Jordan v. Goldman
| Decision Date | 16 September 1891 |
| Citation | 34 P. 371,1 Okla. 406,1891 OK 6 |
| Parties | JORDAN et al. v. GOLDMAN. |
| Court | Oklahoma Supreme Court |
Bill by J. W. Jordan and others against Henry J. Goldman for an injunction to restrain defendant from ejecting them from the Cherokee outlet, and from closing up a quarry operated by them. Injunction denied.
Nor are the rights of the Cherokee Nation in such outlet enlarged by the treaty of 1866, which provides that the United States may settle friendly Indians in any part of the Cherokee outlet the lands to be paid for to the Cherokee Nation, and that the Cherokee Nation may retain the right of possession and jurisdiction over all the outlet until thus sold and occupied, after which their jurisdiction and rights of possession to cease forever as to the land so sold and occupied.
James Brazzolara, for plaintiffs.
Horace Speed, for defendant.
This is a bill in chancery, on the federal side of the court, for an injunction against the defendant to restrain him from doing certain acts against the persons and property of the complainants, alleged to be in violation of the rights of complainants, as citizens of the Cherokee Nation of Indians and Cherokees by blood, and therefore unlawful, and for the doing of which complainants have no adequate remedy at law. The bill alleges that complainants are citizens of the Cherokee Nation, and Cherokee Indians by blood. That in 1883 they established a farm and improvements on what is known as the "Cherokee Outlet," and within the jurisdiction of this court, and in accordance with the laws, usages, and customs of the Cherokee Nation; and that the said Cherokee outlet is in possession of and owned by the Cherokee Nation in fee simple. That complainants discovered on the farm a stone quarry, and, for the purpose of operating the same obtained a license from said nation, in conformity with the laws and usages of the same, for a term of 10 years; and that such license has not expired. That complainants proceeded to open the quarry, and to mine and carry on the business of shipping stone. That they cleared the ground, made suitable openings to quarry and get out the stone, erected buildings and other conveniences for their laborers and employes, and built a switch or spur railroad to their quarry. That land was put in cultivation; derricks were purchased and placed in position, with necessary tools; and a full and complete plant was constructed to carry on the business of quarrying and shipping stone; and that complainants have expended and laid out about $6,000. That they have continuously been, and now are, conducting the business of quarrying and selling and shipping stone from said quarry and delivering the same in the state of Kansas, as contracted for and ordered, from time to time. That they have built up and established a good business, and, in due course of business, have entered into numerous contracts for the sale and delivery of stone, which have not been executed and complied with. That complainants are upon the Cherokee outlet, and in possession of their premises, under and by virtue of their farming improvements, and by virtue of the said license from the authorities of the Cherokee Nation. That being citizens of the Cherokee Nation, to whom said outlet belongs, under the laws and constitution of the United States, and the treaties existing between them United States and the Cherokee Nation, they have a right to locate, be, and remain upon said outlet with their improvements and holdings. That defendant Goldman is first lieutenant of the fifth United States cavalry, a white man, having under him troop K of said fifth cavalry, and a detachment of 20 Indian scouts. That on the 28th day of February, 1891, the said defendant, with his command, came to said quarry, where complainants were at work, and, with force and arms, unlawfully and violently took possession of said quarry without authority of law. That defendant claimed to be acting under orders from the war department, directing that all intruders should be removed from said Cherokee outlet; and that he was ordered by said war department to destroy the track of said railroad, belonging to complainants, and all the buildings and improvements at and around said quarry, and to remove all tools, derricks, and other machinery in and about said quarry, over the line and into the state of Kansas; and that such removal would be made by force on or before 10 o'clock A. M. March 2, 1891; and that the said defendant will proceed to do so unless restrained from so doing by writ of injunction. That there is no right, power, or authority lawfully vested in, given, granted, or conferred upon, the said defendant, to remove the complainants, and to destroy the said premises. That, if the threatened acts of the defendant are carried out, the business of complainants, built up and established by years of industry and toil, will be ruined and destroyed, and complainants will be involved in a multiplicity of suits with their patrons, with whom they have contracts unfulfilled for the furnishing and delivering of stone. That the destruction of complainants' plant, buildings, and track will wholly destroy and lay waste their farming improvements and quarry, and cause complainants irreparable injury and damage, as said defendant and those acting under him are wholly insolvent, and for that reason a judgment at law would be useless, and could not be collected. That complainants are not intruders upon said Cherokee outlet, within the scope and purview of the laws of the United States and the treaties made with the Cherokee Nation, or the laws governing trade and intercourse with the Indian tribes, but are lawfully thereon. To this bill of complaint, defendant Goldman appeared, and filed an answer, alleging, inter alia, as follows: That he does not know, and does not believe, that complainants are citizens of the Cherokee Nation, and Cherokees by blood. He does not admit that complainants established or located improvements on what is known as the "Cherokee Outlet," as alleged in their bill of complaint. He denies that the Cherokee outlet is within the jurisdiction or possession of the Cherokee Nation, and denies that said outlet belongs to the Cherokee Nation, in fee simple, or otherwise. He does not know whether complainants discovered the stone quarry, and does not know whether they obtained license from the Cherokee Nation, as alleged in their bill of complaint, but demands proof. He denies any knowledge of the opening and developing of the quarry, and the making of the switch; and does not know by whom the track and other conveniences, tools and derricks, and the quarry plant were brought to or placed upon or about said quarry, or the cost or value of the same, but demands proof. That on the 28th day of February, 1891, he found at said quarry a large number of persons, claiming different rights and interests therein, among whom was the complainant Jordan, but not the complainant Bushyhead, or his alleged guardian. That some of these persons were then, and for some time had been, carrying on the business of quarrying stone at said quarry, and shipping stone from said quarry, and delivering stone in the state of Kansas, under contract therefor, and at such other places as the contracts provided. That such business was a considerable business, and, in the progress thereof, large quantities of stone had been taken from the quarry; and that very large quantities were intended to be taken from said quarry for general traffic; and that said quarry was and is within the Cherokee outlet. That among persons in and about said quarry were citizens of the United States; and that all of said persons were employed and engaged in working in and about said quarry, and were claiming some interest or right in the machinery or plant or quarry or the stone taken or intended to be taken therefrom. That under orders from the war department, dated December 31, 1890, and the proclamation of the president dated February 17, 1891, defendant was directed to proceed to the Cherokee outlet, with the troops and Indian scouts mentioned, and drive out all persons unlawfully in the Cherokee outlet, and all cattle and other stock unlawfully therein. The said orders were properly issued by the war department, under the directions of the president of the United States, and directed to the proper officer by the president, and came to the defendant as an officer of the army of the United States, and to the troops and Indian scouts, who were then in the army of the United States, and under the immediate command of the defendant. That, in the execution of these orders, the defendant proceeded to the Cherokee outlet, with said troops and Indian scouts, and removed divers and sundry persons resident or being in said outlet; and, under said orders, proceeded to the said quarry, and there directed the persons in and about the said quarry, including the said complainant Jordan, to remove from said quarry and from said Cherokee outlet, and to cease quarrying stone at said quarry; and that said direction and orer by the defendant to the persons at said quarry was intended to cover any and all persons at said quarry, or claiming any interest therein. The defendant is informed and believes that said Cherokee outlet did not and does not belong to the Cherokee Nation, or the Cherokee people in fee simple or otherwise; and that the complainants have no right, as against the United States, to operate a stone quarry in said outlet, in the manner stated in said bill of complaint or otherwise, under license issued by said Cherokee Nation. That the complainants have no right, except by consent of the United States, to open and develop a quarry of stone in said outlet, or to remove stone from said...
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