Held near Tellico, in the Cherokee Council House between George Walton and Lieut. Col. Thomas Butler, commissioners on behalf of the United States, and the chiefs and warriors of the Cherokee Nation.
Owing to misunderstandings and consequent delay in running the boundary line prescribed by the treaties of 1791 and 1794, and the ignorant encroachment of settlers on the Indian lands within the limits of such boundaries before their survey, it became desirable that the Indians should cede more land. The following treaty was therefore concluded:
1. Peace and friendship are renewed and declared perpetual.
2. Previous treaties acknowledged to be of binding force.
3. Boundaries of the Cherokees to remain the same where not altered by this treaty.
4. The Cherokees cede to the United States all lands within the following points and lines, viz: From a point on the Tennessee River, below Tellico Block House, called the Wild Cat Rock, in a direct line to the Militia Spring near the Maryville road leading from Tellico. From the said spring to the Chill-howie Mountain by a line so to be run as will leave all the farms on Nine Mile Creek to the northward and eastward of it, and to be continued along Chill-howie Mountain until it strikes Hawkins's line. Thence along said line to the Great Iron Mountain, and from the top of which a line to be continued in a southeastwardly course to where the most southwardly branch of Little River crosses the divisional line to Tuggaloe River. From the place of beginning, the Wild Cat Rock, down the northeast margin of the Tennessee River (not including islands) to a point one mile above the junction of that river withthe Clinch, and from thence by a line to be drawn in a right angle until it intersects Hawkins's line leading from Clinch. Thence down the said line to the river Clinch; thence up the said river to its junction with Emmery's River; thence up Emmery's River to the foot of Cumberland Mountain. From thence a line to be drawn, northeastwardly along the foot of the mountain until it intersects with Campbell's line.
5. Two commissioners to be appointed (one by the United States and one by the Cherokees) to superintend the running and marking of the line, immediately upon signing of the treaty, and three maps to be made after survey for use of the War Department, the State of Tennessee, and the Cherokee Nation respectively.
6. Upon signing the treaty the Cherokees to receive $5,000 cash and an annuity of $1,000, and the United States to guarantee them the remainder of their country forever.
7. The United States to have free use of the Kentucky road running between Cumberland Mountain and river, in consideration of which the Cherokees are permitted to hunt on ceded lands.
8. Notice to be given the Cherokees of the time for delivering annual stipends.
9. Horses stolen by either whites or Indians to be paid for at $60 each (if by a white man, in cash; if by an Indian, to be deducted from annuity). All depredations prior to the beginning of these negotiations to be forgotten.
10. The Cherokees agree that the United States agent shall have sufficient ground for his temporary use while residing among them. This treaty to be binding and carried into effect by both sides when ratified by the Senate and President of the United States.
In the year 1797 the legislature of the State of Tennessee addressed a memorial and remonstrance to Congress upon the subject of the Indian title to lands within that State. The burden of this complaint was the assertion that the Indian title was at best nothing greater than a tenancy at will; that the lands they occupied within the limits of the State had been granted by the State of North Carolina, before the admission of Tennessee to the Union, to her officers and soldiers of the Continental line, and for other purposes; that the treaties entered into with the Cherokees by the United States, guaranteeing them the exclusive possession of these lands, were subversive of State as well as individual vested rights, and praying that provision be made by law for the extinguishment of the Indian claim.107
This was communicated to Congress by the President. Mr. Pinckney,from the committee of the House of Representatives to which the matter was referred, submitted a report,108accompanied by a resolution making an appropriation for the relief of such citizens of the State of Tennessee as had a right to lands within that State, by virtue of the cession out of the State of North Carolina, provided they had made actual settlement thereon and had been deprived of the possession thereof by the operation of the act of May 19, 1796, for regulating intercourse with the Indian tribes. The sum to be appropriated, it was declared, should be subject to the order of the President of the United States, to be expended under his direction, either in extinguishing the Indian claim to the lands in question, by holding a treaty for that purpose, or to be disposed of in such other manner as he should deem best calculated to afford the persons described a temporary relief.
New treaty.—The House of Representatives, on considering the subject, passed a resolution directing the Secretary of War to lay before them such information as he possessed relative to the running of a line of experiment from Clinch River to Chilhowie Mountain by order of Governor Blount, to which the Secretary responded on the 5th of January, 1798.109
Following this, on the 8th of the same month, President Adams communicated a message to the Senate, setting forth that the situation of affairs between some of the citizens of the United States and the Cherokees had evinced the propriety of holding a treaty with that nation, to extinguish by purchase their right to certain parcels of land and to adjust and settle other points relative to the safety and convenience of the citizens of the United States. With this view he nominated Fisher Ames, of Massachusetts, Bushrod Washington, of Virginia, and Alfred Moore, of North Carolina, to be commissioners, having authority to hold conferences and conclude a treaty with the Cherokees for the purposes indicated.110
The Senate concurred in the advisability of the proposed treaty, but Fisher Ames and Bushrod Washington having declined, George Walton and John Steele were associated with Mr. Moore, and detailed instructions were given for their guidance.111
By these instructions they were vested jointly and severally with full powers to negotiate and conclude a treaty with the Cherokees, limited only by the scope of the instructions themselves. The Cherokee agent had already been directed to notify the Indians and the commandant of United States troops in Tennessee to furnish an escort sufficient for the protection of the negotiations.
Further purchase of Cherokee lands proposed.—The commissioners were directed as a primary consideration to secure, if possible, the consentof the Cherokees to the sale of such part of their lands as would give a more convenient form to the State of Tennessee and conduce to the protection of its citizens. Especially was it desirable to obtain their consent to the immediate return of such settlers as had intruded on their lands and in consequence had been removed by the United States troops, such consent to be predicated on the theory that the Cherokees were willing to treat for the sale to the United States of the lands upon which these people had settled. They were directed to renew the unsuccessful effort made by Governor Blount in 1791 to secure the consent of the Cherokees that the boundary should begin at the mouth of Duck River and run up the middle of that stream to its source and thence by a line drawn to the mouth of Clinch River. The following alternative boundary propositions were directed to be submitted for the consideration of the Indians, in their numerical order, viz:
1. A line (represented on an accompanying map by a red dotted line) from a point on the ridge dividing the waters of the Cumberland from the Tennessee River, in a southwest direction, until it should strike the mouth of Duck River; thence from the mouth to the main source of the river; thence by a line over the highest ridges of the Cumberland Mountains to the mouth of Clinch River; thence down the middle of the Tennessee River till it struck the divisional line under the treaties of 1791 and 1794; thence along said line to its crossing of the Cunchee Creek running into Tuckasegee; thence to the Great Iron Mountains; thence a southeasterly course to where the most southerly branch of Little River crossed the divisional line to Tugaloo River.
2. A line (represented on said map by a double red line) beginning at the point 40 miles above Nashville, as ascertained by the commissioners (and laid down on said map); thence due east till it struck the dotted line on Cumberland Mountains; along said mountains to the junction of Clinch and Tennessee Rivers; and down the Tennessee to the extent of the boundary described in the first proposition.
3. A line (dotted blue) beginning at a point 56 miles from the point 40 miles above Nashville, on the northeast divisional line, being11/2miles south of the road called Walton's or Caney Fork road; thence on a course at the same distance from the said road to where it crosses Clinch River; thence resuming the remaining boundary as described in the first proposition.
4. A line (being a double blue line on the map) beginning at a point one mile south of the junction of the Clinch and Tennessee Rivers; thence westerly along the course of the road11/2miles south thereof until it entered into Cumberland Mountains; thence a northeasterly course along the ridges of said mountains on the west of Powell's Valley and River to the source of the river next above Clear Fork, and thence down the middle of the same to the northeast divisional line; the Tennessee River and the further line thence, as described in the first proposition, to be the remaining boundary.
In case the Indians should accept the first proposition and cede the tract therein described, or a greater quantity, the commissioners were to solemnly guarantee the Cherokees the remainder of their country and agree to their payment by the United States of either an annuity of $4,000, or to deliver them, on the signing of the treaty, goods to the amount of $5,000 and the further sum of $20,000 in four equal annual installments.
Refusing the first and accepting the second proposition, they were to receive the same guarantee, and an annuity of $3,000, or $5,000 at once in goods and $15,000 in three equal annual installments.
Refusing the first and second and accepting the third proposition, the same guarantee was offered and an annuity of $2,000, or $5,000 in goods on signing the treaty and $10,000 in two equal annual installments.
Accepting the fourth proposition, to the exclusion of the other three, the same guarantee was to be given, together with an annuity of $1,000, or $5,000 in goods on signing the treaty and the same amount during the year 1799.
It was also represented by the Secretary of War that the arts and practices used to obtain Indian land in defiance of treaties and the laws, at the risk of involving the whole country in war, had become so daring, and received such countenance from persons of prominent influence, as to render it necessary that the means to countervail them should be augmented. To this end, as well as to more effectually secure to the United States the advantages of the land which should be obtained by the treaty, the commissioners were instructed to secure the insertion into the treaty of provisions of the following import:
1. That the new line should be run and marked by two commissioners, one of whom should be appointed by the treaty commissioners and the other by the Indians. They should proceed immediately upon the signing of the treaty to the execution of that duty, upon the completion of which three maps thereof should be prepared, one for the use of the Secretary of War, one for the executive of the State of Tennessee, and one for the Cherokees.
2. That the Cherokees should at all times permit the President of the United States to employ military force within their boundaries for the arrest and removal of all persons seeking to make unauthorized negotiations with or to incite their hostility toward the United States or any of its citizens, or toward any foreign nation or Indian nation or tribe within the limits and under the protection of the United States; also, of all persons who should settle on or who should attempt to reside in the Indian country without the written permission of the President.
3. That the treaty should not be construed either to affect the right or title of any ejected settler upon the Indian lands to the tract theretofore occupied by him or in any manner to enlarge his right or claimthereto; and that all Indian land purchased by the contemplated treaty, which had not been actually occupied as aforesaid, should remain subject to the operation of all the provisions of the proposed as well as any former treaty and of the laws of the United States relative to Indian country, until such time as said lands should be sold by and under the authority of the United States. This provision was intended to prevent any further intrusion on any part of the land ceded by the State of North Carolina to the United States; as also upon the land set apart to the Cherokee Indians by the State of North Carolina, by act of her legislature, passed May 17, 1783, described as follows, viz: "Beginning on the Tennessee, where the southern boundary of this State intersects the same, nearest to the Chicamauga towns; thence up the middle of the Tennessee and Holston to the middle of French Broad; thence up the middle of French Broad River (which lines are not to include any island or islands in the said river) to the mouth of Big Pigeon River; thence up the same to the head thereof; thence along the dividing ridge, between the waters of Pigeon River and Tuckasege River, to the southern boundary of this State."
4. The United States should have the right to establish such military posts and garrisons within the Indian limits for their protection as should be deemed proper. In case it should be found impracticable to obtain Duck River or a line that should include within it the road leading from Southwest Point to Cumberland River for a boundary, the commissioners were to stipulate for certain parcels of land lying on such road at convenient distances from each other for the establishment of houses of entertainment for travelers. Also in case the cession obtained should not include both sides of the ferry on Clinch River, to secure a limitation upon the rates of toll that should be charged by the occupant.
The commissioners repaired to Knoxville, where they ascertained it to be the desire of the Indians that the treaty negotiations should be held at Oostenaula, the Cherokee capital.
To this the commissioners objected, but agreed to meet the Indians at Chota, which they concluded to change to Tuckasege, and, finally, before the date fixed for the meeting, June 25, again changed it to Tellico, where the conference was held.112
Tennessee commissioners attend the council.—In the mean time113Governor Sevier of Tennessee designated General Robertson, James Stuart, and Lachlan McIntosh as agents to represent the interests of that State at the treaty, and gave them minute instructions covering the following points,114viz:
1. To obtain as wide an extinguishment of the Cherokee claim north of the Tennessee River as possible.
2. An unimpeded communication of Holston and Clinch Rivers with the Tennessee and the surrender of the west bank of the Clinch opposite South-West Point.
3. To secure from future molestation the settlements as far as they had progressed on the northern and western borders of the State and the connection of Hamilton and Mero districts, then separated by a space of unextinguished hunting ground 80 miles wide.
4. To examine into the nature and validity of the claim recently set up by the Cherokees to lands north of the Tennessee River; whether it rested upon original right or was derived from treaties; or was founded only upon temporary use or occupancy.
The council opened early in July. The "Bloody Fellow," a Cherokee chief, at the outset delivered a paper which he stated to contain their final resolutions, and which covered a peremptory refusal to sell any land or to permit the ejected settlers to return to their homes. After seeking in vain to shake this determination of the Cherokees, further negotiations were postponed until the ensuing fall, and the commissioners departed.
On the 27th of August, the Secretary of War addressed some additional instructions upon the subject to George Walton and Lieut. Col. Thomas Butler as commissioners (John Steele having resigned and Alfred Moore having returned to his home in North Carolina), authorizing them to renew the negotiations. The original instructions were to form the basis of these negotiations, but if it should be found impracticable to induce the Indians to accede to either of the first three propositions, an abandonment of them was to take place, and resort was to be had to the fourth proposition, which might be altered in any manner as to boundaries calculated to secure the most advantageous results to the United States.115The council was resumed at Tellico on the 20th of September, but it was found, during the progress thereof, that there was no possibility of effecting the primary objects of the State agents of Tennessee. General Robertson failed to attend. General White (who had been appointed in the place of Stuart) was there, but Mr. McIntosh resigned and Governor Sevier himself attended in person.
The treaty was finally concluded on the 2d of October, by which a cession was secured covering most of the territory contemplated by the fourth proposition, with something additional. It included most if not all the lands from which settlers had been ejected by the United States troops, and they were permitted to return to their homes.
The road privilege sought to be obtained between East and Middle Tennessee was also realized, except as to the establishment of houses of entertainment for travelers.116
President Adams transmitted the treaty to the Senate,117and that body advised and consented to its ratification.
Boundary lines surveyed.—In fulfillment of the provisions of the fifth article of the treaty concerning the survey of boundary lines, the President appointed Captain Butler as a commissioner to run that portion of the line described as extending from Great Iron Mountain in a southeasterly direction to the point where the most southerly branch of Little River crossed the divisional line to Tugaloo River, which trust he executed in the summer of 1799.118Owing to the unfortunate destruction of official records by fire, in the year 1800, it is impossible to ascertain all the details concerning this survey, but it was executed on the theory that the "Little River" named in the treaty was one of the northernmost branches of Keowee River.
This survey seems not to have been accepted by the War Department, for on the 3d of June, 1802, instructions were issued by the Secretary of War to Return J. Meigs, as a commissioner, to superintend the execution of the survey of this same portion of the boundary. Mr. Thomas Freeman was appointed surveyor.119
From the letter of Commissioner Meigs, transmitting the plat and field notes of survey,120it appears that much difference of opinion had existed as to what stream was meant by the "Little River" named in the treaty, there being three streams of that name in that vicinity. Two of these were branches of the French Broad and the other of Keowee River. If the line should be run to the lower one of these two branches of the French Broad, it would leave more than one hundred families of white settlers within the Indian territory. If it were run to the branch of Keowee River, it would leave ten or twelve Indian villages within the State of North Carolina.
It was therefore determined by Commissioner Meigs to accept the upper branch of French Broad as the true intent and meaning of the treaty, and the line was run accordingly, whereby not a single white settlement was cut off or intersected, and but five Indian families were left on the Carolina side of the line.121
Status of certain territory.—In this connection it is pertinent to remark that the State of North Carolina claimed for her southern boundary the thirty-fifth degree of north latitude.
The line of this parallel was, however, at that time supposed to run about 12 miles to the north of what was subsequently ascertained to be its true location.
Between this supposed line of 35° north latitude and the northernmost boundary of Georgia, as settled upon by a convention between that State and South Carolina in 1787, there intervened a tract of country of about 12 miles in width, from north to south, and extending from east to west, from the top of the main ridge of mountains which divides the eastern from the western waters to the Mississippi River. This tract remained, as was supposed, within the chartered limits of South Carolina, and in the year 1787 was ceded by that State to the United States, subject to the Indian right of occupancy. When the Indian title to the country therein described was ceded to the United States by the treaty of 1798 with the Cherokees, the eastern portion of this 12-mile tract fell within the limits of such cession.
On its eastern extremity near the head-waters of the French Broad River, immediately at the foot of the main Blue Ridge Mountains, had been located, for a number of years prior to the treaty, a settlement of about fifty families of whites, who by its ratification became occupants of the public domain of the United States, but who were outside the territorial jurisdiction of any State. These settlers petitioned Congress to retrocede the tract of country upon which they resided to South Carolina, in order that they might be brought within the protection of the laws of that State.122A resolution was reported in the House of Representatives, from the committee to whom the subject had been referred, favoring such a course,123but Congress took no effective action on the subject, and when the State boundaries came to be finally adjusted in that regionthe tract in question was found to be within the limits of North Carolina.
Yellow Creek settlement.—After that portion of the boundary of the country ceded by the treaty of 1798 which extended along the foot of Cumberland Mountain until it intersected "Campbell's Line" had been surveyed, complaint was made by certain settlers on Yellow Creek that by the action of the surveyors in not prolonging the line to its true point of termination, their homes had been left within the Indian country.
Thereupon the Secretary of War instructed Agent Meigs124to go in person and examine the line as surveyed with a view to ascertaining the truth concerning the complaints.
It was ascertained that the "point" of Campbell's Line was not on Cumberland Mountain proper, but on the ridge immediately east thereof, known as Poor Valley Ridge. This ridge is nearly as lofty as the main range, and Colonel Campbell, in approaching it from the east, had mistaken it for that range and established his terminal point accordingly. The surveyors under the treaty of 1798, assuming the correctness of Colonel Campbell's survey, had made the line of their survey close thereon. By such action the Indian boundary in that locality was extended 332 poles further to the east than would have been the case had the true reading of the treaty been followed.
A number of families of settlers on Yellow Creek, together with a tract of about 2,500 acres of land, were thus unfortunately left within the Indian country. All efforts of Agent Meigs to secure a relinquishment of this strip of territory from the Indians were, however, ineffectual.125
Held at "Tellico Block House," Tennessee, between Daniel Smith and Return J. Meigs, commissioners on the part of the United States, and the principal chiefs representing the Cherokee Nation.
It is agreed and stipulated that—
1. The Cherokee Nation relinquish and cede to the United States a tract of land bounding southerly on the boundary line between the State of Georgia and the Cherokee Nation, beginning at a point on the said boundary line northeasterly of the most northeast plantation in the settlement known by the name of Wafford's Settlement, and running at right angles with the said boundary line 4 miles into the Cherokee land, thence at right angles southwesterly and parallel to the first mentioned boundary line so far as that a line to be run at right angles southerly tothe said first mentioned boundary line shall include in this cession all the plantations in Wafford's Settlement, so called, as aforesaid.
2. In consideration of this cession the United States agree to pay the Cherokees $5,000, in goods or cash, upon the signing of the treaty, and an annuity of $1,000.
Congress, under date of February 19, 1799,127appropriated $25,000 to defray the expense of negotiating a treaty or treaties with the Indians, and again, on the 13th of May, 1800,128appropriated $15,000 to defray the expense of holding a treaty or treaties with the Indian tribes southwest of the Ohio River, with the proviso that nothing in the act should be construed to admit an obligation on the part of the United States to extinguish for the benefit of any State or individual the Indian claim to any lands lying within the limits of the United States.
Pursuant to the authority conferred by these enactments, President Jefferson appointed129General James Wilkinson, Wm. R. Davie, and Benj. Hawkins as commissioners, and they were instructed by the Secretary of War to proceed to negotiate treaties with the Cherokees, Creeks, Choctaws, and Chickasaws.
Objects of the treaty.—The objects sought to be attained with the Cherokees were to secure their consent, 1st. To cede to the United States all that portion of their territory lying to the northward of a direct line to be run from a point mentioned in treaty of October 2, 1798, on Tennessee River, 1 mile above its junction with the Clinch, to the point at or near the head of the West Fork of Stone's River, on the ridge dividing the waters of the Cumberland and Duck Rivers which is struck by a southwest line from the point where the Kentucky road crosses Cumberland River, as described in the treaty of Holston.
2. That the Tennessee River should be the boundary from its mouth to the mouth of Duck River; that Duck River should be the boundary thence to the mouth of Rock Creek; and that a direct line should be run for a continuation of the boundary from the mouth of Rock Creek to the point on the ridge that divides the waters of Cumberland from Duck River.
3. That a road should be opened from the boundary line to a circular tract on Tennessee River at the mouth of Bear River, reserved to the United States by treaty of 1786 with the Chickasaws. From this point the road should continue until it reached the Choctaw territory, where it was to connect with a road through the country of the latter toNatchez. The entire line of this road must be open to the free use of citizens of the United States.
4. In case the Indians should refuse to cede any of the lands designated, the commissioners were instructed to obtain, if possible, a cession of all the land lying northward of the road leading from Knoxville to the Nashville settlements, run conformably to the treaty of 1791. If they should be unwilling to grant this, then to ask for a strip of land from 1 to 5 miles in width, to include the said road in its whole extent across their lands. Whether success or failure should attend the first or second objects of their mission, the commissioners were to seek the consummation of the third proposition for a road to the Bear Creek reservation, which would otherwise be of no practical value to the United States.
If consent was obtained to the first three proposals or to the alternative marked 4th, an annuity of $1,000 was authorized and an immediate sum not exceeding $5,000 in cash or goods. If, as had been represented to the War Department, the Cherokees and Chickasaws both claimed the land on either side of Tennessee River for a considerable distance, the commissioners were instructed that they must obtain the assent of both tribes to the opening of the road.
Six days after the issuance of these instructions, a delegation of Cherokees, headed by Chief "Glass," arrived in Washington, and obtained an interview with the Secretary of War.130They represented that the promise had been made them, at the treaty of 1798, that they would never be asked to cede any more land. Now they learned that the United States was about to hold another treaty with them to secure further cessions. They also desired to know whether the United States or the settlers got the land theretofore ceded, and why they had not been furnished with the map showing the boundary lines by the treaty of 1798, as had been promised them. In his reply,131after seeing the President, the Secretary of War informed them that no desire existed to purchase any more land from them unless they were anxious to sell; that the map should be at once furnished them; that the States of Kentucky and Tennessee had been formed out of the lands already purchased from them, and the main object of the proposed treaty with their nation was to secure the right of way for roads through their country in order to maintain communication between detached white settlements.
The delegation strenuously objected to the proposed "Georgia" road and were informed that the matter would not be pressed, but that the road to Bear River and Natchez was a necessity.
As a result of the visit of this delegation, the instructions to Messrs. Wilkinson, Davie, and Hawkins were modified,131it being stated by theSecretary of War that he had been mistaken as to part of the line between the United States and the Cherokees. He therefore directed that the second object of their instructions should be suspended as regarded both the Cherokees and the Chickasaws. Commissioner Davie having declined his appointment, General Andrew Pickens was substituted in his stead.132
Failure of negotiations.—It is only necessary to observe that the commissioners failed in the accomplishment of any of their designs with the Cherokees.
Prior to the survey and marking of the boundary line near Currahee Mountain in Georgia, provided for by the Cherokee treaty of 1785 and the Creek treaty of 1790, which survey did not occur until 1798, one Colonel Wafford, in company with sundry other persons, had formed a settlement in that vicinity, which proved to be within the limits of the Indian country.
Inasmuch as it was supposed these parties had ignorantly placed themselves within the Indian line and had made considerable and valuable improvements, the Government was indisposed to use harsh or forcible means for their ejection, but rather approved of the urgent appeals from Colonel Wafford and his neighbors to make an effort to secure the relinquishment from the Indians of a tract sufficient to embrace their settlement.
The Government had been laboring under the impression that these lands belonged to the Creeks, but the delegation of the Cherokees, headed by "The Glass," who visited Washington in the summer of 1801, claimed them as Cherokee territory, and asked for the removal of the settlers. Commissioners Wilkinson, Hawkins, and Pickens had been instructed133to negotiate with the Creeks for the purchase of this tract, but they having reported, upon examination, that the title was undoubtedly in the Cherokees, were directed134to report upon the expediency of applying to the Cherokees for a cession of the same.
Such an application having at this time been unfavorably received by the Cherokees, nothing further was done in the matter until the winter of 1803,135when the Secretary of War directed a conference to be held with them for the double purpose of securing a cession or a lease for seven years of the "Wafford Settlement" tract and the Indian consent to a right of way for a road through their country from Southwest Point or Tellico Factory to Athens, Ga., with the establishment of the necessary houses of entertainment for travelers along such route. For this latter concession he was authorized to offer them the sum of $500. TheCherokees having refused both these propositions, Agent Meigs was directed136to secure the granting of the road privilege, if possible, by offering Vann137and other men of influence among them a proper inducement to enlist their active co-operation in the matter. This latter method seems to have been effective, for later in the season138the Secretary of War transmitted to the governors of Georgia and Tennessee an extract from an agreement entered into with the Cherokees providing for an opening of the desired road, stating that, as the United States had no funds applicable to the laying out and construction of such a road, it would be proper for the legislatures of those States to make the necessary provision therefor.
The clamor for more land by the constant tide of immigration that was flowing into Kentucky, Tennessee, and Georgia from the North and East became more and more importunate. The desire to settle on Indian land was as potent and insatiable with the average border settler then as it is now.
Notwithstanding the recent and oft-repeated refusals of the Cherokees to part with more land, a new commission, consisting of Return J. Meigs and Daniel Smith, was appointed and instructed139by the Secretary of War to negotiate a treaty for the cession of lands in Kentucky, Tennessee, or Georgia, and particularly of the tract near the Currahee Mountain, including the Wafford settlement.
They were authorized to pay for the first cession a sum not exceeding $14,000, coupled with an annuity of $3,000, and for the "Wafford tract" not exceeding $5,000, together with an annuity of $1,000, and were directed to give "Vann," a Cherokee chief, $200 or $300 to secure his influence in favor of the proposed purchase.
Purchase of Wafford settlement tract.—In pursuance of these instructions a conference was held with the Cherokees at Tellico, Tenn.,140at which they concluded the arrangements for the cession of the Wafford tract, but failed in their further objects. The treaty was signed on the 24th of October, and transmitted to the Secretary of War a week later,141two persons having been appointed to designate and run thelines of the ceded tract, which was found to be 23 miles and 64 chains in length and 4 miles in width.142
Singular disappearance of treaty.—No action having been taken looking toward the ratification of this treaty for several years ensuing, Return J. Meigs, in the winter of 1811,143addressed a letter to the Secretary of War calling attention to it, setting forth the fact that its consideration had theretofore been postponed on account of a misunderstanding in relation to the limits of the ceded tract, but that the Cherokees had now of their own motion, and at their own expense, had a survey made of 10 miles and 12 chains in length in addition to the original survey, which would make the tract ceded 33 miles and 76 chains in length, and which would include the plantation of every settler who could make the shadow of a claim to settlement prior to the survey of the general boundary line run in 1797144by Colonel Hawkins. He therefore concluded that there could be no reason for further postponing the ratification of the treaty, and urged that it be done without delay.
Notwithstanding this letter of Agent Meigs no further notice seems to have been taken of the treaty, and it had been entirely lost sight of until attention was again called to it by a Cherokee delegation visiting Washington early in 1824, nearly twenty years after its conclusion.145
After diligent search among the records of the War Department, Secretary Calhoun reported146that no such treaty could be found and no evidence that any such treaty had ever been concluded. Whereupon the Cherokee delegation produced their duplicate copy of the treaty together with other papers relating to it. The Secretary of War, after receiving a reply147to a letter addressed by him to Colonel McKee, of the House of Representatives (who was one of the subscribing witnesses to the treaty), became satisfied of its authenticity, and the President thereupon148transmitted the Cherokee duplicate to the Senate, which body advised and consented to its ratification. It was duly proclaimed by the President on the 17th of May, 1824.149
Held at Tellico, Tenn., between Return J. Meigs and, Daniel Smith, commissioners on behalf of the United States, and certain chiefs and headmen of the Cherokees, representing that nation.
1. All former treaties providing for peace and prevention of crimes are continued in force.
2. The Cherokees cede to the United States all the land which they have heretofore claimed lying to the north of the following boundary line: Beginning at the mouth of Duck River; thence up the main stream of the same to the junction of the fork at the head of which Fort Nash stood, with the main south fork; thence a direct course to a point on the Tennessee River bank opposite the mouth of Hiwassa River. If the line from Hiwassa should leave out Field's settlement, it is to be marked around his improvement and then continued the straight course; thence up the middle of the Tennessee River (but leaving all the islands to the Cherokees) to the mouth of Clinch River; thence up the Clinch River to the former boundary line agreed upon with the said Cherokees, reserving at the same time to the use of the Cherokees a small tract lying at and below the mouth of Clinch River; from the mouth extending thence down the Tennessee River from the mouth of Clinch to a notable rock on the north bank of the Tennessee in view from Southwest Point; thence a course at right angles with the river to the Cumberland road; thence eastwardly along the same to the bank of Clinch River, so as to secure the ferry landing to the Cherokees up to the first hill and down the same to the mouth thereof, together with two other sections of one square mile each, one of which is at the foot of Cumberland Mountain, at and near the place where the turnpike gate now stands, the other on the north bank of the Tennessee River where the Cherokee Talootiske now lives. And whereas from the present cession made by the Cherokees, and other circumstances, the sites of the garrisons at Southwest Point and Tellico are become not the most convenient and suitable places for the accommodation of the said Indians, it may become expedient to remove the said garrisons and factory to some more suitable place; three other square miles are reserved for the particular disposal of the United States on the north bank of the Tennessee opposite to and below the mouth of Hiwassa.
3. In consideration of the foregoing cession the United States agree to pay $3,000 at once in merchandise, $11,000 in 90 days, and an annuity of $3,000.
4. The United States to have the use of two roads through the Cherokee country, one from the head of Stone's River to Georgia road, andthe other from Franklin to the Tombigbee settlements, crossing the Tennessee River at Muscle Shoals.
5. Treaty to take effect upon ratification by the President by and with the advice and consent of the Senate.
Held at Tellico, Tenn., between Return J. Meigs and Daniel Smith, commissioners on behalf of the United States, and certain chiefs and headmen of the Cherokees, representing that nation.
1. The Cherokees cede the section of land at Southwest Point, extending to Kingston, reserving the ferries and the first island in Tennessee River above the mouth of Clinch River.
2. The Cherokees consent to the free and unmolested use by the United States of the mail road from Tellico to Tombigbee so far as it passes through their country.
3. In consideration of the foregoing the United States agree to pay the Cherokees $1,600 within 90 days.
4. Treaty to be obligatory on ratification by the President by and with the advice and consent of the Senate.
The commissioners (Return J. Meigs and Daniel Smith) who were appointed and instructed under date of April 4,1804, and who negotiated the treaty of October 24, 1804, with the Cherokees, it will be remembered, failed in the object of their instructions, except as to the single matter of securing the cession of a tract covering the settlement of Colonel Wafford and others near Currahee Mountain. They were, however, directed to continue their negotiations from time to time until the full measure of their original instructions should be secured.
Treaties of October 25 and 27, 1805, considered together.—This course was pursued, and after several fruitless conferences the commissioners succeeded in concluding the treaties of October 25, 1805, and October 27, 1805. Inasmuch as these two treaties were negotiated by the same commissioners, acting under the same instructions and at the same conference, they will be considered together. The treaties were upon their conclusion transmitted to the Secretary of War,152and, upon submission to the Senate, that body duly advised and consented to their ratification. They were ratified and proclaimed by the President on the 24th of April and 10th of June, 1806, respectively.153
Secret agreement with Doublehead.—Following the transmission of the treaties to the Secretary of War by the commissioners, the latter addressed154an explanatory communication to him, in which they set forth that by the terms of the treaty of October 25, 1805, there were reserved three square miles of land, "for the particular disposal of the United States, on the north bank of the Tennessee, opposite and below the mouth of Hiwassa." This reservation, they affirmed, was predicated ostensibly on the supposition that the garrison at Southwest Point and the United States factory at Tellico would be placed thereon during the pleasure of the United States, but that they had stipulated with "Doublehead," a Cherokee chief, that whenever the United States should find this land unnecessary for the purposes mentioned it was to revert to him (Doublehead), provided that he should retain one of the square miles to his own use, but should relinquish his right and claim to the other two sections in favor of John D. Chisholm and John Riley in equal shares.
Purchase of site for State capital.—The cession by the treaty of October 27, 1805, of the section of land at Southwest Point was secured upon the theory that the State of Tennessee would find Kingston a convenient and desirable place for the establishment of the State capital. A subsequent change of circumstances and public sentiment, however, caused it to be located seven years later at Nashville.
Boundaries surveyed.—On the 11th of July, 1806, the Secretary of War notified Return J. Meigs of his appointment as commissioner to superintend the running and marking of the line "from the junction of the fork at the head of which Fort Nash stood with the main south fork of Duck River to a point on the Tennessee River bank opposite the mouth of Hiwassee River." He was also to superintend the survey of the lines of the reserved tracts agreeably to the treaty of October 25, 1805.
He was directed to appoint a surveyor, but before running the line from Duck to Tennessee Rivers above described, to have him survey and mark the lines of the 3-mile tract reserved opposite to and below the mouth of Hiwassee, and also, when completed, to designate the most suitable site for the military post, factory, and agency, each site to be 300 feet square and 40 rods distant from the others.
Commissioner Meigs followed the letter of his instructions and caused the lines to be surveyed in accordance therewith. The line from Duck River to the mouth of Hiwassee was begun on the 9th and finished on the 26th of October, 1806. The point of departure at the west end of the boundary line was a red elm tree, trimmed and topped, standing on the extreme point of land formed by the confluence of that branch of Duck River at the head of which Fort Nash stood, with the main south fork of the river. The eastern terminus of the line was a mulberry treeon the north bank of Tennessee River opposite the mouth of Hiwassee River, 73 miles and 166 poles from the beginning.155
Colonel Martin, who was employed by Commissioner Meigs, also surveyed under the latter's direction during the same month the four small reserved tracts described in the treaty of October 25, 1805.155One of these afterwards produced much controversy. The language of the treaty called for three square miles on the north bank of Tennessee River,opposite to and belowthe mouth of Hiwassee River. Colonel Meigs, who was one of the commissioners who negotiated the treaty and was therefore entirely familiar with its intent, caused this tract to be surveyed adjoining the main line of cession, extending from Duck River to the mouth of Hiwassee and north of that line, which placed the tract opposite to andabovethe mouth of Hiwassee, instead of "opposite to and below" the mouth of that river.156
As above stated, while this reserve was ostensibly for the location of a military post and factory or trading establishment, it was really intended for the Cherokee chief Doublehead and other influential persons, as the price of their influence in securing from the Cherokees the extensive cession of land granted by the treaty.
This was sought to be secured by means of a secret article attached to the treaty. This article was reported to the War Department by the treaty commissioners157and made a matter of record, but it was never sent to the State Department nor to the Senate for the advice and consent of that body. After Agent Meigs had erected the Hiwassee garrison buildings on the tract, suit was brought in 1809 by Colonel McLung against the agent for the recovery of the land and mesne profits, basing his claim to title upon a grant from the State of North Carolina, of date long prior to the treaty of 1805. The suit was decided in the plaintiff's favor by the Tennessee courts. Subsequently, in 1838, John Riley made application to the Government for compensation for the loss of his one-third interest in this tract. The question was submitted to the Attorney-General of the United States for his opinion. He decided that the secret article, not having been submitted to the Senate for approval, was not to be considered as any part of the treaty; but that, if the commissioners had any authority for making such an agreement, the defective execution of their powers ought not to prejudice parties acting in good faith and relying on their authority; nevertheless, no relief could be had except through the action of Congress.
This secret article was also applicable to the small tract at and below the mouth of Clinch River, to the 1 mile square at the foot of CumberlandMountain, and to the 1 mile square on the north bank of the Tennessee River, where Cherokee Talootiske lived. The first mentioned tract was also intended for the benefit of Doublehead, who leased it February 19, 1806, to Thomas H. Clark for twenty years. Before the expiration of the lease Doublehead was killed by some of his own people. December 10, 1820, the State of Tennessee assumed to grant the tract to Clark.158
The other two tracts alluded to of one square mile each were intended for Cherokee Talootiske. May 31, 1808, Talootiske perpetually leased his interest in the Cumberland Mountain tract to Thomas H. Clark. September 17, 1816, Clark purchased the interest of Robert Bell in the same tract, the latter deriving his alleged title under a grant from North Carolina to A. McCoy in July, 1793. This tract was also included in a grant from North Carolina to J. W. Lackey and Starkey Donaldson, dated January 4, 1795. The tract on Tennessee River, Talootiske sold to Robert King, whose assigns also claimed the title under the aforesaid grant from North Carolina to Lackey and Donaldson.158
From the phraseology of the treaty in making these several reservations, it was concluded advisable in subsequent negotiations to secure a relinquishment of the tribal title thereto, which was done by the treaty of July 18, 1817.
Held at Washington City, D. C., between Henry Dearborn, Secretary of War, specially authorized thereto by the President of the United States, and certain chiefs and headmen of the Cherokee Nation, duly authorized and empowered by said nation.
1. The Cherokees relinquish to the United States all claim to "all that tract of country which lies to the northward of the river Tennessee and westward of a line to be run from the upper part of Chickasaw Old Fields, at the upper point of an island called Chickasaw Island on said river, to the most easterly head-waters of that branch of said Tennessee River called Duck River, excepting the two following described tracts, viz: one tract bounded southerly on the said Tennessee River, at a place called the Muscle Shoals; westerly, by a creek called Te Kee, ta, no-eh, or Cyprus Creek, and easterly, by Chu, wa, lee, or Elk River or Creek, and northerly by a line to be drawn from a point on said Elk River, ten miles on a direct line from its mouth* * *to a point on the said Cyprus Creek, ten miles on a direct line from its junction withthe Tennessee River. The other tract is to be two miles in width on the north side of Tennessee River, and to extend northerly from that river three miles, and bounded as follows, viz: Beginning at the mouth of Spring Creek and running up said creek three miles on a straight line; thence westerly two miles at right angles with the general course of said creek; thence southerly on a line parallel with the general course of said creek to the Tennessee River; thence up said river by its waters to the beginning, which first reserved tract is to be considered the common property of the Cherokees who now live on the same, including John D. Chesholm, Au, tow, we, and Cheh Chuh, and the other reserved tract, on which Moses Melton now lives, is to be considered the property of said Melton and of Charles Hicks, in equal shares.* * *Also relinquish* * *all right or claim* * *to the Long Island in Holston River."
2. The United States agree to pay, in consideration of the foregoing cession, $2,000 in money upon the ratification of the treaty; $8,000 in four equal annual installments; to erect a grist-mill within one year in the Cherokee country; to furnish a machine for cleaning cotton; and to pay the Cherokee chief, Black Fox, $100 annually during his life.
3. The United States agree to urge upon the Chickasaws to consent to the following boundary between that nation and the Cherokees south of Tennessee River, viz: Beginning at the mouth of Caney Creek near the lower part of Muscle Shoals, and run up said creek to its head, and in a direct line from thence to the Flat Stone, or Rock, the old corner boundary.
4. The United States agree that the claims of the Chickasaws to the two tracts reserved by article 1 of this treaty, on north side of the Tennessee River, shall be settled by the United States in such manner as will secure the title to the Cherokees.
Held at upper end of Chickasaw Island, in Tennessee River, between James Robertson and Return J. Meigs, acting under authority of the Executive of the United States, and a delegation of Cherokee chiefs representing said nation.
This treaty is simply an elucidation of the first article of the treaty of January 7, 1806, and declares that the eastern limits of the tract ceded by the latter treaty "shall be bounded by a line so to be run from the upper end of the Chickasaw Old Fields, a little above the upper point of an island, called Chickasaw Island, as will most directly intersect the first waters of Elk River; thence carried to the great CumberlandMountain, in which the waters of Elk River have their source; then along the margin of said mountain, until it shall intersect the lands heretofore ceded to the United States at the said Tennessee ridge."
In consideration of this concession, the United States agree to pay to the Cherokees $2,000 and to permit the latter to hunt upon the tract ceded until the increase of settlements renders it improper.
Shortly after the conclusion of the treaties of October 25 and 27, 1805, a delegation of Cherokee chiefs and headmen visited Washington. Messrs. Return J. Meigs and Daniel Smith, the commissioners who had negotiated those treaties, accompanied them.
The Secretary of War, Hon. Henry Dearborn, was specially deputized by the President to conduct negotiations with them for the purchase of such portions of their country as they might feel willing to sell, but more especially to extinguish their claim to the region of territory lying to the north and east of Tennessee River and west of the head waters of Duck River.
The negotiations were concluded and the treaty was signed on the 7th of January, 1806,161and the President transmitted the same to the Senate on the 24th of the same month; but that body did not consent to its ratification for more than a year afterwards.162
At the time of the conclusion of this treaty, it was supposed by all the parties thereto that the eastern limit of the cession therein defined would include all of the waters of Elk River, the impression being that the headwaters of Duck River had their source farther to the east than those of the Elk.163
The region of country in question had for many years been claimed by both the Cherokees and the Chickasaws, and the Government of the United States, not desiring to incur the animosity of either of these Indian nations, had preferred rather to extinguish by purchase the claim of each. With this end in view, a treaty had already been concluded with the Chickasaws, under date of July 23, 1805,164resulting in their relinquishment of all claim to the land north of Duck River lying east of the Tennessee and to a tract lying between Duck and Tennessee Rivers, on the north and south, and east of the Columbian Highway, so as to include all the waters of Elk River. It had been the intention that the eastern boundary of the cession made by both these nations should becoincident from the head of Chickasaw Island northward, but when the country came to be examined with a view to running the line, it was found that a strict adherence to the test of the Cherokee cession would leave about two hundred families of settlers on the headwaters of Elk River still within the Indian country.165In the mean time the Chickasaws, having learned that the United States had purchased of the Cherokees their supposed claim to the territory as far west as the Tennessee River, including a large region of country to the westward of the limits of the cession of 1805 by the former, construed that fact as a recognition of the sole and absolute title of the Cherokees thereto, and became in consequence very much excited and angered. They were only pacified by an official letter of assurance from the Secretary of War, addressed to Maj. George Colbert, their principal chief,166wherein he stated that in purchasing the Cherokee right to the tract in question the United States did not intend to destroy or impair the right of the Chickasaw Nation to the same; but that, being persuaded no actual boundary had ever been agreed on between the Chickasaws and Cherokees and that the Cherokees had some claim to a portion of the lands, it was thought advisable to purchase that claim, so that whenever the Chickasaws should be disposed to convey their title there should be no dispute with the Cherokees about it.
The Cherokees by this treaty also relinquished all claim they might have to the Long Island or Great Island, as it was sometimes called, of Holston River. This island was in reality outside the limits of the country assigned the Cherokees by the first treaty between them and the United States, at Hopewell, in 1785, but they had always since maintained that no cession had ever been made of it by them, and it was deemed wise to insert a specific clause in the treaty under consideration to that effect.167
Boundaries to be surveyed.—Early in 1807168the Secretary of War notified Agent Meigs that Mr. Thomas Freeman had been appointed to survey and mark the boundary line conformably to both the treaty of 1805 with the Chickasaws and of 1806 with the Cherokees, as well as to survey the land ceded between the south line of Tennessee and the Tennessee River, lying west of the line from about the Chickasaw Old Fields to the most eastern source of Duck River. He was also advised that General Robertson and himself had been designated to attend and superintend the running of such boundary lines. Furthermore, that itwas desirable that the eastern line of both cessions should be one and the same, for although by the Chickasaw treaty the whole waters of Elk River were included, it was evident their claim to any lands east of the line agreed upon by the Cherokees was more than doubtful; that, therefore, the United States ought not to insist on such a line as would go to the eastward of the one defined in the Cherokee treaty, unless the latter could be prevailed upon to extend the same, in which event they were authorized to offer the Cherokees a moderate compensation therefor.
This led, upon the assembly of the commissioners and surveyor at Chickasaw Old Fields, in the fall of 1807 (for the purpose of surveying and marking the boundary lines in question), to the negotiation of an explanatory treaty with certain of the Cherokee chiefs, on the 11th of September, 1807,169whereby it was agreed that the Cherokee cession line should be extended so far to the eastward as to include all the waters of Elk River and thereby be made coincident and uniform with the Chickasaw line.
Secret article.—The ostensible consideration paid for this concession, as shown by the treaty, was $2,000; but it was secretly agreed that $1,000 and two rifles should be given to the chiefs with whom the treaty was negotiated.170
President Jefferson transmitted this latter treaty to the Senate on the 29th of March, 1808, and having received the consent of that body to its ratification, it was proclaimed by the President on the 22d of April following.