THE TREATY OF SYCAMORE SHOALS
In 1773, Judge Henderson was relieved of his appointment as a Justice of the Superior Court by the expiration of the Act of 1766 which had created it. He was not reappointed on the court established by the new act, whether by choice or by circumstances is not shown by the record. In any event this left him free to devote his full energy to the business of Richard Henderson & Company and the western lands which had claimed his interest for so long.
Despite British law and Royal Proclamation Henderson, in his own mind, had rationalized the legality of purchase of lands from the Cherokees. His next problem was financing the project. It is known that he had suffered considerable financial loss from the acts of the Regulators. Now that his income as a Justice was eliminated, it is conceivable that his interest in the western lands was heightened by the possibility of recouping his finances as well as enhancing his power as the proprietor of a new colony. The return of Daniel Boone in the fall of 1773 from his ill-fated attempt at settlement of the Kentucky lands undoubtedly impressed upon Henderson the need to move promptly before others located in the Kentucky area.
There was increased Indian activity in the western lands which culminated in Lord Dunmore's War. While Boone was engaged in defending the frontier settlements, Judge Henderson and his associates were progressing with their plan, as was evidenced by the formation of a new land company on August 27, 1774. This new company, known as the Louisa Company, included the three original members of Richard Henderson & Company and added three new ones. Nathaniel Hart, a brother of Thomas Hart of Henderson & Company, John Luttrell, and William Johnston. The addition of the three new associates undoubtedly brought increased credit and financial backing which would be needed to support the western venture.
The name of the new company, the Louisa Company, was undoubtedly taken from the original name of the Kentucky River. Dr. Thomas Walker had named that river the Louisa in honor of the wife of the Duke of Cumberland when he first traveled in the Kentucky area in 1750. In later years, the name of this river was changed to the Kentucky, and the name Louisa was given to the West Fork of the Big Sandy and the spelling, over the years, changed to Livisia.
The decisive defeat of the Indians at Point Pleasant in October, 1774, and the subsequent treaty by which the Indians agreed to confine their activities to the area north of the Ohio River added new impetus to the movement to settle the Kentucky country. Realizing that many groups of settlers would be eyeing the Kentucky country as a desirable location for new settlement, the members of the Louisa Company undoubtedly reached a definite decision to proceed at once with their land development project.
The plans of the new company were ambitious. The Treaty of Fort Stanwix on November 5, 1768, had resulted in the Iroquois Indians relinquishing their claims to all land south and east of the Ohio River. Supposedly this left only the Cherokees claiming the Kentucky land, and it was the purpose of the new company to purchase their title to these lands, thus clearing the way for a full proprietorship by the Louisa Company.
Their approach to this transaction was probably suggested by Daniel Boone who was familiar with the arrangements made with the Cherokees by the Watauga settlers, who has leased the Watauga Valley for a period of eight years by a payment of $6,000 value in blankets, muskets, and other trade commodities. The action of the Louisa Company in moving to secure title to the Kentucky land was definitely influenced by this Watauga arrangement.
It should be remembered that Henderson had already had Daniel Boone and others make contacts with influential Cherokees to learn their attitude toward the sale of some of their lands in the Kentucky area to white purchasers. The reply had been favorable, providing the "price was right." Now, in the fall of 1774, Richard Henderson and Nathaniel Hart spent considerable time in the Cherokee country holding meetings with the chiefs of the Cherokee regarding the purchase of large acreage west of the Cumberland Mountains. Apparently, the results of these talks were most favorable and probably some informal agreements were reached as, on December 25, 1774, Richard Henderson & Company issued advertising in the press entitled, "Proposals for the Encouragement of Settling the Lands Purchased by Richard Henderson & Company on the Branches of the Mississippi River from the Cherokee Tribe of Indians." This was nearly three months before the so-called Treaty of Sycamore Shoals at which the actual purchase occurred. It is also known that the goods with which the Indians were to be paid for their land were actually selected by some of the Cherokee chiefs and purchased by William Johnston at Cross Creek (now Fayetteville, North Carolina) during the latter part of December, 1774. Henderson and his associates must have been reasonably sure of their ground as far as the Cherokee Indians were concerned by the end of 1774.
By the beginning of 1775, it was obvious to members of the Louisa Company that their operations had outgrown the capabilities of their organization, and that additional financing would be required. On January 6, 1775, a reorganization took place resulting in the formation of yet another land company and adding three more copartners, making a total of nine in all.
The new company was named the Transylvania Company, the total membership of which consisted of the following: Richard Henderson, Thomas Hart, John Williams, William Johnston, Nathaniel Hart, John Luttrell, James Hogg, David Hart and Lend Henly Bullock.
These nine individuals entered into a lengthy and detailed agreement consisting of seven pages which declared the members were, "Copartners & Tenants in Common by the Laws of England." Each was to possess one-eighth interest in, "A certain Territory or Tract of Land lying on the Ohio River & waters thereof, including the Rivers Cumberland, Louisa & c . . . . That is to say each man's particular part to their and each of their respective use & uses . . . . ," except David Hart and Bullock, who owned one-sixteenth each. The purpose of this organization was stated as: The proprietors "have purchased the same with an intent and Design to sell and dispose thereof, to such persons as are willing and chuse to become purchasers & hold from under them . . . . ."
The covenant continues in some detail in the legal language of the day to bind each copartner and his heirs to the agreement. The covenant realizes that the actual sale by the Cherokees has not been completed by the statement contained therein:
This portion of the covenant concludes with the statement:
This statement incorporated in the covenant clearly indicates that Henderson had a verbal agreement with the Cherokee chiefs, and all that remained to complete the transaction was the approval by the formal council of the Cherokees, which was then in the process of being organized.
The advertisement by Henderson offering settlers certain inducements to join his venture in late December of 1774, followed by the formal organization of the Transylvania Company in early January of 1775, coupled with the fact that Henderson and Nathaniel Hart were known to have spent much time among the Cherokees during the fall of 1774, started rumors and speculations which spread quickly through the backwoods country of North Carolina and Virginia, and eventually claimed the attention of the Royal Governors of these colonies. Colonel William Preston, County Lieutenant of Fincastle County, Virginia, expressed the concern of the King's officials in a letter to Governor Dunmore of Virginia dated January 23, 1775, which included the following statement: "This great and fine country Henderson proposed to Settle early in the Spring, by selling it to the Adventurers at the moderate price of 20 Shillings Sterling per hundred Acres, which, with some further encouragement he offers, will, I am apprehensive, induce a great many families to Settle there who will not look upon themselves as Subjects of his Majesty, and therefore when they get possession, it may be almost impossible to remove or reduce them to obedience. Henderson undertakes to make deeds in his own and the Company's names to the purchasers as Sole proprietors of the Land: and may easily persuade these ignorant People to believe his Title good . . . . ."
On February 10, 1775, Governor Josiah Martin of North Carolina, alarmed by the actions of the Transylvania Company, issued a proclamation against Richard Henderson and his confederates which was published in the North Carolina Gazette of February 24, 1775. In this proclamation, Governor Martin quoted at length from the Royal Proclamation of 1763, particularly from that portion prohibiting the purchase of land from the Indians, by private persons, in those areas reserved for the Indians.
Governor Martin also quoted at length from an Act of the North Carolina Provincial General Assembly which stated, "That no white Man shall, for any consideration whatsoever, purchase or buy any Tract or Parcel of Land claimed or actually in possession of any Indian without Liberty for so doing from the Governor and Council first had and obtained under the Penalty of Twenty pounds for every hundred acres of Land so bargained for and purchased . . . . ." Governor Martin's proclamation further stated:
This proclamation continued at considerable length. In a later portion of the proclamation, Governor Martin states:
The proclamation continues in like vein:
(See appendix B for the full text of Governor Martin's proclamation.)
The organization of the Transylvania Company and news of its activities related to the western land also affronted Governor Dunmore of Virginia. It was known that he was personally interested in organizing a land venture concerning these same lands. It had been rumored that he precipitated the Indian War of 1774, known as Lord Dunmore's War, for the purpose of relieving these lands from the threat of Indian attack in the event of settlement. It is easily understood that the activities of Henderson and his associates presented a threat to the personal plans of Lord Dunmore, as well as a violation of the laws and proclamations of the British Crown and of the North Carolina Provincial General Assembly.
On March 21, 1775, Governor Dunmore issued a strong proclamation against Richard Henderson and his abettors. After reviewing the provisions of the laws relating to proper survey of the western lands and their disposal by public sale to the highest bidder, the proclamation continued with strong wording pertaining to Henderson and his assistants which stated:
(See appendix C for the full text of Lord Dunmore's proclamation.)
Like many lawyers of today, Henderson and his associates continued with their plans to meet the Cherokees in council for the purpose of completing the transaction already agreed upon with the chiefs, by securing ratification of the agreement by the Great Council of the Cherokees and by delivery of the trade goods in payment, despite the proclamations of the Royal Governors of Virginia and North Carolina declaring the transaction illegal and contrary to English law.
Henderson and his associates in the Transylvania Company had already moved to prepare for the Great Council and to finalize the land deal there. In December of 1774, the leading Cherokee chief, Atta-Kulla-Kulla (The Little Carpenter) had accompanied William Johnston to Cross Creek (Fayetteville, North Carolina) where he selected the trade goods to be given in payment, which were then purchased by Johnston and transferred by him to Sycamore Shoals on the southern bank of the Watauga River (Elizabethton, Tennessee) where they were placed in storage.
Throughout January and February of 1775, the Cherokee continued to assemble at Sycamore Shoals until, by the latter part of February of that year, over 1200 Cherokees, half of them men, had gathered to witness their leaders' participation in a Great Council with the representatives of the Transylvania Company and to decide whether or not they would give their approval to the land transaction to be discussed there. It may well be that the rank and file of the Cherokee had little personal comprehension of the scope of the proposed land sale, other than the fact that a large amount of trade goods were involved and each hoped to receive a share for himself.
The preliminary contacts and discussions of the Council had been initiated during the last week of February, 1775, and continued, increasing in scope and intensity, until March 14, when the formal business portion of the Council was convened. During this period Henderson, Hart and other members of the Transylvania Company and its employees had not been idle. First, contacts were made with the initial chiefs and influential members of the Cherokee Nation reaffirming verbal agreements reached during Henderson's and Hart's trip of the previous fall, and ensuring commitment of the voting members of the Council to approve of the proposed transaction. As an added incentive, samples of the trade goods to be given in payment were displayed for all to see. In general, the activities of Henderson and his associates during this preliminary period resembled those of the staff of a large corporation or political group of today just prior to a major conference which would decide a matter of importance to them.
Throughout this preliminary period Daniel Boone, as a representative of the Transylvania Company, had been active in his own quiet way. He was well acquainted with many of the important leaders of the Cherokees, as well as with many of the braves with whom he had hunted on his trips to their villages. A favorable word from him at the right time and in the right place could mean much to the success of the proposed transaction. Henderson was passing up no opportunities to ensure the successful completion of his purchase plan.
The Grand Council of the Cherokee Nation, convened in formal session at Sycamore Shoals on March 14, 1775, was a dramatic meeting for all participants and a milestone in American history. Here were assembled the representatives of the Cherokee Nation and the representatives of the Transylvania Company for the purpose of considering the sale of a large area of Cherokee hunting ground to the Transylvania Company for the purpose of settlement. The price had been tentatively agreed upon and the principal chief of the Cherokees had selected the trade goods to be given in payment. All that remained was to formalize the transaction and to agree on the specific boundaries of the lands to be sold.
The principal representatives of the Cherokee Nation at this Council were: Atta-Kulla-Kulla, The Little Carpenter, so called because of his skill in putting together agreements and compromises; Oconistoto, Dragging Canoe, and Savanooko-Coronoh, The Raven.
Representing the Transylvania Company were Richard Henderson, John Williams Thomas Hart and Nathaniel Hart.
Among the spectators to this Council were over 1200 people of the Cherokee Nation, over half of which were men. In addition, a considerable number of frontiersmen had assembled as spectators, many of whom were also interested in buying Cherokee land either directly from the Cherokees or from the Transylvania Company. Prominent among these frontiersmen were: John Sevier, Issac Shelby, James Robertson, William Bailey Smith and Nathaniel Gist.
The opening formalities of this Council being completed, Colonel Henderson began the discussions of the first day by a speech in which he questioned the Cherokees concerning their ownership of the land under discussion. After conferring among themselves, the chiefs answered that the land was theirs. They then offered to sell to the Transylvania Company a tract of land which they had previously sold to Colonel Donelson, but for which they had not received payment. Colonel Henderson replied that his company was not interested in small tracts, and that he had a houseful of trade goods for them. This closed the first day of the Council.
On the second day, the Cherokees opened the Council by presenting an offer to sell land north of the Kentucky River and between the Kentucky and the New River. Colonel Henderson replied that his company was not interested in these lands, as they were already owned by Virginia and were not the property of the Cherokees to sell. He then spoke at some length telling the Cherokees that if they would not sell the lands desired, he would keep his trade goods. He again described the land his company wished to purchase and emphasized the payment they were willing to make. Chief Dragging Canoe replied that, "The white people wanted too much of the Cherokee hunting grounds," and left the Council most displeased. The rest of the Indian members of the Council followed him, and the Council was adjourned for the day.
On the third day, the Cherokee representatives returned to the Council and participated actively in the discussions. On this day, Chief Dragging Canoe made a dramatic speech that was not only prophetic of events to come but, from the standpoint of the Indians, most pathetic. In essence, he spoke in the following trend:
After considerable discussion and more speeches, an agreement was finally reached by which the Transylvania Company acquired all of the land from the Kentucky River south to the Cumberland River, a territory encompassing the greater part of the present State of Kentucky plus a sizeable strip of the present State of Tennessee reaching as far south as Nashville. During this final conference, one of the chiefs stated that they were selling land that would be needed as hunting grounds by their children.
On the fourth day of the Council (March 17, 1775), the deed to the agreed-upon land was signed by the representatives of the Cherokees. (See appendix D for the full text of this deed.) The careful work of Richard Henderson and his associates during the past months had not been in vain.
However, the Transylvania Company had still another request to make of the Council. Between the lands already owned by Virginia and the lands covered by the transaction just completed lay a strip of land which still belonged to the Cherokees. Colonel Henderson told the Council that, "I do not love to walk on your land, and I still have a quantity of trade goods which they had not yet seen." For these trade goods, he wished to make an additional purchase of all of the lands lying down the Holston River and between the Watauga purchase and the land they had just agreed to sell to the Transylvania Company. This tract he called the Path and the deed he desired was referred to as the Path Deed.
One of the white visitors to the Council was John Carter, to whom the Cherokees were indebted to the amount of between 600 and 700 English pounds, and the prospect of payment by the Cherokees was remote. Carter offered to buy from the Cherokees the tract of land for which he would pay them by cancelling this debt and furnishing additional trade goods. After some consultation, this offer was refused by the Council. Colonel Henderson then came forward and in his persuasive legal manner offered to destroy the Carter account books containing the signatures of the Cherokees, to give them the goods Carter had offered, and to supply additional trade goods in return for a deed to the pathway. This offer was accepted by the Council, and a deed drawn to cover it, which has, since that time, been known as the Path Deed.
It is generally conceded that all parties involved in the Sycamore Shoals meeting were sincere, and that their dealings were open and above board. When the abrupt withdrawal of Chief Dragging Canoe closed the Council on the second day, some of the whites suggested that the Transylvania Company attempt to negotiate a secret deed with the Cherokee chiefs. John Williams promptly rejected this suggestion with a statement that the company would consider no arrangement other than an open transaction with the entire Cherokee Nation.
Every effort appears to have been made to ensure full understanding on the part of all of each speech, proposal and document. In addition to being represented by two attorneys, Joseph White and John Farrow, the Cherokees also had a number of whites and halfbreeds who understood both languages as added insurance against errors or omissions by interpreters in translation. An official linguist, Thomas Price, reviewed documents and was one of the witnesses to the Cherokee Chiefs' signature on the great grant. Many of the white visitors to the Council also had an interest in the purchase of Cherokee land. At the specific request of one of these, John Ried, each deed was read and interpreted in its entirety prior to its signing by the chiefs and witnesses.
A clear picture of this phase of the Council is presented by Charles Robertson, a prominent citizen and representative of the Watauga settlement, in a deposition made before the commission appointed by the Virginia assembly on July 3, 1776 to investigate the Henderson land claim:
By the signing of the great grant, the representatives of the Cherokee Nation sold to the Transylvania Company the territory lying between the Ohio and Kentucky rivers on the north and the Cumberland River on the south, a territory comprising over half of the present State of Kentucky and a part of northern Tennessee as far south as Nashville. In return, the Cherokees received money and trade goods valued to a total of 10,000 English pounds. While no accurate inventory of these trade goods is available today, it has been reliably established that included were quantities of such items as guns, lead, gunpowder, tools, corn, flour, salt, hogs, bullets, bearskins, Dutch blankets, ribbons, metal wristbands, brooches, gadgets, and similar items. In addition, there was included a quantity of rum which was not transferred to the Cherokees until the close of the Council for obvious reasons. While the total quantity of these goods appeared large, their distribution to members of the Cherokee Nation left some individuals who received only one shirt apiece, a bit disappointed.
In general, the entire transaction appears to have been open and fair and to the satisfaction of the majority of the Cherokees. Chief Dragging Canoe, in a burst of anger and frustration, told the representatives of the Transylvania Company that they had made a noble bargain, but their new land would become a "dark and bloody ground." This graphic description not only proved prophetic, but has remained associated with Kentucky to the present day.
As the day of March 17, 1775, drew to a close with the grand feast provided by the Transylvania Company for the Cherokee Nation and the white visitors, it marked the end of one of the most historic periods of American history. In a brief period of four days of formal Council, the Treaty of Watauga, or the Treaty of Sycamore Shoals as it is sometimes known, had been drawn up, approved by the Cherokees and signed by the chiefs designated to represent the Cherokee Nation. This action marked the successful completion of the first step of Colonel Henderson's plan of establishing a 14th colony, or perhaps a separate nation, in the country of Kentucky beyond the Cumberland Mountains.
At this point it appears appropriate to pause briefly for a review and analysis of the meaning of the Treaty of Sycamore Shoals from the standpoint of facts, legal standing, and political significance.
The so-called Treaty of Sycamore Shoals or the Treaty of Watauga was actually not a treaty in any sense of the word. Examined in the cold light of law and reality, it was only a quitclaim deed from the Cherokee Nation to the individual members of the Transylvania Company. A detailed analysis of the transfer document indicates the following facts:
As a knowledgeable and well-informed lawyer, Colonel Henderson was fully aware of the facts of this situation. In addition, as an astute politician as well as an ambitious one, his knowledge of the growing unrest throughout the colonies with British rule undoubtedly enabled him to anticipate the Revolutionary War which, even then, was manifesting itself in Boston and at other points along the Atlantic Coast. If there was ever a time to take advantage of a situation, this was it. Richard Henderson and his associates were allowing no grass to grow under their feet.
News of the Treaty of Sycamore Shoals spread like wildfire across the western frontiers of Virginia and North Carolina. The Royal Governors of both states had been disturbed by the news that such a meeting with the Cherokees was planned, and had moved to discourage it.
The apprehension of Governor Martin of North Carolina over these events resulted in his issuance of his proclamation of February 10, 1775, against Richard Henderson and his Confederates. On March 10, 1775, Governor Martin wrote the Earl of Dartsmouth in England:
On March 10, 1775, Colonel Preston again wrote Lord Dunmore of Virginia to inform him that the pre-Council conference with the Cherokees at Sycamore Shoals was already underway. He concludes his report with the following:
It is apparent that Colonel Preston had at least one observer at the meeting on the Watauga who was keeping him currently informed of the proceedings in some detail.
This news, together with the rumors which swept the frontier, so concerned Lord Dunmore that he issued his proclamation of March 21, 1775, against Richard Henderson and his Abettors. In transmitting a copy of his proclamation to Lord Dartmouth in England, he explains that the proclamation was issued:
As Lord Dunmore was personally interested in engaging in enterprises in western lands, the action of Henderson concerned him deeply, and he planned to leave no stone unturned to defeat Henderson's scheme of colonization. Apparently believing that his proclamation would not be honored by Henderson, he dispatched a letter to the Cherokees in which he attempted to influence them against the land sale. He wrote, in part;
He further told the Indians that the King would not permit them to give titles to lands to private persons, and that he, as Governor, desired that they not sell their lands to Henderson, and if they had already done so, he desired they withdraw their sale. In his letter to the chiefs of the Cherokees, he told them that the people of the nearby provinces were alarmed at their sale of land to Henderson, and proceeded to show them that they had no claims to the land they had sold, as the title to these lands had been acquired by the King at the Treaties of Lancaster, Logstown, and Fort Stanwix. In addition, he transmitted copies of his proclamation and of his letter to the chiefs to Colonel Preston requesting him to circulate them along the frontier with the comment, ". . . It may probably have the effect of discouraging Henderson's followers to abandon him and his project."
Among the prominent Virginians greatly interested in western lands was George Washington, who appears to have very much alarmed by the Sycamore Shoals purchase. In a letter to Colonel Preston he said, "There is something in that affair which I neither understand, nor like, and wish I may not have cause to dislike it worse as the mystery unfolds."
John Stewart, Commissioner of Indian Affairs for the Southern District, wrote Lord Dartmouth on March 28, 1775, stating that a proclamation for the arrest of Henderson and his associates had been issued, emphasizing the danger that could result from Henderson's enterprise if it were not stopped.
The Governors of Virginia and North Carolina were on solid ground in issuing their proclamation forbidding Henderson and his associates to take over the Kentucky territory. Their actions were a direct violation of the royal proclamation of October 17, 1763, both in letter and in spirit. Despite the growing resentment against the Crown, there was no legal basis or justification for a group of nine individuals like the Transylvania Company, without charter or other authority, to take possession of British lands for their own use and profit. Dr. W. S. Lester in his book, The Transylvania Colony, sums up this situation with the statement, "It is only logical to conclude that, if the Revolutionary War had not intervened, the British Government would have easily and successfully maintained its rights against the attempt of the Transylvania Company."
Governor Martin of North Carolina appears to have had no personal interest in attempting to prevent Henderson from completing his clearly illegal enterprise. On the other hand, Lord Dunmore was known to be deeply involved in owning and developing the western lands. A Virginia historian relates, ". . . Individual Virginians of means were . . . staking out their claims in the far west. All these speculators found a patron and protector against the British ministry in their new Governor, Lord Dunmore, who became the head of what may be called an inclusive holding company, the exact purpose of which is obscure; but, it was Dunmore and his associates who precipitated, in pursuit of their ends, the Indian War of 1774, called by the Governor's name. The trouble between the Colonies and the Mother Country occuring just at the crucial moment brought to naught what was probably the most cleverly conceived, carefully planned, politically strongest, and most extensively speculated enterprise in the annals of the Colonies."