on January 9, 1875, to satisfy the Paso de los Algodones grant, which was finally rejected by the courts on November 27, 1899.

In his decision of August 9, 1900 (30 L. D., 220), in the case of Katharine Davis, the Secretary of the Interior held that upon the final adjudication and rejection of the grant by the courts, the lands became at once open to settlement and entry; but the attention of the Department having been invited to the fact that a bill was pending before Congress for the disposition of the lands, the Secretary of the Interior on August 25, 1900, directed this office to withhold all the lands from settlement and entry until further orders, and you were accordingly advised by letter "G" of September 1, 1900.

The bill for the disposition of these lands having become a law, as stated above, it is now proper to take the action necessary to carry into effect the provisions of the law, and to restore to entry the lands that have so long been reserved.

Under the first section of the act persons who, prior to May 23, 1898 (the day on which the supreme court of the United States first held that the grant was invalid), purchased, in good faith and for valuable considerations, from the grant claimants, portions of the land reserved for the grant, and have occupied and improved the same, may within six months after the passage of the act, or within three months after the lands shall be restored to entry, purchase such land from the United States, at the price of one dollar and twenty-five cents per acre, upon making proof of the required facts under regulations to be provided by this office and approved by the Department. It is provided, however, that no one person shall purchase more than forty acres, and no purchase shall be allowed for a less quantity than that contained in the smallest legal subdivision; and provision is also made for joint entries, where two or more persons have purchased portions of the same forty-acre tract.

Persons who apply to avail themselves of the privileges of this provision of the law will be required to furnish the original deed of conveyance or certified copies of the record, or other cotemporaneous written evidence of conveyance or of an agreement to convey; and they must also furnish their affidavits, which must be executed before some officer authorized to act in homestead cases, showing that they purchased the lands applied for in good faith and for valuable considerations, and that they have occupied and improved the same. As the preamble to the act recites that the purchases were made by citizens, applicants will be required to show, in accordance with the regular rules, that they are either native born or naturalized citizens of the United States. Purchasers will be required to publish notice of intention to purchase in like manner as notice is published in homestead

cases.

Upon the submission of satisfactory proof and proper payment, you

will issue cash certificates and receipts, making proper reference to the act of Congress, and you will give the series a new set of numbers, beginning with No. 1.

Where two or more persons apply for portions of the same fortyacre tract, joint proof may be submitted, and a joint certificate will be issued.

You will report entries made under the first section of the act on the regular Cash Abstract, making the necessary changes.

It will be observed that applicants to purchase are allowed six months by the act, and any entry, therefore, which may be allowed under the general land laws, will, of course, be subject to an application to purchase under the first section for the period of six months from the date of the approval of said act.

Section two of the act allows a preference right of entry for three months from the passage of the act to homestead settlers and to those who have occupied lands with the intention of entering the same under the desert land law, with the further provision that improvement or reclamation by the desert land claimants shall be no bar to their making such entries.

No special instructions are deemed necessary in connection with this section of the act. However, any entry allowed, not based on settlement or occupation as specified, will be subject, for the given period, to entries based upon such prior settlement or occupation. This rule is applicable, under the general law, to homesteads, and would not be noticed here, had not the act made the same provisions relative to those persons who may have occupied lands with the intention of entering the same under the desert land laws.

As soon as these instructions are received, you will issue a notice stating that the lands will become subject to entry on a day fixed by you, and named in the notice, which day shall not be less than thirty days from the date of the notice, and you will give publicity to the notice in accordance with the rule applying to the filing of township plats. See 4 L. D., 202. Approved:

E. A. HITCHCOCK,

Secretary.

INDIAN LANDS-CONVEYANCE OF ALLOTTED LANDS.

PEORIA AND MIAMI INDIANS.

A conveyance of lands allotted to Peoria and Miami Indians under the act of March 2, 1889, made by the heirs of the allottee, within the period of inhibition named in the statute, is not effective to transfer title until approved by the Secretary of the Interior.

Assistant Attorney General Van Devanter to the Secretary of the Interior, January 29, 1901. (W. C. P.)

I am in receipt of your letter of January 21, 1901, enclosing for my consideration and appropriate action a letter of William M. Springer, attorney for William E. Rowsey, asking a reversal of my opinion of October 18, 1899 (29 L. D., 239), in reference to the conveyance of allotted lands by heirs of Peoria and Miami Indians.

The allotments to these Indians were made under the act of March 2, 1889 (25 Stat., 1013), which provided that “the land so allotted shall not be subject to alienation for twenty-five years" and "shall be exempt from levy, sale, taxation or forfeiture for a like period of years:" that the patents should recite these facts; and that any contract or agreement to sell or convey such lands or allotments, so patented, entered into before the expiration of said term of years, shall be absolutely null and void." Afterwards this provision was modified by the act of June 7, 1897 (30 Stat., 62, 72), as follows:

That the adult allottees of land in the Peoria and Miami Indian reservation, in the Quapaw agency, Indian Territory, who have each received allotments of two hundred acres or more, may sell one hundred acres thereof, under such rules and regulations as the Secretary of the Interior may prescribe.

The rules and regulations prescribed thereunder provided that all deeds should be subject to the approval of the Secretary of the Interior. The conclusion reached in my opinion of October 18, 1899, supra, was *that no conveyance of these allotted lands by the Indian allottee, or his heirs, made within the period of inhibition mentioned in the statute, has the effect of transferring title until approved by the Seeretary of the Interior."

It seems to be conceded that the restriction against alienation is in all respects applicable to the lands in the hands of an original allottee, but it is strongly contended that it is personal to him and that the heir takes the land free of all restrictions as to alienation.

One of the authorities cited in support of this contention is Clark 2. Lord (20 Kan., 390), which arose under the treaty of June 24, 1862 (12 Stat., 1237, 1240), with the Ottawa Indians, which provided for allotments to the individual members and the issuance of patent in which it was to be stipulated that no Indian, except as herein provided, to whom the same may be issued, shall alienate or incumber the land allotted to him or her in any manner, until they shall by the terms of this treaty become a citizen of the United States.". The court, speaking on this provision, said:

The letter of this article limits these restrictions to the individual members of the tribe entitled under the treaty to the lands selected and allotted to them, and to whom patents are issued or to be issued. The reservation, as to the conveyance, is personal, from the language used, and was not intended to bind the heirs of

allottees.

In Commissioners of Miami Co. e. Brackenridge (12 Kan., 114), the court had under consideration the clause in the treaty of June 5, 1854, with the Miami Indians (10 Stat., 1093), excepting lands from taxation. That treaty provided for the allotment of part of their lands to the Miami Indians, and for the issuance of patent, as follows:

And the President may cause patents to issue to single persons or heads of families for the lands selected by or for them, subject to such restrictions respecting leases and alienation as the President or Congress of the United States may impose; and the lands so patented shall not be liable to levy, sale, execution or forfeiture.

The court pointed out that the purpose was to preserve the lands to the Indians, which was accomplished by the two provisions standing side by side, one restricting alienation and the other exempting from seizure and sale, and said:

When they stipulated that patents for the land might issue "subject to such restrictions respecting leases and alienation as the President or Congress of the United States may provide," they contemplated restrictions simply on the Indian owners, and not on subsequent white purchasers. It was not thought that after the title had passed from the Indians to the whites there should be any restriction or limit to the latter's power of sale or lease. And if the restriction was not to be carried beyond the period of ownership, why should the exemption be? The two provisions are parallel; they stand side by side and are each general in their terms. They should be construed similarly and with reference to the obvious intent of the contracting parties.

The cases of McMahon. Welsh (11 Kan., 280), and Frederick v. Gray (12 Kan., 518), arose under the treaty of January 31, 1855, with the Wyandotte Indians (10 Stat., 1161), by which the Indians were divided into classes, competents and incompetents, and lands allotted to them with the provision that the lands of the incompetent class were not to be sold for a period of five years, and then not without the express consent of the President of the United States. It was held that this restriction was purely personal and did not attach to the land in the hands of heirs of a deceased allottee.

In Lowry. Weaver (4 McLean, 82), the land had been granted to one Burnet by a treaty providing that the land should never be conveyed by the grantee or his heirs without the consent of the President of the United States. Upon the death of this grantee the land was sold by the administrator of his estate to pay debts, under the order of the probate court, and a conveyance made to the purchaser. A question arose as to the validity of this conveyance. In the decision by the circuit court the question presented is stated thus:

The great question in the case is whether the real estate in question was liable for the payment of the debts of Burnet; and was subject to be made assets, by the administration, under the laws of Indiana.

After pointing out that the restriction as to alienation was a wise one, for the protection of the Indian, the court said:

The

But the deed in question does not come within the provision of the treaty. grantee and, perhaps his heirs, may not be able to make a valid conveyance of the

1

land without the approval of the President. That may be considered a condition within the original grant, and is limited to the personal acts of the grantee and his heirs. But the conveyance under consideration is by operation of law. The land is not withdrawn from the sovereign action of the State. Like other lands, it may be taxed by the State, and is subject by the local law to payment of debts. This belongs peculiarly to State power. It regulates the transmission of real estate by deed or by operation of law and subjects it, in the mode described, to the payment of debts. Except by compact, or the voluntary legislative action of the State, lands within its limits can not be withdrawn from its ordinary action.

The opinion of the Attorney-General referred to (4 Ops., 529), involved a question as to the sale of lands for the payment of debts, the lands having been granted by treaties containing provisions against the conveyance without the consent of the President. It was said:

By the treaties, the Indian title of occupancy was extinguished; and the grants were as effectual to pass fee simple titles as if evidenced by letters patent. No doubt exists as to the right of the government to attach the condition restraining alienation without the consent of the President. But this was personal to the grantees, and does not apply to sales by act of law or proceedings in inritum.

It will be noticed that the direct question as to the rights of heirs of deceased allottees was considered only in Clark. Lord, under treaty of June 24, 1862, with the Ottawas, and in McMahon . Welsh and Frederick. Gray, both under treaty of 1855, with the Wyandottes. In the first case the language is that "no Indian" shall alienate "the land allotted to him," and the court, construing this language literally and strictly, held that it applied to the allottee alone. In the other cases the restriction was imposed because of the ascertained incompetence of the allottee to manage his affairs, and the court held that the incapacity to sell was similar to the disability of a minor, and hence did not attach to the heir, who must be held to be competent. As stated in Frederick. Gray, the holding was:

It was held in McMahon r. Welsh, 11 Kan., 280, that these restrictions on alienation were personal to the individual and not running with the land, and that therefore when land passed by descent from an incompetent to a competent Indian, the restraint on conveyance ceased and the right to convey became absolute.

In these cases the conclusion reached is based upon the express wording of the law governing, and they do not control in those cases where neither the wording nor the facts demonstrate an intention to limit the restriction to the allottee himself.

The other cases cited hold simply that a restriction against alienation does not apply after the land has passed from Indian owners to white holders, or does not apply as against conveyances by operation of law. In this latter class the law there under consideration contained no provision exempting the land from levy or sale for the payment of debts.

The decisions cited do not afford sufficient reasons for changing the views expressed in the opinion referred to, and subsequent legislation by Congress tends to justify the position then taken. A provision in