Op., 300-387; 12 Op., 169, 356; 13 Op., 387, 457; 14 Op., 275; 15 Op., 315; 17 Op., 27-29.)

Upon a careful consideration of the question presented, I am of the opinion that the conclusion of Mr. Secretary Delano is sound and ought to be followed. It is well settled by the decision of the United States supreme court, in the case of Elk v. Wilkins (112 U. S., 94-100), that "General acts of Congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them." Hence we have only the provisions of said section ten to consider, in order to ascertain whether the naturalization of the said Indians will make their children citizens of the United States. This section expressly requires the Indian, desiring to become naturalized, to furnish certain proof to the satisfaction of the court to whom application is made, (1) that he is competent to manage his affairs in a prudent manner, and (2) that he has adopted the habits of civilized life, and for five years prior thereto has been able to support himself and family. Upon making such proof the individual Indian is entitled to be declared a citizen of the United States, and to receive from the court a certificate to that effect. There is no provision of law declaring that, upon receipt of said certificate, his children shall become citizens of the United States, and in the absence of such statutory requirement I do not think they can be so regarded. The provisions of said section ten must be duly complied with before the Indian applicant can be entitled to a certificate of naturalization, or be regarded a citizen of the United States.

TIMBER LAND ENTRY-OFFERED LANDS.

INSTRUCTIONS.

Lands which have been offered but withdrawn from private entry by the act of March 2, 1889, are not subject to entry under the timber and stone act as amended August 4, 1892.

Secretary Noble to the Commissioner of the General Land Office, Febru ary 21, 1893.

In your letter of November 7, 1892, it is stated that you are in receipt of a telegram from the register at Duluth, Minnesota, asking"Are lands which have been offered but withdrawn by act of March 2, 1889, subject to entry under timber and stone act, as amended August 4. 1892?" Being in doubt as to how the question should be answered, you submit the matter for my direction.

By the act of June 3, 1878 (20 Stat., 89), commonly called the timber and stone act, it is provided that surveyed public lands in California, Oregon, Nevada aud Washington, valuable chiefly for timber, "and which have not been offered at public sale," may be sold as therein prescribed. This act was amended August 4, 1892 (27 Stat., 348), by

striking out California, Oregon, Nevada and Washington, and inserting in lieu thereof the words "public-land States," the purpose being to make the former act applicable to all the States in which were public lands of the character described in said act. This is the only effect of the amendment.

Formerly the policy of the government, in administering the Land Department, was, after due notice, to offer at public sale to the highest bidder the surveyed public lands. Such of them thus offered as were not then sold, were thereafter subject to private sale, and could be purchased by what was known as "private cash entry." The lands thus subject to private purchase became known, in land office terminology, as"offered" lands; those which could not be thus purchased were known as "unoffered" lands. It is surveyed lands, chiefly valuable for timber, in the public land States, and in the last category which are purchasable under the act of June, 1878, supra.

The question as to what are "offered" and what are "unoffered" lands was before the Supreme Court in the case of Eldred v. Sexton (19 Wall., 189). The law on the subject is summed up in the opening sentence of the court's opinion on p. 195, as follows:

It is a fundamental principle underlying the land system of this country that private entries are never permitted until after the lands have been exposed to public auction at the price for which they are afterwards subject to entry.

And the court held that, though the lands there in controversy, when formerly within the limits of the railroad grant, had been offered for sale at $2.50 per acre, being no longer within those limits, and the price having been reduced to $1.25 per acre, were not subject to private entry at the last price until they had first been offered at public auction at the reduced price. So the private cash entry of Eldred at $1.25 per acre, not having been made upon "offered" lands, was declared to be illegal, and the lands were awarded to Sexton, who purchased after an offering at the reduced price.

In the case of United States v. Budd (43 Fed. Rep., 630), the United States circuit court of Washington applied the rule laid down in the Eldred v. Sexton to entries under the timber and stone act of 1878, supra, saying

A reasonable construction of the statute would limit the application of the words "and which have not been offered at public sale according to law" to lands which at the date of the act belonged to the class of unoffered lands, as contradistinguished from what in the practice of the land department is known as "offered" lands; that is, lands which are subject to private cash entry at the minimum price.

This case was afterwards affirmed by the Supreme Court, but the above question was not passed upon.

In the case of Ward v. Montgomery (15 L. D., 280), this Department followed the decision of the circuit court in the Budd case, the facts in the two cases being almost identical. The lands in both were in the same town and range, had been offered for sale in 1863 at single minimum price, and afterwards in 1870 were withdrawn, because within the

limits of the Northern Pacific Railroad grant, by which the price was increased to $2.50 per acre. They had not been offered at public auction at the changed price, and consequently under the cited cases were not" offered " lands when the entries were made.

The result of these decisions, and the acts of Congress, may be summarized as determining that surveyed lands in the public land States, valuable chiefly for timber, which at the date of the act of 1878 belonged to the class of unoffered lands, may be sold under the provisions of said act.

The policy referred to of making public offerings and sales of government lands has been gradually superseded by the more beneficent method of disposing of the lands under the settlement laws; and in recent years such offerings and sales have been so infrequent as to form exceptions instead of the rule.

Finally, by the act of March 2, 1889 (25 Stat., 854), Congress declared that thereafter no public lands shall be subject to private entry except those in Missouri; and by the act of March 3, 1891 (26 Stat., 1093), the sale of land at public auction was prohibited, with a few exceptions. Consequently, the quantity of "offered " lands can not be increased and those in existence can no longer be disposed of by private cash entry.

In this condition of the law, and referring to the departmental decision in the case of Ward v. Montgomery, it seems to be thought that the recent act prohibiting private entries of "offered" lands, thus withdrawing them from sale, has placed them in the category of "unoffered" lands, and therefore they are now subject to sale and entry under the timber land act of 1878, supra.

I do not concur in these views. The effect of the decisions herein cited is that where there has been a change in the price at which lands may be disposed of, there must be a public offering at the changed price before they can be bought at private entry. But here is no change in price made by the recent legislation. Congress simply abolished one method of disposing of them. That is all. They can not be obtained by private cash entry, but are subject to disposition under other laws, as they were before the passage of the act of 1889.

The legislation in question does not in express terms declare that hereafter all "offered " lands shall be treated as though they are "unoffered," and it seems to me that it would be straining construction beyond all reasonable bounds to hold that the distinctions, in law or fact, which have so long existed between the two classes of land are abolished by a questionable inference arising from the prohibition against private entries, an inference or implication which in effect would make the term "offered," if not synonymous, at least interchangeable, with that of "unoffered" lands. In my opinion this would not be construction, but simple departmental legislation.

If the distinction between the two classes of land had been destroyed, as contended, and "offered" lands have thereby been made "unof

fered" lands, yet under the decision of Ward v. Montgomery and the Budd case cited therein, these lands would not be in any event subject to entry under the timber land act of 1878, as both of these cases distinctly hold that only those lands which belonged to the class of "unoffered" lands on June 3, 1878, the date of the passage of the act, can be entered under its provisions. Therefore the lands which have become "unoffered" since June 3, 1878, or which have been made such by the provisions of the act of March 2, 1889, if any, are not subject to entry under the timber land act.

In view of these considerations, and others that might be presented, you are directed to answer the inquiry of the register in the negative.

CONTEST-SUSPENDED ENTRY-RELINQUISHMENT.

JOPLING V. ANDERSON.

In case of a joint contest against a desert land entry where all the contestants unite in a similar charge, such common allegation may be taken in corroboration of the separate affidavits of contest.

An application to contest a suspended entry should be held until the order of suspension is removed, and where the revocation of such order recognizes the right of the contestant to proceed with his contest, such right can not be defeated by an intervening relinquishment of the entry under attack.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, March 27, 1893.

On May 28, 1877, J. T. Anderson made desert land entry No. 299 for Sec. 20, T. 27 S., R. 26 E., Visalia, California. It was suspended, together with all such entries at that office on September 28, 1877.

On September 11, 1888, J. T. Jopling filed in the local office an affi davit of contest against said entry, together with his application to enter as a homestead the SW. of said section. In said affidavit of contest he alleges that the land embraced in Anderson's entry was not desert in character.

March 2, 1888, separate affidavits by D. S. Woodruff and Lydia P. Gay were filed against said entry, accompanied by their applications to enter respectively the NE. and the NW. of said section; and on April 14, 1888, Nancy Benson filed her affidavit against said entry, and applied to enter the SE. of said section. All of these affidavits alleged that the land embraced in Anderson's entry was not desert in character.

All these applications to contest as well as to enter, were refused and rejected by the register and receiver, and separate appeals were filed by each from said action to you.

In the meantime, and on January 2, 1889, Anderson relinquished his desert land entry, and the same day it was canceled by the register and receiver. On the same day the following filings and entries were per

mitted to go of record for said tract: pre-emption declaratory statement No. 10,016, by Samuel Reed, for the NE. thereof; pre-emption declaratory statement No. 10,017, by Elmer Harpman, for the NW. 1; timber culture entry No. 2537, by William E. Houghton, for the SE. ; and homestead entry No. 6944, by H. P. Bender, for the SW. 1.

On January 12, 1891, all the suspended desert land entries at the Visalia land office were released from suspension, and an order made to the effect that all persons who had applied to contest any of said entries during their suspension should be allowed to proceed with their contests. United States v. Haggin (12 L. D., 34).

On March 16, 1891, you considered the applications to contest Anderson's entry, and held that Woodruff, Gay, Benson and Jopling were joint contestants, and that they had a right under the order of January 12, 1891 (supra), to proceed against said entry. That as the filings of Reed and Harpman for the NE. 4 and the NW. 4 of said section did not segregate the tracts from entry, the applications of Woodruff and Gay to enter those tracts should be allowed, and the entries made of record. You also directed the register and receiver to give those who made entries for the remainder of said section after Anderson's entry was canceled, thirty days in which to show cause why their entries should not be canceled and the prior applications of Benson and Jopling allowed. A showing was made by Jopling and Benson, and on October 7, 1891, you considered the same, and held that Jopling's affidavit of contest was not corroborated, and that of Benson, while properly corroborated, "fails to allege that such invalidity existed at the date of entry." You accordingly rejected said applications to contest.

Jopling alone has appealed from your judgment to the Department. I think your decision of March 16, 1891 was correct, in holding that the contests of Jopling, Benson, Woodruff, and Gay might properly be called a joint contest; with this in view it was error to hold on October 7,1891, that Jopling's affidavit to contest was not properly corroborated, for each of the four affidavits charge substantially that the land embraced in Anderson's entry was not desert in character.

The contests were properly refused when filed, because the entry was suspended, and such entries are not subject to contest. George F. Stearns (8 L. D., 573). They should have been held until the suspension was removed. The applications to make entry were also properly rejected, because the tracts at that time were not subject to entry, being covered by Anderson's entry. Goodale v. Olney (13 L. D., 489).

These applicants to contest could not proceed with their contests until said entry was relieved from suspension. This was done by the order made in the case of the United States v. Haggin on January 12, 1891 (12 L. D., 34). It was expressly provided in said order that parties who had applied to contest should be allowed "to proceed with their contests." When allowed to thus proceed the rights of Jopling relate back to the date of filing his contest, which was before Ander