STATE SELECTION-APPLICATION.

WILLIAM HERTH.

An application on the part of a State to select lands should be rejected, if the lands applied for are not open to such appropriation at the date of selection, or at the time when the application is received.

Acting Secretary Reynolds to the Commissioner of the General Land Office, (J. I. H.) March 26, 1896. (P. J. C.)

The land involved in this appeal is the SE. 4 of Sec. 28, T. 23 N., R. 7 E., Seattle, Washington, land district.

The facts as stated in your letter of August 3, 1893, to the register and receiver, are as follows:

On May 9, 1893, the official plat of the survey of the township 23 N., R. 7 E., was filed in your office and entries were received for land in the same on May 9, 1893, the list of selections by the State of Washington, under the provisions of the 17th section, act of Congress approved February 22, 1889, in satisfaction of grant to said State for the establishment and maintenance of a scientific school, was received at your office at 8:15 a. m. for land in said township on May 9, 1893; at 9:34 a. m., the said William Herth presented his timber land sworn statement for the SE. 4, Sec. 28, Tp. 23 N., R. 7 east, and the same was refused for the reason of conflict with the said State selection.

It is also shown by the record that Herth's application was executed at the local office May 9, 1893.

On this statement of fact you affirmed the action of the local office, on the ground that the State's selection was prior in point of time. Herth prosecutes this appeal, assigning numerous errors, but I think the second sufficient for the purposes of this case: error

in holding that the selection by the State of Washington, filed in the United States land office before 9 o'clock A. M., on May 9, 1893, as shown by the records, was such a selection as would (defeat) applicant's application presented at the opening of the Land Office at 9 o'clock A. M. on May 9, 1893.

The land in question was not subject to entry until 9 o'clock A. M., the hour at which the local office is opened for business. An examination of the list of selections in your office shows that the commissioner of public lands for Washington made a certificate that on May 4, 1893, he selected the lands included in said list. This certificate is dated May 9, 1893. Inasmuch as the list of selections was received at the local office at 8:15 o'clock A. M., on May 9, it necessarily follows that the list and certificate were made prior to the time when the land was subject to entry. (Barnard's Heirs v. Ashley, 18 How., 46; 2 C. L. L., 1119.)

In the case of Smith v. Malone (18 L. D., 482), the question as to what right a party can acquire to land whose application is sworn to prior to the time when the same could be legally taken, was exhaustively gone into, and all prior decisions on the subject reviewed. It was therein decided (syllabus)—

An application to make entry of public land cannot be allowed if based on pre10332-VOL 22-25

liminary papers executed prior to the time when said land is legally subject to such application.

The reasons given in that case for the application of this rule to individuals are peculiarly applicable to the case at bar. It is true that in that case the applicant was an individual, and as such was required to show his personal qualifications to enter land at the time it was subject to entry.

By analogy the same rule should be applied to the State of Washington in making its selections. To hold otherwise gives the State an arbitrary advantage over any individual, in that under the rule the individual cannot make a legal application until the land is open to settlement or purchase.

But aside from this, the land in question was not subject to selection either at the time the application was received, or when executed; hence it should have been rejected.

The judgment of your office is therefore reversed.

RAILROAD LANDS-RESIDENCE-ACT OF JANUARY 23, 1896.
SHAFER . BUTLER.

(On Review.)

Under the amendatory act of January 23, 1896, residence is not required to be shown in support of an application to purchase forfeited railroad lands under section 3, act of September 29, 1890, if the land has been cultivated and otherwise improved.

Acting Secretary Reynolds to the Commissioner of the General Land Office, (J. I. H.)

March 26, 1896.

(F. W. C.)

I have considered the motion forwarded with your office letter of April 11, 1895, for a rehearing in the matter of the case of E. B. Shafer v. J. M. Butler, involving the SE., Sec. 17, T. 3 N., R. 33 E., La Grande land district, Oregon.

This land was formerly included within the limits of the grant made to aid in the construction of the Northern Pacific railroad, but being opposite the unconstructed portion of that road, it was restored to the public domain by the general forfeiture act of September 29, 1890 (26 Stat., 496).

On January 22, 1892, Butler made homestead entry of the land, and on February 13 following, Shafer filed a contest against said entry in which he set up a claim of right to purchase the same under the third section of the act of forfeiture, he claiming to have settled upon said land June 2, 1890, with intention of purchasing the same from the company.

Upon this contest hearing was regularly held, and from the testimony adduced it appeared that this land was first claimed by Bluford Stan. ton, who occupied the lands from 1880 until he sold his improvements

and possessory claim to J. M. Elgin, who in turn sold to L. D. Shafer, the brother of the contestant.

L. D. Shafer came into possession of the land in 1888 and held the same until May 9, 1890, which he sold to contestant for $3,000. Contestant was, at the time of this purchase, living upon other land which he had entered under the homestead laws, for which he did not make proof until after the passage of the act of forfeiture.

Upon this showing, your office decision of June 5, 1893, held the . homestead entry by Butler subject to the right of purchase in Shafer, under the provisions of the third section of the act of forfeiture. Butler appealed to this Department; said appeal being considered in departmental decision of December 11, 1894 (19 L. D., 486), in which your office decision was reversed because it was not shown that Shafer was a resident upon the land, nor that he, or those before him in possession, held under deed, written contract with, or license from the company.

Motion for rehearing is based upon the ground that Stanton, through whom Shafer came into possession, settled upon this land under license from the railroad company, the rights under which were transferred to the succeeding purchasers.

Numerous objections have been filed to the consideration of this motion, but the same need not be considered in view of the act of Congress approved January 23, 1896, amending the act of forfeiture, in which it is provided that

Section three of an Act entitled "An Act to forfeit certain lands heretofore granted for the purpose of aiding in the construction of railroads, and for other purposes," approved September twenty-ninth, eighteen hundred and ninety, and the several acts amendatory thereof, be, and the same is, amended so as to extend the time within which persons entitled to purchase lands forfeited by said act, shall be permitted to purchase the same, in the quantities and upon the terms provided in said section, at any time prior to January first, eighteen hundred and ninety-seven: Provided, That actual residence upon the lands by persons claiming the right to purchase the same shall not be required where such lands have been fenced, cultivated, or otherwise improved by such claimant, and such persons shall be permitted to purchase two or more tracts of such lands by legal subdivisions, whether configuous or not, but not exceeding three hundred and twenty acres in the aggregate.

Under the laws, as amended, residence is not necessary to be shown in support of an application to purchase under the third section of the act of forfeiture, and as it was shown that this land was improved to great value by Stanton, and those succeeding in possession through him, and that the contestant settled upon the land with the intention of purchasing the same of the company, and continued the improvement and cultivation of the same and was in peaceable possession thereof at the time Butler made entry, I must recall the previous decision of this Department, and sustain your office decision according to Shafer the right to purchase under the act of forfeiture. Upon the completion of said purchase Butler's entry will be canceled.

SWAMP LAND GRANT-INDIAN RESERVATION.

STATE OF MINNESOTA.

By the terms of the proviso to the act of March 12, 1860, extending the provisions of the swamp land grant to the State of Minnesota, said grant is not operative as to any lands that prior to selection by the State have been "reserved, sold or disposed of" pursuant to any law enacted prior to said act.

It is not necessary to constitute an Indian reservation that a treaty or act of Congress shall specifically describe the lands that are reserved. It is sufficient for such purpose if the lands occupied by the Indians are recognized by the officials of the government as reserved Indian lands.

A treaty when approved is in effect a legislative enactment; and if in pursuance of a treaty with the Indians prior to the act of March 12, 1860, lands occupied by them are then regarded as reserved for their benefit, and are subsequently so treated, such lands are accordingly excepted from the operation of the swamp land grant.

The act of January 14, 1889, did not contemplate the disposition of any of the Indian lands opened to settlement thereby except in the manner, and for the purposes therein provided, to the end that the money arising from such disposal should inure to the benefit of the Indians, and it therefore follows that the claim of the State to any of such lands under the swamp grant is inconsistent with the provisions of said act.

Secretary Smith to the Commissioner of the General Land Office, March (J. I. H.) 27, 1896.

I am in receipt of your office letter of March 6, 1896, together with the letter of the governor of the State of Minnesota, dated February 14, 1896, which was referred to you, under date of February 28, 1896, for report thereon.

The governor of Minnesota claims that the swamp lands within the ceded portions of the Red Lake reservation, soon to be opened to entry, were granted to the State of Minnesota, by virtue of the provisions of the swamp land grant, made by Congress March 12, 1860 (12 Stat., 3), and asks that

such lands be excluded from the lands to be opened to entry, and that the surveyor general of the State be instructed to select the same for and in behalf of the State, as in other cases.

I have carefully examined the claim of the State of Minnesota.

The swamp land grant of September 28, 1850 (9 Stat., 519), was a grant in presenti of all such lands as had not been sold by the United States.

The act of March 12, 1860 (12 Stat., 3), extended the act of 1850, to the State of Minnesota with further exceptious contained in a proviso. The last named act is as follows:

That the provisions of the act of Congress entitled 'An act to enable the State of Arkansas and other States to reclaim the 'swamp lands' within their limits,' approved September twenty-eight, eighteen hundred and fifty, be, and the same are hereby, extended to the States of Minnesota and Oregon: Provided, That the grant hereby made shall not include any lands which the government of the United States

may have reserved, sold, or disposed of (in pursuance of any law heretofore enacted) prior to the confirmation of title to be made under the authority of the said act.

It is under this act that the State of Minnesota claims swamp lands within the ceded portions of the Red Lake reservation.

The proviso to this act means, that if, when the State of Minnesota applies for an approval of its selection of swamp lands, any of the lands so selected have been reserved, sold, or disposed of pursuant to any law enacted prior to March 12, 1860, the grant to the State will not attach to such lands.

It is claimed by the State of Minnesota that this proviso to said act is void, because the same is repugnant to the purview of the act. The decision by the supreme court of Oregon in the case of Gaston v. Scott (5 Oregon, 48), is relied upon in support of this contention.

I can not consent to this construction of the act of 1860, supra. The act must be construed, if possible, so as to carry out the intent of Congress. This intent is, I think, very clear; that is, to grant to the State of Minnesota swamp lands within her borders that had not been, prior to selection by the State and approval by the Department, disposed of, or reserved, under some act of Congress made prior to said granting act. Although this exception to the grant is contained in a proviso, that fact does not render it any the less an exclusion of such lands. Such exclusion may be made by a proviso, a saving clause, or by any words placed anywhere in the body of the act, from which the intention of Congress may be understood; the object, or purpose, being simply to exclude from the body of the act certain lands not intended to pass by the grant to the State.

It is further claimed by the State of Minnesota, that these lands do not come within the proviso of said act, and in support of this contention it is insisted, that in order to bring these lands within the meaning and intent of the proviso they must have been set apart as a reservation by metes and bounds, and called such, under some act of Congress especially authorizing them to be so reserved.

I cannot concur in this view of the subject.

The Indians who inhabit what is known as the Red Lake reservation, are a portion of the Mississippi Chippewa Indians, who, with other Indians, owned vast tracts of country in the Northwest, which was minutely described in a treaty with the United States. They made treaties from time to time with the United States, ceding portions of their lands and reserving other portions. In every one of such cessions the lands ceded were minutely described, and the boundaries of the land which the Indians retained became, in this way, as distinctly described and marked as were the lands which they ceded.

It is not necessary in order to constitute a reservation that a treaty, or act of Congress, shall specifically mention the lands that are reserved, but it is sufficient if the lands occupied by the Indians are recognized