Washington, D. C., 9th March, 1872. SIR-I have considered the application of James W. Falls, to enter under the Joint Resolution of April 10th, 1869, (16 Stat., 55,) the N. W. of Sect. 36, T. 29 S., R. 16 E., Osage Trust Lands, Humboldt, Kansas.

March 6th, 1871, he filed his D. S. on said land, alleging settlement September 20th, 1869, and April 6th, 1871, applied to make proof and payment.

Claimants under the Joint Resolution are required, by instructions issued by authority of and under it, to file notice of their claims the same as pre-emptors.

This land being unoffered, Falls was entitled to three months after settlement in which to file his D. S.

This he neglected to do and did not file until March 6, 1871, more than five months after settlement. This neglect, in the absence of any adverse right, was not necessarily fatal to his claim. But before he had filed, and on October 22, 1870, the right of the State of Kansas attached to this section 36, as school land, by this Department being notified at that date by the agreement of the Indians to such disposition of Sections 16 and 36, as is provided in Section 12 of the Act of July 15th, 1870. (16 Stat., 362.)

Falls' laches in the presence of the adverse claim of the State must defeat his claim, if he ever had any, under the Joint Resolution of April 10, 1869.

Your decision rejecting his claim is therefore affirmed, and the papers in the case accompanying your letter of January 3, 1872, are herewith returned.

Very respectfully,

C. DELANO, Secretary.

HON. WILLIS DRUMMOND, Commissioner General Land-Office.

No. 561.

WHEELER v. M. K. & T. AND L. L. & G. R. R. COMPANIES. Osage Ceded Lands: 80 acres in odd and 80 acres in even sections. The 80 in odd sections given to this road under case of Pine v. Wood. The 80 even not given under the Resolution of April 10, 1869, (16 Stat., 55,) because of death of Wheeler, and the right given by that resolution is a personal privilege and does not pass to assignee or heirs.


Washington, D. C., March 27, 1873. SIR-I have examined the appeal from your decision in the case of E. W. Wheeler, administrator for the heirs of H. E. Were v. M. K. & T. and L. L. & G. Railroads, involving title to the E. of S. E. Section 10, and W. of S. W. Section 11, T. 27 S., R. 19 E., Osage

Ceded Lands.

Your decision gave the land to the heirs of Were under the Joint Resolution of 1869. The companies have appealed to the Department. The claim of the heirs must be rejected so far as the W. S. W. Sec. 11 is concerned, under my ruling in the case of Pine and Wood v. the Companies, January 26th, 1872, inasmuch as the tract is in an odd section within the limits of the grants in place to the roads.

The E.S. E. Section 10, is not included in the grants to the companies, either in place or as indemnity, being in an even section within ten miles of the line of the Missouri, Kansas & Texas railroad. The record shows that at the date of the passage of the Joint Resolution, the ancestor of the claimants was residing on the tract, and that at the time of his death, March 12th, 1870, he had complied with all the requirements of law and was in every respect a bona fide claimant. It also appears that nearly all of his improvements were upon the evennumbered section.

In view of the principles enunciated by the Supreme Court of the United States in the recent case of Myers v. Croft, (13 Wall., 291,) holding the right of pre-emption before entry to be a valuable right and alienable in the absence of express statutory prohibition, I am of opinion that the right conferred by the Joint Resolution of 1869 upon settlers on Osage Lands is also alienable in the absence of any statutory prohibition, and by analogy, that the right of the ancestor, perfect at the time of his death, had a valuable interest in the tract in controversy, in the even section, and under the view I have taken above, such right, at his decease, descended to his heirs.

I modify your decision to conform to the view of law above stated, respecting the claim of the railroads under their grant, and award the W. S. W. Section 11 to the companies, and the E. S. E. Section 10, to the heirs of Were.

The papers transmitted with your letter of October 24th, 1871, are herewith returned.

Very respectfully,

C. DELANO, Secretary.

HON. WILLIS DRUMMOND, Commissioner General Land-Office.



[Circular under Act of May 11,



August 7, 1872.

REGISTERS AND RECEIVERS, at Independence, Kansas, and Wichita, Kansas:

GENTLEMEN:-The following is an act of Congress, approved May 11, 1872, to carry out certain provisions of the Cherokee treaty of 1866, and for the relief of settlers on the Cherokee lands in the State of Kansas: [Part II., No. 58.]

The Secretary of the Interior, under date of 3d instant, forwarded. his approval of the acceptance of the Cherokee delegation under the provisions of the second and fifth sections of the act, and directed the proper instructions to be issued by this office.

The first section fixes the price per acre, and provides for the sale of fractions less than forty acres.

The second section provides for the rights of settlers, and also for

town sites, subject to the limitations of the act, under regulations to be prescribed by this office.

You will therefore give notice, by publication of not less than four weeks in two newspapers having the largest circulation among the settlers on said lands in your district, that all persons claiming settlement prior to such publication must, within three months from the date of the notice, file in your office their declaratory statements, as in pre-emption cases, properly describing the land claimed and the date of settlement. Thereafter such person must prove up and pay for the lands claimed within one year from the date of the Secretary's approval of the 3d instant, if the settlement was prior to the passage of the act, and within one year from date of settlement if subsequent to such passage.

Parties settling within one year from the date of the act, and subsequent to publication of notice, will be required to file their declaratory statements within three months, and make proof and payment within one year from date of settlement.

Town-site claimants must conform to the limitations herein, and file and make proof and payment within the time prescribed. No special instructions are deemed necessary for the exccution of this provision.

Not exceeding one hundred and sixty acres can be taken by any settler. Where settlement is upon a tract contiguous to a fraction of less than forty acres, the fraction must be made a part of the entry, even to the exclusion of a regular quarter quarter-section or larger fraction; as the statute is specific in requiring the fraction to be sold with the contiguous tract.

In cases of conflict, however, where the settlement has been made prior to publication of notice, adjustment will be made to conform to the usual practice of awarding to each settler, as near as may be, by legal subdivisions, his house and most valuable improvements. In cases where settlement is initiated after such publication, priority will govern, as in pre-emption cases upon surveyed land.

The filings and entries under this act must be numbered consecutively in their order upon regular monthly abstracts, commencing with number one, and reported at the close of each month as "Cherokee Lands, under Act of May 11, 1872."

Your fees and commissions will be the same as in ordinary preemption cases, nothing but cash being received in payment for these lands.

The qualifications of applicants under this act must conform as to citizenship to those of a claimant under the pre-emption statutes, in accordance with the principles observed in the administration of the joint resolution of April 10, 1869, and the act of July 15, 1870, in disposing of the Osage lands.

The restrictions of the pre-emption law respecting ownership of or removal from other lands will not apply.

The rights of heirs are sufficiently defined by the statute. Entry for heirs must be made as in pre-emption cases, by the executor, administrator, or one of the heirs, or, in case of minor heirs, by a guardian. The right of the representatives in such case to act for the parties in interest must be shown by the customary proofs.

You will in all cases require the affidavit of the claimant (or, in case of heirs, of the executor, administrator, heir, or guardian), setting forth the fact and date of settlement, the period of actual bona-fide residence, the nature and amount of improvement, and the averment that the

same were made in good faith for his or her exclusive use and benefit, and not for purposes of sale or speculation, or for the benefit of any other person.

Also that no contract or agreement has been entered into whereby the title to be acquired can inure in whole or in part to the benefit of any other person.

This affidavit must be made before the Register or Receiver, and must be supported by the sworn testimony of two or more credible witnesses as to the qualifications of the claimant, the fact and date of settlement, the period of actual residence, and the nature, amount, extent, and value of the improvements.

Six months' residence must be shown as an indication and evidence of good faith.

The Receiver, as disbursing agent, will pay for the publication herein directed, and forward to this office, with his account for the same, copies of the newspapers containing the same, with proper affidavit of publication, showing its insertion for the required period. Very respectfully,

WILLIS DRUMMOND, Commissioner. Approved: W. H. SMITH, Acting Secretary.

No 563.



Approval of eighteen claims of the Lake Superior Band of Chippewas. DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., March 15, 1873.


GENTLEMEN:-The Secretary of the Interior, in a decision of March 19, 1872, advised this Office of his approval of the claims of eighteen half-breeds or mixed-bloods of the Lake Superior band of Chippewas to eighty acres of land each, under the provisions of the second article of the treaty of Sept. 30, 1854, between the United States and the Chippewas of Lake Superior.

On the first instant, the Acting Commissioner of Indian Affairs notified this Office that he had, under date of February 28, 1873, issued certificates of identity to the said eighteen half-breeds, as follows:

No. 316. Paul Belonger.
No. 317. Antoine La Pierre.
No. 318. John La Prairie.
No. 319. D. George Morrison.
No. 320. Maggie Morrison.
No. 321. Ambrose Brunet.

No. 322. Antoine Bagage. No. 328. Joseph Deneaux. No. 323. John Rice. No 329. Catherine La Point. No. 324, John B. Warren. No. 330. Charles Mergan. No. 325. Paul Belanger, sr. No. 331. John Bte Parisian. No. 326. Peter Cota. No. 332. Pousaint Chouinard. No.327. Charles Duverney. No. 333. John Chouinard.. I have, therefore, to direct that, on presentation of the above-specified certificates, or any of them, by the parties in whose names the same were issued, or by their duly authorized agents, you will allow the location thereof in conformity with the following instructions.

It must be distinctly understood, however, that these instructions relate exclusively to the eighteen cases herein specified, and that all other unlocated Chippewa certificates or "script," issued under the said

second article of the treaty of September 30, 1854, remain subject to the order of suspension dated April 21, 1871.

1st. The parties, in locating their certificates, are authorized to locate, in any land district in the United States, upon surveyed lands open to entry or ordinary sale; and

2d. Upon any unoccupied surveyed public land subject to pre-emption excepting mineral or reserved lands, the even-numbered double mini, mum or reserved sections, and any lands on which there is an actualsettlement, unless with the written consent of the settler, duly attested.

3d. The land selected in satisfaction of a certificate must be located in the name of the party in whose favor the certificate is issued, and the location may be made by him or her in person, or by his or her legal representative or duly authorized agent, the authority to be duly shown by proper instruments.

4th. The application should be attested in each case by the Register and Receiver, and attached to each should be your certificate to the following effect:


We hereby certify that the within certificate has, this

[ocr errors][merged small]


[ocr errors][merged small]

day of

acres, agree

ably to the 7th section of the 2d article of the treaty of 30th September, 1854, with the Chippewas, and by the party duly authorized to make the location.

[merged small][ocr errors][ocr errors][merged small]

5th. No receipt is to be issued to the locator, except where there may be a small excess in the area of the location over the scrip, and in that case such excess must be paid for, and the Receiver must issue his receipt, which he will number and account for as in the case of bountyland warrant excess. No certificate of purchase, however, is to be issued. In such cases the application, duly certified, with the scrip, being the instruments of title, are to be returned to the General LandOffice in this class of business.

6th. The Register, in case of excess payments, will append to the application his official statement, that acres of said tract have been paid for, per Receiver's receipt No.

7th. Your proceedings in locating the certificates and your official returns are to be kept entirely separate and distinct from other sales and locations. At the close of each month the Register and Receiver will make a separate official return of certificates located, with all the papers on file connected with each location, accompanied by a monthly abstract, Form B.

8th. You will observe that this scrip is not assignable, transfers of the same being held void; consequently each certificate, as herein before stated, can only be located in the name of the mixed-bloods; and such certificates are not to be treated as money, but located acre for acre.

9th. No fees or commissions of any kind are allowed by this Office for services of the land officers in this matter, such being an incident to their general duties; and you are, therefore, hereby interdicted from charging or receiving any compensation for such services.

These certificates are, of course, not applicable to any class of Indian trust lands, but only to surveyed unreserved, unincumbered public lands. Very respectfully,

W. W. CURTIS, Acting Commmissioner.

« ForrigeFortsett »