Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1895-10-31
FAR REACHING OPINION.
JUDGE SPRINGER REVIEWS THE
HAYES ADMINISTRATION CASE.
An Important Opinion Which Touches
the Title to Improvements in the
Cherokee Nation and incidentally
Clearly Defines the Status Of the
Adopted Citizens.

nc ldClc III Iillc Cdct are UTltllN
az follows: J. w. HAYES was form
erly a citizen of the United States
and while being such a citizen of
the United States he married in
the state of Georgia and there were
three children born to him of such
marriage; one of whom is the pc
titioner in this case. His wife. a
citizen of the United States having
died, he removed to the Cherokee
nation and was soon afterward
married to Cherokee woman
woman by blood. Three child
rem were born to him during
this marriage. After acquiring
considerable property in the Cher
okee nation estimated at about
eighty thousand dollars in value,
if we include the value of all i'm
provements on real estate, ant
having carried on a large business
as farmer and merchant for sever
al years he died, leaving his Cher
okee wife as his widow and three
children by her and bis three chill
dren by his first wife who was a
citizen of the United States. His
wife was appointed administra-
trix by this court. In her sched-
ule of property she did not return
the value of any buildings used by
him in his business as a merchant,
such as gin houses, nor did she re-
turn any agricultural improve
ments which were upon the lands
her husband held during his life
time, she having been advised by
her counsel that all improvements
upon real estate passed to the heirs
and not to the Administrative. The
petitioner in this case, one of the
children of his first marriage, has
filed her petition asking for a fur
ther accounting by the administra-
trix as to the improvements upon
the lands which he occupied at the
time of his death. Mr.. n. B. Max
ey was heretofore appointed a
special master and commissioner
for the purpose of ascertaining
what property, if any, which was
owned by J. w. Hayes in his life
time had been scheduled and what
had not been and to report both
his finding of fact and conclusions
OF law to the court. Such report
has been made, and counsel for
both the Administrative and the
petitioner take certain exceptions
thereto, all of which have been
duly considered.
1t appears that the deceased j.
w. Hayes was at the time of his
death an adopted citizen of the
Cherokee nation, that be was
adopted by his intermarriage with
his last wife who was Cherokee by
blood. Section five of the amend
ments TO the constitution of the
Cherokee nation adopted in 1866 is
in part as follows:
Section 5: All native born Cher
okees. all Indians. and whites legally MEM
bers of the nation by adoption, and all freed
men. etc, shall be taken and
deemed 10 be citizens OF the Cherokee nation.
By virtue of this constitutional
provision the status of the deceas-
ed was fixed by the constitution of
the Cherokee nation as that of a
citizen thereof, and as such he was
to be equal with other Cherokees
under the constitution;governed by
the same laws; enjoying the same
rights; possessed of the same i'm
munities and entitled to the same
protection [Opinion of United
States court of claims, March 4,
1895, in the case OF Moses Whit
nire, trustee for the freedmen of
he Cherokee nation. vs.. the Cher
okee nation and the United States,
Mss, p. 3.
The deceased therefore, having
been a citizen by adoption of the
Cherokee nation was in all res
poets, SO far as his estate was con-
cerned, in the same condition as
ether citizens of the Cherokee ma
ton and entitled to the same rights
Of holding property as other citi-
zens in the Cherokee nation.
The learned counsel for the ad-
ministratrix has submitted numer-
Gus authorities in support of the
position which he takes in this
case and also a brief in manuscript
Of his argument He calls atten-
ton of the court 20 some legal fea-
lures OF the case which he states in
his brief as follows:
First-The lands i'm the Cherokee nation be-
ong to the Cherokee nation in fee. The
language OF the patent is to have and 10
hold the same together with all the rights,
privileges and appurtenances thereto he
Onging to the said Cherokee nation forever:
subject to be Invested or rather to revert TO
he United States upon the extinction Of the
nation or the abandonment of the land.
See patent laws Of Cherokee nation. 423. ct
,ecl
Second-The land is held in common: that
:. each citizen is tenant i'm common with
every other citizen. but the title i "A fee
simple title.-Const. Art. l. Sec. >. page II,
10. Amendment to Art. /. See. ). p. 3l.-Ib.
Third-The improvements made on said
and. and i'm possession of the citizens of the
nation. are the exclusive and infeasible prop
srty Of the citizens respectively who made
them or may rightfully be in possession Of
them: provided that the citizens OF the ma
ton possessing exclusive and indefeasibe
right to their improvements. as expressed in
his article shall possess no right or power
to dispose Of their improvements i'm any
manner whatever. to the United States. ind.-
vidual states. or to individual citizens there
)f. -Const. Art. 1. Sec. ..
To the same effect only more
pointed is See. 706, p. 351, pro-
hibiling the sale of farms or other
improvements to any person ex-
cept a bona fide citizen of the Cher
Okee nation.
Fourth-The house. farm and other improve
nents are exempt from sale under execu-