Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1891-04-02
AN IMPORT ANT DECISION.

AN IMPORT ANT DECISION.
A Lease Being Invalid the lessee
is Elected.
District Clerk Trolt rendered the
following decision recently which ia
probably the first upon this subject in
the nation and is considered Of sufi-
cienf Importance to publish entire:
COMPLAINT roR wRtf OF sJEcrMENT.
Sarah Lowrey ct. al VS. Albert Cooper.
This case is brought by Sarah Low
rex for herself and guardian for her
MINOR children who are also the minor
heirs Of Austin Lowrey, deceased, late
4 Of Cooweescoowee district, q. N.
1t is claimed by the plaintiff that
Austin Lowrey, the late husband Of
/ plaintiff and the father of her two nil
nor children leased an improvement
upon the public domain in Coowee-
scoowee district to one William Barnes,
a citizen Of the United States aud not
citizen of the Cherokee nation, for a
period Of years with the further agree
ment that the same was guaranteed
to Barnes for not less than seven years.
This allegation was not only not de-
MED by defendant but upon the case
being called William Barnes on motion
Of bis attorney was made party de-
feudant ana admitted the allegation,
ami further testified that the agree
menls made with Lowrey and his wife
extended The lease to aperiod Of fifteen
years from the spring OF 1886.
The question of fact raised hy he
parties to the suit ia the judgment Of
the court has no relation to the merits
Of the question raised by the complaint.
The only province Of the clerk acting (
under authority Of the statute yesting
him with judicial power to try COM
plants OF this character, is to deter .
mine the legality OF the possession of .
occupancy of the defendants. The
question is not as much as TO whether
defendants possessed by contract as
whether such contract, il there be one,
is lawful for If contract be made
without the authority Of law or in yio- .
iaiion of the law It is necessarily void.
From Time immemorial the policy of .
this nation has been TO prevent thei .
diyiduahzing Of the land and the mo
nopoly Of the pnblc domain and until .
recent years the federal government
has followed the plan and held to the /
doctrine aud now by law iorbids the .
lease OF Indian lands. The lands of
the Cherokee nation have ever been
held in common and the present con-
stitution in it's first provision to estab .
lish justice, insure tranquility, pro-
mote the common welfare and to Sc
cure TO ourselves and our posterity
the blessings of freedom, declares the .
lands common property and forbids .
the transfer Of the improvements even
to any person other than a citizen of
the Cherokee nation. And in pursu
ance of the End section Of that instru
ment the national council Immediately
following its adption forbid by statute,
duly enacted, the renting OF improve
ments to citizens of the United States.
Article l, section Of the constitution
provides that tie citizens of the ma
ton possessing exclusive aud inde-
feasible rights to their Improvements
as expressed in this article shall pos
sess no right or power to dispose Of
their improvements in any manner
whatever to the United States, indi-
yidual states, or to individual citizens
thereof.
Section ll2, article %, of chapter u,
of the compiled laws Of the Cherokee
nation, contains the following provis-
ion. "Nor shall it be lawful to rent
any farm or other Improvements in this
nation to any person other than a
citizen of the Cherokee nation
Section PTS, Of the revised statues
L. S. provides that every person who
makes a settlement on any lands be-
longing, secured, or granted by treaty
with the United states to any Indian
tribe is liable to a
penalty OF one thousand dollars"
Tits clear that whatever may have
or are the facts as 10 the alleged agree
ments 10 dispute, the agreements are in
direct aud flagrant violation Of the ex-
press provision Of the law ami are
without binding effect upon either
party TO the contract The declared
purpose or the government Of the
Cherokee nation is 10 prevent the mo-
nopoly of the puoiic domain which is
the common heritage Of all the people.
Constitution article section p To +
admit The right Of any citizen to dis
pose Of their improvements ia any
manner whatever, except as is ex-
pressly provided for By law, for any
period OF time. would be in violation
both Of the constitution and the stat
ute and destructive the government
Itself II the defendants could law
fully lease. as they claim, an improve
ment upon the public domain for hf-
teen years, ihes might as lawfully
lease DO forever
Whatever equities there may be for
the defendants Is not tor this court TO
determine, 20 can only determine fhe
Jaw in the case and in So doing
gives judgment against the defendants.
Albert Coo per and William Barnes.
"a II Trnrr