The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1893-03-25

provisions of the act OF May 18th 1850.
This is the first time that the govern
ment Of the United States, III any OF 1t
treaties, had ever agreed to issue paten
to the plaintiffs for the outlet; but tn
government has contented itself by guar
anteeipg simply to the plaintiffs an outlet
and 1t will be observed in this iangnaR
| the government does not undertake o
promise to issue patent conveying fe
| simple title to the outlet, but simply
| agrees 10 issue patent according to tn
provisions of the act OF May 2S, 1880.
On the 31st day of December. 1888. Mar
| tin Van Buren,. the president of the Unitet
| States, issued to the plaintiffs. paten
for the lands in controversy. The paten
issued refers to ali of the treaties hereto
fore referred to and made between the
| plaintiffs and the United States, and con
clndes with the following language:
Therefore, in execution of the agree
| ments and stipulations contained in the
| said several treaties, the United States
have given and granted, aud by these
presents do give and grant unto the Cher
| Okee nation, the two tracts OF land sc
surveyed and heretofore described. con-
| tanning in the whole 14,374. 175. IA acres, tc
| have and to hold the same, together with
all the rights, privileges and appurtences
thereto belonging, subject, however, 10
the light of the United States to permit
other tribes of red men to get salt on the
salt plains on the western prairies referred
to in the second article of the treaty OF the
18th Of December. 1895, which salt plain
has been ascertained to be within the
limits of the outlet agreed to be granted
by said article, and subject also to all the
other rights reserved to the United States
in and by the articles herein before recited,
to the extent and in the manner in which
the said rights are so reserved. and sub
lect also to the conditions provided in the
act of congress of the 2Sth Of May, 1880,
referred to in the above recited third ar
ticle. and which condition Is that the
lands hereby granted shall revert to the
United States, if the said Cherokee nation
becomes extinct. or abandons the same"
1t seems to be well settled law that the
president of the United States, in issuing
patents to land, simply acts ministerially,
or as the agent of the United States, and
that he would have no right or power to
convey more land than is authorized by
an act of congress, or by a treaty, or by
any power conferred upon him. than such
treaty or act of congress authorized him
to, neither would he be authorized or en-
powered to confer a greater estate by his
patent than he is specifically authorized
by the United States government to con-
vey, and the supreme court OF the United
States have SO held.
BY close and critical examination of
all the treaties heretofore cited, it will be
observed that the government of the
United States at no time agreed to convey
fee simple title of the outlet
to the plaintiffs, but it only guaranteed
to the plaintiffs an outlet, or the use of
the land in controversy, for the purpose of
lngress and egress to and from their home
land, to which they did have. and which
the government OF the United States
promised they should have, fee simple
title. a patent is nothing more or less
than deed of the government of tho
United States, and the same rules of cou-
struction should be applied to patent
that are applied to deed.
therefore conclude that the plaintiffs
in this case have nothing more or less than
the right to use the lands in controversy as
an outlet, and that it was never intended
or agreed upon the part of the United
States that they should own and have a
fee simple title to the outlet, and that the
treaties, or acts OF congress referred to, are
a part and parcel of the patent in this case,
and the basis OF the patent in this case
But the plaintiffs cOntvNd that, even if
this conclusion is correct one, and that
they do not own fee simple title to the
outlet, yet that the defendants in this
case are in no condition to question their
title, and claim that the title can only be
questioned by the grantors, or. in this
,,
and l think that this position is, well
taken, and that, as between these defend
ants and the plaintiffs, the plaintiffs have
such an interest in the land In controversy
as would in the absence OF any prohibition
upon them to lease or dispose of their
interest to defendants, to confer some
rights upon the defendants. While the
plaintiffs have not fee simple title to
she outlet, yet they have such title as
will preclude the defendants, who have no
title and claim none, except such as they
have attempted to acquire through and |
from the plaintiffs, from questioning their |
title so long as the United States see fit to |
not question the same. The defendants |
claim that the plaintiffs by ceding part Of |
their lands, which lay between their home |
tract and the outlet, to the Osages and |
thereby abandoned, and has reverted to |
the United States. If this question were |
raised by the United states, or some one |
grant from the United States, |
here would be much force in it, but the |
defendants are in no position to plead the |
tights of the United States.
The plaintiffs claim that provision of |
he treaty of 1866, which provided that the
United states might settle friendly In-
iians upon the outlet when such lands
we're paid for by the United States or the
purchaser, to the plaintiffs, was a recoo-
lition Of their title by the government,
Ind cite a statement of Judge Parker to
hat effect. Upon the other hand the de-
endants claim that plaintiffs have never
before claimed fee simple title to the
,utlet, and cite the fact that the Cherokes
adopted Sept. 6, 1889, pro-
rides that the boundary of the Cherokee
,ation shall be that prescribed in the
reaty of 1888, which, it will be observed,
Vas after the patent of the Cherokees was
ssued. They claim that the Cherokee
constitution was amended in 1866, and
his language as TO the boundary
vas retained, and further that Cherokes
avs of long standing provided that the
nation shalt be divided into nine
districts, as follows: [giving the districts
The districts thus bounded cover the home
ract and do not cover the outlet o. any
,art of it. 1t is claimed that ny these
laws a district court is provided
or each of the districts; that no Cherokee
ourt or officer, however, is given any
Jurisdiction whatever in the outlet.
I a Cherokee murder a Cherokee in the. |
'utlet. no Cherokee court has any jurisdic-
ion whatever of the offense, and has never
lad. If a person not a Cherokee there |
murder Cherokee, no Cherokee court
las jurisdiction. No Cherokee official can
xercise any power whatever or authori-
Y in the Cherokee outlet; and
{ is claimed therefore that it is absolutely
ertain that the Cherokees have not, and
lave never had. and their laws never
any jurisdiction over the outlet.
md that. by the limitations, their laws
disclaim it.
The claim of the plaintiffs that bv the
reaty Of 1866 the government had recog-
lized the title TO the outlet to he in the
Plaintiffs seems to be offset by the fact
hat the plaintiffs in the case seemed to
lava by their constitution and their laws
lisclaimed any fee simple little to the out
ct or Jurisdiction over IL, and the respec-