James Madison Papers

To James Madison from Jenkin Whitesides, August 1816

August 1816


To the President of the United States of America.

This memorial and ⟨rem⟩onstrance respectfully declareth:

That one of the most inestimable privileges which freemen enjoy is the right of investigating the proceedings of those whose duty it is to advance the public weal, and remove the causes which ha⟨v⟩e a tendency to produce public and individual injury. Availing ourselves of this sacred right, we your memorialists, would respectfully submit a number of the grievances, under which we labour in common with the people o⟨f⟩ this State, A candid and full examination of which we trust, will produce a removal so far as the power of doing this, or recommending it to be done, is vested in yourself. The people of this State know that their political and, individual prosperity is much retarded, and they also believe that their rights are obstructed by two causes, connected with the relations of the United States with the Indian tribes: The first of which is a failure to extinguish the Indian claim to land within the chartered limits of this State: And the second is a cession to the cherokee Indians of that tract of country South of Tennessee ceded to the United States by the creek Indians by t⟨he⟩ treaty held by Genl. Jackson: We are more concerned on the latter subject, that ⟨the⟩ Government should ha⟨v⟩e yielded to the ⟨c⟩h⟨e⟩rokees this tract, at the very time when that nation refused to sell for a full price to the United States a portion of land on the north side of Tennesee within this State which is of much importance to us, and is in a measure useless to that Nation. To show how far the existence of the Indian claim to the land within the chartered limits of this State is a political injury and connected with the violation of individual rights we will beg leave to call your attention to the following facts. Previous to the formation of the constitution of the United States & when the State of North Carolina, possessed the absolute sovereignity of soil in what is now the State of Tennessee, each of the States having declared Independance: and after the States had conquered their enemies foreign & internal, the Legislature of that State, with much magnanimity and justice, offered for sale her Western lands to her own Citizens to extinguish the debt which she owed to the war-worn soldier of the revolution: that debt was paid and a fee simple title was vested in the Purchasers, to a large portion of the lands within what is now the State of Tennessee. This took place in the years 1783 and 1784 At that time the title of the Indians to the lands sold by the State, was not acknowledged by any treaty or law, and it was purchased and grants obtained, under a confidence that possession could be had so soon as the Indian Nations were conquered o⟨r⟩ would cease to be hostile. Few, if any of the tribes of Indians ever actually inhabited the lands which were sold by the State of North Carolina. That portion of territory in which the cherokee tribes were settled south and East of Tennessee was reseved when the boundary was prescribed of lands offered for sale. After the State of North Carolina had sold out the Lands to redeem her public debt, th⟨e⟩ territory now composing th⟨e⟩ State of Tennessee was ceded by North Carolina to the Congress of the United States, reserving however the rights of individuals holding under grants, and the right of perfect titles of such as had purchased lands, from that State, which were not granted. Since that period, the United States have by treaties or compacts with the Cherokees & Chickesaw Indians acknowledged a possessory right in those tribes to a large portion of the lands within this State, and that acknowledgement of title continues to exist, to the exclusion of Citizens who have paid a fair price to North Carolina for those lands more than thirty years since. Nay, the treaties purport to vest an absolute right to those lands in the Indians. A large portion of territory is unoccupied by the Indians on the north side of Tennessee, (except perhaps occasi⟨on⟩ally by a few straggling parties) to which their title is unextinguished: this land is of vast importance in a political point of view to the State. It has also been granted by North Carolina, and the Grantees deprived of the enjoyment of their property; and yet the cherokees refuse to sell it with the same stubborn independance as if their title was absolute! An extensive and fertile track, is situate to the West of the Inhabited part of this State and extending to the Mississippi, which land was sold by North Carolina, and a great portion therof granted nearly thirty years since. It is unsettled by the Indians; yet it is claimed by the Chickesaw tribe, and the Grantees of the land, who have a freehold in the soil, by purchase from the State, have a more gloomy prospect of enjoying their property now, than existed twenty years ago!

Many individuals are deprived of their Patrimony, purchased by the blood of their fathers. The State is deprived of the political advantage arising from the settlement of a part of its soil, fertile beyond description, and rendered doubly important from its situation on the great navigable rivers which have become the highway to Market of the produce raised by several millions of people. At the close of the American war the absolute right to the vacant soil existed in the States respectively, and the usufructuary right was in the Indian tribes, most of whom were conquered by the States. If this right existed in the States, we would enquire whether it ⟨wou⟩ld be consistent with the principles of a free Goverment, to exclude the individual owners of the soil from the enjoyment of their property? And, we would humbly suggest the injustice of doing this by laws or treaties made subsequently to the vested rights of the owners. This is a grievance, under which the Citizens of the State of Tennessee have laboured for many years past. In an humble and respectful manner has it been presented to the constituted authorities of the United States by the legislature of our State and by our representatives and Senators in Congress. With painful emotions it has been seen that all exertions for its removal have failed. Yet as Citizens we were respectfully silent, hoping each succeding year would produce a change; we fondly looked forward to the time when the rights of our Citizens would be considered as paramount to the rights of the Indians: and of two conflicting claims, that that claim would be protected which would convert a pathless wilderness into peaceful habitations of freemen, yielding individual wealth and national prosperity. And if an Indemnity was necessary, it would be confered on those whose claim was later in point of Law and acknowledgement: and least in point of use and necessity. From the arrogant and aspiring pretensions of the adjacent tribes, we have no hope that they will voluntarily yield, or even sell their claim. Recent events shew that they desire to embrace every foot of territory which will lessen the facility of communication with the settlements on the Mississippi and Mobile and retard the prosperity of this State. We would enquire where is this matter to end? Is it to b⟨e⟩ left to the will of the Cherokee and Chickisaw Indians?

We would also call your attention to the peculiarity of our injury. In no other State do we know of a sale of lands, at an early period after the revolution, where the purchasers are, as yet deprived of the possession. In a few years the extinguishment of the Indian claim will be useless to the individual claimants. The destroyer time, will have demolished every trace or mark of the surveys and boundaries, and already almost every individual to whom they were known is consigned to the Tomb. Our other subject of complaint is the late Cession to the cherokee Indians of so large a portion of the territory, added to the United States, by the treaty held with the Creeks by Genrl. Jackson. This is considered as an evil of much magnitude, and we submit the following facts to prove that the creeks were fully empowered to make the conveyance to the United States by the treaty of 1814. It is clearly established and it is here almost universally known that at the first settlement of the Western Country, the territory in question was not held unde⟨r⟩ the least color of claim by the Cherokees, but was in the possession of the creeks, who continued to occupy it until the war in 1813 when the creeks fled from villages within this territory which were afterwards demolished by Genr. Jackson. The chiefs and head men of the cherokees even at that period, so far from claiming this land, declared to Genr. Jackson that his army was in an enemys Country, after crossing a small stream cal⟨led⟩ Wells creeks 20 miles south of Fort deposit on the Tennessee River. From thence southwardly, they said the army was in the territory of the creeks, and all the property was the property of the enemy. Of the truth of these facts, abundant proof can be produced, sufficient to establish the same at any time when it may be desired. Did not the cession of this land to ⟨the United States⟩ ⟨   ⟩ of prima facie evidence of title. If so, could the people be divested of this title by the act of the President and Senate. This ⟨   ⟩ humbly state that they do not think the constituion has vested this power in those branches of the Goverment. The cession of this territory to the United States was hailed with joy as an Aera in the prosperity of Tennessee. By this a communication would be had through a country inhabited by White men and governed by laws, to the counties on the Mississippi and Mobile. We even were informed the boundaries of the lands held by the creeks were directed to be ⟨   ⟩ by ⟨   ⟩ authority, separating those lands from the Cherokees. We understand the line was run, and information therof communicated to the proper officer. But our satisfaction at this event was succeeded by surprise and regret, when we ⟨le⟩arnd so much of this tract was ceded to the Cherokees, as would effectually prevent that connection in settlement with ⟨ou⟩r fellow citizens on the Waters of the Mobile.

We would ask where is the policy of ceding this tract to the Cherokees, who are so tenacious of the territory which they already possess that they will not surrender one acre, without receiving what would be the value of the Land. We would enquire upon what principle of justice was this land ceded to the Cherokees? It was not useful to them for cultivation. Nor due to them as a Nation, to the exclusion of the people of the West, to whom the advantages from the occupation & settlement of this Country were in some measure due as a boon for its conquest. We applaud the course of Policy adopted by the UStates towards the Indians, replete with ⟨   ⟩ cannot agree it is proper to sacrifice the convenience and welfare of so large a portion of the members of the community, to gratify the cupidity of any tribe. The Country bordering on the Tennessee and occupied by the Creeks before the War of 1813 is that through which would pass the great highway from this State to N. Orleans and Mobile. The country is fertile and would soon be covered by a population of yeomanry and become a perpetual barrier to the communication of the Northern and southern tribes of Indians who from their intimate correspondence produced such distressing effects subsequent to the situation of ⟨   ⟩ in 1812.

Our Citizens would then travel in security, without the risque of being murdered at every wigwam by some drunken savage, or of being ambushed and plundered, until a safe passage is purchased by giving to the Indians money for permission to travel the public road. One of our neighbours a short time since was insulted and afterward⟨s⟩ murdered on the road leading through that nation. And another of our most respectable Citizens, when travelling with his family on the same road, was compelled to purchase his safe pass⟨age⟩ by his purse of money. The tribe will claim in palliation such excesses are committed by profligate and drunken Indi⟨ans,⟩ and perhaps will claim credit, for surrendering such to be punis⟨hed by⟩ our laws. These things to us are no satisfaction or security. The ⟨course⟩ of business, requires frequent travelling along the roads leading ⟨to⟩ that country and while the Indians possess the soil from the M⟨issis⟩sippi to Georgia, our citizens are not secure from attacks. W⟨e⟩ desire rather security against this mischief, than revenge for a murder when committed. If you will refer to the Map of the Country South of the State of Tennessee and bring to mind th⟨at⟩ the produce of all the Western country is sold at New Orleans, a⟨nd⟩ that the Indians possess an extensive territory between this state an⟨d⟩ Market, that thousand of the Citizens of Kentucky and Tennessee, an⟨nu⟩ally return by land, after selling their produce, and that this happens most frequently in the unhealthy season, that want of accommodation, sickness and insult and injury often await them through this Indian Territory, that every year increases the ⟨quan⟩tity of produce for the market, and consequently the number of persons exposed to the evils enumerated: And you will have but a faint Idea of the magnitude of the object to the peop⟨le⟩ of this section of the Union, and of the regret with which th⟨ey⟩ beheld, that a free communication was no sooner obtained from the Creeks, than it was surrendered to the Cherokees. We cannot but believe that the policy of retaining this part of the country is so evident that it would not have surrendered to the cherokees, except for a mistaken belief that it of right belonged to that nation, and we believe if the fact had been Known to you that the cherokee claim was founded altogether on pretence and had no substantial existence, that this cession would not have been sanctioned. We have heard it suggested that the treaty of 1806, contained a pledge that the United States would acknowledge the claim of the cherokees, to this territory. We will remark, that the article in that treaty which speaks of the boundary of the Cherokees and Chickesaw Indians was evidently concluded by the Secretary at War, relying upon the representation of the Cherokees, and without a Knowledge of the title of the respective tribes. It ⟨   ⟩ your dispute ⟨   ⟩ in question did not ⟨   ⟩ the Cherokees or Chickesaws: but was vested in the ⟨   ⟩. The agreement on the part of the U States that they would endeavor to prevent collisions between the Cherokees and Chickesaws by procuring the establishment of a certain boundary, did not it seems to us, bind the U States to relinquish any title they might acquire from a third party, provided that this party had the better title: particularly when it is recollected, that the projected boundary of the treaty of 1806 never was established. We might still go further in depicting the evils ⟨   ⟩ carrying this stipulation into effect ⟨   ⟩ with the creeks by Gen. Jackson and after the boundaries were run and ascertained. This tract has been settled by a numerous population, by men whose lives and property have often been pledged to their Goverment. We will leave to you to imagine the difficulty and distress and dissatisfaction which will result from dispossing this population of a country which was considered as a land of promise, and which they had prepard themselves to purchase by a sale of their interior possessions, and that this disposition should be made, that the country may remain a wilderness for the refuge of plunderers and murderers. We are also mortified that the treaty with the cherokees, should contain an imputation against the Militia of this State in making an appropriation of $25,500 for depredations pretended to be committed in their territory by the army of the U. States This claim set up by the Cherokees, we believe from good authority to be unfounded. The language as well as matter of this article is a subject of regret to the Militia of Tennessee, Since it implicates the character of their Officers, who are virtually accused of leading bands of maurauders and allowing the most flagrant acts to pass unpunished. We would beg leave to bring to your notice the tedious & injurious system adopted by the War department, in the payment of accounts which have been created during the war, in the Quarter Masters Office. The payments of these accounts have been postponed from time to time to the great injury of those who hold unsettled claims, and as if to increase the difficulty, it has been lately ordered that these claims shall be sent to Washington for inspection, previous to their adjustment. The delay and risque of loss in transmission of the evidences of these claims, are very great, and the difficulty of presenting demands, although entirely just, authenticated according to exact form, has been experienced by all interested in them Because the officers ordering the same paid, are now at an immense distance from the place of their liquidation. All these embarrassments had, in many instances, created an expense equal to the amount of the demands producing it. The payment of the officers and soldiers for their services, has been so long protracted and so many difficulties presented from the want of funds or otherwise that many of the soldiers who braved the dangers of the field, and conquered the Heroes of Britain, have not yet received the first cent for their services.

This Committee are assured that penury has not tied the purse strings of the nation; that appropriations were made to satisfy all demands against the pay and quarter masters departments in this district: Therefore we most respectfully enquire what disposition has been made of the funds appropriated to satisfy the just claims on Goverment

The Citizens of Tennessee deem the grievances which this committee have referred to materially affecting the rights and happiness of the community at large, and are happy to believe that they have by their recent unparalleled display of Patriotism and Valor, secured to themselves the plaudits of the American People and are justly entitled to a prompt removal of all the causes hereby noticed, which so materially affect the present and future destiny of this Country.

For and in behalf of the citizens of Davidson County

Jenkin Whitesides } Committee
James Trimble
Washn. L. Hannum
Alfred Balch
William Carroll

DNA: RG 75—Letters Received by the Office of the Secretary of War relating to Indian Affairs.

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