Barton County democrat. [volume] (Great Bend, Kan.) 1885-1915, 1891-09-24

his decision yesterday in the famous
Cherokee strip stone quarry case, deny
ing the application of the Cherokees
for an Injunction and giving the title
of the strip to the government This
is the worst knockout the Cherokees
have ever received and is believed to
insure the early sale of their equity in
the strip and its opening to settlement
Judge Green. in commenting upon
the case, refers to the treaty of May 6.
1928, one section of which states: cit
being the anxious desire of the govern
ment to secure for the Cherokee In
dams, to remain theirs forever, not to
be encroached 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, 1918, and
October 8. 1921" In regard to an
outlet to the west it was the
desire of the government to give
the Cherolkees a permanent home and
also secure to them an outlet to the
west. The United States agreed to
possess the Cherokees, and guaranteed
to them forever, 1000. 900, 600 acres of
land. In treaty made at Newpapota,
Ga. Decem Der %, 1885, the same pro-
visions were made. In the treaty the
Cherokees were sold an additional
tract of 800. 600 acres, as they found
that there would not be room enough
in the original 1000, 900 acres for the
eastern Cherolzees who were now about
to join the tribe in their western home
1t 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 %. 1880. 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 if 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 IA, OLA, 1S5 acres. forever to
be held by them subject to the prov;s-
ions of the act of May %, 1920.
The condition Of the 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-
ton on this account. In the case of
the outlet the Indians are guaranteed
an outlet and free and unmolested
use of the same. There is no qualifica-
ton 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
a base. qualified or tenable fee, and
that, too, whether the abandonment
condition be retained or abandoned. A
base or qualified fee is one with con-
dition attached and which must be de-
termined 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 it can be used for no
other purpose. If qualified or base
for the qualification or circumstances
upon whose existence or non-existence
the estate depends, enters into the linn
itation, it 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: ''By
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 in the eastern end of the
outlet, thus effectually destroying the
use of the outlet to 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 and jurisdiction which it had
under the prior treaties and the patent
of 1888. 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 treaties"
Judge Green says that if the Cherokee
nation has ceased to use the outlet the
|. cessation of use has terminated their
estate and the lands have reverted to
the United States, but whether there
a political than a judicial question,
which should be settled by congress
and the chief executive.
It follows from the conclusion reached
as to the rights of the Cherokee nation
in the Cherokee outlet that the com
plainants, who claim under license of
the Cherokee nation, have no right to
operate the stone quarry in question,
znd their acts in doing so are wrongful
and court of equity will not lend its
aid to protect them in a wrongful act,
and in view of the conclusion reached
upon the question involved it is
unnecessary to consider the other ques-
tons argued The application of tenn
porary injunction will be denied and the
restraining order dissolved.
Notice of appeal was entered and the
case goes to the supreme court
Clippings.
A court house was sold one day re-
Gently in Georgia for SIS.