fore remanded to your office that the rights of the Wisconsin Central Railroad company may be adjudicated under the decision of the court above referred to.

FEES ALLOTMENT OF INDIAN LANDS.

SANBURN AND RUSSELL.

The fees allowable to local officers on Indian allotments, under section 4, act of February 8, 1887, are in the form of a commission, and determined in amount by the price and area of the land, and it therefore follows that such fees can not be fixed and allowed until after survey of the allotted tracts; but it is not essential to the allowance of such fees that the allotments should have been finally approved. Secretary Smith to the Commissioner of the General Land Office, January 22, 1896.

I acknowledge the receipt of your communication of November 11, 1895, and accompanying copy of letter from Archibald Young, Esq., attorney for J. R. Sanburn, late receiver and J. F. Russell, late register, at the Coeur d'Alene land office, Idaho.

In response thereto I transmit herewith for your guidance an opinion of the Honorable Assistant Attorney General for this Department to whom the matter was referred, dated 13th ultimo which bears my approval.

OPINION.

Assistant Attorney General Hall to the Secretary of the Interior, December 13, 1895. (S. V. P.)

By the reference of the Honorable Acting Secretary of December 3, 1895, I have before me an application on behalf of J. R. Sauburn, late receiver, and J. F. Russell, late register, at Coeur d'Alene, Idaho, for commissions on certain Indian allotments made during their respective terms of office on the validity of which you desire my opinion.

The questions on which an opinion is requested are formulated by the Commissioner of the General Land Office, before whom said application came for action, as follows:

1. Can any commissions be lawfully and properly allowed to registers and receivers on the cash price, or estimated cash price, of lands embraced in Indian allotments before they have been surveyed?

2. Can this office properly conclude that lands which satisfactorily appear to be within the forty mile limit of the Northern Pacific Railroad grant (and therefore to be double minimum lands), but which have not yet been surveyed, or the surveys of which have not yet been approved, are actually double minimum, and allow commissions for Indian allotments located thereon as such?

3. Can commissions be allowed to registers and receivers on the cash price of lands allotted to Indians, before the allotments have been approved?

4. In case a supplemental account is stated allowing the late register and receiver at Coeur d'Alene commissions as of double minimum lands on the allotments referred to, should such commissions be computed on the area allowed on the original allotment, or on the corrected area as approved to conform to legal subdivisions?

The claim made herein arises under the fourth section of the general allotment act of February 8, 1887 (24 Stat., 388), which makes the following provisions:

That where any Indian not residing upon a reservation, or for whose tribe no reservation has been provided by treaty, act of Congress, or executive order, shall make settlement upon any surveyed or unsurveyed lands of the United States not otherwise appropriated, he or she shall be entitled, upon application to the local land-office for the district in which the lands are located, to have the same allotted to him or her, and to his or her children, in quautities and manner as provided in this act for Indians residing upon reservations; and when such settlement is made upon unsurveyed lands, the grant to such Indians shall be adjusted upon the survey of the lands so as to conform thereto; and patents shall be issued to them for such lands in the manner and with the restrictions as herein provided. And the fees to which the officers of such local land-office would have been entitled had such lands been entered under the general laws for the disposition of the public lands shall be paid to them, from any moneys in the Treasury of the United States not otherwise appropriated, upon a statement of an account in their behalf for such fees by the Commissioner of the General Land Office, and a certification of such account to the Secretary of the Treasury by the Secretary of the Interior.

Section 4, act of February 28, 1891 (26 Stat., 794), amendatory of the general act, contains a similar provision with respect to fees.

It may be properly asked at the outset what are the "fees" of the local officers when lands are "entered under the general laws?"

1. In the case of homestead entries the law provides for "fees" and "commissions." The "fee" of ten dollars for an entry of one hundred and sixty acres goes to the government, and the commission of one per cent, at one dollar and twenty-five cents per acre, to each of the local officers, both fee and commission payable, by the homesteader, at date of application. On final entry, the homesteader pays a like "commission," but no "fee." If the land is double minimum, the commission is reckoned accordingly. (Sec. 2238, Revised Statutes.) Here it will be observed the "commission" is the fee, and the only one, received by the local officers for allowing the entry, the term "commission" being apparently used to distinguish between the fee paid to the government and the one paid to the local officers.

2. In timber-culture entries the law fixes the fees of the local officers at two dollars each, at first and final entry, irrespective of the area entered, or the price of the land. A government fee of ten dollars for an entry of one hundred and sixty acres is also paid by the entryman when the original entry is allowed. (Act of June 14, 1878, 20 Stat., 113.) 3. In pre-emption entries, and other entries initiated of record by declaratory statement, a filing fee of one dollar each to the local officers, to be paid by the settler, is provided for, and one per cent commission on the purchase price is also paid to said officers by the government. (Sec. 2238, Revised Statutes.)

4. In cash entries, one per cent commission on the purchase price is paid by the government to the local officers as their fee therein. (Sec. 2238, Revised Statutes.)

In certain States (including Idaho), the local officers receive fifty per centum on the fees and commissions, payable by entryman under the pre-emption and homestead law.

It will be seen from the foregoing, that the "fees" of the local officers as derived from entries under the "general" laws, at the date of the allotment act, are of two kinds, one paid as an arbitrary fee, and the other as a commission, dependent upon area and price of land, and that when the government pays the "fee," it is always in the form of a commission.

It would therefore seem that the fee allowable for allotments must also be in the same form, and determined in amount by the price and area of the land, as the fee in this instance is payable by the government. Having reached the conclusion that the fees allowable herein are in the nature of a commission to be determined by the price and area of the land, the first and second questions must be answered in the negative. The official survey of the land is prerequisite to a determination of the actual area of an entry, as well as the price of the land as fixed with respect to railroad limits.

The third question should be answered in the affirmative. If the lands have been surveyed, there is no reason why the settlement of the account between the local officers and the government should be deferred until the allotments have been approved. The commissions allowable in cases of entries under the general land laws are not, as I understand, determined by the final approval of such entries, but by the transaction of the business in the local office.

The fourth question is, in effect, answered in the response to the first and second. As the commission can only be known after the lands have been surveyed, it follows that the account should be stated in accordance with the area of the entry when adjusted to the survey. Approved:

HOKE SMITH,

Secretary.

INDIAN LANDS-APPRAISEMENT-LOSS OF IMPROVEMENTS.

ABRAM N. MITTOWER.

Where Indian lands and the improvements thereon have been separately appraised in accordance with the terms of the act of March 2, 1889, and the Indian has accepted such appraisement, and been removed from the land, as provided in said act, there is no authority for the sale of said property for less than the whole amount of the appraisement, even though the improvements were subsequently destroyed.

Secretary Smith to the Commissioner of the General Land Office, January 22, 1896.

I acknowledge the receipt of your letter of July 29, 1895, asking instructions in the case of Abram Mittower, who applies to purchase certain lands in the Bitter Root Valley, Montana, patented to certain

members of the Flathead band of Indians, under the provisions of the act of March 2, 1889, (25 Stats. 871).

In response thereto I transmit herewith an opinion dated November 20, 1895, from the Hon. Assistant Attorney General for this Department who advises me that the act above referred to forbids the acceptance of the application or sale in any case at less than the appraised value of both the land and the improvements but if the lands without the improvements is not worth the appraised value of both and cannot be sold at that figure, the matter should be reported to Congress with appropriate recommendations.

In the opinion of the Assistant Attorney General I concur.

OPINION.

Assistant Attorney General Hall to the Secretary of the Interior, Novem

By your reference I have before me the letter of the Commissioner of the General Land Office of July 29, 1895, asking to be advised in the matter of the application of Abram N. Mittower to purchase the SW. NW. and NW. SW. 1, Sec. 8, T. 8 N., R. 20 W., under the provisions of the act of Congress approved March 2, 1889, entitled "An act to provide for the sale of lands patented to certain members of the Flathead band of Indians in Montana Territory, and for other purposes." 25 Stats., 871. This act provides:

SEC. 1. That the Secretary of the Interior, with the consent of the Indians severally, to whom patents have been issued for lands assigned to them in the Bitter Root Valley, in Montana Territory, under the provisions of an act of Congress approved June fifth, eighteen hundred and seventy-two, entitled "An act to provide for the removal of the Flathead and other Indians from the Bitter Root Valley, in the Territory of Montana," or the heirs at law of such Indians, be, and he hereby is, authorized to cause to be appraised and sold, in tracts not exceeding one hundred and sixty acres, all the lands allotted and patented to said Indians; said lands shall be appraised as if in a state of nature, but the enhanced value thereof, by virtue of the settlement and improvement of the surrounding country, shall be considered in ascertaining their value: Provided, That the improvements thereon shall be appraised separate and distinct from land.

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SEC. 2. . . . . Provided, That no portion of said lands shall be sold at less than the appraised value thereof.

SEC. 3. That the net proceeds derived from the sale of the lands herein authorized shall be placed in the Treasury to the credit of the Indians severally entitled thereto, and the Secretary of the Interior is hereby authorized to pay the same in cash to original allotters and patentees, or the heirs at law of such, or expend the same for their benefit in such manner as he may deem for their best interest.

SEC. 4. That when a purchaser shall have made full payment for a tract of land, as herein provided, and for the improvements thereon, patent shall be issued as in case of public lands under the homestead and preemption laws.

SEC. 6. That in the event of the sale of the lands herein authorized it shall be the duty of the Secretary of the Interior to remove the Indians whose lands shall have been sold, to the general reservation, known as the Jocko Reservation, in the Territory of Montana.

The Commissioner states that on the 13th of March, 1876, a patent was issued to a Flathead Indian named Peter Brown for the land described in this application. The report of the special agent appointed to make the appraisements and procure the consent of the Indians shows that Brown did not accept the patent, and that on or before the 29th of January, 1890, he consented in writing to the appraisement and sale of his land, and removal therefrom, as provided in the said act of Congress. This report also shows that Brown's improvements consisted of a cabin, a root house, a stable, and two miles of fencing, the latter out of repair; that the appraisement was made on or before the said 29th of January, 1890; that the land, exclusive of the improvements, was appraised at $11 per acre, aggregating $880, and the improvements separately at $440. A copy of a telegraphic report made by this special agent on the 19th of October, 1891, which the Indian Division has furnished me for my information, shows that he had on or before that date "delivered the entire Flathead band" at the agency in Montana.

On the 5th of March, 1895, the applicant, Abram N. Mittower, filed an application to purchase the land, and submitted proof that since the appraisement the cabin and stable had been destroyed by fire, and the root house and fence blown down and rotted so as to be of no value whatever. He tenders the appraised value of the land, exclusive of the improvements, and demands patent. The Commissioner states that he knows of no authority to exclude the value of the improvements, and asks for advice. The Commissioner of Indian Affairs, to whom the matter has been referred, holds, in a letter dated August 27, 1895, that the improvements being destroyed, the land may be sold for its appraised value, exclusive of the value of the improvements, and recommends acceptance of the application.

The proviso in the second section of the act expressly forbids sale of any portion of this land at less than its appraised value. Unquestionably this means the appraised values of both the land and the improvements. This is the more evident because it is not entirely a matter between the applicant and the government. The Indian has rights in the case which cannot be overlooked. He is conceded to be the owner of the land, and the improvements were also his, as absolutely so as the soil. He had made them, it is to be presumed, by his own labor, or with his own money, and they were not only his in fact, but in law they were a part of the land. By procuring his acceptance of the appraisements, his consent to the sale of the land, and by taking possession of the premises and removing him therefrom prior to the destruction of the improvements, the government became trustee to sell the property for his benefit, and responsible to him for its total appraised value.

Evidently, the reason for appraising the land and the improvements separately was to ascertain and fix the true value of both, considered