Opinion of the court by This case involves the question as to whether one who made the race into the Cherokee outlet on September 16, 1893, from the Chilocco Indian School Reservation, is a "sooner", and therefore disqualified to make homestead entry on any of the lands thrown open for settlement by the President's proclamation on opening the Cherokee outlet to settlement. Herbert E. Ellis, the defendant in error, made the run into the Cherokee outlet the day of the opening, and made homestead entry on the land in controversy, which is the southwest quarter of section 15, township 28, north of *Page 25 range 2 east of the Indian Meridian, in Kay county. The identical questions involved in this case have been decided by this court in the case of McCalla v. Acker, filed September 3, 1904, reported in 78 P. 223. Upon the authority of that case, and the authorities there cited, the judgment of the district court of Kay county is affirmed, with costs to plaintiff in error.
Hainer, J., who presided in the court below, not sitting; all the other Justices concurring.