Part 9

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 instructed[133] to 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 directed[134] to 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,[135] when 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. The Cherokees having refused both these propositions, Agent Meigs was directed[136] to secure the granting of the road privilege, if possible, by offering Vann[137] and 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 season[138] the 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.

FURTHER NEGOTIATIONS AUTHORIZED.

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 instructed[139] by 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.,[140] at 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,[141] two persons having been appointed to designate and run the lines 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,[143] addressed 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 1797[144] by 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 reported[146] that 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 reply[147] to 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 thereupon[148] transmitted 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]

[Footnote 142: Commissioner Smith in his letter of October 31, 1804, to the Secretary of War, states that two persons on the part of the United States, to be accompanied by two Cherokee chiefs, had been designated to run the boundaries of this cession. The propriety was then urged on the Cherokees by the commissioners of making a cession of the lands lying between East and West Tennessee. Several days were consumed in urging this proposal, and a majority of the chiefs were probably in favor of it, but Commissioner Smith remarks that a majority, unless it amounts almost to unanimity, is not considered with them sufficient to determine in matters of great interest, particularly in making cessions of lands.]

[Footnote 126: United States Statutes at Large, Vol. VII, p. 228.]

[Footnote 127: United States Statutes at Large, Vol. I, p. 618.]

[Footnote 128: United States Statutes at Large, Vol. II, p. 82.]

[Footnote 129: The President's appointment of these commissioners bore date of June 18, 1801.]

[Footnote 130: This interview occurred, as shown by the Indian Office records, on the 30th of June, 1801, and was adjourned to meet again on the 3d of July.]

[Footnote 131: July 3, 1801. See Indian Office records.]

[Footnote 132: July 16, 1801. See Indian Office records.]

[Footnote 133: July 17, 1801. See Indian Office records.]

[Footnote 134: June 10, 1802. See Indian Office records.]

[Footnote 135: February 19, 1803. See Indian Office records.]

[Footnote 136: May 30, 1803.]

[Footnote 137: "Vann" was a half-breed of considerable ability and shrewdness, and was at this time perhaps the most influential chief among the Cherokees. His home was on the route of the proposed Georgia road, and when the road was constructed he opened a store and house of entertainment for travelers, from which he derived a considerable income.]

[Footnote 138: Letter of Secretary of War to governors of Georgia and Tennessee, dated November 21, 1803.]

[Footnote 139: April 4, 1804.]

[Footnote 140: October 10, 1804. See letter of Daniel Smith to Secretary of War, October 31, 1804.]

[Footnote 141: October 31, 1804.]

[Footnote 143: December 20, 1811.]

[Footnote 144: It is stated in a resolution of the Georgia legislature, passed June 16, 1802, that this line was surveyed by Colonel Hawkins in 1798.]

[Footnote 145: The letter of the Cherokee delegation calling attention to this matter is dated January 19, 1824.]

[Footnote 146: February 6, 1824.]

[Footnote 147: April 15, 1824.]

[Footnote 148: April 30,1824.]

[Footnote 149: United States Statutes at Large, Vol. VII, p. 228.]

TREATY CONCLUDED OCTOBER 25, 1805; PROCLAIMED APRIL 24, 1806.[150]

_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._

MATERIAL PROVISIONS.

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, and the 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.

[Footnote 150: United States Statutes at Large, Vol. VII, p. 93.]

TREATY CONCLUDED OCTOBER 27, 1805; PROCLAIMED JUNE 10, 1806.[151]

_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._

MATERIAL PROVISIONS.

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.

HISTORICAL DATA RESPECTING BOTH TREATIES.

CONTINUED NEGOTIATIONS AUTHORIZED.

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,[152] and, 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 addressed[154] an 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 tree on the north bank of Tennessee River opposite the mouth of Hiwassee River, 73 miles and 166 poles from the beginning.[155]

CONTROVERSY CONCERNING "DOUBLEHEAD" TRACT.

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.[155] One 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 below_ the 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 and _above_ the 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 commissioners[157] and 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 Cumberland Mountain, 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.

[Footnote 151: United States Statutes at Large, Vol. VII, p. 95.]

[Footnote 152: November 2, 1805. See letter of transmittal of Return J. Meigs and Daniel Smith.]

[Footnote 153: United States Statutes at Large, Vol. VII, pp. 93 and 95.]

[Footnote 154: January 10, 1806.]

[Footnote 155: See field notes of Colonel Martin on file in office of Indian Affairs.]

[Footnote 156: Letter of R. J. Meigs to Secretary of War, March 4, 1811.]

[Footnote 157: Letter of Meigs and Smith to Secretary of War, January 10, 1806.]

TREATY CONCLUDED JANUARY 7, 1806; PROCLAIMED MAY 23, 1807.[159]

_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._

MATERIAL PROVISIONS.

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 with the 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."