"What the NationalGovernment Provides, States Take Away”
An Example of How the Stateof Tennessee Thwarted a Cherokee Reservee.
Everconsider what happened to cession lands after Treaties were signed? In general recall that the Cherokee Nation,as an entity, essentially traded the lands inhabited by the nation for cash orannuities from the US Government and were expected to abandon their cededland. Andrew Jackson negotiated theTreaty of 1817 with the understanding that the Cherokee would abandon the cededlands in the East and immigrate to the Arkansas Territory. This Treaty also provided for individualCherokee wishing to stay in the East to become citizens of the US, meet a fewrequirements and register for a ‘reserve’, or their own 640-acre plot ofland. However only 311 Cherokee wouldtake this route. The Cherokee Councilthought a third option was implicit in this Treaty of 1817, stay in the East bymoving to lands not yet ceded.
White settlers interested in inhabiting ceded lands werenot waiting at the borders for a signal to enter. Intruders and squatters had encroached on Indian lands since thefirst Europeans came to America. Aftercession white settler claim to the land was validated and now legal title tothis area was dependent on the actions of the individual States, some heldauctions, others sold the land at a fixed price per acre, or the State ofGeorgia held a lottery. The USGovernment failed to manage an orderly assimilation of the ceded lands to theindividual States after negotiating the land cessions of the Treaties of 1817and 1819. The Government’s interest, orthat of the War Department responsible for the Treaties, must have lay solelywith removal of the Indian from the land and not the land itself. The Government’s failure would have aprofound impact on Reservees, who thought they have a right to their acreagesecure in the good faith of the Government and the Treaties.
Tennesseevery quickly implemented a novel, and lucrative, way to assimilate the cededlands within their boundaries. An Actof the Legislature of the State of Tennessee at its session in 1819 authorizedthe Surveyor General of the State to survey all the lands ceded by the Treatiesof 1817 and 1819 as the first step to a contemplated land sale, with theexception of such reserves as were registered and taken previous to the 1stday of July 1818.
Therewas this small problem of the Reservees within the State of Tennessee living inareas contemplated for public sales. The Treaties granted these Reservees right to their own 640 acre plot ofthis ceded land, most as life estates but a few in fee simple, though theTreaty itself was silent as to the last date an Indian could register fro aReserve. So Tennessee merelyinterpreted the Treaty written by the US Government, it set its own time limitfor Reservees to a date in the past, and by this action seriouslylimited the number of Reservees which the State would legally recognize withinits boundaries. It is stated that theWar Department surveyor charged with surveying the reserves thus elected not tosurvey any of the reserves within Tennessee registered after this earlier 1stJuly 1818 date. Certainly this addedgreatly to the future difficulties the Reservees would face in Tennessee.
Bythis same law passed by Tennessee in 1819 a Judge of the Circuit Court ofTennessee was authorized to issue an order to the Sheriff of the Countyrequiring him to put a purchaser in possession of land withheld from him, landhe had purchased from the State. Essentiallyany Indian residing in ceded, and sold, land in Tennessee could then be evictedwithout a trial. This legal detail wasto become particularly egregious to the small number of Reservees in Tennesseewho had earlier registered with the Indian Agent. These Reservees understood per the Treaties of 1817 and 1819 thatthey owned their 640-acres plots. Ifthey had registered after the 1st July 1818, their land was sold and they toowere evicted by this legal action.
And such is what happened to a Cherokee Reservee namedLuney Riley on the action of one Uriah Allison, a white citizen of RoaneCounty, Tennessee. Luney was a younger son of the chief interpreter for theIndian Agency, Samuel Riley. LuneyRiley was the very last Cherokee to register his reserve in December 1819 withJames Williams, sub-agent to Col. Return J. Meigs. His reserve was the particularly interesting and valuable plotopposite to South West Point on the south side of the Tennessee River acrossfrom the mouth of the Clinch River. Itwas the northern-most plot within the Hiawasssee Survey District. Today it is the essentially the golf courseacross the Tennessee River from Kingston. Samuel Riley had lived on this land since 1798.
Parcelsof the Hiawassee Survey District were sold to the public at an auction held inKnoxville in November 1820 and Uriah Allison purchased a total of 8 tracts ofland at this sale. Seven of thesetracks were roughly the reserve of Luney Riley mentioned above. Luney would not yield possession to Uriah,and in March 1821 Uriah Allison got a writ of dispossession from a RoaneCounty Judge for the Sheriff to remove Luney Riley from the property. He never regained possession.
Luneytook his ouster to the Courts in March 1824 in an attempt to recover possessionof his Reserve. The Courts of the Stateof Tennessee ultimately decided against Luney Riley in August 1828. The State used the argument that Luney Rileywas did not entitled to his reserve by an interpretation that the right toreserves under the Treaties of 1817 & 1819 extended only to such parties aswere heads of Indian families as of the date of the Treaty of 1819, and Luneydid not meet this criteria. This wasmerely one other example of a Treaty technicality being interpreted by theState of Tennessee in its own favor.
LuneyRiley in the fall of 1828 finally enrolls for emigration to the new IndianTerritory. Liable for Uriah Allison’s court costs, without land or support fromthe Cherokee Nation (which considered Reservees no longer Cherokee), nor the USGovernment (which offered no support for him in the Tennessee Courts), and thecandidacy of Andrew Jackson as President, Luney Riley probably sees a bleakfuture for his young family in the East. Within a year he sets off for the West and lives to be 85, the patriarchof a large family.
MoreTreaties between the US and the Cherokee Nation follow. And per the 13th Article of the Treaty of1835 Luney Riley, then living in the Indian Territory in what is now northeastOklahoma, files a claim against the US Government for compensation on accounthis lost reserve in Tennessee. Thetranscript of the Claim Case obtained from the National Archives is avaluable history and genealogical resource. Luney even loses this claim and essentially is accused of fraud byCommissioner Kennedy who writes the opinion. That is another storyentirely.
The above Treaty interpretation by the State of Tennesseeused against Looney Riley apparently was not the only technicality defined bythe State. The written argument byLuney’s attorney in 1838 included a number of counter-arguments to land,dwelling, and improvement questions which likely also arose a decade before as theTennessee Courts defended the white land purchasers.
Interestingly, no record of the last trial in August 1828,which occurred in the Judicial Court of the County of Knox, was included in theTennessee transcript passed on to the Board of Commissioners hearing Luney’sclaim in 1838. Also, the Clerk of theSupreme Court of the State of Tennessee specifically cites that the review ofthe case in their Court had been lost. How convenient.
Luney Riley’s attorney complained specifically of fouractions by the State of Tennessee against Reservees in his argument to theCommissioners in 1838:
- Passed a law to turnthem out by a writ without a trial by Jury.
- Employed the mosteminent Lawyers to defeat suits brought by the Reservees.
- Passed an Act employingJudge White & authorizing him, by mere motion to change the venue ofall the cases in all the courts to Knoxville for his convenience when othermen could not change the venue in their cases without the affidavit of twoother men showing they could not get justice.
- Employed other Lawyersand ordered up another Act, with all the causes to be taken back to theCounties they came from.
Certainlythe Tennessee Court was stacked against Luney Riley and a fair amount of timeand money must have been spent pressing the case. Without a Federal survey of his reserve, or US Governmentsupport, it must have been a lonely struggle, ultimately to lose. But at least he had the Tennessee Courts asa venue. In other States Cherokees didnot have that as an option. In manyinstances in other states the Reservees were harassed, threatened, or injured,maybe killed, and their homes burned, livestock killed and crops ruined untilthey simply abandoned their reserves with no legal recourse. In the view of immigrating white settlerscession lands were to be free of Cherokee, the Reservee with a right to theland by a Treaty be damned.
Thereis an excellent essay on the subject of Reservees, the Government’s failuresand the State’s opportunism for incorporating the cession lands, which thisauthor credits for crystallizing the learnings from the above sourcematerial. See the essay “Experiment inCherokee Citizenship, 1817 – 1829” on page 143 of “The Cherokee Ghost Dance:Essays on the Southeastern Indians, 1789-1861”, by William G. McLoughlinwith Walter H. Conser, Jr. and Virginia Duffy McLoughlin, 1984.