instructions proof that had been offered prior to the date thereof might be considered. Under this ruling it appears that you might properly consider the proof offered by Mrs. Almy on July 14, 1890. If such proof should show the reclamation of the land, the entry will, as hereinbefore suggested, be submitted to the board of equitable adjudication for its consideration and action.

Your decision is modified as above indicated.

RESERVATION-STATUTORY WITHDRAWAL.

YELLOWSTONE NATIONAL PARK.

Lands embraced within the Crow Indian reservation under the treaty of May 6, 1868, and subsequently included within the boundaries of the Yellowstone National Park, as fixed by act of Congress March 1, 1872, were appropriated for the purposes of said park as of the date of said act, subject only to the existing right of the Indians, and when said right was extinguished the lands covered thereby became a part of the park, without qualification of any character. Assistant Attorney-General Hall to the Secretary of the Interior, May 25, 1893.

I have the honor to acknowledge the receipt, by reference of Acting Secretary Sims, of the letter of Geo. S. Anderson, Acting Superintend ent of the Yellowstone National Park, citing the fact that a portion of the land included within the boundaries of the park, as fixed by the act of March 1, 1872, (17 Stat., 72), now section 2474, R. S., was included in the Crow Indian reservation under the treaty of May 6, 1868, (15 Stat., 649) and ceded by the Indians by agreement ratified by act of Congress, approved April 11, 1882, (22 Stat., 42) and asking "a decision as to the present status of this strip, and to know what action, if any, shall be had against persons claiming rights thereon ", with a request for an opinion upon the points set forth in said letter. By the act of March 1, 1872, supra, it is declared that a certain tract of land described by metes and bounds

is reserved and withdrawn from settlement, occupancy, or sale, under the laws of the United States, and dedicated and set apart as a public park or pleasuring ground for the benefit and enjoyment of the people; and all persons who locate, or settle upon, or occupy any part of the land thus set apart as a public park, except as provided in the following section, shall be considered trespassers and removed therefrom.

The next section gave the Secretary of the Interior exclusive control of the park, and authorized him to make such regulations as might be necessary to preserve the natural curiosities and for the comfort of visitors, and it was to those who might be in the park under the regula tions that the exception in the preceding section referred.

The northern boundary line of the park, as fixed by this act, fell inside the Crow Indian reservation for a portion of its length, and it is

as to the lands inside both reservations that the question now arises. It must be kept in mind that the fee to this land was in the United States, subject only to right of the Indians to occupy it as a tribe, or the right of individual members of the tribe to select it in tracts not exceeding three hundred and twenty acres, under the provision of their treaty. The Indians, however, subsequently relinquished all their claims of every character.

The act of Congress approving the agreement with the Indians did not in terms provide for the disposal of the lands ceded thereby under the general land laws, but the Secretary of the Interior, by letter of May 25, 1883, (41 L. and R., 30) to the Commissioner of the General Land Office, expressed the opinion that such lands became public lands at the date of the act approving the agreement, and directed that legal applications therefor should be received.

The act of Congress setting these lands aside must, in my opinion, be held to have taken effect on these lands at the date of its approval, subject only to the existing right of the Indians, and that as soon as that right was extinguished said lands became a part of the park, without qualification of any character.

In the case of Charles W. Filkins, (5 L. D., 49), it was held that lands embraced in an executive order of reservation, made for a public purpose, but covered at the date of such order by a homestead entry, became subject to the order of reservation upon the cancellation of such entry, and this ruling was followed in Staltz v. White Spirit, et al. (10 L. D., 144), and in James M. Gilman (15 L. D., 2). The rule would apply with equal force in a case like the present, where the reservation was made directly by Congress, in which body is vested the power of disposing of the public domain.

In the case of Beecher v. Wetherby (95 U. S., 517), it was held that the United States could dispose of the fee of lands occupied by the Indians, subject to the existing occupancy of such Indians. If lands thus occupied might be sold and conveyed by the United States, there can certainly be no question as to the power to set them aside for a public use, as in this case.

I am of the opinion, and so advise you, that the reservation of these lands was effective from the date of the act of March 1, 1872, and that thereafter they were not subject to settlement, occupancy or sale.

As to what action, if any, shall be had against persons claiming rights to these lands, I am unable to give any opinion, because I am not informed as to the nature of such claims, or the date of initiation thereof.

Approved, September 7, 1893.

WM. H. SIMS,

Acting Secretary.

GENTLEMEN: I have to advise you that there is now pending in Congress, a bill for extending the time within which the first payment of purchase money in case of entries of lands ceded by the Citizen Band of Pottawatomie and the Absentee Shawnee Indians, and of lands ceded by the Cheyenne and Arapahoe Indians, is required to be made under the 16th section of the act of March 3, 1891, 26 Stat., 1026. The class of lands first mentioned were opened to entry September 22, 1891, and the two year period for making such payment will expire in some cases before Congress will have time to act upon the bill referred to. I have, therefore, to direct, in reference to the Pottawatomie and Absentee Shawnee lands, above mentioned, that you postpone making demand for the first instalment of purchase money, under instructions of circular of June 8, 1893, 17 L. D., 51, until further instructions from this office, in order to afford time for Congress to act upon the proposed legislation.

The Cheyenne and Arapahoe lands were not opened to entry until April 19, 1892, and the period within which payment of the first instalment is required to be made will not expire in any entry thereof before April 20, 1894.

RAILROAD GRANT-PRE-EMPTION FILING.

SPAULDING v. ST. PAUL, MINNEAPOLIS AND MANITOBA RY. Co.

Land embraced within a pre-emption filing, at the date when the right of the company would otherwise attach, is excepted from the operation of the grant. The matter of settlement or improvement is not, under such circumstances, a question into which the company will be permitted to inquire..

First Assistant Secretary Sims to the Commissioner of the General Land Office, September 15, 1893.

The land involved in this controversy is the E. of the NE. † and lots 5 and 6, Sec. 27, T. 134, R. 43, Fergus Falls, Minnesota, land dis

trict, and was within the granted limits of the St. Paul, Minneapolis and Manitoba Railroad Company.

It appears from the record that Elias C. Spaulding made application to make homestead entry of said tract May 6, 1884. The same was rejected by the local officers. Spaulding appealed, and you, by letter of July 23, 1884, ordered a hearing to determine the status of the land on December 19, 1871, and January 10, 1872, it being stated by you that

Said tracts are within the ten miles, or granted limits, of the grant for the above mentioned company, the right of which attached in said limits upon definite location, December 19, 1871.

Said tracts are also within the thirty miles, or indemnity limits, of the grant to the Northern Pacific R. R. Co., the order of withdrawal for which was received at Alexandria, now Fergus Falls, January 10, 1872.

The records of this office show that Theodore Karels filed D. S. 670 for SE. SE. and lot 9, Sec. 22, and E. NE. and lot 5, Sec. 27-134-43, June 3, 1871, alleging settlement same date.

Henry Burgeduff filed D. S. for same tracts as covered by Karels filing, on March 6 1871, alleging settlement January 1, 1870.

Anton Michke filed D. S. 873 for E.SE. and E. NE. Sec. 27,-134-43, Sept. 13, 1871, alleging settlement August 23, 1871.

All the above filings have been canceled upon the records under office circular of April 2, 1881.

The St. P., M. & M. Ry. Co. selected the E. NE. and lots 5 and 6, Sec. 27–13443, the tracts covered by the present application, on February 7, 1882.

Both of the railroad companies and the applicant having been notified, the hearing was had before the local officers, the Northern Pacific Railroad Company making default. The testimony was directed entirely to the acts of settlement and occupancy of Burgeduff. The register and receiver decided that there was neither settlement or occu pancy as contemplated by the pre-emption law on the tract, and therefore it should pass to the railroad company under its grant. Spaulding appealed and you, by letter of April 27, 1889, reversed their decision. Thereupon the St. Paul, Minneapolis and Manitoba Railroad Company prosecute this appeal, assigning an error, substantially that your decision is against the law and evidence.

It is undisputed that pre-emption filings covered the land in controversy at the time when the right of the company would otherwise have attached, and served to except the land from the operation of the grant. The matter of settlement or improvement is not, under such circumstances, a question into which the railroad will be permitted to inquire (Kansas Pacific Railway Company v. Dunmeyer, 113 U. S., 535). The land not being free from pre-emption claims, it follows that it did not pass by the grant, and is therefore subject to the entry of the first legal applicant (Northern Pacific R. R. Co. v. Johnson, 7 L. D., 357). Objec tion is made by counsel to allowing the entry on lot 6, claiming that it had not been included in Burgeduff's filing. It is true, it was not included in his filing, but it was in Michke's, being described therein as

the E. of the SE. 4, which an examination of the plat in your office shows is lots 5 and 6.

Your judgment is therefore affirmed.

By your letter of transmittal you state that this tract was inadvertently and erroneously conveyed to the State of Minnesota, and by the State to the railway company. This being so, you will give the company notice to show cause why proceedings should not be taken in accordance with the provisions of the act of March 3, 1887 (24 Stat., 556), to secure the restoration of said lands to the government.

RAILROAD GRANT-HOMESTEAD ENTRY-REINSTATEMENT.

DARCY v. NORTHERN PACIFIC R. R. Co.

The provisions of section 3, act of March 3, 1887, warrant the reinstatement of an entry erroneously canceled on account of a railroad grant, though the judgment of cancellation was rendered in accordance with the rulings of the Department then in force.

Land embraced within a homestead entry at the date of a railroad grant is excepted thereby from the operation of the grant, and on the cancellation of such entry remains a part of the public domain.

Secretary Smith to the Commissioner of the General Land Office, Septem ber 21, 1893.

The land involved herein is the E. of the SE. † of Sec. 5, T. 16 N., R. 2 W., Olympia, Washington, land district, and is within the primary limits of the Northern Pacific Railroad grant, pertaining to the line between Portland and Tacoma, which grant was made by joint resolution of May 31, 1870 (16 Stat., 378).

By departmental decision of March 20, 1891 (Letter Press Copy Book No. 216, p. 112), it was decided that "the tract was free from claim at the date of definite location of said road, and it therefore inured to the company under its grant."

On September 2, 1892, Patrick Darcy filed a petition in the local office requesting a re-instatement of his homestead entry, canceled by said decision, alleging

That William Spencer made H'd. entry 502, Feb. 24, 1865, for the same tract and this entry was canceled June 17, 1872; that James Turner, Nov. 14, 1865, made H. E. No. 566 for said tract and same was canceled Nov. 7, 1868; and that Paris R. Winslow, Dec. 7, '68, made H. E. 777 for said tract and same was canceled February 11, 1871,

and asking that his entry may be re-instated under section 3 of the act of March 3, 1887 (24 Stat., 556).

An informal examination of the records of your office discloses the fact that the above statement is true.

The said act of March 3, 1887, supra, is "an act to provide for the adjustment of land grants made by Congress to aid in the construction