Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1894-12-27
THE DELAWARE DECISION


(COntnueu from page ~
were made in the boundaries of
the reservation and the outlet, and
by article 3 of the latter treaty il
was provided that "the United
States also agree that the lands
above ceded by the treaty of Feb.
IA, 1888, including the outlet, and
those ceded by this treaty shall all
be included in one patent executed
to the Cherokee nation of Indians
by the president of the United
States according to the act Of May
%, $780,"
Under these treaties, and in Dec.
1888, a patent was issued to the
Cherokees for these lands. By
that patent, whatever of It'll Q was
conveyed was conveyed to the
Cherokees as a nation, and no title
was vested in severalty in the
Cherokees, or any of them. The
constitution of the Cherokee ma
tion, both as originally adopted in
1889 and as amended in 1886, de-
clares in article 1, section 2, that
"the lands of the Cherokee nation
shall remain common property"
and while the amendmtnt contem-
plates a time at which these lands
shall cease to oe common proper
ty, it is only when. by article 20
of'the treaty of 1866, the national
council shall request that they be
surveyed and allotted in severalty
to the Cherokees. Not only does
the Cherokee constitution thus
provide that the lands shall be
common property but also the leg
islation of the Cherokee nation
from 1889 on to the present time
abounds with acts speaking Of
these lands as public domain" or
common property" 0fthe Chero.
kee nation. Quite n number of
these acts are collected in the
opinion OF the court Of claims in
this case.
Now, il these lands be the pub
lie domain, the common property
of the Cherokee nation, all who
are recognized as members and
citizens of that nation are alike in
terested and alike entitled TO
share in the profits and proceeds
thereof. Given, therefore, the
two propositions that the lands
are the common property Of the
Cherokee nation, aud that the
registered Delawares have become
incorporated into the Cherokee
nation and are members ahi citi-
zens thereof, it follows necessarily
that they are equally with the
native Cherokees the owners Of
and entitled to share in the profits
and proceeds of these lands.
AS against this conclusion the
argument of the council for the
Cherokees runs along these lines:
First, that the terms "rights and
immunities" refer only to politi-
cal rights and immunilies, and do
not include property rights; Sec
ond, that it is specifically provided
that the registered Delawares shall
have equal participation in the
national funds, while no mention
Is made of these lands which con-
stituted the bulk of the Cherokee
property, it is to be taken that no
interest therein was intended to
be transferred; that this is
strengthened by the fact that there
was a stipulation for the purchase
OF certain lands at one dollar per
acre; and, fourth, that the con-
tribution of the Delawares to the
national property was so small
and the value Of these lands so
great, that il could not have been
in the contemplation Of the parties
that the Delawares we're to receive
any interest in them.
Commenting generally upon
this line Of argument, it is rather
an endeavOr to induce the court to
reconstruct the contract and frame
une more in accord with what,
from the present standpoint,
would seem to have been equi-
table, than to interpret the con-
tract which the parties made, in
accordance with the pluin import
of the language which they used.
1t is true that rights and i'm
munities", are often used as des-
criptive Of only political rights and
immunities, and do not necessarily
include property rights, SO that If
these were the only words by
which the intent Of the contract
ing parties was to be determined, &,
there would be room for the argu-
ment that only political rights and
lmmunities were intended to be
granted. But it must be borne in
mind that the rights and interest
which the native Cherokee had in
the reservation and outlet sprang
solely from citizenship in the Cher
okee nation, and that the grant of
equal rights as members Of the
Cherokee nation naturally carried
with it the grant of all rights
springing from citizenship. So
far as the provision in the agree.
ment for the purchase OF homes
is concerned, it will be perceived
that no absolute title to these
homes was granted. We may
take notice Of the fact that the
Cherokees in their long occupa-
tion or this reservation had gen.
orally secured homes for them
selves; than the laws Of the Chero-
kee nation provided for the appro-
priati0n by the several Cherokees
Of lands for personal occupation.