Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1891-04-02
AN IMPohTANT DECISION.
A Lease Being Invalid the Lessee
is Elected.

- GJSSbOOs
District Clerk Trott rendered the
following decision recently which is
probably the first upon this subject in
the nation and is considered of sufi-
cient importance 10 publish entire:
c9NpLAINr FOR WRIT OF EEcrMRNr. .
SARAH Lowrey ct. al vs. Albert Cooper.
This case is brought by Sarah Low.
rey Tor herself aud guardian for her
MINOR children who are also the minor
heirs Of Austin Lowrey, deceased, late
of Cooweescoowee district, q. n.
1t is claimed by the plaintiff that
Austin Lowrey, the late husband of
plaintiff and tho father Of her two mi
nor children leased an improvement
upon the public domain in Coowee-
scoowee district to one William Barnes,
citizen OF the United States and 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 a party de-
feDdant and admitted the allegation,
and further testified that the agree
menls made with Lowrey and his wife
extended the lease to aperiod of fifteen
years from the spring Of 1883.
The question Of fact raised by the
parties to the suit in 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 vesting
| 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 ps 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 vio-
lation OF the law 1t is necessarily void.
From time immemorial the policy OF
this nation has been TO prevent the in
diyiduahzing Of The land aud the mo-
nopoly of the public domain aud until
recent years the federal government
has followed the plan and held to the
doctrine and now by law iorbids the
lease OF Indian lands. The lands of
the Cherokst nation have ever been
held in common and the present con-
stitution in its 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 ofthe improvements even
to any person other than citizen oi
the Cherokee nation. And in pursu-
ance of the 2nd 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 |, section . of the constitution
provides that the 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 o
their improvements in any manner
whatever to the United states, indi
vidual states, or to individual citizens
thereof.
Section ll2, article 22, OF chapter 70
of the compiled laws Of the Cherokee
nation, contains the following pIoyis
ion: "Nor shall it be lawful to rem
any farm or other Improvements in thi'
nation to any person other than 1
citizen Of the Cherokee nation"
Section 2lls, Of the revised statue
U. S, provides that Every person wh'
; makes settlement on any lands be
longing, secured, or granted by trea.l
with the United States TO amy Indial
tribe is liable 10
penalty Of one thousand dollars"
t It's clear that whatever may have
or are the facts as 10 the alleged agree
; ments in dispute, the agreements are in
direct and ilagrant violation Of the ex
I press provision of the law and ar
without binding effect upon eithe
party to the contract. The declares
= purpose of the government OF tn
Cherokee nation is 10 prevent the mo
0 nopoly Of the pnDiic domain which
Q the common heri.ssS cs sll The people
r lUons,itntion article section - T
a admit the right Of any citizen 20 dis
d pose Of their improvements ia an
4 manner whatever, except as is es
$ pressly provided for hy law, for an
a period OF time, would be in yiolatio
5, both Of the constitution and the stat
d ute aud destructive 10 the governmeu
a Itself II the defendants could law
J, fully lease, as they claim, an improv,
y ment upon the public domain for III
q teen years, they might as lawful
B, lease IL forever.
n Whatever equitiek there pay be (,
!, the defendants Is notio this court /
y determine; IL can only determine M
l. law in the case and In so doin
% gives Judgment agajnst the defendant
"A Albert C2rper and William Barnes.
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