Jordan v. Goldman

• Decision Date: 16 September 1891
• Citation: 34 P. 371,1891 OK 6,1 Okla. 406
• Parties: J. W. JORDAN, et al., v. HENRY J. GOLDMAN
• Court: Oklahoma Supreme Court

1891 OK 6

34 P. 371

1 Okla. 406

J. W. JORDAN, et al., v. HENRY J. GOLDMAN

Supreme Court of Oklahoma

Decided: September 16, 1891

SYLLABUS

1. CHEROKEE NATION.--Title to Cherokee Outlet.--The Cherokee Nation holds the lands in the Cherokee Outlet by the same title as they hold the lands in ceded and granted to them for a permanent home, that is, the treaties of 1828, 1833 and 1835, and the patent of 1838; but their estate in the lands in the Cherokee Outlet is a base, qualified or determinable fee, with the qualification annexed to the use.

2. CHEROKEE OUTLET.--By what Title Held.--The qualification annexed to a base, qualified or determinable fee may be either one of two kinds: It may be a qualification which is attached to the use of the land itself, so that the estate is held to be granted for that use and purpose only, and on the cessation of the use the estate expires; or it may be one which is concerned with the happening of a more strictly collateral event, leaving the use of the estate free for any purpose, but limiting its existence only by the event contemplated. The estate of the Cherokee Nation in the Cherokee Outlet is of the first class.

3. SAME--Lands, How Granted.--The lands in the Cherokee Outlet were ceded and granted to the Cherokee Nation as an outlet, and for the purposes of an outlet only, and not for residence and cultivation; and, in such case, the law annexes the qualification, or condition, that the estate shall continue in the Cherokee Nation only so long as the lands are used as an outlet, and no longer; and when the Cherokee Nation ceases to use the land as an outlet, such cesser of the use determines their estate, and the lands revert to the United States.

4. SAME.--Wrongful Use of Lands.--The lands having been ceded and granted as an outlet, they cannot be lawfully used for any other purpose, either by the Cherokee Nation or persons claiming by license or lease under the Cherokee Nation; and the subjection of the lands to any other use is wrongful, and a breach of the qualification, or condition, annexed to the estate, and works a termination of the estate, and the lands revert to the United States.

5. CHEROKEE NATION.--Right to Use Lands.--The Cherokee Nation has no right to use the lands for the purpose of operating a stone quarry therein, and selling and shipping the rock, and could give the the complainants, by license, no greater right than the Cherokee Nation itself has; and the operating of the stone quarry by the complainants is wrongful, and a court of equity will not protect them by injunction in such wrongful act.

6. LANDS NOT USED--Cesser of Estate.--If the Cherokee Nation has ceased to use the lands as an outlet, such cesser has terminated their estate, and the lands have reverted to the United States. But whether there has been such cesser is a political rather than a judicial question, and should be settled by congress and the chief executive of the nation.

In the District Court of Logan County, Oklahoma Territory, sitting with the powers and jurisdiction of the District and Circuit Courts of the United States.

On March 2, 1891, complainants, claiming to be Cherokee citizens, and as such entitled to farm lands and operate a stone quarry on the Cherokee Outlet. filed their bill for an injunction against the defendant, who as an army officer was, under the proclamation of the president, dated February 17, 1890, and certain orders of the war department, ejecting cattle and persons from the Cherokee Outlet, and was about to eject therefrom complainants, with their property, and close up the quarry.

James Brazzolara, for plaintiff.

No brief on file.

Horace Speed, for defendant.

The following brief and argument was filed by counsel for defendant:

The bill will not lie. These ejectments the president considers necessary in the administration of his duties as the chief executive of this nation, and the defendant is acting directly under his orders in making them. They are executive and political acts of the executive department; and it is established doctrine that the orders of the president or the orders of the secretary of war in matters executive and political, cannot be questioned by the courts. (The confiscation cases, 20 Wall. 109; Wilcox v. Jackson, 13 Pet. 513; State of Mississippi v. Johnson, 4 Wall. 499; Cherokee Nation v. Georgia, 5 Pet. 1-20.)

In the case of the State of Mississippi v. Johnson, supra, the supreme court held, that in the exercise of his duties executive and political, the president is not subject to a writ of mandamus.

In the case of Wilcox v. Jackson, supra, the same court held that the acts of the secretary of war are to be deemed the acts of the president.

In the case of the Cherokee Nation v. State of Georgia, a bill prayed an injunction against the governor of Georgia and others, who threatened to execute certain laws of that state, which the bill charged were in plain violation of a treaty of the United States with the Cherokee Indians.

The supreme court of the United States, considering the case, said that the court was to do more than to decide on the Indian title; it was required to control the legislature of Georgia, and to restrain the exercise of its political power. The court said the propriety of such an interposition may well be doubted; it savored to much of the exercise of political power to be within the province of the judicial department (p. 20), and Justice Johnson, at page 30, made these pertinent observations:

"What these people have a right to claim of the executive power is one thing; whether we are to be the instruments to compel another branch of the government to make good the stipulations of treaties, is a very different question.

"Courts of justice are properly excluded from all consideration of policy, and therefore are very unfit instruments to control the action of that branch of the government which may often be compelled by the highest considerations of public policy, to withhold even the exercise of a positive duty.

"There is a great deal of good sense laid down in the Nabob of Arcot's case, to-wit: That as between sovereigns, breaches of treaty are not breaches of contract cognizable in a court of justice, independent of the general principle, that for their political acts, states are not amenable to tribunals of justice."

The injunction should be denied upon the admitted jurisdictional facts. The statement in the bill is that if the writ is not granted, the plaintiff will be remediless.

The answer shows that the statement is not correct; that the defendant is acting under the proclamation of the president of the United States, and under strict written orders from the president, through the secretary of war. If the plaintiffs are injured, the United States is responsible, and is in duty bound to make reparation, and it will not do to say that the United States is unable to perform, or will refuse to do its duty in the case. Certainly one of its own courts cannot so declare.

Coming to the case upon its merits, assuming that the court has jurisdiction and may properly issue the injunction, we find that the Cherokees have not such title in the outlet under any possible phase of that title as will permit them, or any grantee under them, to carry on mining or other like operations, whether of stone or other materials, or sever and carry away any of the real estate, such as timber or stone.

Upon any reservation, Indians are not permitted to cut and market timber, or destroy it, except so far as the cultivation of the ground and good husbandry requires it should be cut and removed. (United States v. Cook, 19 Wall. 591.)

The same rule must apply in the case of stone or other minerals or things which are a part of realty.

The court in the case above cited, and cases therein referred to, holds that the title which the Indians have in land is a title of occupancy, and is not such a title as would permit them to waste the estate.

While it is not necessary in this case to ascertain what title or interest the Cherokees obtained to the outlet originally, a short statement of that matter may not be out of place, especially as plaintiffs seem to base their whole right upon the quality of title the Cherokees have to the outlet. The facts as to the Cherokee title are these:

In 1818 about one-third of the Cherokees were located in Arkansas and were called the Arkansas or Western Cherokees. The United States had used its troops to drive out from the lands it had given these Cherokees, a number of white families already there.

The land was fair and was being rapidly peopled at the time the government agreed the Cherokees should have it. After they were established there, many harassing disputes arose with white settlers, and the Cherokees sent delegations to Washington, in 1818 and 1821, to seek relief. Upon these visits the Cherokees insisted that they must have an outlet from the west of their Arkansas home tract to the western limit of the United States--which was then the 100th meridian.

A written memorandum of a talk by the president, dated 1818, indicates such a desire, and his favorable consideration of it, and on October 8, 1821, the secretary of war, Mr. Calhoun, wrote a letter to the Cherokees in Arkansas, the original of which the Cherokees. yet retain, and a certified copy of which is in the hands of the writer. In this letter the secretary expressly declares that the Cherokees should have a PERMANENT home, and should have an outlet to the west of that extending as far as the sovereignty of the United States extended; but expressly declared that the Cherokees should not own the soil in that outlet. This letter, addressed to the chiefs and head men of the Western Cherokees, was by them and by the secretary of war clearly understood, depended upon, and thereafter by reference made a part of the subsequent treaties.

By it the meaning of the term "outlet" was clearly established, if its meaning could have been...