Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-02-23
IMPORTANT DECISION.
Judge Parker's Decision In the case Of
the Cherokee Nation vs.. The South.
ern Kansas Railway Company.
he Holds II a Proper Case for the Exercise
by Congress OF the Sovereign Blight of
Eminent Domain.
Special 70 the Gazette.

FORT SMITH, lark, Fep.i 22.-Judge
Parker yesterday in the Federal court de-
.cided the case of the Cherokee Nation vs..
the Southern Kansas Railroad Company.
Congress passed law giving to this
company the right-of- way for its railroad
through the Cherokee Nation on its pay
ing the Nation $50 90 per mile and paying
the individual occupants Of the lands for
their improvements. The Cherokee Ma
ton, by its attorneys, Hon. james Nc
Donald, Bright, Fay and Boudinot, filed 8
a bill in equity asking for an Injunction to
restrain the company from building its
road, On the ground that Congress had no
power to grant this 1ight-of-wsy in the
Cherokee Nstion. That the right of emf
nent domain was not in the United States
when the enjoyment Of whatever rights or
privileges flowing from it WAS to Toe had
in the country OF the Cherokee Natiop, bpf
that such rights Was in the Nation alone
A demurrer was filed to the bill by Hons.
W. N. and G. B. Rose and George W.
McCrAry, attorneys for the railroad COM
pany-they taking the ground that the
bill WIS without equity because the right
of eminent domain was in the United
States and not in the Cherokee Nation.
This was the leading question In the case,
and because Of this no more important
case has Been in the courts of the country
for yeafs.
Thecourts sustained the demurrer, re-
fuse4 the Injunction and dismissed the
bar
1.-THE case wilI;be at once appealed TO
the Supreme court of the United States.
In passing on the case the following
points were decided by the court:
Eminent Domain, What It Is.-It Is the
rightful authority which exists in every
sovereignty to control and regulate those
rights of public nation which pertains
10 its citizens in common, and to appro-
priste and control individual property
without the consent of the owner upon
the payment Of just compensation to the
owner for the public benz lit IS the public
safety, necessity, convenience or welfare
may demand.
10 What 1t Pertains Eminent domain
pertains alone to sovereignty. Itbelongs
butes of sovereignty.
Titles Of Lands Of Cherokees.- title
to all the lands Of the Cherokee nation
vas obtained by grant from the United
States. This title is q
base, qualified or determin&ble
fee without the right Of reversion, but
only the possibility of reversion in the
United States. This in effect puts all the
estates in the Cherokee nation.
Power OF ngress.-Congress cannot
grant right of wHy over lands Of Cher
okee nation without its consent, on the
ground that the Unite d States has title
to such land. II 1t can do so it must be
done because the government of the
United States can exercise with reference
to the lands Of the Cherokee nation the
right of eminent domain.
Sovereignty, What it Is.-By sover-
eighty in its largest sense is meant su-
preme, absolute, uncomfortable power,
the JUS spinml impri, the absolute right
to goEern. Sovereignty in govern
ment "a that public authority which
diFsese or orders what is to be
l5ene By each member OF society in rela-
ton to the end of the association or Or
ganizstion.
Government is not sovereignty, but is
the machinery or expedient for expressing
the will of the sovereign power.
Eminent Domain, What it Grows Out OF.
The right Of eminent domain does not
grow out Of the tenure by which lands are
held. When the government asserts the
rights it admits title in the one against
whom it is asserted.
The right of eminent domain exists in
dependent of the consideration whether
the lands would escheat to the govern
ment in case of failure Of heirs.
Cherokee Nation, Under What Po-
litical Control. = The Cherokee M
ton, whilst it owns the soil Of
its country, is under the political
control Of the United States and is de-
pendent on it for its political rights. This
as the history of this country hiss SO
often demonstrated is necessary for the
protection Of its people.
The Cherokees not Sovereign.-The
Cherokee nation is not, therefore,
sovereign, for Its dependence en- the
United States forbids the idea Of existence
Of sasereIgnty in the Cherokee nation as
against the Uoited States. II not SOW
ereigu it cannot IS against the United
States have the right Of eminent domain as
an inherent right. II cannot have 1t because
it has been granted to it by the govern
ment, as the government cannot grant
away the sovereign powers of the people.
The Difference Between the Rights of
Property and the Rights of Sovereignty
The lights Of property are defined and be-
come vested according TO the terms of the
grant. The right Of sovereignty is in
aliensble and rests in the discretion Of
the government, to be exercised without
let or hindrsnce over sny part Of the ter
ritory subject to its political control. In
case where it exists In the government
Of the United States every provision Of q
law or treaty purporting to restrain its
full and free exercise by the government
would be void.
The Right Of Eminent Domain Belongs
either to the Federal Government or
the Government of the United States
ETbe right to be exercised in q state
must be obtained from the state in all
cases except where the Federal govern
ment seeks to exercise 1t IS being neces-
sary to the enjoyment OF the powers con-
ferred upon 1t by the constitution. In the
territories the right Of eminent domain
belongs to the Federal government.
Status of Cherokee Natior-The Chero.
kee Estion is neither state nor territory
IN the sense Of these words IS used in the
constitution of the United States. It hiss
qualified autonomy,a local government,
but 1t does not come within the meaning
Of either stste or territory, but is part
| of what is called Indian country.