Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1899-03-09
JUDGE CLAYT0N'S
LATE DECISION
Curtis Law Conditional Upon
Ratification by Indians.


at South McAlester in a case in
volving the validity of the Curtis
act, is of much importance to
Cherokees inasmuch as it inciden-
tally passes upon the constitution
ality of the act as it relates to the
Cherokee nation. Herewith is
printed the portion of the decision
as would be applicable to the
Cherokee country:
Because of the title and tenure
by which these Indian lands were
held, this legislation was impossi-
ble without their consent. They
held their lands by a fee simple
title. They hold them by a ten
ancy in common. Congress had
no constitutional power to say to
them You shall partition your
lands and change the tenure of
your holdings 1t could not re-
quire them to sell TO white men
the lands to be embraced within
the limits of the contemplated
cities and towns; nor could it take
from them the custody and con-
troll of their mines. Before this
could be done, their consent, be-
cause of the title to their realty,
was an absolute necessity. 1t was
an event that must happen before
any law that congress might pass
to this end could have any consti-
tutional force. An agreement, SUBJ
stantially the one engrafted in the
act, had already been drafted and
agreed to by commissioners fully
authorized by the government OF
the United States and these two
Indian nations. 1t, however, had
not been ratified by either. Con-
gress, looking forward to a con-
summation of its purposes,
amended the agreement in a few
unimportant particulars, and as
thus amended, ratified it and en-
grated it into the act and passed
it into a law. In this act the leg
islative will of congress was fully
and completely expressed, and
there was nothing left to prevent
it from becoming operative as
law but a certain impediment over
which congress had no control
and which could only be removed
by the Indians themselves by a
vote of their people. This i'm
pediment was not the necessity
that they should consent to the
legislation. but that before such
legislation could become operative
they should consent to a change
of the tenure and title by which
they had held their lands and
surrender of the custody and con-
trol of their mines, which, under
the scheme, they were to do by a
ratification of the agreement. This
title TO their lands of the Indians
of the five civilized tribes has for
many years stood up as animpreg-
nable barrier against needed and
desired legislation. Every time
that congress would attempt to
legislate In relation TO the condi-
ton here it would run up against
it and find itself inwarted. The
whole object of the agreement was
to place the title in such a condi-
ton as that this legislation could
be had. The power conferred by
congress on the commission TO the
FIVE civilized tribes to bring about
this agreement, was for this pur-
pose. Congress, by act of March
5, 1871, had divested these Indian
tribes and the United States of the
power to regulate these matters by
treaty, and had left it solely in the
hands of congress. Had the agree
ment been executed by treaty, as
it could have been done before the
passage of the aforesaid act, and
before its ratification congress, an
ticipating that it would be done,
had passed the act dependent upon
the ratification of the treaty, to 60
into effect if ratified, and il not to
be void as statute, there Is no
doubt but thatit would have been
lawful. This has often been done
by congress in its dealings with
foreign nations, and its power to
do so has always been upheld.
Since the right to agree by treaty
has been taken away from them
and all of these matters have been
submitted to congress, why may
it not pursue the same course?
The matter referred to the In
dians was one solely within their
power TO determine. Congress
could not constitutionally divest
them of the title to or control over
their realtv. this WAS q necessity.