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.