Where there is a seeming contradiction between two clauses in a
proclamation opening lands for settlement, the first clause being a
special description of a strip of land, and the second being found
in a portion of the proclamation defining the purposes for which
the strip is made, the first clause is entitled to preference.
The strip of land referred to in the President's proclamation of
August 19, 1893, "one hundred feet in width around and immediately
within the outer boundaries of the entire tract of country to be
opened to settlement," ran around and immediately within the outer
boundaries of the body of lands opened for settlement, and not
around the outer boundaries of the entire tract specified in the
cession and relinquishment of the Cherokee Indians.
The appellee holds the government patent to the southwest
quarter of section 19, township 26 north, range 1 east, of the
Indian meridian in Kay County, Oklahoma Territory. The appellant
claimed an equitable right to the land, and brought this suit to
have the defendant declared a trustee of the title for his benefit.
A demurrer to a second amended petition was sustained by the trial
court, and a decree entered dismissing the suit. This decree was
affirmed by the supreme court of the territory,
11 Okla. 565,
and from that decision this appeal was taken. The tract is within
that portion of the Cherokee Outlet opened to settlement by the
President's proclamation of August 19, 1893, and the only question,
as agreed by counsel on both sides, is whether appellee was
disqualified by reason of being within prohibited limits on
September 16, 1893, the day on which by the President's
proclamation the land was opened for settlement.
Page 189 U. S. 149
MR. JUSTICE BREWER delivered the opinion of the Court.
The President's proclamation, after reciting that the Cherokee
Nation of Indians had
"ceded, conveyed, transferred, relinquished, and surrendered all
its title, claim, and interest of every kind and character in and
to that part of the Indian Territory bounded on the west by the one
hundredth degree (100�) of west longitude; on the north by the
State of Kansas; on the east by the ninety-sixth degree (96�) of
west longitude, and on the south by the Creek Nation, the Territory
of Oklahoma and the Cheyenne and Arapahoe reservation created or
defined by executive order dated August 10, 1869,"
and also that Congress had passed an act authorizing the
President of the United States to open to settlement any or all
lands included in such cession not allotted or reserved, declared
that, on September 16, 1893, the lands so acquired would be open to
settlement, saving and excepting certain specified tracts and
portions, including in the latter the Osage, the Kansas, the Ponca,
the Otoe, and Missouri reservations. The following diagram shows in
a general way the land first above described as ceded and
relinquished by the Cherokee Indians, the land opened to
settlement, and the excepted reservations.
image:a
The proclamation declared that the land should be opened to
settlement
"under the terms of, and subject to all the conditions,
limitations, reservations, and restrictions contained in, said
agreements, the statutes above specified, the laws of the United
States applicable thereto, and the conditions prescribed by this
proclamation."
The act of 1893, 27 Stat. 640, 643, which is one of the statutes
referred to, contained this provision:
"No person shall be permitted to occupy or enter upon any of the
lands herein referred to except in the manner prescribed by the
proclamation of the President opening the same to settlement, and
any person otherwise occupying or entering upon any of said lands
shall forfeit all right to acquire any of said lands. The Secretary
of the Interior shall, under the direction of the President,
prescribe rules and regulations not inconsistent with this act for
the occupation and settlement of
Page 189 U. S. 151
said lands, to be incorporated in the proclamation of the
President, which shall be issued at least twenty days before the
time fixed for the opening of said lands."
And in the President's proclamation, it was declared:
"Said lands, so to be opened as herein proclaimed, shall be
entered upon and occupied only in the manner and under the
provisions following, to-wit:"
"A strip of land, one hundred feet in width, around and
immediately within the outer boundaries of the entire tract of
country to be opened to settlement under this proclamation, is
hereby temporarily set apart for the following purposes and uses,
viz.:"
"Said strip, the inner boundary of which shall be one hundred
feet from the exterior boundary of the country known as the
Cherokee Outlet, shall be open to occupancy in advance of the day
and hour named for the opening of said country, by persons
expecting and intending to make settlement pursuant to this
proclamation. Such occupancy shall not be regarded as trespass, or
in violation of this proclamation, or of the law under which it is
made; nor shall any settlement rights be gained thereby."
The defendant was on the day named, September 16, 1893, within
the limits of the Ponca reservation, and from such reservation went
into the territory opened to settlement, and made his homestead
entry.
The contention of the plaintiff is that the strip is to be taken
as extending around the outer boundaries of the entire tract
specified in the cession and relinquishment of the Cherokee
Indians, while the contention of the defendant is that it is to be
considered as simply around the outer boundaries of the tract
opened to settlement. If the contention of the plaintiff is
correct, the strip on the north, west, and south would be
immediately contiguous to the land opened to settlement, while on
the east it would be a distance of many miles therefrom. If the
contention of the defendant is correct, it would on all sides be
contiguous to such land. There is a manifest equity in the latter
contention, especially when we consider the great multitude
(according to reports 100,000 and over) who at the
Page 189 U. S. 152
appointed time surrounded this tract with a view of entering the
same and obtaining homesteads. And such we think is the true
construction of the proclamation. The strip is described as "around
and immediately within the outer boundaries of the entire tract of
country to be opened to settlement under this proclamation." If
this were all, there would be no doubt. The doubt arises from
subsequent words, "said strip, the inner boundary of which shall be
one hundred feet from the exterior boundary of the country known as
the Cherokee Outlet." It is contended that what was known as the
Cherokee Outlet extended from the ninety-sixth to the one hundredth
degree of longitude, and included the three or four Indian
reservations east of the tract opened to settlement. Undoubtedly
this entire tract was originally the Cherokee Outlet.
Cherokee
Nation v. Journeycake, 155 U. S. 196,
155 U. S. 206,
and treaties cited. It was originally set apart for the use of the
Cherokees as a sort of appurtenance to the 7,000,000 acres
specifically granted as their reservation. Subsequently, by various
treaties, portions of it were withdrawn from the Cherokees'
possession and set apart as reservations for the various tribes
named. Still, the entire territory was commonly known as the
Cherokee Outlet, and was referred to as such in the act of 1893,
which ratified the settlement and relinquishment by the Cherokees,
and authorized the opening to settlement of such portions of the
land so ceded and relinquished as the President should determine.
There is thus a seeming contradiction between the two clauses of
the proclamation. But the first is used in special description of
the strip, while the second clause is found in that portion of the
proclamation which defines the purposes for which the strip is to
be used. As between the two clauses, therefore, the first is
entitled to preference, as at that time the attention of the writer
must be supposed to have been directed to the location of the
strip. But there are other reasons which make more clear the true
construction. In addition to the equity referred to heretofore,
these matters may be noticed: if the strip was within the tract to
be opened to settlement, it was public land, and the President
might well set that apart for temporary occupancy by those who were
designing to go into
Page 189 U. S. 153
the body of lands to be opened to settlement, whereas, if the
contention of the plaintiff is correct, the President would be
setting apart a strip one hundred feet in width through lands
reserved to certain Indian tribes, and allowing a temporary
occupancy thereof. We do not mean to deny the power of the
President, but it is more reasonable to suppose that he was setting
apart a strip of the public domain than a strip of Indian
reservations for such temporary occupancy. Further, the last
sentence in the paragraph from which the second clause is taken
says that the occupancy of the strip
"shall not be regarded as trespass, or in violation of this
proclamation, or of the law under which it is made; nor shall any
settlement rights be gained thereby,"
language which is apt if it described a portion of the larger
body of the public domain to be opened to settlement, and not apt
if it referred to a portion of Indian reservations. The
significance of the description "around and immediately within the
outer boundaries of the entire tract of country to be opened to
settlement" is found in the purpose to prevent anyone from being
upon a railroad right of way running through the tract or upon any
of the separate quarter sections or sections reserved by the
proclamation for school and county purposes within the limits of
the entire body.
Smith v. Townsend, 148 U.
S. 490;
Payne v. Robertson, 169 U.
S. 323.
Our conclusions therefore are that the contention of the
defendant is correct, and that the strip was one which ran around
and immediately within the outer boundaries of the entire body of
lands opened to settlement.
Such conclusion is in accord with the rulings of the Land
Department. It is true that at or about the time of the opening of
the land to settlement there were one or two contradictory orders
and dispatches sent out from that Department, but these were simply
responses to requests for information, and made without any hearing
from parties interested adversely, and it is also true that in the
subsequent consideration of the question there were some
differences of opinion between successive Secretaries of the
Interior, but the final conclusions were in harmony with the views
we have expressed. Cagle v. Mendenhall, 20 L.D. 446, 26 L.D. 177;
Welch v. Butler, 21
Page 189 U. S. 154
L.D. 369; Brady v. Williams, 23 L.D. 533, 25 L.D. 55, 402.
The judgment of the Supreme Court of Oklahoma is
Affirmed.
MR. JUSTICE WHITE and MR. JUSTICE PECKHAM dissented.