Colonel Martin, who was employed by Commissioner Meigs, also surveyed
under the latter's direction during the same month the four small
reserved tracts described in the treaty of October 25, 1805.[155] One
of these afterwards produced much controversy. The language of the
treaty called for three square miles on the north bank of Tennessee
River, _opposite to and below_ the mouth of Hiwassee River. Colonel
Meigs, who was one of the commissioners who negotiated the treaty and
was therefore entirely familiar with its intent, caused this tract to
be surveyed adjoining the main line of cession, extending from Duck
River to the mouth of Hiwassee and north of that line, which placed
the tract opposite to and _above_ the mouth of Hiwassee, instead of
"opposite to and below" the mouth of that river.[156]
As above stated, while this reserve was ostensibly for the location of
a military post and factory or trading establishment, it was really
intended for the Cherokee chief Doublehead and other influential
persons, as the price of their influence in securing from the Cherokees
the extensive cession of land granted by the treaty.
This was sought to be secured by means of a secret article attached
to the treaty. This article was reported to the War Department by the
treaty commissioners[157] and made a matter of record, but it was
never sent to the State Department nor to the Senate for the advice
and consent of that body. After Agent Meigs had erected the Hiwassee
garrison buildings on the tract, suit was brought in 1809 by Colonel
McLung against the agent for the recovery of the land and mesne
profits, basing his claim to title upon a grant from the State of
North Carolina, of date long prior to the treaty of 1805. The suit was
decided in the plaintiff's favor by the Tennessee courts. Subsequently,
in 1838, John Riley made application to the Government for compensation
for the loss of his one-third interest in this tract. The question
was submitted to the Attorney-General of the United States for his
opinion. He decided that the secret article, not having been submitted
to the Senate for approval, was not to be considered as any part of the
treaty; but that, if the commissioners had any authority for making
such an agreement, the defective execution of their powers ought not to
prejudice parties acting in good faith and relying on their authority;
nevertheless, no relief could be had except through the action of
Congress.
This secret article was also applicable to the small tract at and
below the mouth of Clinch River, to the 1 mile square at the foot of
Cumberland Mountain, and to the 1 mile square on the north bank of the
Tennessee River, where Cherokee Talootiske lived. The first mentioned
tract was also intended for the benefit of Doublehead, who leased
it February 19, 1806, to Thomas H. Clark for twenty years. Before
the expiration of the lease Doublehead was killed by some of his own
people. December 10, 1820, the State of Tennessee assumed to grant the
tract to Clark.[158]
The other two tracts alluded to of one square mile each were intended
for Cherokee Talootiske. May 31, 1808, Talootiske perpetually leased
his interest in the Cumberland Mountain tract to Thomas H. Clark.
September 17, 1816, Clark purchased the interest of Robert Bell in the
same tract, the latter deriving his alleged title under a grant from
North Carolina to A. McCoy in July, 1793. This tract was also included
in a grant from North Carolina to J. W. Lackey and Starkey Donaldson,
dated January 4, 1795. The tract on Tennessee River, Talootiske sold to
Robert King, whose assigns also claimed the title under the aforesaid
grant from North Carolina to Lackey and Donaldson.[158]
From the phraseology of the treaty in making these several
reservations, it was concluded advisable in subsequent negotiations to
secure a relinquishment of the tribal title thereto, which was done by
the treaty of July 18, 1817.
[Footnote 151: United States Statutes at Large, Vol. VII, p. 95.]
[Footnote 152: November 2, 1805. See letter of transmittal of Return J.
Meigs and Daniel Smith.]
[Footnote 153: United States Statutes at Large, Vol. VII, pp. 93 and
95.]
[Footnote 154: January 10, 1806.]
[Footnote 155: See field notes of Colonel Martin on file in office of
Indian Affairs.]
[Footnote 156: Letter of R. J. Meigs to Secretary of War, March 4,
1811.]
[Footnote 157: Letter of Meigs and Smith to Secretary of War, January
10, 1806.]