Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1898-02-24
THE TOWNLOT PROBLEM.
ToO-qua.stee Criticises the Position of
Judge Stewart.

] the CD6rOke6 DallOn the DentuI pl
his great professional talent before
the Indian committee in congress
The Judges effort is certainly a
very mastery profusion of harmo-
nious English; but as an argument,
it is a failure.
1t is not easy to get the exact
form of the proposition which he
is trying TO sustain; but it is some
thing Eve have to guess at IT'D like
this: The Cherokee nation, some
time ago, leased to one w. Z. Hal
sell, and to one W. p. Thompson,
certain pieces of real estate for a
mere nominal rental paid in ad-
vance; and now 10 make it appear
that these leases are not really
leases, but warranty deeds. vesting
in these lessees a title in fee sim
pie, is the job which Judge Stuart
has-engaged his professional in
genuity to accomplish. Let us see
now how he gets along with it.
At the outset, he sets forth one
of the most ancient of these leases
as an exhibit. 1t is presumable
that he intends to offer this as a
sample of all that was ever issued
of that kind of title-paper. At
the conclusion of this exhibit we
find the following words:
Subject, nevertheless, to the
/ -
nation in this case made and pro-
vided: that this deed shall be
deemed and held as an occupant
title only TO the premises bar
gained and sold"
The instrument was evidently
drawn by a hand woeiully ignorant
of the proper forms of conveyanc-
ing. 1t is fraught with enough OF
the solemn, sonorOus verbiage TO
make the cessicn of an empire or
one of the heavenly planets; yet,
after all, it turns out to be only the
right to occupy, and possibly to
use, that the purchaser buys, or
the nation intends to convey.
1t would have been a good thing
if the judge had refined up his
prancing rhetoric just along at this
point and told us, in plain every
day terms, something about the
difference between real warranty
deed and a real lease. 1t would
have saved US the trouble of such
an effort.
What, then, is a lease? Why, it
is simply the written evidence OF
the sale and purchase of the right
to occupy and use, piece of real
estate. What is a warranty deed?
1t is the written evidence of the
sale and purchase of the owner
ship of piece of real estate
We see therefore that the result
of the judges effort, so far, has
been simply to prove, by the most
effective form of evidence, that his
clients never bought these town.
lots; that they only bargained and
paid for the occupancy, and posi-
bly, the use, of them; that is to say,
they simply leased these lots from
the Cherokee nation.
This being the case, it is obvious
that Mr.. Halsell and Mr.. Thomp-
son are in the legal predicament Of
mere tenants of the nation. 1t is
true, the term of this tenancy is in
perpetuity.
But we have no quarrel with the
town-lot men about this perpetual
feature of their holding. There is
no question but that they bought
OF the nation the right to occupy
and use these lots forever, world
without end, and amen; and now
it is but fair that they should be
secured in this right, in so far as
they have not forfeited the same
by non-user, or the practice of mo-
nopoly.
When the time comes to allot
the common lands of the nation
why, just let these gentlemen take
these lots as a part of their allOt-
ment. Then certainly they will
have all that they could reason
ably ask. They will have the
title to the lots, including both the
right of property and the right to
occupy and use the same forever
and ever. Is not that enough? Is
rot that as much as any man blest
with human conscience is entitled
to ask?
But this is aside from the real
line of tne judges appeal. He is
all keen enough to take these lots,
one and all; in fee simple; but he
is fighting against the danger OF
having them, when thus taken,
charged against the right OF his
clients to an equal share in the
distribution of the rest of the ma
tion's common property.
For this purpose he has no law
to 60 upon; not a single fiber of
equity, of the strength OF a spiders
web, upon which to anchor his
claim. Hence argument is out of
the question; there Is room only
for remark.
The truth Is, the attitude of
Judge Stuart before the Indian
committee was unique in the ex-
treme. 1t was not that of an at
torn y convincing his tribunal of
the business of cause by the ir-
resistible force of manly argument;
but rather that of beggar impor-
tuning for aims His relation to
the boom which he was asking for
his clients was in principle, pre-
cisely the same as that of hun
cry tramp to the morsal which he
solicits at the hands of charity.
His aDpeal was a MAGNIFICENT dis