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CHAPTER IV

THE INDIAN TITLE TO KENTUCKY AND ITS EXTINCTION

When the English founded the settlement at Jamestown in 1607, that portion of the royal grant which was to become Kentucky was probably uninhabited, but remained at the disposition of the Lenape and the Mengwe as the result of the conquest they had made of the Alligwi or Tallegwi. If any tribes actually dwelt there, their presence was by permission of the conquerors, who had laid ruthless hands upon it 500 years before. In the reconquest of the Ohio country by the Iroquois in 1650 to 1700, their campaigns had been largely or altogether on the north side of the Ohio River. The final battle, the bloody climax of the half-century struggle, was at the Falls of the Ohio and on the north bank of the stream, one evidence of which being the great quantities of human bones there when the whites first came into that region. This was almost an extermination, and it extended the Iroquoian empire south to the Tennessee. This fact was never disputed by the other tribes living west of the Appalachian Mountains. The Cherokees specifically acknowledged the ownership of the country south of the Ohio to be in the Six Nations at the treaty of Fort Stanwix in 1768. On their way to attend the council for making the treaty they killed deer for food. When they arrived at Fort Stanwix they immediately tendered the skins of these deer to the chiefs of the Six Nations, saying: "They are yours; we killed them after we passed the 'Big River,'" the name by which the Cherokees have always designated the Tennessee.1

That the Six Nations had good title to the country south of the Ohio River to the Tennessee River by right of conquest there can be no doubt. John Lederer set down in 1669 in his General and Brief Account of the North American Continent of the Indians inhabiting the western parts of Carolina and Virginia that, "The Indians now seated in these parts are none of those which the English removed from Virginia, but a people driven by an enemy from the Northwest, and invited to sit down here. by an oracle about four hundred years since, as they pretend." 2 These were the Cherokees.

In commenting on the exploration of Batts and Fallam, 1671, John Mitchell, M. D., has this to say of the Shawnees:

"The Indians they mean were the ancient Chawanoes or Choananons, who lived to the westward and Northwest of the Place that these Discoveries were at; and were at this Time, 1671, engaged in a hot and bloody war with the Iroquois, in which they were so closely pressed at this time that they were entirely extirpated or incorporated with the

1 Civil and Political History of Tennessee, John Haywood, p. 30. Haywood adds: "The Six Nations claimed the soil by conquest, not as the aboriginal owners, and this is the traditionary account of their nation. Who were the aborigines, and whether they were all destroyed or driven from their possessions, and when these events happened, are left unfixed. But in 1750 they rested upon tradition, which at that time had lost the circumstantial details which belong to recent transactions. Certain it is, the whole country which they claimed was depopulated, and still retained the vestiges of an ancient and very numerous population."

2 The First Exploration of the Trans-Allegheny Region by the Virginians, C. W. Alvord and Lee Bidgood, 142.

Vol. I-8

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Iroquois the year following." 3 In his Memorial to King William, 1699, Dr. Daniel Cox recites that: "Mr. Tonty, one of the French King's Governours in Canada, owns in his book, printed at Paris, That in the year 1679, when he was there, the Irocois were possessed of a Territory Extending from the Lower End of the Island of Montreall, where the two great rivers meet which form the St. Lawrence of two hundred Leagues Extent, which is to the west end of Lake Erie. And elsewhere, that they have conquered the Miamihas and Illinois, Chavanoues, three great Nations as far as the River Mechacebe, And that Northward they had conquered the Kicapous, Maschoutens, etc: for which and divers other passages in his Book which seemed to favour the English. All these Countryes and all the Peninsula between the Leaks of Ontario, Erie and the Hurons a most beautiful and fruitful Country, Conquered before by the Irocois, and four great Nations Expelled were sold by them to the English Government of New York (which agreement or sale is now in the Plantation Office) during the Government of Coll. Dungan at the beginning of King James the 2d's Reign. These Countryes reach unto the North bounds of my patent and Mr. DeClerke in his Book of the French discoveryes printed at Paris by order 1691 owns the Illinois were driven by the Irocois 1680 out of their Country and went to settle among the Ozages, who dwell west forty or fifty miles beyond the River Meschacebe." 4

So the evidence of a complete aboriginal title to the land on the south side of the Ohio in 1768 in the Six Nations appears to be indisputable. This title covered the land south to the Tennessee River. Even the Cherokees acknowledged that. This title was publicly asserted; no secret, furtive or doubtful feature encumbered it. At the treaty of Lancaster, 1744, the Iroquois Chief Tachanoontia, in an oration, boldly proclaimed: "All the world knows we conquered the several nations living on Susquehannah, Cohongownton [Potomac], and on the back of the great mountains in Virginia. The Conoy-uch-rooch [people], the Coh-no-was-ronaw, feel the effects of our conquests, being now a part of our nation and their lands at our disposal. As to what lies beyond the mountains, we conquered the nations residing there, and the land, if the Virginians ever get a good right to it, it must be by us." 5 By the terms of the treaty of Lancaster, the English considered the title to the country south of the Ohio transferred to the crown and from the crown to the colonies, according to the bounds of their charters. The Indians claimed that it was not their intention to cede these lands in that treaty. Settlers were crowding over the old lines set as the limits of their migration westward. Both the Indians and the colonies knew they would not be restrained. The need for a new treaty and the drawing of a new line to give the settlers more room was apparent to all. Early in the year 1768 Sir William Johnson received from the king's ministers instructions to proceed with the matter of purchasing from the Indians the lands west of the Alleghany Mountains and the Ohio River. The first step was to send. notice of the action of the crown to the governors of the colonies which would be affected by this addition to their territory of Indian-free lands of the time and place of the treaty to be held for this purpose. He then informed the Six Nations, the Delawares and other tribes having interests or residing on the Ohio that this council or congress would be convened and held at Fort Stanwix, in New York, in the following fall.

3 Ibid., p. 199.

4 Ibid., pp. 231, 232, 233, 234, 235. In a note on page 234 it is stated that the book referred to was ascribed to Tonty, but denied by him. Its title was Dernieres decouvertes dans l'Amerique septentrionale de M. de la Salle. It was published in 1697, not 1679. An English translation was published_at London, 1698.

5 See Christopher Gist's Journals, Darlington, p. 143. References to the Treaty of Lancaster are there given.

In pursuance of this notice the parties assembled at Fort Stanwix in October, 1768. The council was opened on the 24th of October. It was presided over by Sir William Johnson, who was the representative of the king and superintendent of Indian affairs for all the English colonies. George Croghan and Daniel Claus were present as deputy agents, and Guy Johnson, also a deputy agent, acted as secretary of the council. New Jersey, Virginia and Pennsylvania were represented by accredited delegates, the commissioner from Virginia being Dr. Thomas Walker. Chiefs of each one of the tribes of the Six Nations were present, and two Delaware chiefs were present. While the official records fail to show them present, it is known that chiefs and principal men of other Indian tribes were present-for one, the Cherokees. Andrew Montour was one of the interpreters for the crown. Sir William Johnson opened the council and addressed the Indians through Abraham, the principal chief of the Mohawks. He called attention to the desire of the crown to fix a boundary between the colonies and the Indians as much as three years. before, and recounted the reasons for this desire. The principal reason was the encroachment of the white settlers on the Indians lands-a condition which has not disappeared even down to this day. At the conclusion of his address, Chief Abraham made an address of a few words to Sir William, telling him that the matter was a weighty affair, and that the chiefs had resolved to retire and consult on a proper answer to all he had said. As soon as it had been determined what answer to make, notice would be given, so that all might assemble to hear it.

On the 31st day of October a deputation from the Six Nations waited upon Sir William and informed him that a chief and a warrior from each nation would attend and deliver their final resolves, to be made public on the following day. They said also that, as it was their just right, they had determined to begin the line at Cherokee River, as they called the Tennessee. The council assembled on the 1st day of November and the Indians desired to know whether Sir William was prepared to hear what they had to say. Being assured that he was, their speaker stood up and delivered the result of their deliberations. After recounting the proceedings theretofore had on the part of both sides, the boundary agreed to by the Indians in councils among themselves was set out. This line was the Ohio River from the mouth of the Tennessee to Fort Pitt, thence by other courses to its eastern termination. The deed or grant embodying the cession by the Indians was executed on the 5th day of November and recited that, "We, the sachems and chiefs of the Six Confederate Nations, and of the Shawnesse, Delawares, Mingoes of the Ohio, and other dependent tribes, on behalf of ourselves and of the rest of our several nations, the chiefs and warriors of whom are now con

vened * * * * do grant, bargain, sell, release and confirm, unto our said sovereign lord King George the Third, all that tract of land situate in North America, at the back of the British settlements, bounded by a line which we have now agreed upon, and do hereby establish as the Boundary between us and the British colonies in America; beginning at the mouth of the Cherokee or Hogohege river, where it empties into the river Ohio; and running from thence upwards along the south side of the said river to Kitanning, which is above Fort Pitt; from thence by a direct line to the nearest fork of the west branch of Susquehannah; thence through the Alleghany mountains, along the south side of the said west branch, till it come opposite to the mouth of a creek called Tiadaghton; thence across the west branch, and along the south side of that creek, and along the north side of Burnet's hills, to a creek called Awandae; thence down the same to the east branch of Susquehannah, and across the same, and up the east side of that river to Owegy; from thence east to Delaware river, and up that river to opposite to where

Tianaderha falls into Susquehannah; thence to Tianaderha, and up the west side thereof and the west side of its west branch to the head thereof; and thence by a direct line to Canada creek, where it empties into Wood creek, at the west end of the carrying place beyond Fort Stanwix, and extending eastward from every part of the said line, as far as the lands. formerly purchased, so as to comprehend the whole of the lands between the said line and the purchased lands or settlements, except what is within the province of Pennsylvania."

Preliminary to the granting clause the grantors, the Indians, declare in relation to the land about to be conveyed, and the line bounding it on the north: "We have likewise continued it south to the Cherokee River, because the same is, and we do declare it to be, our true bounds with the southern Indians, and that we have an undoubted right to the country as far south as that river."

Thus was the Indian title extinguished to the land soon to become the State of Kentucky, except that portion later known as the Jackson Purchase the territory west of the Tennessee, which was secured from the Chickasaws.

The Cherokees occupied the valleys of the Clinch and the Holston and other head branches of the Tennessee. It was necessary to deal with them in the westward expansion of the English in Virginia to the westward. For the protection of the settlers on the extreme frontier it became necessary from time to time to fix lines beyond which they should not settle. These lines were measures for the prevention of Indian forays and reprisals, and the Indians were always consulted. In this way the Cherokees began to consider themselves the owners and proprietors of lands to which they had no title-among them the lands in which was to become Kentucky. Exhaustive research has failed to reveal any ownership by the Cherokees to what is now Kentucky, even when they were the Tallegwi and seated in Ohio. They did not at that time retreat south through Kentucky when expelled by the Iroquois and Lenape, but passed up the Kanawha. So far as revealed by any record examined, there is nothing upon which the Cherokees could formulate a claim to any part of Kentucky. There is a contention that the fixing of these lines to restrain westward settlement from time to time forfeited the English title and vested it in the Cherokees.6

R. S. Cotterill, in his article on Transylvania, in his History of Pioneer Kentucky. The soundness of the title of the Six Nations is admitted. But, he says, "the title to Kentucky was ceded to the English and not to Virginia. Virginia had no more right to the country than before. England had acquired the right of eminent domain." Then, it is contended, at the treaty of Hard Labor and that of Lochabar, the Cherokees were confirmed in the possession of all the lands west of the lines fixed by these treaties. It is a little difficult to follow this reasoning. It is claimed that Virginia did not own any of this western land-that the English Government did own it. By an agreement on a line beyond which settlers should not go Virginia established in land she did not own a valid title to it in the Cherokees. It is thus made out that the Cherokee title was not based on occupation, for the Cherokees never occupied the land, but that it is based on treaty action by Virginia, who never owned the land-an odd way to secure a title to land. Virginia never had the remotest intention of alienating her possessions to the Cherokees. And here is encountered another contention. The ancient bounds of Virginia were 200 miles north and 200 miles south of Old Point Comfort, running from sea to sea-that is from the Atlantic to the Pacific. The History of Pioneer Kentucky holds that the abrogation of the Virginia charter in 1624 left Virginia without any bounds whatever. But it is the opinion of Mr. Cooke that "This was the original charter under which Virginia held at the time of the formation of the Federal Constitution in 1788.—Virginia, by John Esten Cooke, in American Commonwealths, p. 15. "Sir Francis Wyatt was confirmed in his office, and himself and council only authorized to govern within the same limits as any previous governor."-History of Virginia, T. S. Arthur and W. H. Carpenter, p. 149.

Whatever modification of the original bounds of Virginia were made came only after long contention with other colonies. These old bounds were recog

The treaty relations of the Cherokees with the colonies began in 1721. The French began to exercise an influence over them about that time. Governor Nicholson of South Carolina invited the Cherokees to a general council. Chiefs and warriors from thirty-seven of the Cherokee towns attended. Boundaries were fixed, presents distributed and the Indians returned home satisfied. The governor appointed an agent to superintend the affairs of the Cherokees.

In 1730 the government of North Carolina sent Sir Alexander Cumming to make a treaty with the Cherokees. The council was held in April near the sources of the Hiwassa. Not only did these Indians acknowledge the sovereignty of King George, but they sent a delegation consisting of six of their warriors to carry the crown of the Cherokee Nation to England and there perform an act of homage to the king. In addition to the performance of this act of homage, they concluded a treaty of peace and commerce at Dover on the 30th of June, in which they stipulated:

1. To submit to the sovereignty of the king and his successors. 2. Not to trade with any other nation but the English.

3. Not to permit any but the English to build forts or cabins or plant corn among them.

4. To apprehend and deliver runaway negroes.

5. To surrender any Indian killing an Englishman.

In 1755, to prevent an alliance between the Cherokees and the French, Governor Glenn of South Carolina held a treaty with the Cherokees. They ceded a large tract of land between the Broad and Catawba rivers.

This treaty was followed by another, which was concluded in 1756 with South Carolina. This treaty was with both the Cherokees and the Catawbas. Pursuant to its terms, Governor Glenn erected a chain of forts on his western frontier and erected Fort Loudon on the Tennessee River at the mouth of the Tellico.

Capt. Patrick Jack, of Pennsylvania, purchased from the Cherokees a tract of land fifteen miles square, south of the Tennessee. This was not confirmed until 1762, when it was agreed to at a council held May 7 at Catawba River.

In 1760 the Cherokees joined the French interest. The French and English were at war. It was necessary to take measures for the defense of the colonies, and Governor Littelton of South Carolina invaded their country and defeated them. Later in the year he concluded a treaty with them. They enlisted in the English interest and agreed to kill or imprison all French who should come among them. This treaty they did not observe. In 1761 Colonel Grant was sent into the Cherokee country with a considerable force. He destroyed fifteen of their towns. They then asked for a truce, which was granted. A treaty was made with them, at Ashley's Ferry, near Charleston, by which the boundary of English settlement was fixed at the headwaters of the streams flowing into the Atlantic.

nized by the United States. Virginia formed counties north of the Ohio by right of her bounds as set out in the oldest charter. And it never has been held that defining an Indian reservation destroyed the title of the government to the land upon which the Indians were permitted to live. Prof. Alvord says, in speaking of the treaty of Fort Stanwix, "An examination of the correspondence of the period has led one to believe that it was not generally thought, at this time that the Indian boundary line marked the western limits of the colonies."-C. W. Alvord in article on "The British Ministry and the Treaty of Fort Stanwix, in Proceedings of the State Historical Society of Wisconsin, 1908, p. 182.

The distinction between the ownership of the country by the Crown and the colony was emphasized by the early writers. See Appendix to Butler's History of Kentucky. But it is was a distinction without a difference. The English government never insisted on this feature, but labored diligently and frequently to adjust boundary disputes between the colonies.

So, in fact, the Cherokee never had the shadow of title to the soil of Kentucky.

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