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. 1 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

and as such is entitled to all the rights and privileges of other citizens. Section 6 of said act provides, among other things:

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, etc.

A citizen of the United States can only make homestead entry, under section 2289 of the Revised Statutes, of lands subject thereto and that are part of the public domain. The land in question was allotted to Dupuis as part of an Indian reservation and such allotment was made and he was entitled thereto by virtue of being a member of the Santee Sioux tribe of Indians. The fact that the land was set apart for him under article 6 of the treaty of 1868 in itself determines the character of said land and distinguishes it from public lands subject to entry under the general provisions of the homestead law. The lands in said reservation not theretofore allotted to Indians were by executive order restored to the public domain on April 15, 1885, but the land set apart for Dupuis March 31, 1885, was not so restored; and his election to waive his right to hold the land under article 6 of the treaty and enter the same under section 2289 of the Revised Statutes, does not make it public land. On the contrary, it was held for his benefit, he and it remained under the supervision of the Indian department and upon the required showing a trust patent declaring "that the United States does and will hold the land" for his benefit was to be issued. As stated the land constituted a part of an Indian reservation which was disposed of by treaty stipulation in a specific manner and whatever rights Dupuis had or acquired in said land were based on the fact of his being a member of the Santee Sioux tribe of Indians. These are far different attributes from those contemplated by the act of 1887 having reference to an Indian who takes up his residence separate and apart from his tribe and who by reason thereof acquires the rights and privileges of citizens of the United States, among them being the right to make homestead entry of public lands under section 2289 of the Revised Statutes.

The decision of your office concludes as follows:

If no appeal is taken from this decision, a patent in trust will be issued to him, as provided by the act of March 1, 1883, supra.

This is undoubtedly the proper course to pursue, provided Dupuis possesses the requisite qualifications under article 6 of the treaty of 1868. Accordingly, if a trust patent shall be issued, then if Dupuis can show the proper qualifications patent in fee simple may issue to him under the act of May 8, 1906 (Public-No. 149), which provides:

That the Secretary of the Interior may, in his discretion, and he is hereby authorized, whenever he shall be satisfied that any Indian allottee is competent

and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, etc.

The decision of your office, in so far as it denies the application of Dupuis to make homestead entry under section 2289 of the Revised Statutes, is hereby affirmed, and the papers are returned for appropriate action, after further consideration, and investigation if necessary, in accordance with the views herein expressed.

REPAYMENT-TIMBER AND STONE APPLICATION.

T. J. MURPHY.

Where an applicant under the timber and stone act states in his declaratory statement that he has personally examined the land applied for, when as a matter of fact he has not done so, but in his final proof swears that no inspection of the land has ever been made by him, entry on such proof can not be allowed, but as the purchase money paid by him upon submission of the proof still remains in the control and custody of the land department, repayment thereof may be made.

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 T. J. Murphy from the decision of your office of October 17, 1905, rejecting his application for the return of the purchase money paid by him upon submitting final proof under the timber and stone act of June 3, 1878 (20 Stat., 89), for the NE. of Sec. 32, T. 28 S., R. 16 E., Lakeview, Oregon.

Murphy filed declaratory statement under said act in October, 1902, in which he alleged, among other things

that I have personally examined said land, and from my personal knowledge state that said land is unfit for cultivation, and valuable chiefly for its timber; that it is uninhabited; that it contains no mining or other improvements.

He advertised to make proof January 21, 1903, but failed to do so and thereupon made application to readvertise, which was rejected by the local officers on the ground of his failure to submit proof on the date named or within ten days thereafter. Murphy stated that his failure was due to the fact that he did not have the money required to pay the purchase price for the land and attendant expenses; that his application was made in good faith and it was his intention. to perfect title to the land. Upon appeal your office directed the local officers, in the absence of any adverse claim to the land, to allow Murphy to readvertise. This he did and submitted proof October 20, 1904, which was rejected by the local officers for the reason that no personal examination of the land had been made by

5194 Vol. 34-05 M 45

Murphy. An appeal was taken to your office December 12, 1904, in which it was urged that it was error to hold that Murphy could not make entry under the act of 1878 without a personal examination of the land, citing the case of Hoover . Salling (110 Fed. Rep., 43). As hereinbefore shown, he stated in his declaratory statement that he had made a personal examination of the land. In his final proof, replying to question 4-"Are you acquainted with the land above described by personal inspection of each of its smallest legal subdivisions?"-Murphy stated: "I am not." And in answer to question 5-" When and in what manner was such inspection made?”he replied, "Made none." In support of his appeal Murphy alleged that he was advised by a United States commissioner that it was not necessary for him to personally inspect the land; that he had no recollection of having made a sworn statement to the effect that he had made such examination. Your office, however, sustained the action of the local officers, holding that Murphy was not qualified to make entry under the timber and stone act, basing such holding on unreported departmental decision of July 9, 1902, in which, referring to decision in the case of Hoover . Salling, supra, it was said:

The Department has already had occasion to consider the effect that should be given this decision in the administration of the act above cited, but has not found it necessary, up to the present time, to pass finally upon the question, and it is not deemed advisable to make any change in the existing regulations. Your office also referred to the case of Patrick McNamee (32 L. D., 606), wherein it is held (syllabus):

Where an applicant to purchase under the act of June 3, 1878, states in his preliminary affidavit that he has personally examined the land, and it subsequently appears from his final proof that he had not made personal examination of the land prior to making such affidavit, his application will be rejected.

On September 20, 1905, Murphy filed the following affidavit in your office:

In 1902, I was manager of the Honeyman McBride's wholesale woolen house, and in that capacity, frequently met Jacob Wrage, a tailor, at that time doing business in Corvallis. He repeatedly asked me or advised me to take out a timber claim. I refused many times, principally under plea that I had not time to go on the land. His answer was to me always that there was no occasion for me to go on the land, and he showed me a citation, which he received from J. W. Hamaker, U. S. Land Commissioner of Klamath Falls, in which the Court decided personal examination was not necessary. Such a citation is attached to the papers, which is in your office, and which I showed in Klamath Falls to the commissioner at the time I made application for final proof.

About October, 1902, I decided to make an application, and one Sunday morning as I was about to leave Portland, Wrage called at my residence and asked me to sign the application. I looked hurriedly at it and saw that it was an application of land. I did not read it carefully or thoroughly and my carelessness has placed me in the unfortunate position I am now in. I received a copy