in accordance with the provisions of the Act of Congress, approved July 2d, 1864; and of the Joint Resolution of Congress, approved May 31st, 1870; which lands so selected are on and within forty miles of the line of the said road so definitely located.

And, whereas, the Secretary of the Interior has since the filing of said above described list, further directed that said list shall be rearranged so it shall indicate the specific loss in lieu of which each specific selection has been made:

Now, Therefore, to comply with the further requirements of the Interior Department, but not waiving or abandoning any rights or claims heretofore acquired by virtue of its selections heretofore made under the directions of the Secretary of the Interior, the said Northern Pacific Railroad Company has herein designated the lands heretofore selected as indemnity in said Crookston List No. 12 and no other lands, and has herein set opposite each specific description of land so selected the description of the land lost from its grant in place, and in lieu of which such indemnity land is selected.

The regulations of November 7, 1879 (6 Copp's Land Owner, 141), concerning railroad selections, required the claimant to file a list of its selections, which list must be carefully examined by the register and receiver and its accuracy tested by the plats and records of their office. If found correct, they were required, upon payment of the requisite fee, to execute the form of certificate above set forth. The instructions to the registers and receivers further provided:

It is required that clear lists of approvals shall in every case be made out by you, or required of the selecting agents, after your examination of the tracts which you are prepared to certify, showing clearly and without erasure the description of the lands and the area of each tract; also the aggregate area, properly footed in the columns, and set forth in the certificate.

As to indemnity selections the instructions stated:

In the adjustment of all grants it consequently becomes necessary to know for what lands lost in place the indemnity selections are made, and with the view to the end you will require the companies to designate the specific tracts for which the lands selected are claimed.

The unpublished circular of May 28, 1883, apparently permitted a grantee railroad company to make indemnity selections without specifying any base therefor. This practice, however, was changed by the instructions to registers and receivers dated August 4, 1885 (4 L. D., 90), which provided:

Before admitting railroad indemnity selections in any case you will require preliminary lists to be filed specifying the particular deficiences for which indemnity is claimed. You will then carefully examine your records, tract by tract, to ascertain whether the loss to the grant actually exists as alleged. You will admit no indemnity selection without a proper basis therefor. If you are in doubt whether the company is entitled to indemnity for losses claimed, you will transmit the preliminary lists to this office for instructions, and will not place the selections upon record until directed so to do.

Where indemnity selections have heretofore been made without specification of losses, you will require the companies to designate the deficiencies for which such indemnity is to be applied before further selections are allowed.

Indemnity withdrawals previously made for the benefit of certain railroad and wagon road companies having been revoked and the lands restored to settlement, the Department directed the following form of procedure by the circular of September 6, 1887 (6 L. D., 131):

As to lands covered by unapproved selections, applications to make filings and entries thereon may be received, noted, and held subject to the claim of the company, of which claim the applicant must be distinctly informed and memoranda thereof entered upon his papers.

Whenever such application to file or enter is presented, alleging upon sufficient prima facie showing that the land is not from any cause subject to the company's right of selection, notice thereof will be given to the proper representative of the company, which will be allowed thirty days after service of said notice within which to present objections to the allowance of said filing or entry. Should the company fail to respond or show cause before the district land officers why the application should not be allowed, said application for filing or entry will be admitted, and the selection held for cancellation; but should the company appear and show cause, an investigation will be ordered under the rules of practice to determine whether said land is subject to the right of the company to make selection of the same which will be determined by the register and receiver, subject to the right of appeal in either party.

When appeals are taken from the decision of the register and receiver to this Office in the class of cases above provided for, they will be disposed of without delay, and if the decision should be in favor of the company, and no appeal be taken, the land will be certified to the Secretary of the Interior for approval for patent without requiring further action on the part of the company except the payment of the required fees. If the decision should be adverse to the company, and no appeal be taken, the selection will be canceled and the filing or entry allowed subject to compliance with law.

In the case of Northern Pacific Railroad Company et al. v. John O. Miller, decided July 1, 1890 (11 L. D., 1), the Department said, at page 2:

The loss to its grant in the manner prescribed of a tract or tracts of land corresponding to those which it claims as indemnity is, under the stated provisions of its grant, an essential to the right of the company to so select.

That such losses should first be shown to the satisfaction of the land department, is obvious, for otherwise the indemnity claimed therefor could not properly be selected under the "direction of the Secretary of the Interior" or in other words, in accordance with the act of 1864, supra.

In the same case upon review (11 L. D., 428), decided November 13, 1890, it was said, at page 429:

While, as between the government and the company, the practical effect would be the same, where indemnity was allowed in bulk for an equivalent quantity of land lost in place, as where indemnity was allowed tract for tract, yet the individual rights of the settler can only be ascertained and protected by the latter mode.

The ruling in the Miller case was the first specific requirement that the selected and base lands should be set forth tract for tract.

In Northern Pacific Railroad Company v. Wolfe (28 L. D., 298), it was held that an application to make entry of land embraced within a prima facie valid railroad indemnity selection was properly rejected, and that the applicant gained nothing by an appeal from such rejection. In Falje v. Moe (28 L. D., 371), it was held that an application to enter lands included within a pending railroad indemnity selection made in accordance with departmental rulings then in force conferred no rights upon the applicant under the circular of September 6, 1887, supra, where he did not attack the validity of such selection, and that no rights were gained by an appeal from a rejection of an application so presented.

From the above résumé of the Department's regulations and adjudications concerning railroad indemnity selections it can not be questioned that the original indemnity selection in this case was in conformity with the existing departmental regulations, and segregated the land. The circular of September 6, 1887, was enacted in view of the situation created by the practice of making unauthorized withdrawals of land within indemnity limits. It simply permitted an application to enter lands covered by a pending indemnity selection to be filed where accompanied by a challenge to the validity of the selection, the indemnity selection still offering a bar to all other forms of application.

A railroad indemnity selection, presented in accordance with departmental regulations and accepted and recognized by the local officers, segregates the land covered thereby, during its pendency, from other application or entry. (See Santa Fe Pacific Railroad Company, 33 L. D., 161; Holt v. Murphy, 207 U. S., 407; Weyerhaeuser v. Hoyt, 219 U. S., 380.) The tracts here involved, therefore, were not "undisposed land of the United States" within the meaning of the act of August 3, 1892, supra, and did not fall within the grant to the State of Minnesota made by that act. The fact that the selection was later canceled did not cause the grant to attach, but the land became public domain, subject to disposition under the proper law (Andrew J. Billan, supra).

This conclusion is also in harmony with the legislative history of H. R. 222, 52d Congress, which became the act of August 3, 1892. The House Committee on Public Lands reported (House Report 694, 52d Congress, 1st Session):

The following are the facts upon which the committee bases its recommendation:

(1) This park in question was authorized by an act of the legislature of the State of Minnesota, passed and approved A. D. 1891.

(2) The general purpose of said act would seem to be to preserve as far as possible the forest area at the head waters of the Mississippi River from destruction and create a forest park.

(3) The area authorized comprises about 20,000 acres; about 3,000 belonging to railroad companies, about 1,500 to the State; about 10,000 to private individuals, and about 4,000 belonging to the United States.

The lands are situated around and embrace Lake Itasca and a number of small lakes and streams constituting the sources of the Mississippi River in the State of Minnesota. The only land of any real value has already been taken by private individuals, and that remaining, the title of which is in the United States, is of very little value.

The State has already acquired title to the lands owned by the railroads for a merely nominal sum and is rapidly acquiring the title to that owned by private individuals.

Your committee are of opinion that the purpose of the legislature of Minnesota was a laudable one and should be encouraged. We would therefore recommend that the bill pass.

The report clearly indicates that the purpose of the law was to grant to the State of Minnesota merely the 4,000 acres of unappropriated public lands, and to except from the grant lands already "taken" by private individuals or railroad companies.

The action of the Commissioner in dismissing the State's protest was correct, and the Immigration Land Company's purchase should be approved, in the absence of other objection.

The decision of the Commissioner is accordingly affirmed.

STATE OF MINNESOTA v. IMMIGRATION LAND CO.

Motion for rehearing of the Department's decision of June 29, 1916, 46 L. D., 7, denied by First Assistant Secretary Vogelsang, September 30, 1916.

FRIEDRICH v. DUCEPT.

Decided February 8, 1917.

TURTLE MOUNTAIN INDIANS-ALLOTMENT SELECTION-SEGREGATIVE EFFECT. The filing of a Turtle Mountain Indian selection, accompanied by the required certificate of the Indian agent or Indian Office as to the qualifications of the applicant (see Department instructions of August 2, 1915, in 44 L. D., 229), segregates the land from other disposition.

CERTIFICATE OF INDIAN AGENT-PRESUMPTION WHEN NOT FOUND.

When the contrary is not shown, it will be assumed that there has been compliance with the requirement that the Indian agent or the Indian Office shall furnish a certificate that the Turtle Mountain applicant is entitled to allotment.

DEPARTMENT INSTRUCTIONS OF AUGUST 2, 1915.

Under Department instructions of August 2, 1915 (44 L. D., 229), like segregative effect is given to allotment selections on the public domain under the fourth section of the General Allotment act of February 8, 1887 (24 Stat., 388), as is given under the Turtle Mountain Indian Act of April 21, 1904 (32 Stat., 189, 194).

HOMESTEAD APPLICATION IN CONFLICT WITH INDIAN ALLOTMENT SELECTIONEFFECT OF CANCELLATION OF SELECTION.

A homestead application for land segregated by an Indian allotment selection, and rejected for that reason, has no further vitality, and a later determination that the Indian was not qualified to take the allotment will not rehabilitate the homestead application, although the land becomes again subject to entry.

VOGELSANG, First Assistant Secretary:

Minnie Friedrich appealed from Commissioner's decision of May 9, 1916, rejecting her homestead application for the NE. 1, Sec. 28, T. 35 N., R. 56 E., M. M., Glasgow, Montana, because of conflict with Indian allotment selection made under the Turtle Mountain act of April 21, 1904 (33 Stat., 189, 194), in the name of William Francis Ducept.

February 25, 1910, Henry Ducept filed allotment application 08241 for his minor child, the said William Francis Ducept, which was suspended for nonmineral affidavit. Nothing further is shown upon the records of the local land office as to said application, and the same, with accompanying papers, appears to have been lost.

September 21, 1915, Minnie Friedrich filed homestead application for the land in question, which was suspended by the local land officers the day it was filed because of conflict with Indian allotment application 08241, and was rejected by said officers December 8, 1915. Appeal was taken by the homestead applicant to the General Land Office from this rejection December 8, 1915.

Nothing further appears to have been done in respect to the Indian allotment application until November 3, 1915, when, in response to inquiry of October 15, 1915, the General Land Office advised the local land officers that no such application had been received in that office. Upon request for instructions by such officers, the General Land Office required the filing of a certificate from the Turtle Mountain superintendent showing the qualifications of the minor child, William Francis Ducept, to take an allotment under the act of April 21, 1904, and nonmineral affidavit covering the NE. of Section 28, T. 35 N., R. 56 E., and a new allotment application on behalf of said child in lieu of the one lost. This requirement was fulfilled, and the superintendent's certificate and the nonmineral affidavit were both filed December 3, 1915. The certificate is dated December 1, 1915, and the affidavit August 3, 1910, showing as to the latter that some attempt must have been made to comply with the rule laid upon Henry Ducept as to the filing of such affidavit. The new allotment application in lieu of the original one that was lost was filed February 14, 1916, and was executed by Virginia Ducept as head of family on behalf of her minor child, William Francis Ducept.