National Republican., 1888-02-28
AN IMPORTANT DECISION
As TO THE RIGHTS OF RAILWAYS IN
THE INDIAN TERRITORY.
Judge Parker Rules That the Right of
Eminent Domain Does Not Belong to
the Cherokee Sation - An Appeal
Taken,
rspec,a, to St. Louis Globe. D, m,crat

ker to-day, in the federal court, decided the
case of the Cherokee Nation We. The South
ern Kansas Railroad Company.
Congress passed law giving to this
company the right OF way for it's railroad
through the Cherokee Nation on It's paying
the nation $50 per mile and paying the nll
yidual occupants of the lands for their im.
provements.
The Cherokee Nation, through It's attor-
neys, Hon. Joseph Mcdonald, Bright, Fay,
and Boudinot, filed 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 right
OF way in the Cherokee Nation; that the
right OF eminent domain was not In the
United States, when the enjoymeDtot what
ever rights OF privileges flowiog from It twas
to be had in the country Of the Cherokee
Nation, but that such right was in the ma
tlon alone.
4 demurrer was filed to the bill by Hons.
[. NJ. and &. d Rose aud George w. Me-
Crsty, attorneys for the railroad company,
they taking the ground that the bill was
without equity because the right OF euil.
nent domain was In the Cuitea states and
leading question In he case and because Of
this no more Important case has been in tue
courts OF the county for years.
Tue court susta'ue the demurrer, refused
the Injunction, aud disn ssed The bill.
The Ease will he at olce appealed to the
supreme Court OF the United states.
In passing GU the case the following points
were decided by the court:
/. Eminent domain. What 1t Is 1t Is
the rightful authority which exists IN every
sovereignty to control and regulate 'h >se
rights Of a public nature which pertain 10
its citizens III common, and to appropriate
and control individual property without
the consent Of the owner upon the payment
OF Just compensation to the owner, for the
public teueilt, as the public safety, neces
si,y, convenience, or welfare may demand.
To what 1t pertsiLs--EmtDeut dom lin
pertains alone to sovereignty. Il belO iCs
to no etber power. IL is Que of the attct.
tutes Of sovereignty.
3. Title Of lands OF Cherokees-The title
| to all the lands OF the Cherokee Nation WAS
| obtained by a grant from he United States.
| This title is base qualified or determine.
ble fee without the right Of reversion, but
only the possibility OF reverslon In the
| United States.
This in effect puts all the estate in the
Cherokee Nation.
1. Power Of ongress-Congress cannot
grant right Of way over lands of the
| Cherokee Nation without its consent, on the
ground that the United States has title to
! such land. IL It can do so, 1t must be done
because the government OF the United
| States can exercise with reference to the
lands OF the Cherokee Nation the right OF
emiE ent domain.
). sovereignty-What 1t is-By sover-
eighty, in its largest sense, is meant su.
preme, absolute. uncomfortable power, the
F,t, s,,aaa. tha ahc n
| govern. Sovereignty In government Is that
| public authority which directs or orders
what is to be done by each member OF SO.
| ciety In relation to the end OF the associa.
| tion or organization. Government is not
sovereignty, but is the machi merry or expe-
dent for expressing the will Of the sover-
| eign power.
6. Eminent Domain, What 1t Grows Out
| Of.-The right Of eminent domain does not
| grow out OF the tenure by which lands are
held. When government asserts the right
| II admits title In the one against whom 1t
| Is asserted. The right OF eminent domain
exists Independent Of the consideration
whether the lands would escheat to the
| governu ent IN case Of a failure Of heirs
| : Cherokee Nation, Under what Politt-
| cal Control-The Cherokee. nation, while
| II owns the soil OF It's country, is under the
| political control Of the CDittd States, and
| is dependent on It for It's political rights.
This, as the history Of this country has 81
| often demons, rated, is necessary for the
protection OF It's people.
5. The CheroBess not S)v. reign -Tne
Cherokee Nation is not, therefore, ,soyer.
| eign, for its dependence on the Unitel
States fortits the idea OF the existence o.
sovereignty In the Cherokee Nation al
against the United States. II not sovereign
1t caInot, BIS 8gaiust the United States
have the right Of eminent domain as an in
herent right. IL cannot have II because 4
has been granted to 1t BY the government
as the government cannot grant away th
sovereign powers Of the people.
| 0. The Difference Between the Rights o
Property and the Rights Of Sovereignty -
The tights Of property are defined aud be
| come vested according to the terms OF th
grant. The right OF sovereignty is inallen
able and rests in the discretion OF the gov
erpment, to be exercised without let or hin
drance over any part Of territory suhisc
| to its political Dntrol. In case where /
exists in the government OF the Unite,
States every provision OF law or treaty pur
| porting to restrain its full and free exercis
by the government would be void.
10. The right OF eminent domain belong
either to the federal government or tn
government of the states.-The right II
be exercised In state must be obtainet
from the state in all cases except when tn
federal government seeks to exercise 1t a
being necessary to the enjoyment Of th
powers conferred upon II by the constitu
lion. In the territories the right OF em
nent domain belongs to the federal govern
ment.
II. Status OF Cherokee Nation. - rh
Cheroke Nation is neither state nor terri
tory In the sense OF these words as used l
the constitution OF the United States.
has qualified autonomy, local govern
ment, hut 1t does not come within tn
meaning OF either state or territory, but Il
a part OF what is called Indian country. Th
Cherokee Indians are under an India
agent; their tribal organization is recognize
by the political department Of the nationa
government as existing, although thei
broken into by the progress they have mad
toward civilization. Yet while the intel
course. laws enacted by the nations
government are applicable to them, thoug
they may have local government OF thei
own, 1t cannot, with any reason, be sal
that as against the government of til
United States they are sovereign peop!
or have the power which Is Inherent I
sovereignty. That they are not sOvereg
Is apparent from the treaties made wit
them by the United States-from the Law
, Of Congress enacted for their gOveTnmer
and from the opinions az to their status rit
/, livered at different times IN the history {
the county by the Supreme Court of tn
. United States.
10. Eminent domain cannot he deli
gatt d.-The right Of eminent domain car
> not he delegated. The enjoyment Of wha
ever privileges or rights may how from th
powerhaying been exercised may be granite
to another than the sovereign, but wnen Ill
power will he invoked Is TO be determine
by the agent Of the sovereign, Ia this cas-
the Congress Of the United States as til
agent Of the people thereof Congress ca
only exercise the right Of eminent domai
and cannot grant 70 another the power
saying when II shall be exercised.
13 In favor OF what purpose can III
righi,of eminent domain he cxprclsedy Tn
| use Of the rights or privileges flowing froa
the exercise Of eminent domain NAV b