nor cultivation on the part of San Diego; but said place belongs at the present time to the said mission, and at petitioner's request I sign this in San Diego.

JUAN MA MARRON.

AUGUST 6, 1844.

Most R. P. VINCENT OLIVAS:

With the object of soliciting in property the place known by the name "Valle de San José," formerly occupied by the mission under your charge, I beg of you to be so kind as to inform me if, at the present day, the Mission of San Diego does occupy the said land, and if not, how long since it has been abandoned.

SAN DIEGO, August 5, 1844.

JUAN J. WARNER.

The "Valley of San José" can be granted to the party who petitions for it, inasmuch as the Mission of San Diego, to whom it belonged, has no means sufficient to cultivate and occupy it, and it is not so necessary for the mission.

MISSION OF SAN DIEGO, August 5, 1844.

The grant was in these words:

FR. VINCENT P. OLIVAS.

The citizen, Manuel Micheltorena, general of brigade of the Mexican army, adjutant-general of the same, governor-general, commander and inspector of both Californias:

Whereas Juan José Warner, Mexican by naturalization, has petitioned for his own personal benefit, and that of his family, the land known by the name "Valle de San José," bounded on the east by the entrance into San Felipe and the mountain, on the west by the mountain and canyon of Aguanga; and on the north bounded by the mountain, and the boundaries on the south being the "Carrizo" and the mountain; having previously complied with the notices and investigations on such matters as prescribed by the laws and regulations, exercising the powers conferred on me in the name of the Mexican nation, I have resolved to grant him the said land, declaring it by these presents his property, subject to the approbation of the most excellent assembly of the department, and to the conditions following, to wit:

First. He will not be allowed to sell it, to alienate it, nor to mortgage it, to place it under bond, or to place it under any obligation, nor give it away.

Second. He will be allowed to fence it in, without interference with the roads and other usages (servidumbres). He will hold it freely and exclusively, turning it to agriculture or any other use he may please, and he shall build a house on it within one year and live in it.

Third. He shall apply to the respective judge to give him judicial possession thereof, by virtue of this order, by which he shall mark out the boundaries, whereon he shall place the stakes, some fruit and wild trees of some use or other.

Fourth. The land which is being granted consists of six leagues, more or less (seis sitios de ganado mayor) according to the respective map or plan. The judge who may give possession thereof shall have it surveyed according to law, leaving the residue (sobrante) to the nation for its use.

Fifth. Should he fail to comply with these conditions, he shall forfeit his right to the land, and it will be denounceable by another. Therefore, I order that this present decree be to him his title, and holding it for good and valid notice thereof be entered into the respective books and be given to the interested party for his protection and other purposes.

The grant was subsequently approved by the departmental assembly on May 21, 1845. On the application to the private land commission the matter was investigated, and a report made by Commissioner Felch in these words:

J. J. Warner v. The United States, for the place called Agua Caliente y Valle de San José, in San Diego County, containing six square leagues of land.

Two grants are presented and proved in this case: The first, made by Governor Juan B. Alvarado to José Antonio Pico on the 8th day of June, 1810; the other by Governor Manuel Micheltorena on the 28th day of November, 1844, to the present claimant. The land embraced in the grant to Pico is designated by the name Agua Caliente, and that described in the grant to Warner is called the Valle de San José. On comparing the descriptions of the two parcels of lands and maps which constitute portions of the two expedientes it is manifest that the grant to Warner embraces the premises described in the previous grant to Pico. The place known by the name of Agua Caliente constitutes the northern portion of the valley known by the name of San José, while the grant to Warner describes the entire valley, and the witnesses testify that the rancho claimed by Warner is known by these names, but more frequently it has recently been called Warner's rancho. The testimony shows that Pico had set out some vines on the place before the grant was made to him, and that he built a house on the place after the grant, but in 1842 he left the place, probably on account of the danger from the Indians, and does not appear to have done anything more in connection with it.

The proof is scarcely sufficient to establish the performance of the conditions of the grant by him, while his absence from the place and the want of any evidence of an attempt to return to it after 1842 indicates an abandonment of it. It was so treated by Warner in petitioning for a grant of the

same in 1844 and by the governor in making the concession to him. If, however, there was any remaining interest in said Pico by virtue of the grant to him, the present claimant has succeeded to that interest by virtue of a conveyance made to him by said Pico on the thirteenth day of January, 1852. This conveyance is given in evidence.

I think, however, that the right of the present claimant must be determined entirely by the merits of the case based on Micheltorena's grant to him.

This grant was approved by the departmental assembly May 21, 1845.

The testimony of Andres Pico shows that Warner was living with his family on the place in the fall of 1844 and cultivating portions of the land.

His residence on the place appears to have been continued until 1851, when the Indians burnt his buildings and destroyed his stock. Since that time his occupation has been continued by his servants.

In the grant the description of the land petitioned for is such as to embrace the entire valley called San José as laid down on the map constituting a part of the expediente, giving well-defined landmarks and boundaries, which the witnesses testify are well-known objects.

The valley is very irregular in shape and is surrounded by high hills.

Juridical measurement was required and the quantity of six square leagues was granted, but as the measurement was never obtained it is important to determine whether the grantee is entitled to hold the entire premises described in the grant; using the scale given on the desino referred to in the grant, the quantity included in the premises can not exceed six square leagues of land.

The testimony of the witnesses who were interrogated on the subject estimate it variously; some more and some less than the quantity conceded. On an examination of the whole case, however, we are inclined to the opinion that the petitioner should have a confirmation of the premises according to the description contained in the grant to him, and a decree will be entered accordingly.

Upon that report the title was confirmed, which, as heretofore stated, was approved by the district court, and thereupon a patent was issued.

From these papers the following appears: The grant to Pico was made subject to the condition that he should "not molest the Indians that thereon may be established." No such condition was attached to the subsequent grant to Warner. On the contrary the report of the justice of the peace was that the land had been for two years vacant and abandoned; that there was some property rights vested, not in the Indians, but in the Mission of San Diego, and the official of that mission consented to the grant, inasmuch as the mission had no means to cultivate and occupy the land and it was no longer necessary for its purposes.

Some discussion appears in the briefs as to the meaning of the word translated usages" (servidumbres) which appears in both grants, and it is contended by the plaintiffs in error that it is equivalent to the English word "servitudes” and is broad enough to include every right which anyone may have in respect to the premises, subordinate to the fee. We shall not attempt to define the meaning of the word standing by itself. It may be conceded that it was sometimes used to express all kinds of servitudes, including therein a paramount right of occupation; but the context seems to place a narrower meaning upon its use here. Thus, in the first grant not only is there the distinct provision that the Indians established on the land shall not be molested, but the grantee "is allowed to fence it in without interfering with the roads, crossroads, and other usages" (servidumbres). In the second the grantee is "allowed to fence it in without interference with the roads and other usages" (servidumbres). Obviously, it is in these two clauses contemplated that the fencing is to be without interference with roads and other usages or burdens. It does not mean that the general occupation and control of the property is limited by any so-called servidumbres, but only that such full control shall not be taken as allowing any interference with established roads or crossroads, or other things of like nature. It thus appears that prior to the cession the Mexican authorities, upon examination, found that the Indians had abandoned the land; that the only adverse claim was vested in the Mission of San Diego, and made an absolute grant, subject only to the condition of satisfying whatever claims the mission might have. How can it be said, therefore, that when the cession was made by Mexico to the United States there was a present recognition by the Mexican Government of the occupancy of these Indians? On the contrary, so far as any official action is disclosed, it was distinctly to the contrary, and carried with it an affirmation that they had abandoned their

occupancy, and that whatever of title there was outside of the Mexican nation was in the mission, and an absolute grant was made subject only to the rights of such mission.

For these reasons we are of opinion that there was no error in the rulings of the supreme court of California, and its judgments in the two cases are affirmed. Mr. Justice White did not hear the argument of these cases or take part in their decision.

THE CHAMBERLAIN BROTHERS, CŒUR D'ALÈNE

RESERVE, IDAHO.

As set forth in my last two annual reports, some years ago six Chamberlain brothers and certain other persons went to the Cœur d'Alène Reservation, Idaho, and asserted a right to share in Coeur d'Alène lands and tribal funds. The office decided that they were not of Cœur d'Alène blood, and were therefore without right upon that reservation. All left the reservation except three, who persisted in their right to remain. They selected lands for homes, made improvements, and filed a claim for $13,340 of Coeur d'Alène money. With the assistance of the military they were finally removed in 1899, but they returned to the reservation and instituted proceedings in the United States circuit court, northern division of Idaho, to restrain A. M. Anderson, United States Indian agent, from removing them and to secure a decree adjudging them to be members of the Cœur d'Alène tribe of Indians.

The case came up for hearing May 20, 1901. The court found that the allegation set out by the complainants in their bill of complaint had not been proved and ordered that the temporary restraining order theretofore granted against defendant be dissolved; that the complainants take nothing by their bill, and that the defendant recover his costs in the case. In case the complainants were found to be temperate and law-abiding and their example such as in no way to be injurious to the other Indians, the court recommended that they be allowed to remain permanently upon the lands they occupied to the extent of 160 acres for each family, but that they be not allowed to share in the Government annuities or moneys due the Cœur d'Alène Indians, and that they be required to disclaim all claim thereto.

The agent reported that he was satisfied that had the judge been familiar with the character and conduct of the Chamberlain brothers he would not have made that recommendation, and that the presence of the Chamberlain brothers upon the reservation was so detrimental to the best interests of the Indian that they should be required to remove at the earliest practicable date.

July 30, 1901, the Department approved office recommendation of July 27 that the complainants, Bartholomew, Fabian, and Jeremiah Chamberlain and Gregurie Amperville, be required to remove from the reservation within a reasonable time, and August 2 the Indian agent was instructed to require them to remove on or before October 1, 1901. 8355-01-9

CEDED LANDS, FORT HALL, IDAHO.

My last annual report stated that Inspector W. J. McConnell was detailed to appraise the improvements of Indians electing to remove from ceded lands to the diminished Fort Hall Reserve, and Agent A. F. Caldwell, of the Fort Hall Agency, was instructed to make the allotments to Indians on the ceded lands who might elect to remain thereon. October 5, 1900, the agent reported that it would be impossible to finish the allotment work before cold weather and snows would intervene to prevent its completion. Believing that but little would be gained by doing a portion of the field work and suspending the remainder, the office reluctantly authorized him, on October 16, 1900, to postpone the allotment work until spring. He was instructed, however, to resume the work at the earliest practicable date in the spring, and meanwhile to map out and organize it in every detail, so that when resumed not the slightest delay would be incurred. On the same date the office suggested to the Department that the appraisement work by the inspector be also postponed.

March 21 last Agent Caldwell was again instructed to make allotments as soon as the weather would permit, and he was informed that the work should be completed at the earliest date practicable consistent with thoroughness. June 28 he reported that he had completed the work of making allotments in the field and would forward the schedules as soon as they could be prepared, and that 23 heads of families had elected to remove to the diminished reservation, whose improvements could be scheduled and appraised. Inspector McConnell's connection with the service having been severed, the Department, on July 12, approved office recommendation of July 10 that Agent Caldwell be now required to make the appraisements, and he was so instructed July 16.

August 22 Agent Caldwell transmitted his schedule of allotments, and also his schedule of improvements and appraisements. The former contains the names of 90 allottees, to all of whom agricultural lands were alloted-80 acres to each person. The total area alloted is 7,177.17 The schedule of appraisements describes the improvements of 23 Indian heads of families. The total appraised value is $5,851.50, the several individual holdings ranging in value from $64 to $875. The agent states that none of the improvements appraised will be removed by the Indian owners if satisfactory prices can be obtained for them.

acres.

April 25, 1901, the Commissioner of the General Land Office expressed the opinion that the ceded lands should be regularly surveyed and the schedules of allotments and appraisements completed and filed in that office before the classification of the lands, as required by section 5 of the act of June 6, 1900, ratifying the agreement, should be commenced. June 8, 1901, he transmitted to the Department copies

of reports from the several deputy surveyors having contracts for the execution of surveys of the ceded lands, stating approximately the dates when they would complete the field work of the surveys covered by their respective contracts. The latest date given was September 30, 1901. August 6, 1901, the Commissioner of the General Land Office stated that it was proposed to have Examiner of Surveys Frank H. Brigham examine the surveys of the Fort Hall ceded lands, and suggested that he might at the same time advantageously make the classification of agricultural lands, grazing lands, etc., required by said section 5. August 10 the office concurred in the recommendation that Mr. Brigham be authorized to make such classification.

INDIAN TERRITORY UNDER THE CURTIS ACT AND SUBSEQUENT LEGISLATION.

The provisions of the act of Congress approved June 28, 1898 (30 Stats., 495), entitled "An act for the protection of the people of the Indian Territory, and for other purposes," commonly known as "The Curtis Act," were fully discussed in my annual reports for the years 1898, 1899, and 1900, and it will be unnecessary, therefore, for me to enter here into any general discussion of them.

Section 27 of the Curtis Act is as follows:

That the Secretary of the Interior is authorized to locate one Indian inspector in Indian Territory, who may, under his authority and direction, perform any duties required of the Secretary of the Interior by law relating to affairs therein.

The Secretary of the Interior, under its provisions, assigned United States Indian Inspector J. George Wright to the Indian Territory August 17, 1898. Inspector Wright reports to the Department through this office on all matters coming within his jurisdiction.

For convenience the discussion of affairs in the Indian Territory will be divided into two parts, the first being matters over which the United States Indian inspector for the Indian Territory and the United States Indian agent for the Union Agency have supervision. This subject may be properly divided into five subdivisions, to wit: First, educational matters; second, mineral leases; third, collection of revenues; fourth, town sites, and fifth, timber.

The second division includes matters coming within the jurisdiction of the Commission to the Five Civilized Tribes, and relates to the making of the roll of the citizens of each tribe and to the division in severalty among them of the land and other property of the tribe.

EDUCATION.

Under the provisions of sections 19 and 29 of the "Curtis Act," the Secretary of the Interior assumed a general and specific control of educational matters of the Choctaw, Chickasaw, Creek, and Cherokee