History of Dakota Territory, volume I, Part 158

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920
Publication date: 1915
Publisher: Chicago, Ill. : S.J. Clarke Publishing Company
Number of Pages: 1198

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HISTORY OF DAKOTA TERRITORY

wealth. We are opposed to any roads to the Black Hills except the one made by General Custer from Bismarck, which is the thief's road. We want all the half-breeds and white men married to squaws treated as Indians. We will only sell such portions of the Black Hills country as contains gold, and we will not sell the Big Horn and Powder River countries.

An Arapahoe chief followed Red Cloud, repeating his demand so closely as to show that the speeches had been rehearsed before delivery. The Arapahoe chief placed particular emphasis in his voice when he said: "All the Indians have consulted together and want Catholic missionaries and instructors."

The council finally took a recess until the following day. Thursday. General Terry personally placed the cavalry in position and sent out videttes and skirmish- ers to prevent a surprise and quiet unruly Indians; when more as a matter of policy, it would seem, than with any expectation that their proposition would be seriously considered, the commission met with the Indians, thousands of whom had by this date departed, and submitted a written proposal embodying their plan of leasing and purchasing; and with this the council dissolved without much ceremony, and the commissioners departed for their homes the following day. The following, though not a literal copy of this proposal, embraces clearly the substance of the document :

These propositions made this 29th day of September, 1875, by the commissioners of the United States of America to the Sioux Nation of Indians, on the White River near Crow Butte. Nebraska.

Whereas, The commissioners on the part of the United States, and the Sioux Nation having been in a grand council for several days, with reference to the acquisition of certain rights in the Black Hills and the purchase of what is known as the Big Horn Mountain country, the commissioners of the United States, in pursuance of a promise made in grand council on the 27th of September, submit to the Sioux Nation the following propositions in writing: To purchase the license to mine and also as an incidental thereto the right to raise stock and to cultivate the soil in the Black Hills, bounded and described as follows, to-wit : Beginning at the junction of the north and south forks of the Cheyenne River, and embracing all the territory betwen said rivers lying west of said junction to the month meridian of longitude west of Greenwich, the United States agreeing to pay therefor the sum of $400,000 per annum, the United States reserving the right to terminate said leense at any time by giving two years notice by proclamation and payment of the full am unt stipulated for the time the license may continue, and that at the expiration of sail time all private property remaining upon said territory shall revert to the Sioux Nation, and that sttch an amount of the $400,000 as Congress shall determine, not less than $toodoo annualh shall be expended for objects beneficial for their civilization, and the remainder of said af nuit sum shall, in like manner, be expended for their subsistence, or, if the Sioux Natia preter it, to purchase the Black Hills as above described from the Sioux Nation and to pay them for their interest therein the sum of $6,000,000 in equal annual installments, the sid sma to be annually appropriated for their subsistence and civilization, not less than Stor con of which shall be annually appropriated and expended for purposes of civilization That the President of the United States shall, under proper restrictions ant reulations dest te thereto routes to the Black Hills country as follows, to-wit: One from the s mtb t tween the 102d and the 103d meridians of longitude; one from the cast not farther i rtl th i latitude forty-three and a half degrees until it reaches the to3d meridian . and one from the west not north of latitude forty-four ; also a branch road from some point on the Virer River to intersect either the eastern or southern route at si me convenient grant not wist of the 103d meridian west of Greenwich.

The commissioners furthermore propose to purchase all that portion of whit ki wn as the Big Horn country in Wyoming, which lies west of a line drawn as i H w 1 w 1 Beginning at the northwest corner of the State of Nebraska, and running in a northwest rh direction until it reaches the Yellowstone River, where the tozth merich in wesel Grain crosses said river ; and to pay them for their interest there'n the sum of $5 0000 . 1 11 1 ten years, to be paid in good American cows and live stock, as may 1 dedinel all by the President.

Any agreement which may be made shall be of no binding force upon either jane it shall have been submitted to and agreed to by Congress and approved is the of the United States, and any agreement for the purchise f the Black Hill c 0 1 be of no effect until it shall have been so submitted to and approved and mail . signed in accordance with the twelfth article of the treaty af 1808.

The commissioners propose that, in case of the acceptance Is the S Ved above propositions, and after the proposed agreement shall have been c /1. set forth, the sum of $50,000 shall be expended in presents to [ present in such cases among the Indian people.

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It was afterwards contended that the Indian demand for $70,000,000 for the hills had been made by them under a mistaken apprehension of the amount, or of the meaning of the word "million." That in their vernacular they had no word corresponding that would express that amount, and that they had used the term "million" when they intended to say "a hundred thousand." It was understood that the Indians had been instructed, by interested parties connected by marriage with the tribe, in their demands, which uniformly urged the recog- nition of certain whites for certain privileges.

Describing the perilous situation at Red Cloud Agency in 1875, when the Allison treaty commission met the Indians representing the entire Sioux nation :

The commissioners had a military guard under the immediate personal com- mand of General Terry. In front of the commissioners there was an open space of fifty feet, where the leading chiefs were seated. Behind the chiefs was a force of United States troops, 500 strong, and still behind these a mounted force of friendly Indians, who rode back and forth in front of the great body of restless, and many of them defiant. redmen, numbering all the way from 5,000 to 10,000, who had come in from the Missouri River agencies and from the northern tribes who were then in war against the Government along the proposed line of the Northern Pacific Railroad west of the Missouri River. These latter were supposed to be watching an opportunity to precipitate disorder and a quarrel, during which turmoil they would execute their plan of massacring the com- , missioners. The friendly Indians, however, were as resolutely determined to prevent this as were the white troops, and one of the Red Cloud chiefs, noted for his loyalty and daring, caused it to be given out that the first Indian who attempted to fight would be a mark for his rifle. As before related, it was to this assemblage that the commissioners submitted their proposition to treat for the Black Hills-a proposition of such character that did not appear to have the support of a single representative of the Sioux nation. No further propo- sition was attempted to be made, but the negotiations closed informally with a promise by the chiefs that they would take the proposal under consideration and give an answer in two or three days, evidently not intending to make a reply, but to hold the matter ostensibly open until the commissioners should have time to withdraw to a place of safety, which they did during the succeeding twenty- four hours.

This terminated all efforts at treaty-making for the Black Hills for the time being and until a year later. Immigration, which had been awaiting the result of this treaty council, set in for the hills in greatly increased numbers ; but a new danger now confronted the gold seekers-and one fraught with deadly peril. The young Indian warriors abandoned their policy of non-interference with the whites, and for a year following numerous small parties of emigrants were waylaid and massacred, and their property seized. It was estimated that hun- dreds of whites lost their lives during this period of guerilla warfare.

The current of public opinion held that the commissioners failed because they did not know how to manage the matter ; that had they been prepared at the outset with a reasonable agreement to have presented the Indians instead of a tenta- tive proposition, something worth while might have been accomplished. The profitless result of the commissioners' labors left the perplexing problem in a situation not at all improved, and further efforts would be necessary to secure the peaceable relinquishment of the gold fields. A preposterous error was the assem- bling of such an army of fairly well-armed Indians, many of whom were from the unfriendly camps of the North. It was considered remarkable and most fortunate that the event had not ended in a tragedy.

It is doubtful whether the Government would have assented to the proposed treaty tendered by the Allison commission ; and in the light of subsequent events it would have been a lamentable failure in accomplishing the purposes sought by the Government had the proposition resulted in a treaty. It would also have worked great injury to the Indians, involving as it did the payment of large sums

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of money, which they would soon have squandered, and been left in a destitute condition. There was a power, apparently, behind the planning of that event that designed to have an agreement that would be of great and lasting benefit to the Indian race, and that power had its way.

The Government had been endeavoring, with its army, to keep intruders off the Big Sioux Indian reservation, guaranteed to the Indians under the Laramie treaty of 1868. Numerous parties of adventurers, numbering from a half-dozen or even less, to 100, in defiance of the prohibitive edicts of the Government, issued by its military and civil authorities, were seeking to invade the gold region during 1875. In the aggregate these parties numbered thousands, and went in from the Missouri River points, from the Umou Pacific Railroad towns, and from Montana. For the purpose of intercepting the interlopers, the military authorities established military camps or patrol stations on all the practicable routes crossing the reserve and patrolled the country, a portion of Custer's famous Seventh Cavalry being engaged in this duty. Many parties were intercepted, arrested and turned back. In some few instances resistance was encountered, when the outfit was practically confiscated. and partially destroyed, and the persons com- posing the party taken prisoners and escorted to the nearest military posts, where they were paroled after signing an agreement that they would not again attempt to invade the forbidden country until they could do so lawfully.

A case occurred in May. 75, when a company of troops from Fort Randall captured a large train of emigrants that had started from Sioux City, known as the Gordon-Andrews party, and brought a large portion of the party back to Fort Randall. The capture was made by Lieutenant Armstrong. General Sher- man had instructed the commander at Randall to require the captured men to sign a parole, as a condition of discharge, agreeing not to make any further attempt to invade the reservation until a treaty was consummated. The party had left Sioux City on the 5th of April, crossing the Missouri River into Nebraska at that point, and following up what was designed to be the Niobrara route, evidently intending to keep south of the Indian reservation. They had considerable difficulty in making headway, owing to the natural obstructions in the route they had selected, and found it necessary to encroach on the reserva- tion grounds in their progress. It was a numerous party, composed principally of young men from eastern and southern points. A list of their names is given, it being by the arrest of this company that the legality of the procedure of capturing the emigrants found its way into the courts of Dakota and Nebraska, resulting unfavorably for the Government :

Edwin F. Hobart, W. 11. Pienenor, Albion, Mich. ; F. Byres, Pittsburgh ; Charles Bodey, James Munroe, Sam Bushnell, Minneapolis; Mile Hahi, Lock - port, Il .: George W. Hemington, Valparaiso, Ind. ; Lewis Fuss, Red Wing, Minn. ; Allen A. Spangler, Rockport, Ill. ; Loyal Richardson, Ottawa, Il. ; George .A. Webster, Dover. N. 11. ; James Forman, Belle Plaines, Iowa ; Wills F. Taylor, Mercelius, Ind. ; C. W. Pritchard, Richland, Wis. : W. C. Barnes, Orange, Mass. ; E. G. Mayfiel, Richland, Wis. ; James 11. Oak, Booneville, Mo ; I. T. Ohustacad, Independence, lowa ; Isaac Boat, Battle Creek, Mich. ; John A. B Jack, Nemaha City, Neb. : W. H. MeNiel. F. M. Roberts, Burlington, Jowa ; | A. Curtis, St. Louis : 1 .. A. Doble, Engene L. Smith, Sac City, lowa : Thomas J. Jordon, Flton, lowa: 11. R. Copperstone, Youngstown, l'a .; V. P. Achty, W. V.a .; John B. Delaney, Delavan, Wis. : John Marshall, Wheeling. W. Va. ; Thomas \ Burke, Chester, Delavan County, Pa .; C. A. Skinner, Wayne County, Ind; Joseph Monroe, East Minneapolis; Henry Olurstead, David Williams, Independent. lowa : Joseph Fuller, Wabasha, Minn .; M Mitchell, Sions Point, D) I; Theter Nutt. AAllen Patterson, Westmoreland, Pa. : O. F. Aldrich, Sac City, low William F. Dempley. Boston, Mass. : D) R Amily, thawatha, hans . Andrews. L. M. Lampson, Thomas Phillips, Ben J. Smith, Hast B. m. Wilson, Sioux City. łowa; Charles E. Solis, St. Clair, Mich . Daniel Bern. Cincinnati, Ohio; Peter A. Hurst, Richmond, Ind ; Lee Goddard, Fulos. () :

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H. Gage, Elgin, Ill .; Black Blackman, Otis Blackman, Joe Skaffington, Evans- ville, Ill. ; D. L. Wharton, Oakville, Iowa ; H. B. McNiel, Burlington, Iowa; R. A. Barnes, Sioux Falls, S. D .; C. G. Wilson, George Smilley, Sioux City; John Aester, L. C. Kerney, Boston, Mass .; V. P. Shown, Idaho; Henry Needt, Chester, Pa .; A. L. Cox, San Francisco, Cal.

Of the scores of parties who were intercepted and turned back or placed under arrest, there were but two cases that were turned over to the civil authori- ties charged with a violation of the treaty stipulations. First of these was John Gordon, of Sioux City, leader of the Gordon-Wharton-Andrews party, number- ing about a hundred people; a nearly complete list of their names appears in the preceding paragraph. The party was intercepted on the reservation. Gordon proved defiant, escaped, made his way to the hills, was later recaptured and turned over to the United States civil authorities of Nebraska. He was imprisoned, released on bond, and the case came to trial before Judge Dundy, presiding judge of the United States District Court for the District of Nebraska, who, after a hearing, ordered the discharge of Gordon, as the treaty of 1868, under which the Government was endeavoring to exclude emigrants to the hills, was of no legal force or effect, it never having been ratified by Congress, but by the Senate only, which was only one house of Congress.

Charles E. Solis, also a member of the Gordon party, who, with over fifty others, was taken to Fort Randall, where they were offered their liberty on con- dition that they would sign a parole agreeing not to again trespass upon the Sioux reservation. Solis refused to sign the parole on the ground that the mili- tary had no authority to require it. He was taken to Yankton and turned over to the civil authorities, and was placed in the custody of the United States marshal, who locked him up. The case was referred to Washington, but before an answer was received Solis employed counsel, Hon. S. L. Spink, who had his client pro- duced in court and demanded to know the cause of his detention as a prisoner. The court was not prepared to answer. It was a very important matter, and the first case involving the legal status of these trespassers that had reached the judicial tribunals of the Government. There were no precedents for an offense of this character. A thousand Black Hills bound emigrants had passed up the Missouri valley during the season and many more were on the way. The Solis case therefore became of absorbing interest and military witnesses were in attend- ance from Fort Randall. Solis was a determined man, and possibly a lawyer himself, for he seemed to feel that he had the best end of the controversy. He engaged eminent counsel-Hon. S. L. Spink, Hon. Bartlett Tripp, and Oliver Shannon, Esq. The Government's side was looked after by a very capable United States district attorney, Hon. William Pound. The preliminary exam- ination took place before United States Commissioner Congleton, where the fact was established that Solis had been captured on the reservation, where he had gone in defiance of the edicts of the military authorities ; and no effort appears to have been made to prove whether this was an offense against the laws of the United States; still, the good, loyal commissioner, deeming it a case of too much importance to be adjudicated in his court, decided to hold the prisoner to the United States District Court, and fixed his bond at $200. Yankton was the seat of the United States court for the Second District. Solis was again locked up, and on the 27th of May his attorneys secured a writ of habeas corpus and the pris- oner was brought before Chief Justice Shannon, where a judicial inquiry was had to determine by what authority he was held in durance. Judge Bennett, of Ver- million, sat with Judge Shannon during the learned arguments, which occupied an entire day, and when concluded the judge took the case under advisement. Judge Dundy's decision had not at this time been announced.

The contention of the United States had been based on two sections of the Revised Statutes, to-wit: Sections 2134 and 5440, as follows :

Section 2134. Every "foreigner" who shall go into the Indian country without a pass- port from the Department of the Interior, superintendent, agent or subagent of Indian affairs,

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or officer commanding the nearest military post on the frontiers, or who shall remain inten- tionally thereon after the expiration of such passport, shall be liable to a penalty of $1,000.

Section 5440. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of such conspiracy, all parties to such conspiracy shall be liable to a penalty of not less than $1,000, and not more than $10,000, and to imprisonment not more than two years.

The United States attorney, it seems, had found nothing in the Indian treaties that provided any remedy for a case of this kind and, apprehending that there would be a great many arrests made by the military authorities for an offense similar to that alleged against Solis, had given much research to the law books, anxious to fortify himself for the flood of business which seemed inevitable from the frequent arrests made by the troops, and the continued march of gold-seeking parties up the Missouri valley through Dakota, whose objective point was the Black Hills. It was necessary, therefore, that he should know that he had a solid foundation for prosecuting the interlopers. Accordingly, he took the pre- caution to telegraph the attorney-general of the United States at Washington for his opinion, quoting to that official the sections of the statutes under which he had proceeded against Solis, and received in reply the following :

Washington, D. C., May 28, 1875. To William Pound, United States Attorney, Yankton, D. C. T.

Section 2134 does not apply to citizens of the United States. Section 5440 does not apply, as no statutes make a breach of the provisions of the Sioux treaty an offense against the United States.

EDWARDS PIERREPONT, Attorney General.

On receipt of this official information the judge dismissed the action on the ground that his court had no jurisdiction. Solis was set at liberty, and stated that he would bring an action against the military people for false imprisonment ; but as nothing further connected with the incident came before the court, it is probable Solis concluded to drop the matter.

Mr. Pound, attorney for the Government, had taken the position, in hi- argument to the court, that the term "foreigner," in Section 2134, applied to all white citizens and aliens, when caught trespassing upon the Indian reservation.

These court proceedings did not appear to have any influence whatever upon the volume of immigration to the hills; but it may be properly presumed that they had an important influence upon the execution of the prohibitory orders regarding the invasion of the Sioux country by the whites, for it was observable as the season advanced that the vigilance of the military was notably relaxed, and in place of intercepting immigration the attention of the military was given to conditions in the hills, where, it was estimated, about five thousand white, were living scattered at various points in the hills, and engaged in prospecting, and in a few instances engaged in the systematic working of placer mines that were yielding profitable returns.

The exclusion policy had been impotent to keep the invaders out, but the Government's efforts to enforce it during latter part of the season did not extend beyond an occasional mild remonstrance, which called forth no censure from the main body of citizenship. Some elements, unacquainted with the situation, were inclined to take an uncharitable view of the leniency of the authorities, but the vast majority commended the course as wise, humane and best for all con- cerned. The Government seemed determined to avoid any serious conflict with its citizens, and especially so in view of the almost absolute certainty of an amicable treaty being made with the Sioux for the transfer of the gobl fields within a reasonable time. The occasion was one that demanded the exercise of a wise prudence to avoid serious difficulties.

CHAPTER LXXI MINERS AT WORK IN NORTHERN HILLS. DEADWOOD FOUNDED

1875-76

GOVERNMENT OFFICIALS CONCLUDE TO RELAX TIIE RIGID RULES OF EXCLUSION- REPORT OF COMMISSIONER OF INDIAN AFFAIRS-PRESIDENT GRANT'S MESSAGE -THIE BLACK HILLS FEVER AMONG DAKOTANS-LETTERS FROM DEADWOOD : PEAR- SON, GAY AND OTHERS-INTERVIEWS WITH CAPTAIN KELLEY, JOHN BRENNAN AND OTHERS- THE DISCOVERER OF DEADWOOD GULCH-GOVERNOR PENNINGTON DECLINES TO ORGANIZE COUNTIES.

Early in November, 1875, a council was held in Washington, which was attended by President Grant, General Sherman, Secretary of War Belknap, Sec- retary of the Interior Chandler, General Crook and General Cowan, at which the question of excluding immigration to the Black Hills was discussed, and the result of the conference was given out that the Government thereafter would observe a neutral attitude toward the miners who were crowding the thorough- fare leading to the hills. A party numbering about four hundred had recently left Cheyenne on the Union Pacific Railroad for the El Dorado, and it was stated that the members would not be interfered with by the Government, the conclu- sion having been reached that the ordinary peaceful methods it had pursued of intercepting these parties and escorting them beyond the reservation, did not lessen the number who were willing to risk arrest, and to adopt a more rigorous policy toward the invaders, under the circumstances existing, was not to be con- sidered. Congress would convene the month following. It was determined to let matters drift until Congress met, when that body was expected to inaugurate a practical plan for meeting the emergency that would have the sanction of law. The authority under which the military arm of the Government had thus far acted were the treaties with the Indians, and as these had failed to be upheld by the courts, and the Indians were making no attempts to stop the immigra- tion, evidently viewing it with favor as a valuable aid to their proposed sale of the domain to the Government, the gold fields were practically opened to the whites in the late fall of 1875, and thousands of adventurous men had already occupied them.

REPORT OF COMMISSIONER OF INDIAN AFFAIRS

The report of the commissioner of Indian affairs (Hon. E. P. Smith) to- the secretary of the interior treats at length the situation confronting the Govern- ment by the persistent disregard of the Government's efforts to prevent the emigration of white people to the gold fields, in utter defiance of the treaty of 1868, and the claimed vigilance of the military. The commissioner says :

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History of Dakota Territory, volume I, Part 158

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920 Publication date: 1915 Publisher: Chicago, Ill. : S.J. Clarke Publishing Company Number of Pages: 1198

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920
Publication date: 1915
Publisher: Chicago, Ill. : S.J. Clarke Publishing Company
Number of Pages: 1198