Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1896-08-06
SOME KNOTTY PROBLEMS
For the Dawes Commission TO Solve,
With Help of Council.
Tahlequah Sentinel.

Seltle llldn contemplated ny lnc
writer in the Vipita Chieftain
whose article was copied in last
weeks Sentinel.
The departments OF government
under the Cherokee constitution
are separate and distinct. The
judicial may not encrouch upon
the legislative nor may the legis-
lative department exercise powers
essentially judicial unless express
authority is found therefor in the
constitution.
The admission or readmission
to citizenship is essentially judi
cial act. The council is vested
with power to readmit but none to
admit in the first instance. The
term readmit implies previous tri-
bal relations and constituting the
provision with reference to read
mission with that providing that
absence from the nation with all
effects and becoming citizen of
another country shall forfeit citi-
zenship, it would seem that the
council only has authority to read
NIT those who have already resided
in their nation and been in tribal
relations.
The act of congress continuing
the Dawes commission provides
that in the determination of the
right of citizenship the commission
shall respect the laws of the tribe
not inconsistent with the laws OF
the United States, and all treaties
with either of said nations, and
shall give due force and effect to
the rules, usages and customs of
the nations or tribes.
What Interpretation are we to
give to the terms usages and GUS
toms? Can usages and customs
change the constitution as 1t exists?
Does the fact that the council has
admitted many who have never
before been in tribal relations, give
it other or greater power than con-
ferred upon it by the constitution
of the Cherokee nation? A custom
contrary to law is no custom at all.
1t is a nullity SO far as being a rule
is concerned
Again, the readmission by the
council seems a discretionary act
or act of grace merely. Does the
Dawes commission step into the
shoes of the council and become
vested with its power? If so, does
it also become vested with the
power TO readmit as all act of cOur-
tesy or grace?
The truth is there is no provis-
ion in the laws of the Cherokee
nation for admitting anyone to
citizenship nor is there power con-
ferred on any department of gov
ernment to do this act. Those
who have lived here and haye lost
their citizenship may be readmit-
ted and there the power ends.
Again, this is purely a matter of
grace or favor and unless the coun-
ell sees fit to readmit it may re-
fuse to do so. 1t is absurd to say
that the Dawes commission is
vested with this discretion or grace
to readmit.
Then what are the powers of the
Dawes commission? If it has any
powers at all, it is to decide who
are citizens under Sec. 3, Art. III,
OF the constitution, which pro-
vides: "All native born Cherokees,
all Indians and whites legally |
members by adoption x X and
their descendants who reside with
in the limits of the Cherokee ma
tion shall be taken and deemed to |
be citizens of the Cherokee na-
ton"
Those who come within the per-
view of this provision are, ofright.
Cherokee citizens and may insist
upon the commission admitting
them to citizenship. This amend
ment to the constitution was
in 1866. Those who re-
sided in the Cherokee nation at
that time and were of Cherokee |
blood come under its provisions. |
There is little or no work for the |
Dawes commission along this line
for very few of the applicants can
prove residence in the Cherokee |
nation in 1866.
We must look to their treaties |
for any warrant for the admission
of those not coming within the
provision of this section. If not |
in some of the treaties then there
is no work for the commission to
do.
1t is plain that this class are
entitled to citizenship, but there |
may be another class who are also |
entitled. The treaties made by |
the Cherokee nation with the Uni !
ted States are paramount to the
or laws of the nation.
By act 2 of the treaty of1S5S the |
United States agrees to possess
and guarantees to the Cherokees |
forever the land now occupied by |
them. By Art. |, of the treaty of |
1884 this guarantee is confirmed.
Article III of the treaty of 1886 re-
cites the conveyance of this land |
to the Cherokee Nation of Indi-
ans" 1t is provided in Art. VIII |
of that treaty, ''that such |
Cherokees also as reside at present |
out of the nation, and shall re-
move with them in two years west
of the Mississippi, shall be entitled
to allowance for removal and sus-
tenance as above provided" There
is nothing in the treaty indicating
a loss of tribal rights, but only
loss of the allowance for subsis-
tence, by a failure to remove. Re-
ally such language would seem to
recognize the right of a Cherokee
to remain east if he saw fit and
was willing to lose the benefit of
allowance for subsistence.
Article | of the treaty of 1916,