investigations on unperfected entries or on lands patented since the act was passed in 1906?

3. Would it be possible under the law to retain within the various departments, permanent jurisdiction over the archæological remains included in present unperfected claims and future entries?

4. If a permit to prospect for oil and gas is outstanding on these designated sections, will that in any way prevent the issuance of an archæological permit thereon, or in any way hamper the work that the State Historical Society hopes to undertake on these sites?

The act of June 8, 1906, supra, entitled "An act for the preservation of American antiquities" authorizes the President to declare by public proclamation such objects situated on lands owned or controlled by the Government to be national monuments, and to reserve parcels of land for their protection and management. The act provides in its first section that it shall be a criminal offense to appropriate, excavate, injure, or destroy any historic or prehistoric ruin or monument situated on lands owned or controlled by the United States" without the permission of the secretary of the department of the Government having jurisdiction over the lands on which such antiquities are situated."

Section 3 provides for the issuing of permits for the examination of ruins, the excavation of archæological sites, et cetera, by the Secretaries of the Interior, Agriculture, and War," upon the lands under their respective jurisdiction." Section 4 authorizes the Secretaries of the respective departments to make uniform rules and regulations for carrying out the provisions of the act. In accordance with the authority granted, uniform rules and regulations were prescribed by the three Secretaries under date of December 28, 1906, jurisdiction thereunder to be exercised by the Secretary of Agriculture over lands within the exterior limits of National Forests, by the Secretary of War over lands within the exterior limits of military reservations, by the Secretary of the Interior over all other lands owned or controlled by the Government of the United States, and provided for cooperative action in appropriate cases.

The statute applies to lands owned or controlled by the United States. Obviously, the phrase "lands owned or controlled by the United States " includes lands the title to which is in process of acquisition by entrymen. The jurisdiction of the Land Department over public lands continues so long as the legal title remains in the United States. A homestead entry, although it gives the party entering certain rights of occupation, does not so convey title or divest the United States of property in it as to change its character as lands of the United States. From the time of the entry the homesteader has the right of possession as against trespassers, and all others except the United States. He may treat the lands as his own, so far, and so far only, as is necessary to carry out the purposes of the act. He has an inchoate title, subject to be defeated only by failure on his part to comply with the requirements of the homestead law. As between the United States and the settler the land is to be deemed the property of the former, so far as it is necessary to protect it from waste. The law contemplates the possibility of his abandoning it, and he may not in the meantime despoil it, or perform any act upon it, which impairs its value. United States v. Williams et al. (18

Fed. 475); United States v. Taylor (35 Fed. 484); Petty v. Desmond (129 Fed. 1); Shiver v. United States (159 U. S. 491); United States v. Buchanan (232 U. S. 72); Union Naval Stores Company v. United States (240 U. S. 284).

Clearly, therefore, under the law, ruins and other objects within the purview of the act of 1906, supra, which may be located on lands occupied by a homesteader, belong to the United States-the owner of the fee at least until the entryman has earned the equitable title to the land, and are subject to the right of the Government to issue permits or licenses for the examination, excavation, and recovery thereof, as contemplated by the act of 1906, supra. By the legislation referred to Congress reserved the right to say who shall go upon its lands to search for such objects, and to impose conditions on their disposition, and, in my opinion, the duly authorized agents of the Government can go upon lands included in the unperfected claim of a homesteader for the purpose of exploring and excavating the lands, without violation or infraction of the homesteader's right of possession, which is held subject to the will of Congress. Congress, if it saw fit, could dispose of the lands to other parties, and if Congress has the power of disposition, it must follow that it could authorize others to go upon the land for the purpose of making investigations, explorations, and the gathering of objects of scientific interest.

This sufficiently answers the first question and that part of the second question pertaining to examinations and investigations on unperfected entries.

Permits may not be issued, however, for excavations and investigations on patented lands. As stated above, the statute applies to lands owned or controlled by the United States. It is fundamental that the jurisdiction of the Land Department terminates with the issuance of patent. The act of June 8, 1906, supra, authorized no reservation. or exception in patents for lands embracing ruins or archaeological sites. Only such exceptions can be included in patents to public lands as are specifically prescribed by existing law, and the inclusion of any others therein would be wholly without effect. Burke v. Southern Pacific Railroad Company (234 U. S. 669). It follows that an entryman of public lands embracing ruins and archaeological sites, upon showing compliance with statutory conditions, is entitled to an unrestricted patent.

This answers that branch of question 2 concerning jurisdiction over patented entries, and also covers question 3.

In my opinion, the fact that lands desired to be explored are embraced in an outstanding oil and gas prospecting permit under the act of February 25, 1920 (41 Stat. 437), would not prevent the granting of a permit for examinations and explorations under the act of June 8, 1906, supra. The holder of a permit under section 13 of the act aforesaid has merely an exclusive right to prospect for oil and gas within the area covered by his permit, and to use and occupy so much of the surface as may be necessary to his operations. The department has determined that it has authority to grant permits for concurrent operations for different minerals, deposits, or materials. which may occur on or in the lands. See paragraph 3, Oil and Gas

57720-30-20

Regulations of March 11, 1920 (47 L. D. 437; 50 L. D. 276; ibid. 640; 51 L. D. 180; ibid. 623).

There would seem to be no reason, therefore, why the Government should not have permittees under the acts of 1906 and 1920 on the same land at the same time.

I believe the foregoing fully covers the questions submitted by Mr. Nusbaum.

Approved.

E. O. PATTERSON, Solicitor

JOHN H. EDWARDS, Assistant Secretary.

ARIZONA LANDS

CIRCULAR No. 825

INSTRUCTIONS RELATIVE TO THE DISPOSAL OF CERTAIN LANDS IN COCONINO COUNTY, ARIZ., TO THE OCCUPANTS THEREOF

Department oF THE INTERIOR,

GENERAL LAND OFFICE,
Washington, May 13, 1922.

REGISTER AND RECEIVER,

Phoenix, Ariz.

SIR: By Executive Order No. 1786, approved June 11, 1913, all of the lands in T. 41 N., R. 2 W., G. and S. R. M., were temporarily withdrawn from settlement, location, sale, or entry. This withdrawal was under the act of June 25, 1910 (36 Stat. 847), and was for the purpose of reclassifying said lands pending the enactment of legislation governing the disposition thereof. The act of July 28, 1914 (38 Stat. 558), authorized and directed the survey and platting of the occupied and improved lands in W. 12 SW. 14 sec. 16, all secs. 17, 19, 20, 21, 28, 29, and 30, said township and range, same being adjacent to the town site of Fredonia.

Executive Order No. 2979, approved October 22, 1918, restored to settlement, location, sale, and entry all that portion of said township outside of the town-site limits, said restoration including secs. 1 to 15, inclusive, the E. 2; NW. 14; and the E. 12 SW. 14 sec. 16, all sec. 18, secs. 22 to 27, inclusive, and secs. 31 to 36, inclusive. Regulations governing this restoration were approved March 7, 1919.

The act approved March 20, 1922 (42 Stat. 467), provided:

That section 3 of the act entitled "An act authorizing the survey and sale of certain lands in Coconino County, Arizona, to the occupants thereof," approved July 28, 1914 (Thirty-eighth Statutes at Large, page 558), is amended to read as follows:

SEC. 3. That any person, or his successors in interest, who prior to January 1, 1914, were in the actual occupancy of and improving one or more of said tracts for agricultural purposes, not exceeding in all eighty acres, and have maintained the same in good faith for said purposes, upon the filing of an application to enter the same within six months from the filing of the plat of said survey in the local land office, shall be entitled to a patent for such tract of tracts upon paying the sum of $1.25 per acre therefor. All such tracts not covered by valid applications at the expiration of said six months shall thereafter be subject to cash entry upon payment of $1.25 per acre.

This amendment made no change in section 3 of the original act except to extend the maximum amount of land that may be included in one application from 20 to 80 acres.

A special survey of the agricultural tracts, reservoir site, and cemetery reserve has been made, and same was approved April 22, 1921.

Copies of same are furnished your office, to be formally filed on July 1, 1922, and from this day will run the 6-months' period for filing applications under section 3, as amended. Copies of said approved plat and of these regulations are to be sent by your office to all the occupants of said tracts as shown by the field notes of survey, and to any other parties shown by the records of your office to be entitled thereto, and also to all proof-taking officers in Coconino County and to all United States commissioners in the vicinity thereof.

All persons desiring to assert a claim under the provisions of section 3, as amended, of the act of July 28, 1914, must, within six months from July 1, 1922, when the plat of said survey is officially filed in your office, file their applications for such lot or lots, under oath, correctly describing same by tract numbers, and setting forth fully all the facts as to occupancy and improvements and any and all other facts that may be material in determining the rights of the parties to said tracts.

Applicants to purchase said lots must show themselves qualified so to do as to age and citizenship, or that he has declared his intention to become a citizen, and furnish a nonmineral affidavit.

Upon receipt of such application, you will assign current serial number thereto and in the event that the applicant by himself or through his predecessors in interest, shows actual occupancy and improvements commencing prior to July 1, 1914, and also shows to the satisfaction of your office that he has maintained the same in good faith, for the purpose of securing title thereto, you will issue notice of publication.

Should it appear that any applicant is claiming in whole or in part, a tract or tracts shown by the field notes and survey to be occupied by a person or persons other than applicant, you are directed not to allow applicant to make final proof and payment except on special written notice, by registered mail to all others who appear by said field notes and plat as claimants to the same tract. Said special written notice must be issued contemporaneously with the issuance of the notice for publication.

Notice of such application to purchase and intention to obtain title shall be published in a newspaper of general circulation in the vicinity of said lands, at the expense of the applicant, for a period of four weeks, according to the usual form and a copy thereof will be posted in your office. Said notice will advise all persons claiming adversely thereto that they should file any objections or protests against the allowance of an application within the period of publication, otherwise the application may be allowed. At the expiration of the period of publication, proper proof thereof must be filed in your office. Any objections or protests must be under oath, corroborated, and a copy thereof served upon the applicant. After proof of publication, if no adverse claims are filed, upon submission of satisfactory proof, and on receipt of payment for said lands at the rate of $1.25 per acre, a cash certificate may then be issued.

Any of said lots remaining undisposed of at the expiration of six months from the date of filing of the plat of survey in your office, will be subject to cash entry by any qualified applicant upon payment of $1.25 per acre.