The rustler., 1891-09-25
CHEROKEE CLAIMS.
Tho Federal ceart Decides Against ~
ch~rekss Ciaim 90 the outisi -only an
night Of Exit.

Nnerokee etrir stone quarry case. deny
Ing the application Of the cherol..es
for an injunction and giving the title
oi the strip 10 the government This
is the worst knockout the Cherokees
have ever received and il believed 10
insure the early sale Of their equity In
the strip and It's opening 10 settlement
Judge Green. In commenting upon
the case, refers 10 the treaty OF May d
ISIS, one section of which states: "It
being the anxious desire Of the govern
ment 20 secure for the Cherokee In
dians. to remain theirs forever. not to
be encroaehed upon and not TO be in
cluded within the lines Of any state or
territory, resting upon the pledge given
these Indians by the president and the
secretary of war In March. ISIS. and
October = 1871 In regard % an
outlet 70 the west Il was the
desire of the government 20 give
the Cherokees n permanent home and
also secure 20 them an outlet 10 the
west The United States agreed TO
possess the Cherokees and guaranteed
10 them forever. 1000. 600. 600 acres of
land In a treaty made at Newpapota,
Ca, December 20. 1856. the same pro-
visions were made. In the treaty the
Cherokees were sold an additional
tract of 500. 600 acres, as they found
that there would not be room enough
in the original 1000. 900 acres for the
eastern Cheroitees who were now about
10 join the tribe In their western home.
IL was also agreed that all OF the
lands should be included In the one
patent to be issued by the president In
accordance with the PROVISIONS of the
act of May rs 1850. This act provided
that the president could exchange lands
west of the Mississippi with any Indian
tribe for lands they might own in the
east and give said tribes patent for
lands so exchanged, provided that said
land revert TO the United States II the
tribe became extinct or abandoned the
same
On December 81, 1888. the president
gave the Cherokees patent in which
all the provisions of various treaties
were set out The patent gave and
granted TO the Cherokees two tracts,
aggregating i4.074. i35 acres. forever TO
be held by them subject to the prov!s-
ions of the act of May 2s, ls2O.
The condition OF Che patent in regard
to the abandoning of the land is not in
the treaties, and there are serious
doubts as To the validity of the condi.
tion on this account In the case of
the outlet the Indians are guaranteed
an outlet and free and uumolested
use of the same. There is no qualifca-
tion whatever regarding the use of the
home tract But according to the pat
ent the strip can be used for the pur-
pose OF an outlet and no other.
The estate OF the Cherokee nation is
n base qualified or tenablc fee, and
that, too, whether the abandonment
condition be retained or abandoned. A
base or qualified fee is one with a con-
dition attached and which must be de-
tcrmined whenever the qualification
annexed is at an end.
The instrument specifies that the
land in question is TO be used only as
an outlet and the law annexes the quail
ification that IL can he used for no
other purpose. II qualified or base
for the qualification or circumstances
upon whose existence or non-cxistence
the estate depends, enters into the linn
itation, IL becomes an integral part of
the estate itself, and when the state
of affairs comes To an end the estate
itself ipso facto ceases
In conclusion the judge said: 'Bv
operation of this treaty the title of the
Cherokee nation to the lands in the
Cherokee outlet is made subject to ex-
tinguishment in favor of friendly tribes
of Indians to be settled by the United
States and in consequence of such
agreement the Usage and several other
tribes have acquired title To large
tracts of land ia the eastern end of the
outlet thus cffectually destroying the
use of the outlet 70 the Cherokee ma
ton. But as to the lands not sold the
Cherokee nation still retains its pos
session, and jurisdiction being the same.
possession aud jurisdiction which il had
under the prior treaties and the patent
of 1858. and the provisions OF the treaty
that the United States may settle
friendly tribes of Indians in any part
of the Cherokee outlet, clearly shows
that at the time the treaty was made
the Cherokee nation did not claim the
right under the prior treahek"
Judge Green says that IL the Cherokee
nation has ceased 10 use the outlet the
cessation Of use has termiaated their
estate and the lands have reverted to
the United States but whether there
has been cessation eff the use is rather
n political than n judicial question,
which should be settled by congress
and the chief executive.
II follows from the conclusion reached
ns to the rights of the Cherokee nation
in the Cherokee outlet that the COM