1890 (10 L. D., 562), relative thereto, directed that such amount "should not be collected when the original entry is made, but is required to be paid when final proof is tendered"-which in ordinary cases would be after a compliance with the requirements of the homestead law for a period of five years.

Cases arose, however, where parties purchasing these lands under the above-named act desired to obtain title thereto in less than five years; and in view of the language of said act, that the purchaser should be entitled to a patent for the land "after the full payment of said sums," your office held that such purchasers, upon compliance with the requirements of the homestead law for the period of fourteen months, as provided by the commutation clause (Sec. 2301) of the homestead act, as amended by section 6 of the act of March 3, 1891 (26 Stat., 1095), might obtain patent for such land at any time, "after the full payment of said sums"-that is, without making any additional payment.

The Department, however, in its decision in the case of the State of South Dakota, ex parte, rendered May 13, 1896 (22 L. D., 550, 556), directed attention to the language of said section 2301, amended as above, to the effect that the commutation provision of the homestead act

shall apply to lands on the ceded portion of the Sioux reservation.

but sball

not relieve said settlers from any payments now required by law; (and held that said provision) means that where such entrymen so elect, they may commute, after the time named, by paying the minimum price for the land, in addition to the payments required under the act of 1889.

Prior to the rendition of said last-named decision, the local officers had issued final certificate to the homestead applicant in the case now under consideration (Samuel W. Johnson) upon payment of the amount required by section 21 of the act of March 2, 1889 (supra).

But in view of that decision your office called upon him for an additional payment of one dollar and a quarter per acre.

Johnson appealed to the Department, which, on September 14, 1898, sustained the action of your office.

The Department is now in receipt of your office letter of April 26, 1899, calling attention to the section (not numbered) of the sundry civil appropriation act of March 3, 1899 (30 Stat., 1102), which provides:

That all persons who may have heretofore settled upon that portion of the Great Sioux Indian reservation which was opened to settlement under and by virtue of the act of March second, eighteen hundred and eighty-nine, entitled "An act to divide a portion of the reservation of the Sioux Nation of Indians in Dakota into separate reservations, and to secure the relinquishment of the Indian title to the remainder, and for other purposes," may secure patents for the lands embraced in their entry upon making the payments required in section twenty-one of said act of March second, eighteen hundred and eighty-nine, above referred to; and no other or further payment shall be required of said claimants, whether proof and payment be made in fourteen months or five years from the date of settlement upon said land.

Your office resubmits to the Department the papers in the case of said Johnson, stating in the communication accompanying the same that he has complied with the law in the matter of residence, improvements, and cultivation, for fourteen months, and asking whether said entry can not now be approved for patenting under the remedial provision of said act-notwithstanding said departmental decision of September 14, 1898.

In the opinion of this Department, the provisions of said act above quoted were especially intended for the relief of persons in the situation of said Johnson; and it would appear that, in case his proof is in other respects satisfactory, said entry may be patented.

You are hereby directed to take action similar to that herein indicated, in other cases of settlers on land formerly embraced in the Great Sioux Indian reservation.

HOMESTEAD ENTRY-DIVORCED WIFE-EQUITABLE ACTION.

MASSIE v. HAMLET.

In determining the status of a woman, who is claiming the right to submit final homestead proof as the deserted wife of an entryman, a decree of divorce obtained in a probate court of Oklahoma after August 14, 1893 (the date when such courts, under territorial legislation, ceased to have jurisdiction in matters of divorce), will be recognized as validated by the remedial act of February 28, 1895, of the Oklahoma legislature.

The rule allowing a child of the entryman who is not twenty-one years of age, bat is the head of the family, to submit final proof, with a view to equitable action, where the deserted wife of such entryman is deceased, is equally applicable where the wife has been divorced.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) May 22, 1899. (E. B., Jr.)

In the above entitled case, involving the NE. of Sec. 35, T. 19 N., R. 1 W., Guthrie, Oklahoma, land district, for which Watt Hamlet made homestead entry October 23, 1889, it appears that said Hamlet duly complied with the requirements of the homestead law for the period of five years from the date of entry, and that thereafter, in July, 1895, he fled from his home on the land, a fugitive from justice, abandoning his family consisting of four or five children, the eldest being then about fourteen years of age. A contest against the entry, on the ground of abandonment, instituted July 14, 1896, by Rachel Massie, was dismissed by the local office October 21, 1896, on motion of the attorneys for Hamlet's children, because notice of contest had not been served on them, and because the contest was commenced, and the abandonment alleged to have occurred, more than five years after date of entry, and within the time allowed for making final proof. No

appeal appears to have been taken from this action, nor does the record show that due notice thereof was given to said Massie.

In the meantime, September 18, 1896, Mary Hamlet, the eldest child of the entryman, gave notice that she would submit final proof November 5, 1896. She offered final proof on that date, and at the same time Rachel Massie appeared and filed a protest against the approval thereof, on the grounds:

1. That Mary Hamlet is not twenty one years old, being not over sixteen years of age at this time.

2. That said Watt Hamlet is not dead, but is at this time alive, and a fugitive from justice.

3. That this affiant is the wife of said Watt Hamlet, and that she has occupied the said claim, and that all the improvements thereon were put there with her money.

The children of the entryman, by their attorneys, filed a motion, November 5, 1896, to dismiss this protest, for the reasons (1) that the same was not sworn to by the person by whom it purports to be made, and is not duly corroborated; (2) that it does not state a cause of action; and (3) that protestant does not ask to make final proof for the land, although alleging herself to be the wife of the entryman, but had heretofore filed a contest against the entry. This motion was the same day sustained and the protest dismissed by the local office.

On appeal by said Massie, your office decided May 24, 1897, that she was not the wife of the entryman, having been divorced from him January 20, 1894, by decree of the probate court of Payne county, Oklahoma; that she had no right to the land nor to make final proof therefor; that the said children, under the ruling in Bray v. Colby (2 L. D., 78), might make such proof; and that the proof submitted, showing a full and fair compliance with the law, would, in the event your office decision became final, "be approved and referred to the Board of Equitable Adjudication under paragraph 3, page 81, 2 L. D." Your office decision therefore affirmed the dismissal of the said protest, and, the record failing to show that said Massie had been notified of the dismissal of her contest and so afforded an opportunity to appeal, considered and affirmed the action of the local office dismissing the contest.

An appeal by said Massie brings the case to the Department. She contends that the decree of divorce by the said probate court is void for the reason that such court had no jurisdiction of actions for divorce after August 14, 1893, as decided by the supreme court of Oklahoma in Irwin . Irwin (2 Oklahoma, 180,) and Uhl v. Irwin (3 Oklahoma, 388), and that, as the deserted wife of the entryman, she, rather than his children, is entitled to make final proof.

It appears that Watt Hamlet and Rachel Massie were married in January, 1891; that Hamlet was then a widower with four children, and that a decree of absolute divorce was rendered January 20, 1894, by the probate court of Payne county, Oklahoma, in the suit of said Hamlet against Rachel Hamlet, the appellant in the case at bar.

The organic act for Oklahoma Territory, passed May 2, 1890 (26 Stat., 81), provides

That the legislative power of the Territory shall extend to all rightful subjects of legislation, not inconsistent with the Constitution and laws of the United States. (and vests the judicial power of the Territory) in a supreme court, district courts, probate courts, and justices of the peace,

and declares that

the jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts, and of the justices of the peace, shall be as limited by law: Provided, That. . . said supreme and district courts, respectively, shall possess chancery as well as common law jurisdiction, and authority for redress of all wrongs committed against the constitution or laws of the United States or of the Territory affecting persons or property.

By the provisions of section 11 of this act, certain laws of Nebraska therein indicated are extended to and put in force in said Territory "until after the adjournment of the first session of the legislative assembly" thereof. These provisions vested exclusive jurisdiction, for the time specified, in matters of divorce, in the district courts of the Territory.

By section 4966, Statutes of Oklahoma, 1890, passed at the first session of the legislative assembly of the Territory, jurisdiction in actions for divorce was given to the district and probate courts. This jurisdiction of the probate courts was ratified by Congress in section 17 of the act of March 3, 1891 (26 Stat., 1026). In 1893 the legislature of Oklahoma enacted a code of civil procedure wherein exclusive jurisdiction in actions for divorce is vested in the district courts of the Territory (Statutes of Oklahoma, 1893, section 4543). This code went into effect "from and after its publication in the statute book," which was August 14, 1893. Notwithstanding the provisions of the Oklahoma code, relative to jurisdiction of actions for divorce, it seems that the probate courts of the Territory continued, generally, prior to the decisions of the Supreme Court of the Territory construing the acts of Congress and of the territorial legislature upon the subject, to assume and exercise such jurisdiction. September 4, 1894, in Irwin v. Irwin, supra (37 Pac. Rep., 548), the supreme court of the Territory held that the organic act gave the legislature of Oklahoma no power to vest divorce jurisdiction in the probate courts of the Territory, but that such jurisdiction was conferred upon these courts by virtue of the ratification contained in the act of March 3, 1891, supra, and continued in them until it was taken away and thereafter vested exclusively in the district courts by section 4543 of the Oklahoma code. The effect of this decision being to declare invalid all decrees of divorce pronounced by the probate courts in cases arising subsequent to August 14, 1893, when the code went into effect, and to call in question the validity of all marriages subsequently contracted between persons one of whom had been a party to such a decree, as a remedy for the resulting con

fusion and uncertainty in the marital relations of these persons and in the interest of public morals, the legislature of Oklahoma, by act of February 28, 1895, provided (Session Laws of 1895, page 107):

That all decrees of divorce heretofore granted by the probate courts of the various counties of this Territory prior to the passage of this act be and the same are hereby declared legal, and the acts of said courts in the hearing of said divorce proceedings and the rendering of judgment and decree therein, and all the orders of said courts in said divorce proceedings, whether temporary or final, are hereby ratified and declared legal and valid in all respects.

In Irwin v. Irwin, on rehearing (41 Pac. Rep., 369), decided by the supreme court of Oklahoma July 27, 1895, and followed in Battice v. Battice (Id., 375) and in Uhl v. Irwin, supra (41 Pac. Rep., 376), that court, upon a careful review of its former decision, and of all the foregoing legislation save the curative act of February 28, 1895, while adhering to its previous conclusion that by reason of the provisions of the code of 1893 the probate courts have had no jurisdiction to entertain proceedings for divorce subsequent to August 14, of that year, overruled its former views as to the source and scope of the power of the legislature to enact laws upon the subject of divorce, holding that (syllabus by the court):

The power to regulate matters of divorce is a legislative one, and the conferring of jurisdiction upon probate courts to grant divorces is not a wrongful exercise of the right granted by the organic act to the legislature of this territory to pass enactments upon rightful subjects of legislation; and the act of the legislature of this territory of 1890, giving probate courts jurisdiction to entertain actions of divorce, needed no ratification by congress, and the act of congress subsequently passed approving the territorial legislative enactments granting jurisdiction to probate courts did not take away the right of the legislature to still further make regulations respecting divorce proceedings, nor the right to repeal its own enactments granting to probate courts jurisdiction in divorce cases.

In the opinion of the court it was further said (pp. 372–3):

We believe that the question of marriage and divorce, of the marriage relation and the dissolution thereof, is entirely a legislative question, and one which should and must be controlled by legislative enactment. Except for the act of congress prohibiting local and special legislative acts, the legislature might either grant divorces itself, or it might confer upon some other body, not necessarily a judicial tribunal, the power to grant the same. The right to grant divorces never was inherent in either courts of chancery or common law, and the inherent powers of the district and supreme courts of this territory are those possessed by chancery and common-law courts under the grant of the organic act, which is: "And said supreme court and district courts, respectively, shall possess chancery as well as common-law jurisdiction." 26 Stat., 81. So long, then, as an act of the legislature does not infringe on any of the common-law or equity jurisdiction of the courts of the territory, as defined by act of congress, and the act is within the grant of legislative power extended to the legislature of this territory, we can see no reason why it is not valid. We know of no reason why it cannot, on the one hand, enact, and no reason why it cannot repeal, the same. The act of congress ratifying this law giving jurisdiction to the probate courts does not prevent the legislature from repealing the same. There is nothing in the act of congress making the ratification which indicates that congress meant to repeal any of the provisions of our organic act. Congress had delegated to the territorial legislature the power to legislate upon “all