FOREST WITHDRAWALS-HOMESTEAD ENTRIES-RIGHTS OF CONTESTANTS-ACT OF MARCH 3, 1911.

INSTRUCTIONS.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, April 6, 1911.

REGISTERS AND RECEIVERS, United States Land Offices.

GENTLEMEN: Your attention is directed to the act of Congress approved March 3, 1911 (Public-No. 469), entitled "An act providing for the validation of certain homestead entries," which reads as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all homestead entries which have been canceled or relinquished, or are invalid solely because of the erroneous allowance of such entries after the withdrawal of lands for national forest purposes, may be reinstated or allowed to remain intact, but in the case of entries heretofore canceled applications for reinstatement must be filed in the proper local land office prior to July first, nineteen hundred and twelve.

SEC. 2. That in all cases where contests were initiated under the provisions of the act of May fourteenth, eighteen hundred and eighty, prior to the withdrawal of the land for national forest purposes, the qualified successful contestants may exercise their preference right to enter the land within six months after the passage of this act.

1. Applications for the reinstatement of entries coming within the provisions of section 1 of the act must be filed in the proper local land office prior to July 1, 1912. Promptly upon the filing of such applications, you will forward the same to this office by SPECIAL LETTER, making such recommendation in the premises as the facts may warrant, and a statement as to the status of the land involved. Each application should be accounted for on your appropriate schedule of serial numbers for the month in which the same was forwarded, showing the date of transmittal.

2. Section 2 has reference only to contests initiated prior to March 3, 1911, and prior to the withdrawal for national forest purposes of the lands involved. You will require applicants under said section to show their qualifications at the time their applications are presented.

3. You will notify the proper forest officer of all action taken by you under this act.

Very respectfully,

FRED DENNETT,

Commissioner.

BERGMAN ET AL. v. CLARKE.

Decided April 7, 1911.

FOREST LIEU SELECTION-CONTEST-OCCUPIED LAND.

The requirement that a forest lieu selection shall be made of unoccupied land is for protection of such legal rights as the occupant himself may have, and he only is entitled to question the selection on the ground that the land was occupied at the time selection thereof was made.

FOREST LIEU SELECTION-CONTEST-CHARGE-OCCUPIED LAND.

The charge in an affidavit of contest against a forest lieu selection that the selected land was occupied at the date of selection is not sufficient in the absence of a further charge that such occupancy was adverse to the selector.

PIERCE, First Assistant Secretary:

Charles J. Bergman and James Mowat separately appealed from decision of the Commissioner of the General Land Office of November 2, 1910, rejecting their contest affidavits against selection by C. W. Clarke, No. 1904, under act of June 4, 1897 (30 Stat., 36), for lands described as S. SW. 1, NE. SW. 1, and NW. SE. 4, Sec. 10, sought to be contested by Bergman, also N. 1 of S. 1, Sec. 34, sought to be contested by Mowat, all in T. 15 N., R. 6 W., W. M., Olympia, Washington.

July 24, 1899, Clarke made selection. September 26, and September 28, 1910, respectively Bergman and Mowat filed separate affidavits seeking to contest the selection as to the lands above mentioned. The affidavits were similar in form, alleging that when Clarke made his selection the land was settled upon and improved, and that the nonoccupancy affidavit filed with the selection was untrue. Neither Bergman nor Mowat alleged any prior right to the land in themselves, nor do their affidavits disclose who were occupants of the land at the time of selection.

The case is in all material respects like that of James McAllister v. Clarke (unreported), decided by the Department October 8, 1910, wherein it was held:

So long as Bale makes no complaint against the selection and McAllister alleges no prior interest in himself, the existence of improvements is a matter of no concern to the United States.

It was held in Mudgett v. Gosslyn (32 L. D., 282), that the averment of a prior interest is necessary to protect the land department and persons dealing with it from interference, annoyance and delay to public business by meddlesome, mischievous or malicious and irresponsible persons.

The selection of occupied land is not a fraud against the United States per se. It is of no concern to the United States so long as the land is nonmineral or otherwise not reserved for public use. The requirement that it shall be unoccupied is for the protection merely of such legal rights as the occupant may have, and he only can avail himself of the fact that it was occupied at the time of the selection.

For another reason, the affidavit does not state a cause of action. It does not state that the occupant at time of selection was holding adversely to the selector. For all that appears, the occupant may have caused or invited the selection to be made in his own interest and for his own benefit and protection. In James Gentry v. Pacific Live Stock Company, October 27, 1902 (unreported), the Department held:

In the case of Myrick v. Thompson (99 U. S., 291, 296), the Supreme Court had under consideration the act of July 17, 1854 (10 Stat., 304), which, among other things, authorized the location of Sioux half-breed scrip upon unoccupied lands." It was there held:

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"The provision authorizing the scrip to be located upon unoccupied lands' was evidently framed for the benefit and protection of occupants of the land, and that if the occupant saw fit, as the plaintiff did in this case, to locate the scrip upon land occupied by himself, there could be no objection to the location, as the occupant might waive his right to object and abandon his occupancy, and that if he did, the effect would be to restore the premises to the condition of unoccupied land."

What the occupant might lawfully do himself in such a case, he might lawfully permit, authorize, or procure another to do. So, in this case, the Pacific Live Stock Company might procure the selections to be made by Hyde in its interest, or might waive its right to select and permit him to make the selections in his own interest.

In the case of Myrick v. Thompson therein referred to and made authority for said decision, the court had under consideration a case arising under act of July 17, 1854 (10 Stat., 304), which inhibited selection of occupied land by location of Sioux half-breed scrip. Such scrip was permitted to be located only on unoccupied land and the locator was required to show and prove that the land he sought to select or locate was unoccupied. This was a statute expressly excluding occupied land, and is controlling in this case, where the statute merely requires selection "of vacant land open to settlement." As the affidavit does not negative the fact that the occupant was the person who procured and induced the selection, it states no cause of action or ground for hearing.

CHARLES TACKETT.

Decided April 7, 1911.

SIOUX INDIAN ALLOTMENT-RIGHTS OF HEIRS.

An allotment selection filed with the agent in charge during the lifetime and on behalf of a minor entitled to allotment under the acts of Congress providing for allotments of Sioux Indian lands, although not scheduled or approved prior to allottee's death, saves the allotment right for the benefit of allottee's heirs.

PIERCE, First 1ssistant Secretary:

Appeal has been filed by Charles Tackett from your decision of August 24, 1909, denying his application for an allotment on the

Rosebud Indian Reservation, South Dakota, as sole heir of his minor daughter, Ella Tackett, deceased.

Ella Tackett was born October 5, 1876, and died August 19, 1891. It appears that some time prior to her death Charles Tackett, natural guardian, filed for her a selection of land with the United States Indian Agent in charge of the Rosebud Agency under the act of March 2, 1889 (25 Stat., 888), but the same was never entered upon the schedule of allotments by the special allotting agent. She was duly enrolled as a Rosebud Sioux Indian and carried on the rolls until the date of her death.

Authority for the division of the Great Sioux Reservation into separate reservations and for allotments to the members of the various tribes or bands of Sioux Indians is found in the following acts of Congress:

Act of March 2, 1889 (25 Stat., 888), which in section 8 thereof authorized allotments to heads of families, single persons over eighteen years of age, orphan children under eighteen years of age, and "to each other person under eighteen years of age now living, or who may be born prior to the date of the order of the President directing an allotment of the lands embraced in any reservation." The President's order directing allotments under said act is dated June 22, 1893. It was provided in section 9

that all allotments set apart under the provisions of this act shall be selected by the Indians, heads of families selecting for their minor children, and the agents shall select for each orphan child . . . Provided, That if any one entitled to allotment shall fail to make a selection within five years after the President shall direct that allotments may be made on a particular reservation, the Secretary of the Interior may direct the agent of such tribe or band, if such there be, and if there be no agent, then a special agent appointed for that purpose, to make a selection for such Indian, which selection shall be allotted as in cases where selections are made by the Indians.

The act further provided in section 10 that allotments thereunder should be made

by special agents appointed by the President for such purpose, and the agents in charge of the respective reservations on which the allotments are directed to be made, under such rules and regulations as the Secretary of the Interior may from time to time prescribe.

Act of March 3, 1899 (30 Stat., 1364), which ratified the agreement of March 10, 1898, with Indians on the Rosebud Reservation, and authorized allotments in severalty on said reservation "to all children born prior to the date of the ratification of this agreement, then living,” in manner and quantity as provided in section 8 of the act of March 2, 1889. The act further provided that "where any Indians to whom allotments in severalty have been made in the field, have since died, such allotments shall be duly completed and approved, and the lands shall descend to the heirs of such decedents"

in accordance with the provisions of section 11 of the act of March 2, 1889.

Act of March 1, 1907 (34 Stat., 1015, 1048), which made an appropriation for the allotment of lands in the Sioux Reservation under the act of March 2, 1889

Provided, That hereafter the President shall cause allotments to be made under the provisions of said act to any living children of Indians affected thereby who have not heretofore been allotted.

Act of March 2, 1907 (34 Stat., 1230), which authorized the sale and disposition of a portion of the surplus or unallotted lands in the Rosebud Reservation, and directed that allotment be made prior to the President's proclamation opening said lands to settlement and entry

to each child of Indian parentage whose father or mother is or was, in case of death, a duly enrolled member of the Sioux tribe of Indians belonging on the Rosebud Reservation who is living at the time of the passage and approval of this act and who has not heretofore received an allotment.

Act of May 29, 1908 (35 Stat., 444), in section 17 thereof, authorized allotments to be made under the provisions of the act of March 2, 1889

to any living children of the Sioux tribe of Indians belonging on the Rosebud Reservation affected thereby, and who have not heretofore been alloted, so long as that tribe is in possession of any tribal or reservation lands.

It is shown that Ella Tackett was alive at the date of the act of March 2, 1889, authorizing allotments to persons under eighteen years of age then living. It is also shown that an allotment selection was made for her prior to her death, although never scheduled nor approved. This selection was filed with the agent in charge. The act of March 2, 1889, provides that allotments shall be made "by special agents appointed by the President for such purpose, and the agents in charge of the respective reservations on which the allotments are directed to be made." The law differs in this respect from that referred to in the case of Willie Dole (30 L. D., 532), cited in instructions of December 8, 1908 (Circular No. 258), which law only provides that allotments shall be made by special agents appointed by the President for such purpose. It is therefore clear that Ella Tackett was entitled to an allotment, and that selection thereof was made for her prior to her death. Instructions (14 L. D., 463); Florence May Ree (17 L. D., 142); and Opinion of the Assistant Attorney-General (35 L. D., 145). Her right was therefore a descendible one and consequently her heirs are entitled to the allotment the decedent herself would or should have received had she continued to live.

Your decision herein of August 24, 1909, is accordingly reversed.