Parker claimed the undisputed right to the land-so far as a right could be obtained before survey; and neither he nor the witness had the least idea that any other claimant was in existence. On May 3, 1904, Parker executed a document stating, "I have this day sold and conveyed my improvements on my squatter's claim," the description that followed including the tract in controversy, "to Nels Peterson, and received payment for the same"-not stating the consideration; but witness Fred. Wyman, "scaler and timber-cruiser," states in his deposition that the improvements were worth from $300 to $350. Peterson thereupon removed, with his family, from Minnesota to Montana, took up his residence on a part of the land so purchasedbut not on the part here in controversy, as on account of his age he found it hard work to climb the hill leading to the house; so he built another house, on land more nearly level. Then he fenced his entire claim, setting posts perpendicularly in the ground and adding one wire on top of the pole-and-brush fence originally surrounding the tract in controversy. Witness William Myers, who put up the fence, being asked why he did not build a better one, replied, "The simple reason is, the old gentleman said he was out of money." This witness also cultivated and hoed about the trees in the orchard, until they were "in as nice condition as any trees in the country;" and did other work in the way of improving the land in controversy. The contestant kept a cow, grazing her upon this "forty;" and Miss Palmer testifies: Q. Mr. Peterson kept a cow there, and you got milk from them, didn't you?— A. Yes, sir. Q. Frequently-that is, they supplied you with milk all this summer?—A. No, sir, not all the time. Q. While they had milk they supplied you?-A. Yes, sir. Although buying—at least, obtaining-milk of the Peterson family daily during the summer, given by a cow that was pastured on the land she now claims, which land Peterson was fencing and otherwise improving, Miss Palmer never mentioned to the Petersons that she claimed it; and the first that Peterson knew of such claim was when he and his son-in-law, Shak, the day after the filing of the township plat (being unaware of any necessity for exceeding haste), came to the local office to file for the tract (with the other "forties" settled upon by Peterson). Thus, during all the period from the date of her alleged settlement (August 20, 1902), until the filing of the township plat (October 17, 1904), while all the time in frequent and much of the time in daily communication with the parties claiming the land, residing upon it, and expending their money in improving it, Miss Palmer stood idly by, and gave none of the parties any intimation of her claim. Her conduct comes within the scope and intent of the legal maxim, "He who will not speak when he should speak, will not be heard when he would speak." As was said by the court in the case of Hill e. Epley (31 Penn. State Reports, p. 334, cited with approval in Pendleton v. Grannis, 14 L. D., 381): Where the conduct of a party has been such as to induce action by another, he shall be precluded from afterward asserting, to the prejudice of that other, the contrary of that of which his conduct has induced the belief. The primary ground of the doctrine is, that it would be a fraud on a party to assert what his previous conduct had denied, when on the faith of that denial others have acted, Still more completely covering the case here under consideration is the departmental ruling in Roberts et al. v. Gordon (14 L. D., 475, 481): One who fails to assert any claim to a tract of public land which is in the adverse possession of another, and remains silent, though knowing that the adverse occupant continues to claim, occupy, and improve the land, is estopped thereby from subsequently denying the good faith of said occupant, and asserting a right of priority in himself. After a careful consideration of all the testimony, together with the appeal and the argument filed in support thereof, the Department is constrained to reverse the decision of your office, and to direct that Miss Palmer's entry be canceled as to the land in conflict, and that of Neils Peterson be allowed, unless some other reason to the contrary shall appear. YELLOWSTONE FOREST RESERVE-CERTAIN LANDS OPEN TO INSTRUCTIONS. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., June 19, 1906. Register and Receiver, Lander, Wyoming. GENTLEMEN: March 15, 1906, the following act (Public, No. 46) was approved: AN ACT To extend the provisions of the homestead laws to certain lands in the Yellowstone forest reserve. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the general provisions of the homestead laws of the United States be, and the same are hereby, extended to and over the surveyed lands in townships forty-eight, forty-nine, and fifty, and ranges one hundred and five and one hundred and six, within the Yellowstone forest reserve, and the said lands shall be subject to entry ninety days after the passage of this act, within which ninety day period the Secretary of Agriculture may set aside such portions of said lands as were not occupied by a bona fide settler January first, nineteen hundred and six, not to exceed in the aggregate one hundred and sixty acres, as may be necessary for forest reserve administrative purposes, which lands so set aside shall not be subject to settlement, entry or location during the life of the forest reserve: Provided, That the commutation clause of the homestead laws shall not apply to the said lands, and any bona fide settler who made settlement on said lands prior to January first, nineteen hundred and six, and who had prior to that time lost or exercised his homestead right, may enter and perfect title to the lands settled upon by him as though his homestead right had not been lost or exercised, upon the payment of the sum of one dollar and twenty-five cents per acre for the land included in his entry at the time of making final proof. The said act does not take the land out of the reserve, but merely permits settlement and entry under the homestead law, and applies to the surveyed lands only. It does not permit settlement or entry of the unsurveyed portion of said townships. The surveyed lands are subject to appropriation under section 2289 of the Revised Statutes only, without the right of commutation, and any application to enter or appropriate the land under any other law, except the mineral law, must be rejected. Bona fide settlers on the land have a preference right of entry and those whose settlements were made prior to January 1, 1906, may make entry notwithstanding they may have previously lost or exercised their homestead right, but will be required to make payment for the land entered at the rate of $1.25 per acre at the time of making final proof. As to parties other than such settlers who attempt a second use of the right to make entry, you will be governed by the act of April 28, 1904 (33 Stat., 527), construed by the Department in the case of Cox . Wells, 33 L. D., 657. Applicants to make second entry under the provisions hereof must describe the land formerly entered in such manner as to enable this office to readily identify the entry. Bona fide settlers will be allowed credit for the time heretofore spent on the land entered. While the land has been subject to settlement since the approval of the act, March 15, 1906, the same does not become subject to entry until ninety days after that date, or on June 13, 1906. The entries will be made in the regular manner and given a regular number of your homestead series, referring to the act as authority therefor. Below follows a list of the land selected under said act by the Secretary of Agriculture for forestry administrative purposes, and the same are not subject to settlement or entry; nor will any settlement subsequent to January 1, 1906, prevail against the selection by the Agricultural Department: Lots 6, 8, NW. ¦ SE. † and SE. ‡ SW. 1, Sec. 4, T. 48 N., R. 106 W., 6th P. M. Very respectfully, Approved: E. A. HITCHCOCK, Secretary. W. A. RICHARDS, Commissioner. INDIAN LAND-ALLOTMENT-HOMESTEAD ENTRY. GEORGE H. DUPUIS. An Indian to whom land in a reservation has been allotted as a member of a tribe, but which land has never become a part of the public domain subject to the general provisions of the homestead law, can not, as a citizen of the United States, make homestead entry, under section 2289 of the Revised Statutes, of the land so allotted to him. Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) June 21, 1906. (C. J. G.) An appeal has been filed by George H. Dupuis from the decision of your office of December 27, 1905, sustaining the action of the local officers denying his application to make homestead entry under section 2289 of the Revised Statutes for the NW. † of Sec. 34, T 31 N., R. 4 W., O'Neill, Nebraska. The applicant is a Santee Sioux Indian and in an accompanying affidavit alleges: In the year 1885 and for many years previous thereto I had voluntarily taken up my residence on the land above described within Knox County, Nebraska, separate and apart from any and all tribes of Indians and did on such occasion adopt the habits of civilized life and from said time to the present I have voluntarily kept my said residence separate and apart from any and all tribes of Indians and have kept up and within the habits and customs of civilized life and have not returned to the customs and manners of my tribe, whereby I am, and from the year 1887 have been, a citizen of the United States and as such am entitled to all the rights and privileges of citizens. I am the identical person for whom the above described land is set and held apart for occupancy and homestead under the 6th article of the Sioux Treaty of 1868; that I have not made proof under said sixth article and have not received patent or any title to said land or certificate therefor and I hereby elect to hold and occupy the land above described under and by virtue of section 2289 of the Revised Statutes of the United States, and in consideration of filing on said land under the general homestead laws, I hereby waive my right to hold and claim said land under said sixth article of said Treaty. I further show that I took up my residence on the above described land in 1885 and from said date to the present have held and occupied the same as my homestead, continuously. I further show that I have made lasting and valuable improvements on said land consisting of 140 acres of breaking, done in 1885 and since, that I have also a house 16 feet by 28 feet; also barns and fencing, etc., and have made divers other improvements. It is stated in the decision of your office that the schedule of allotments and assignments to Santee Sioux Indians shows the land now applied for by Dupuis to be embraced in allotment No. 192, made to him March 31, 1885. His application was rejected by the local officers for this reason. The concluding paragraph of the treaty of April 29, 1868 (15 Stat., 635, 637), with the different tribes of Sioux Indians, under which said land was set apart for Dupuis, is in part as follows: And it is further stipulated that any male Indians over eighteen years of age, of any band or tribe that is or shall hereafter become a party to this treaty, who now is or who shall hereafter become a resident or occupant of any reservation or territory not included in the tract of country designated and described in this treaty for the permanent home of the Indians, which is not mineral land, nor reserved by the United States for special purposes other than Indian occupation, and who shall have made improvements thereon of the value of two hundred dollars or more, and continuously occupied the same as a homestead for the term of three years, shall be entitled to receive from the United States a patent for one hundred and sixty acres of land including his said improvements, the same to be in the form of the legal subdivisions of the surveys of the public lands. Upon application in writing, sustained by the proof of two disinterested witnesses, made to the register of the local land office when the land sought to be entered is within a land district, and when the tract sought to be entered is not in any land district, then upon said application and proof being made to the commissioner of the general land office, and the right of such Indian or Indians to enter such tract or tracts of land shall accrue and be perfect from the date of his first improvements, and no longer. And any Indian or Indians receiving a patent for land under the foregoing provisions, shall thereby and from thenceforth become and be a citizen of the United States, and be entitled to all the privileges and immunities of such citizens, and shall, at the same time, retain all his rights to benefits accruing to Indians under this treaty. A proviso in the act of March 1, 1883 (22 Stat., 433, 444), is as follows: That the patents authorized to be issued to certain individual Indians by the concluding paragraph of article six of the treaty with the Sioux Indians, proclaimed, the twenty-fourth day of February, eighteen hundred and sixtynine, shall be of the legal effect and declare that the United States does and will hold the land thus allotted for the period of twenty-five years in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or in case of his decease, of his heirs, according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian or his heirs as aforesaid in fee discharged of said trust and free of all charge er incumbrance whatsoever, and no contract by any such Indian creating any charge or incumbrance thereon or liability of said land for payment thereof shall be valid. It is alleged that certificate never issued to Dupuis for the land set apart for him, that he never applied for nor received patent under article 6 of the treaty of 1868, and the records of your office do not show that trust patent ever issued to him under the act of 1883. His present application is based on the claim that he has lived on his land separate and apart from his tribe, has adopted the habits of civilized life, and therefore, under the general allotment act of February 8, 1887 (24 Stat., 388), is a citizen of the United States |