by the Indians under the permission given by the treaty of 1848 was sufficient to except these from the grant.

It was held in State of Michigan (8 L. D., 308), that lands of the character granted, but covered at the date of the swamp land grant by a temporary reservation, passed under said grant subject only to the use contemplated by the reservation. In Callanan et al. v. Chicago, Milwaukee and St. Paul Railway Company (10 L. D., 285) it was held that the fee of swamp lands occupied by the Indians at the date of the grant passed thereunder, and that the right of possession attached itself to the fee at once upon the extinguishment of the Indian right of occupancy. In both these cases reference was made to the case of Beecher v. Wetherby (95 U. S., 517), which arose under the grant of lands for school purposes, and it was said that the swamp land grant should receive the same construction upon this point as was there given to the school grant.

The land involved in Beecher v. Wetherby was section 16 in the same township in which the lands here in question are situated. It was there held that the land passed to the State subject to the right of Indian occupancy, it being said:

The grantee, it is true, would take only the naked fee, and could not disturb the occupancy of the Indians; that occupancy could only be interfered with or determined by the United States.

The tract involved there had been sold under the provisions of the act of February 6, 1871, supra, whereby all rights therein in the Indians had been determined. The controversy there was between a claimant under patents from the State and a claimant under patents direct from the United States by virtue of the sale under said act of 1871. No interest of any Indian, or of any one claiming under or through an Indian was involved in that case. So in the departmental decision cited above the occupancy right of the Indians had been extinguished. A similar question arose in the case of United States v. Thomas (151 U. S., 577), where it was charged that a crime had been committed within the limits of the La Court Oreilles Indian reservation in Wisconsin, but upon section sixteen. It was contended that section 16 in every township in Wisconsin was ceded to the State for school purposes and could not therefore be subsequently taken by the United States and set off as a part of an Indian reservation. By a treaty made in 1842 the Chippewa Indians were given a right of occupancy to a large tract of land in Wisconsin and in 1854, by treaty, relinquished their claim to this large tract, separate smaller reservations being provided for the several tribes, among them, that of La Court Oreilles. In speaking of the rights of the Indians and referring specifically to the treaty of 1854, the court used the following language:

The treaty did not operate to defeat the prior right of occupancy to that particular section, but, by including it in the new reservations, made as a condition of the cession of large tracts of land in Wisconsin, continued it in force. The State of

Wisconsin, therefore, had no such control over that section or right to it as would prevent its being set apart by the United States, with the consent of the Indians, as a part of their permanent reservation. So, by authority of their original rights of occupancy, as well as by the fact that the section is included in the tract set aside as a portion of the permanent reservation in consideration of the cession of lands, the title never vested in the State, except as subordinate to that right of occupancy of the Indians.

In State of Wisconsin (19 L. D., 518) a question arose as to whether selections of the State under the swamp land grant of tracts in the occupancy of the Indians should be approved. This involved the treaties with the Chippewa Indians of 1842 and 1854 mentioned by the supreme court in United States v. Thomas, supra, and the Department, after again ascertaining that the school-grant and the swamp land grant are similar in character so far as the passing of title is concerned, and that the same reasoning applies in cases under the former as under the latter grant, and referring specifically to United States v. Thomas, used the following language:

It is therefore directly in point and is authority for saying that by the grant of 1850 the State of Wisconsin acquired the title to the swamp lands in the Lac de Flambeau reservation, subject to the right of Indian occupation, the mere naked fee, without the right to occupy until the Indian right shall have been extinguished. But instead of any action looking to the extinguishment of Indian right of occupancy, it has been made more certain and stable by the treaty of 1854, providing for the establishment of a permanent and specific reservation. The Lac de Flambeau reservation being such, nothing should be done which would tend to disturb or cloud that right while it exists or which might appear to evidence a greater right in the State than it really has or can get at the present time.

The only conclusion to be deduced from these authorities is that the State took the fee to this land at the date of the grant of September 28, 1850, but that its right to possession was held in abeyance until such time as the Indian right of occupancy should be surrendered by them or otherwise ended by the United States.

The suggestion of the Commissioner of Indian Affairs that in case the State still refuses to reconvey said land legal procedure be resorted to for the cancellation of the patent, does not seem feasible, in view of the legislation contained in the act of March 3, 1891 (26 Stat., 1093) amending section 8 of another act of March 3, 1891 (26 Stat., 1095) which provides, among other things, as follows:

That suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents.

The limitation fixed by said act expired as to this patent more than one year ago, and hence a suit by the United States for its annulment would not be entertained.

The form in which the Commissioner of the General Land Office submitted his question as hereinbefore quoted indicates that he is inclined to the opinion that the rule announced by the supreme court

in Weeks v. Bridgman (159 U. S., 541) as to the effect of an erroneous certification of lands by this Department would apply with equal force in case of a patent erroneously issued. The conclusion of the court in that case rested largely, if not wholly, upon the express provision of the act of August 3, 1854 (10 Stat., 346) under which the certification there in question was issued, that

where lands embraced in such lists are not of the character embraced by such acts of Congress, and are not intended to be granted thereby, said lists, so far as these lands are concerned, shall be perfectly null and void, and no right, title, claim, or interest shall be conveyed thereby.

There may be cases where a patent might be treated by this Department as absolutely without effect, because issued without authority or in direct violation of law. In Burfenning v. Chicago, St. Paul, Minneapolis and Omaha Ry. Co (163 U. S., 321), the court, after stating the rule that in the administration of the public land system questions of fact are for the consideration of this Department and that its judgment thereon is final, uses the following language:

But it is also equally true that when by act of Congress a tract of land has been reserved from homestead and pre-emption, or dedicated to any special purpose, proceedings in the Land Department in defiance of such reservation or dedication, although culminating in a patent transfer no title, and may be challenged in an action at law. In other words the action of the Land Department cannot override the expressed will of Congress, or convey away public lands in disregard or defiance thereof.

The proposition that this Department may ignore the patents as void, or the other proposition that it may interfere in any way to dispute the right of the State thereto must rest upon the theory that the right of the State to a patent had not attached, and this because of the right of occupancy by the Indians existing at the date of the grant of 1850, and continuing up to the date of the patents. The only right the Indians had at the date of said grant was that of the Menominee tribe to remain on said lands temporarily given them by the treaty of 1848.

By joint resolution of February 1, 1853 (Gen. Laws of Wis., 1853, p. 110), the assent of the State was given "to the Menominee nation of Indians to remain on the tract of land set apart for them by the President of the United States, on the Wolf and Oconto rivers, and upon which they now reside, the same being within the State of Wisconsin aforesaid and described as follows, to wit: "Commencing at the southeast corner of township 28 north, range 19, running thence west thirty miles, thence north eighteen miles, thence east thirty miles, thence south eighteen miles to the place of beginning."

This action by the State removed all doubt as to the right of the Menominee Indians to remain upon said lands, but cannot properly be construed as a relinquishment by the State of the fee to the swamp lands within the boundaries described.

The decision of the supreme court in Beecher v. Wetherby, supra, is authority for this conclusion, it being there held that the fee to school

lands remained in the State after the date of this resolution, and that the United States had no authority to make other disposition thereof. These lands being encumbered by law with the right of occupancy by the Indians, the resolution would have no greater effect than to formally witness the recognition by the State of this right. It cannot be taken as evincing a willingness upon the State's part, that the lands should be dedicated permanently or even temporarily to any other purpose than that mentioned-the occupancy of the Menominee nation of Indians. It did not express a consent that this right of occupancy might be transferred to any other nation or tribe of Indians.

Afterwards the Menominee Indians, by treaty of February 11, 1856 (11 Stat., 679) ceded to the United States a tract of land, to be afterwards selected, which tract when selected, included within its boundaries the lands here in question. The Indians could convey no greater or better interest than they had, which was only the right of occupancy, the fee being in the State. It is true this relinquishment of their claim was coupled with the statement that it was made

for the purpose of locating thereon the Stockbridge and Munsee Indians, and such others of the New York Indians as the United States may desire to remove to the said location within two years from the ratification hereof,

but this was a mere statement not even put in the form of a condition. The effect of that relinquishment was to determine the right of occupancy in the Menominee Indians, and thereby remove the only obstacle to the merger of the right of possession with the fee. If this conclusion be correct, the right of the State to possession attached long prior to the date of the patents, and consequently those patents were not erroneously issued. The State cannot therefore be compelled to relinquish its claim to these lands, and there seems to be no course open to procure a relinquishment, unless it shall be voluntarily given. It is true the Indian allottee may have to suffer, but this comes not from the fault of the State, but from the mistake of the government in attempting to give the land to the Indian after it had conveyed the fee thereto to the State, and after the title of the State had been perfected. While this answers the specific question in the note of reference I deem it proper to mention another phase of the matter. The act of March 3, 1893, after declaring who shall be members of said Stockbridge and Munsee tribe of Indians, makes a further provision as follows:

And all members who entered into possession of lands under the allotments of eighteen hundred and fifty-six and of eighteen hundred and seventy-one, and who by themselves or by their lawful heirs have resided on said lands continuously since, are hereby declared to be owners of such lands in fee simple, in severalty, and the government shall issue patents to them therefor.

The allotments here in question were selected by the Indians in 1856 and 1857, and must therefore have been selected under the treaty of 1856. That they entered into possession of the lands thus selected

and by themselves, or by their lawful heirs, have resided upon them continuously has been already adjudged by this Department when the allotments were approved. These tracts then seem to come within the letter of the law, declaring the Indian claimants to be the owners in fee thereof and requiring the issuance of patents to them.

The land involved in the case of Beecher v. Wetherby, supra, also came within the letter of the law directing the sale of the said two townships, but the supreme court in that case said:

The act of Congress of February 6, 1871, authorizing a sale of the townships occupied by the Stockbridge and Munsee tribes, must, therefore, be held to apply only to those portions which were outside of sections 16. It will not be supposed that Congress intended to authorize a sale of land which it had previously disposed of. The appropriation of the sections to the State, as already stated, set them apart from the mass of public property which could be subjected to sale by its direction.

So in this case the title to the tracts in question had passed out of the United States and Congress had no control over that title or authority to declare that it had vested elsewhere than in the grantee State. If the conclusion that the title had become complete in the State be correct, the issuance of patents to these allottees could have no effect upon that title, and nothing would be conveyed to the Indian thereby. It will not be presumed that Congress intended said declaration to apply to lands which had passed beyond the control of the United States, or that a patent should issue which would be without effect.

For these reasons these tracts, while seeming to come within the letter of said law of 1893, were not in fact within its terms, and hence the provision therein as to issuance of patents does not apply to said tracts.

In conclusion, I am constrained to advise you, as herein before indicated, that a relinquishment of the lands in question can only be procured through the voluntary act of the State of Wisconsin, and that a cancellation of the patents heretofore issued to that State for these lands, can not be obtained by suit.

Approved, July 12, 1897.

C. N. BLISS, Secretary.

MINING CLAIM-PROTEST-PLACER-NOTICE-EXPENDITURE.

ADAMS ET AL. v. QUIJADA ET AL.

The issue raised is solely between the government and the entryman, in case of a hearing on a protest against a mineral entry, in which no interest in the land involved is alleged or shown on the part of protestant, prior to the application for patent.

The fact that lode claims have been located on a tract of land, and subsequently abandoned, can not affect the good faith of a placer applicant for the same land.