Porterfield v. Clark. 2 H. 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 [*111] treaties, 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 3. 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 4. That all white men residing in or passing through the Porterfield v. Clark. 2 H. Overhill country, properly authorized or certified as aforesaid, are to be protected in their persons and property, and [112] 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 5. 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 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. 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 and twenty young men, on due notice of the [113] time being given them. Porterfield v. Clark. 2 H. "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 6. And to prevent as far as possible any cause or pretence, 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 pretence 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 [114] was 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 Porterfield v. Clark. 2 H. 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, Wm. Johnston, James Hogg, David Hart, and Leonard Hendley Bullock, on the 17th day of 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 Kiver, 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 na * tion, (acting with other warriors named,) on part of said [ 115 ] nation to Richard Henderson and the others, part of said lands, for the sum and consideration of £10,000 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 war Porterfield v. Clark. 2 H. riors 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, hinderance, molestation, or interruption of the Cherokee nation or any one 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 the 23d day of 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 promi nent historical transaction in the early history of Kentucky; [*116] and it 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 and Co. of two hundred |