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 rendered[274] 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 instructed[275] 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 instructed[276] 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.