The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1902-07-18
IMPORTANT
DECISION IN
F0-RNEY CASE
Holds That Entry Upon Chero-
kee Strip From Reservation
DIDN'T DlSQUALIFY HIM
For Exercising His Right to
Cherokee Strip Land.
DIDN'T DISQUALIFY HIM

Guthrie, .. T, July 1.-THE question
OF public lands and who not dis4uaiised
10 enter is propcslti~n which the
ease Of Herbert / Winebrsaaer vs.. bc'
ward c F3r1ey was appealed to the su-
lren.e court. The litigation involves 10
acres Of land in the Cherokee Strip, open
ed for settlement in 1898. The opinion
In the case was written by Judge y. +.
Burwell. associate justice, and handed
down yesterday 1t afarms the decision
Of Heiners. court IN giving Forney
judgment.
-'One who was within the Ponca In
dian reservation before the hour of i
o'clock ncor. Of September is, lS93, and
made the race from said reset fa'ion INTO
that at OF the Cherokee Outlet wni. h
was opened to settlement on that day
IS not by reason thereof, disqualified from
settling upon and fling a homestead en-
try upon a quarter section OF land within
the country then declared open to set
tiement."
Such is the opinion of Associate JUS
tice. BurweH who further says:
This case involves the question as t.
whether one VINO made the race into the
Cherokee Outlet on September Is. 1903,
from the west line of the Ponca Indian
reservation IS sooner and therefore
disqualified to make homestead entry Of
any of the lands thrown open to settle
Tnent by the presidents proclamation.
dated August 19, 1893. Edward c. Fol-
ney made the run into the Cherokee Out
let on the day of the opening and made
homestead entry on the land in conFo-
versy. which is the southwest quartef
OF section o. township 20, north Of range
/, east of the Indian meridian in Kay
county.
Robert L. Winebrenner fled q, con-
test against Forney on the grounds OF
prior settlement and 'soonerism.' The
contest was tried in the local land Office.
then appealed to the commissioner Of
the general land Office, then to the sec
retary Of the interior. who found in
favor Of Forney on both questions. Pat
ent was issued to Forney and Winebren-
ner began the suit to declare d resulting
trust In the district court a demurrer
80 the petition was sustained. and plain
tiff refusing TO plead further. judgment
for defendant for costs and the dismissal
or the action was rendered and plain
tiff appealed to this court"
IN this case all Of the phrases used II.
the proclamation for the opening of tn.
country are taken up and disposed Of
The plaintiff and defendant had waived
ali questions with the exception Of the
disqualification Of Forney and for the
benefit of similar contestants a fun opin-
ion was given.
1T is alleged that the defendant
started from that part of the Outlet
known as the Ponca Indian nation. From
the allegation it viii be seen that h.
was within the Ponca reservation before
the hour of opening and it is contended
that the act of March 2. 1889. prohibited
persons from entering upon OF occupy
ing any of the lands west Of the ninety
sixth degree of longitude before the
same was opened to settlement. This is
true. but the act of August 8. 1893. mod
fled the act Of March 2 1899, to the
extent that one who did not enter tn
lands opened To settlement in violation
OF the presidents proclamation, and who
was otherwise qualified. could make en-
try. Congress and the president were
dealing with the lands TO be actually
opened to settlement and the fact thar
the defendant was within the Ponca In
dian reservation prior to the time or
opening did not dlsquanfy him from
making homestead entry on a tract with.
IN the country opened 10 settlement or
September &c. 1899. For the reasons here
IN given. the Judgment Of the lower court
IS hereby affirmed at the cost OF th-
appellant"
There have been many cases Of this
nature since tie opening Of the Chero-
kee Outlet Tor three years. under the
rulings of Hoke Smith Of the interior
department such entries as made by For
ney were declared illegal Later. the
ruins was changed and the lands Went
back 10 the original entryman.
There are many cases similar TO this
one and the decision OF the supreme
court viii establish precedent in such
matters.
OTHER COURT OPINIONS.
Guthrie. O. T.. July l7-Tne territorial
supreme court was in session TODAY and
a. il.@ handed down twenty-one opinions
iH cases which have been pending. An
other session Of The court VIII be held TO- /
morrow and another lot OF opinions hand |
ed down.
In the case of Ed Ellis versus the United /
States, The court ordered n reversal and |
The case was remanded 70 the lower court.
This IS q case which has been pending /
since 1897. In November nj Pawhuska /
Ellis was indicted and convicted OF Tho
murder Of William Brown on the slst of /
October in the same year. Ellis was sen
fenced 20 eight years in the pea1eurisry I
et Columbus end taken there where he Is I
now confined.
The supreme court holds that owing TO T.
the FACT that Ellis is not an Indian.
snd the man killed not m Indian. the
Fawhuska court has mo- jurisdiction and /
for THIS reason The ease was reman6ed 1
Ellis VIII be- brought back from Columbus /
g. soon As the order is made.
The opinions handed down are as fol- I
lows,
Burford- Territory versus Cooper. re-
Versed and rcmande,l
Ellis versus United States. reversed and 4
remandes.
Turner versus Territory. reversed and !
Teman6e6.
Per Curiam opiuious-1IeD3 eahall versus 4
Cssie. reversed and remanded
Mcdonald versus Brady. reversed and /
TemendeG.
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