Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1897-12-16

lutely master of the public domain
who acquired his title, not by any
deed in fee simple. but by con
quest. Hence, in law, though no
in right, his tenure was allodial ii
nature, and his title something
higher than a fee. If the Chero
kee government owns the "publit
domain, its estate must, by lega
necessity, be an allodium and no
a fee. But the patent does not
nor does it pretend, TO carry an al
lodial estate.
But one error naturally fathers
another; it is always so. 1t was d
great error, (not to say grea'
wrong,) in these judges to take
this land away from these Indians
and give it to that poor, little,
imbicile creature called the Cher
okee government which is expect
ed every day to die the death of a
lelon under the legislative axe OF
congress; il was great and cruel
blunder.
This being done, however, lei
us now inquire briefly of these
learned magistrates as to what
they are going to do with these in
nocent, helpless people whom they
nave so sweepingly impoverished.
rhe great trouble which the judi
clal mind has experienced in find
ing some place Tor them which is
consistent with, and which can at
the same time, give credit to, the
disposition made of the title, is
very plainly manifested in the
negative, doubling, manner in
which Judge Springer himself
handles the subject. He says the
Cherokees have a right to occupy
these lands But possession is the
fundamental element of title in
common. 1t would not do to con-
cede that they are holding the es-
tate in common, because that
would defect the absolute title
which he has just now bestowed
upon the Cherokee government.
Hence it becomes necessary, in or
der to sustain his position for him
10 modify his concession, bv add
ing that this occupancy is not COM
mon, but in soveralty; a condition
which could establish, at best, on
ly a possession" in severalty;
which would be insufficient TO
sustain a title in common But
here Judge Springer seems TO be
in conflict with some very respect
able adjudication in this country.
The possession of one of the ten
ants in common is held to be the
possession of ALL" Kent's Com.
4th Vol, Blackstone Pub. Coz
note 9, p. 36S.
These Indians, then, are not
tenants in common. "Nor." says
the honorable judge, "are they
joint ten ants, for joint tenants hold
in fee simple. and there must be a
unity of interest, unity of title,
a unity of time and unity of pos
session." That is so; but what
about the unities in this case? The
president of the United executed a
patent to these Indians, in the pro-
visions of which there was not the
least distinction made, or ever
thought of existing, in reference
to the grantees; they were all 10
take the same title, the same in
terest, to enjoy the estate for the
same time-that was "forever"-
and, as a matter of fact, the gov
eminent lifted them out of their
homes east of the Mississippi and
brought them out here and, very
much against their choice, dumped
them down upon it; that is TO say,
she put them in possession with
ali the tormalities of the old feudal
livery of seizin, eoram paribus de
Uicineto, and here they have been
in common possession ever since.
Besides, the words of the Cherokee
constitution, as quoted by Judge
Springer himself in this connec-
tion, settles this question; it or
dains THAT the lands of the Chero-
kre nation shall remain common
property" that is to say, an estate
IN common. The argument which
insists that this common possess
sion" has been broken up into
severalty by means of the individ
ais settling upon different points
upon the common estate, is but
little better than quibbling.
We have been talking SO far
about these nonsensic principles
of feudalism not because We have
regarded them as entitled legit-
innate application to the subject
of discussion. but simply because
sovereign authority has made them
controlling The truth is, they
nave no more adaptation 10 the
rights and interests of the Ameri-
can Indians than the institution of
VIC uIhS Hdfc W tue Ndllls anu
prejudices of American civiliza-
tion. 1t is wrong to attempt to
measure and estimate the rights of
these Indians to their lands by the
of the feudal law. The
estate whic! they hold in these
lands is someIhing that had a real
being long before the United States
came TO this country, long before
The fooleries of feudalism was ever
Lrumpeted in the pure atmosphere |
Of the New World. The sum OF |
The whole matter is simply this:
These lands have belonged to these
Indians, not to the Cherokee gov
for time immemorial; and |
he United States have promised |
ime and again, once under all the
Dompous formality of a patent,
hat she would never take this
property from them. Now, all they
lsk, (and they have a right to ask
t. is that these multiplied prom
ses be faithfully fulfilled To take
his land from these people and