33 F. 900 | W.D. Ark. | 1888
(after stating the facts as above.) The controlling question in this case is. did the congress of the United States have the right to grant to defendant a right of way for its railroad across or over the land of the Cherokee Nation, the defendant paying the nation for the same, and the individual occupants for their improvements? If congress had that right, the court has jurisdiction, and that would dispose of the first ground of demhrrer. The determination of this question settles the second ground; for, if congress has the right to grant the right of way to defendant upon its paying for the same, there is no equity in the bill of the plaintiff. If it does not have the right to make the grant, then either the whole act would be void, or so much of it as to leave nothing to which the valid part is applicable; and this cause of demurrer, in such case, would be unnecessary, as the case would be decided on the first
Eminent domain is generally defined as “that superior dominion of sovereign power over all the property within the state, including that previously granted by itself, which authorizes it to appropriate any part” thereof necessary to public use; reasonable compensation being made. In Boom Co. v. Patterson, 98 U. S. 406, the right is tersely defined to be “the right to take private property for public use.” Mr. Cooley, in Constitutional Limitations, (pages 523, 524,) says eminent domain “is the rightful authority which exists in every sovereignty to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience, or welfare may demand.” Again, at the same page, when speaking of eminent domain in reference to those cases in which the government is called upon to appropriate property against the will of the owners, ho says: “It may bo defined to bo that superior right of property pertaining to sovereignty by which the private property acquired by its citizens, under its protection, may he taken, or its use controlled, for the public benefit, without regard to tiie wishes of its owners.” We see by these definitions that this right of eminent domain is one which pertains alone to sovereignty. It belongs to no other power than sovereign power. It is one of the attributes of sovereignty. Therefore, if we can find wliat sovereignty means, and
Eminent domain is said to be such an inherent and essential element of sovereignty that it results from the social compact, and hence -would exist without any express provision of the organic law on the subject. Brown v. Beatty, 69 Amer. Dec. 389; Moale v. City of Baltimore, 61 Amer. Dec. 278; Alexander v. Mayor, 46 Amer. Dec. 630. The right of eminent domain is a right distinguished from, and paramount to, ultimate ownership. Kohl v. U. S., 91 U. S. 371. The right of eminent domain does not grow out of the tenure by which lands are held. Kohl v. U. S., supra. In effect, when the government asserts the right of eminent domain, it admits that the title is in the one against whom the right is asserted. If the government has the title, it simply donates its own real property, existing as.public domain, or as government reservations. This is not
“This right exists independent of the consideration whether the lauds would escheat to the government in ease of the failure of heirs. The right is the offspring of political necessity, and is one inseparable from sovereignty, unless denied to it by the fundamental law.”
The Cherokee Nation, while it owns the soil of its country, is under either the political control of the United States, or of the states of this Union; for under this government, as was said by Mr. Justice Miller, in U. S. v. Kagama, 118 U. S. 879, 6 Sup. Ct. Rep. 1109, “there exists within the broad domain of sovereignty but these two.” Since the cases of Cherokee Nation v. Georgia, 5 Pet. 1, and Worcester v. State, of Georgia, 6 Pet. 515, we have known that the Cherokee Indians were not under the political control of the states. Therefore they must be under the political control of the government of the United States; for, certainly, it cannot be asserted that this community of people are possessed of such political power that they are not subject to the sovereign will of the United States. Mr. Justice Taney, in U. S. v. Rogers, A How. 572, said:
“ We think it t&o clearly and firmly established to admit of dispute that the Indian tribes residing within the territorial limits of the United States are subject to their authority.”
In U. S. v. Kagama, supra, Mr. Justice Miller, speaking for the court, in language of a general character says:
“These Indian tribes are the wards of the nation. They are communities dependent on the United States; * * * dependent for their political rights.”
Again, at the same page:
“The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection. * * * It must exist in that government, because it never has existed anywhere else; because the theater of its existence is within the geographical limits of the United States; because it never has been denied; and because it alone can enforce its laws on all the tribes.”
The political status of the Choctaw Nation of Indians, as far as its relation to the United States is concerned, is precisely like that of the Cherokees. In the case of Choctaw Nation v. U. S., 119 U. S. 28, 7 Sup. Ct. Rep. 75, the court, when speaking of the status of that nation, said:
“The recognized relation between the parties to this controversy, therefore, is that between a superior and an inferior, whereby the latter is placed under the care of the former, and which, while it authorizes the adoption on the part of the United States of some such policy as their own public interests may dictate, recognizes, on the other hand, such an interpretation of the acts and promises as justice and reason demand in all cases where power is exerted by the strong over those to whom they owe care and protection.”
Chief Justice Marshall, in Cherokee Nation v. Georgia, 5 Pet. 1, used this language:
*908 “It may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may more correctly, perhaps, be denominated ‘ domestic dependent nations.’ * * * They are in a state of pupil-age. Their relations to the United States resemble that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief' to tlieir wants; and address the president as their ‘Great Father.’ They and 'their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands, or to form a political'connection with them, wouid be considered by all as an invasion of our territory, and as an act of hostility.”
If they are a dependent nation, upon whom are they dependent? Not upon the states, but upon the United States. . This dependence is a political one, and its' very existence implies political control in some other power than their government. The existence of this dependence and political control forbids the existence of sovereignty in their nation. The non-existence of sovereignty forbids the existence as an inherent right of eminent domain. Then the Cherokees could not possess the right of eminent demain as an inherent principle of their government. It cannot exist except inherently, from the nature of the power in government, or by grant from some sovereign power. But it must be remembered, under our government, all sovereign power is lodged in the people; and the government, by its different departments, can exercise only such power as has been delegated to it by the people. None of these delegated powers can be by the government delegated to some one else. They are only granted to the government to be in proper cases exercised by it, and not to be given to another to be exercised by that other. It is well, in this connection, to note the distinction between the rights of property and the right of sovereignty. The first are defined, and become vestéd according to the terms of the grant; the second is inalienable, and rests in the discretion of the government to be exercised without let or hinderance over any part of its territory. In a case where it exists in the government of the United States, every provision of a law or treaty purporting to restrain its full and free exercise by the government would be void. In my judgment, the law-making power of the country has no such right conferred upon it by the people of this nation as to enable it to carve out from the midst of the public domain a portion of territory which shall be exempt from its governmental control, when that territoiy is in such a political condition as to be neither a state nor territory, according to the constitutional meaning of these words. The right to grant away or delegate the sovereign power of the nation has never for a moment been conceded, as respects a foreign state, to the president, by and with the consent of the senate, as within the treaty-making power; nor can it be claimed to be within the power of congress. If, from our system of government, it is not in either, how can it be claimed as belonging to the Indian tribes? There-can be no doubt that the general sovereignty of the government which, for public reasons and the public good, is exercised over the persons and property of
“ When the existence of a particular power in the government is recognized on the ground of necessity, no delegation of the legislative power by the people can be held to vest authority in the department which holds it in trust to bargain away such power, or to so tie up the hands of the government as to preclude its repeated exercise, as often and under such circumstances as the needs of the government may require. Lor, if this were otherwise, the authority to make laws for the government and welfare of the state may be so exercised, in strict conformity with its constitution, as at length to preclude the state performing its ordinary and essential functions, and the agent chosen to govern the state might put an end to the slate itself. It must follow that any legislative bargain in restraint of the complete, continuous, and repeated exercise of the right of eminent domain is unwarranted and void.”
I tliink the political status of the Cherokee Nation has been shown with sufficient clearness by reference to the opinions of the supreme court of the United States, delivered at different times in the history of this people and this government. These opinions, as expressions in regard to their condition of political dependence on the United States, do not need anything to give them clearness or strength, but, if they did, it can be found in different treaties heretofore made with these people, and in the laws enacted for the government of their country at different times by tlie congress of the United States. On the 28th of November, 1785, the United States made the first treaty with the Chcrokoes. By it they acknowledged “that all the Cherokees were under the protection of the United States, and no other sovereign whatever.” The ninth article provided that for the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens to Indians, the' United States should “have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they think proper.” On the 2d of July, 1791, another treaty was made with them. In the second article of this treaty they said: “The undersigned chiefs and warriors, for themselves and all parts of the Cherokee Nation, do acknowledge themselves and the said Cherokee Nation to be under the protection of the United States of America, and of no other sovereign whatsoever.” Here, when relations wore first established with them by the United States, we find in the very first treaty ever made with them that they placed themselves under the protection of the United States; admitting that they were their sovereign, to which they looked for security and protection. It must be remembered that they have remained under that protection to this time. Again, in the fifth article of the treaty of May 23, 1836, we find them looking to their sovereign to give them a right to enact certain local legislation. This article, among other things, provides the United States “shall secure to
Unless the right to exercise the powers of local government is of such nature as to give to the Cherokee Nation the character of a state in this Union, there is not conferred on it the right of eminent domain, as this great right, attendant upon sovereignty, belongs, in this country, either to the federal government or the government of the states. Under our dual system of government before the original colonial states entered the Federal Union, this right of eminent domain belonged to them, and when they entered the Union they retained the right to protect and regulate private rights, privileges, and immunities in general. Because this right was retained as one of the powers of the state governments, and because, under our political organization, it was expected that these governments would make provision for those conveniences and necessities which are usually provided for the citizens through the exercise of eminent domain, the right itself, when sought to be exercised in a state, must be obtained from the state in all cases, except where the government of the United States seeks to exercise the right for its own purposes, as in a case where it desires a site for a court-house, customhouse, post-office, arsenal, dock-yard, navy-yard, or any other purpose of the government. In such case the right of eminent domain is in the federal government in every case, and may be exercised by it in the states
“In the new territories, however, where the government of the United States exercises sovereign authority, it possesses, as an incident thereto, the right of eminent domain, which it may exercise directly, or through the territorial governments ; but this right passes from the nation to the newly-formed state whenever the latter is admitted into the Union. ”
This court held in Ex parte Morgan, 20 Fed. Rep. 298, that the Cherokee Nation is neither a state nor territory, in the sense of these words as used in the constitution of the United States. It has a qualified autonomy,—a local government,—but it does not como within the meaning of either a state or territory, but is a part of what is called “Indian Country.” If this he true, it is subject to the statutes of the United States, which make up what is called the “Intercourse Law,” regulating the intercourse of the government and people of the United States with the Indian tribes. The construction of every provision of this law is against the idea of the sovereignty of the Cherokee Nation. The importance of the question involved will warrant a reference to a few leading sections of this law as it now exists. We find from the year 1800 the congress of the nation has legislated in regard to the government of the Indian country. By the act of June 30, 1834, there was a consolidation of many of the former provisions passed since the year 1800. Others were altered by this last act, so that by the act of 1834 there was established a new Indian Code. This Code was amended by the act of March 3, 1847. All of this legislation was amended and re-enacted in the shape in which it now exists by the revision of the laws of the United States in 1873; and the law on the subject is found in Rev. St. U. S. c. 3, p. 869, and Id. c. 4, p. 371. Section 2114 provides: “The president is authorized to exercise general superintendence and care over any tribe or nation which was removed upon an exchange of territory, under authority of the act of May 28, 1830, ‘ to provide for an exchange of lands with the Indians residing in any of the states or territories, and for their removal west of the Mississippi, and to cause such a nation to be protected at their new residence against all interruption or disturbance from any other tribe or nation of Indians, or from any other person or persons.’” The Cherokee tribe or nation was removed from its home east of the Mississippi river to its present home, by authority of this act of May 28, 1830. The Cherokees are still under the control of an Indian agent
Wo are called on to consider their political relation to the United States, and whether their status is such as that they possess sovereign power, as against the United States. If they do not have this sovereign power they cannot inherently have the right of eminent domain, because it is an incident of sovereignty only. But it may be asked, if they do not have it inherently, from the nature of their government, can they not have it by grant from the United States, and thus, to this extent, become sovereign? This is a sovereign power, which, as we have seen, cannot 1)6 delegated. The enjoyment of whatever privileges or rights may flow from the power of eminent domain, being exercised, may be granted to another than the sovereign; but when the power will be invoked is to be determined by the agent of the sovereign,—in this case, the congress of the United States, as the agent of the people. This principle being-correct, it must be held that any claims that the treaty-making power or congress may have granted the right of eminent domain to the Cherokee Nation, and, in this respect, conferred on it sovereign power, are without foundation; because neither congress nor the treaty-making power can grant away the sovereign powers of the government, but they can only exercise them for the people to whom they belong. Then wo must conclude that the right of eminent domain as to the Cherokee Nation, although that Nation has the title to its lands, is not in it, because its status or relation to the government of the United States is that of a subordinate to a sovereign, and that sovereign is the United States, in which resides the right of eminent domain, when that right is to be invoked in the Cherokee Nation. We have found that the right of eminent domain gives the right to appropriate and control individual property, on payment of a just compensation, for the public benefit, as > the public safety, necessity, convenience, or welfare may demand,
This is a suit in equity. The method of recovering damages under the law of congress of July 4, 1884, granting the right of way over the lands of the Cherokee Nation, is a proceeding at law. “Whenever a statute grants a new right, or a new remedy for the violation of an old right, or whenever such rights and remedies are dependent on state statutes or an act of congress, the jurisdiction, as between the law side and the equitjr side of the federal courts, must be determined by the essential character of the case. Unless it comes within some of the heads of equitable jurisdiction, the remedy of the party is at law.” Van Norden v. Morton, 99 U. S. 378. There is an adequate remedy at law to recover the damages for right of way. It is obtained in this case by filing an original complaint on the law side of the court, praying for an assessment of damages. Legal and equitable causes of action cannot be joined in the federal courts. Hunt v. Hollingsworth, 100 U. S. 100. The plaintiff, having a plain and adequate remedy at law, cannot in a federal court join this remedy with one in equity. The bill seeks alternative relief, and the plaintiff’s counsel claim they have a right to so plead. If the relief asked in the alternative is wholly equitable relief, the prayer in a suit in equity may be in the alternative; but if the relief asked is both equitable and legal, and the prayer is for equitable relief, or if the court cannot grant this relief then for legal relief, this legal relief cannot be granted unless it is incident to, and grows out of, the equitable action of which the
The demurrer to the bill must be sustained, injunction refused, and the bill dismissed, without prejudice.