RAILROAD RIGHT OF WAY-INDIAN LANDS-ACT OF MARCH 3, 1899. FORT SMITH AND WESTERN RAILROAD COMPANY.

The Commissioner of Indian Affairs has full authority to receive, for disbursement to the Indians, the moneys due individual Indian occupants, under section 3 of the act of March 3, 1899, as compensation for property taken or damage done by reason of the construction of the line of railroad provided for by said act. The payment to be made to the Secretary of the Interior for the benefit of the Choctaw and Creek nations, under section 7 of the act of March 3, 1899, is intended as compensation for any and all damages of whatever nature said nations may have suffered by reason of the construction of the line of railway through those nations; and the actual number of miles of road within said nations furnishes the basis for determining the amount of compensation due them under said section, irrespective of the character of the occupation of the individual occupants, for whom compensation is to be made in accordance with section 3 of said act.

Secretary Hitchcock to the Commissioner of Indian Affairs, March 23, (F. L. C.) 1904. (F. W. C.)

The Department is in receipt of your office letter of the 27th ultimo, inclosing certain correspondence with the auditor and general manager of the Fort Smith and Western Railroad Company, relating to the compensation to be paid the Creek nation on account of the building of the line of said road through said nation.

By act of March 3, 1899 (30 Stat., 1368), said company was authorized to construct and operate a railway through the Choctaw and Creek nations in the Indian Territory. The third section of said act made provision for compensating the individual occupants for all property taken or damage done by reason of the construction of said. railway, and under this section settlement has been made with all of the individual occupants along the right of way except in six cases, and in these the amount of compensation has been fixed in each instance but the payment has not been made because of inability to locate the individuals.

February 4, last, your office requested of the company that it remit the amount due in these six cases by six separate drafts, and that an effort would be made on the part of your office to locate the individual claimants, when payments would be made and receipts taken. February 11, last, responding thereto, the company claimed that it was directly liable to the individuals and that while it would be pleased to get rid of the matter by paying the money to your office, it was unable to find any provision of law that would authorize it in making such payment, and that in the absence of such law it did not see how it could do otherwise than hold the money to be paid to the proper parties on demand.

This Department has uniformly held that the Secretary of the Interior is charged with the supervision of public business relating to the Indians just as he is with that relating to public lands. The man

agement of public business relating to Indian affairs is committed primarily to the Commissioner of Indian Affairs, while the management of those relating to the public lands is committed primarily to the Commissioner of the General Land Office. In the case of the Catholic Bishop of Nesqually v. Gibbon (158 U. S., 155), the supreme court had under consideration an act of Congress which confirmed to missionary societies land then occupied by them not to exceed 640 acres. No plan was provided for determining what societies were entitled to land under that provision, nor for ascertaining the quantity to which any such society should receive title. The court held that these duties devolved upon the Interior Department, saying:

It may be laid down as a general rule that in the absence of some specific provision to the contrary in respect to any particular grant of public land, its administration falls wholly and absolutely within the jurisdiction of the Commissioner of the General Land Office, under the supervision of the Secretary of the Interior. It is not necessary that with each grant there shall go a direction that its administration shall be under the authority of the land department. It falls there unless there is express declaration to the contrary.

Applying this principle of supervisory control and authority for the best welfare of the Indian, this Department might have required that the amount due each of the individual Indian occupants be paid directly to the Secretary of the Interior for disbursement. There would seem, therefore, to be full authority for depositing with your office the amount due these individual Indian occupants and that by such payment the company would be relieved of any further charge on account of claim for damages by such occupants.

The next matter submitted for consideration relates to the amount of compensation due the Creek nation by reason of the construction of the line of this road through that nation. By the seventh section of the act of March 3, 1899, supra, it is provided

that said railway company shall pay to the Secretary of the Interior for the benefit of the Choctaw and Creek nation, respectively, the sum of fifty dollars in addition to the compensation provided for in this act, for property taken and damage done the individual occupants by the construction of the railway for each mile of railway that it may construct in said nations, said payments to be made in installments of five hundred dollars as each ten miles of road is graded.

It transpires that along and crossed by the line of road as located, were lands held by different members of the Creek nation under the customs and usages of the nation. At the time of the passage of the act of 1899, granting this right of way, there was provision of law for allotment of lands in severalty to the individual members of the Creek nation (see act of June 28, 1898, 30 Stat., 495), and under the act of March 1, 1901 (Creek agreement), allotments made in the Creek nation prior to the ratification of said act were confirmed and recognized to the same extent as were allotments thereafter made. It is claimed on behalf of the railroad company that in the settlements made with the

individual occupants under section 3 of the granting act, payment was made for the land included in the right of way, and as the individual occupants became, under the act of 1901, the owners of the land allotted them, that the portion of the road within said allotments should be excluded from the length of road within the Creek nation when calculating the amount of compensation due the nation under the statutory provision of $50 per mile as provided in section 7 of the granting act, before quoted from.. Until the nation's deed was issued to the individual and the same approved by the Secretary of the Interior, the individual did not become possessed of full title to the lands allotted, and it may be questioned whether prior to this time, or indeed for five years thereafter, the individual could lawfully convey away any part of the land allotted him. This is, however, immaterial in the consideration of the question as to the compensation due the nation by reason of the construction of the railway through said nation.

After a most careful consideration of the matters submitted in support of the company's contention the Department is unable to accede thereto.

February 18, 1902, in considering a schedule submitted of damages for the right of way of this company through the Creek nation, it was said by this Department, in regard to the manner of fixing the compensation to be paid the nation, that—

the granting act to said company clearly indicates, in my judgment, that the provision in section 7 requires the company to pay the amount stated, fifty dollars per mile, for all of the line, irrespective of the character of the occupation of the individual occupants, for whom compensation is to be made in accordance with section 3 of said act. [See Press Book No. 58, Ind. Ter. Div., page, 323.]

And, in the opinion of the Department, this is the proper rule for fixing the compensation due this nation, for the following reasons:

First, it will be noted that section 7 of the act of March 3, 1899, provides that the compensation to be paid the Choctaw and Creek nations is "in addition to the compensation provided for in this act for property taken and damages done the individual occupants by the construction of the railway;" so that there is to be no deduction because of payment made to the individual occupant. Second, that the payment to the nations is a fixed sum of "fifty dollars . . . for each mile of railway that it may construct in said nations." This could only be avoided by holding that the allotted lands were, by reason of the allotments, taken without the nation, a position clearly untenable. And third, payment is to be made "in installments of five hundred dollars as each ten miles of road is graded," there being no provision for deduction on account of occupancy or otherwise.

Attention is called to the latter part of the section, in which it is provided that in case of dissent all compensation to be made said nations under the provisions of this act shall be determined as pro

vided in section 3 for the determination of the compensation to be made to the individual occupant of lands, with the right of appeal to the courts upon the same terms, conditions, and requirements as therein provided, and it is contended that in the event of a disagreement the compensation to be awarded the dissenting nation would necessarily be determined by ascertaining, in the manner provided, the actual value of the land taken, thus, in effect, contending that only land to which the nation had full title would be considered in determining the compensation due the nation. In the case of the Creek nation no dissent was filed, so the statutory provision controls.

In the opinion of this Department the payment to be made to the Secretary of the Interior for the benefit of the Choctaw and Creek nations, under section 7 of this act, is intended as compensation for any and all damages of whatever nature the nations may have suffered by reason of the construction of the line of railway through those nations. The measure of damages is fixed by the plain letter of the statute at $50 per mile for each mile of railway that this company may construct in said nations, and in case there had been a dissent, making the appointment of referees necessary, as provided in section 3 of said act, it would seem that the duties of such referees would be limited to fixing the amount per mile due the dissenting nation, and that such referees would not be empowered to consider and determine questions affecting the length of the line of road as constructed within said nation or whether deductions should be made therefrom on account of claims to the land traversed because of occupancy or otherwise.

As shown by the affidavit of the chief engineer of said company, the line of the Fort Smith and Western Railroad Company within the Creek nation is 58.69 miles. In the opinion of this Department this furnishes the base for the calculation in determining the amount of compensation due the Creek nation under the provisions of section 7 of said act, which is at the rate of $50 per mile.

You will advise the company fully hereof and request that it make payment in accordance herewith.

ENTRIES OF PUBLIC LAND FOR PARK AND CEMETERY PURPOSES.

INSTRUCTIONS.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., March 29, 1904.

Registers and Receivers, United States Land Offices.

GENTLEMEN: I herewith submit for your guidance and instruction the following amendment to the regulations (32 L. D., 172) under the

act of Congress for entries of public land for park and cemetery purposes, approved September 30, 1890 (26 Stat., 502), to wit:

Strike out paragraph one thereof and insert in lieu of the same the following:

1. The right of entry under said act is restricted to incorporated cities and towns, and each of such cities and towns shall be allowed to make entries of tracts of unreserved and unappropriated public land, by government subdivisions, not exceeding, in all entries hereunder by such city or town, a quarter section in area, all of which must lie within three miles of the corporate limits of the city or town for which the entries are made.

Approved:

E. A. HITCHCOCK, Secretary.

J. H. FIMPLE, Acting Commissioner.

MINING CLAIM-LODE WITHIN PLACER-SECTION 2333, REVISED

STATUTES.

DAPHNE LODE CLAIM.

The lateral surface area reserved under section 2333, Revised Statutes, from the grant by a placer patent, together with a vein or lode known to exist within the boundaries of the placer claim at the date of and not included in the placer application, is limited to twenty-five feet on each side of the center of the vein or lode.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) March 30, 1904.

(F. H. B.)

This case is before the Department on certiorari to your office for review of its decision of January 6, 1903, and presents the following state of material facts:

The Mt. Rosa placer mining claim, situate in the Pueblo, Colorado, land district, was located September 19, 1891. Application for patent therefor was filed, August 5, 1892, by the Mt. Rosa Mining, Milling and Land Company, by whom, November 7, 1892, entry (No. 259) was made. During the period of publication no adverse claim was filed. The claim passed to patent April 24, 1893.

October 9, 1891, a lode or vein was discovered within the exterior limits of the previously located placer, and location thereon by certain other persons, as the Providence lode mining claim, 1500 feet in length and 300 feet in width, was made November 26, 1891. This lode was not included by the Mt. Rosa company in its subsequent application for patent to the placer claim.

October 8, 1892 (pending the aforesaid application for patent), the Mt. Rosa company entered into an agreement with the grantee of the

23286-Vol. 32—03—33