Frost v. Wenie

• Decision Date: 04 March 1895
• Docket Number: No. 172,172
• Parties: FROST v. WENIE et ux
• Court: U.S. Supreme Court

157 U.S. 46

15 S.Ct. 532

39 L.Ed. 614

FROST

v WENIE et ux.

No. 172.

March 4, 1895.

This was a suit in equity by Daniel M. Frost against Frederick T. M. Wenie and Jessie Wenie, his wife, to establish a trust in certain lands, and require defendants to convey them to complainant. The circuit court sustained a demurrer to the bill, and dismissed the suit. Complainant appealed.

The appellant, who was the plaintiff below, claimed to be possessed of the equitable title to certain lands, the legal title to which is in the appellee Frederick T. M. Wenie, by virtue of a patent issued by the United States January 25, 1890.

The relief sought by the bill is a decree declaring the legal title to be held in trust for the plaintiff, and requiring the defendant to convey such title to him.

The lands in dispute constitute a part of what are known as the 'Osage Indian Trust and Diminished Reserve Lands in Kansas,' included within what was once the Ft. Dodge military reservation, established June 22, 1868. They are lots 9, 10, 11, and 12 in section 25, township 26 S., of range 25 W., and lots 14 and 15 of section 30, township 26 S., range 25 W., in Ford county, Kan.

The appellant made a homestead entry of these lands on the 1st day of October, 1881, at the Larned, Kan., land office. This entry was made under the assumption that the lands had been restored to the public domain by the act of congress approved December 15, 1880, which declared that the Ft. Dodge military reservation was no longer needed for military purposes, and authorized the secretary of the interior to dispose of a part of the lands within that reservation to actual settlers under the provisions of the homestead law. 21 Stat. 311, c. 1.

The case turns on the construction of that act, the controlling question being whether congress intended to open to actual settlers under the homestead laws such of the lands, within the limits of the abandoned military reservation, lying north of the railroad track, as were part of the Osage trust lands. The court below held that it did not.

The principal ground of the decision was that a different interpretation is not required by the terms of the statute, and would be inconsistent with the treaties between the United States and the Osage Indians, and with the previously declared purpose of congress in reference to the Osage lands.

Before looking at the language of the act of December 15, 1880, it will be well to recall the history of these lands, as well as the relations between the United States and the Osage Indians, as shown by treaties and by legislative enactments.

One of the articles of the treaty of June 2, 1825, between the United States and the Great and Little Osage tribes of Indians, established a reservation in what is now the southern part of Kansas, which those Indians could occupy as long as they chose to do so. 7 Stat. 240.

By an act approved January 9, 1837, it was provided: 'Section 1. All moneys received from the sales of lands, that have been, of may be hereafter, ceded to the United States by Indian tribes, by treaties providing for the investment or payment to the Indians, parties thereto, of the proceeds of the lands ceded by them, respectively, after deducting the expenses of survey and sale, any sums stipulated to be advanced, and the expenses of fulfilling any engagements contained therein, shall be paid into the treasury of the United States in the same manner that moneys received from the sales of public lands are paid into the treasury. Sec. 2. All sums that are or may be required to be paid, and all moneys that are or may be required to be invested by said treaties, are hereby appropriated in conformity to them, and shall be drawn from the treasury as other public moneys are drawn therefrom, under such instructions as may from time to time be given by the president.' 5 Stat. 135.

In the act of July 22, 1854, establishing the offices of surveyor general of New Mexico, Kansas, and Nebraska, is a provision 'that all the lands to which the Indian title has been or shall be extinguished within said territories of Nebraska and Kansas shall be subject to the operations of the pre-emption act of fourth September, eighteen hundred and forty-one, and under the conditions, restrictions, and stipulations therein mentioned.' 10 Stat. 308, 310.

By the act of May 20, 1862, the object of which was to secure homesteads to actual settlers on the public domain, it was provided, among other things, that all lands subject to pre-emption entry might be acquired by homesteaders without the payment of cash therefor. 12 Stat. 392.

And by the act of June 2, 1862, establishing a land office in the territory of Colorado, and for other purposes, it was declared 'that all lands belonging to the United States to which the Indian title has been or shall be extinguished shall be subject to the operation of the pre-emption act of September 4, 1841, and under the conditions, restrictions, and stipulations therein mentioned.' 12 Stat. 413.

On the 29th day of September, 1865, another treaty was made between the United States and the Great and Little Osage Indians. It was amended in 1866, and proclaimed claimed January 21, 1867. By its first article the Indians granted and sold to the United States the lands within the following boundary: 'Beginning at the southeast corner of their present reservation, and running thence north with the eastern boundary thereof fifty miles to the northeast corner; thence west with the northern line theirty miles; thence south fifty miles, to the southern boundary of said reservation; and thence east with said southern boundary t the place of beginning: provided, that the western boundary of said land herein ceded shall not extend further westward than upon a line commencing at a point on the southern boundary of said Osage country one mile east of the place where the Verdigris river crosses the southern boundary of the state of Kansas.' The consideration for this sale was the agreement of the United States 'to pay the sum of three hundred thousand dollars, which sum shall be placed to the credit of said tribe of Indians in the treasury of the United States, and interest thereon at the rate of five per centum per annum shall be paid to said tribes semi-annually, in money, clothing, provisions, or such articles of utility as the secretary of the interior may from time to time direct.' By the same article of the treaty it was provided that 'said lands shall be surveyed and sold, under the direction of the secretary of the interior, on the most advantageous terms, for cash, as public lands are surveyed and sold under existing laws, including any act granting lands to the state of Kansas in aid of the construction of a railroad through said lands, but no pre-emption claim or homestead settlement shall be recognized: and after reimbursing the United States the cost of said survey and sale, and the said sum of three hundred thousand dollars placed to the credit of said Indians, the remaining proceeds of sales shall be placed in the treasury of the United States to the credit of the 'civilization fund,' to be used, under the direction of the secretary of the interior, for the education and civilization of Indian tribes residing within the limits of the United States.' 14 Stat. 687, 692.

The Indians, by the second article of this treaty, ceded to the United States other lands, constituting a tract of 20 miles in width from north to south, off the north side of the remainder 'of their previous reservation,' extending its entire length from east to west. As to this cession it is provided: 'Which land is to be held in trust for said Indians, and to be surveyed and sold for their benefit under the direction of the commissioner of the general land office, at a price not less than one dollar and twenty-five cents per acre as other lands are surveyed and sold, under such rules and regulations as the secretary of the interior shall from time to time prescribe.' 14 Stat. 687, 692. 'The proceeds of such sales, as they accrue, after deducting all expenses incident to the proper execution of the trust, shall be placed in the treasury of the United States to the credit of the said tribe of Indians; and the interest thereon, at the rate of 5 per centum per annum, shall be expended annually for building houses, purchasing agricultural implements and stock animals, and for the employment of a physician and mechanics, and for providing such other necessary aid as will enable said Indians to commence agricultural pursuits under favorable circumstances: provided, that 25 per centum of the net proceeds arising from the sale of said trust lands, until said percentage shall amount to the sum of $80,000, shall be placed to the credit of the school fund of said Indians; and the interest thereon, at the rate of 5 per centum per annum, shall be expended semi-annually for the boarding, clothing, and education of the children of said tribe.' Id. 687-693.

After this treaty, and apparently for the purpose of protecting and fulfilling its provisions, various acts and joint resolutions were passed by congress, which are to be taken into consideration when disposing of this case.

A joint resolution was passed April 10, 1869, declaring: 'That any bona fide settler residing upon any portion of the lands sold to the United States, by virtue of the first and second articles of the treaty concluded between the United States and the Great and Little Osage tribe of Indians, September twenty-ninth, eighteen hundred and sixty-five, and proclaimed January twenty-first, eighteen hundred and sixty-seven, who is a citizen of the United States or shall have declared his intention to become a citizen of the United States, shall be, and hereby is, entitled to purchase the same in quantity not exceeding one hundred and sixty acres, at the price of one dollar and twenty-five cents per acre, within two years from the passage of this act...