week of 1/15/03
 
 
 


Reclaiming his own
Walkingstick claim for Cherokee National Forest land filed with U.S. Forest Service
By Thomas Crowe

On Dec. 13, 2002, Daniel Walkingstick, a traditional stone carver and a member of the Eastern Band of Cherokee who lives on the Qualla Boundary, followed up his “squatters” protest of this past spring by filing a claim for ownership of 160 acres of the Cherokee National Forest located in the Ocoee District in Polk County, Tenn.

Walkingstick’s attorney, Ben Bridgers of Sylva, filed the the claim in December.

Walkingstick is making a claim to land that was deeded to his grandfather, Tesetuskey Walkingstick, by Tenn. Gov. Andrew Johnson in a legal document dated in 1857. Walkingstick spent several weeks this past spring occupying a site on the disputed land on Tumbling Branch in the Big Frog Wilderness Area of the national forest to protest inaction on his initial land claim, which was filed in 2000.

Having moved off the U.S. Forest Service land just outside of Copper Hill, Tenn., (about 20 miles southwest of Murphy in Cherokee County) in June 2002, Walkingstick has since returned to his home on the Qualla Boundary. Since then, Walkingstick and Bridgers have been preparing the claim that was recently filed. Walkingstick and his legal counsel are following a course of proscribed action afforded them by the Adjustment of Land Titles Act, which authorizes the Secretary of Agriculture to “review alleged insufficient land titles held by the United States government and to provide relief to any injured party.”

Lewis Kearney, who is in charge of Fire, Lands & Mineral Staff for the U.S. Forest Service in Cleveland, Tenn., wrote to Walkingstick that he “has the right to prove his ... title claim.”

Basing his precedent-setting case on the fact that he believes that he, as a direct descendent of Tesetuskey Walkingstick, has legal right to land that was illegally confiscated from his grandfather by the U.S. government and later the U.S. Forest Service, and citing a clear failure of the Forest Service to exercise due diligence in a 1931 condemnation of the 160 acres in question, Walkingstick has uncovered what he considers additional irregularities. He has also amassed some related legal precedents to support his case, all of which are spelled out in an 11-point “Argument” as part of the claim filed by Bridgers & Ridenour in his behalf.

“We’ve filed our Equitable Claim based on documented history and facts,” said Bridgers from his Sylva law offices. “Our arguments are the facts of the case, which speak for themselves. Daniel has spent months collecting supportive material and conducting research, which is demonstrated by the documents included in the exhibits attached to his formal claim filed with the Forest Service. Now, the Forest Service will review what we’ve sent and respond to his claim.”

Asked about his occupation on Cherokee National Forest land last June and the filing of his most recent claim, Walkingstick said “We decided to occupy the Tumbling Creek property because we were being ignored by the government and the Forest Service regarding our claim to this land, which we sincerely believe we are entitled to as lawful heirs. Our occupation and encampment on Forest Service land got their attention, and resulted in an invitation from the U.S. Forest Service office in Tennessee to submit an updated and formal claim for consideration. In good faith, we left our occupation action site in late June — forgoing a trial-by-media scenario — and have spent the last five months traveling, talking to historians, historical societies, searching state, county and town deeds and records archives, and following leads wherever they took us. By early December, Ben Bridgers and I believed we had a substantial amount of documented material to support a strong case for my claim that the Forest Service recognize our ‘superior and valid claim of title’ to my grandfather’s lands.”

In addition to having the 1857 document signed by Andrew Johnson, Walkingstick cites other pertinent points, including the fact that in 1890 the Walkingstick family, along with every other Cherokee Indian living in Polk County, Tenn., were forced to flee from their homes and lands in the dark of night for their safety after two of their most prominent men had been murdered by whites. In addition, an opinion from a Tennessee Supreme Court case (Grubbs v. MClatchy, 10 Tenn. 432—1830) in 1830 states: “An abandonment of land by a Cherokee Indian from land granted from the federal government was not, as a matter of law, an abandonment sufficient to forfeit rights to possession of land where the removal was produced by force, by fear, by deception, or other insidious arts.”

Further documentation shows that when the U.S. filed a condemnation for 809.94 acres in March 1931 that included part of the former Walkingstick lands, no attempt was made to identify, locate or serve Walkingstick or his heirs. The government merely stated that no such heirs could be identified or located “after due diligence,” even though there were, in fact, living heirs located less than 100 miles from the land who could have been readily identified and located through the federal Bureau of Indian Affairs, say Bridgers and Walkingstick. The name and address of every enrolled Cherokee Indian in Tennessee and North Carolina have been available both before and since the Civil War.

Now, with official documents, legal precedent and historic support for the forced removal of the Walkingstick family from the land, and the lack of “due diligence” by the federal government to compensate the lawful owners of the land, Walkingstick feels even more strongly about the legitimacy of his claims.

“We have showed the Forest Service that we aren’t going to just go away. Now, with new evidence and new momentum, we feel optimistic that we are entitled to regain title and occupancy of this land that was illegally taken from my ancestors,” says Walkingstick. “This 160 acres that belonged to my grandfather Tesetuskey Walkingstick was improperly confiscated without due process of law and without compensation — like other Indian land ‘liberated’ across the country years ago. What is unique about our case is that we have documentation to prove ownership and that the land was taken from us by the same federal government that was supposed to be looking out for us.”

Bridgers says he is confident that the Forest Service will respond in a “reasonable time.”

“Daniel is a very strong-willed and determined man and has spent hundreds of hours and logged thousands of miles researching his case,” Bridgers said. “He believes strongly that he is entitled to his grandfather’s land and is convinced that there is compelling evidence to establish exactly what happened to this land and his ancestors in the 19th century. I can’t imagine him just giving up, now, after all this work.”

Although the proper authorities at U.S. Forest Service offices in Cleveland, Tenn., or the regional offices of the U.S. Forest Service and Dept. of Agriculture could not be reached or were unavailable to comment by deadline for this article, a previous statement concerning the Walkingstick case has been issued, which says: “It is up to Daniel Walkingstick to pursue an administrative remedy for his claim to 160 acres in the Cherokee National Forest. The 160 acres in question are part of one of the first purchases in the Cherokee National Forest. Land containing the tract was purchased from Ocoee Timber Company in 1918. Squatters, not the Walkingsticks, apparently resettled the area around 1928. The Forest Service condemned the land and removed the squatters around 1931. Walkingstick must present his claim to the Cherokee National Forest office. It will be reviewed there and a finding will be issued. The claim then goes to the regional office in Atlanta and ultimately to the General Consul’s office in Birmingham. Once the claim is turned over to the Cherokee National Forest, a decision should be rendered in between 60 and 120 days. We get land claims all the time from all across the country, and we take them all seriously.”