shall be entitled to a patent conveying the land by him entered and the same shall be issued to him, but this proviso shall not be construed to require the delay of two years from the date of said entry before the issuing of a patent therefor.

Your office properly held that at the end of two years from the date of the issuance of the receiver's final receipt, there was no contest or protest pending against the entry of Johnson touching the land to which Nyman now lays claim, and that his contest was barred by the proviso aforesaid.

Johnson was not bound to live on the land after he submitted final proof and paid the purchase money; Nyman's alleged settlement after final cash entry of Johnson appears to be an act of trespass rather than one of rightful settlement.

Your office decision dismissing Nyman's contest is affirmed.

SUGAR LOAF RESERVOIR SITE-ACT OF MARCH 2, 1897.

INSTRUCTIONS.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., July 14, 1897.

REGISTER AND RECEIVER, Leadville, Colo.

SIRS: In accordance with the provisions of the Act of Congress approved March 2, 1897, entitled: "An act to vacate Sugar Loaf Reservoir site in Colorado and to restore the lands contained in the same to entry," (29 Stat. 603), you are hereby instructed to dispose of the lands involved at public auction at your office after thirty days notice by advertisement at a price not less than two dollars and fifty cents per

acre.

To carry out the purposes of the act (the use of the lands for a reservoir site), it will be necessary to offer all the lands in a single lot, and under the conditions prescribed in the notice, a draft of which is enclosed herewith, in which you will insert some hour convenient for the sale.

The notice is to be published once a week for thirty days in some newspaper of general circulation in your district and in the vicinity of the lands, the first publication to be in the last week of July. A copy of the published notice shall be posted in your office for at least 30 days prior to the date of sale.

On the day and at the hour named you will offer the lands in a single block, to the highest bidder at a price not less than two dollars. and fifty cents per acre, the purchase money to be paid immediately upon the acceptance of the bid. In the event that any bidder fails to pay the amount of his bid, you will re-offer the lands, and will not again recognize him as a bidder during the continuance of the sale.

You will so conduct the sale as to secure fair dealing and the best price obtainable for the lands.

Upon the payment of the amount of the bid, you will issue certificate and receipt similar in form to the ordinary cash certificates and receipts. You will give them current numbers and date, modifying them to suit the case, and changing the last paragraph of the certificate so as to read as follows:

"Now therefore be it known, that on the presentation of this certificate to the Commissioner of the General Land Office, and the submission, within three years from the date of this certificate, of satisfactory proof of his title to the lands in said reservoir heretofore disposed of by the Government, and of the construction of the reservoir and the storage of water therein for increasing the flow of the Arkansas River, as contemplated by the Act of March 2, 1897, the said

shall be entitled to receive a patent for the tracts above described, subject to the conditions prescribed in the notice under which this sale was made." You will write on the margin of the certificate "Public sale of lands in Sugar Loaf Reservoir Site under Act of March 2, 1897," and will report the sale on your regular cash abstracts, writing opposite the item the same statement. You will also make report thereof on your regular quarterly returns.

The sale concluded you will make special report of your proceedings to this office. In accounting for disbursements the receiver will include disbursements made on account of said sale in his regular disbursing accounts accompanied by proper vouchers. You will also transmit to this office a copy of the paper containing the first publication of the notice, for its information.

Your attention is called to the fact that in the list of lands in the notice are included the E. NE. 1, NW. † NE. and Lot 11, Sec. 19, T. 9 S., R. 80 W. (i. e. the fractional NE. 4). By your letter of June 23, 1897, you report that you had notified two parties who had filed declaratory statements for the NE. that they would be allowed 60 days to show cause why they have not completed their filings, in default of which the filings would be canceled, in accordance with the instructions of office letter of June 19, 1897. Should either of the parties take any action within the time allowed, that is, up to and including Sept. 1, 1897 you will omit the said tracts from the lands sold. But if no action be taken by either of the parties within that time, you will include the said tracts in the list of lands sold.

You will acknowledge the receipt of this letter.

Very respectfully,

Approved July 13, 1897.

C. N. BLISS, Secretary.

BINGER HERMANN,

Commissioner.

SWAMP GRANT-INDIAN OCCUPANCY-ALLOTMENT. STOCKBRIDGE AND MUNSEE INDIANS v. STATE OF WISCONSIN. The fee to swamp lands in the State of Wisconsin embraced within the right of Indian occupancy provided for by the treaty of October 18, 1848, passed to the State by the subsequent swamp grant; but the right of possession under said grant remained in abeyance until such time as the Indian right of occupancy should be surrendered, or otherwise ended by the United States.

When by the subsequent treaty of February 11, 1856, the Indians, so protected, ceded to the United States certain lands embraced within their right of occupancy, such relinquishment, as to the lands covered thereby, though for the expressed purpose of locating the Stockbridge and Munsee Indians and other Indians thereon, operated to remove the only obstacle to the merger of the right of possession with the fee that passed under the swamp grant, and entitled the State to receive patents under said grant.

The act of March 3, 1893, providing for the issuance of patents to the Stockbridge and Munsee Indians under allotments selected in accordance with the treaty of of 1856, where said Indians had remained in possession under said allotments, did not contemplate the issuance of patents for lands that had prior thereto passed to the State under the swamp grant.

Assistant Attorney-General Van Devanter to the Secretary of the Interior, July 12, 1897.

(W. C. P.)

In response to your request for an opinion as to the proper course to procure a relinquishment from the State of Wisconsin of certain lands allotted to Stockbridge Indians and the cancellation of patents issued to said State therefor in 1865, I would submit the following:

By letter of February 20, 1897, this Department directed the Commissioner of the General Land Office to issue patents to certain Indians of the Stockbridge and Munsee tribes in accordance with the approved schedule of allotments transmitted therewith. On March 22, 1897, the Commissioner of the General Land Office reported that certain of the tracts embraced in said schedule, the SE. 4 of the NE. and the E. of the SE. of Sec. 25, T. 28 N., R. 14 E., had been conveyed to the State of Wisconsin as swamp lands by patent dated November 13, 1865. He further stated that this fact was called to the attention of the Department on April 5, 1866, and that his office was by departmental letter of April 23, 1866, notified that the State declined to surrender the patent for said tracts. He referred to the decision of the supreme court in Weeks v. Bridgman (159 U. S., 541) and the ruling of this Department holding that an erroneous certification of lands is null and void and constitutes no bar to a subsequent issuance of patent, and submitted the following:

I have to ask whether under said decisions patents cannot be issued to the Indians for the lands erroneously patented to the State as aforesaid.

This letter was referred to the Commissioner of Indian Affairs for consideration and report, who as to those tracts suggests:

That inasmuch as the patent to the State of Wisconsin issued in 1865 was erroneously issued, and as the Indians are entitled under their treaty to take the lands 2670-VOL 25-2

on which they have located in allotment it would seem that the government is under some obligation to deliver to the Indian a fee simple patent, free of any cloud or incumbrance whatever, and that the State should again be requested to relinquish, or be compelled to do so by suit, if it should refuse.

Thereupon the matter was referred to me for an opinion, as before stated:

By a treaty between the United States and the various tribes of Indians, made August 18, 1825 (7 Stat., 272), the boundaries of the lands to be occupied by the several tribes were agreed upon, and the land here in question fell within the boundaries of the tract assigned to the Menominee Indians. By the treaty of February 8, 1831 (7 Stat., 342), between the United States and said Menominee Indians certain tracts were ceded to the United States, but the tracts involved here fell within the boundaries of a larger tract, which it was agreed, "shall be set apart and designated as their home."

By the treaty of October 18, 1848 (9 Stat., 952), said Indians ceded all their lands in Wisconsin to the United States, the second article thereof reading as follows:

The said Menominee tribe of Indians agree to cede, and do hereby cede, sell, and relinquish to the United States all their lands in the State of Wisconsin wherever situated.

In exchange therefor the Indians were given certain lands west of the Mississippi river for a home, but it was further provided by Article VIII. as follows:

It is agreed that the said Indians shall be permitted, if they desire to do so, to remain on the lands hereby ceded for and during the period of two years from the date hereof, and until the President shall notify them that the same are wanted.

It seems that the Indians were not removed, but continued to occupy as before the lands thus ceded to the United States, and that this condition of affairs existed at the date of the act of September 28, 1850 (9 Stat., 519), granting the swamp lands to the several states.

On May 12, 1854, another treaty was entered into with these Indians (10 Stat., 1064), by which they ceded to the United States all the lands assigned to them under said treaty of October 18, 1848, and the United States agreed to give "to said Indians for a home to be held as Indian lands are held", townships 28, 29 and 30 of ranges 13, 14, 15, and 16, the lands in question being situated in one of said townships. In the preamble to this treaty after a recitation of the pertinent provisions of the former treaty, the following language, showing the reasons for and objects of said latter treaty, is used:

And whereas, upon manifestation of great unwillingness on the part of said Indians to remove to the country west of the Mississippi River, upon Crow Wing, which has been assigned to them, and a desire to remain in the State of Wisconsin, the President consented to their locating temporarily upon the Wolf and Oconto Rivers

Now, therefore, to render practicable the stipulated payments herein recited, and

to make exchange of the lands given west of the Mississippi for those desired by the tribe, and for the purpose of giving them the same for a permanent home these articles are entered into.

The first connection of the Stockbridge and Munsee Indians with these lands is found in the treaty of February 5, 1856 (11 Stat., 663) by which said Indians ceded to the United States all their lands at Stockbridge in Wisconsin and their lands in Minnesota, in consideration of which cession the United States agreed

to select as soon as practicable, and to give them a tract of land in the State of Wisconsin near the southern boundary of the Menominee reservation, of sufficient extent to provide for each head of a family and others lots of lands of eighty and forty acres as hereinafter provided.

By the treaty of February 11, 1856 (11 Stat., 679) the Menominee Indians ceded to the United States a "tract of land, not to exceed two townships in extent, to be selected in the western part of their present reservation on its south line," for the purpose of locating thereon the Stockbridge and Munsee Indians.

Under the provisions of these treaties townships 28 of ranges 13 and 14 were selected for the purposes indicated therein, and the majority of said Indians were removed to this land. Afterwards, the act of February 6, 1871 (16 Stat., 404) directed the appraisal and sale of said two townships, with a provision authorizing the Secretary of the Interior to reserve from sale a quantity of said land not exceeding eighteen contiguous sections for allotment to the "Indian party" of said tribe. It seems that portions of said two townships of land were sold under the provisions of this act, and that some allotments were made thereunder, but on account of dissensions existing among the Indians and dissatisfaction with the enrollment made under said act, further legislation seemed necessary. Accordingly, the act of March 3, 1893 (27) Stat., 744) was passed which directed an enrollment of said tribe to be made and declared all members thereof who entered into possession of allotments under the treaty of 1856, or the act of 1871, and had remained in possession thereof "to be owners of such lands in fee simple in severalty, and the government shall issue patents to them. therefor."

Under this act an enrollment of said Indians was made and the schedule of allotments in question was prepared and approved.

This recital of the treaties and acts of Congress affecting these lands gives a history of the Indians' claim thereto. The claim of the State is asserted under the grant of September 28, 1850, which was of the swamp and overflowed lands "which shall remain unsold at the passage of this act," and has been construed by this Department and the courts as a grant in præsenti, operating to vest in the grantee State the title to all such land as of the date thereof. There is no intimation that these tracts were not of the character contemplated by the granting act and the only question is as to whether the occupancy thereof