Ephraim v. Garlick

10 Kan. 280

• Court: Supreme Court of Kansas
• Decided: July 15, 1872
• Status: Published

Opinion

The opinion of the court was delivered by

Kingman, C. J.:

The plaintiff in error attempted to raise the question of the jurisdiction of the district court, by a motion to dismiss. The same point is raised on one of the instructions given by the court. If the land was a part of the lands belonging to the Cherokee Nation of Indians by the treaty of December 1835, (7 Stat. at Large, 478,) then there can be no doubt that the court had no jurisdiction, for the 5th article of that treaty expressly stipulates that the lands in that treaty reserved to the Cherokees “shall in no future time, without their consent, be included within the territorial limits or jurisdiction of any state or territory.” But we cannot determine from the petition that the lands in controversy are a part of the lands so ceded to the Cherokees. We cannot say so from the description of them in the petition; and there is no evidence of any kind preserved. There may be land known generally as “Cherokee lands” that is not a part of the lands ceded to that tribe by that treaty; therefore the use of the descriptive phrase, “Cherokee lands,” in the petition, is not at all conclusive that the land is part or parcel of that ceded by that treaty. Neither is the description of the land by the number of the section, township, and range, such a description as enables us to say with certainty that the land is included within the limits of the lands ceded by that treaty. Whether the land was so situated was a question of fact to be found on proof, or admitted in the pleadings; and neither course was taken in this case. Not being able to say that there was error, the judgment is affirmed.

All the Justices concurring.