Charles H. Moore and William E. Richardson have appealed from your judgment, alleging substantially the same causes therefor as are contained in the protest theretofore filed.

Your judgment is correct in affirming the finding of the register and receiver in rejecting the homestead applications of Moore and Richardson, for the land at the time said applications were made was not public land, and hence not subject to entry and not subject to the jurisdiction of the land department.

It is contended that the patents were void on their face because they referred to the act under which the scrip was located, and it is contended that said act did not authorize the location of said scrip in Utah. Even if they were illegally issued and the parties thereto are satisfied with the transaction, no one else can question it. The United States owned the land, and the land department, having jurisdiction over it, is presumed to have considered all the questions, and its judg ment, followed by the issuance of the patents, may not be set aside nor the patents invalidated except by the act of the holders themselves surrendering them for the purpose of correction, or by a court of competent jurisdiction. At the time these applications were made, no such surrender had been made, and no court had vacated said patents; hence the applications under the homestead law were properly rejected. The right of a homestead application, if it attaches at all, must attach at the time it is made. Maggie Laird (13 L. D., 502); Goodale v. Olney, on review, (13 L. D., 498).

The land officers had jurisdiction to issue these patents, the United States owned the land, and there appears to have been no prior application therefor; hence these patents were not void, although they might be avoided by a proper suit filed by the United States, if the United States had an interest in so doing, or if it was under obligations to any one to do so.

A clear distinction should be kept between a patent that is void and one that is voidable only. On this subject the supreme court, speaking through Justice Miller, in the case of the United States v. Schurz (102 U. S., 378), said

It is argued with much plausibility that the relator was not entitled to land by the laws of the United States, because it was not subject to homestead entry, and that the patent is, therefore, void, and the law will not require the Secretary to do a vain thing by delivering it, which may at the same time embarrass the rights of others in regard to the same land.

We are not pretending to say that if the patent is absolutely void, so that no right could possibly accrue to the plaintiff under it, the suggestion would not be a sound

one.

But the distinction between a void and a voidable instrument, though sometimes a very nice one, is still a well-recognized distinction, on which valuable rights often depend, and the case before us is one to which we think it clearly applicable. To the officers of the Land Department, among whom we include the Secretary of the Interior, is confided, as we have already said, the administration of the laws con

cerning the sale of the public domain. The land in the present case had been surveyed, and, under their control, the land in that district generally had been opened to pre-emption, homestead entry and sale. The question whether any particular tract belonging to the government was open to sale, pre-emption, or homestead right, is in every instance a question of law as applied to the facts for the determination of those officers. Their decision of such questions and of conflicting claims to the same land by different parties is judicial in its character.

It is clear that the right and the duty of deciding, all such questions belong to those officers, and the statutes have provided for original and appellate hearings in that department before the successive officers of higher grade up to the Secretary. They have, therefore, jurisdiction of such cases, and provision is made for the correction of errors in the exercise of that jurisdiction. When their decision of such a question is finally made and recorded in the shape of a patent, how can it be said that the instrument is absolutely void for such errors as these? If a patent should issue for land in the State of Massachusetts, where the government never had any, it would be absolutely void. If it should issue for land once owned by the government, but long before sold and conveyed by patent to another who held possession, it might be held void in a court of law on the production of the senior patent. But such is not the case before us. Here the question is whether this land had been withdrawn from the control of the Land Department by certain acts of other persons, which include it within the limits on an incorporated town. The whole question is one of disputed law and disputed facts. It was a question for the land officers to consider and decide before they determined to issue McBride's patent. It was within their jurisdiction to do so. If they decided erroneously, the patent may be voidable, but not absolutely void. The mode of avoiding it, if voidable, is not by arbitrarily withholding it, but by judicial proceedings to set it aside, or correct it if only partly wrong. It was within the province of those officers to sell the land and to decide to whom and upon what price it should be sold; and when, in accordance with their decision, it was sold, the money paid for it, and the grant carried into effect by a duly-executed patent, that instrument carried with it the title of the United States to the land.

This Department fully considered the question here presented in the case of John P. S. Voght (9 L. D., 114) and there cited numerous authorities to sustain its ruling that—

The officers of the Land Department act within the general scope of their authority in issuing patents for lands that were prior thereto a part of the public domain, though in particular instances their action may be unwarranted.

The issuance of a patent for land which was a part of the public domain, or the fee to which was in the United States, prima facie passes the title, whether such patent is a valid or void instrument without authority, and precludes the further exercise of departmental jurisdiction over the land until such patent is vacated by judicial action.

An applicant for land covered by outstanding patent should initiate his claim thereto by proceedings looking toward the vacation of said patent.

I have quoted the syllabus in the above case because it sums up the ruling made in the case.

Were it not for the surrender of these patents, this proceeding would properly close here; but said surrender, and the conveyance of said property to the United States reinvests it with jurisdiction over the land. Title gives jurisdiction. Juniata Lode (13 L. D., 715).

I come now to the consideration of the applications to purchase under the act of June 8, 1872, supra.

Said act is as follows

The Secretary of the Interior is authorized to permit the purchase, with cash or military bounty-land warrants, of such lands as may have been located with claims arising under the seventh clause of the second article of the treaty of September 30, 1854, at such price per acre as he deems equitable and proper, but not at a less price than $1.25 per acre, and the owners and holders of such claims in good faith are also permitted to complete their entries, and to perfect their titles under such claims upon compliance with the terms above mentioned; but it must be shown to the satisfaction of the Secretary of the Interior that such claims were held by innocent parties in good faith, and that the locations made under such claims have been made in good faith and by innocent holders of the same.

Does this section give the right to holders under a location made after the act was passed? I think not, and for this reason I am of the opinion that said applications must be denied.

In order to ascertain the true meaning of the act of 1872, supra, the reasons and the purpose of the statute, derived from the then existing state of things, will first be considered. Smythe v. Fiske (3 Wall., 374).

On April 20, 1871, the Secretary of the Interior directed you to "suspend all Chippewa scrip locations or personal applications not yet patented, made by any Chippewa mixed bloods under the second article of the treaty of September 30, 1854, with the Chippewas." (Copp's Land Laws, 1st Ed., p. 711.) While this order was still in existence on December 20, 1871, by resolution the House of Representatives requested the Department to communicate to that body certain information in relation to the issuance and location of said scrip. (Chip. Scrip Report, p. 3.) The information was given on March 12, 1872, (Ibid., 3.) At page 50 of the report submitted a copy of a letter from the Secretary of the Interior to the Commissioner of Indian Affairs dated April 21, 1871, states why the order of 1871 supra, was made. The letter is as follows

Great uncertainty seems to exist in reference to the identity of the parties entitled to the land and land scrip provided for under the treaties above referred to (September 30, 1854, October 2, 1863, and April 12, 1864), and much complaint has been made to me in reference to the frauds practiced and now contemplated under the foregoing treaties.

The Secretary's report to Congress further showed that patents had issued for lands located with both valid and invalid scrip, without as well as within the ceded territory (pages 244-259).

The act of June 8, 1872, was passed, therefore, with a full knowledge of the condition of the locations, and patents issued thereon outside of the ceded lands and with a knowledge that these locations were illegal, and to save the title to those innocent holders who had purchased these lands after location, Congress had passed the act in question. This act is based upon the knowledge that the scrip locations made outside of the ceded lands were illegal, and was passed to afford a means by which bona fide holders who had nothing to do with making these locations might gain titles by buying direct from the government. It could not have been intended, knowing that the scrip could not be

legally located outside of the ceded lands, that it might be so thereafter located and the land sold and the purchasers allowed to buy from the government as would be the case if the present applications should be allowed..

The Department had at one time before the passage of the act of 1872 recognized the right of a holder of this scrip to locate it any where in the United States, and Congress recognizing this construction to be incorrect, but with a view of the equities of these holders, made the act of 1872 broad enough to afford them relief, provided they could show to the satisfaction of the Secretary of the Interior that such claims were held by innocent parties in good faith, and that the locations made under such claims have been made in good faith and by innocent holders of the same.

How could it be said that one is a holder in good faith whose rights were sought to be acquired long after the passage of the act of 1872, and long after the time when the scrip locations were held to be locatable only on the ceded lands from the Chippewas?

The act of 1872 was not intended, in my judgment, to help those who, in violation of the rules and law, located scrip outside of the ceded lands after 1872. That act dealt with the present condition only. For these reasons the applications to purchase are denied.

Since the deeds in this case were executed by the owners but have not been accepted by the government, and since the patents were delivered to you for the purpose of correcting errors and giving the patentees better titles than they now have, and since, as has been herein decided, such errors cannot be corrected and such parties cannot purchase their tracts under the act of June 8, 1872, you will therefore return to said several claimants the deeds made by them, their abstracts of title, and the patents you now hold. These instruments have never been accepted by the government, and should now be returned in order that these applicants may be placed in statu quo. Your judgment is accordingly affirmed.

PRE-EMPTION ENTRY-CONFIRMATION.

UNITED STATES v. PULLEN.

A pre-emptive right can not be acquired by one who enters upon and uses the land for purposes of business only, and who attempts to secure the status of a settler in fraud of the possessory right of an Indian tribe; nor is an entry of such character within the confirmatory operation of section 7, act of March 3, 1893. First Assistant Secretary Chandler to the Commissioner of the General Land Office, March 1, 1893.

of

The land involved in this entry is lot 6, Sec. 21, SW. of SW. Sec. 22; lots 4 and 5, Sec. 21, lot 1, Sec. 27, and lots 1, 2 and 3, Sec. 28, T. 28 N., R. 15 W., Seattle, Washington, land district.

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The record in this case shows that Daniel Pullen filed pre-emption declaratory statement, July 8, 1882 on lots 4 and 5, Sec. 21, lot 1, Sec. 27, and lots 1, 2 and 3, Sec. 28, of said township and range, alleging settlement March 1, 1880. After due notice he submitted final proof and made cash entry July 9, 1883. He made timber land entry November 5, 1883, for lot 6, Sec. 21, and the SW. of SW. 4, Sec. 22, said township and range, alleging that the land was unfit for agricultural purposes and chiefly valuable for its timber.

On September 10, 1884, the Indian agent at the Neah Bay, Washington agency, directed the attention of the Commissioner of Indian Affairs to the fact that there was situated on said land the Indian village of the Quillehute Indians, and had been occupied by them as such from time immemorial. He requested that the entries be canceled. Upon this information being communicated to your office by the Indian Commissioner, you ordered the entries to be investigated by a special agent. This order was issued on October 7, 1884. It is not necessary to recite the correspondence that passed subsequently between you and the Commissioner of Indian Affairs on the subject, the delays of the special agent in making the examination caused by deaths, resignations and the inaccessibility of the land. Suffice it to say that the Indian Service was persistent and untiring in its efforts for a thorough examination of the entries. (See Report of the Commissioner of Indian Affairs 1885, page 188; 1887 page 209; 1889, page 285). The result of the investigation was that on October 12, 1887, you directed the entries to be canceled, and Pullen was allowed sixty days within which to apply for a hearing. This you did on the report of the special agent, dated August 27, 1887.

Application was made for a hearing by Pullen and granted December 3, 1887. The matter was again delayed for various reasons until November 6, 1890, when the testimony was begun at Port Townsend, before United States commissioner, afterwards before a notary on the land, and finally finished before the local officers December 15. Due notice of this hearing had been served personally on the claimant, his wife and the Washington Fur Company. As a result of this hearing the receiver held that the entries should be held for cancellation; the timber entry "for the double reason that the land is suitable for agricultural purposes and was used by the Indians in connection with their village ou lot 1, of section 28. That the pre-emption cash entry should be canceled solely for the reason that the tract was occupied by the Indians prior to the time that Mr. Pullen made his settlement and improvements on the land."

Pullen appealed, and you by letter of September 22, 1891, reversed the decision of the receiver, holding that the pre-emption cash entry was confirmed under section 7 of the act of March 3, 1891, as 66 a period of more than two years had intervened between the issuance of the final receipt and the initiation of any proceeding on the part of the gov