In a recent tour through the eastern part of the new state we had the pleasure of meeting a large number of able and distinguished lawyers. In a number of instances the question came up as to the leading legal publication of the last few years. The universal rumark was: That the Federal Statutes Annotated had been the greatest compilation of the new century. As to the American an English Cases, the universal remark was: "they are as fine as silk." When it is remembered that in Muskogee especially, there are law firms which have eight and ten thousand dollar libraries, their opinion as to legal literature is worth something. In that city alone we have over one hundred subscribers to The Oklahoma Law Journal. Burial of Dog in Cemetery.-A cemetery association, the regulations of which provided that its lots were to be used exclusively for the burial of the white race, sold adjoining lots to H. and R. R. buried in her lot the carcass of her pet dog. H. objected, and applied for an injunction. In Hertle v. Riddell et al., 105 Southwestern Reporter, 282, the Kentucky Court of Appeals held H. was entitled to a mandatory injunction to compel removal of the dog, as its interment was contrary to the rules of the association, that, if the burial of dogs were permitted in a cemetery, donkeys, horses, or bulls might be interred at the dictates of the freakish fancy of the owner, and that contracts for the immunity of the resting places of the dead from outrages of this kind, being in harmony with the sentiment of all men, were enforceable. 14 Vir. L. Reg. 317. Hon. John R. Thomas, formerly one of the Judges of the United States Courts of the Indian Territory, now State of Oklahoma, is located at Muskogee for the practice of the law. Judge Thomas has had an honorable and enviable career. Before he came to the Territory served in the United States Congress for ten consecutive years from the Southern District of Illinois, After his Congressional service he located in the Indian Territory for the practice of law and was appointed one of the Federal Judges a position he filled with ability and integrity to the close of his judicial office and resumed the practice of the law. The Judge is now a ripe wellseasoned lawyer full of mental and physical vigor and conducting a lucrative law practice. He is highly esteemed and respected by all who know him. Hon. Dorset Carter, one of the able lawyers of Purcell, Oblahoma, has been made President of the Cklahoma Central Railroad with headquarters at Purcell. Mr. Carter has, perhaps as much as any other man of his age, realized the statement made by the learned author Phillip Hammerton in his great work on "Life," that to succeed, "one must so prepared himself as to be ready and able to cope with any opportunity that may turn up." By energy and industry Mr. Carter was the first to blaze the way through the tangles of confusion and uncertainty and bring order out of a chaos as to the many acts and often conflicting laws that controlled in the Indian Territory, and produced a most serviceable work to bench and bar, entitled "Indian Territory Statutes." In the efforts of the student of making hard lessons easy he obtained a mastery over the details of Territorial law that he has become an authority not only as to its practice but the substantive law governing enterprises of vast magnitude. We have reached the period in our new state in which the young lawyer may find examples for emulation as to what push, honor and industry may do without indispensably canvassing the old states for models. Hon. P. J. Carey, who for several years has been practicing law in Oklahoma City, has moved to Muskogee, Okla. It will be remembered by the boys of the old Oklahoma side that in 1903 Mr. Carey passed the highest grade in the examination for admission to the bar of Oklahoma. THE OKLAHOMA LAW JOURNAL VOL. 7. EDITED AND PUBLISHED MONTHLY BY D. H. FERNANDES, GUTHRIE, OKLAHOMA. THE MCCUMBER ENACTMENT IS UNCONSTITUTIONAL AND VOID. of Oklahoma City, Oklahoma. On the 26th day of April, 1906, Congress passed what is known as the McCumber Enactment, Section 19 of which provides: "That no full blood Indian of the Choctaw, Chickasaw, Creek or Seminole tribes shall have power to alienate, sell, dispose of or encumber in any manner any of the lands allotted to him for a period of twenty-five years, from and after the passage and approval of this Act, unless such restrictions shall, prior to the expiration of said period be removed by Act of Congress," etc. Thus attempting to impose personal disabilities upon such Indians as to the alienations and disposition of their property. Before the passage of that Act certain contractual restraints upon the alienation of their several allotments has been had by virtue of treaties with the respective tribes, effected by Enactments of Congress in accordance therewith,-and consumated as far as the individual Indian could, by the acceptance of his allotment certificate or patent, rightfully containing only the terms upon which it had been agreed by him to take the same as a party on one side and his tribe and the United States Government as parties to the other side of the contract. The McCumber Enactment, disregarding all such contracts, attempts to put under personal restraint full blood Indians, beyond the agreements made for the taking of property in sevoralty. formerly owned by their tribes in fee simple, save as to a possible reversionary interest in the United States Government, should the tribes cease to exist. It will be observed that this Act attempts to deprive such Indians of a right they would otherwise have had. Why the restraint was sought to be imposed upon the individual personally, rather than upon the right to alienate, I cannot tell. It would seem that if Congress had the authority to prolong restrictions it could have done so equally well, by declaring that restrictions upon the alienation of property should be extended, rather than to attempt to deprive full blood Indians of said tribes of the pourer to alienate, etc. However, said enactment, ignoring the contractual obligations of the Government with the individual Indians, sought to put the restraint upon their persons. If valid, it might have just as well have extended to Freedmen, intermarried and mixed blood citizens. It may be observed that some of the adopted citizens, and all of the Freedmen have no Indian blood whatever, and that the claim of control over their property by the United States Government exists only for the reason that they were tribal members of the respective Nations. It cannot be doubted that if Congress has the authority attempted to be exercised by the McCumber Enactment, it equally would have authority to restrain all such intermarried and freedmen citizens from the right to sell, dispose of and encumber any of their lands, And the conclusion is inevitable that if Congress can impose an additional restraint for 25 years upon those full blood Indians, then it could do so on any other citizens; or could perpetually prohibit sales as to any of them. When this 25 years period is about out it could enact another MeCumber bill for 25 more years, in case any more MeCumbers or Curtises then lived. It is not its wisdom or unwisdom that I am assailing, but its constitutionality. When our great Fore-fathers in Faneuil Hall were framing the great Magna Charta of the United States, It was they well understood that the things mentioned therein formed a limit of authority on the part of the United States Government, and that all other power was reserved to the people; that is, to the States. thought that to be a citizen of the United States was oracular of all privileges of freedom, to don which put on the toga virilis of American nobility, sans puberty, slavery, or any other ignominious distinctions. The classes of mankind were exempt therefrom, viz: Slaves and Indians. Both of these classes were not recognized as having the civic status of American citizenship. Neither class owed any allegiance to the Government, could hold any office, perform jury service or enjoy any other of the ordinary rights of freemen The Indians were uncivilized, nomadic and held to have only a possessory right to the lands occupied by them. Not having any civic status, and owing no allegiance to any local form of Government instituted by the whites, it was provided in the Constitution that Congress should have exclusive authority, "To regulate commerce * * * * * with Indian tribes." (Sec. 8.) * * * They were dealt with in those days through headsmen or Chiefs, not as individuals; and were under the War Department of the Government of the United States until 1841. The Negro was emancipated by the great internal war of 1860-64. The 14th Amendment reads: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of the citizenship of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." No body ever questioned the fact seriously that this provision gave to the negro the same status that had been enjoyed by the white race. Under this amendment persons who become citizens of the United States are necessarily citizens of the State wherein they reside. |