies. These efforts were Indian Treaties, and Laws and Regulations Relating to Indian Affairs (1826); Treaties Between the United States of America and the Several Indian Tribes, From 1778 to 1837 (1837); A Compilation of All the Treaties Between the United States and the Indian Tribes Now in Force as Laws (1873); and Laws of the United States Relating to Indian Affairs (1884).

In his "Needed Publications on Indian Matters" subsection of the Annual Report of the Department of the Interior for each of the years 1899, 1900, and 1901, the Commissioner of Indian Affairs, William A. Jones (see Baird, 1979), requested a new, up to date collection of these resources. His 1899 statement referred to the Treaties Between the United States of America and the Several Indian Tribes assembly created in 1837. In 1900 — and through reciting this statement again in 1901 — the Commissioner criticized A Compilation of All the Treaties Between the United States and the Indian Tribes Now in Force as Laws from 1873 as "inaccurate" and remarked that "[t]he demand for a publication that shall contain all ratified treaties and agreements made by the United States with the Indian tribes is increasing. It would be in constant use in this office and would be frequently referred to by other Government bureaus and by members of Congress as well as by the public at large" (Annual reports of the Department of the Interior for the fiscal year ended June 30, 1900, 1900, p. 50, and Annual reports of the Department of the Interior for the fiscal year ended June 30, 1901, 1901, pp. 46-47). The Republican Senator from Nevada and Chairman of the Senate Committee on Indian Affairs during the 57th and 58th Congresses, William M. Stewart (1827-1909; R-Nevada), ^[4] brought forward a resolution in May 1902 for such a new publication. He reiterated that "the Secretary of the Interior has recommended for several years a compilation of treaties and Executive orders" (Compilation on Indian Affairs, 1902, p. 5664).

Charles J. Kappler (1868-1946), an associate of Stewart's, became Clerk for the Senate Committee on Indian Affairs and brought together these scattered materials into a two-volume set. ^[5] His work — Indian Affairs: Laws and Treaties — was released in 1903 as Senate Document 452 for resources collected through 1 December 1902, in two successive United States Congressional Serial Set volumes (Kappler, 1903a and b). The pair was republished with format changes in 1904 (Kappler, 1904a and b), the most important of which was the inclusion in the Treaties volume of the signatures of treaty participants. ^[6] Kappler facilitated Congressional use by providing the final versions of these treaty texts, thereby avoiding all the adjustment mechanics listed in the Statutes at Large, including article deletion, amendment, or parameter changes. His focus on the outcome of each negotiated document is an unequivocal demonstration that Kappler consulted the Statutes at Large to convey the law of the land.

The construction of Indian Affairs, and in particular the inclusion of appropriate documents, has been criticized over the years. There was initial concern, during the development of the Senate resolution for the compilation, expressed by Senator Eugene Hale (1836-1918; R-Maine), who referred to previous Congressional subject collection projects that had returned inferior, poorly indexed works (Compilation of Indian Affairs, 1902, p. 5664). To counter this accusation, Senator Stewart provided assurance that this new venture would be better. More recently, Vine Deloria and Raymond J. DeMallie speculated in their Introduction that "[i]n short, after surveying the federal records dealing with Indian treaties, one can only conclude that the list of treaties in Kappler's represents those documents on file at the Bureau of Indian Affairs when Charles Kappler and his clerks began their work. It appears that they simply took several filing drawers filled with documents to the printer" (1999, p. 3). ^[7] This latter conjecture has now been mitigated by a statistical demonstration that Kappler took a far more active role in reliably reproducing the contents of the original treaties (Bernholz and Heidenreich, 2009). There is, however, very little hard data to illuminate the overall atmosphere under which Indian Affairs was developed a century ago.

The Guide to the Archives of the Government of the United States in Washington, however, might provide one insight; work on this manual began in January 1903 (Van Tyne and Leland, 1904, p. iii). It contains a description of the Department of the Interior's Office of Indian Affairs at the time of Kappler's work and includes the declaration that "[t]he files of the office do not, so far as is shown by the examination for this report, antedate 1800: papers between 1800 and 1832 are rare; those between 1832 and 1849 are numerous; while those from 1849 to date are practically complete, with the exception of such as have been destroyed as valueless. . ." (p. 146). The Guide further remarked on the holdings at the Department of State, i.e., on those papers kept at the Bureau of Rolls and Library that were divided into chapters enumerated in 1894; Indian treaties were placed in designated chapter K (Bulletin of the Bureau of Rolls and Library, 1895, p. 10). The Guide stated: "Treaties with the Indians have, since 1849, ordinarily been preserved in the Department of the Interior, and many treaties prior to 1849 have been transferred to that department. A large number of treaties, however, made between 1722 and 1868 are on file in the Bureau of Rolls and Library" (Van Tyne and Leland, 1904, p. 13). ^[8] Thus, it appears that a "large number" of critical documents might not have even been at the Office of Indian Affairs at the very moment when Kappler constructed Indian Affairs by allegedly taking, according to Deloria and DeMallie, "several filing drawers filled with documents to the printer."

In fact, Indian Affairs was an immediate success. The Annual reports of the Department of the Interior for the fiscal year ended June 30, 1903 (1904, pp. 469-474) utilized Kappler's 1903 Treaties volume to identify special cases in a table entitled "Treaties made with Indian tribes in the United States which have been ratified by the Senate." In the courts and with regard to the 1904 version, a 1908 property rights case before the Supreme Court of Oklahoma, Godfrey v. Iowa Land & Trust Co., cited both volumes as "Kappler's Indian Affairs, Laws, and Treaties [2d Ed.]" (pp. 296-297), a clear manifestation of how promptly this work began to appear in legal opinions. These various decisions made citations to both the Statutes and to Kappler, frequently as mentioned pairs. A search of federal and state cases in LexisNexis Academic exposed an assortment of citation formats, such as "2 C. Kappler" (Merrion v. Jicarilla Apache Tribe, 1982); "2 Kappler's" (Godfrey v. Iowa Land & Trust Co., 1908); and "2 Kapp" (St. Germaine v. Circuit Court for Vilas County, 1991), and there are supplementary instances of the use of the Roman numeral "II" as the volume number indicator, e.g., "II Kappler" in Navajo Tribe of Indians v. United States (1986).

A specific LexisNexis search for citations to Fort Laramie in the Statutes — i.e., through using 11 Stat. 749 as the search item — yielded forty-one cases. When this array was coupled with a query for the various ways used to reference Kappler's volumes, seventeen examples emerged, including two judicial proceedings for which Kappler was on brief (Crow Nation or Tribe of Indians of Montana v. United States [1935] and Northwestern Bands of Shoshone Indians v. United States [1945]). These citations to his Treaties volume used "2 C. Kappler," "2 Kappler," "2 Kapp.," "II Kappler," and "Second Kappler." Additional materials from Kappler's fourth volume were presented in four of the cases: the 1935 Crow Nation one ("IV Kapp."); Crow Tribe of Indians v. United States (1960, "IV Kapp."); Sioux Tribe of Indians v. United States (1974, "4 Kapp."); and United States v. Finch (1976, "4 Kapp.").

Note, however, that such use of the Statutes' Fort Laramie reference is frequently abused. In Sioux Tribe v. United States (1969, p. 372) before the Indian Claims Commission for example, the Commission began its opinion with the territorial boundary specifications for the Sioux, found in Article 5 of Kappler's text (1904b, p. 594). Since none of the treaty's text ever appeared in the Statutes, the Commission was in error to cite the treaty stub at 11 Stat. 749 as the source of those land parameters. Similar difficulties arose in Sioux Tribe of Indians v. United States (1969, p. 577) and in Three Affiliated Tribes et al v. United States (1971, p. 193) involving the Arikara, Hidatsa, and Mandan, among others. ^[9]

General structure of Fort Laramie

Boczek (2005) devoted a chapter to "The law of treaties," in which he observed that "a treaty, following its title, consists of a preamble invoking the names of the contracting parties and their motivation for concluding the treaty, followed in numbered articles by substantive (dispositive) provisions, sometimes supplemented by an annex or annexes to the treaty, and then the final provisions, usually including such miscellaneous matters as the opening for signature, ratification, accession, the matter of reservations, declarations and statements, amendments, entry into force, denunciation, depositary, authentic text, and the like" (p. 348); his component terminology is employed here. In many instances, the Statutes at Large contain several of these additional mechanisms employed by the Senate during the legislative handling of a specific treaty. Aust (2007, p. 441) has identified "the last, formal part of a treaty beneath which the representatives sign" as the testimonium.

This analysis revolves around the components, and their text, of the original transaction from 1851, with special reference to the 1904 version of that event provided by Kappler because the latter has served for so long as the primary source for the proceedings of this event. This attempt is confounded in part because his second edition's version was an extension of the 1903 arrangement, the later edition attended now by a testimonium and signature sections that offered additional treaty-specific data. Further, it is clear that the 1904 presentation must have served in turn as the model for his later 1929 one.

Fort Laramie is in comparison to other Indian treaties a relatively short instrument consisting of a preamble, eight articles, and a testimonium. The preamble, at about 100 words, is longer than every article except numbers 5 and 7, one indication that the text is quite focused and direct. All elements except for Article 5 were populated by a single sentence. Article 5 consisted of eight paragraphs: an introductory one; six geographic definitions of territories for the Sioux; for the Gros Ventre, Mandan, and Arikara; for the Assiniboine; for the Blackfoot; for the Crow; and for the Cheyenne and Arapaho; and a concluding remark employed to protect current land claims by the tribes and their hunting, fishing and transit rights.

Sequentially, the individual articles addressed the following issues:

• 1) peace among the tribes;
• 2) the right of the federal government to create roads and military posts within the defined areas;
• 3) a federal promise to protect the tribes from depredations;
• 4) a pledge by the tribes that they will desist from depredating;
• 5) the boundary parameters of the respective tribal territories;
• 6) the acknowledgment by the tribes that chiefs have been appointed to represent them in these and in future negotiations;
• 7) the amount and duration specifications of annuities for the tribes; and
• 8) the conditions under which such annuities may be suspended.

The annuity controversy — that has endlessly muddled the understanding of both the treaty's ratification process and the later question of tribal assents — is centered in Article 7. Here, Kappler provided the Congressional amendment that reduced its projected duration from the original fifty to just ten years, with a potential extension of five additional years, at the discretion of the President. The induced textual change created by this amendment was a legislated action and the proposed document provided here was formed to integrate this later Senate modification into the original 1851 transaction.

Source paths

The abundant use during the last century of Kappler's 1904 collation sets it apart from other providers of recognized American Indian treaty texts. In a sense, the 1903 version was designed to address the Commissioner of Indian Affairs' repeated requests for a collection of all relevant laws and treaties at the beginning of the twentieth century. The 1904 version of the Treaties volume, however, added the participants' signature dimension, a personal as well as an historical veneer to the suite of transactions; Kappler said then that the decision to forego the signatures in the earlier edition had been to save space. Thus, in an attempt to understand the origin(s) of the Fort Laramie texts found in Kappler's work (including the 1929 rendition), all post-1851 examples, in combination with the original treaty text itself, must be carefully investigated. None of these various later compilations, though, stated the basis for its account of the 1851 Fort Laramie materials, so questions immediately arise regarding the foundation(s) of Kappler's treaty text.

Prospective Fort Laramie text avenues available to Kappler in 1902 included, in chronological order:

• The original 1851 parchment treaty. It seems reasonable to assume that federal employees, including Kappler and/or his staff for the collation project, would have had access to this instrument during the preparation of any official compilation in the late nineteenth and early twentieth centuries. In 1960, the National Archives produced a microfilm collection entitled Documents Relating to the Negotiation of Ratified and Unratified Treaties with Various Tribes of Indians, 1801-69 that contains a series of sixty images of documents pertaining to this specific transaction, including images of the three required assent transactions and of letters from the 1920s that discussed its status. The physical quality of these microfilm texts is poor and so digital images of the original 1851 document, now held at the National Archives, were acquired for this study.
• Articles of a treaty (1852). This Senate Confidential Executive Document contained the detailed text from the transaction; it most certainly had to be taken from the document created in the field the previous September. The date upon which it was "read the first time, referred to the Committee on Indian Affairs, and ordered to be printed in confidence for the use of the Senate" (p. 1) was exactly five months after the treaty signing date, i.e., on 17 February 1852. The particular spellings for "Yellow Stone river" and "Red Bute" follow those phrases of the physical instrument, and so this replicated text thus served as the surrogate for the original while under ratification consideration by the Senate.
• A Compilation of All the Treaties Between the United States and the Indian Tribes Now in Force as Laws (1873; henceforth, the 1873 Compilation). The Compilation was created through an act of Congress (17 Stat. 579) as part of a general request for a consolidation of laws relating to post-roads and military offenses, and "to prepare a revision of all the Indian treaties now in force as law." A critical aspect of this specific form of Fort Laramie is a declaration preceding the preamble that announced that "The following treaty, though never ratified or printed, is sometimes referred to in appropriations and in other treaties; for instance, treaty with the Sioux, Yankton tribe, proclaimed February 26, 1859." The very presence of this passage is helpful in determining the creation of subsequent versions of this material, even though the ratification statement was incorrect.
• Laws of the United States Relating to Indian Affairs (1884; hereafter, Laws of the United States). Laws relayed the treaty text through an appendix that was declared in the table of contents for a category reserved for "unpublished treaties and agreements" (pp. 317-322). In this example of Fort Laramie, there is a memorandum of "Note. — This treaty is recognized in the first article of the Yankton Sioux treaty of April 19, 1858 (11 Stats., p. 744)" that parallels the same declaration in the 1873 Compilation. Absent the various tribe name spellings, there are many other differences among the signatory names in the assent description of Laws and Kappler's. ^[10] However, the most important aspect linked to this Laws text — whatever its own source(s) — is that it must have served as the basis for Kappler's conclusion that the Crow had not confirmed their assent to the annuity duration amendment. This Laws rendition clearly speaks of the six "following named tribes, viz, Crows, Assinaboines, Gros Ventres, Mandans, Arickarees, and Sioux of the Missouri" (p. 320), even though the signature section for the assent only contains five headings for the Sioux, Assiniboine, Gros Ventre, Mandan, and Arikara (pp. 321-322).

Regardless of it provenance, this treaty has been cited in over three dozen federal and state court cases. ^[11] These uses — and especially the text variations found in the other compilations — therefore warrant a reexamination of the Fort Laramie wording. The two pivotal Indian depredation cases — Moore v. United States (1897) and Roy v. United States and the Ogallala Tribe of Sioux Indians (1910) — are especially important to a study of Fort Laramie for three reasons. First, they created a platform for the federal Court of Claims to declare that Fort Laramie was a valid transaction, and that it was so for all parties. Second, in this declaration and particularly so for Roy, the Court defined the specifications for a general yet binding treaty, with or without the alleged formality of an attending Presidential proclamation. Third, an examination of the opinions and of the briefs submitted before the Court reveals the various origins for the text of this instrument. These briefs contain far more discussion of the parameters of the treaty, but the timing of these two proceedings — one before the creation of the two editions of Kappler's Indian Affairs, and one after — shows the active contemporary use by attorneys of Indian treaty materials, and certainly of the earlier, established compilations for these instruments.

Text analysis

Recently, a text analysis tool, TokenX, was used to form a lexicon for each of the two families of acknowledged American Indian treaty instruments. These were composed of the seven British treaties created during their occupation yet fully recognized by the Department of State, and for the United States, through a combination of the texts of the 366 items in the Oklahoma State University's Kappler digital collection) and of the remaining two instruments in the American State Papers (see Bernholz, Pytlik Zillig, and Anderson, 2008). The study's results confirmed a number of errors and discrepancies in the Statutes at Large, in the 1903 and 1904 editions of the Treaties volume, and in the Oklahoma State University digital ensemble. Two word frequency lists — one sorted alphabetically, the other by count — aided error identification. The lexicon investigation though, with the presence of errors in all sources, generated the subsequent hypothesis that there might be more divergence between those texts found in the Statutes at Large and their corresponding entries in the 1904 Indian Affairs treaty volume. In this particular instance and as a special comparable consideration, provenance is an even more important question for Fort Laramie because of its absence from the Statutes at Large.

Treaty text discrepancies

Text variability is not a novel question with regard to these critical documents. Edward Channing, in A History of the United States (1921, pp. 68-69), identified four specific sources for negotiations with the tribes: Indian Treaties, and Laws and Regulations Relating to Indian Affairs (1826); Treaties Between the United States of America and the Several Indian Tribes, From 1778 to 1837 (1837); the seventh volume of the Statutes at Large, entitled Treaties Between the United States and the Indian Tribes (1846); and Kappler's second Treaties volume (1904b). To these he added Charles C. Royce's Indian Land Cessions in the United States (1899), a significant work that combined a chronologically arranged table of treaty cession transactions with corresponding map(s) to show the extent of the lands transferred through those events. ^[12] Channing remarked that "[t]here are differences in the text of the treaties as printed in these several publications, and some treaties are in one and not in any of the others." As the law of the land, though, it might have been expected that such variation should not have been present, or at least not so prevalent.

Francis Paul Prucha, in American Indian Treaties: The History of a Political Anomaly, spoke directly to this question of the reliable publication of these documents (1994, pp. 442-445). In that presentation, Father Prucha identified the assorted laws enacted to direct the State Department and the Department of the Interior to furnish the array of laws and treaties created by the nation. Of special interest was An act to amend the act, entitled "An act to provide for the publication of the laws of the United States, and for other purposes" (1820) that required that Indian treaties "shall be published only in one newspaper, and that to be within the limits of the state, or territory, to which the subject matter of such treaty shall belong" (p. 576). The various compilations in the nineteenth century, such as those identified by Channing in 1921, made it far easier to access these instruments, but these "versions do not display great uniformity in their handling of the treaties or in their concordance with the original manuscript in matters of spelling, capitalization, and punctuation" (Prucha, 1994, p. 445). The present study is a reconfirmation of that observation, with the additional stipulation that the actual words have varied since the original document was created.

Prucha also remarked that other comparisons have been made of the original texts with those found in the Statutes at Large and in Kappler. Clarence E. Carter, editor of The Territorial Papers of the United States, found a substantial number of punctuation errors but "no important differences in words" for the Treaty with the Wyandots, etc., 1789 , and there existed as well "more than one hundred changes" of punctuation for the Treaty with the Wyandots, etc., 1795 , in direct comparisons between the original material and the Statutes at Large texts (Carter, 1934, p. 174 and 525; see Kappler, 1903b, pp. 13-18 and 30-34). In both of these situations, Carter acknowledged that Kappler followed the Statutes account as he created his 1903 Treaties volume (pp. 13-18 and 30-34), thereby incorporating such errors. ^[13]

It was further observed by Father Prucha that Kappler's 1904 Treaties edition "follows a chronological arrangement and relies for its content on the Statutes at Large (although it prints the Fort Laramie Treaty from 1851, which the Statutes omits), and in most cases, it prints the treaty as amended instead of the original treaty with amendments printed at the end, as the Statutes does" (1994, pp. 523-524; emphasis original). ^[14] This may have very well been Kappler's strategy, especially after the critical assessment in 1900 by Commissioner of Indian Affairs Jones regarding previous endeavors — i.e., "An inaccurate Revision of Indian Treaties then in force was made in 1873. . ." — that was repeated in 1901 during his third plea for a new suite of critical documents (Annual reports of the Department of the Interior for the fiscal year ended June 30, 1900, 1900, p. 50, and Annual reports of the Department of the Interior for the fiscal year ended June 30, 1901, 1901, p. 47). With particular regard to the 1851 Fort Laramie instrument, Kappler presented its full text in both of the 1903 and 1904 Treaties volumes (1903b, pp. 440-442, and 1904b, pp. 594-596). ^[15]

As a relatively new attorney, and with the admonishments of some Congressional members in mind, it would have been beneficial to Kappler in his quest for completeness to include this treaty in his collation, especially after it had been validated by the Court of Claims opinion for Moore v. United States (1897). In providing a judgment for a depredations case originally involving "the loss of horses, mules, and cattle aggregating in value. . . the sum of $44,335" and for which the Department of the Interior had allowed $17,734 (p. 594), Moore confirmed this instrument as a legitimate and binding transaction between the tribes and the federal government. ^[16] There is, however, no physical proof that this was one of Kappler's stimuli for its addition to Indian Affairs. The problems that arose between the time of the production of the 1903 and 1904 texts, and of an explanation in his 1929 volume, only highlight the difficulties that have surrounded the history of these dealings.

The 1873 Compilation observed that "The following treaty, though never ratified or printed, is sometimes referred to in appropriations and in other treaties; for instance, treaty with the Sioux, Yancton tribe, proclaimed February 26, 1859. See foot of page 856" (p. 1047). ^[17] The treaty was actually ratified on 24 May 1852, after the original fifty year annuity duration declared in Article 7 was adjusted to a "term of ten 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" (Journal of the Senate of the United States of America, 1852, p. 703). All signatory tribes assented to this alteration, lastly by the Crow in September 1854 (Kappler, 1929, pp. 1079-1080). In a 1904 footnote, Kappler had mistakenly declared that "[a]ssent of all tribes except the Crows was procured. . . and in subsequent agreements this treaty has been recognized as in force" (Kappler, 1904b, p. 594). ^[18] He corrected this error twenty-five years later in his fourth volume (1929, p. 1065): "Assent of all tribes was procured, the last acceptance being by the Crows September 18, 1854," i.e., acquired three years after the initial signing date. His reanalysis included the correspondence of Alfred J. Vaughan, the Indian agent who had conveyed to the Crow the annuity duration alteration in Article 7 (1929, pp. 1079-1080). This specific agent had also witnessed the consent given by the Arikara, as revealed in Kappler's 1929 remarks (p. 1081). ^[19] Comments on these fresh Vaughan materials were supplied to Kappler by William R. Layne, the "Chief Law Officer" for the Indian Bureau, in an undated letter addressing the overall treaty ratification issue. In his remarks, Layne specifically cited the erroneous assent footnote from volume 2 by "Mr. Kappler, the author of Laws and Treaties" (Kappler, 1929, p. 1067). ^[20]

There was also an earlier assent explanation. In a memorandum within a report of the Senate Committee on Indian Affairs concerning a special jurisdiction act to empowered the Court of Claims to "hear, examine, adjudicate, and enter judgment in any claims which the Crow Indians may have against the United States" (Claims which the Crow Indians may have against the United States, 1926, p. 1), reference was made to Fort Laramie and specifically to the annuity adjustment. In that remark, it was declared that "[t]his amendment was submitted to the several tribes, parties to the treaty, for ratification, the last ratification being made by the Crows on September 18, 1854" (p. 2). The communication was signed by Charles Kappler and Charles Merillat, as "Attorneys for the Crow Tribe of Indians" and dated 26 February 1926. ^[21] The special jurisdiction act was passed on 3 July 1925 (44 Stat. 807), and the resulting Crow Nation or Tribe of Indians of Montana v. United States case was dismissed in 1935. ^[22]

Thus, it seems likely that Kappler was aware of the Crow assent several years before he actually published his 1929 correction in volume four of Indian Affairs. The firm of Kappler & Merillat had been approached in June 1909 by the Crow to represent them before Congress (Hoxie, 1995, p. 255), but their contract had been cast off in April of 1910 by Commissioner of Indian Affairs Robert Grosvenor Valentine (see Putney, 1979). The firm carried on, without an agreement in place, until mid-1916 (Hoxie, 1995, p. 259, n. 64). In 1923, the tribe re-approached the attorneys, and Commissioner of Indian Affairs Charles Henry Burke (see Kelly, 1979) approved this representation (Hoxie, 1995, p. 313) a month after the 1926 passage of the special jurisdiction act.

An estimate might thus be calculated for the earliest possible date that Kappler was aware of the Crow concurrence. William R. Layne, the "Chief Law Officer" for the Indian Bureau whose undated letter Kappler had used in 1929 to correct his earlier error concerning this event, was listed as "Chief" of the Land Division in the Department of the Interior's travel expense records for a 20 June 1918 trip to Wisconsin (Travel expenses, officers and employees, Department of the Interior, 1929, p. 3). Layne first appeared in the Congressional Directory in 1912 as a "division chief" (Bell, 1912, p. 474), suggesting that his position as "Chief Law Officer" was subsequent to this time. If so, then Kappler may have only uncovered his confirmation for the Crow assent in the 1920s.

Nevertheless, it remains disappointing to see that this Fort Laramie consent question perseveres, and especially so after the National Archives produced the microfilm collection of Documents Relating to the Negotiation of Ratified and Unratified Treaties with Various Tribes of Indians, 1801-69 (1960). Two updates to Felix Cohen's Handbook of Federal Indian Law (1942) stated that assent for the annuity amendment "was never obtained" (Strickland, 1982, p. 97), and that "one of the signing tribes never agreed to the amendments" (Newton, 2005, p. 62, n. 392). Both referred to Kappler's 1904 treaty text for support. Strickland's use of an Annual Report of the Commissioner of Indian Affairs to bolster his assertion, though, is damaged because his bibliographic reference is incorrect. Newton's footnote in turn further modified Strickland's use of the Annual Report data, but at least both publications included the Roy (1910) Court of Claim case that certified that the instrument was binding, needless assent errors notwithstanding. Neither of these two later handbooks employed, as Cohen had, the opinion for Crow Nation or Tribe of Indians of Montana v. United States (1935), a case in which Kappler participated. That Court of Claims decision referred directly to his 1929 remarks on the treaty: "The Treaty of Fort Laramie, dated September 17, 1851 (11 Stat. 749; 4 Kappler 1065), is as follows:. . ." (p. 244), and it cited the agreement process that followed the Congressional annuity article amendment: "The treaty as modified was returned to the tribes concerned and the assent of all was in due course secured, that of the Crow Tribe or Nation September 18, 1854" (p. 248). ^[23] Even today, however, there remains confusion over whether the Crow actually did provide assent (see, for example, Hoig, 2006, p. 96).

Development of a new text for Fort Laramie

This concatenation of events virtually guaranteed that a true and complete version of Fort Laramie never emerged, but the clarity now available regarding this single instrument's history allows for its full presentation today. Observed differences among the releases actually helped create this final product, in part because these materials tendered nearly identical texts that collectively confirmed the expected contents of this transaction.

Text preparation and expectations

Test files were composed from each of the seven federal sources. The new files were then re-titled for easy use in this discussion by setting the year of their publication as a suffix; the filenames thus ranged from Laramie51 to Laramie29. Table I presents these joint text data. In the case of Laramie51, the contents were derived from digital images of the original treaty kept at the National Archives, while the others were reproduced from microfilm images of the document (Laramie52) or from federal print documents (Laramie72 through Laramie29). The suite was converted into word lists devoid of punctuation, deposited into columns of a Microsoft Excel worksheet, and adjusted vertically to align the material. With all punctuation deleted, only the actual wording would thus be compared in subsequent tests. Laramie51, as the original instrument, formed the anchor from which all other files were referenced. Each later document was positioned to align along identical words in Laramie51. For situations where a specific text's material had been confounded by either added or deleted wording — established, for example, by text incursion errors or, most significantly, by the advent of the annuity adjustment — vertical column space was interposed in all columns required to accept such changes. An additional document column was reserved for the new proposed Laramie09 version. The final, full text proposed for Laramie09 returned to the Laramie51 text to acquire the original punctuation. In total, eight complete test models of Fort Laramie were formed, all of identical length to reflect both the exclusions and the incursions. This joint text set was the basis of the following comparison testing.

Text expectations

There were six expectations regarding the Fort Laramie versions under examination:

• The original 1851 treaty text (Laramie51) was considered the standard from which all subsequent renditions evolved. There are known errors in this transcript, primarily those of spelling, but these were reproduced in the final Laramie09 version, just as if the 1851 transaction had been placed directly into the Statutes at Large;
• The sole modification made to this wording — through the Senate's annuity amendment — occurred at the time of ratification. Thus, any newer version requires this correction to Article 7 and this administrative timing thus precludes Laramie51 and Laramie52 from representing the true text;
• The text created by the Senate for their confidential consideration (Articles of a treaty, 1852; Laramie52) was assumed to be the best initial reproduction of the 1851 material. This Executive Document was dated five months after the original negotiations, and the Journal of the Senate of the United States of America (1852) recorded the events in the legislative life of this instrument. Such actions entailed the document's submission to the Senate by President Fillmore on 13 February 1852; its initial reading and the confidential printing order on the 17th; and then a report from the Committee on Indian Affairs on 19 April declaring that no amendments were made to it (pp. 700-701). Finally, on 24 May 1852, the "advise and consent to the ratification of the articles of a treaty made and concluded at Fort Laramie" were given, along with the agreed annuity revision (pp. 702-703). The exact new payment specification was: "Article 7, strike out the words "fifty years," and insert in lieu thereof the following: the term of ten years, with the right to continue same, at the discretion of the President of the United States, for a period not exceeding five years thereafter" (p. 703). These activities support the contention that, commencing on 24 May 1852, the new official federal version of Fort Laramie would have been a concatenation of Laramie51 (as most probably observed by the Senate through Laramie52) and this chamber's thirty word allowance alteration to Article 7;
• Any subsequent versions of the treaty, including the ones from 1873, 1884, or any of those submitted by Kappler, should exhibit identical text — solely reflecting the results of that limited Senate intervention — since each federal publication request had been made for a current official compilation of treaties affecting the tribes; current would have meant the entire document ratified by the Senate on 24 May 1852. Thus, the materials found in Laramie73, Laramie84, Laramie03, Laramie04, and Laramie29 should, for all intents and purposes, be indistinguishable from each other;
• Within all these documents, it became apparent that tribal name spellings were particularly susceptible to variation. Kappler's use of the "Names of Indian tribes and bands" list, proposed by the Office of Indian Affairs in conjunction with the Bureau of Ethnology (Kappler, 1904a, p. 1021), was reserved exclusively to his document titles and was not applied to the transaction contents. Precedents for such name allegiance appear in the Statutes at Large. Here, the Pottawatomie were the prototypic example of a tribe to which a multiplicity of names had been applied, indeed so abundantly that a footnote to the title of the 1846 Treaty with the Pottowautomie Nation (9 Stat. 853) declared: "The name of this tribe is, in different treaties, spelled very differently." ^[24] Their name in this specific Statutes entry was a substantial deviation from the others. Kappler's version of their name, taken from the "Names" list, was Potawatomi , as it appeared for them in the Index to the Treaties volume, and as it is revealed in his title, the Treaty with the Potawatomi Nation, 1846 (1904b, pp. 1089-1090 and pp. 557-560, respectively). Beyond the title, his text reflected the contents found in the Statutes, regardless of any spelling differences, a choice that had been very clearly determined in February 1903 when he wrote in the Preface to Laws: "At the suggestion of the Commissioner of Indian Affairs, the correct modern spelling of Indian names, as decided by the Indian Office and the Bureau of Ethnology, has been introduced and adopted in the headlines to the treaties, but in the text it was found expedient to follow the orthography of the Statutes" (1903a, p. iii; emphasis added); ^[25] and
• The Kappler accounts furnished by Laramie03, Laramie04, and Laramie29 should match closely, even to the point of sharing errors. This should be especially so when the first two examples are considered, since the transition between their publications allegedly differed only by the addition in 1904 of the original testimonium and accompanying signature sections that were absent from the 1903 presentation. Kappler prefaced the second edition of Treaties with the statement that "[t]he new edition has afforded the compiler an opportunity to make such typographical and other corrections as were discovered in the first print, to insert several treaties and documents which were heretofore unobtainable, and to add the signatures subscribed to each treaty which was omitted in the first edition to save space" (1904a, p. v).

Test processes and results

A three-stage comparison process was conducted. First, an assessment was made between Laramie51 and Laramie52 of the joint text set, i.e., between the data columns containing the two unadjusted annuity texts. This was considered important because any differences found between the wording of the original treaty and that of the latter text, submitted to the Senate to determine the fate of that transaction, would be expected to materialize in any subsequent publication. Second, the three Kappler records — Laramie03, Laramie04, and Laramie29 — were examined for internal consistency, and in order to form an understanding of his suite. Finally, differences were determined between Laramie51 and each of Laramie73, Laramie84, Laramie03, Laramie04, and Laramie29 to collect text discrepancies. These observed variations guided the development of a composite text that was designed to reflect better the original transaction's words, affected only by the Senate's later modification to them. The full text version of that outcome is found in the Appendix as Laramie09, along with each of the earlier documents. The term composite text is used hereafter to identify this new version of Fort Laramie.

The results of these comparisons express unequivocally that six accurate reflections of the original Laramie51 text were never accomplished. The later contracts were found to be riddled with inconsistencies when considered against the primary instrument, ^[26] yet in this study — just as in those of Channing and Carter — not every difference was perceived as a catastrophic error. However, the exclusion of Laramie51 material from succeeding descriptions and a text incursion only present in Laramie29 certainly were considered major deviations from the original treaty. This was especially so because the text exclusion undermined the parameters of the 1851 contract, while the Laramie29 incursion befouled a reservation specification. Nevertheless, slight spelling differences overall were considered more in line with everyday transcription inaccuracies. The later use of the term the instead of these, of principal instead of principals, or of even $50,000 instead of fifty thousand dollars was tolerable. Truncating Article to Art (or marking such paragraphs with VIII or 8 instead of 8th) was considered as noise created during reproduction. Ultimately, though, the new composite text returned to the orthography of the original 1851 document, because the goal was to understand the actual legal expression of the transaction. Table I provides colored line numbers — 183 in all — to identify the full range of dissimilarities found across the array of Laramie51 through Laramie29.

Observed differences

In general, four error types were observed from these analyses: exclusion; incursion; replacement; and amendment:

• The sole exclusion involved material from Laramie51 that failed to appear in the 1873, 1903, 1904, and 1929 versions. This absence may be seen across lines 471-477 of the joint text set; the original material consisted of a seven-word phrase in the fifth Article's boundary description for the Gros Ventre, Mandan, and Arikara.
• Incursions occurred when text was inserted during the preparation of other accounts, relative to the original 1851 wording. Lines 353-368 reveal a sixteen-word redundant section of Laramie29. An insignificant example of this type of error would be the addition of the term the at line 333 of Laramie73, Laramie03, Laramie04, and Laramie29.
• Cases of simple replacement are prevalent; see the spelling examples below.
• Finally, the amendment process impels adaptations to the text of Laramie51 in order to reflect the Senate annuity adjustment to Article 7. Lines 1026-1055 divulge how the joint text set — and especially Laramie09 — were constructed to handle that necessary annuity alteration by substituting the adjustment's thirty words for the first two original treaty ones.

Absent the terms Superintent, behavior, maintainance, and (Santa) Fê discussed below, examples of alternative spellings occurred, exemplified perhaps by alonge in Laramie73 (see line 492 in the joint text set). Further, the terms head chiefs, head men, fifty one, north westerly, south-easterly and south easterly, south-westerly, and Yellow Stone were used in Laramie51, while post-1851 documents employed headmen, fifty-one, northwesterly, southeasterly, southwesterly, and Yellowstone. Specifically, head waters, Muscle-Shell, Twenty five Yard and Twenty-five Yard were applied within Laramie51, whereas the variants headwaters or head-waters, Muscle Shell and Muscle-shell, and Twenty-five-yard surfaced in some subsequent texts.

Four special terms

Four tokens stand out as unique elements of the original treaty text, primarily because of their orthography. These have little influence or significance within the transaction, but their usage provides a unique window upon the times and, perhaps even more so, upon Adam B. Chambers, who served as Secretary during the negotiations and who had made a career as a journalist. A search was made for each of these four items within the pages of the United States Congressional Serial Set around the time of Fort Laramie to certify their contemporary use. In addition, the legal aspects of this treaty were subsequently tested before the courts, so appropriate opinions were examined for the application of these expressions as well.

Superintent

• This word emerges in the Serial Set in testimony given during a federal investigation into the sale of Fort Snelling in 1857 (Fort Snelling investigation, 1858, p. 2; Jones, 1966, pp. 230-231). On 23 February 1858, William J. Cullen, Superintendent of Indian Affairs for the Northern Superintendency (see Hill, 1974, pp. 118-120), responded to the question "What is your office?" by stating "Superintent of Indian Affairs" (Fort Snelling investigation, 1858, p. 264; emphasis added). ^[27] As announced in the 1851 preamble with this aberrant spelling, D. D. (David D.) Mitchell was the Superintendent of Indian Affairs for the Central Superintendency, following his appointment on 13 March 1851, i.e., just six months before Fort Laramie was consummated. He had served in the same role for the St. Louis Superintendency, which was then replaced in 1851 by the Central office. William Clark, of Lewis and Clark fame, was the first Superintendent in St. Louis, beginning in 1822 (Hill, 1974, pp. 28-31 and 155-159). Thomas Fitzpatrick was the initial Agent for the Upper Platte Agency when it was established in 1846 and he was serving in that capacity at the time of Fort Laramie. The Agency was assigned to the St. Louis-Central Superintendency, thus sealing Fitzpatrick's connection with Mitchell that was announced in the treaty's preamble. The President thus employed the two most appropriate and experienced federal representatives as commissioners: both men had had extensive interactions with the tribes present at the event (pp. 188-189).
• The word was exercised more recently before the Indian Claims Commission, a tribunal created specifically to address unresolved Indian legal questions. The opinion for The Confederated Tribes of the Warm Springs Reservation of Oregon v. United States remarked: "However, if the three "principal bands, to wit: the Wascopurn, Tiah or Upper De Chutes, and the Lower De Chutes bands" desired to select a committee, and if such committee and the Superintent of Indian Affairs or his agent were successful in finding a more suitable location for a reservation, then "the same shall be declared a reservation for said Indians, instead of the tract named in this treaty"" (1963, p. 667; emphasis added). ^[28]

Behaviour

• This specific spelling is presented in The Oxford English Dictionary (1989, vol. 2, pp. 73-74). Traditionally, the additional u has been a part of English, and not American, orthography to create such terms as colour, flavour, honour, labour, neighbour, harbour, and tumour (Ritter, 2003, p. 238). Behaviour is one such manifestation.
• Interestingly, it surfaces as well in the Statutes at Large in An act to establish a court for the investigation of claims against the United States (1855), i.e., for the creation of the United States Court of Claims before which a number of American Indian treaties — including Fort Laramie — were cited. The act indicated "[t]hat a court shall be established to be called the Court of Claims, to consist of three judges, to be appointed by the President, by and with the consent of the Senate, and to hold their offices during good behaviour. . .." (p. 612; emphasis added). ^[29] Further, before the later Indian Claims Commission, the term was delivered in Oneida Nation of New York v. United States: "On August 15, 1778, the Commissioners for Indian Affairs in the Northern Department met with deputies from the Onondaga Indians who tried to excuse their recent hostile behaviour" (1971, p. 604; emphasis added).

Maintainance

• This token is found in The Oxford English Dictionary, as an entry under maintenance (1989, vol. 9, pp. 225-226).
• It is also present in An act making appropriations for the support of the Army for the fiscal year ending June thirtieth, 1877, and for other purposes in the Statutes at Large in which funds were earmarked: "For maintaining and improving national military cemeteries, one hundred and twenty-five thousand dollars: Provided, The Secretary of War shall provide for the care and maintainance of the National Cemeteries and..." (1876, p. 99; emphasis added).
• The Indian Claims Commission opinion for Confederated Tribes of Colville Reservation v. United States made use of this expression as well: "Defendant spent large amounts of money in fish protection, and in maintainance thereafter, not to protect claimants' fishing rights, but for the preservation of the species" (1978, p. 539; emphasis added).

Fê

• This was a clear misuse of the circumflex. This diacritical mark is not used in Spanish (Errapel Mejias-Vicandi, personal communication, 4 June 2009), but its appearance provides an interesting — indeed, an intriguing — manifestation of the errors made by those who wrote these instruments. Most of today's applications, including for the name of the capital of New Mexico, are satisfied with the term Fe. In Spanish, it appears as Fé, with the acute.

Other discrepancies

As noted above, Clarence E. Carter identified abundant punctuation errors in the Treaty with the Wyandots, etc., 1789 and the Treaty with the Wyandots, etc., 1795 when he made direct comparisons between the original treaties and their Kappler equivalents. Overall, such faults persist here, when each of the examined federal versions of Fort Laramie was compared with the original 1851 treaty. One such difficulty may be seen in the various renderings of, and in the punctuation surrounding, the special term viz. — "in reading aloud usually rendered by 'namely'" (The Oxford English Dictionary, 1989, vol. 19, p. 718) — that is present once in the preamble and then again in each document's first paragraph of Article 5. The observed pairs consist of — viz: and viz: — in Laramie51; viz: and viz : in Laramie52; viz, and viz: in Laramie73, Laramie03, Laramie04, and Laramie29; and viz: and viz: in Laramie84. Note that none of these included the terminal period — as in viz. — found elsewhere. ^[30] Nevertheless, the unpunctuated token viz is found in the texts of seven Indian treaties in volume 11 of the Statutes, along with the Fort Laramie treaty stub at 11 Stat. 749. ^[31] Thus, the shorter term viz must have been an acceptable representation at the time Adam B. Chambers constructed this document for the treaty meeting.

The variability of tribal names alone contributed to a considerable number of differences among the treaty text files. Importantly, the same tribe name was commonly spelled in more than one way within a single document — the initial Laramie51 began such deviation with Gros-Ventres and Gros Ventre — but such unpredictability has been widespread over the years. In his important study on the tribes, Hodge (1907a) provided 2,500 various spellings of tribe names and definitive sources to address questions arising from such dissimilarities. Among his options may be found optional spellings created by the Bureau of Indian Affairs for use in its own Annual Reports: e.g., Aripohoes or Arrapahas (p. 73); Arickare or Arickarees (p. 86); and Assinepoins or Assinib'wans (pp. 104-105). Such general inconsistencies persisted until 1900, at which time they were mitigated to some degree by the advent of the "Names of Indian tribes and bands" list (Annual reports of the Department of the Interior for the fiscal year ended June 30, 1900, p. 51). Table II contains the nineteen tribal names used in the preambles and in Article 5 of each of the seven instrument versions. The final column contains for comparison the preferred tribe name as define by that "Names of Indian tribes and bands" assembly. This Bureau collection was considered an important step towards a standardization of entity spellings, and was an exhibition of the new federal desire for order that emerged in the last decade of the nineteenth century. ^[32] As Table II illustrates, the Sioux were given an additional name, which all versions except for Laramie52 have as Dacotahs. ^[33] The preambles hold nine of the nineteen names, in its effort to identify the eight active participants at the negotiations. Article 5, on the other hand, sequentially specified land parameters for all relevant groups, including a ninth tribe — the Blackfeet — who, although absent, had their reservation set by these negotiations.

Overall, all documents maintained the spellings for Sioux, Cheyennes, and Arrapahoes. In the preamble section, the terms Crows and Mandans were also similar across instruments, while in Article 5, Crow was used by all. Various spellings prevailed for Assiniboine, Gros Ventre, Mandan, Arikara, and Blackfeet, ranging from the addition of a pluralizing s (Mandans), to an intervening hyphen (Gros-Ventre), to bifurcating names (Black Foot), to substantial spelling deviations (Arreckera, Arickaree, and Arrickaras). Other changes in spelling, capitalization, and abbreviation occurred as well, just as Prucha had noticed before (1994, p. 445).

As stated earlier, the sole exclusion of original treaty text from Laramie73 and from the three Kappler documents — while still appearing in Laramie52 and Laramie84 — contributed to the boundaries paragraph for the Gros Ventre, Mandan, and Arikara (joint text set, lines 471-477). This omission was considered a serious error, ^[34] whereas the assorted incursions presented both major and minor divergences. One distinct major incursion may be found in the Sioux subparagraph of Laramie29's Article 5, where unnecessary material — . . .thence up the north fork of the Platte River to the forks of the Platte River. . . — became visible in the text (lines 353-368). This error is absent in every other Fort Laramie example. Minor incursions may be illustrated by the insertion of the term at in the phrase The territory of the Sioux or Dahcotah nation Commencing at the mouth of White river (lines 320-336; emphasis added) in Laramie51, Laramie52, Laramie84, and Laramie29, yet this is paralleled by its absence and by the minor incursion of the term the in The territory of the Sioux or Dahcotah nation commencing the mouth of the White River (emphasis added) found in Laramie73, Laramie03, Laramie04, and Laramie29. In these instances, the Laramie29 text involves both minor incursions. There is an unexpected benefit, however, attached to these findings, because repeated couplings of textual difficulties in Laramie73 and the three Kappler copies collectively reinforce the consideration that Kappler modeled his 1903, and subsequent materials, from the 1873 transcript.

Word replacement similarly induced both classes of errors. In the minor category, dissimilarities reflect simple substitutions, such as in Article 6 of Laramie51 that begins with the phrase The parties of the Second part to this treaty, having selected principal or Head Chiefs for their respective nations. . .. Laramie52, on the other hand, has The parties of the second part of this treaty, having selected principal or head chiefs for these respective nations. . . (lines 923-942; emphasis added). Such faults may also appear in combination. For Article 7, Laramie51 declares In consideration of these treaty stipulations, and for the damages which have, or may occur by reason thereof, to the Indian Nations — parties hereto, and for their maintainance, and the improvement of their moral and social condition,. . ., whereas Laramie73 remarks 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, ..." (lines 968-1004; emphasis added). The condition/customs distinction is considered here as a major replacement error, while the these/the or the maintainance/maintenance inaccuracies are not.

One of the clearest replacement illustrations occurs in the final segment of Article 5. In the original transaction in 1851, a proviso to the treaty reads: . . .they do not surrender the privilege of hunting, fishing or passing over any of the tracts of Country hereinbefore described (lines 901-920; emphasis added). The term hereinbefore is replicated only in the Senate's copy and in Laramie84. Laramie73, Laramie03, Laramie04, and Laramie29 each have heretofore, thereby providing further evidence that Kappler employed Laramie73 as the prototype for his compilations.

The Senate-imposed annuity adjustment

Following the modification instituted by the Senate and evident for the first time in the Laramie73 document, the final text of Article 7 reduced the duration of the promised 1851 annuity from "the sum of Fifty thousand dollars per annum for fifty years in provisions, merchandize, domestic animals and agricultural implement, 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" to "the sum of fifty thousand dollars per annum for the term of ten 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" (emphasis added). Laramie52, as the Senate's working copy of the original, and Laramie84 did not present this correction, but reproduced the original 1851 passage. While the annuity modification had no place in the original transaction or in the 1852 material, the absence from the 1884 Laws of the United States Relating to Indian Affairs of the specifications for this monumental change must have been a further irritation to the Commissioner of Indian Affairs. Kappler's three versions in 1903, 1904, and 1929 supplied the appropriate new parameters, although the last document engaged the terms $50,000 and 10 years for the allowance amount and its duration.

In a contrast between the outcomes of text replacement and text amendment within this particular document, it may be concluded that the former yielded inappropriate changes to the contents, whereas the latter procedure updated the original treaty in a legally acceptable manner. All four adaptive processes — exclusion, intrusion, replacement, and amendment — found in these various perspectives upon Fort Laramie supply critical provenance data, and help explain in part how Kappler might have used the previously published renditions to create his Laramie03, Laramie04, and Laramie29. Thus, several similarities strongly recommend a bond between the text of Laramie73 and that of Laramie03, yet simultaneously separate these attempts from both the National Archives' original document and the Laramie84 instrument. The presence of the "never ratified or printed" note before each of the 1873 and 1903 preambles is a substantial signal that Kappler just merely reproduced the 1873 source for his 1903 edition of Treaties. The change from Yancton to Yankton in that message, though, indicates some undefined level of intervention, but this fine-tuning corresponds to that seen in Kappler's new treaty titles that promptly conveyed his adherence to the "Names of Indian tribes and bands" inventory recommendations. ^[35]

Further 1873/1903 resemblances are at hand. The specific spelling of the terms Arrickaras in Kappler's preamble and in Article 5, and of Assinaboin in the latter portion, are present only in the 1873 material. The plural Assinaboines is an element of both preambles. The hyphenated Gros-Ventre tribe name in these suggests that it was carried forward from 1873 to 1903 as a textual misunderstanding. Here, inspection of the 1873 reproduction shows that there was a split between two lines of text, with the Ventre part located on the following line, which perhaps resulted in an ensuing mistakenly applied hyphen thought necessary to link the two portions. In addition, there is an absent comma between the terms Gros-Ventre and Mandans in the preamble that is only evident in the 1873 rendition. The term to in the sixth Article phrase The parties to the second part of this treaty. . . is used in both the 1873 and in the Kappler texts, while the National Archive document and the 1884 Laws text examples employ the term of in their remark The parties of the second part of this treaty. . . (joint text set lines 923-932).

Later modifications appear in Kappler's 1929 work that further distances that attempt from the original. This republication — its title reduced now to just the Treaty of Fort Laramie, 1851 — contained several preamble alterations. In this rendition, the Gros Ventre hyphenation has now disappeared, and the appropriate comma between this tribe name and that of the Mandan has materialized. Article 5 exhibits a new spelling for Assinaboine with a final e (joint text set line 516), which neither the 1852, the 1873, the 1903, nor the 1904 version possesses. Article 6 clumsily combines the to and the of present in the original, the 1873, and the 1884 renditions to declare "The parties to(of) the second part of this treaty. . ." (p. 1066; emphasis added).

Kappler was empowered by the Senate to compile the texts of valid American Indian treaties with the federal government. The second volume of Indian Affairs was the result of this endeavor, coordinating the final texts of such transactions. One manner in which this terminal condition may be assessed is through the notations supplied by Kappler to about a dozen and a half instruments that identified in those situations deleted or amended articles. For example, in the very short Treaty with the Potawatomi, 1836 , Kappler amended Article 6 — virtually half of the entire text of this contract and defined to reserve land for one Henry Ossum — to read "[Stricken out by the Senate]" (Kappler, 1904b, p. 450). ^[36] The entire event appears in the Statutes at Large (7 Stat. 490), but a footnote conveys that "This article (Art. 6) was not ratified." The conclusive or final treaty parameters of this, or of any other treaties, were very much the focus of the 1902 Senate resolution to create a well-indexed compilation. Under that request, and even though available through some previous federal endeavor(s), it seems reasonable to conclude that Kappler would not have used the Fort Laramie document found in the 1884 Laws of the United States Relating to Indian Affairs precisely because that assembly offered only the original 1851 text of the transaction. The preceding 1873 Compilation, on the other hand, had already incorporated the Senate's adjusted annuity determination.

Absent all the variations in the contents of these documents, whatever their cause, there is a succinct revelation of their collective inability to deliver a final copy of the true contents of the intended treaty. In this scenario and as advocated earlier, the true contents of the intended treaty are considered to consist of the wording agreed to by all parties on 17 September 1851 that was later modified only through Senate involvement. In terms of the number of words necessary to make the 1851 document accurately reflect the true combination of these two events, two tokens in Article 7 must be replaced by the thirty that convey the annuity redefinition. This maneuver effectively excluded the original 1851 and Laramie52, but it also eliminated the later Laramie84 that had reproduced the outdated 1851 text. In comparison, only Laramie73 and each of Kappler's three subsequent instruments brought forward that requisite correction. However, each of those four properly updated versions produced in 1873, 1903, 1904, and 1929 concurrently suffered from the absence of the seven-word phrase thence from the mouth of Powder River that was part of the reservation bounds set for the Gros Ventre, Mandan, and Arikara in Article 5 of Laramie51 (joint text set lines 471-477). In combination, these errors cause every published text between 1851 and 1929 to fail in one way or another to carry the final version of the intended treaty.

Presenting the new text

Thus, the comparison of all texts — Laramie51 through Laramie29 — formed an important beginning for the creation of the new, correct composite one that adheres to the original 1851 material. This standardization against Laramie51 is not without peril. The treaty begins almost immediately with its own problems, illustrated by Superintent in the preamble. Yet Aust (2007, p. 315) dispensed a general remark pertaining to the design of treaties. He observed that "[b]ecause the treaty-making process is such that risk of material errors is reduced to the minimum, almost all the recorded cases where error has been involved to invalidate a treaty have concerned mistakes in maps." To this he added that such document errors "may be typographical, spelling, punctuation, numbering or cross-referencing, or a lack of concordance between the authentic language texts. It may be a simple drafting mistake, such as the use of inconsistent terminology. But correcting anything which is more than an obvious 'physical' error, or mistake of spelling or numbering, may affect the substance. Punctuation is an aspect of grammar which is perhaps more crucial for some languages, including English, than others which have more certain grammatical rules" (p. 315). ^[37] The six texts published by the federal government between 1852 and 1929 have many of these shortfalls, in one form or another. Indeed, the present discussion only exists because Aust's "lack of concordance" among these "authentic language texts" is abundantly evident. Individually, these documents reflect in part the technical problems that accompanied publishing in the second half of the nineteenth century, let alone their construction in the field, but a portion of those difficulties arose because care was absent in later reproductions. Collectively, this latter ambivalence triggers further questions about other published Indian treaties, as well as virtually all the texts found in the volumes of the Statutes at Large.

This presentation strategy, designed to circumvent past shortfalls originating in the copies of Fort Laramie, is not unique. Arends and Van den Berg (2004) created a new text — in Sranan, a Creole language, with English passage equivalents — for the 1762 Saramaka Peace Treaty between the Dutch and the Saramaka Maroons of Suriname (Price, 1983a and b). In that instance, the official Dutch version was accessible almost immediately after signing, but the indigenous interpretation only became available in this century. The authors acknowledged that they had supplied this new material in order "to make this text available to the community of creolists as one more addition to the ever growing corpus of early Surinamese Creole texts in the hope that it will contribute to a better understanding of the history of creole languages and societies in Suriname and beyond." Parameter declarations within that document — such as "All the Bush Negroes of the Upper Saramaka and the Upper Suriname (Rivers) will have peace with all Whites of Suriname, and the Whites will forget all the bad things they have done" — mirror analogous comments found in Fort Laramie that also express expected behaviors by all parties.

The overall format of Laramie09 simulates what the contract might have looked like if it had joined other instruments in the eleventh volume of the Statutes of Large. The final assent of the Crow to the revised annuity occurred on 18 September 1854 and the Treaty with the Ottoes and Missourias (11 Stat. 605) — signed on 9 December 1854 — was therefore used as the closest chronological Statutes example. Kappler's full title for Fort Laramie is maintained, since apparently no other official name was created: the original transaction had no document title; the 1852 Senate version selected the first three words of the preamble for a main title, i.e., Articles of a treaty; the 1873 Compilation employed Treaty of Fort Laramie; and the 1884 Laws chose Fort Laramie Treaty, September 17, 1851. Many earlier treaties — such as those listed in the Index of the first volume of the American State Papers: Indian Affairs volume (1832, pp. lxxii-lxxvi) under a heading of "Treaties made with Indian Tribes" — used the site of the document's signing as a title component. Thus, Treaty made at Fort Harmar, on 9th January, 1789, with the Six Nations leads off that American State Papers Index summary. While this identification method might have been in fashion at the beginning of the nineteenth century, it was not at the beginning of the twentieth, especially after the creation of the "Names of Indian tribes and bands" list, ^[38] and so Kappler's more tribe-oriented and chronologically clearer title for Fort Laramie, no matter how attenuated by the use of the etc., has been employed here to gain, rather than to lose, information about the event.

Conclusions

The Treaty of Fort Laramie with Sioux, etc., 1851 was a key transaction between the federal government and nine major American Indian tribes: the Sioux; the Gros Ventre, Mandan, and Arikara; the Assiniboine; the Blackfoot; the Crow; and the Cheyenne and Arapaho. Its scale — in terms of lands ceded or of populations of peoples involved ^[39] — made it one of the most significant events during the entire period of treaty making with America's indigenous peoples. Yet, Kappler confessed that "[b]y 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" (1929, p. 1065). It was then only through the outcomes of the Moore and the Roy proceedings, before the United States Court of Claims, at the start of the twentieth century that this instrument was finally deemed valid.

A more appropriate text for it — Laramie09 — is now respectfully submitted, as a closer likeness to the actual contract created by those tribes and this nation on 17 September 1851, and through alterations made within the walls of Congress. The textual inaccuracies contained in previous federal compilations, many of which were carried forward for decades, required intervention and correction, primarily because this document remains the law of the land: it defines a treaty between sovereigns. The decision to revert to the original treaty language of Fort Laramie — captured from digital images of that instrument — and to then narrowly tune that material only through incorporating the annuity revision, yields a better final content that conveys not only that later Senate mediation, but also, as echoed by their signatures in the Fall of 1851, the words for which all tribes gave their assent.

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Acknowledgements

We were aided during this investigation by a number of colleagues, and would like to express our gratitude to Sara Berndt at George Washington University; Jane Fitzgerald at the National Archives and Records Administration; and Brent Baum, Karin Dalziel, Katie Heupel, Vicki Martin, and Laura Weakly at the Center for Digital Research in the Humanities at the University of Nebraska-Lincoln.

Several of our questions were addressed by Errapel Mejias-Vicandi at the Department of Modern Languages and Literatures at the University of Nebraska-Lincoln, and by Stephan G. Custer and William K. Wyckoff of the Department of Earth Sciences at Montana State University; we are grateful for this assistance.

Appendix

Laramie51 Laramie52 Laramie73 Laramie84

Laramie03 Laramie04 Laramie29 Laramie09

Table I

Table II

* Phone: 402-472-4473
Fax: 402-472-5181
E-mail: cbernholz2@unl.edu [back]

** Phone: 402-472-4547
Fax: 402-472-5181
E-mail: bzillig1@unl.edu [back]

1. This statement may be found in the first volume of the Journal of the Executive Proceedings of the Senate of the United States of America (1828, p. 26). [back]

2. Subsequently, however, treaty making with the tribes concluded on 3 March 1871 (16 Stat. 544, 566). In his classic presentation on the Department of State, Hunt (1914, p. 396) declared that "Indian treaties, it should be remarked, of which formerly many were made, were never negotiated by the Secretary of State, but by special commissioners acting for the President under the War Department, which had control of Indian affairs until the Department of the Interior took over the business." As will be seen in the following discussion, the pertinent Treaty of Fort Laramie with Sioux, etc., 1851 dialogue was administered by "Commissioners specially appointed and authorized by the President of the United States" (Articles of a treaty, 1852, p. 1). [back]

3. The nine tribes involved in this transaction are a substantial cross-section of Indians in the northern Plains in the mid-nineteenth century. The Handbook of North American Indians is a useful resource for an overview of these groups, their names ordered here as they were in the treaty itself: Sioux (DeMallie, 2001); Cheyenne (Moore, Liberty, and Straus, 2001); Arapaho (Fowler, 2001); Crow (Voget, 2001); Assiniboine (DeMallie and Miller, 2001); Gros Ventre (Fowler and Flannery, 2001); Mandan (Wood and Irwin, 2001); Arikara (Parks, 2001); and the absent but still affected Blackfoot (Dempsey, 2001). These chapters furnished the tribe spellings used for material written as part of this article, while appellations referenced in examined documents were reproduced as published, e.g., Arickarees, Blackfeet, Gros Ventres, and Mandans. Cited documents, related to Kappler's Indian Affairs: Laws and Treaties compilation, may be accessed through the Oklahoma State University's Web site. Fort Laramie is also available at Oklahoma State. [back]

4. Lessoff (1999) presents a brief biography of Stewart. [back]

5. Bernholz and Weiner (2008c), and the described Web site therein, have more on the life of Charles J. Kappler. [back]

6. Later, three additional volumes were developed: Senate Document No. 719; Senate Document No. 53; and Senate Document No. 194 (Kappler, 1913, 1929, and 1941, respectively) with germane contemporary federal Indian law materials. All five volumes were reoffered thirty years later by the federal government (1975). Commercial publishers created similar sets (1972b), with special focus placed on the 1904 Treaties tome (1972a and 1973). [back]

7. Hill's volume observed that the term "'Office of Indian Affairs' was the name commonly used until 1947" for this section of the earlier Department of War and then, after 1849, of the Department of the Interior (1974, p. 1). [back]

8. A Congressional resolution in June 1790 assured "[t]hat all treaties made, or which shall be made and promulgated, under the authority of the United States, shall, from time to time, be published and annexed to their code of laws, by the Secretary of State" (1 Stat. 187). Each such law was "registered in the Bureau of Rolls and Library and a printed copy of it, which the Department has already received before it was finally approved, is then compared with it" for verification (Hunt, 1914, p. 279). The Guide to U. S. Government Publications (Batten, 2009, p. 699) presents 1789 to 1921 as the operational years of the Bureau of Rolls and Library; it was reorganized in May 1921 (Plischke, 1999, p. 370). [back]

9. See Bernholz (2009) for a discussion of this 11 Stat. 749 citation misuse. [back]

10. The spelling errors extend to geographical names as well. Moulton (1987b, p. 170) included a journal entry of Captain Meriwether Lewis for 20 May 1805 that spoke of this "stream we take to be that called by the Minnetares the [blank] or Muscleshell River." A footnote declared that the "Musselshell River. . . still bears the name the captains gave it, translating the Hidatsa name" (p. 175, n. 3). Swanton (1952, p. 275) confirmed the interchangeability of Minnetares (now Minitari) and Hidatsa for tribe identification. In the Annual Report of the Commissioner of Indian Affairs for 1853, three letters — dated 8, 9, and 21 September 1853 — by Isaac A. Stevens, serving as the Governor of Washington Territory and as part of the Northern Pacific Railroad Exploration and Survey, referenced this river. The first letter contained instructions to Lieutenant Mullan: "Dear Sir: With a select party, consisting of the Pegan guide, the White Crane, Mr. Rose, Mr. Bur, and two voyageurs, you will visit the Flathead camp on the Muscle Shell river" (Message from the President, 1853, p. 462; emphasis added). The other two transmissions, to the Commissioner of Indian Affairs, George W. Manypenny (see Kvasnicka, 1979) on the subject of negotiating treaties with the tribes in the Pacific Northwest, remarked first that "Lieutenant Mullan, of the army, starts to-day, with a small detached party to the Flathead camp, on the Muscle Shell river" (p. 461; emphasis added), and second that "I enclose copies of my instructions to Lieutenant Mullan, directing him to visit the Flathead camp, on the Muscle Shell river" (p. 460; emphasis added). This suggests that the original spelling was still considered correct at the time of Fort Laramie. The title today is the Musselshell River. The waterway, the county, and a town share the same name, north of Billings, Montana, a city founded three decades after Fort Laramie was signed. Roberts (1988, pp. 477-478) observed that Montana's Fort Sheridan (1870-1874) evolved from Fort Musselshell (1868-1870), a trading post in that town. He stated that "As a freighting town and trading post, the town of Musselshell also proved a failure" and that "[i]n August 1870 the Montana Hide & Fur Company closed its affairs there and abandoned its warehouse and trading post." A letter from the Secretary of War in 1931 referred to the original installation (Musselshell River, Mont., 1931, p. 10), but the 2000 Census indicated a population of just 60. A similar spelling controversy has surrounded the naming of Alabama's Muscle Shoals (Matthes, 1925; Dexter, 1961 and 1967; and Isom, 1972). The United States Board on Geographic Names even went so far as to specify Muscle Shoals as a "series of rapids in Tennessee river, south border of Lauderdale county, Ala. (Not Mussel Shoals)" (see Second report of the United States Board on Geographic Names, 1900, p. 92; emphasis added). On facing pages of their superseding sixth report, the Board certified Muscle Shoals and Musselshell as those rapids and as the river in Montana, respectively. The latter was followed, two entries later, with the directive "Mussel Shoals: see Muscle Shoals" (Sixth Report of the United States Geographic Board: 1890 to 1932, 1933, pp. 538-539). Dexter (1961) supplied other muscle/mussel geographic examples. [back]

11. This accumulation of cases, from a LexisNexis Academic inquiry, was accomplished through employing the document's "11 Stat. 749" Statutes at Large reference as the search element. [back]

12. Absent, however, from Channing's list was A Compilation of All the Treaties Between the United States and the Indian Tribes Now in Force as Laws (1873). Butler (1902), in his important publication The Treaty-making Power of the United States, listed A Compilation of All the Treaties and Laws of the United States Relating to Indian Affairs as part of his "Table of Authorities" (p. xxxii). [back]

13. Carter's footnote data are instructive. For the 1789 matter, he stated "the present text, derived from the original treaty sources in the Department of State, reveals a large number of variations from the versions hitherto printed. Although there are no important word differences, the number of punctuation discrepancies in the Statues version, which is followed by Kappler, amount to over 170. In these two versions more than 60 marks of punctuation found in the original treaty are omitted, more than 60 new points are inserted, and over 40 original punctuation marks are altered, many of which changes tend to obscure the sense" (p. 174). The remark for the later treaty declared that "A comparison of the original treaty with the printed texts reveals numerous discrepancies; errors most frequently found relate to punctuation marks — an actual count in the case of the Statutes version, which is followed by Kappler, revealing more than one hundred changes" (p. 525). [back]

14. Father Prucha also supplied an appendix entitled "Treaty documents and their promulgation" that illuminated the legislative process for these materials, including a special section on the 1851 Fort Laramie instrument (Prucha, 1994, pp. 429-445). [back]

15. The 150-page disparity evident here for these instruments in the first and the second edition of Treaties is one immediate indication of the extra length generated by the addition of the signatory lists to the latter edition of Treaties. [back]

16. A similar outcome in the later Roy v. United States and the Ogallala Tribe of Sioux Indians proceedings (1910) added weight to the discussion surrounding this confirmation; Kappler's entry in volume 4 incorporated this subsequent Court of Claims decision (1929, pp. 1050-1081). [back]

17. This latter document is the Treaty with the Yankton Sioux, 1858 (Kappler, 1904b, pp. 776-781) in which the annuity rights from the earlier Fort Laramie accord were discussed in Articles 1 and 14. These two Articles read, respectively: "They, also, hereby relinquish and abandon all claims and complaints about or growing out of any and all treaties heretofore made by them or other Indians, except their annuity rights under the treaty of Laramie, of September 17, A. D. 1851" (p. 776), and "The said Yanctons do hereby fully acquit and release the United States from all demands against them on the part of said tribe, or any individual thereof, except the beforementioned right of the Yanctons to receive an annuity under said treaty of Laramie, and except, also, such as are herein stipulated and provided for" (p. 780). The 1851 outcome was also cited in Article 3 of the Treaty with the Blackfeet, 1855 (pp. 736-740): "The Blackfoot Nation consent and agree that all that portion of the country recognized and defined by the treaty of Laramie as Blackfoot territory, lying within lines drawn from the Hell Gate or Medicine Rock Passes in the main range of the Rocky Mountains, in an easterly direction to the nearest source of the Muscle Shell River, thence to. . ." (p. 736). [back]

18. Kappler's adherence to an unratified status for these negotiations is echoed in the Index for volume 2, but only in the entry for the Sioux: "September 17, 1851, at Fort Laramie (unratified)" (1904b, p. 1093). [back]

19. Vaughan was part of the Upper Missouri Agency, appointed Agent on 18 April 1853 (Hill, 1974, pp. 184-187). The use of the term "Arrickeras" in Fort Laramie in each of his 1903, 1904, and 1904 presentations suggests that Kappler adhered to the name found only in the original document, or in the Senate reproduction under consideration during ratification. [back]

20. Layne appeared in four Serial Set entries in 1910, identified as the "Acting Chief" of the Land Division of the Department of the Interior, the unit designed to handle "all matters pertaining to enrollment, allotment, and sale of lands and property of the Five Civilized Tribes, having charge of all records thereof" (Reports of the Department of the Interior, 1919, p. 424). [back]

21. This memo appeared in a House Report as well, dated a month after the Senate document (Conferring upon the Court of Claims jurisdiction in cases of claims of the Crow tribe of Indians, 1926, pp. 2-4). [back]

22. Crow Nation or Tribe of Indians of Montana v. United States specifically challenged the taking of lands from the so-called River Crow, who lost these lands that had been acknowledged in Fort Laramie as the result of the subsequent Treaty with the Crows, 1868 (Kappler, 1904b, pp. 1008-1011). After Kappler's death in 1946, the Crow appeared before the Indian Claims Commission (Crow Tribe of Indians v. United States, 1954), which found for the tribe. A subsequent appeal by the tribe disputing the compensation due summarized the case by stating that "the Crow Tribe of Indians was entitled to recover additional compensation for 30,530,764.8 acres of land, situated in what is now south central Montana and north central Wyoming, which the Tribe ceded to the United States by the Treaty of May 7, 1868, 15 Stat. 649. In its petition to the Commission, the Tribe alleged that prior to the date of that treaty it owned 38,531,174 acres, and that by the Treaty of 1868 it ceded all of its lands, except for a reservation containing 8,000,409.2 acres, to the United States for an inadequate and unconscionable consideration" (Crow Tribe of Indians v. United States, 1960, p. 283). This appeal, before the Court of Claims, concluded that "[t]he Crow Tribe was entitled to receive $12,212,305 for its lands. It received $1,111,768.07, so it is entitled to the difference, in the amount of $11,100,536.93. The parties stipulated that the Government was entitled to counterclaims and offsets totaling $857,552.23, so the amount of judgment should be $10,242,984.70" (pp. 301-302). See West (1993, p. 42) for a description of the original 38.5 million acre Crow reservation, and the map in Smith (1986, p. 27) of the endless cession of these lands in 1868, 1882, 1891, and 1904. The final transfer, for a total consideration of $1,150,000 and dispensed as stipulated in An act to ratify and amend an agreement with the Indians of the Crow Reservation in Montana, and making appropriations to carry the same into effect (1904), ended a half-century of fruitless Crow efforts to make lasting peace with the federal government. [back]

23. The fourth volume's text for Fort Laramie was quoted in United States v. Northern Pacific Railway Co. (1940), Yankton Sioux v. the United States (1942), and Crow Tribe of Indians v. United States (1960). [back]

24. There is further confusion induced here. The Statutes' "List of the treaties published in this volume" (facing 9 Stat. 815) has "With the Pottowatamies" instead of ". . .with the Pottowautomie" on the treaty's initial page (9 Stat. 853). Hodge (1907b, pp. 291-293) furnished more than one hundred spellings for this tribe; Nichols (1954, p. 188) lists nine alternatives used by Henry Rowe Schoolcraft in his publication on the tribes (1852-1857). [back]

25. This allegiance to the accepted text of the Statutes is a demonstration of Kappler's conservative approach, given his history as a federal employee prior to collating Indian Affairs; his relatively new law degree (he graduated from the Law School at Georgetown University with his LL.B degree in 1896 and LL.M the following year; see http://kappler.unl.edu); and the fact that Indian Affairs was created at the specific request of Congress. In the same Preface, he openly stated that "The general form of the Statutes at Large has been followed, as being familiar to publicists and lawyers and best suited to meet practical requirements." Taken together, these points suggest, quite reasonably, that if Fort Laramie had been published in the Statutes, then Kappler would have in all likelihood replicated that primary text, and that in doing so, the original spellings at the time of the transaction would have been used in his 1903 and 1904 Treaties texts for this document, even if those appellations were different from the parallel tribal name offered in his Revised Spelling of Indian Names list that mirrored the Office of Indian Affairs' "Names of Indian tribes and bands" one. Therefore, the original tribal spellings, among those found in the rest of the original 1851 text segments, are maintained here, just as Kappler had deployed the array of Potawatomi — and other — variants published in the Statutes. [back]

26. Indeed, while not catastrophic to either the letter or the spirit of the law, this variability might be considered in part as an index to the background error rate inherent to reproducing such materials in the last half of the nineteenth century. [back]

27. Cullen later participated in this role at the Treaty with the Winnebago, 1859 (Kappler, 1904b, pp. 790-792) and as a Commissioner for the Treaty with Shoshones, Bannacks, and Sheepeaters, September 24, 1888 (Kappler, 1941, pp. 707-708); the latter dealing was left unratified. He was also involved with Fort Laramie entities in other unresolved discussions: the Agreement with the River Crow Tribe of Indians, 1868 (Kappler, 1913, pp. 714-716) and the Treaty with the Blackfoot, etc., 1868 (Kappler, 1929, pp. 1138-1142). [back]

28. The transaction under consideration was the Treaty with the Tribes of Middle Oregon, 1855 (Kappler, 1904b, pp. 714-719). See Bernholz and Weiner (2008b) for more on this instrument. [back]

29. Bernholz and Weiner (2008a) have identified Indian treaties that were cited before the Courts of Claims. [back]

30. See examples of this use, reaching back to 1540, in The Oxford English Dictionary (1989, vol. 19, p. 718). [back]

31. These seven documents — and their Statutes at Large titles — are the Treaty with the Choctaws and Chickasaws (11 Stat. 573); the Treaty with the Choctaws and Chickasaws (11 Stat. 611); the Treaty with the Chippewas (11 Stat. 633); the Treaty with Creeks and Seminoles (11 Stat. 699); the Treaty with the Pawnees (11 Stat. 729); the Treaty with the Seneca Indians (11 Stat. 735); and the Treaty with Yancton Tribe of Sioux (11 Stat. 743). [back]

32. Some of the tribes had very old names — in part because some groups were seen and named for the very first time at the turn of the nineteenth century by Lewis and Clark and such designations endured; see the names in the "Tribes of Indians" table in the American State Papers (1832, p. lxxvii) for additional examples of old — and now, in some cases, dispersed — groups. Those tribes "discovered" by the Corps of Discovery were thought to include the Flathead ("Along the way they met the Flathead Indians, another tribe who had never seen white men" [Moulton, 1988, p. 3], and "The first non-Indians to make their way into Flathead and Pend d'Oreille territory, and to record their journey, were members of the Meriwether Lewis and William Clark expedition in 1805" [Malouf, 1998, p. 305]), and the Nez Perce (Walker, 1998). The Flathead and the Nez Perce have tribal legends about these initial contacts with expedition members (Clark, 1966, pp. 129-131 and 57-60, respectively). Relevant to Fort Laramie, the terms Dar-co-tar and Darcotar initially appeared in the report by Lewis and Clark, Estimate of the eastern Indians (Moulton, 1987a, pp. 386-450), and thereafter in President Thomas Jefferson's communication to Congress in February 1806 of the same materials under the title A statistical view of the Indian nations inhabiting the territory of Louisiana and the countries adjacent to its northern and western boundaries (1832). See Bright (2004) for other Indian tribe and place names, and Criswell (1940, pp. xlvi-lx) for observations on Indians identified by Lewis and Clark. [back]

33. Mary Eastman, in her "Preliminary remarks on the customs of the Dahcotahs," confirmed "Dahcotah is the proper name of this once powerful tribe of Indians. The term Sioux is not recognized, except among those who live near the whites," and that "Dahcotah means a confederacy" (1849, p. xviii). [back]

34. The exclusion from Laramie73, Laramie03, Laramie04, and Laramie29 of the Gros Ventre, Mandan, and Arikara subsection of Article 5 found in the 1851 transaction is misleading. The original treaty reads: ". . .thence up the Yellow Stone river to the mouth of Powder River; thence from the mouth of Powder River in a South-easterly direction to the head waters of the Little Missouri river. . .," where the seven italicized words disappear from those four later accounts. Kappler, for example, presents in his second edition of Indian Affairs: ". . .thence up the Yellowstone River to the mouth of Powder River in a southeasterly direction, to the head-waters of the Little Missouri River. . ." (1904b, p. 594). A difficulty arises because a water passage between the mouth of the Powder River and the headwaters of the Little Missouri River is not possible (Stephan Custer and William Wyckoff, personal communications, 14 October 2009). Further, the fact that the path "up the Yellowstone River to the mouth of Powder River" progresses in a southwesterly direction that then requires a 90° turn to the southeast to reorient to the direction of the Little Missouri. The Laramie51 thus provided useful data when it indicated that the latter path should appropriately start "from the mouth of the Powder River;" thereby noting that the Yellowstone segment had ended. [back]

35. Hill (1974, p. 213), in his presentation on the Office of Indian Affairs, acknowledged that "The Yankton Agency (often spelled "Yancton") was established in 1859 for the Yankton Sioux," so both spellings had appeared in official correspondence prior to 1873. Kappler used the preferred 1900 "Names of Indian tribes and bands" Yankton representation. [back]

36. Henry Ossum was a participant in the Treaty with the Pottawatomi, 1832 (Kappler, 1904b, pp. 367-370). He received $900 out of the $62,412 set aside for claims against the tribe in Article 4 of that instrument. He appeared on the claims list in the Statutes at Large (7 Stat. 394, 396). [back]

37. Article identification and numbering varied in the versions of Fort Laramie. Aust remarked that, in the drafting of such instruments, "[i]n the past it was customary to use Roman numerals for articles. . ." but that "[t]hey should be avoided like the plague, especially if the treaty has many articles" (p. 429). The eight brief subsections in this contract avoided the difficulties that Aust postulated in documents with many more text components. [back]

38. Many of the accepted tribe spellings at the time of Fort Laramie had been published more than half a century earlier in the same American State Papers volume (1832, p. lxxvii), within a table devoted to "Tribes of Indians" that had the directive "[f]or treaties or proceedings with, or accounts of any particular tribe, see that tribe, under its appropriate letter." The entry here for the "Flat Heads" would thus redirect readers to American State Papers: Indian Affairs document number 113 — "Lewis and Clarke's Expedition" — for the "Flat Heads, in 1805 — Statistical account by Lewis and Clarke of the," (p. 720). Clark's misspelled name was also used in the 19 February 1806 communication to Congress by President Jefferson (p. 705), and again in a subsequent extract from a letter on 7 April 1805 by Meriwether Lewis to the President, in which Lewis declared: "My inestimable friend and companion, Captain Clarke, has also enjoyed good health generally" (p. 707). An examination for the same date in the Journals of the Lewis & Clark Expedition (Moulton, 1987b, p. 9) has Lewis writing a number of statements that involved Clark, including the statement that "At same moment that the Barge departed from Fort Mandan, Capt. Clark embaked with our party and proceeded up the river." Albert Gallatin's significant A Synopsis of the Indian Tribes (1836) spoke of the observations of "Lewis and Clarke." [back]

39. "The treaty identified approximately 38.5 million acres as Crow territory" alone (Montana v. United States, 1981, p. 548), and Hafen and Young (1938, p. 183) specified that "the Indian bands totaled more than 10,000" at the gathering. At the time, the North American and United States Gazette claimed that the event entailed "about twelve thousand" Indians (Great Indian Council on the Plains, 1851, p. 1). [back]

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