entitled to purchase, for cash through the United States public land office at Neligh, Nebraska, the land so occupied and improved by him, not to exceed one hundred and sixty acres in each case according to the survey and appraised value of said lands as provided for in section one of this act: Provided, That the Secretary of the Interior may dispose of the same upon the following terms as to payments, that is to say, one-third of the price of said land to become due and payable one year from the date of entry, one-third in two years, and one-third in three years, from said date, with interest at the rate of five per centum per annum; but in case of default in either of said payments the person thus defaulting for a period of sixty days shall forfeit absolutely his right to the tract which he has purchased and any payment or payments he might have made.

By the express terms of the act of May 17, 1900, only settlers under the homestead laws of the United States are contemplated therein. Section 2 of the act of August 7, 1882, refers to a different class of settlers from those under the homestead laws. The regulations prescribed by the Secretary of the Interior under authority of said section require a settler thereunder to proceed after the manner of a preemption claimant; that is, he is required within thirty days after settlement to file a declaratory statement, and at any time after six months from date of filing and within one year from date of opening, he must make actual entry of the land, submit final proof and make the first payment as provided in said section, unless he elects to make full payment at date of entry. No period of residence is specified in the law, but valuable improvements must be shown, and the regulations require at least six months' residence, but only as an evidence of good faith. From this it seems clear that settlers under this section are not settlers under the homestead laws of the United States." I am therefore of opinion, and so advise you, that settlers under said section on lands embraced in the Omaha reservation are not affected by the act of May 17, 1900.

Approved:

66

E. A. HITCHCOCK,

Secretary.

OKLAHOMA LANDS-INDEMNITY SCHOOL SELECTION—ACT OF JANUARY 18, 1897.

GATES. ROBERTSON.

One who exhausts his homestead privilege and also his right to purchase additional land under section 1 of the act of January 18, 1897, surrenders thereby any right or claim he may have acquired under said section as a bona fide occupant of other lands.

A lieu selection of school lands by a State or Territory operates as a waiver of all claim to the lands assigned as bases, and after the approval of such selection by the Secretary of the Interior it is not material to inquire how it was made in the first instance.

Where a claimant makes entry under the act of January 18, 1897, as an occupant,

and it afterwards appears that he was not an occupant on March 16, 1896, of one of the tracts included in his entry, the entry may nevertheless be allowed to stand for such tract, under section 2 of said act, where it is shown that he was an "actual settler” and residing upon a portion of the land included in his entry at the date of entry and no valid prior right had attached.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) June 23, 1900. (W. A. E.)

August 3, 1897, William E. Gates made homestead entry for the SE. and cash entry for the SW. of Sec. 17, T. 2 N., R. 18 W., Mangum, Oklahoma, land district. Both entries were made under

section 1 of the act of January 18, 1897 (29 Stat., 490).

November 2, 1897, Robert W. Robertson made homestead entry under the same act for the W. of the NW. and lots 1 and 3 of Sec. 16, said township and range.

,

December 29, 1897, Gates filed an affidavit of contest against Robertson's entry, in so far as it covered lot 3 of said Sec. 16, alleging that the statement in Robertson's homestead affidavit that on March 16, 1896, he was occupying the land embraced in his homestead entry is false, to the extent that it relates to said lot 3; that the said Robertson has never at any time occupied or had possession of said lot 3 nor has he ever placed any improvements thereon; that contestant has continuously occupied and cultivated said lot 3 since May 3, 1889, and was in such occupation and use of it on March 16, 1896. A hearing was ordered on this affidavit of contest and at the appointed time both parties appeared. Before proceeding to the taking of testimony, the defendant made a motion to dismiss the contest, which was overruled, and the contestant filed a supplemental affidavit in support of his contest, alleging that on April 30, 1898, he had leased said lot 3 from the school land board of Oklahoma for a period of three years from January 1, 1898. Testimony was then submitted on behalf of the contestant. No testimony was submitted by the defendant, but the contestant's witnesses were cross-examined. It was shown by the evidence that Gates had been in possession of said lot 3 since May, 1889; that he had fenced it, in connection with other land; that he had cultivated the greater part of it each year from 1889 up to the date of the hearing; and that Robertson did not have possession of it or any improvements thereon on March 16, 1896, or at any time prior thereto.

October 11, 1898, the register and receiver rendered separate decisions, agreeing, however, in their conclusions that the contest should be dismissed and Robertson's entry held intact.

On appeal, your office, by decision of April 12, 1899, affirmed the action of the local officers. A motion for review of your office decision was denied July 24, 1899, whereupon the contestant appealed to the Department.

The land involved in this case is situated in Greer county, Oklahoma, and is subject to disposal only under the provisions of the act of January 18, 1897, supra, and subsequent supplementary acts which need not be referred to, as they have no bearing on the questions here presented. A full history of the conditions leading up to the passage of the act of January 18, 1897, is given in the case of Frank Johnson (28 L. D., 537). In that case it was stated that the act is a remedial one, and like all other remedial acts is to be liberally construed.

The portions of said act applicable to the present case are as follows: SEC. 1. [In part.] That every person qualified under the homestead laws of the United States, who, on March sixteenth, eighteen hundred and ninety-six, was a bona fide occupant of land within the territory established as Greer county, Oklahoma, shall be entitled to continue his occupation of such land with improvements thereon, not exceeding one hundred and sixty acres, and shall be allowed six months preference right from the passage of this act within which to initiate his claim thereto, and shall be entitled to perfect title thereto under the provisions of the homestead law, upon payment of land office fees only, at the expiration of five years from the date of entry, except that such person shall receive credit for all time during which he or those under whom he claims shall have continuously occupied the same prior to March sixteenth, eighteen hundred and ninety-six. Every such person shall also have the right, for six months prior to all other persons, to purchase at one dollar an acre, in five equal annual payments, any additional land of which he was in actual possession on March sixteenth, eighteen hundred and ninetysix, not exceeding one hundred and sixty acres, which, prior to said date, shall have been cultivated, purchased, or improved by him.

SEC 2. That all land in said county not occupied, cultivated, or improved, as provided in the first section hereof, or not included within the limits of any townsite or reserve, shall be subject to entry to actual settlers only, under the provisions of the homestead law.

SEC. 4 Sections numbered sixteen and thirty-six are reserved for school purposes as provided in laws relating to Oklahoma, and sections thirteen and thirty-three in each township are reserved for such purpose as the legislature of the future State of Oklahoma may prescribe. That whenever any of the lands reserved for school or other purposes under the laws of Congress relating to Oklahoma, shall be found to have been occupied by actual settlers or for town-site purposes or homesteads prior to March sixteenth, eighteen hundred and ninety-six, an equal quantity of indemnity lands may be selected as provided by law.

By act approved June 23, 1897 (30 Stat., 105), the time for the exercise of the preference right of entry given by the first section of the act of January 18, 1897, to bona fide occupants of public lands in Greer county was extended to January 1, 1898.

As heretofore stated, the record shows that contestant Gates was, on March 16, 1896, an occupant of lot 3 of section 16, the land here involved, and as such was entitled to enter it under the first section of the act of January 18, 1897, if he had so desired. He chose, however, to make homestead and cash entries for other lands. Having exercised his rights under said section by taking other lands to the full amount to which he was entitled, he thereby surrendered any right or claim he might have had as a bona fide occupant to said lot 3.

It appears, however, that he is now claiming it under a lease from the school land board of Oklahoma. The records of your office show that by indemnity list, filed March 22, 1898, the Territory of Oklahoma selected other lands in lieu of those embraced in Robertson's homestead entry, and that said list was approved by the Department August 29, 1899. This selection of lieu lands was a waiver, on the part of the Territory of Oklahoma, of all its claim to the lands alleged as bases, which thereupon became subject to disposal as a part of the public domain. Rice v. State of California (24 L. D., 14).

In the case of Todd v. State of Washington (24 L. D., 106), it was held that the approval of a school indemnity selection by the Secretary of the Interior passes the title thereto, and, in contemplation of law, makes such selection the act of the Secretary, and it is thereafter not material to inquire how such selection was made in the first instance. It is therefore unnecessary, at this time, to consider the question presented in the appeal as to whether the Territory of Oklahoma should properly have selected indemnity land in lieu of said lot 3, the tract involved in this contest.

The Territory of Oklahoma having waived its claim to lot 3 on March 22, 1898, by the selection of other land in lieu thereof, had thereafter no authority to lease said lot 3, and Gates acquired no right to the lot by virtue of the lease executed on April 30, 1898.

It thus appears that apart from any consideration of the conflicting claim of Robertson, Gates now has no right to the tract in question, either as an occupant or settler under the act of January 18, 1897, or as a lessee of the Territory of Oklahoma, but occupies the position of a mere trespasser on the land.

As

At the time that Robertson made homestead entry he filed an affidavit in which he alleged that he was, on March 16, 1896, an occupant of the land he was seeking to enter. The correctness of this affidavit is not challenged, except as to lot 3, embraced in said entry. above stated, the evidence shows that on March 16, 1896, he was not occupying said lot 3; that he had not placed any improvements thereon or exercised control over it; but that it was at that time in the occupation and possession of Gates.

Gates had, however, at the date of Robertson's entry, already waived his claim to said lot 3 by making homestead and cash entries for other land, and the only existing adverse claim was that of the Territory of Oklahoma, a claim that was subsequently waived.

As Robertson was not an occupant of said lot 3 on March 16, 1896, he was not entitled to make entry therefor under the first section of the act of January 18, 1897, but the question is presented as to whether his entry may be allowed to stand, as to lot 3, under the second section of said act.

The determination of this question involves the construction of the

words “actual settlers only," as used in the section under consideration.

At the time he made entry Robertson was living on land adjoining said lot 3-land which he included in his entry in connection with lot 3-and was therefore an "actual settler." It is true that he had at that time no improvements upon lot 3, and the land upon which he was living was in a different quarter section, but was it the intention of Congress to limit an actual settler's right of entry to the legal subdivisions to which his settlement notice extended? As heretofore said, this act is to be liberally construed. The more liberal view is that the leading idea in the mind of Congress in connection with the second section of said act was the disposal of these lands only to those who would make their homes thereon, and where a man is actually living on land subject to disposal under said act, and makes entry therefor, it makes no difference if he includes in his entry other adjoining land, subject to entry, to which his settlement notice has not extended. The notice given by settlement extends only to the technical quarter section upon which it is made, and if any valid adverse claim had been asserted to said lot 3 at any time prior to Robertson's entry, his entry might have been defeated as to said lot, but in the absence of the assertion of any valid adverse claim thereto, there appears to be no reason why his entry should not be allowed to stand as to the lot in question.

Your office decision is accordingly affirmed.

Gates's contest is dismissed, and Robertson's entry will remain intact, subject to compliance with law.

OKLAHOMA LANDS-INDEMNITY.

TERRITORY OF OKLAHOMA.

Section 4 of the act of January 18, 1897, reserving sections thirteen and thirty-three in Greer county, Oklahoma, for "such purpose as the future State of Oklahoma may prescribe," makes provision for indemnity only for lands in said sections which are found to have been "occupied by actual settlers or for townsite purposes or homesteads" prior to March 16, 1896, and as the right to indemnity under sections 2275 and 2276 of the Revised Statutes, as amended, is limited to sections reserved for school purposes, there is no law authorizing indemnity for losses in sections 13 and 33, in said county, occasioned by such sections being fractional.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) June 23, 1900.

(L. L. B.)

By your office decision of June 9, 1899, the selections by the Territory of Oklahoma of certain lands described in list 5, amounting to 6,230.06 acres, in lieu of lands lost in place in sections 13 and 33, by reason of certain townships being fractional, were rejected.