ROY MCDONALD ET AL. Decided April 7, 1911. MINING CLAIM-SLATE DEPOSITS-PLACER. Deposits of slate, which do not carry deposits of any other valuable mineral, when found in quantity and quality sufficient to render the land more valuable on that account than for agricultural purposes, are subject to appropriation under the placer mining laws. PIERCE, First Assistant Secretary: May 4, 1905, Roy McDonald located surveyor-general's scrip No. 461 A, on the W. NE. 1, Sec. 5, T. 3 S., R. 22 W., 6th P. M., Camden, Arkansas, the register's certificate, No. 350, issuing the same day. A special agent having made an adverse report, the Commissioner, July 6, 1909, directed proceedings upon the following charge: The lands are most valuable for the mineral thereon, and were known to be mineral in character at the time the location was made. A hearing was had on the charge, the testimony being taken November 29, 1909, from which the Commissioner, by his decision of November 4, 1910, affirming that of the register and receiver, found: It does not appear from the testimony that the land or any portion thereof is valuable for slate, or that there was any valid subsisting location in conflict therewith. It is not shown from the testimony that the locations made upon the slate deposits, have been worked or developed to any great extent. From the testimony submitted this office is of the opinion that the land is not valuable for any deposits of slate which is known to exist on the land. May 4, 1905, McDonald also located surveyor-general's scrip No. 1003 A, upon the NW. 4 of the same section. Peter Henen having filed a protest, that he was the owner of a portion of said tract under a mining location upon which a valuable mine was situated, a hearing was held, the testimony being taken October 2 and 3, 1907. The Commissioner, March 25, 1908, held that the protest was sustained, finding, inter alia: It is not material that the land was claimed under the location, as a lode claim. While deposits of slate may be regarded as placer deposits, the designation of same as a lode does not operate to negative its mineral character. The fact that the land is proven to contain slate, establishes its mineral character and the mining laws are applicable thereto, to the exclusion of all other laws. The scrip location will, therefore, have to be canceled to the extent of its conflict with the said mining claim, and a survey will be required to show the portion of any fractional subdivision remaining in the said location after such cancellation. Upon motion for review, the Commissioner, May 7, 1908, adhered to his prior decision, and incidentally said: The claim was located as a lode claim without regard to the lines of the public survey, though the mineral claimed is in the form of a placer deposit. Upon appeal, the decision of the Commissioner was affirmed by the Department, February 25, 1909. The scrip claimant thereupon made a segregation survey, the plat being approved by the Commissioner November 13, 1909, and showing the so-called lode location of Henen, designated as "Fairview Lode No. 2," conflicting in part with the SE. 1 NW. 1, and to the extent of 12 or 13 acres in the SW. † NE. 4. Scrip location No. 1003 A, excluding the portion of the SE. † NW. so in conflict, was patented October 3, 1910. December 30, 1910, the Commissioner, as to No. 461 A, modified his decision of November 4, 1910, and held it for cancellation as to that portion of the SW. NE. in conflict with the Henen claim as shown by the segregation plat, and from that action an appeal has been duly taken. The Department concurs in the findings below, that the deposits of slate on the W. NE. are valueless, and do not prohibit a nonmineral acquisition thereof. If the Henen claim were a valid lode location, whose boundaries had been properly marked, the same being prior to the scrip location, the Commissioner's action would be correct, even if the vein had not been disclosed within the limits of the nonmineral entry. (Horn Silver Mining Company v. Florence L. Jones, Waterville 0584 and 05620, decided by the Department March 29, 1911.) However, if the deposit of slate is not a lode, but a placer, the location should have been made by legal subdivisions, nothing appearing in the record which would render the same impracticable, and the nonmineral portion thereof may be excluded therefrom and included within a nonmineral entry. Slate is undoubtedly a mineral within the meaning of the mining laws: Marble and slate are mineral substances, and as such their existence on land in quantity and quality sufficient to render the land more valuable on that account than for agricultural purposes, makes such land mineral land within the meaning of the mineral laws. [Schrimpf et al. v. Northern Pacific R. R. Co. et al., 29 L. D., 327, at p. 328.] As early as 1874, a valuable deposit of slate was permitted to be patented under the placer law by the General Land Office (Sickel's Mining Laws and Decisions, 1881, p. 487); and in the present case the Commisioner has likewise held the deposit to be placer. The distinction between a lode and a placer deposit was exhaustively considered by the Department in the case of Henderson et al v. Fulton (35 L. D., 652), the material under consideration being marble; and much of what was said there is applicable to the present question. At page 683 the Department said: a vein or lode to be locatable and patentable under the mining laws, must possess the elements of rock in place bearing one or more of the minerals specified in the statute [gold, silver, cinnabar, lead, tin and copper], or some other mineral that would be embraced within the added words "other valuable deposits." And at page 664: the Department is clearly of opinion that the deposits of marble in the claims in question are not vein or lode deposits within the meaning of the statute, and that the lands embraced in the entry are therefore not subject to location and patent under the provisions applicable to vein or lode claims. This is not because the deposits are not "in vein or lode formation," as stated in your office decision, but rather, or at least primarily, because the deposits are not of the kind, or character, contemplated by sections 2320 and 2322. The marble involved is not mineral-bearing rock in the sense of the statute. There is no claim or contention that it contains even a trace of any of the minerals named in the statute, or of any other mineral substance, distinct from the rock itself. So here there is no claim or proof that the slate deposit carries any other mineral, and the Department is satisfied that the deposit is placer and not lode. It follows that the action of the Commissioner in segregating the Henen claim as a lode was erroneous, and the exclusion of the mineral land in the SE. NW. from agricultural entry should have been by the appropriate legal subdivisions. The decision in the case of Henen v. McDonald was limited to the land there in controversy, and was in no sense an adjudication of the character of the land in the remainder of the so-called lode location, and this having been now found to be nonmineral, the scrip location. for the W. NE. † should be allowed in its entirety. However, as Henen is not a party to the present proceedings, notice hereof should be given him and opportunity afforded to make a showing as to the mineral character of that portion of the SW. NE. claimed by him, and if this is prima facie sufficient, a further hearing should then be held. The decision of the Commissioner is accordingly reversed, and the matter remanded for further proceedings in harmony with the above. DALLAS SHAW. SIOUX INDIAN ALLOTMENT-RIGHTS OF HEIRS. The various acts of Congress authorizing allotments of Sioux Indian lands contemplate allotments only to living persons; and where one entitled to allotment dies without allotment having been made or selection therefor filed by him or in his behalf, the right perishes with him and his heirs are not entitled to allotment based upon his right. PIERCE, First Assistant Secretary: Appeal has been filed by Dallas Shaw from your decision of September 29, 1910, denying his application for an allotment on the Rosebud Indian Reservation, South Dakota, as sole heir of his minor son, Levi Shaw, deceased. Levi Shaw was born May 1, 1888, and died August 17, 1889. It is alleged that he was enrolled at the Rosebud Agency, but no allotment was ever made to him, nor was any selection ever filed in his behalf. 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 allotted, so long as that tribe is in possession of any tribal or reservation lands. Levi Shaw was living at date of the passage of the act of March 2, 1889, as contemplated in section 8 of said act authorizing allotment "to each other person under eighteen years of age now living." But no selection was ever filed for him, nor allotment made prior to his death, either by a special agent appointed by the President for such purpose, or the agent in charge of the Rosebud Agency. The provisions of sections 8 and 9 of the act of March 2, 1889, relating to allotments on the Sioux Reservations, are practically the same as those in sections 1 and 2 of the general allotment act of February 8, 1887 (24 Stat., 388). In letter of August 21, 1889, to your office, the opinion was expressed that it was not the intention of the act of 1887 to authorize allotments to members of any class not in being at the time allotments are actually made. The question there arose upon a letter to your office from the special agent engaged in allotting lands to the Yankton Indians, in which he stated that he was allotting to all who were living at the date of the act of February 8, 1887, or who were born before the date of the order of the President directing allotments, whether they had since died or not. Subsequently, your office requested to be advised as to whether allotments should be made to Sioux Indians who died after complying with the provisions of section 13 of the Sioux act of March 2, 1889, as to election and filing their applications in the local land office. The Department's attention was called to the opinion expressed in its letter of August 21, 1889, relative to the general allotment act of 1887. In reply to |