An Act of the Legislature of Virginia, passed in May, 1779,
"establishing a land office and ascertaining the terms and manner
of granting waste and unappropriated lands," contained, amongst
other exceptions, the following,
viz.:
Page 43 U. S. 77
no entry or location of land shall be admitted within the
country and limits of the Cherokee Indians.
The tract of country lying on the west of the Tennessee River
was not then the country of the Cherokee Indians, and, of course,
not within the exception.
A title may be tried in Virginia, Kentucky, and Tennessee as
effectually upon a caveat as in any other mode, and the parties, as
also those claiming under them, are estopped by the decision.
The boundaries of the Cherokees, as fixed by treaties,
historically examined, and also the nature, limits, and effect of
the grant to Henderson and Company. Whatever lands in Virginia were
not within the exceptions of the act of 1779 were subject to
appropriation by Treasury warrants.
As the rule is settled that the decisions of state courts
construing state laws are to be adopted by this Court, and as the
courts of Kentucky have decided that an entry was required to give
title on a military warrant, in the military district, this Court
decides that the legislative grant of Virginia to her officers and
soldiers would not of itself prevent the statute of limitations of
Kentucky from attaching.
The Kentucky act of 1809 applied to the Chickasaw country on the
west of the Tennessee River as far as treaties would permit, and
upon the extinguishment of the Indian title, this act, together
with all the other laws, was extended over the country.
On 19 December, 1778, the General Assembly of Virginia passed a
joint resolution declaring that a certain tract of country, to be
bounded by the Green River and a southeast course from the head
thereof to the Cumberland Mountains, with the said mountains to the
Carolina line, with the Carolina line to the Cherokee or Tennessee
River, with the said river to the Ohio, and with the Ohio to Green
River, ought to be reserved for supplying the officers and soldiers
of the Virginia line with the respective proportions of land, which
have been or may be assigned to them by the general assembly,
saving and reserving the land granted to Richard Henderson and
Company, and their legal rights to such persons as have heretofore
actually located lands and settled thereon, within the bounds
aforesaid.
In May, 1779, every purchase of lands theretofore made by or on
behalf of the Crown of Great Britain from any nation of Indians
within the limits of Virginia was declared to enure to the benefit
of that commonwealth, and all sales and deeds made by any Indian or
nation of Indians to or for the separate use of any person or
persons were pronounced void.
Page 43 U. S. 78
In May, 1779, also, an act was passed by the general assembly
"for establishing a land office, and ascertaining the terms and
manner of granting waste and unappropriated lands." This act
contained, amongst other things, the following restrictions:
"No entry or location of land shall be admitted within the
country and limits of the Cherokee Indians, or on the northwest
side of the Ohio River, or on the lands reserved by act of assembly
for any particular nation or tribe of Indians, or on the lands
granted by law to Richard Henderson and Company, or in that tract
of country reserved by resolution of the general assembly for the
benefit of the troops serving in the present war, and bounded by
the Green River and southeast course from the head thereof to the
Cumberland Mountains, with the said mountains to the Carolina line,
with the Carolina line to the Cherokee or Tennessee River, with the
said river to the Ohio River, and with the Ohio to the said Green
River, until the further order of the general assembly."
In October, 1779, an act was passed "for more effectually
securing to the officers and soldiers of the Virginia line the
lands reserved to them," &c.
The first section imposed a heavy penalty on settlers who should
not evacuate the reserved lands.
The second ascertained the proportions or quantity of land to be
granted, at the end of the war, to the officers of the Virginia
line on continental or state establishment, or to the officers of
the navy, and it was also provided that where any officer, soldier,
or sailor, shall have fallen or died in the service, his heirs or
legal representatives shall be entitled to, and receive, the same
quantity of land as would have been due to such officer, soldier,
or sailor, respectively, had he been living.
On 18 May, 1780, Colonel George Rogers Clark (under whom the
defendants claim), upon sundry Treasury warrants, made with the
surveyor several entries of land, in all amounting to 74,962 acres,
lying in the then State of Virginia, below the Tennessee River, and
afterwards, said Clark, in like manner, on 26 October, 1780,
amended his said entries,
"to begin on the Ohio at the mouth of the Tennessee River,
running down the Ohio, bounded by the drowned lands of the said
river and waters of the Mississippi, for the quantity of 74,962
acres, in one or more surveys."
In October, 1780, an act passed "for making good the future pay
of the army."
Page 43 U. S. 79
It allowed a major general 15,000 acres of land, and a brigadier
general 10,000.
It entitled the legal representative of any officer who may have
died in service before the bounty of lands granted by that or any
former law, to demand and receive the same in like manner as the
officer himself might have done. And as a testimony of the high
sense the General Assembly of Virginia entertained of the important
services rendered the United States by Major General Baron Steuben,
it was further enacted that 15,000 acres of land be granted to the
said Major General Baron Steuben, in like manner as is hereinbefore
granted to other major generals.
In November, 1781, an act passed "to adjust and regulate the pay
and accounts of the officers and soldiers of the Virginia line"
&c.
The eighth section declared
"That whereas a considerable part of the tract of country
allotted for the officers and soldiers by an act of assembly,
entitled 'An act for establishing a land office,' &c., hath,
upon the extension of the boundary line between this state and
North Carolina, fallen into that state, and the intentions of the
said act are so far frustrated, be it therefore enacted that all
that tract of land included within the Rivers Mississippi, Ohio,
and Tennessee, and the Carolina boundary line, shall be and the
same is hereby substituted in lieu of the lands so fallen into the
said State of North Carolina, to be in the same manner subject to
be claimed by the said officers and soldiers."
The ninth section required the governor, as soon as the
circumstances of affairs would admit, to appoint surveyors for the
purpose of surveying and apportioning the lands theretofore
reserved to the officers and soldiers agreeably to their ranks, in
such manner and in such proportions as were allowed by act of
assembly as a bounty for military services.
The officers were authorized to depute and appoint as many of
their number as they might think proper, to superintend the laying
off the lands, with power to choose the best of the same thus to be
allotted, and point out the same to the surveyors who were required
to make the surveys, and be subject to the orders of the
superintendents throughout the survey.
After the survey, the portions of each rank were to be numbered,
and the officers and soldiers were to proceed to draw lots
according to their respective ranks, and to locate as soon as they
thought proper.
The twelfth section provided
"That the bounties of land given
Page 43 U. S. 80
to the officers and soldiers of the Virginia line in continental
service, and the regulations for the surveying and appropriating
the same, shall be extended to the state officers."
In May, 1782, an act was passed, entitled "An act for providing
more effectual funds for the redemption of certificates granted the
officers and soldiers raised by this state."
The seventh section provided that
"Whereas it is necessary that the number of claims to any part
of the lands appropriated for the benefit of the said officers and
soldiers should be speedily ascertained: be it therefore enacted
that all persons having claims as aforesaid, be required, and they
are hereby directed, to transmit authenticated vouchers of the same
to the war office, on or before the first of January next,"
and those without the state were required to do the same on or
before the first of June.
The eighth section directed the register of the land office to
grant, to the officers and soldiers, warrants for the lands
allotted them, upon producing a certificate of their respective
claims from the commissioner of war.
The ninth section enacted "That any officer or soldier who hath
not been cashiered or superseded, and who hath served the term of
three years successively, shall have an absolute and unconditional
title to his respective apportionment of the land appropriated as
aforesaid."
The tenth section contained this proviso,
"Provided always, and it is hereby enacted, that no surveyor
shall be permitted to receive any location upon any warrant for
lands within the country reserved for the officers and soldiers,
until the apportionment and draft for the same, as directed by the
act entitled 'An act to adjust and regulate the pay and accounts of
the officers and soldiers of the Virginia line.'"
On 18 December, 1782, a warrant was issued to Robert Porterfield
(the complainant), as the heir of Colonel Charles Porterfield,
deceased, for 6,000 acres of land, and on 13 June, 1783, a warrant
was issued to Thomas Quarles for 2,666 2/3 acres, which warrant was
afterwards assigned to Porterfield, the complainant.
In October, 1783, an act was passed, entitled, "An act for
surveying the lands given by law to the officers and soldiers of
continental and state establishments," &c.
For the better locating and surveying the lands, given by law
to
Page 43 U. S. 81
the officers and soldiers on state and continental
establishments, it enacted that it should be lawful for the
deputation of officers, consisting of Major General Peter
Muhlenberg and others, who are enumerated, to appoint
superintendents on behalf of the respective lines, or jointly, for
the purpose of regulating the surveying of the lands appropriated
by law as bounties for the said officers and soldiers. That the
deputations should have power to appoint two principal surveyors;
that the holders of land warrants for military bounties, given by
law as aforesaid, should, on or before 15 March thereafter, deliver
the same to the principal surveyors &c.
The second section declared that priority of location should be
by lot under the direction and management of the principal
surveyors and superintendents. That the warrants delivered to the
principal surveyors before 10 March, should be surveyed first, and
those subsequently delivered, in the order of priority.
The third section required the location and surveys to be made
under the direction of the superintendents.
The fourth section directed where, and how, the lands were to be
surveyed. Those lying on the Cumberland and Tennessee were to be
surveyed first, and afterwards those on the northwest side of the
Ohio River, until the deficiency of all military bounties, in
lands, should be fully and amply made up. "Whatever lands may
happen to be left," the act declares,
"within the tract of country reserved for the army, on this side
the Ohio and Mississippi, shall be saved, subject to the order and
particular disposition of the Legislature of this state."
And the governor was required to furnish the superintendents
with such military aid as he might judge necessary to carry the act
into effect. The aid was to be ordered from the Kentucky country,
and was not to exceed a hundred men.
In the spring of 1784, the superintendents repaired to Kentucky.
The found the country below the Tennessee in possession of the
savages, who threatened resistance. The aid expected from Kentucky
was not furnished. The attempt to enter and survey the lands was,
consequently, abortive. But the superintendents proceeded to
determine the priority of locations by lot; and entries were made
on the books of the surveyors, to the extent of some two or three
hundred thousand acres.
Porterfield's entries were of the number. They were made under
the authority of the two warrants which have been already
stated.
In June, 1784, two surveys were made for Clark by the
Surveyor
Page 43 U. S. 82
of Lincoln County, under the authority of the warrants already
stated as land office Treasury warrants. One of these surveys was
for 36,962 acres, and the other for 37,000 acres.
In August, 1784, Porterfield made his entries.
Caveats were entered against the surveys of Clark, which
prevented patents from being issued. These were entered in the
district court of the then District of Kentucky, by the
superintendents of the Virginia state line, and were not disposed
of until after the separation of Kentucky from Virginia.
In October, 1784, the Legislature of Virginia interposed to
prevent the military claimants from taking possession of the lands.
The preamble to the act stated,
"That it had been represented to the present general assembly
that the taking possession of, or surveying the lands in the
western territories of this state, which have been granted by law
as bounties to the officers and soldiers of the Virginia line will
produce great disturbances,"
and the governor, with the advice of council, was authorized to
suspend, for such time as he may think the tranquility of the
government may require, the surveying or taking possession of those
lands that lie on the northwest side of the River Ohio or below the
mouth of the River Tennessee, and which have been reserved
&c.
On 6 January, 1785, Governor Henry accordingly issued his
proclamation to the effect authorized by this act.
In November, 1785, and January, 1786, three treaties were made
with the Indians at Hopewell, by commissioners on the part of the
United States, the first, in November, with the Cherokees, and the
other two in the following January with the Choctaws and
Chickasaws. That with the Choctaws bears date on the 3d, and that
with the Chickasaws on 10 January, 1786. By the treaty with the
Cherokees, the boundary was established as follows: beginning at
the mouth of Duck River, on the Tennessee, thence running northeast
to the ridge dividing the waters running into Cumberland from those
running into the Tennessee; thence eastwardly along the said ridge
to a northeast line to be run which shall strike the River
Cumberland forty miles above Nashville; thence along the said line
to the river; thence up the said river to the ford where the
Kentucky road crosses the river; thence to Campbell's line, near
Cumberland Gap, &c. The treaty with the Chickasaws established
the following boundary: beginning on the ridge that divides the
waters running into the Cumberland from those running into the
Tennessee
Page 43 U. S. 83
at a point in a line to be run northeast which shall strike the
Tennessee at the mouth of Duck River; thence running westerly along
the said ridge till it shall strike the Ohio; thence down the
southern bank thereof to the Mississippi; thence down the same to
the Choctaw line of Natchez district; thence along the said line,
or the line of the district, eastwardly, as far as the Chickasaws
claimed, and lived, and hunted on, the twenty-ninth of November,
one thousand seven hundred and eighty-two.
The fourth article of the treaty with the Chickasaws was as
follows:
"If any citizen of the United States, or other person, not being
an Indian, shall attempt to settle on any of the lands hereby
allotted to the Chickasaws to live and hunt on, such person shall
forfeit the protection of the United States of America; and the
Chickasaws may punish him or not, as they please."
In 1793, the caveat which had been filed against Clark by the
superintendents of the Virginia state line was dismissed in
Kentucky pursuant to the opinion of the Court of Appeals of
Virginia given in 1791.
In 1794, the General Assembly of Kentucky passed an act
requiring the register of the land office to receive, and issue
grants on, all certificates of survey which were in the register's
office of Virginia at the time when the separation took place, and
on which grants had not issued.
On 15 September, 1795, grants were issued by Kentucky to Clark
for the 73,962 acres.
In 1809, the Legislature of Kentucky passed an act, the second
section of which declares,
"That no action at law, bill in equity, or other process, shall
be commenced or sued out by any person or persons claiming under,
or by, and adverse interfering entry, survey, or patent, whereby to
recover the title or possession of such land from him or her who
shall hereafter settle on land to which he or she shall, at the
time of such settlement made, have a connected title in law or
equity, deducible of record from the commonwealth, and when such
settler shall have acquired such title or claim after the time of
settlement made, the limitation shall begin to run only from the
time of acquiring such title or claim, but within seven years next
after such settlement made &c."
In October, 1818, a treaty was made between the United States
and the Chickasaws, by which the Chickasaws ceded to the United
States all the land between the Tennessee, Ohio, and
Mississippi
Page 43 U. S. 84
Rivers and a line therein described on the south, which session
included the lands in controversy.
On 22 December, 1818, the Legislature of Kentucky passed an act
prohibiting any entry or survey from being made "on any portion of
the land lying within the late Chickasaw Indian boundary."
In July, 1819, William Clark, the assignee of George Rogers
Clark, the patentee, took possession of the land and placed tenants
upon it.
On 14 February, 1820, the Legislature of Kentucky passed an act
provided for the appointment of a superintendent to survey the
lands west of the Tennessee River.
On 26 December, 1820, the military surveyor was permitted to
survey the entries that had been made prior to the year 1792, when
Kentucky became an independent state. Porterfield's surveys were
commenced and continued from time to time until 1824 and 1825. Five
surveys were made at different times during this period, and five
patents were issued in conformity with them, which bear date in the
last-mentioned years. In May, 1824, Porterfield took possession, by
his tenants, of several of the tracts patented to him, and leased
them for five years.
In October, 1825, these tenants were turned out of possession by
writs of forcible entry and detainer.
Some conveyances and legal proceedings occurred during the
period of which we have spoken, but, as they have no bearing upon
the questions before the Court in the present case, they have not
been mentioned in the statement.
In July, 1836, Porterfield filed his bill in the Circuit Court
of the United States for the District of Kentucky, sitting as a
court of equity, which, together with two amended bills and a bill
of revivor, after having brought into court various parties who
were supposed to have an interest in the matter, presented the
following claim, charges, and prayer.
The bill, after setting forth the title of the complainant, as
founded upon the patents of 1824, 1825, and 1826, and alleging that
the possession of the country by the Indians was the cause of the
delay between the entries and surveys, charged that the defendant,
Clark, had no right to make an entry or location on any lands west
of the Tennessee River or on the lands included between the Rivers
Ohio, Tennessee and Mississippi, and the North Carolina line on
land office Treasury warrant certificates; that by law he, Clark,
was expressly
Page 43 U. S. 85
prohibited from making the said entry or location on land within
the country and limits of the Cherokee Indians, or the lands
reserved by the Virginia assembly for any particular nation or
tribe of Indians, or in that tract of country reserved by
resolution of the General Assembly of the State of Virginia for the
benefit of the troops serving in the then existing war between
Great Britain and the United States of America. The bill avers that
the entry of George Rogers Clark was made on lands reserved by
resolution of the Assembly of Virginia for the troops then in the
service of the United States; that it was made on lands reserved by
law for the Indian tribes, and upon lands within the country and
limits of the Cherokee Indians. The bill further charges that the
said warrants were by law prohibited from being located on any
lands that were not waste and unappropriated; that at the time of
the entries, the Indian title to said lands west of the Tennessee
River and included within the Rivers Ohio, Mississippi, Tennessee,
and the North Carolina boundary line, was not extinguished. The
bill further charges that the entry of Clark is not precise and
special, but vague, uncertain, and void because it called to begin
on the Ohio at the mouth of the Tennessee River, running down the
Ohio, bounded by the drowned lands of said river and waters of the
Mississippi for the quantity of 74,962 acres in one or more
surveys, and moreover that the person who in fact made such survey
was not an authorized and legally appointed surveyor. It then
charges that the titles of Clark and all who claim under him are
void, and prays for a decree compelling them to release their
claims to the complainant, and account to him for the rents and
profits of the land.
A supplemental bill and answer were afterwards filed, but the
matters therein stated are not before the Court in the
consideration of this case, the charges made in the bill being
denied in the answer and no proof being offered to sustain
them.
The defendants all answered, but as they all rely on the same
matters of defense, it is not material to notice any of the answers
but that of William Clark. He contests throughout the right of
Porterfield to relief; denies that any part of the land in contest
was possessed by Porterfield at the time of filing his bill; on the
contrary, he alleges that by his tenants he had for more than seven
years next before the filing of the bill been in full and exclusive
possession of all the land in contest, claiming and holding the
same under the title derived from George Rogers Clark, and he
therefore pleads and
Page 43 U. S. 86
relies upon his possession and the statute of Kentucky, limiting
the time of bringing suits in such cases to seven years, in bar of
the relief sought by Porterfield. He insists that at the date of
Clark's entries there was no law prohibiting the location of
Treasury warrants below the Tennessee River, and that the entries
were made on land subject to appropriation and in conformity with
law; that they possess the certainty and precision of valid
entries, and were afterwards legally surveyed in conformity with
law, upon which surveys patents finally issued according to law,
and that his title is not only elder in date, but superior in law
and equity to that of Porterfield.
Among the other matters given in evidence in this case were
copies of some original papers found in the State Paper Office in
London relating to the boundary lines adopted at various times
between the white people and that Indians, the substance of which
is as follows:
1. Deed (or treaty) with the Cherokees dated 13 June, 1767,
which recited that a previous treaty had been made on 20 October,
1765, directing the line to be run from where the South Carolina
line terminated, a north course into the mountains, whence a
straight line should run to the lead mines of Colonel Chiswell on
the Great Kenhawa River, and that the commissioners had found
themselves unable to run the line further than the top of a
mountain called Tryon Mountain, on the headwaters of Pacolet Creek
and White Oak Creek, therefore the present treaty established the
following: running from the top of Tryon Mountain aforesaid,
beginning at the marked trees thereon, by a direct line to
Chiswell's mines in Virginia.
2. Treaty between John Stuart, on behalf of his Majesty the King
of England and the upper and lower Cherokee nations, concluded at
Hard Labor, on 13 October, 1768, establishing the following
boundary: from a place called Towahihie, on the northern bank of
Savannah River, a north fifty degrees east course in a straight
line to a place called Demesses Corner, or Yellow Water; from
Demesses Corner or Yellow Water, a north fifty degrees east course,
in a straight line to the southern bank of Reedy River at a place
called Waughoe, or Elm Tree, where the line behind South Carolina
terminates; from a place called Waughoe or Elm Tree on the southern
bank of Reedy River, a north course in a straight line to a
mountain called Tryon Mountain, where the great ridge of mountains
becomes impervious; from Tryon Mountain in a straight line to
Chiswell's mine, on the eastern bank of the Great Conhoway
Page 43 U. S. 87
(Kenhawa) River, about a N. by E. course; and from Chiswell's
mine, on the eastern bank of the Great Conhoway, in a straight
line, about a north course, to the confluence of the Great Conhoway
with the Ohio.
3. Treaty with the Six Nations, concluded at Fort Stanwix, on 5
November, 1768, in which the sachems and chiefs assert the
ownership of, and by which they sold to King George III, all the
land bounded by the following line: beginning at the mouth of the
Cherokee, or Hogohege (Tennessee) River, where it empties into the
River Ohio, and running from thence upwards along the south side of
the said River Ohio, to Kittanning, which is above Fort Pitt; from
thence by a direct line to the nearest fork of the west branch of
the Susquehanna &c., and extended eastward from every part of
the said line &c.
4. Instructions from Lord Botetourt to Col. Lewis and Dr.
Walker, dated Williamsburg, Dec. 20, 1768, directing them to
proceed to Mr. Stuart, superintendent of the Southern District, and
represent to him that the line from Chiswell's mine to the mouth of
the Great Kenhaway contracts the limits of the colony too much, and
saying that
"If Virginia had been consulted upon this line, there would have
been an opportunity of showing that the Cherokees had no just title
to the lands between the supposed line and the mouth of the
Cherokee River, which in fact were claimed, and have been sold to
his majesty, by the northern nations at the late treaty at Fort
Stanwix."
5. Report of Lewis and Walker saying that they had met with a
portion of the Cherokee chiefs, who would use their influence to
obtain a new boundary.
6. A memorial from the House of Burgesses of Virginia to the
governor praying that a new boundary line may be adopted and
suggesting one from the western termination of the North Carolina
line in a due west direction to the River Ohio. This memorial was
sent to England by the governor on 18 December, 1769.
7. An address from the House of Burgesses to the governor and
his answer upon the same subject.
8. Resolutions of the House of Burgesses, 16 June, 1770,
requesting that a treaty be made with the Cherokees for the lands
lying within a line to be run from the place where the North
Carolina line terminates, in a due western direction, till it
intersects Holstein River, and from thence to the mouth of the
Great Kenhawa.
Page 43 U. S. 88
9. Letter from Lord Hillsborough to Lord Botetourt, dated at
White Hall, State Paper Office, October 3, 1770, saying,
"I am convinced from the fullest consideration that the
extension of the boundary line, as proposed by the address of the
House of Burgesses in December last, would never have been
consented to by the Cherokees."
10. Treaty with the Cherokees, made at Lochaber, in the Province
of South Carolina, on 18 October, 1770, adopting as a boundary a
line beginning where the boundary line between the province of
North Carolina and the Cherokee hunting grounds terminates and
running thence in a west course to a point six miles east of Long
Island, in Holstein's River, and thence in a course to the
confluence of the Great Conhawa and Ohio Rivers.
11. Letter from Lord Dunmore to the Earl of Hillsborough, dated
at Williamsburg, March, 1772, saying that the boundary line between
the colony and the hunting grounds of the Cherokee Indians had been
run by Mr. Donelson and others, but that it had not been run
exactly according to instructions, taking in a larger tract of
country than by those instructions they had permission to include;
that the commissioners had continued, from the point on Holstein
River where it is intersected by the division line of Virginia and
North Carolina, down that river a small distance to a place from
whence they had an easier access than anywhere else to be found to
the head of Louisa (or Kentucky) River.
There were also given in evidence, sundry papers from the State
Department, verified, as copies, by the certificate of Fletcher
Webster, Esq., Acting Secretary of State, the substance of which
was as follows:
1. A protection for the Great Warrior of Chote, dated on 13 May,
1771, at Toguch, and signed by Alexander Cameron, deputy
superintendent. It states that he intends to hunt from thence to
Long Island and thereabouts, until the arrival of the Virginia
commissioners, who are appointed by that government to run the
boundary line, and expresses a hope that if he should meet with any
hunting parties, they would remove from the lands which were
reserved for the Cherokees.
2. A talk from Alexander Cameron, dated at Lochaber, 5 February,
1772, saying to the Indians that he had informed the Governor of
Virginia that the course of the boundary line to where they left it
on the Cedar River was approved by all the chiefs, and that he
had
Page 43 U. S. 89
reminded Colonel Donelson of his promise of sending a few
presents to the Long Island, upon Holston, in the spring.
3. A letter from John Stuart to Ouconestotah, great war chief of
the Cherokee nation, saying that he sent him therewith a copy of
the boundary agreed upon, and that persons were appointed to mark
it immediately.
4. A treaty of cession to his majesty by the Creeks and Cherokee
Indians of certain lands to the south, dated on 1 June, 1773, at
Augusta, and a talk to the Cherokees dated at Augusta on 3 June,
1773, reminding them that in 1771 they had marked a line, dividing
their hunting grounds from what they gave up to his majesty in the
Province of Virginia, and which fell in upon the head or source of
Louisa (now Kentucky) River, and down the stream thereof to its
confluence with the Ohio, and relinquished all claims or
pretensions to any lands to the northeastward of said line, and
informing them that his Majesty had erected a new province whose
boundaries were -- beginning on the south side of the River Ohio,
opposite the mouth of Sciota, thence, southerly, through the pass
in the Anasiota Mountains, to the south side of the said mountains;
thence along the south side of the said mountains northeastwardly
to the fork of the Great Kenhawa made by the junction of Greenbriar
River and the New River; thence along the Greenbriar River, on the
easterly side of the same, unto the head or termination of its
northeasterly branch thereof; thence easterly to the Alleghany
Mountains; thence by various courses to the southern and western
boundary line of Pennsylvania, and along the western boundary line
until it shall strike the Ohio River, and thence down the said
River Ohio to the place of beginning.
5. Talk from Lord Dunmore to the Little Carpenter and chiefs of
the Cherokee nations of Indians, dated at Williamsburg on 23 March,
1775, warning them not to grant land to Henderson or any other
white people.
6. A letter from William Preston to the chiefs of the Cherokee
nation, dated at Fincastle County on 12 April, 1775, saying that he
was commanded by Lord Dunmore to send the letter by a special
messenger, who was to read it to the council. The letter
remonstrates against the sale which they had lately made of that
great tract of land on the Ohio without the advice or consent of
the King, and says that, by various treaties, the land had been the
property of the King for upwards of thirty years.
Page 43 U. S. 90
7. A letter from Patrick Henry Jr. to Oconostotah, dated 3
March, 1777, assuring the Cherokees of the protection of Virginia
and expressing an expectation that he and his warriors and headmen
will not fail to meet Colonel Christian, Colonel Preston, and
Colonel Shelby, at the fort near the Great Island to confirm the
peace.
8. Articles of peace made at Fort Henry, near the Great Island,
on Holston's River on 20 July, 1777, between the commissioners from
the Commonwealth of Virginia, of the one part, and the chiefs of
that part of the Cherokee nation called the Overhill Indians, of
the other part.
The fifth article recites that as many white people have settled
on lands below the boundary between Virginia and the Cherokees,
commonly called Donelson's Line, it is necessary to fix and extend
a new boundary and purchase the lands within it. The new line
begins at the lower corner of Donelson's Line on the north side of
the River Holston, and runs down that river according to the
meanders thereof and bending thereon, including the Great Island,
to the mouth of Claud's Creek, being the second creek below the
warrior's ford at the mouth of Carter's Valley; thence running a
straight line to a high point on Cumberland Mountain, between three
and five miles below or westward of the great gap which leads to
the settlement of the Kentucky. This last-mentioned line is to be
considered as the boundary between Virginia and the Cherokees.
9. A letter from Patrick Henry, dated at Williamsburg on 15
November, 1777, to Oucconastotah saying that his heart and the
hearts of all the Virginians are still good towards the
Cherokees.
10. A letter from Patrick Henry to the Cherokees saying that he
is informed that the line which was run was not convenient to the
Cherokees; that they wanted it to come higher up the River Holston,
and that he has given orders to have it altered a few miles, to
take in the fording place into their land.
There was also given in evidence the deposition of Peter Force,
an inhabitant of the City of Washington, who had been for many
years engaged in collecting authentic papers connected with the
history of the United States, from the settlement of the several
colonies (including Virginia) to the adoption of the federal
Constitution, under a contract with the Secretary of State, made by
authority of an act of Congress. Mr. Force gave it as his opinion,
after an examination of books, maps, treaties, and other authentic
papers, that the
Page 43 U. S. 91
country between the Tennessee, Ohio and Mississippi Rivers and
the boundary line between what is now the State of Kentucky and
Tennessee belonged to the Cherokees previous to the year 1799; that
all the maps which he had found designated the Cherokee country as
being north of the Chickasaws, extending westward to the
Mississippi and northward to the Ohio, and that in no instance had
he found the lands above described to be marked upon any map as
belonging to any other tribe of Indians than the Cherokees. Mr.
Force annexed to his deposition copies of sundry papers relating to
a treaty made in 1730, between the Lords commissioners for trade
and plantations and the Cherokees -- together with the treaty
itself, which was executed in England by some of the chiefs who had
gone there.
Exceptions were filed to the deposition of Peter Force, but they
were overruled, and at a subsequent stage of the cause these
exceptions were withdrawn.
On 13 November, 1841, after hearing an argument for three
successive days, the circuit court dismissed the bill with costs,
and the complainant appealed to this Court.
Before the cause was argued, the following paper was filed:
On the question whether the lands in controversy were regarded
as Chickasaw or Cherokee lands, the counsel for the appellants hope
they will be at liberty to refer to an original official letter
from Governor Thomas Jefferson to Gen. Clark dated 29 January,
1780, and now on the files of the Chancery Court at Richmond in a
suit there depending between the administrator of Gen. George
Rogers Clark and the commonwealth for the settlement of their
accounts. This letter is wholly upon the subject of the public
service, and, amongst other things, upon the subject of erecting a
fort near the mouth of the Ohio. It contains the following
passages:
"From the best information I have, I take for granted that our
line will pass below the mouth of Ohio. Our purchases of the
Cherokees hitherto have not extended southward or westward of the
Tanissee. Of course the little tract of country between the
Mississippi, Ohio, Tanissee, and Carolina line, on which your fort
will be, is still to be purchased from them before you can begin
your work. To effect this, I have written to Major Martin our
Cherokee agent, of which letter I enclose you a copy."
(This extract is from the first page of the letter.)
"I must also refer to you whether it will be best to build the
fort
Page 43 U. S. 92
at the mouth of Ohio, before you begin your campaign, or after
you shall have ended it. Perhaps, indeed, the delays of obtaining
leave from the Cherokees or of making a purchase from them may
oblige you to postpone it till the fall."
(This extract is from the sixth page of the letter.)
It is proper to state that this letter mentions the Chickasaws
as a hostile tribe.
See the letter, bottom of page 4 and
top of 5.
Page 43 U. S. 106
MR. JUSTICE CATRON delivered the opinion of the Court.
For the principal facts, we refer to the statement of the
reporter.
The first question in order presented by the bill depends on the
validity of the complainant's title. But as that of the defendants
is the elder, and Clark's entries not objected to on the ground
that they are void for want of specialty, and the survey and patent
founded on them being in conformity to the locations, we will at
once proceed
Page 43 U. S. 107
to the main question presented by the bill -- that is, whether
Clark's entries were made in the Cherokee country or limits, and
therefore void for this reason as against Porterfield's subsequent
entries, the first being on Treasury warrants and the last on
military warrants. The act of 1779, by virtue of which Clark's
entries were made, excepted the Cherokee lands from location, and
if the land in dispute (in October, 1780) was such, then Clark's
entries are void; if not, they are valid; and this fact being found
either way will end the controversy. We are called on to find the
fact, and as it has been agitated in regard to this title for
nearly sixty years, uncommon care has been bestowed on the question
and a second argument been ordered.
The defendant's title came before this Court in
Clark
v. Smith, 13 Pet. 200, when the entries of Clark
were pronounced special and the survey and patent declared to
conform to the entries, and in which case it was also held that it
was immaterial whether the entry was made on the lands claimed by
the Chickasaws or not; it could only be obnoxious to the provisions
of the statute of 1779 if made on lands reserved from location by
that act, and the land of the Chickasaws were not thus reserved. So
it had been decided by the Court of Appeals of Virginia in
Marshal v. George R. Clark in 1791, Hughes 40, and which
was affirmed in
Rollins v. Clark by the Court of Appeals
of Kentucky in 1839, 8 Dana 26.
The reservation is "No entry or location of land shall be
admitted within the country and limits of the Cherokee Indians."
The bill alleges the entry of Clark to be within the excepted
lands.
The first inquiry we will make is how far the contest stands
affected by former decisions, made by the Court of Appeals of
Virginia, by this Court, and by the Court of Appeals of
Kentucky.
As to patents made by Kentucky on warrants issued by that state
after the Chickasaw title was extinguished for lands west of
Tennessee River, the case of
Clark v. Smith as an
adjudication is direct to the point that Clark's patent is superior
to such titles. This may be true and yet Clark's entry be void, as
Kentucky in 1794
"not only authorized but made it the imperative duty of the
register to issue a patent on the certificate of survey, as he
seems to have done in obedience to the act. We cannot admit that a
patent thus issued pursuant to the authority, and mandate of the
law can be deemed void merely because the entry of the patentee was
invalid."
We
Page 43 U. S. 108
use the language of the Court of Appeals of Kentucky, in the
case of
Rollins v. Clark, 8 Dana 28.
If Clark's entry was made, however, on lands reserved from
location by the act of 1779, then it is void because the act did
not open the land office for such purpose, nor extend to the
excepted lands, and whether the exception reserving the Cherokee
country, included the lands west of Tennessee River, was in 1779,
and is now, a matter of fact, as already stated, for the court to
ascertain. This fact is not concluded by the case of
Clark v.
Smith, although materially influenced by it. That
adjudication, so far as this question was involved in it, is
founded mainly on the case of
Thomas Marshall, George Mater,
and others, superintendents of the Virginia state line, v. George
Rogers Clark, Hughes, 39, in a suit by caveat to restrain
Clark from obtaining a patent on the survey founded on his entries,
two entries having been included in it. The cause was tried before
the Court of Appeals of Virginia in 1791, on the caveat filed in
1786. The first fact agreed by the parties and submitted to the
court was whether the locations of Clark could be made west of the
Tennessee River on Treasury warrants -- or in other words whether
that country was reserved from location as being the country and
limits of the Cherokee Indians. The court held
"the solution of the question to depend on a matter of fact to
be decided on evidence, and none such appearing, or being supplied
by any law, charter, or treaty, produced or suggested, which
ascertained what the country or limits of the Cherokees was in
1779, no solution of the question could be given except that it was
the opinion of the court that the party whose interest it was to
extend the exception to the land in dispute must prove the land to
be within the description of that exception."
All the other questions were also decided against the caveators,
and the caveat ordered to be dismissed. The judgment in effect
ordered that a patent should issue to Clark on his survey, and in
fact adjudged the better right to be in him. A suit by caveat was
the ordinary mode of trying titles in Virginia before a patent
issued, and was equally conclusive on the parties as if it had been
by bill in equity; this is the settled doctrine of Kentucky, and
also Tennessee, and must be so from the nature of the suit. The
power and jurisdiction of the courts to try titles in this manner,
are conferred by statutes, which are very similar in the states
named, the practice as to the mode of proceeding, and the effect of
the judgment being the same in each. For evidence of this we refer
to the many
Page 43 U. S. 109
cases reported by Hughes and to the case of
Peck v.
Eddington, 2 Tenn., 331;
Bugg v. Norris, 4 Yerg. 326,
and
Peeler and Campbell v. Norris, 4
id. 331.
"The powers of the courts [it is said in
Bugg v.
Norris,] will be found coextensive with any conflicting rights
two claimants may have, where the defendant is attempting to
perfect his entry into a grant by survey."
Each party had the privilege in the case of the superintendents
against Clark to submit such facts as were material to sustain his
right; if not agreed, an issue could be asked and a jury
empanelled, to find on the contested facts. They were all agreed.
On these the court pronounced on the law of the case and determined
who had the better claim to the land, and awarded to him the
patent.
The plaintiff or defendant may introduce more or less evidence
to sustain his claim; but if he fail, he cannot be heard to say, in
a second suit, his principal evidence of title was not introduced
in the first, and therefore he will try the same issue again in
another form of proceeding on different and better evidence. 4
Yerg. 337-8;
Outram v. Morewood, 3 East 357.
The patent being awarded to Clark, it was adjudged that he
should take the land in fee, and the whole legal estate and seizin
of the commonwealth in the lands. Had the judgment been, that no
patent issue to George Rogers Clark, then he would have been
estopped to controvert the superior right of the superintendents.
If he would have been estopped, so were the superintendents, on the
judgment being the other way. 4 Yerg. 333. Estoppels are mutual. 4
Com.Dig. Estoppel, B. They run with the land, into whose hands
soever the land comes, by which the parties and all claiming under
them, as well as the courts are bound; were it otherwise,
litigation would be endless. Such is the established rule.
Trevinan v. Lawrence, 1 Salk. 276, reported also by Ld.
Raymond.
The superintendents were therefore estopped by the judgment of
the Court of Appeals of Virginia from averring that Clark's entry
lay within the Cherokee country, and how was Porterfield affected
by that judgment?
By the act of November, 1787, opening the military lands to
location, those west of Tennessee River inclusive, the officers
were authorized to appoint so many of their number superintendents
as they might deem proper to locate (after selections by survey had
been made) all the claims of the officers and soldiers. For this
purpose they were given authority to select the lands and
distribute them among
Page 43 U. S. 110
the claimants according to their respective ranks. The Act of
December, 1782, makes more distinct and further provision and gives
increased power to the superintendents. The entire country reserved
to the uses of the military claimants was surrendered to the
possession of the superintendents, as trustees, from which they
might select any lands, to comply with the purposes of the trust;
as such trustees in possession, they had the right to file the
caveat against Clark after they had selected the land, or any part
of it (located by him), for the use of the officers and soldiers.
When selected and surveyed, then the surveys were to be drawn for
and allotted as chance might determine, after which the party thus
entitled was authorized to enter of record by an ordinary location,
the number he drew in the lottery. Porterfield drew the lands set
forth in the bill; to protect his entries, the caveat was filed, as
well as to protect others set forth in the record adjoining
Porterfield's, and also to maintain the general right of all the
claimants entitled exclusively to locate in the reserved lands.
As Clark would have been estopped to deny the right of the
superintendents (had they been successful) to appropriate the land
in dispute, it is difficult to say that Porterfield, for whose
benefit especially the caveat suit was prosecuted by those acting
for his use, is not also estopped on the principle of mutuality. It
is hardly possible to separate the right of those acting as
trustees from that of the
cestui que trust; still, as the
proceedings and judgment in the suit by caveat are not set up as a
defense in any manner, we can only look to them as furnishing
cogent reasons that it could not be proved during the time the
caveat was pending that the lands west of the Tennessee River were
part of the Cherokee country, in 1779.
In the case of
Clark v. Smith, no evidence was produced
to the court other than that furnished by the treaties with the
Cherokees and Chickasaws, together with the history of the country,
and which were existing and open to the Court of Appeals of
Virginia in 1791, except the treaties made since that time, and
these we thought had no material influence on the question; and
therefore on the evidence then before us it was declared that
Clark's title was not open to controversy on the ground (then, as
now) assumed that the land when located lay within the country of
the Cherokee Indians.
Does the record before us and the other matters adduced furnish
additional evidence to change the result of that conclusion? As it
does not appear in the cases referred to what the existing
treaties,
Page 43 U. S. 111
contracts, and intercourse with the Cherokees had been in 1791,
a reference will be made to them so far as they may affect this
controversy. During the British colonial government of Virginia, by
different treaties previous to 1777 the eastern limits of the
Cherokees commenced six miles above the Long Island in Holston
River (now in the County of Sullivan, Tennessee), from thence to
Cumberland Gap; then to the head of the Kentucky River, and down
the same to the Ohio. This line ran down the Cumberland Mountain
from Holston River to the gap, and included in part the great road
from Virginia to Kentucky passing through Cumberland Gap. The
citizens of Virginia settled on the road, and west of the line;
irritation on part of the Cherokees was the consequence. In July,
1777, the Long Island treaty was made, at Fort Henry, standing at
the island. By that treaty, the Indian line was removed further
west, commencing six miles above the island, and running with the
river to the mouth of Cloud's Creek; being the second creek below
Rogersville, in Hawking County, Tennessee, and a few miles below
that place; thence to a high point of Cumberland Mountain a few
miles below the gap; here the line stops, and it was the only one
between Virginia and the Cherokees existing in 1779 (when the land
law was passed), except the boundaries established by the grant to
Richard Henderson and Company, dated in March, 1776; the extent and
effect of which, will be presently seen. As the treaty of 1777 has
a most important bearing on the facts hereafter stated, its
material parts are given.
"Article 3d. That no white man shall be suffered to reside in or
pass through the Overhill farms without a proper certificate,
signed by three magistrates in the County of Washington, in
Virginia, or in the County of Wataugo, in North Carolina, to be
produced to, and approved by the agents at Chota. Any person
failing or neglecting to comply herewith, is to be apprehended by
the Cherokees and delivered to the said agent, who they are to
assist in conducting to the commanding officer at Fort Henry, and
the said Cherokees may apply to their own use all the effects such
persons may be in possession of at the time they are taken in the
nation. And should any runaway negroes get into the Overhill farms,
the Cherokees are to secure them until the agent can give notice to
the owner, who, on receiving them are to pay such a reward as the
agent may judge reasonable."
"Article 4th. That all white men residing in or passing through
the Overhill Country, properly authorized or certified as
aforesaid,
Page 43 U. S. 112
are to be protected in their persons and property, and to be at
liberty to remove in safety when they desire it. If any white man
shall murder an Indian, he shall be delivered up to a magistrate in
Washington County, to be tried and put to death according to the
laws of the state. And if any Indian shall murder a white man, the
said Indian shall be put to death by the Cherokees, in the presence
of the agent at Chota, or two magistrates in the County of
Washington."
"Article 5th. That as many white people have settled on lands
below the boundary between Virginia and the Cherokees, commonly
called Donelson's Line, which lands they have respectively claimed
in the course of this treaty, and which makes it necessary to fix
and extend a new boundary, and to make a just and equitable
purchase of the lands contained therein, it is therefore agreed by
and between the said commissioners in behalf of the Commonwealth of
Virginia, of the one part, and the subscribing chiefs in behalf of
the said Cherokees, on the other part, in free and open treaty
without restraint, fear, reserve or compulsion of either party,
that a boundary line between the people of Virginia and the
Cherokees be established, and the lands within the same be sold and
made over to the said commonwealth; which line is to begin at the
lower corner of Donelson's Line on the north side of the River
Holston, and to run thence down that river according to the
meanders thereof, and binding thereon, including the great island
to the mouth of Cloud's Creek, being the second creek below the
warrior's ford at the mouth of Carter's Valley; thence running a
straight line to a high point on Cumberland Mountain, between three
and five miles below or westward of the great gap which leads to
the settlement of the Kentucky."
"This last mentioned line is to be considered as the boundary
between Virginia and the Cherokees. And all the lands between the
said line and that run by Col. Donelson, and between the said river
and Cumberland Mountain, as low as the new boundary, is to be the
present purchase."
"For which tract of land, or so much thereof as may be within
the limits of Virginia when the boundary between the States of
Virginia and North Carolina is extended, the said commissioners
agree, in behalf of the commonwealth, to give to the said Cherokees
two hundred cows and one hundred sheep, to be delivered at the
great island when the said line shall be run from the river to
Cumberland Mountain, to which the said Cherokees promised to send
deputies
Page 43 U. S. 113
and twenty young men, on due notice of the time being given
them."
"And for and in consideration of the said stocks of cattle and
sheep, the said chiefs do, for themselves and their nation, sell,
make over, and convey to the said commonwealth, all the lands
contained within the above described boundary, and do hereby
forever quit and relinquish all right, title, claim or interest in
and to the said lands or any part thereof, and they agree that the
same may be held, enjoyed, and occupied by the purchasers, and that
they have a just right, and are fully able to sell and convey the
said lands in as full, clear, and ample a manner as any lands can
possibly be or ever have been sold, made over or conveyed by any
Indians whatever."
"Article 6th. And to prevent as far as possible any cause or
pretense on either side to break and infringe on the peace so
happily established between Virginia and the Cherokees, it is
agreed by the commissioners aforesaid and Indian chiefs that no
white man on any pretense whatsoever shall build, plant, improve,
settle, hunt, or drive any stock below the said boundary, on pain
of being drove off by the Indians and his property of every kind
being taken from him. But all persons who are or may hereafter
settle above the said line are quietly and peaceably to reside
thereon without being molested, disturbed, or hindered by any
Cherokee Indian or Indians, and should the stocks of those who
settle near above the line range over the same into the Indian
land, they are not to be claimed by any Indians, nor the owner, or
any persons for him, be prevented from hunting them, provided such
person do not carry a gun; otherwise the gun and stock are both
forfeited to the Indians or any other person who on due proof can
make it appear. Nor is any Indian to hunt or to carry a gun within
the said purchase without license first obtained from two justices,
nor to travel from any of the towns over the hills to any part
within the said boundary without a pass from the agent. This
article shall be in full force until a proper law is made to
prevent encroachment on the Indian lands, and no longer."
This treaty fully explains why the Cherokee country was excepted
from the land law of 1779 and locations on it prohibited; no
reasons could add force to its stipulations.
In November, 1785, the next treaty was made at Hopewell, with
the Cherokees by the United States, and a new boundary was
Page 43 U. S. 114
established beginning at the mouth of Duck River on the
Tennessee; thence northeast, to the Ridge dividing the waters
running into Cumberland River and the Tennessee; thence eastwardly
along said ridge to a point from which a northeast line would
strike Cumberland River forty miles above Nashville. The first
corner from the beginning on the ridge is about one hundred miles
from the mouth of Tennessee River.
In January, 1786, the same commissioners who treated with the
Cherokees also made a treaty at Hopewell with the Chickasaws,
beginning at the Cherokee corner on the ridge, dividing the waters
of the Cumberland and Tennessee Rivers, and running westerly with
said ridge to the Ohio River and then down the same.
All lands west of this line were guaranteed to the Chickasaws.
The treaty was not one of cession on part of these Indians, but the
establishment of existing boundaries, the one from the Cherokee
corner, to the Ohio, being the only line dividing territory claimed
by the United States, to which the Indian title had been
extinguished contained in the treaty, our inquiries need extend no
further for the purposes of the present controversy. That it was
deemed the ancient boundary of the Chickasaws by themselves will
appear hereafter, as it will also appear that the Cherokees in no
instance, so far as our researches have extended, asserted to the
contrary, but that they admitted the fact, on different occasions
in a manner free from exception, and which admissions were well
calculated to remove any doubt on this point.
That the lands west of the line on the ridge belonged to the
Chickasaws, and not to the Cherokees in 1779, is rendered almost
certain by the deed the Cherokees made to Richard Henderson, Thomas
Hart, Nathaniel Hart, John Williams, John Luttrell, William
Johnston, James Hogg, David Hart, and Leonard Hendly Bullock on 17
March, 1775. The first part of the deed recites
"That the Cherokee nation or tribe of Indians, being the
aborigines and sole owners by occupancy from the beginning of time
of the lands, on the waters of the Ohio River, from the mouth of
the Tennessee River, up the said Ohio, to the mouth of the Great
Canaway, or New River, and so across by a southward line to the
Virginia line by a direction that shall strike or hit Holston River
six English miles above, or eastward of the Long Island therein,
and other territories and lands thereunto adjoining, do grant, by
Oconestoto, chief warrior, and first representative of the Cherokee
nation (acting
Page 43 U. S. 115
with other warriors named), on part of said nation, to Richard
Henderson and the others, part of said lands, for the sum and
consideration of ten thousand pounds lawful money of Great Britain,
to said Cherokee nation in hand paid, the receipt of which is
acknowledged for and on behalf of the nation by the warriors making
the treaty, the lands granted lying on the Ohio River, beginning on
the said River Ohio, at the mouth of the Kentucky, Chenoca, or what
by the English is called Louisa River, from thence running up the
said river and the most northwardly branch of the same to the head
spring thereof, thence a southeast course to the top ridge of
Powell's Mountain, thence westwardly along the ridge of said
mountain unto a point from which a northwest course will hit, or
strike, the head spring of the most southwardly branch of the
Cumberland River, thence down the said river, including all its
waters, to the Ohio River, thence up the said river as it meanders
to the beginning."
Various covenants are contained in the deed, and among others
that the grantees, their heirs and assigns, shall and may from time
to time, and at all times thereafter peaceably and quietly, have,
hold, occupy, possess, and enjoy the premises granted without the
trouble, let, hindrance, molestation, or interruption of the
Cherokee nation or anyone claiming under the Cherokees. And Joseph
Martin and John Farrer were appointed by the grantors to put the
grantees in possession.
They did take the possession, and founded "The colony of
Transylvania" on their grant, and on 23 May, 1775, the first
legislative assembly of said colony was held therein, and
regulations adopted for the future government of the same. Col.
Richard Henderson, acting for himself and the other proprietors,
communicated with the assembly, by an address delivered to it; the
proprietors exhibited their deed to the soil of Transylvania from
the aborigines; Col. Henderson, in person, and John Farrer, as
attorney in fact for the Cherokees, attended the convention, when
Farrer, in the name of the head warriors, chiefs, and Cherokee
Indians, in presence of the convention, made livery and cession, of
all the lands in the deed of feoffment above recited, which deed
was there again produced. A copy of it and of the proceedings
appear in Butler's History of Kentucky 566. The same deed is set
forth in Haywood's History of Tennessee.
This deed and the proceedings under it make up the most
prominent historical transaction in the early history of Kentucky,
and it
Page 43 U. S. 116
has been relied on by both sides without objection. And as a
historical fact, it was quite as prominent in Virginia in 1791,
when the caveat suit was decided, and also in 1779 when the first
land law under consideration was passed. By the Act of October,
1778, c. 3, and the resolution of the convention that formed the
first Constitution of Virginia in 1776, 2 Rev.Code 350, 353, and
the reservation for Henderson & Co. of 200,000 acres at the
mouth of Green River, this manifestly appears. The land reserved to
Henderson & Co. is declared in full compensation to them and
their heirs for the consideration paid to the Cherokees and for the
expense and trouble in acquiring the country and aiding in its
settlement.
The Act of October, 1778, c. 3, recites,
"Whereas it appears to the general assembly that Richard
Henderson & Company have been at very great expenses in making
a purchase of the Cherokee Indians; and although the same has been
declared void, yet as this commonwealth is likely to receive great
advantage therefrom by increasing its inhabitants and establishing
barriers against the Indians, it is therefore just and reasonable
the said Richard Henderson & Company be made a compensation for
their trouble and expense,"
and by the second section the land at the mouth of Green River
is granted as the compensation proposed.
The Act of May, 1779, c. 6, declares that the commonwealth has
the exclusive right of preemption from the Indians of all lands
within the limits of its territory, as described in the
constitution of government in the year 1776; that no person had a
right to purchase any lands from any Indian nation within the
commonwealth except persons duly authorized on public account for
the use and benefit of the commonwealth.
That every purchase of lands made by or on behalf of the Crown
of Great Britain from any Indian nation in the beforementioned
limits doth and ought to enure forever to and for the use and
benefit of this commonwealth, and that all sales and deeds which
have been made by any Indian or Indians; or by any Indian nation
for lands within said limits, for the separate use of any person,
or persons, whatsoever shall be and the same are hereby declared
utterly void and of no effect.
The construction of the acts of 1778 and 1779, has been that the
deed to Henderson & Company was void as against the
commonwealth but valid as against the Cherokees, and therefore the
title to the lands conveyed passed to the commonwealth. This
assumption has
Page 43 U. S. 117
been maintained from the time the convention sat in May, 1776,
as the resolutions of the convention show. And it received the
sanction of the United States at the Treaty of Hopewell with the
Cherokees in 1785. The Indians disavowed it when the treaty
commenced. On 22 November, before the Chickasaws had arrived at the
treaty ground, the commissioners called on the Cherokees for their
boundary; the Indians postponed it. On the 24th they were again
called on, and then said give them a pencil and paper, and leave
them to themselves and they would draw a map of their country.
November 26, the map, and a description of the boundary claimed was
presented to the commissioners by Tassel, who spoke on behalf of
the Indians. It began on the Ohio above the mouth of the Kentucky
River; ran to the Cumberland River where the Kentucky road crossed
it; thence to the Chimney-top Mountain in North Carolina, and
southward.
Tassel said, on presenting the map:
"I know Richard Henderson says he purchased the lands of
Kentucky and as far south as the Cumberland, but he is a rogue and
a liar, and if he was here, I would tell him so. He requested us to
let him have a little land on Kentucky River for his cattle and
horses to feed on, and we consented, but told him at the same time
he would be much exposed to the depredations of the northern
Indians, which he appeared not to regard, provided we gave him our
consent. If Attacullaculla signed his deed, we are not informed of
it, but we know Oconestoto did not, and yet his name is to it;
Henderson put it there, and he is a rogue."
To which the commissioners replied:
"You know Colonel Henderson, Attacullaculla, and Oconestoto are
all dead; what you say may be true, but here is one of Henderson's
deeds which points out the line, as you have done, nearly till it
strikes Cumberland, thence it runs down the waters of the same to
the Ohio, thence up said river as it meanders to the beginning.
Your memory may fail you; this is on record, and will remain
forever. The parties being dead, and so much time elapsed since the
date of the deed, and the country being settled on the faith of the
deed, puts it out of our power to do anything respecting it; you
must therefore be content with it as if you had actually sold it,
and proceed to point out your claim exclusive of this land."
Tassel answered:
"I know they are dead, and I am sorry for it, and suppose it is
now too late to recover it. If Henderson were living, I
Page 43 U. S. 118
should have the pleasure of telling him he was a liar; but you
told us to give you our bounds, and therefore we marked the line;
but we will begin at Cumberland, and say nothing more about
Kentucky, although it is justly ours."
On 2 December, 1785, the commissioners reported to the Secretary
of War, amongst other things,
"That in establishing the boundary [with the Cherokees], which
is the chief cause of complaint with the Indians, we were desirous
of accommodating the southern states and their western citizens in
anything consistent with the duty we owed to the United
States."
"We establish the line from forty miles above Nashville on the
Cumberland, agreeable to the deed of sale to Richard Henderson and
Co. as far as the Kentucky ford; thence to the mountain six miles
south of Nollchuckey, agreeable to the treaty in 1777 &c., with
Virginia, and North Carolina."
The latter treaty is that of Long Island, above set out.
The sale to Henderson and Company, therefore stands on the same
ground as if it had been made by the authority of the Crown of
Great Britain, so far as boundary and Indian rights stand
affected.
Its southern line from the top of Powell's Mountain ran
westwardly on the top of the mountain to a point from which a
northwest course would strike the head spring of the most
southwardly branch of Cumberland River, thence down said river,
including all its waters, to the Ohio River; thence up that river.
The most southwardly branch of the Cumberland, is the south fork
running into the Cumberland about 170 miles above Nashville. At
Hopewell, the Cumberland River was treated as the southern boundary
referred to by the deed to Henderson and Company; this, however,
may have been inaccurate; the top of the ridge dividing the waters
of the Tennessee and Cumberland Rivers was the western boundary
claimed by the Cherokees, and it is not probable that they intended
to retain the narrow strip of land between the top of the ridge and
the Cumberland River. That this ridge was the true western boundary
before 1779 appears from the following facts:
When the map was furnished at Hopewell, the sale to Henderson
was disregarded and the original western boundary given "from the
beginning of time," within the expression used in the deed to
Henderson and Co. It was returned to the War Office of the United
States, a copy of which is found, and was produced on behalf of the
complainant, in the American State Papers, vol. i. page 40,
published
Page 43 U. S. 119
by the authority of Congress, edited by the Secretary of the
Senate and Clerk of the House of Representatives and published in
1832. On this map the Cherokees laid down their western limits,
beginning at the mouth of Duck River, then to the ridge between the
Cumberland and Tennessee Rivers; then down said ridge to the Ohio,
and up the same. At the treaty, Tassel, on behalf of the Cherokees,
said
"We will mark a line for the white people; we will begin at the
ridge between the Tennessee and Cumberland, on the Ohio, and run
along the same, till we get round the white people as you think
proper. We will mark a line from the mouth of Duck River to the
said line, and leave the remainder of the lands to the south and
west of the lines to the Chickasaws."
And according to this the Chickasaw limits to the east were
recognized by the parties to the Cherokee treaty, in the absence of
the Chickasaws. 1 State Papers, 43.
In January, 1786, the Chickasaws made their appearance at the
treaty ground at Hopewell. They agreed on the lines from the mouth
of Duck River to the ridge, and then with it to the Ohio, as the
boundary between themselves and the whites, 1 State Papers 57, and
to which, the treaty made with them, on 10 January, 1786,
corresponded. It does not appear any of the Cherokees were
present.
In August, 1792, Wm. Blount, governor of the southwestern
territory and Superintendent of Indian affairs for the Southern
District, and General Pickens, met the Chickasaws, Choctaws, and
Cherokees, represented by chiefs, at Nashville, by order of the
United States, for the purpose of securing friendly relations with
these tribes. Every Chickasaw chief was there except three. John
Thompson, interpreter, and two chiefs attended on part of the
Cherokees. 1 State Papers 284. General Pickens had been one of the
commissioners on part of the United States at Hopewell, and Gov.
Blount the agent at said treaty for North Carolina, and a witness
to it. Piomingo for the Chickasaws handed a letter from President
Washington, which he had received by Mr. Doty, and a map of the
country made at Hopewell, showing the line established by the
treaty; the map being opened and explained, Wolf's friend said the
line between the Chickasaw and the United States was right. The map
being worn and old, a copy was made and furnished to the
Indians.
Piomingo then said
"I will describe the boundaries of our land; it begins on the
Ohio, at the ridge which divides the waters of Tennessee and
Cumberland, and extends with that ridge eastwardly as
Page 43 U. S. 120
far as the most eastern waters of Elk River; then south &c.,
crossing the Tennessee River at the Chickasaw old field."
This is opposite the heads of Elk.
Piomingo then addressed the Cherokees, and said: "At the treaty
of Holston (1791), I am told the Cherokees claimed all Duck River.
I want to know if it is so."
Nontuaka, for the Cherokees, replied:
"It is true. I told the President so, and coming from him, told
my nation so. I never knew before the present that our people
divided land and made lines like the white people."
Piomingo replied: "I am the man who laid off the boundary on
that map; and to save my own land, I made it plain: I know the
fondness of the Cherokees to sell land." Nontuaka replied:
"As to the boundary I do not look at it. The President advised
us to let one line serve for the four nations; he would never ask
for any more land south of it, nor suffer others, and all the
hunting ground within said boundary should be for the four
nations."
To this the Chickasaw chief replied:
"By marking my boundary, I did not mean to exclude other nations
from the benefit of hunting on my lands. I knew the Cherokees had
often pretended to take the whites by the hand, but instead of
doing it in good faith, they are always sharpening their knives
against them. I feared the whites, in retaliation, would fall on
the Cherokees, and they might take my land, supposing it belonged
to the Cherokees. For this reason I have marked it."
The Chickasaws then promised to furnish the Cherokees with a
copy of their map; and this was afterwards done.
John Thompson then said:
"We [the Cherokees] do not find fault with the line between the
white people and the Chickasaws, nor with the place where the
Chickasaw's line crosses the Tennessee; but I have not before been
so fully informed of the claim of the Chickasaws."
1 State Papers 286.
In regard to the line on the ridge from the Cherokee corner
north to the Ohio, in our opinion it may be safely affirmed that so
far as the contracts, treaties, and admissions of the Cherokees
furnish evidence as part of the history of the country, the lands
west of that line belonged to the Chickasaws in 1779, when the
Virginia land law was passed, and that this is confirmed in a
remarkable degree by the Treaty of Hopewell with the Chickasaws,
and the intercourse had with them respecting that line then and
afterwards.
That Virginia so understood it can hardly be doubted. In the
Page 43 U. S. 121
winter of 1779-80, Walker's Line was run, establishing the
boundary between Virginia and North Carolina; it was marked to the
Tennessee River, and the latitude of 36.30 north taken on the
Mississippi River. The history of it will be seen in the case of
Fleeger v.
Pool, 11 Pet. 185. This led to the discovery that
the southern boundary of Virginia ran much further north than she
had apprehended. The officers and soldiers had had assigned to
their exclusive appropriation the lands south of Green River
acquired by the deed of Henderson and Company; a great portion of
the best part supposed to belong to Virginia before Walker's Line
was run, having fallen south of that line, the act of 1781, after
reciting the fact, declared that all that tract of land included
within the rivers Mississippi, Ohio, Tennessee, and the Carolina
boundary line shall be and the same is hereby substituted in lieu
of such lands so fallen into the said State of North Carolina, to
be claimed in the same manner by the officers and soldiers as the
lands south of Green River, and the act prescribes the mode of
locating them. By virtue of this law Porterfield's entries were
made. Four years before the act of 1781 was passed, the Long Island
Treaty of 1777 had been made with the Cherokees by Virginia; it was
in full force in 1781, when the military claimants were let in to
locate on the country. When we consider the strong terms of
protection imposed on Virginia by the treaty, the integrity and
elevation of character of its people, the danger of resentment on
part of the Indians, it is hardly possible to believe that so gross
an infraction of the treaty was intended as the appropriation of
the country in question necessarily involved.
With the Chickasaws, at that day, Virginia had not had any
intercourse; these lands lay far off from the residence of the
Chickasaws, and were mere hunting grounds. Virginia might not have
known, and we suppose did not know to any degree of certainty, that
they belonged to this tribe or what Indians claimed them, either in
1779 or 1781. But we repeat: one thing is certain, that Virginia
treated the lands as subject to appropriation in 1781, which she
could not have done without forfeiting her honor and breaking her
treaty had they been Cherokee lands, and we feel great confidence
she intended to do neither. The treaty of 1777 was equally in force
in 1781 as in 1779.
The opinion of the Court of Appeals in 1791 is conclusive to the
point that if the land in dispute was not Cherokee country, it was
not within the exception of the land law of 1779, and that
Clark's
Page 43 U. S. 122
title is good, as all the lands in the commonwealth not
excepted, were subject to appropriation on Treasury warrants,
although claimed by Indians whose lands were not protected from
location by statute.
It is next insisted that as there was no other country in
Virginia belonging to any tribe of Indians in the west, the
reservation must have referred to that west of Tennessee River.
However imposing this argument may seem, it is easily explained
when we recollect that in 1779 it was unknown where the southern
boundary of Virginia was. The question is what limits did she
assume as hers at that time? The Long Island treaty line of 1777
ran down the Holston to the mouth of Cloud's Creek, and then to a
point below Cumberland Gap. Up to these boundaries the Virginians
had settled, and west of it they were prohibited from going; the
country for half a degree south of Walker's Line was in the
possession of Virginia; she had Fort Henry there, and governed it.
Lands were located and enjoyed under her laws south of Walker's
Line, east of the line running from the mouth of Cloud's Creek to
the mountain; and had the Cherokee country west of the line not
been excepted from location, her people would have broken the
treaty and obtruded on the Cherokees. After the deed of Henderson
and Company had been treated as a valid cession to the state, this
was the only definite and established line left between the
parties, and the protection of which excited great anxiety on the
part of the Indians, as plainly appears by the treaty; it is
therefore manifest the exception in the land law had reference
mainly to this line in support of the treaty as the standing law
between the parties to it.
The argument is founded on the fact that the entire line from
the Holston to Cumberland Gap fell to North Carolina, as Walker's
Line runs through the gap and north of the high point at which the
line terminates; but for the reasons stated, it proves nothing,
when explained by the mistake under which Virginia labored in
regard to her southern boundary, before Walker's Line was run. Had
the legislature declared no location should be made west of the
Cherokee line, then there would be no difficulty in saying what
line was meant, as there was then no recognized Cherokee line in
the assumed limits of Virginia but the one from Holston River to
the mountain. It is therefore almost as certain this was the line
alluded to in the exception of the act of 1779 as if the
legislature had said so.
To prove that the Cherokees did own the country west of
Tennessee River near its mouth, the deposition of Peter Force is
introduced
Page 43 U. S. 123
on part of the complainant. The witness expresses it as his
opinion that the land in dispute in 1779 belonged to the Cherokees.
This opinion is founded on books, maps, treaties, and other papers
in his possession and supposed by him to be authentic, which for
many years he had been collecting as connected with the history of
the United States from the settlement of the colonies to the
adoption of the federal Constitution pursuant to a contract made in
1833 with the Secretary of State under the authority of an act of
Congress for the publication of these papers. A portion of them are
given, and among the number different maps of the country west of
the Alleghany Mountains, including the country on the Rivers Ohio,
Tennessee, and Mississippi, from about the thirty-fourth degree to
about the thirty-eighth of north latitude.
Most of these maps have statements on them that the country west
of Tennessee River was Cherokee land -- "country of the Cherokees,"
&c., being marked on the maps. They were published at different
periods previous to the Revolution -- the most respectable of them,
that of Mitchell in 1755. The physical geography of the country was
obviously little understood, as the maps are very imperfect, and no
authority for this purpose at the present day where any degree of
accuracy is required. The only documentary evidence produced by Mr.
Force to show the residence of the Cherokees is found in the report
in the proceedings to the British government, of Sir Alexander
Cuming, who visited the Cherokees in the spring of 1730, obtained
their submission to the Crown, and took to England some of their
chiefs, to ratify a treaty there with the lords commissioners of
trade and plantations. This treaty describes no boundaries, but is
one of amity, and contains stipulations that the Cherokees in
future shall be subject to the sovereignty of the British Crown.
Sir Alexander visited the Indian towns on the Keowee where the
treaty of Hopewell was made, and went north to Tellico where the
King Moytoy resided, and got his submission and the surrender of
his crown. This town Tellico was near the Tennessee River, where it
first takes the name, and is in what is now Monroe County,
Tennessee, more than 300 miles from the land in dispute. It
continued to be an Indian town until the treaty of 1819, when the
Cherokees extinguished their title to the country there.
In January, 1793, governor Blount, the Superintendent of Indian
Affairs, in a letter to the Secretary of War, gives an account of
the places of residence of the Cherokees at the beginning and
previous
Page 43 U. S. 124
to the Revolution. He says they lived in towns either on the
headwaters of the Savannah River (Keowee and Tugelo) or on the
Tennessee above the mouth of Holston. He then proceeds to prove
that the lands sold to Henderson and Company did not belong to the
Cherokees, and also that the lands formerly sold by them to
Henderson and Company, lying on the Cumberland, belonged to the
Chickasaws, that the Cherokees had only sold their right to them as
a common hunting ground, and that Virginia had previously purchased
them from the northern Indians. And if he is not mistaken in his
representation of the facts and admissions of the Cherokees stated
in his letters of November, 1792, and January, 1793, he does prove
that to the lands sold to Henderson and Company north of Cumberland
River the Cherokees had no title when they made the deed, and that
they so admitted, and that the lands ceded by them south of that
river by the Treaty of Hopewell belonged to the Chickasaws, or at
least that this tribe had a better founded claim to them than the
Cherokees. Copies of the letters are found in the State Papers,
vol. i., 325, 431.
We think that not much reliance can be placed on anything
contained in Mr. Force's deposition, and that the conclusion
Governor Blount formed is contrary to what Virginia admitted by the
Treaties of Hard Labor and Lochaber, and by taking title under the
deed of Henderson and Company. This deed is in conformity to the
foregoing British treaties made with the Cherokees previous to the
Revolution, and especially that of 1770, of Lochaber, according to
which the eastern Cherokee line in Virginia was established from a
point six miles above the Long Island in Holston, thence through
Cumberland Gap, to the head of Kentucky River and down the same to
the Ohio. Virginia never set up any assumptions to the contrary of
this being the true line as run by Col. Donelson, by whose name it
was known. Nor could the United States be heard to disavow the
Cherokee title recognized by the Treaty of Hopewell to the lands
lying south of Cumberland River and recognized as theirs by that
treaty.
And in this connection, we take occasion to say nothing short of
the clearest proof would induce this Court, after the lapse of
nearly sixty years, to hold otherwise than that the Chickasaw line,
established by the Treaty of Hopewell, from the Cherokee corner to
the Ohio River, was conclusive, that it was the true line of that
people, anterior to any date, known to Virginia as a commonwealth.
As to
Page 43 U. S. 125
the United States it was assuredly conclusive, the treaty not
being one of cession. And as to the Cherokees, acquiescence from
1785 to 1819, when the United States acquired the Chickasaw title,
it ought to conclude them unless their superior title was plainly
and conclusively proved and the delay in not asserting it accounted
for in a satisfactory manner. The same proof is required of the
complainant, in which we think he has altogether failed.
The defendants proved themselves to have been more than seven
years in possession under Clark's patent before the suit was
brought, and therefore rely on the statute of limitations of
Kentucky as a defense.
The statute, in terms, bars suits in equity as well as actions
at law where seven years adverse possession has been held. This
Court pronounced it no violation of the compact between Virginia
and Kentucky in the case of
Hawkins v.
Barney, 5 Pet. 458. And so Kentucky has often held.
It applies to suits where the plaintiff claims under a patent,
survey, or entry, against an adverse title set up under another
patent, survey, or entry. The defendant's title must be connected,
and deducible of record from the commonwealth, which means a
connected title when tested by its own derivation. On this the bar
may be founded, although it be the younger, and void when
contrasted with the plaintiff's elder patent.
Skyles v.
King, 2 Marsh. 387. But the statute does not bar a legislative
grant, 3 Mon. 161, and it is insisted for the complainant the acts
of Virginia vested in the officers and soldiers an equitable title,
which was anterior to Porterfield's entries and patents and
independent of them, on which the bill can be sustained, and
therefore no bar can be interposed. The rule in this Court is
settled that each state has the right to construe its own statutes,
and especially those barring titles. In the case of
Green v. Neal,
6 Pet. 291, it was held that this Court uniformly adopted the
decisions of the state tribunals, respectively, in construing their
statutes; that this was done as a matter of principle in all cases
where the decisions of the state court had become a rule of
property. This rule was adopted in
Harpending
v. Dutch Church and has been in many other cases,
16 Pet. 455, and cannot be departed from. The land laws of Virginia
are just as much the laws of Kentucky as they were the laws of
Virginia in that country before the separation. By the decisions of
the Court of Appeals of Kentucky it is settled, and has not been
open to question for many years, that an entry was required to
Page 43 U. S. 126
give title on a military warrant in the military district, and
that all the specialty &c. to give it validity was imposed on
the enterer, as if it had been made on a Treasury warrant, each
being governed by the provisions of the act of 1779.
McIlhenney
v. Biggerstaff, 3 Litt. 161. This form was pursued by
Porterfield, and was the only means by which he could acquire an
individual title that could be enforced in a court of justice,
although he had a common interest in the lands pledged for the
satisfaction of his claim, that could be made available through the
medium of the land office. His claim, as set forth in the bill,
was, therefore, subject to be barred. By the proof it is barred,
and for this reason also the bill must be dismissed.
As it was urged on part of the complainant with much earnestness
that the act of 1809 was never intended to apply to the land in
dispute, then covered by the Chickasaw title and protected by the
treaty of Hopewell, it is deemed proper to express briefly our
opinion on the ground assumed. George R. Clark had mortgaged the
land long before the treaty of 1819 was made; therefore it was
subject to sale before the Indian title to occupancy was
extinguished; so the caveat suit was decided first in Virginia in
1791, and ultimately in Kentucky in 1793, after the Treaty of
Hopewell, therefore the title could be litigated. In 1795, a patent
issued to Clark pursuant to a statute of Kentucky of the previous
year, general in its terms. It follows the land laws extended to
the country, so far as the inhibitions of the treaty would permit,
or the patent could not have issued.
Kentucky legislated for her entire territory, subject to the
restrictions imposed by the treaty, which that state recognized as
the paramount law until its restrictions were removed by the treaty
of cession, when the act of 1809, and all the other laws of
Kentucky had effect west of Tennessee River, and operated alike in
all parts of the state.
For the foregoing reasons the decree of the circuit court
dismissing the bill is ordered to be
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Kentucky and was argued by counsel. On consideration whereof, it is
now here ordered and decreed by this Court that the decree of the
said circuit court in this cause be and the same is hereby affirmed
with costs.
