Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1899-11-16
TIT VlNltA fAhk CASt,
Decision of the Circuit Court
of Appeals.

OF ali cases arising In the Cheroket
country in which members of tha
tribe by nativity or adoption were
the only parties, while the United
States court in the Indian Terri
tory had jurisdiction of every civil
case, arising between q citizen oi
the United States and any citizen
or person residing in the Indian
Territory. 25 Stat. Ch. 333, sec,
6, page 7S4; 26 Stat. Ch. 1S2, sec.
29-31, page 1896; Raymond VS..
Raymond, SO Fed. 721, 723. All
the parties to this suit except Tar.
rant were members of the Chero.
kee nation. If Tarrant had no
cause of action against the appel
liant, then he was not a proper
party to this suit and the United
States court was without jurisdic-
ton of it. The defect of parties
plaintiff which the appellant urges
upon our consideration is, that
Tarrant was a mere general tax
payer and resident Of Downing
vile, that he had no interest in
the preservation of its parks diff
ferent from or other than that pos
sessed by every other resident
taxpayer, and that this was in
sufficient to enable him to main
lain a suit for this injunction. If,
however, these parks were ded-
icated to the public by the Chero.
kee nation, as this taxpayer
claims, that dedication was made
more than twenty-five years ago,
and the town of Downingville has
been settled, the lots in it Eave
been sold, and its inhabitants have
established their homes there and
have become the taxpayers of the
town in reliance upon that ded-
ication. After all this has been
done, the nation sells the parks,
and its vendee enters upon a por-
ton of one of them and is about to
appropriate it to his private use
and to make it the site OF his res
idence. Has d resident and a tax
paySrof the municipality no rem
sdy for such a wrong? May the
parks which he and his fellow cit
zens have paid to improve be sold
md appropriated TO the use of the
nation or of strangers while be
stands by remidiless? Has be no
interest in the right of the public
o the free use of the commons suf-
icient to enable him to maintain
suit in equity to prevent the de-
truction of his right to use them,
he spoliation OF the parks and
heir appropriation to public use?
let us see. The title to the land
n these parks subject to the right
f the inhabitants and taxpayers
f the town TO use it forever for
ark purposes is without value.
t is nothing but a naked legal
tile held in trust for the people |
Who use, or have the right to use
he parks. The real value of the
and in the parks is the value of |
be right to use it, and when the
alton sells the park, it derives its
purchase price in fact, not from
be sale of the title to the land,
ut from the sale or the 6estruc-
ion OF the right of the people to
se that land for park purposes.
'hus, by the sale of the parks the
esident taxpayer Tarrant is de-
rived of his share in the valuable |
ight to use them. This is not the
My injury entailed upon him by
his sale. Parks are, if not nee
ssary, at least customary posses
ions of towns and cities, and if
he parks of DownIDgville are sold
nd appropriated to private use
le strong probability is, that the
'wn will purchase more land, es-
lblish other parks upon it in lieu
those destroyed, and thus in
ease the burden of the appellee's
xation. Again, Tarrant alleges
at he has a wife and four chill
'en and that be expects to make
Owningville bis home and to
Use and educate his children
ere. If these parks are appro-
lated to private use, he and his
mily will be deprived of their
e to promote their health, recre-
ion and amusement. In short,
e sale of the parks and their use
the vendees for their private ,
nrposes will deprive the appelle,
arrant, of his share in the val.
able right of the people to use
lem for park purposes. will de-
rive him and his family of a
'orce of health, recreation and :
and will be very like
: 10 Increase the burden of his