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December 15, 1904, Turnbull filed in the local office a petition praying that the notice of intention to make application for townsite entry be rejected and that the petitioner's application to make homestead entry be allowed, for the following reasons:

1. They have not filed, nor caused to be filed with the register of deeds (recorder) for the county within which the land is situated any plat, map or diagram of the alleged townsite with statement of facts, as required by Section 2382 of the Revised Statutes of the United States.

2. They have not filed in the General Land Office a verified transcript of any such plat, map or diagram and statement, with testimony of witnesses relative to the establishment of the alleged town in good faith, as the law requires; nor have they filed such plat, map or diagram, statement and testimony in the district land office having jurisdiction over the land applied for.

3. Within less than three months from the date of the filing of the so-called declaration, that is to say, on January 13, 1904, the Commissioner of the General Land Office decided that the papers then presented were not such as the law requires in townsite applications and that they were insufficient for the purposes intended and required the parties to comply with legal requirements within a reasonable time. The parties were duly notified January 20, 1904, of the said decision and requirement made by the Commissioner, but they have never made any attempt to comply with the requirement or to cure the defects in said papers. On November 7, 1904, one A. J. Harwood, a United States Commissioner for the District of Minnesota, through whom all the correspondence relating to the alleged townsite claim has been conducted, forwarded a letter to the Commissioner of the General Land Office, calling attention to the fact that more than a year had elapsed since the alleged founding of the town and that the law had not been complied with by the parties in respect to the filing of map, statement, testimony, etc., and requesting, in view of such failure, that the Secretary of the Interior shall proceed with respect to said town as provided by Section 2384 of the United States Revised Statutes, thus waiving, in behalf of said parties to said so-called declaration any right which might have been acquired thereunder, and any and all claim to intention to make townsite entry as alleged therein.

4. To refuse to grant the request and prayer of this petitioner will unnecessarily impose upon the petitioner the hardship and burden of expense and trouble of a contest, and longer deprive him of the rights and privileges to which he is entitled under his settlement made in May, 1901, and his homestead entry application presented November 10, 1903, the day the lands were opened to disposal under the act of January, 1889 (the Nelson law) and acts amendatory thereto.

The petition was denied by your office decision of January 14, 1905, it being held (1) that public land that is used and occupied for purposes of trade and business, whether application to make townsite entry of the same be made or not, is not subject to homestead entry; (2) that the said townsite declaratory statement, while informal, was nevertheless sufficient in form and substance to segregate the land until canceled upon a contest or other proper proceeding: (3) that the failure of the townsite claimants to proceed under sections 2382 to 2386, inclusive, of the Revised Statutes, did not 5194 Vol. 34-05 M-7

amount to a waiver or relinquishment by them of any rights they might have acquired, and that while the said claimants had been notified that they must proceed in accordance with the laws and regulations, no penalty, other than that prescribed by section 2384, could properly be imposed as a consequence of their failure to so proceed within a given time; and (4) that the question as to whether Turnbull acquired any rights superior to those of the townsite claimants by virtue of his alleged prior settlement was one that could be determined after a hearing.

March 21, 1905, Turnbull filed in your office a petition, based on the allegations contained in the affidavit filed by him in the local office June 1, 1904, and the petition filed by him in your office December 15, 1904, both hereinabove set forth, it being contended by him that he is entitled to make homestead entry of the land because of his alleged prior homestead settlement, notwithstanding the alleged occupancy thereof for townsite purposes at the time his application to enter was presented.

In passing upon said petition for a hearing your office, by decision of April 13, 1905, held (1) that, in view of the departmental order of August 1, 1899, prohibiting all persons from going upon any of the ceded Chippewa lands, except those within the Red Lake reservation that had been theretofore opened to settlement or offered for sale, Turnbull acquired no rights whatever by virtue of his alleged settlement made upon the land in question prior to November 10, 1903; (2) that under the provisions of the act of February 9, 1903 (32 Stat., 820), said land became subject to townsite settlement and entry from and after the date of the approval of said act; (3) that in view of the fact that Turnbull fails to allege in his affidavit that on November 10, 1903, the land was unoccupied by anyone save himself, but, on the contrary, admits that it was in fact at that time occupied by seventeen persons, exclusive of himself and family, and does not attempt to dispute the sworn statement of the townsite claimants to the effect that on November 10, 1903, the land was occupied for townsite purposes, his affidavit fails to state a cause of action; and (4) that inasmuch as said land was segregated by the townsite declaratory statement or notice filed in the local office November 9, 1903, the local officers should have rejected Turnbull's application at the time it was presented, so far as it embraced the land in question, instead of suspending it. The petition for a hearing was therefore denied, and Turnbull's application to make homestead entry of the tract in controversy was rejected.

From this decision Turnbull has appealed to the Department.

The act of January 14, 1889 (25 Stat., 642), after providing for the cession, survey and classification of lands within the Red Lake and other Chippewa Indian reservations in the State of Minnesota, and

the allotment of certain lands in said reservations to Indians, reads as follows:

SEC. 6. That when any of the agricultural lands on said reservation not allotted under this act nor reserved for the future use of said Indians have been surveyed, the Secretary of the Interior shall give thirty days' notice through at least one newspaper published at St. Paul and Crookston, in the State of Minnesota, and at the expiration of thirty days the said agricultural lands so surveyed shall be disposed of by the United States to actual settlers only under the provisions of the homestead law.

Under the provisions of said act certain tracts within the ceded portion of the Red Lake reservation, the same having been previously surveyed, examined and ascertained to be agricultural lands, were on October 5, 1898, by departmental notice of August 12, 1898, opened to settlement and entry under the homestead laws. Included in the list of lands so opened was all of township 162 north, range 35 west, with the exception of sections 16 and 36 thereof, the tract herein involved being within the section last named. These sections, although they appear to have been at that time surveyed and examined, were not included in said list, for the reason that the State of Minnesota was then claiming them under the school land grant, which claim was not finally disposed of until the Supreme Court rendered its decision of May 2, 1902, in the case of State of Minnesota v. Hitchcock (185 U. S., 173), declaring that no land in the Red Lake reservation passed to the State under the school land grant.

August 1, 1899, the Department issued a circular or order which reads in part as follows:

The said act of January 14, 1889, provides for the disposal, after notice by advertisement for thirty days in the manner indicated therein, to actual settlers enly, under the provisions of the homestead laws at the price and on the terms as to payment provided in the act of such lands as may have been determined in the manner indicated in the act to be agricultural. No lands in the . . . . Red Lake.... Reservation have ever been or will be open to sale or settlement by the United States under the homestead law or any other laws of the United States, until advertisement to that effect, as required by said act. . . .

Excepting the lands heretofore offered for sale or open to settlement upon the Red Lake Reservation and excepting those in said section 15 so as aforesaid ordered to be sold, there has been no appraisal or order for sale or for the opening to settlement, or for the advertisement of any lands whatever within any of said reservations.

All persons are, therefore, hereby warned not to go upon any of the lands within the limits of said reservations, except upon the lands within the Red Lake Reservation heretofore opened to settlement or offered for sale, for any purpose or with any intent whatsoever. No settlement or other rights can be secured upon said lands and all persons found unlawfully thereon will be dealt with as trespassers and intruders.

A copy of this order was, on August 2, 1899, forwarded by your office to the local officers at Crookston, Minnesota, with instructions to post the same in a conspicuous place in their office.

This order was, in effect, an executive order of withdrawal, and, if authorized, operated to prevent any person from acquiring any rights whatever, by virtue of attempted homestead settlement, in or to any of the lands covered by the order, that is to say, such of said ceded lands as had not been theretofore declared to be open to settlement and entry, until they should, by duly advertised notice, be opened to homestead settlement and entry. Said order was, however, in the opinion of the Department, modified by the act of February 9, 1903 (32 Stat., 820), which extended the townsite laws to the ceded Indian lands in Minnesota, the said act, by the express terms thereof, becoming effective from and after its passage.

Turnbull admits that the alleged acts of settlement relied upon by him were performed in direct violation and disregard of said order of August 1, 1899, but contends in his appeal that the land in question having then been surveyed, examined, and found to be agricultural land, the Department was without authority, under the act of January 14, 1889, supra, or any other law, to reserve it from settlement; he therefore insists that by his alleged settlement, although the same was made at a time when the land was not subject to entry, he acquired rights that were good as against all the world save the government, the State of Minnesota's claim to the land having been eliminated by the said decision of the Supreme Court, citing the case of Kinman v. Appleby (32 L. D., 526), and the cases therein cited.

In the case of Wolsey v. Chapman (101 U. S., 755, 768), the Supreme Court, referring to a withdrawal, by order of the Department, of certain lands in the State of Iowa, said:

The proper executive department of the government had determined that, because of doubts about the extent and operation of that act [of August 8, 1846], nothing should be done to impair the rights of the State above the Raccoon Fork until the differences were settled, either by Congress or judicial decision. For that purpose an authoritative order was issued, directing the local land officers to withhold all the disputed lands from sale. This withdrew the lands from private entry, and, as we held in the case of Riley v. Wells, was sufficient to defeat a settlement for the purpose of pre-emption while the order was in force, notwithstanding it was afterwards found that the law, by reason of which this action was taken, did not contemplate such a withdrawal.

In the case of Riley v. Welles (154 U. S., 578), the Supreme Court held that a certain settlement upon and possession of a tract within the limits of the executive withdrawal referred to in the case of Wolsey. Chapman, supra, were "without right," and that the subsequent recognition by the land officers of such settlement and possession and the permission accorded the settler to make proof and entry under the pre-emption law "were acts in violation of law and void, as was also the issuing of the patent."

In view of the rulings of the Supreme Court in the two cases last above cited, the Department is of opinion that the order of August 1, 1899, was, as to the tract involved herein, an authoritative order of withdrawal, and that Turnbull acquired no rights whatever under the homestead law by virtue of any act of settlement that may have been performed by him prior to the time the said order was revoked by the advertisement of the notice of September 22, 1903, opening said tract to settlement and entry under the homestead laws. The Department has, it is true, held that although as against the government no rights can be acquired by virtue of a settlement made upon land while it is in a state of withdrawal or reservation, yet, where such tract subsequently becomes subject to entry and is claimed by two or more persons, each relying upon a settlement made during the period covered by the withdrawal or reservation, the question as to priority of settlement may be properly considered in determining the respective rights of the conflicting claimants. No orders, however, had ever been issued forbidding such settlement on the lands involved in those cases, whereas such settlement was specifically prohibited on the land here in question. Hence said cases have no application to a case like the one at bar.

Turnbull's right to make homestead entry of the land in question must therefore depend upon some act of settlement performed after 9 o'clock, a. m., of November 10, 1903, the hour that the same first became subject to homestead settlement and entry, or upon his application to enter, presented on that date. At that time, however, the land appears to have been occupied for townsite purposes, and a declaratory statement or notice showing such occupancy and evidencing an intent on the part of the occupants to claim the same under the townsite laws was then on file. This tract was, as hereinbefore stated, subject to townsite settlement and entry from and after the passage of the act of February 9, 1903, and said informal townsite declaratory statement or notice, while insufficient as an application to enter the land under the townsite laws, was, in the opinion of the Department, prima facie evidence that the land was appropriated. The Department therefore holds that the same was not subject to homestead entry at the time Turnbull applied to enter it, and that his application was properly rejected by your office.

Turnbull, therefore, having acquired no right to the land either by virtue of his alleged settlement or his application to enter, is not entitled to a hearing for any purpose, except upon a contest regularly initiated.

The action appealed from is affirmed.

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