Frost v. Wenie/Opinion of the Court

by by John Marshall Harlan

United States Supreme Court

157 U.S. 46

Frost  v.  Wenie

The act of May 28, 1880, for the relief of settlers upon the Osage trust and diminished reserve lands in Kansas, provided that all of those Indian lands remaining unsold and unappropriated (and nor embraced in certain claims which it is unnecessary here to mention) shall be subject to disposal to actual settlers only, 'having the qualifications of pre-emptors of the public lands,' each settler being permitted 'to enter not exceeding one quarter section each.'

The act of December 15, 1880, directed the secretary of the interior to cause all that portion of the Ft. Dodge military reservation lying north of the right of way of the Atchison, Topeka & Santa F e Railroad to be surveyed, sectionized, and subdivided 'as other public lands,' and, after survey, 'to offer the said lands to actual settlers only, under and in accordance with the homestead laws of the United States.'

Only about one twenty-fifth part of the lands embraced in so much of the Ft. Dodge military reservation as is described in the last-named act were Osage trust lands. 6 Land Dec. 541.

Did congress intend, by the act of December 15, 1880, to open to entry by homesteaders lands of the class which, by the act of May 28, 1880, were opened to entry only by actual settlers having the qualifications of pre-emptors?

It is to be observed that, although the words of the act of December 1 , 1880, are broad enough, if literally interpreted, to embrace all the lands within the abandoned Ft. Dodge military reservation north of the Atchison Railroad, there are no words in it of express repeal of any former statute. It is well settled that repeals by implication are not to be favored. And, where two statutes cover, in whole or in part, the same matter, and are not absolutely irreconcilable, the duty of the court-no purpose to repeal being clearly expressed or indicated-is, if possible, to give effect to both. In other words, it must not be supposed that the legislature intended by a later statute to repeal a prior one on the same subject, unless the last statute is so broad in its terms, and so clear and explicit in its words, as to show that it was intended to cover the whole subject, and therefore to displace the prior statute. McCool v. Smith, 1 Black, 459, 468; U.S. v. Tymen, 11 Wall. 88, 93; Red Rock v. Henry, 106 U.S. 596, 601, 1 Sup. Ct. 434; Henderson's Tobacco, 11 Wall. 652; King v. Cornell, 106 U.S. 395, 396, 1 Sup. Ct. 312.

There is an interpretation of the act of December 15, 1880, that will give effect to its provisions, and at the same time leave untouched the prior act as expressing the will of congress in respect of the Osage trust and diminished reserve lands. That interpretation assumes that congress did not intend by that act to prescribe for the Osage trust lands within the limits of the abandoned Ft. Dodge military reservation north of the Atchison Railroad any different rule or policy than had been prescribed by the act of May 28, 1880, for all such trust lands wherever situated. Excluding from the operation of the act of December 15, 1880, any lands affected with an express trust in favor of Indians,-that is, construing it as applying only to public lands, strictly so called, which the United States could dispose of without any breach of good faith or violation of treaty obligations,-there is no difficulty in giving effect to the provisions as well of that act as of the act of May 28, 1880, without infringing any established principle for the interpretation of statutes. No trace can be discovered in the various legislative enactments relating specifically to the Osage trust lands of any intention, upon the part of congress, to disregard the terms of its treaties with the Osage Indians; and, consequently, the act of December 15, 1880, should not be construed as impairing the rights of the Indians, unless such a construction be unavoidable. It is not unavoidable. Looking at that act, in connection with prior statutes, particularly that of May 28, 1880, we are of opinion that the lands which the act of December 15, 1880, directed to be opened for entry under the homestead laws, were public lands that were within the abandoned military reservation, and subject to disposition under general laws relating to 'other public lands,' and not lands of an exceptional class that were affected with a trust established for the benefit of Indians by treaty. Acting Secretary of the Interior Muldrow said: 'However we may construe the act of December 15, 1880, with reference to the disposal of the greater part of the reservation relinquished by said act lying north of the Osage lands, it should not be so construed as to impair or defeat the rights of the Indians guarantied by the treaty of 1865.' 6 Land Dec. 175.

Application having been made to Secretary Vilas for a review of that decison, that officer, among other things, said: 'I am satisfied that congress, by the act of December 15, 1880, had no intention of repealing the act of May 28, 1880, or any portion thereof, since such repeal would work an impairment of the rights guarantied to the Indians by the treaty of 1865. Especially do I think this view is warranted in the absence of any express words of repeal; for, had congress intended a repeal, the effect of which would be to disregard treaty obligations, or to defeat or impair treaty rights, I feel certain it would have expr ssed that intention in plain words, and not left it to implication. How, then, is the act of December, 1880, in so far as it is in apparent conflict with the act of May 28, 1880 (which is as to less than three sections of land), to be construed? Manifestly, the intention of congress can be ascertained only by a consideration of the treaty of 1865 and the two acts above mentioned in pari materia, and, so considering them, I have no difficulty in arriving at the conclusion that the tract in question cannot be legally entered by Frost, for the reason that, having made one Osage entry, he is not a qualified pre-emptor.' 6 Land Dec. 540.

We approve the construction placed upon the act of December 15, 1880, by the interior department, and the decree is affirmed.

Notes