INDIAN AFFAIRS: LAWS AND TREATIES

Vol. II, Treaties    

Compiled and edited by Charles J. Kappler. Washington : Government Printing Office, 1904.

TREATY WITH THE DELAWARES, 1861.
July 2, 1861. | 12 Stats. 1177. | Ratified, Aug. 6, 1861. | Proclaimed, Oct. 4, 1861.

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Whereas a treaty or agreement was made and concluded at Leavenworth City, Kansas, on the second day of July, one thousand eight hundred and sixty-one, between the United States of America and the Delaware tribe of Indians, relative to certain lands of that tribe conveyed to the Leavenworth, Pawnee, and Western Railroad Company, and to bonds executed to the United States by the said company for the payment of the said Indians, which treaty or agreement, with the preliminary and incidental papers necessary to the full understanding of the same, is in the following words, to wit:
Whereas, by the treaty of May 30, 1860, between the United States and the Delaware tribe of Indians, it is provided that the surplus lands of said Delawares, not included in their “home reserve,” should be surveyed and appraised under direction of the Secretary of the Interior; and that in order to aid in the construction of a railroad near and through their said “home reserve,” the Leavenworth, Pawnee, and Western Railroad Company of Kansas, duly organized and incorporated under the laws of said Territory, should have the right to purchase such surplus lands at such appraised value—on condition, however, that after paying for said lands, said company should only receive title to one-half of them on completing and equipping, within a reasonable time, twenty-five (25) miles of said railroad from Leavenworth City westward; and should only receive title to the remaining half of said lands on completing and equipping said road, within a reasonable time, to the western boundary of the “Delaware Reserve;” and that in case said company should fail to pay for said lands, or having paid, should forfeit the same, or any part thereof, before receiving title, by failing to construct either the first or the second section of said road within such reasonable time, then the lands so forfeited, or not paid for, should be sold in quantities not exceeding one hundred and sixty (160)acres, at not less than such appraised value; the proceeds of such sale, subject to a certain contingent deduction, to be invested by the President of the United States in “safe and profitable stocks,” for the benefit of said Delaware Indians: and
Whereas said surplus lands, to the amount of 223,966.78 acres, have been duly surveyed and appraised at an aggregate valuation of two hundred and eighty-six thousand seven hundred and forty-two and 15/100 ($286,742.15) dollars: and
Whereas the said Leavenworth, Pawnee, and Western Railroad Company has executed, under their corporate seal, and by the hand of Thomas Ewing, jr., their agent, their twenty-nine (29) several bonds.

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all of even date herewith, and numbered from one to twenty-nine, inclusive, for sums amounting in the aggregate to $286,742.15, being the amount of the valuation of said surplus lands as above stated, twenty eight (28) of which said bonds are for the sum of ten thousand ($10,000) dollars each, and one is for the sum of six thousand and seven hundred and forty-two and 15/100 ($6,742.15) dollars, and payable in ten (10) years after their date, at the office of the assistant treasurer of the United States, in the city of New York, to the Commissioner of Indian Affairs of the United States or bearer, with interest at the rate of six per cent, per annum, payable annually at the same place on interest-warrants attached to said bonds, which said bonds have been delivered by said company to Archibald Williams, judge of the United States court for the district of Kansas, and have been by him received and receipted for as agent of the United States for that purpose specially appointed, in accordance with the instructions of the President of the United States of June 10, 1861, hereto attached and made part hereof, and for the consideration and use in said instructions set forth:
Now, therefore, to secure the payment of said bonds and every part thereof, and of all interest to become due thereon, according to the terms thereof, the Leavenworth, Pawnee, and Western Railroad Company by its agent hereto specially authorized by resolution of the board of directors of said company of April 11, 1861, a certified copy of which said resolution is hereto attached, hereby agrees with the United States, as trustee for said Delaware tribe of Indians, that in case said company shall at any time hereafter neglect or fail to pay the whole or any part of the interest on all or any one of said bonds, or shall neglect or fail to pay the whole or any part of the principal of all or any one of said bonds, when any such payment, either of principal or of interest, shall become due and payable, then the said railroad company shall be deemed and held to have forfeited all right and title of any kind whatever to the one hundred thousand (100,000) acres of land herein described, to wit:

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And immediately on such failure, the United States may take possession of and sell said lands for the exclusive benefit of said Delaware Indians.
And in case said company shall forfeit the one hundred thousand (100,000) acres above described, it shall thereupon also forfeit all its right and title to all the lands purchased by it from said Indians, not earned and patented at the date of such forfeiture.
And said company further agree that, on the completion of the first section of said road, it shall only be entitled to a patent for one-half of the lands not pledged for the payment of said bonds; and on the completion of said second section it shall have a patent for only the remaining half; and that no patent shall issue to it for any of the lands so pledged, until after said bonds and the interest warrants attached shall all and every part of them have been fully and promptly paid and cancelled.

In witness whereof, the said Leavenworth, Pawnee, and Western Railroad Company, by Thomas Ewing, jr., their agent aforesaid, have executed this instrument and attached thereto the seal of said company, this 2d day of July, 1861.
The Leavenworth, Pawnee, and Western Railroad Company, by their agent,

[SEAL.]

THOMAS EWING. JR.

State of Kansas, Leavenworth County, ss :

On this second day of July, A. D. 1861, before me, the undersigned authority, a notary public in and for the county aforesaid, in the State aforesaid, personally came Thomas Ewing, jr., agent of the Leavenworth, Pawnee, and Western Railroad Company, to me personally known to be the identical person who signed the foregoing instrument of writing, and whose name is thereto affixed as grantor, and he acknowledged the same to be his own voluntary act and deed.

Witness my hand and notarial seal, this 2d day of July, A. D. 1861.

[SEAL.]

W. S. VAN DOREN,
Notary Public, Leavenworth County, Kansas.

At a called meeting of the board of directors of the Leavenworth, Pawnee, and Western Railway Company, on Monday, July 1st, 1861, at the office of A. J. Isacks, in Leavenworth City, Kansas, was present Jas. C. Stone, Amos Rees, Thomas Ewing, jr., and Thomas S. Gladding.

Resolved, That Thomas Ewing, jr., be authorized and directed, as agent of the company, to make, execute, and deliver to Archibald Williams, as agent of the United States, the bonds and interest-warrants of the company for $286,742.15, payable in ten years from their date, with 6 per cent. interest, payable annually, payable to the Commissioner of Indian Affairs, or bearer, at the office of the assistant treasurer of the United States in the city of New York; and also to make and execute to the United States, and cause to be recorded and

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delivered to said Williams, as such agent, a mortgage of the company on the one hundred thousand acres of Delaware Indian lands, described in the letter of the Commissioner of Indian Affairs to the Secretary of the Interior, on May 29th, 1861; such mortgage to contain all the conditions prescribed in the paper signed by the President of the United States, of June 10th, 1861, the terms of which are hereby accepted by the company.

I hereby certify that at a meeting of the board of directors of the Leavenworth, Pawnee, and Western Railroad Company, held at the office of A. J. Isacks, in the city of Leavenworth, in the State of Kansas, on the 1st day of July, 1861, the foregoing proceedings were had and recorded on the journal of the company; and that the same is a true and correct transcript of the same from the journal of said company.

In testimony whereof I hereunto sign my name and affix the official seal of the company.

[SEAL.]

THOS. S. GLADDING,
Secretary L. P. & W. R. R. Co.

Whereas, by the treaty of Sarcoxieville, amended by the United States Senate, and finally ratified by the President of the United States on the 22d day of August, 1860, a principal object of both parties was the construction of a certain contemplated railroad therein named; and to that end the Leavenworth, Pawnee, and Western Railroad Company were to pay into the United States Treasury, in gold or silver coin, a sum of money, afterwards ascertained to be $286,742.15, as the appraised value of certain lands in Kansas belonging to the Delaware tribe of Indians; which sum of money, after expending a sufficient part of it to enable the Indians to commence agricultural pursuits under favorable circumstances, was to be, by the President, for said Indians, invested in safe and profitable stocks; and

Whereas the said railroad company is not able to pay said sum of money within time, according to said treaty; and

Whereas the President is of opinion that it is not for the interest of either party that said object of the treaty shall fail, but not knowing what would be the desire of sad Indians on this point, nor knowing whether any part of said sum would be needed to enable the Indians to commence agricultural pursuits under favorable circumstances, but supposing it probable that no part of it would be so needed, as said Indians now have over fifty thousand dollars lying idle in the United States Treasury; Therefore—

It is directed by the President that said Railroad Company may execute their bonds, with interest-warrants or coupons attached, according to the forms hereto annexed, the principal of which bonds shall amount to the aggregate sum of $286,742.15, and deposit the same with Archibald Williams, of Kansas, hereby appointed to receive and receipt for the same, to be by him transmitted to the Commissioner of Indian Affairs for the use of said Indians; and also shall, in due and proper form, execute a mortgage upon one hundred thousand acres of the land contemplated in and by said treaty to aid in the construction of said railroad, the said one hundred thousand acres to be the lands designated in the letter of the Commissioner of Indian Affairs to the Secretary of the Interior, dated May 29, 1861; said mortgage to be conditioned for the full payment of said bonds, both as to interest and principal, and that on any failure to pay either when due all right and interest of said railroad company in and to said mortgaged land, and also to all such of said land not mortgaged as shall not at that time be earned and patented according to said treaty, shall be forfeited, and said land again become the absolute property of the United States

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in trust for said Indians; and said mortgaged lands to be in no event patented to said until said bonds, principal and interest, shall be fully paid. And upon said bonds being so made and deposited, and said mortgage being so executed and duly recorded in Leavenworth County, Kansas, all matters, so far as not necessarily varied by this arrangement, shall proceed in conformity to said treaty, as if the money had been paid by said railroad company and had been invested by the President in said railroad bonds: Provided always, That this arrangement shall be of no effect until Archibald Williams, judge of the United States court for the district of Kansas, shall have endorsed a certificate upon this paper that he has carefully examined the same, and also the bonds and mortgage offered in compliance with its provisions, and has found that bonds and mortgage do in fact comply with and fulfil said provisions; and also that he has had before him the chiefs and headmen named in said treaty, as John Connor, Sar-cox-ie, Necon-he-con, and Rock-a-to-wha, and has fully explained to them the nature and effect of this departure from the terms of said treaty, and that they freely assented to the same.

Abraham Lincoln.

JUNE 10, 1861.

$10,000.    No. 1.

Know all men by these presents: That the Leavenworth, Pawnee, and Western Railroad Company is held and bound to the United States, as trustee for the Delaware tribe of Indians, in the sum of ten thousand dollars, to be paid to the Commissioner of Indian Affairs, or bearer, at the office of the assistant treasurer of the United States, in the city of New York, in ten years from the date hereof, on the surrender of this bond, with interest on said sum from the same date, at six per cent. per annum, payable annually at the same office, on the surrender, as they severally fall due, of the annexed interest-warrants. This bond being one of twenty-nine bonds for sums amounting in the aggregate to $290,560, the payment of which, with the interest-warrants attached, is secured by mortgage of even date herewith on one hundred thousand acres of the land acquired by said company, under the conditions and provisions of the treaty between the United States and the Delaware tribe of Indians of May 30, 1860.

In witness whereof the Leavenworth, Pawnee, and Western Railroad Company, by Thomas Ewing, jr., their agent, have signed this obligation, and have attached thereto their corporate seal this 14th day of May, 1861.

The Leavenworth, Pawnee, and Western Railroad Company by

[SEAL.]

THOMAS EWING, Jr.,
Their Agent.

The Leavenworth, Pawnee, and Western Railroad Company promises to pay to the Commissioner of Indian Affairs of the United States or bearer, on the 14th day of May, 1862, at the office of the assistant treasurer of the United States, in the city of New York, six hundred dollars, interest due that day on their bond No. 1.

The Leavenworth, Pawnee, and Western Railroad Company, by

Thomas Ewing. Jr.,
Their Agent.

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Office Of Register Of Deeds,

County of Leavenworth, State of Kansas, ss:

I, W. S. Van Doren,register of deeds within and for the county aforesaid, do hereby certify that the within and foregoing instruments of writing were received by me for record this second day of July, A. D. 1861, at 3½ o'clock p.m., and that the same are duly recorded in Book P, for recording mortgages, at page 230, &c.

In testimony whereof I have hereunto set my hand and official seal of office, the day and year aforesaid.

[SEAL.]

W. S. Van Doren,
Register of Deeds.

I, Archibald Williams, judge of the United States court for the district of Kansas, do hereby certify that I have carefully examined the within paper signed by the President of the United [States,] and have also examined and approved the bonds and mortgage offered by the Leavenworth, Pawnee, and Western Railroad Company in compliance with its provisions, and have accepted said bonds and mortgage, and receipted to said company for the same, as agent of the United States, and caused said mortgage to be duly recorded in the office of the recorder of deeds for Leavenworth County, Kansas.

And I do further certify, that I have had before me the chiefs and head-men therein named, as John Connor, Sar-cox-ie, and Ne-con-he-con, and also James Connor, who was the delegate at large of said tribe, in making the treaty of 1860, and read to them the said paper signed by the President, and fully explained to them the nature and effect of the proposition set forth in said paper; and that, after they had fully discussed the proposition, John Connor, in English, and James Connor, Sar-cox-ie, and Ne-con-he-con, through the said John Connor and other interpreters, declared that they understood it thoroughly, and each freely assented to the same; and that evidence has been presented to me by John Connor and other chiefs of said tribe, by which I am satisfied that Rock-a-to-wha died several months ago, and that no chief has been appointed in his place.

Given under my hand at Leavenworth city, Kansas, this 2d day of July, 1861.

Archibald Williams.

And whereas the said treaty or agreement having been submitted to the Senate of the United States for its constitutional action thereon, the Senate did, on the sixth of August, one thousand eight hundred and sixty-one, advise and consent to the ratification of the same by a resolution, and with amendments, in the words and figures following, to wit:

         “IN EXECUTIVE SESSION,
         “Senate of the United States, August 6, 1861.

“Resolved, (two-thirds of the Senators present concurring,) That the Senate advise and consent to the ratification of the treaty or agreement between the United States of America and the Delaware tribe of Indians relative to certain lands of that tribe conveyed to the Leavenworth, Pawnee, and Western Railroad Company, and to bonds executed to the United States by the said company for the payment of the said Indians, done the second day of July, eighteen hundred and sixty-one:

“Provided, That the provisions of this treaty shall not be held to apply to any lands not heretofore surveyed and appraised and not included within the limits of said reserve, nor any lands included in any fort or reservation for military purposes:

“Provided further, That if twenty-five miles of said railroad, from Leavenworth city westwardly, is not completed and equipped within

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five years from the ratification hereof, said company shall thereupon forfeit all right, title, and interest, legal and equitable, in and to all and every part of said lands; and if the remaining section to the western boundary of the said reserve be not completed and equipped within three years from the date fixed for the completion of said first section, said company shall thereupon forfeit all right, title, and interest, legal and equitable, in and to all of said lands not theretofore earned and patented.

“Provided further, That in the event of a failure of the said Railroad Company to pay the annual interest accruing upon the bonds, secured as above, within thirty days after the same falls due at the end of any year, then and in such case the contract included in this treaty shall be rescinded and shall be of no binding efficacy upon either party thereto.

“Provided further, That no part of said lands shall be patented to said Railroad Company until the money price for such part shall have been fully paid therefor.

“And provided, That this treaty shall not go into operation and be binding on them until accepted by the Indians thus amended.

“Attest:

                        J. W. Forney, Secretary.

And whereas William P. Dole, commissioner of Indian affairs, was designated by the Executive to present the treaty, as above amended, to the Indians, through their chiefs and headmen, for their acceptance, and to take such acceptance, if freely given, with the signatures of said Indian chiefs and headmen, and to certify his proceedings therein to the Executive; and the foregoing amendments having been fully interpreted and explained to the chiefs and headmen of the Delaware tribe aforesaid, they did thereunto, on the second day of September, one thousand eight hundred and sixty-one, give their free and voluntary assent in the words and figures following, to wit:

We, the undersigned, chiefs, councillors, and headmen of the Delaware tribe of Indians, acting for and on behalf of said tribe, this day in full council assembled, having had read and carefully explained and interpreted to us the within and foregoing treaty or agreement between the United States of America and the Delaware tribe of Indians, concluded on [the] 2d day of July, 1861, together with the within and foregoing amendments thereto, made by the Senate of the United States on the 6th day of August, 1861, do hereby accept and consent to said treaty as so amended.

In witness whereof, we have hereunto set our hands and affixed our seals this 2d day of September, 1861.

John Connor, head chief, his x mark. [L. S.]

Ne-con-he-con, chief of the Wolf Band, his x mark. [L. S.]

Sar-cox-ie, chief of the Turtle Band, his x mark. [L. S.]

James Connor, delegate, his x mark. [L. S.]

Charles Journeycake. [L. S.]

Signed and sealed in presence of—

Issac Golmarke. United States interpreter.

F. Johnson.

H. B. Branch, (As to Sar-cox-ie.)

W. G. Coffin,

I hereby certify that the foregoing treaty or agreement between the United States and the Delaware tribe of Indians, concluded on the 2d day of July, 1861, together with the foregoing amendments thereto, made by the Senate of the United States on the 6th day of August, 1861, were read and fully explained by me to said Indians, except Sar-cox-ie, through Isaac Journeycake, the United States interpreter, and to Sar-cox-ie through Charles Journeycake; and that the delegate, chiefs, councillors, and headmen above named, on behalf of said tribe,

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this day, in council assembled, did freely accept and consent to said treaty, together with said amendments, and subscribed their names and affixed their seals thereto in my presence.

Given under my hand this 2d September, 1861.

            Wm. P. Dole, Commissioner Indian Affairs.

Now, therefore, be it known that I, Abraham Lincoln, President of the United States of America, do, in pursuance of the advice and consent of the Senate, as expressed in their resolution of the sixth of August, one thousand eight hundred and sixty-one, accept, ratify, and confirm said treaty, with the amendments, as aforesaid.

In testimony whereof, I have caused the seal of the United States to be hereto affixed, having signed the same with my hand.
Done at the city of Washington, this fourth day of October, in the year of our Lord one thousand eight hundred and sixty-one, and of the Independence of the United States the eighty-sixth.

[L. S.] Abraham Lincoln.

By the President:

WILLIAM H. SEWARD, Secretary of State.

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