Miami tribe should remove to the country assigned to them west of the Mississippi river within five years. It had been stipulated in the treaty of November 6, 1838, that John B. Richardvilie and family should remain in Indiana when the tribe should emigrate to the country assigned to them in the west, and the same provision was extended to Me shinggo-me-sia, and to his brothers, by said treaty of 1840.

The Miamis removed to the west in 1846, and a further treaty was negotiated with them in 1854 (10 Stat., 1093). This treaty related particularly to the cession of a part of the western reservation and the division of the residue, but the distribution of funds arising under former treaties was also provided for. In this latter provision those of the tribe remaining in Indiana and designated as the "Miami Indians of Indiana" were interested, and were represented at the negotiations by their own delegates.

By the act approved June 1, 1872 (17 Stat., 213), the Secretary of the Interior was authorized and directed to cause partition to be made of the tract reserved for the band of Me shing-go-me-sia by the treaty of 1840, per capita, share and share alike in value, to the survivors of said band and their descendants. It was further provided that patents should be issued conveying in fee to each the tract set apart to him, that the lands should not be subject to levy, sale, forfeiture or mort gage, nor to lease for longer than three years at one time, prior to January 1, 1881, that they should not be disposed of, contracted or sold by the owners prior to said date, and that the members of said band and their descendants should become citizens of the United States on January 1, 1881.

It will be noticed that after the treaty of 1826 no inhibition against alienation was provided in connection with the specific grants, except in the case of that for the band of Ma-to-sin-ia, and that was removed by the act of June 1, 1872, supra. The tendency was to restrict the inhibition and to confer upon the grantees a title in fee, without condition as to alienation: that is, to invest them with unconditional, individual ownership. While the fact that an Indian may hold land as an individual and without restriction as to alienation does not determine the liability of such land to taxation, nor the status of such Indian in relation to the government, yet it is a fact to be taken into consideration in determining his status.

The act of Congress of March 3, 1893 (27 Stat., 612-631), under which the question now presented arises, provides as follows:

In all States and Territories where there are reservations or allotted Indians the United States District Attorney shall represent them in all suits at law and in equity.

The status of the Indian as to citizenship does not of itself determine whether he comes within the provision of this enactment, because Indians to whom allotments have been made are citizens of the United States. The act of February 8, 1887 (24 Stat., 388), after authorizing

the allotment of land in severalty in the discretion of the President, provides as follows:

and every Indian born within the territorial limits of the United States, to whom allotments shall have been made under the provisions of this act, or under any other law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges and immunities of such citizens, whether such Indian has been or not by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States, without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property.

The provision of the act of March 3, 1893, quoted herein before, is found in a paragraph appropriating money to enable the Secretary of the Interior, in his discretion,

to pay the legal costs incurred by Indians in contests initiated by or against them, to any entry, filing or other claims, under the laws of Congress relating to public lands, for any sufficient cause affecting the legality or validity of the entry, filing or claim.

It might be argued from the connection in which the provision is found that it was intended that the Indian should be represented in only such actions as arise under the laws relating to the public lands; but this would be a narrow, if not a strained, construction of the language used. The language is broad and comprehensive enough to include all actions to which an Indian coming within its terms is a party, and under the rule that laws relating to the Indians are to be liberally construed in their favor, this provision should be held to include all such actions.

There are no Indian reservations in the State of Indiana, and hence if these Indians are to be treated as entitled to the services of the United States District Attorney, it must be because they come under the head of "allotted Indians." While an Indian who has received an allotment of land might ever afterwards be properly described as an "allotted Indian," yet it will not be said that it was intended that he should still enjoy this special privilege after the relationship of ward and guardian between him and the United States had in all other particulars ceased. It was not intended to create a favored class of citizens, but only to afford the Indian due protection during the period in which the United States continued to exercise control over the land as trustee, or over his person as guardian. When both these relationships cease, all obligations on the part of the government to the Indian, except such as are enjoyed by all other citizens, are cancelled. It will not be concluded that Congress intended to continue this protection to the Indian after the reason for exercising it had ceased.

An allotted Indian is one who has received as his individual property a certain specified tract of land. To bring him within the purview of the law in question it must, however, appear either that the United

States still retains and exercises control over said land, or that the individual still maintains his tribal relations, and therefore remains under the care and protection of the United States.

In the treaty of 1854 those of the tribe remaining in Indiana were described as the Miamis of Indiana, and they continued to be so recognized as an organization or body in the various acts appropriating money to meet the obligations arising under treaties with the Indians. until 1881. By the act of March 3, 1881 (21 Stat., 414-433), an appropriation was made to pay "the Miami Indians of Indiana" the sum that became due them under the said treaty of 1854. The Secretary of the Interior was directed to make a census of those Miami Indians entitled to participate in the distribution of this money, and it was provided that the receipt of the sum paid under that act should be a final discharge by each party so receiving of all claims whatsoever under said treaty against the government. This enactment seems to be the last legislative recognition of these people as an organization, and the Commissioner of Indian Affairs states that since the payment of this money the executive departments have not known or recognized the Miamis of Indiana in a tribal or other capacity.

It is clear from the foregoing that the former members of Me-shinggo-me-sia's band are no longer Indians, as contra-distinguished from citizens of the United States; that they hold their lands entirely free from all conditions and from the control of the United States. It follows, therefore that these persons do not come within the class of "allotted Indians," as that phrase is used in the law under consideration. Of the other Miami Indians of Indiana, a considerable number hold their lands entirely free of conditions, and if they were ever allotted Indians in any sense, they became citizens of the United States under the provisions of the act of 1887, supra. They are now in the same condition as one who has received an allotment under said allotment act would be if the trust period had expired and a patent in fee had been issued to him. It follows that they cannot now be considered allotted Indians under the law in question.

The others of these people, and they must be comparatively few in number, hold their lands under grants made in the treaty of 1818, or that of 1826, with the condition that they may not be alienated without the consent of the President of the United States. I am informed at the Indian Office that the use of these lands has been entirely free from control by this Department. As to what proportion of these lands may have been alienated by approved conveyances, I have no information. The facts, so far as now presented, are that these people have used their lands free of control by the United States for seventy years or over; that they have had no executive recognition in a tribal capacity since 1881, and that if they were ever alloted Indians, they became citizens of the United States in 1887. It does not seem that they can be held to be within the purview of the act under consideration.

I have not discussed the question as to when, if ever, the lands of these people became subject to taxation by the State, nor is it intended that anything said herein shall be taken as referring to that question, nor to their right to recover anything from the State.

Approved, November 23, 1897.

C. N. BLISS, Secretary.

STATE SELECTION—ACT OF MARCH 3, 1879.

STATE OF MINNESOTA . LENG ET AL.

The act of March 3, 1879, providing that "There be, and hereby are granted to the State of Minnesota, to be selected by the governor of the State, twenty-four sections of land ont of any public lands of the United States not otherwise appropriated," with the proviso that the lands so granted shall be selected within three years, is a present grant, and the requirement as to selection, contained in the proviso, should be construed as directory and not mandatory, hence a failure of the State to make such selections within the time specified will not defeat its right under said grant.

An application to make timber land entry of lands embraced within an existing State selection confers no right upon the applicant.

Secretary Bliss to the Commissioner of the General Land Office, November (W. V. D.)

26, 1897.

(C. J. W. ) On January 11, 1896, the State of Minnesota, by its duly authorized agent, presented to the local land officers at Duluth, Minnesota, a descriptive list of lands which it proposed to select in pursuance of the act of Congress of March 3, 1879 (20 Stat., 352). A description of the land embraced in said list is given in your office letter "G" of July 15, 1896, as follows: lots 1, 2 and 3 of Sec. 1; lots 2 and 3 of Sec. 2; lot 1 of Sec. 3; lots 1, 2, 3 and 4 of Sec. 7; lot 3 and the SW. of # SE. of Sec. 13; lot 4, the SW. of NE. 4, the E. of SW. SE. of Sec. 18; lots 1, 2, 3 and 4 of Sec. 19; the NW. of NW. and lots 1, 2, and 3 of Sec. 20; the E. of SW. 4, N. 1 of NE. † and S. of SE. of Sec. 22:

and the

Lot 1 of Sec. 23, lot 2, 3, 4, 9, 10, 11 and 12, of Sec. 24; lots 1, 2 and 3 of Sec. 25, lot 2 of Sec. 26; lots 1, 2, 3, 4, 6 and 7 of Sec. 27; lots 1, 2, 4, 6, 7 and 8 of Sec. 28, lots 1, 2 and the E. of NW. of Sec. 30; lots 3, 4 and the W. of SE. and SE. 4 of SE. 4 of Sec. 34, all in T. 63 N., R. 16 W.

Lots 1 and 11 of Sec. 6, T. 55 N., R. 21 W. The NE. 4, NW. 1. NE.4 of SW. and lots 5 and 6 of Sec. 1; the NE. 4, NW. of SE. and lots 3, 4, 5, 6, 7, 8, 9, 10 and 11 of Sec. 2; the NW. the NE. of SE. of Sec. 20; the N. of NE. Sec. 28, all in T. 61 N., R. 14 W.

of SW. of Sec. 13; and SW. † of NE. of

By said letter your office rejected the entire list, basing the objec tion, so far as applicable, upon the intervening rights of applicants to purchase, and where no conflicting claim appeared, basing it upon the

ground that under said act of March 3, 1879, the State was required to make selection of the lands granted within three years, whether any other claimant interposed or not. The State appealed from said decision, and notified the following named applicants to purchase, and claimants, in whose favor your office decided, of its appeal, to wit,John Leng, John Caldwell, Daniel D. McDonald, James Foley, Clyde F. Green, Katie Zikmend, Frank Olson, John C. Green, Andrew Bloomer, Edward J. McLaughlin, William Getty, Frank Stimson, John E. Davis, Frank Cutting, Henry S. Patterson, Lucius D. Routt, Charlotte Bridgeman, Edward E. Pinkman, Sadie Buck, Magliore Beaudoin, Stephen B. Hill, Ella Miller, and Celia Pinkman.

The following assignment of errors is made

1st. He erred in rejecting the selections on the ground that they were not l within the three years required in said act of Congress of March 3, 1879 (20 Stat., 352).

2nd. He erred in rejecting the selection of such tracts as are in conflict with applications under the act of June 3, 1878, (20 Stat., 89) for the reasons hereinafter severally assigned.

3rd. He erred in rejecting the selection of such tracts as are in conflict with applications to enter under the homestead law, for reasons hereinafter severally assigned.

4th. He erred in disregarding the relinquishment of the State of Minnesota for all of said lands filed in the U. S. Land Office, Duluth, on said January 11, 1896, prior to the filing of said selection list now rejected.

5th. He erred in entering a cancellation of the University selections, pursuant to letter (K) of February 12, 1894, prior to the expiration of time for appeal.

6th. He erred in cancelling said selections by letter (K) of April 3, 1896, to register and receiver, U. S. Land Office, Duluth, Minu.

7th. He erred in holding for allowance the applications under both the act of June 3, 1878, and the homestead law, for the reason that each and every of said applications had been rejected in 1893 for conflict with the State University selections then intact and in good standing on the records of the U. S. Land Office at Duluth, and in the General Land Office at Washington.

8th. He erred in holding for allowance cither of said applications for the reason that the said applications were invalid as against the University selections when filed in 1893, and were properly rejected, and for the further reason that there is no provision of law under which a rejected application can be "resworn", and be given the validity of a new application.

9th. He erred in not rejecting each and every application under the act of June 3, 1878, for the reason that said lands so applied for had been selected for educational purposes, and thereby excepted in express terms from the operation of the act of June 3, 1878.

10th. He erred in not rejecting the application of said Celia Pinkman upon the further ground that if her application as res worn to is valid, it is invalid because the affidavit of separate use and benefit was not resworn to.

11th. He erred in not rejecting said applications under act of June 3, 1878, upon the further ground that the official surveys of said lands and the homestead entries allowed and passed to patent for adjoining lands, as shown by the records of the General Land Office, show said lands to be tillable lands, and not subject to the provisions of said act of June 3, 1878.

12th. The Hon. Commissioner erred in each and every finding of fact and conclusion of law by which he rejected the selections of said State.

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