John Catron

“ The land-laws of Virginia are just as much the laws of Kentucky, as they were the laws of Virginia in that country before the separation. By the decisions of the Court of Appeals of Kentucky it is settled, and has not been open to question for many years, that an entry was required to give title on a military warrant in the military district; and that all the specialty, &c., to give it validity, was imposed on the enterer, as if it had been made on a Treasury warrant; each being governed by the provisions of the act of 1779. ”

“ And to prevent as far as possible any cause or pretence, on either side, to break and infringe on the peace so happily established between Virginia and the Cherokees, it is agreed by the commissioners aforesaid and Indian chiefs, that no white man on any pretence whatsoever shall build, plant, improve, settle, hunt, or drive any stock below the said boundary, on pain of being drove off by the Indians, and his property of every kind being taken from him. ”

“ At the treaty, Tassel, on behalf of the Cherokees, said-'We will mark a line for the white people; we will begin at the ridge between the Tennessee and Cumberland, on the Ohio, and run along the same, till we get round the white people as you think proper. We will mark a line from the mouth of Duck river to the said line, and leave the remainder of the lands to the south and west of the lines to the Chickasaws.' And according to this the Chickasaw limits to the east were recognized by the parties to the Cherokee treaty, in the absence of the Chickasaws. ”

“ That all white men residing in or passing through the Overhill country, properly authorized or certified as aforesaid, are to be protected in their persons and property, and to be at liberty to remove in safety when they desire it. If any white man shall murder an Indian, he shall be delivered up to a magistrate in Washington county, to be tried and put to death according to the laws of the state. And if any Indian shall murder a white man, the said Indian shall be put to death by the Cherokees, in the presence of the agent at Chota, or two magistrates in the county of Washington. ”

“ The statute, in terms, bars suits in equity as well as actions at law where seven years adverse possession has been held. This court pronounced it no violation of the compact between Virginia and Kentucky in the case of Hawkins v. Barney, 5 Pet., 458. And so Kentucky has often held. It applies to suits where the plaintiff claims under a patent, survey, or entry, against an adverse title set up under another patent, survey, or entry. The defendant's title must be connected, and deducible of record from the common wealth; which means a connected title when tested by its own derivation. ”

“ The common rule requires notoriety, but if we dispense with that, identity is indispensable. This entry does not identify the land. If the entry is neither required by law, or being required, is inoperative for want of specialty, it confers no right, either legal or equitable. What, then, has the complainant done to make this particular land his property? It is not by survey; for, admitting that would have been a sufficient appropriation under the laws of Virginia, no such survey was made. ”

“ There is nothing more excusable than ignorance, even in the Virginia legislature, of the 'limits of the Cherokee country:' the limits of roving bands of savages who had no occupancy but of their huts, and were sparingly dotted about in that great western region.
No treaty made with the Indians ever did recognize the lands in question as Cherokee lands. Such a construction of any of the treaties made with those Indians, would have entitled the superintendents to a judgment in the case in Hughes, 39. ”

“ There is no evidence that she intended to force the Indian land upon the soldiers; but permitted them to wait, if they chose, or take the other lands. There is nothing unjust to the soldier or to the Indian in this. When the Indians objected to the survey, instead of enforcing her right, Virginia suspended her proceedings. Why did not Virginia reserve all Indian lands instead of Cherokee lands? Because the terms are synonymous. There were no Indians there except Cherokees. From 1729 to 1779 she had made all her treaties, and established boundaries with Cherokees. Where are any with Chickasaws? ”

“ It went up to the Court of Appeals for their opinion, who said that, whether the land was Cherokee land or not, was a question of fact depending upon proof, and said also that he who affirmed it would have the burden of proof upon him. It is admitted that where there is a general law with exceptions, he who wishes to bring himself within the exceptions must show it. It is also true that the act of 1781 could not divest Clark of any title which had vested in him. The legislature of Virginia could not effect it under the constitution of the state. ”

“ The act of May, 1779, c. 6, declares that the commonwealth has the exclusive right of pre-emption from the Indians of all lands within the limits of its territory, as described in the constitution of government in the year 1776; that no person had a right to purchase any lands from any Indian nation within the commonwealth, except persons duly authorized on public account for the use and benefit of the commonwealth. ”

“ The act of December, 1782, makes more distinct, and further provision, and gives increased power to the superintendents. The entire country reserved to the uses of the military claimants was surrendered to the possession of the sperintendents, as trustees, from which they might select any lands, to comply with the purposes of the trust; as such trustees in possession, they had the right to file the caveat against Clark, after they had selected the land, or any part of it, (located by him,) for the use of the officers and soldiers. ”

“ He insists that at the date of Clark's entries, there was no law prohibiting the location of Treasury warrants below the Tennessee river, and that the entries were made on land subject to appropriation, and in conformity with law; that they possess the certainty and precision of valid entries, and were afterwards legally surveyed in conformity with law, upon which surveys patents finally issued according to law; and that his title is not only elder in date, but superior in law and equity to that of Porterfield. ”

“ But all persons who are or may hereafter settle above the said line, are quietly and peaceably to reside thereon without being molested, disturbed or hindered, by any Cherokee Indian or Indians; and should the stocks of those who settle near above the line, range over the same into the Indian land, they are not to be claimed by any Indians, nor the owner, or any persons for him, be prevented from hunting them, provided such person do not carry a gun ”

“ It is hardly possible to separate the right of those acting as trustees, from that of the cestui que trust: still, as the proceedings and judgment in the suit by caveat are not set up as a defence in any manner, we can only look to them as furnishing cogent reasons that it could not be proved, during the time the caveat was pending that the lands west of the Tennessee river were part of the Cherokee country, in 1779. ”

“ George R. Clark had mortgaged the land long before the treaty of 1819 was made; therefore it was subject to sale before the Indian title to occupancy was extinguished; so the caveat suit was decided first in Virginia in 1791, and ultimately in Kentucky in 1793, after the treaty of Hopewell, therefore the title could be litigated. In 1795, a patent issued to Clark pursuant to a statute of Kentucky of the previous year, general in its terms: It follows the land-laws extended to the country, so far as the inhibitions of the treaty would permit, or the patent could not have issued. ”

“ She thought then that she excepted the whole Indian land. It is said that mentioning Cherokees implies that more were there. There were no Indians on this side of the Blue Ridge. They excepted all the Indian country they knew of. If they had thought their allies, the Chickasaws, had not been protected, would they not have done it? Can any construction be sustained, which would seize upon friendly Indians' lands, and protect those of a hostile tribe? ”

“ There is the evidence of Mr. Force, a disinterested witness, an ex parte. He produces fourteen maps from 1755 to 1778, made by French and English authority, which put the Chickasaws south of latitude 35, and the Cherokees north of them.
The river Tennessee is called in these old maps the river of the Cherokees, and they are placed as far west as the Mississippi. By the treaty of Fort Stanwix the Tennessee river is the south boundary of the Six Nations, and the Cherokees are over it. ”

“ In the same year, 1778, a resolution was passed appropriating land to military claimants, covering Henderson's grant, but excepting it, together with the rights of settlers. The whole of the residue was allotted to soldiers. In 1776, the county of Kentucky had been established. Henderson disclaimed all legal title and put his claim on the ground of a reasonable appropriation. This was the state of things in 1779, when the law passed; but it did not pass alone. It was preceded by an act to establish a land-office. ”

“ And should any runaway negroes get into the Overhill farms, the Cherokees are to secure them until the agent can give notice to the owner, who, on receiving them are to pay such a reward as the agent may judge reasonable. ”

“ According to the decision of the court in Skiles' heirs, 2 Marsh., 387, the statute was intended to help and protect 'invalid titles,' to protect settlers under patents which in fact passed no title either in law or equity, being for land granted before the origin of the settlers' claim ”

“ But the great fact form which the complainant draws all his arguments, namely, that the Cherokees has not, in 1779, any other lands but those below the mouth of the Tennessee, is not true. From their western line, striking the Cumberland forty miles above Nashville, they did own the lands on that river, and between that and the line dividing North Carolina from Virginia, and they owned lands between that river and the Cumberland mountains ”

“ On this the bar may be founded, although it be the younger, and void, when contrasted with the plaintiff's elder patent. Skyles v. King, 2 Marsh. (Ky.) , 387. But the statute does not bar a legislative grant, 3 Mon. (Ky.) , 161, and it is insisted for the complainant the acts of Virginia vested in the officers and soldiers an equitable title, which was enterior to Porterfield's entries and patents, and independent of them, on which the bill can be sustained, and therefore no bar can be interposed. The rule in this court is settled, that each state has the right to construe its own statutes ”

“ There were also given in evidence, sundry papers from the state department, verified, as copies, by the certificate of Fletcher Webster, Esq., acting secretary of state, the substance of which was as follows:--
1. A protection for the Great Warrior of Chote, dated on the 13th of May, 1771, at Toguch, and signed by Alexander Cameron, deputy superintendent. It states, that he intends to hunt from thence to Long Island and thereabouts, until the arrival of the Virginia commissioners, who are appointed by that government to run the boundary-line ”

“ The physical geography of the country was obviously little understood, as the maps are very imperfect, and no authority for this purpose at the present day, where any degree of accuracy is required. The only documentary evidence produced by Mr. ”