in rejecting his application to make homestead entry for the W. § of the NE., the NE. of the NE. 4, and the NE. 4 of the NW. Sec. 10, T. 4 N., R. 23 E., Woodward land district, Oklahoma.

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The ground of rejection was that Frazer failed, and still refuses, to pay the fees and commissions (fourteen dollars) due on said entry. He had previously made entry for the W. of the NE. and the N. 4 of the NW. of Sec. 10, same township and range: but upon discovery that such entry had been erroneously allowed, because of being in conflict with the prior entry of another person, Frazer relinquished it and applied to make entry of the tract in question; and he contends that the fees and commissions paid on the first entry should apply on his second entry-not being satisfied with paying the fees and commissions on the second entry and being repaid those erroneously paid on the first entry. The movant says:

Not having been advised of the reasons of the recent action on the part of the Honorable Secretary, or informed of the grounds on which the General Land Office sustained the action of the local land office, the appellant labors under the disadvantage of not knowing how the Honorable Secretary can possibly reach the conclusion he does in the premises.

Probably the several tribunals referred to considered the reasons for the action taken to be so palpable that there was no occasion for explaining them in extenso. It will be sufficient to say that the action of the local officers was in strict accordance with the departmental instructions of December 1, 1883 (2 L. D., 660):

The practice of allowing parties making a homestead or timber-culture entry credit for the fee and commissions paid by them on a canceled prior entry is discontinued. The fees and commissions paid on entries of the above mentioned character canceled for conflict, or because they have been erroneously allowed and can not be confirmed, will be repaid to the proper parties upon their making application therefor, as provided in the second section of the act of Congress, approved June 16, 1880.

The preceding instruction has been strictly followed ever since its promulgation, and good practice requires that it should continue to be followed.

The motion for review is overruled.

INDIAN LANDS ALLOTMENT-MARRIED WOMAN.

THOMPSON . Frazier.

Where an Indian woman, a member of one tribe, marries an Indian man, a member of another tribe, but is never enrolled as a member of her hus

band's tribe, she is entitled to an allotment in her own tribe, as the head of a family, notwithstanding her husband, prior to his marriage, received an allotment in his tribe as a single person.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) November 7, 1905. (C. J. G.)

Miner Thompson has appealed from the decision of your office of December 1, 1904, involving charges preferred by him against Ponca Indian allotment No. 37, made to Hannah H. Frazier, for the N. Sec. 14, T. 32 N., R. 7 W., O'Neill, Nebraska.

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Section 13 of the act of March 2, 1889 (25 Stat., 888, 892), provides, among other things, as follows:

Each member of the Ponca tribe of Indians now occupying a part of the old Ponca reservation, within the limits of the said Great Sioux reservation, shall be entitled to allotments upon said old Ponca reservation as follows: To each head of a family, three hundred and twenty acres.

In an affidavit filed in the local land office April 1, 1902. Thompson alleged that Hannah H. Frazier, the allottee, was a Ponca Indian married to a Santee Sioux Indian at the date her allotment was made, and was therefore not entitled to the same as the head of a family, under the foregoing section. This affidavit was referred by your office to the Commissioner of Indian Affairs, who returned the same under date of July 14, 1902, with this statement:

The fact that this allottee was the wife of a Santee Sioux Indian at the time the allotment was made is not denied by this office. . . . The only question at issue in this case is, was this woman the wife of a Santee Sioux Indian, the head of a family within the meaning of said section 13. This office has held in its instructions to allotting agents that where the husband was a white man, or not a member of the tribe to which his wife belonged, the wife should be regarded and allotted as the head of a family, and this ruling was followed in making the allotments to the Ponca Indians.

As to this woman, however, the Department held in a communication addressed to this office December 1, 1897, as follows:

"These Indian women have been, through error, allotted lands which they are not entitled to, and steps should be taken to cancel their allotments, if not gone to patent, or to obtain their relinquishment, or to set aside the patent by action of the courts."

In view of this proceeding, it is presumed that you should order a hearing to be had in the proper local land office in accordance with the rules of practice governing proceedings of such offices.

March 2, 1903, your office ordered a hearing, which was had, and as a result thereof the local officers recommended dismissal of Thompson's charges and that the allotment be held intact. Upon appeal your office rendered the decision here complained of, in which it was found, in view of the departmental ruling referred to, that the allotment to Hannah H. Frazier was illegal, but held said allotment intact owing to the provisions of the act of April 23, 1904 (33 Stat., 297), which inhibits the cancellation of allotments upon which first or trust patents have issued, except in certain specified instances, of which this case is held by your office not to be one.

The Commissioner of Indian Affairs in a letter of date February 24, 1890, addressed to the agent of Santee Agency, Nebraska, with respect to this allottee, instructed said agent as follows:

Harriet [Hannah] H. Frazier married Charles Frazier, a Santee Sioux Indian, who has had 160 acres of land patented to him at Santee Agency. They had one child, Harriet. Would she (Harriet [Hannah] H. Frazier) be entitled to 160 or 320 acres?

Harriet [Hannah] H. Frazier should be regarded as the head of a family and allowed 320 acres. He husband being an Indian of another tribe has no land rights on the old Ponca Indian reservation. Had she married a white man she would have been regarded as the head of a family (the white father having no rights) and the same rule should govern in view of the fact that her Indian husband is not of her tribe and has no land rights on the old Ponca reservation. She should not be deprived of her just rights because her Indian husband happens to own property elsewhere.

Like instructions were given in the same letter as to other Indians. As to one, Alice Howe, who had recently married a Flandreau Sioux, it was said that she should be regarded as the head of a family and given 320 acres.

In a communication to the Commissioner of Indian Affairs of date November 4, 1897, the agent of the Santee Agency stated, as set forth in a letter of the Commissioner of Indian Affairs of date November 29, 1897, that

certain Santee Indians married women belonging to the Ponca tribe before allotments were made to the Santees in 1885; that land was allotted to these men as heads of families, their wives being enrolled with them; that the men have received their full share of, the benefits provided by section 17 of the Sioux Act of March 2, 1889 (25 Stat., 888), and that in 1890 the wives of these men were allotted 320 acres each, as members of the Ponca tribe and heads of families.

The agent asked if these women were entitled to the benefits under said section 17, and also stated that

Charles Frazier married Hannah Howe, a Ponca, about 2 years after he was allotted land at Santee in 1885, and when land was allotted at Ponca in 1890 she was allotted 320 acres and her child an allotment of about 63 acres; that Hannah Frazier has never been on the Santee rolls with her husband, but is enumerated on the Ponca census roll, it being the intention of Frazier and his wife to move on the Ponca allotment in the spring and make a home thereon.

The agent asked if he would be justified in paying Hannah Frazier under said section 17, and the Commissioner of Indian Affairs, in transmitting the agent's communication to the Department, said:

So far as the first named cases are concerned, I have to state that where a man and his wife are members of different tribes it has been the practice of this office to allow each an allotment as a single person with the tribe to which they respectively belong or to allow either of them to take an allotment as the head of a family on the reservation to which said allottee belonged, the other not being entitled to an allotment. Under this practice it would seem that these

Ponca women were not entitled to allotments with the Ponca tribe, as under the Sioux Act married women are not entitled to allotments. If this be true I am of the opinion that they would not be entitled to the benefits of section 17.

From the schedule of Santee allotments approved by the Department May 1, 1885, it appears that Charles Frazier was assigned 160 acres of land under the 6th article of the Sioux treaty of 1868 (15 Stats., 637). It is therefore doubtful whether his wife, Hannah Howe, was entitled to an allotment as a member of the Ponca tribe. As the decision of the Department of July 21, 1896, places an interpretation upon section 17 of the Sioux Act somewhat different from that entertained by this office, I deem it proper to submit these questions for your consideration and decision before instructing Agent Clements in the premises.

It was in reply to this letter of the Commissioner of Indian Affairs that the Department, after quoting from section 17 of the Sioux act, used the language quoted by the Commissioner in his letter to your office of date July 14, 1902, hereinbefore referred to, and which led your office to hold that the allotment in question was illegal. It will be observed, however, that the finding of the Department that the allotments to these Ponca women were erroneous, was made to cover without distinction both cases mentioned by the Indian agent. The one case included Ponca women who had married members of the Santee tribe and had been enrolled with them, prior to the allotments to their husbands as heads of families; and these women were afterwards allotted as members of the Ponca tribe and also as heads of families. As to the correctness of the departmental ruling with respect to this class it is unnecessary to say anything here, except to state that it differs materially from the other case named by the agent, which is that of the Ponca woman, Hannah H. Frazier, who married a Santee Indian about two years after he had received an allotment as a member of the Santee tribe and as a single person, and who was never on the Santee rolls with her husband but continued to be borne on the Ponca roll, she being finally allotted land as a member of the Ponca tribe and as the head of a family.

The appeal of this case here is directed solely to the holding of your office that under the act of April 23, 1904, there is no authority to cancel the patent issued to Hannah H. Frazier. But the contention is also made, as otherwise appears from the record, that if it be found the allottee and her husband were both citizens of the United States at the time the allotment was made, then she was not the head of a family and so not entitled to an allotment. This might be true had the allottee married an Indian homesteader, a citizen of the United States, and sought an allotment out of the public domain; but the lands involved here are tribal properties and are not governed by the provisions of the general allotment act with respect to citizenship. Besides, in section 11 of the Sioux act it is provided:

And each and every allottee under this act shall be entitled to all the rights and privileges and be subject to all the provisions of section six of the act approved February eighth, eighteen hundred and eighty-seven.

Said section 6 (24 Stat., 388, 390), declares, among other things the citizenship of allottees, "without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property." By analogy, in the case of Frank Bergeron (30 L. D.. 375), it was held that an Indian who has received an allotment of his proportionate share of the land held in common by his tribe, is not thereby disqualified from taking land for a homestead as a citizen of the United States. In the decision of your office here complained of it is said:

In a letter dated November 26, 1902, addressed to this office by the Commissioner of Indian Affairs in regard to the allotment of Julia A. Glick, referred to above, it was stated that Julia A. Glick, who married a white man, was, under section thirteen of the act of March 2, 1889, entitled to an allotment, she being a member of the Ponca tribe, and the Department having uniformly held that a woman whose husband is a white man, or otherwise not entitled to an Indian allotment, is to be regarded as the head of an Indian family. It is further stated that the land allotted to Mrs. Glick was not the property of the United States but of the tribe to which she belongs, and that her rights to tribal prop erty are not impaired by her marriage to a white man.

If a Ponca Indian who has married a white man is entitled to an allotment of 320 acres on the Ponca reservation as the head of a family, it is not seen why Hannah Frazier should not occupy the same position, she having married a Santee Sioux Indian who was not allotted as the head of a family, but who became prior to her marriage a citizen of the United States.

The Department is of opinion that the ruling relied upon by your office is not conclusive of nor properly applicable to the case now under consideration, but that the former practice in regard to such cases was the proper one and should be followed; and that on the merits of this case alone the charges preferred against the allotment of Hannah H. Frazier should be dismissed.

There are other reasons, however, sufficient to justify the dismissal of these charges. In the first place no matters were alleged against the allotment that were not already within the knowledge of the Indian Office; hence no information was given that was not already well known. In the second place, persons making charges against an Indian allotment do not acquire a preference right of entry in the event of the cancellation of the allotment. And in the third place, since the passage of the act of April 23, 1904, there is no authority to cancel a patent issued to an Indian allottee, except in specified instances, without the approval of Congress. As this case does not come within the provisions of the act, and as it is not deemed a proper case to submit to Congress under said act, the decision of your office herein is modified accordingly, the charges in question will be dismissed and the allotment held intact.