the act of August 15, 1894 (28 Stat., 286, 295), permitted any member of the Citizen Band of Pottawatomie Indians and of the Absentee Shawnee Indians, having received an allotment and being over twenty-one years of age, to sell and convey any portion of his allotted lands in excess of eighty acres, "the deed of conveyance to be subject to approval by the Secretary of the Interior, under such rules and regulations as he may prescribe." By section 7 of the act of May 31, 1900 (31 Stat., 221, 247), this provision was extended "so as to permit the adult heirs of a deceased allottee to sell and convey the lands inherited from such decedent," and in the same section is a provision as to the Peoria and Miami Indians, as follows:

That the provisions hereof as to the sale of inherited lands by heirs of deceased allottees of the Citizen Band of Pottawatomie Indians and Absentee Shawnee Indians are hereby extended and made applicable to the heirs of allottees of the Peoria and Miami Indians, who were authorized by the act approved June seventh, eighteen hundred and ninety-seven, to sell a portion of their lands, and all sales and conveyances of lands of deceased allottees by their heirs, which have been duly made and executed by such heirs and duly approved by the Secretary of the Interior, are hereby ratified and confirmed.

The provision of the act of 1894, which, as amended, is thus extended to the Peoria and Miami Indians, specifically provided that the deeds thereby authorized to be made should be subject to the approval of the Secretary of the Interior. There seems to have been some doubt as to the power to make such deeds even with that approval, and it was therefore thought necessary to ratify and confirm such deeds theretofore made and approved. If it had been intended to dispense with the approval of the Secretary on deeds of heirs of deceased allottees, a statement to that effect would have been made, and the ratification and confirmation would have been extended to all such deeds duly made and executed without reference to approval by the Secretary of the Interior. The inclusion of the one class in the confirmatory provision shows that it was not intended to give any recognition to the other class.

The fact that Congress did not stop with providing a rule for the future, but took action respecting past transactions, shows that the matter was considered in all its aspects and that it was intended to remove all doubt or question as to the rights and powers of the heirs. of allottees in respect to the alienation of inherited lands.

After a further careful consideration of this matter in connection with the argument submitted and the authorities cited, I adhere to the conclusion reached in the opinion of October 18, 1899, "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 Secretary of the Interior." Approved:

E. A. HITCHCOCK, Secretary.

RESERVATION-USE OF TIMBER AND STONE-ACT OF JUNE 4, 1897.

OPINION.

A company or corporation engaged in mining or in prospecting for valuable mineral deposits is a "miner" or "prospector,” as the case may be, within the meaning of the act of June 4, 1897.

The act of June 4, 1897, does not in itself permit any person, company or corporation to use, free of charge, stone or timber found upon a forest reservation, but confers upon the Secretary of the Interior authority to say, through regulations prescribed by him, by whom, among those named, and when and to what extent, the privilege named in the statute may be enjoyed. The regulations of April 4, 1900, issued under the act of June 4, 1897, do not in terms include or exclude mining companies or corporations, and it rests with the Secretary of the Interior to determine, in the exercise of the discretion with which he is invested by the statute, whether these regulations shall include or exclude such companies or corporations.

Assistant Attorney General Van Deranter to the Secretary of the Inte rior, January 29, 1901.

(W. C. P.)

I acknowledge the receipt of your communication of the 15th instant, calling my attention to that part of the forest reserve legislation in the act of June 4, 1897 (30 Stat., 11, 35), providing that "the Secretary of the Interior may permit, under regulations to be prescribed by him, the use of stone and timber found upon such reservations, free of charge, by bona fide settlers, miners, residents, and prospectors for minerals, for fire-wood, fencing, building, mining, prospecting, and other domestic purposes, as may be needed by such persons for such purposes, such timber to be used within the State or Territory, respectively, where such reservations may be located," and also calling my attention to the regulations issued thereunder April 4, 1900 (30 L. D.. 23, 28), and requesting to be advised whether this statutory provision and these regulations "apply to companies and corporations resident in the State or Territory where a forest reservation is located, owning mining claims in such State or Territory, that desire timber for any of the purposes mentioned in said act."

Section 1 of the Revised Statutes provides:

That in determining the meaning of the Revised Statutes or of any act or resolution of Congress passed subsequent to February twenty-fifth, eighteen hundred and sev enty-one, . . . the word "person" may extend and be applied to partnerships and corporations, . . unless the context shows that such words were intended to be used in a more limited sense.

....

The laws relating to the disposition of mineral lands recognize the right of a company or corporation to locate, hold and acquire title to a mining claim. Section 2324, Revised Statutes, as amended by the act of February 11, 1875 (18 Stat., 315), provides that where "a person or company" runs a tunnel for the runs a tunnel for the purpose of developing a lode "owned by said person or company" the money so expended shall be

considered as expended on said lode and "said person or company shall not be required to perform work on the surface of said lode or lodes in order to hold the same." Section 2325 prescribes what shall be done to obtain a patent to mineral lands by "any person, association, or corporation, authorized to locate a claim under this chapter having claimed and located a piece of land for such purpose." Section 2333 prescribes what shall be done to secure a patent "where the same person, association, or corporation, is in possession of a placer claim and also a vein or lode included within the boundaries thereof." Section 2321 prescribes what shall be deemed sufficient proof of citizenship, under the mining laws, "in the case of an individual, . . . . in the case of an association of persons unincorporated, . . and in the

case of a corporation.'

In McKinley v. Wheeler (130 U. S., 630), it was held that a corporation is not precluded from locating a mining claim upon the public land of the United States. This ruling is cited with approval in United States. Trinidad Coal Co. (137 U. S., 160, 168).

Companies and corporations are thus placed on the same footing with individuals under the laws authorizing the exploration and purchase of valuable mineral deposits. There is nothing in the statute under consideration indicating an intention to exclude companies or corporations from its benefits, and applying to it the same course of reasoning adopted by the supreme court in McKinley . Wheeler, supra, it must be held that a company or corporation engaged in mining or in prospecting for valuable mineral deposits is a "miner" or "prospector," as the case may be, within the meaning of this statute.

The statute does not in itself permit any person, company or corporation to use, free of charge, stone or timber found upon a forest reservation, but it does confer upon the Secretary of the Interior authority to say, through regulations prescribed by him, by whom, among those named in the statute, and when and to what extent, having regard to the purposes for which these reservations are established. and to other public interests, the privilege named in the statute may be enjoyed.

The existing regulations to which my attention is invited do not in terms include or exclude mining companies or corporations, and it may be that attention was not drawn to this matter when the regulations were prescribed. It is for you to say, in the exercise of the discretion with which you are invested by the statute, whether these regulations shall include or exclude such companies or corporations. Approved:

E. A. HITCHCOCK,

Secretary.

HOMESTEAD CONTEST-ACT OF JUNE 16, 1898.

INSTRUCTIONS.

The decisions of the Department in Burns v. Lander, 29 L. D., 484, and Chesser e. O'Neil, 30 L. D., 294, distinguished.

In determining whether the allegations in an affidavit of contest are sufficient under the act of June 16, 1898, the matter to be considered is whether said affidavit charges abandonment during a time of war, and, if it does, then the requirement that it must also contain the allegation that such abandonment was not caused by employment in the military or naval service of the United States, must be observed.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) January 30, 1901.

(V. B.)

I am in receipt of your letter of January 12, 1901, wherein you ask to be informed

if the decision in the case of Burns . Lander, 29 L. D., 484, is overruled or affected by the decision of Chesser ". O'Neil, 30 L. D., 294.

To be more explicit, would not the allegations in the contest affidavit, against a homestead entry, be sufficient and confer jurisdiction upon the office, which showed clearly that the land had been abandoned six months or more before any war existed?

The act of June 16, 1898 (30 Stat., 473), requires that in contests for abandonment at a time when the United States is engaged in war, it shall be (1) charged in the affidavit of contest and (2) proved at the hearing that the settler's alleged absence from the land was not due to his employment in the military or naval service of the United States.

The case of Burns . Lander, supra, arose on a charge of abandonment that covered a time when the United States was at war. The service of the notice of contest was by publication. The defendant at the hearing was in default, and in the disposition of that case it was held, under the first requirement of said statute, that, as there was no allegation that the settler's absence from the land was not due to his employment in the military or naval service of the United States, there was no jurisdiction to entertain the contest.

The case of Chesser ». O'Neil, supra, passes upon the sufficiency of proof under the second requirement of the statute, and holds that where the proof shows the abandonment commenced before a state of war, obviously it originated from a cause other than enlistment in the military or naval service of the United States during a time of war, and its continuance to the date of contest, in the absence of proof to the contrary, would be presumptively attributed to the original cause and be sufficient proof under the second requirement of the statute.

It will therefore be seen that the cases referred to are not in conflict, as the first case relates to the form and substance of the charge of abandonment, and the latter to the manner and measure of the proof of said charge. It is obvious from what has been said that said depart

mental rulings do not conflict and that the later decision, in Chesser v. O'Neil, in no manner affects or modifies the conclusions announced in the case of Burns. Lander.

In determining whether the allegations in an affidavit of contest are sufficient under this act, the only matter to be considered is whether said affidavit charges abandonment during a time of war, and, if it does, then the requirement that it must also contain the allegation that such abandonment was not caused by employment in the military or naval service of the United States, must be observed.

PRIVATE LAND CLAIM-SWAMP LAND-ACT OF JANUARY 12, 1855. STATE OF LOUISIANA.

Where a private land claimant in the State of Louisiana failed to present to the district court of the State a petition setting forth his claim, within the time allowed therefor by the act of May 26, 1824, as re-enacted and extended by the act of June 17, 1844, the land embraced in his claim became, at the expiration of the period of reservation named in said later act, free, unreserved and unappropriated public land, and if of the character granted to the State by the swamp land grant of September 28, 1850, the subsequent confirmation of said private land claim, by the act of January 12, 1855, did not affect the State's title to so much thereof as had been granted as swamp land.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V.D.) January 30, 1901. (G. B. G.)

This is an appeal by the State of Louisiana from your office decisions of August 2. 1899, and January 4, 1900, denying its swamp land claim for fractional Sec. 20, T. 8 S., R. 12 E., St. Helena meridian, New Orleans land district, Louisiana, containing 44.24 acres.

The State claims the land under the swamp land grants of March 2, 1849 (9 Stat., 352), and September 28, 1850 (id., 519), and by virtue of a certain listing thereof as swamp lands by the surveyor-general of Louisiana, which list was regularly reported to your office, August 9, 1852. Your office denies the claim of the State, for the reason that said land is within the private land claim of one Francois Cousin, which was confirmed by an act of January 12, 1855 (10 Stat., 841), and for the further reason that it was omitted from a second list of swamp lands approved by the said surveyor-general and reported to your office in 1856, upon which second list was endorsed (apparently by the surveyor-general), "corrective of the list approved 9th August, 1852." The private land claim of the said Cousin was for 4.800 arpents (about 4.000 acres), and the said confirmatory act describes it by sections, township, and range, and directs the Commissioner of the General Land Office to issue a patent, or patents, for the land confirmed. But your office reports that no such patent or patents has been issued. 24368-Vol. 30—30