Native Americans: 22 Books on History, Mythology, Culture & Linguistic Studies. James Mooney

and ought to be sold for their benefit, and the proceeds (which he estimated at $300,000, to be paid in fifty annual installments) applied to their needs in the erection of houses, fences, and the clearing and breaking up of their land for cultivation. The authority and laws of the several States within whose limits they resided should become operative upon them, and they should be vested with the rights, privileges, and immunities of citizens of those States. These views met with the concurrence of the administration, and would possibly have been carried into effect but for the intense hostility thereto of not only the unprogressive element among the Cherokees themselves but of the officials and people of the States most interested, who could not view with complacency the permanent occupation of a single acre of land within their limits by the aboriginal owners.

      Tennessee Denies the Validity of Cherokee Reservations

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About this time trouble arose between the authorities of the State of Tennessee and the surveyor (Robert Houston) who had been intrusted with the duty of laying off such individual reservations as should be taken under the provisions of the treaties of 1817 and 1819. Mr. Houston reported to the Secretary of War that the legislature of Tennessee had refused to confirm all such reservations taken in virtue of the provisions of those treaties subsequent to the 1st of July, 1818, or, in other words, after the time provided for taking the Cherokee census had expired, and desired the opinion and instructions of the Department thereon. The question involved in this dispute was deemed of sufficient importance to secure an official opinion from the Attorney-General prior to directing any further action.273 An opinion was rendered274 by Attorney-General Wirt, the substance of which was that the right of taking these reservations having been in the first instance given by the treaty of 1817 until the census should be taken, and the time for taking the census having been, by the acquiescence of both parties to the treaty, kept open until the conclusion of the treaty of February 27, 1819, all the reservations taken prior to this latter date were legal, more especially as they had been ratified by the recognition of them contained in the treaty of 1819. Furthermore, the second article of that treaty, taken in connection with the seventh article, continued the period for taking reservations until the 1st of January, 1820. Mr. Houston was instructed275 to proceed to lay off the reservations in consonance with this opinion, notwithstanding which the authorities of Tennessee took issue therewith and passed a law providing for the sale of the disputed reserves, whereupon the War Department instructed276 Agent Meigs to cause one or two test cases to be prepared for trial in the courts.

      While on the subject of these reservations it is pertinent to remark that by act of March 3, 1823, Congress appropriated $50,000 to be expended in extinguishing the Indian title to such individual fee simple reservations as were made within the limits of Georgia by the Cherokee treaties of 1817 and 1819 and by the Creek treaties of 1814 and 1821. James Merriwether and Duncan G. Campbell were appointed as commissioners to carry the same into effect. Twenty-two thousand dollars were also appropriated May 9, 1828, to reimburse the State of North Carolina for the amount expended by her authorities in extinguishing Cherokee reservation titles in that State under the treaties of 1817 and 1819.

      United States Agree to Extinguish Indian Title in Georgia

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By an agreement between the United States and the State of Georgia bearing date April 24, 1802,277 Georgia ceded to the United States all the lands lying south of Tennessee and west of Chattahoochee River and a line drawn from the mouth of Uchee Creek direct to Nickojack, on the Tennessee River. In consideration of this cession the United States agreed to pay Georgia $1,250,000, and to extinguish the Indian title whenever the same could be done on peaceable and reasonable terms; also to assume the burden of what were known as the Yazoo claims.

      Georgia charges the United States with bad faith.—Ever since the date of this agreement the utmost impatience had been manifested by the Government and the people of the State of Georgia at the deliberate and careful course which had characterized the action of the General Government in securing relinquishment of their lands in that State from the Creeks and Cherokees. Charges of bad faith on the part of the United States, coupled with threats of taking the matter into their own hands, had been published in great profusion by the Georgians. These served only to enhance the difficulties of the situation and to excite a stubborn resistance in the minds of the Indians against any further cessions of territory.

Report of Congressional committee.—The subject was brought to the attention of Congress through the action of the governor and legislature of Georgia. A select committee was appointed by the House of Representatives, at the first session of the Seventeenth Congress, to take the matter into consideration and to report whether the said articles of agreement between that State and the United States had so far been executed according to the terms thereof, and what were the best means of completing the execution of the same. This committee submitted a report to the House,278 wherein, after reciting the terms of the agreement, allusion is made to the Creek treaty of 1814, and the opinion expressed that the agreement might have been more satisfactorily complied with by demanding the cession at that treaty of the Creek lands within Georgia's limits, instead of accepting in large measure those within the Territory of Alabama. The Indians were by this action forced, in the opinion of the committee, within the limits of Georgia, instead of being withdrawn therefrom.

      Respecting the Cherokee treaty of July 8, 1817, the committee say that some time previous to its conclusion the Cherokees had represented to the President that their upper and lower towns wished to separate; that the Upper Cherokees desired to be confined to a smaller section of country and to engage in the pursuits of agriculture and civilized life; that the Lower Cherokees preferred continuing the hunter's life, and, owing to the scarcity of game in their own country, proposed to exchange it for land on the west of the Mississippi River; that to carry into effect these wishes of the Indians the treaty of 1817 was held, and the United States then had it in their power to have so far complied with their contract with Georgia as to have extinguished the title of the Cherokees to most of their lands within the limits of that State; that this could readily have been done, for the reason that the Upper Cherokees resided beyond the boundaries of Georgia, and had expressed a desire to retain lands on the Hiwassee River, in Tennessee, whilst the Lower Cherokees, who were desirous of emigrating west, mostly resided in the former State. But, in spite of this opportunity, the United States had purchased an inconsiderable tract of country in Georgia and a very considerable one in Tennessee, apparently in opposition to the wishes of the Indians, the interests of Georgia, and of good faith in themselves. By this treaty the United States had also granted a reservation of 640 acres to each head of an Indian family who should elect to remain on the eastern side of the Mississippi. This the committee viewed as an attempt on the part of the United States to grant lands in fee simple within the limits of Georgia in direct violation of the rights of that State. The provision permitting Cherokees to become citizens of the United States was also characterized as an unwarrantable disregard of the rights of Congress. It was further asserted that by the treaty of 1819 the United States had shown a disposition and determination to permanently fix the Cherokee Indians upon the soil of Georgia, and thereby render it impossible to comply with their contract with that State. Yet another feature of this treaty too objectionable to be overlooked was the agreement of the United States that 12 miles square of land ceded by the Indians should be disposed of and the proceeds invested for the establishment of a school fund for those Indians. In conclusion the committee suggested that in order to a proper execution of the agreement with Georgia it would be necessary