From Jenkin Whiteside
27th. March 1810
The Settlement of Whites on the Land lying North of Tennessee river between the mouth of Duck & the Chickasaw Old fields on the Southside of the Indian line is considered by the Chickasaw tribe, a violation of our treaties with them, and they have declared that they will not sell any Land untill the whites are removed, at least, from the Land below the mouth of Elk river. It is the interest of the people of West Tennessee to live in Friendship with the Chickasaws, and the most effectual mode of retaining their friendship is to faithfully adhere to our treaties with them. I have therefore deemed it my duty to state my Ideas to you, on the question of removing the white persons settled under leases from Doublehead & Chisholm, on the Land reserved, by the convention, of Janry 1806,1 with the Cherokees, on Elk river & spring creek. Those best acquainted with the claims of both tribes to that tract of Country consider the Chickasaw claim the best, but that has little to do with the question; the Chickasaws do not wish the United States to remove the Cherokees, but to remove the white persons settled there. If Doublehead & Chisholm & those for whom the Land on Elk river & Spring creek purports to be reserved could not legally sell or Lease there Lands to the whites, it follows that the whites settled there should be removed. I have examined the treaties made with the Cherokees & the Laws regulating our trade & intercourse with the Indians, and can find nothing to authorise the Cherokees or any part of them to sell or Lease the two tracts of Land on Elk river & Spring creek reserved in the convention of Janry 1806, or any other Land to citisens or Inhabitants of any State or foreign Nation, See 2nd. Art. Treaty of Holston L. U.S. Vol. 2 p. 426,2 & the 12th Sec. of the “Act to regulate trade & Intercourse with the Indian Tribes &c.” L. U.S. Vol. 3. p 308.3 which expressly prohibit & declare void any such Purchase, grant, Lease or other conveyance of Land &c. The said convention did not effect the provision of said treaty & Law, it contained no grant nor vested no right to those two tracts of Land in the Cherokee tribe or any part of that tribe; but merely reserved the claim which that tribe then had to those two tracts of Land for the use of a part of that tribe; The Cherokee tribe held all their Lands in common & could sell to the United States only, in their National Capacity, and Doublehead Chisholm & the other Cherokees named, did not by that convention, acquire such a right in the reserved tracts as would have enabled them, independantly of the Cherokee Tribe, to sell them to the United States, much Less a right to sell or lease said tracts to individuals, in violation of former treaties & Laws of the United States. But the last article of the convention stipulates that the UStates should settle the claims of the Chickasaws to those two tracts reserved in an equitable manner. It must be observed that the United States have not settled the Chickasaw claim to said tracts; but if they had done what is there stipulated, it would not have changed the rights or powers of the Cherokees or those for whom said reserves purport to have been made with respect to the UStates, the only effect would have been to queit [sic] the Cherokee possession, and enable them to sell the Land to the United States for a better price. The claimants of the reserved Land did not beleive, nor did the whites who contracted with them beleive, that the rights of the United States were impaired by the convention or that the claimants could make an absolute title to the Land, but resorting to an illegal opinion which had prevailed & been acted on by the Cherokees & some whites, that they could Lease those Lands for a long term, such conveyances were made. If those claimants had not power to convey an estate in fee, where is their power to convey an estate for years, the United States intended to prohibit both. I feel satisfied Sir, that there is nothing in the Convention refered to, which can prevent the removal of those settlers, that the Attachment of the chickasaws to the United States, entitle them, at least, to Justice, and I trust, that their rights and the Interests of the People of West Tennessee will not be sacrificed to promote & Secure the illegal Speculations of a few Artful men. I have the honor to be with sincere respect your most obt
RC (DNA: RG 60, Letters Received from the President). Addressee not indicated.
1. For the leases made to Doublehead and John Chisholm, on which settlers had later taken up residence, see the Citizens of Muscle Shoals to JM, ca. 15 Nov. 1810 (PJM-PS description begins Robert A. Rutland et al., eds., The Papers of James Madison: Presidential Series (4 vols. to date; Charlottesville, Va., 1984–). description ends , 3:17 and nn. 1 and 2).
2. Whiteside referred to article 2 of the 2 July 1791 Treaty of Holston, in which the Cherokee chiefs and warriors acknowledged that they and their nation were under the sole protection of the U.S. and that they would “not hold any treaty with any foreign power, individual state, or with individuals of any state” (Laws of the United States of America [3 vols.; Philadelphia, 1796], 2:426).
3. Section 12 of “An Act to regulate Trade and Intercourse with the Indian Tribes, and to preserve Peace on the Frontiers,” approved on 19 May 1796, stipulated that no purchase, lease, conveyance, or grant of land from the Indians, or Indian nations, within the U.S. was valid unless made by a treaty pursuant to the Constitution. Persons who negotiated with the Indians for such purposes without U.S. authority were liable to punishment by fines and imprisonment (ibid., 3:308).