The appellant has waived the fourth paragraph of his protest. That in all cases where application for water right for lands in private ownership or lands held under entries not subject to the reclamation law shall not be made within one year after the passage of this act, or within one year after notice issued in pursuance of section four of the reclamation act, in cases where such notice has not heretofore been issued, the construction charges for such land shall be increased five per centum each year until such application is made and an initial installment is paid. [Emphasis added.] The question presented is whether lands so owned by the State of South Dakota prior to their sale to an individual are within the scope of the above section as being "lands in private ownership." The farm unit plat embracing the N. NW. of said section 36 was approved March 27, 1912. No subdivision of that section into farm units appears upon that plat except as to its E.SE. 1, but upon the plat approved May 3, 1915, the section is subdivided into 80-acre units. Section 360 of the Political Code of South Dakota (Compiled Laws of South Dakota, 1910, page 93) provides: It shall be the duty of the board of school and public lands, on or before February 1st of each year, to direct the selections as nearly as may be practicable of not less than fifty thousand (50,000) acres, or more than seventy-five thousand (75,000) acres from the common school, endowment or indemnity lands of the state, to be offered for sale in any one year; provided, that it shall be left to the discretion of said board of school and public lands to defer sales during any one year if financial conditions should not be favorable to a satisfactory sale; provided, that if at any time when such directions is to be made there shall be in the state treasury or its depositories a sum in excess of one hundred thousand dollars ($100,000.00), proceeds of the sale of said land not loaned out upon interest, then the selection of said lands for that year shall be deferred for one year. Section 370 provides, in part: Not more than one-third of the lands of any class granted to the state for educational or charitable purposes shall be sold within the first five years, and not more than two-thirds of such lands shall be sold within the first fifteen years after the date of the vesting of title thereto in the state. No more than one-tenth of the lands granted by the act of congress of February 18, 1881, entitled "An act to grant lands to Dakota, Montana, Arizona, Idaho and Wyoming for university purposes," and vested in the State of South Dakota by section 14 of the act of congress of February 22, 1889, entitled, "An act to provide for the division of Dakota into two states, and enable the people of North Dakota, South Dakota, Montana and Washington to form constitutions and state governments and to be admitted into the union on an equal footing with the original states and to make donations of the public lands to such states," shall be offered for sale in any one year. 4587°-17-VOL 46-26 Section 59 of chapter 180, Laws of 1907 (Compiled Laws, page 716), provides, in part: No lands belonging to the state within the areas to be irrigated from works constructed or controlled by the United States, or its duly authorized agencies, shall hereafter be sold, except in conformity with the classification of farm units by the United States, and the title to such lands shall not pass from the state until the applicant therefor shall have fully complied with the provisions of the laws of the United States and the regulations thereunder concerning the acquisition of the right to use water from such works, and shall produce the evidence thereof duly issued. After the withdrawal of lands by the United States for any irrigation project, no application for the purchase of state lands within the limits of such withdrawals shall be accepted, except upon the conditions prescribed in this section. Lands owned by the State of South Dakota under its school land grant do not literally fall within the term "lands in private ownership or lands held under entries not subject to the reclamation law" as used in section 9 of the act of August 13, 1914, supra. Under the legislation of the State, several conditions must be present before they may be offered for sale, and, further, within irrigation projects of the United States, they can not be sold until the farm units have been established. The State has an important interest in these lands and its interest is entitled to consideration, so that the sale will be in harmony with its laws and made at a time when, under all the circumstances, it will prove beneficial to the fund to be used for common schools, without unnecessary delay, to the injury of the reclamation project. The purpose of section 9 was to induce private owners of lands, and entrymen, to promptly subject their lands to the construction, operation and maintenance charges, secure a general use of the water and rapidly place the lands in cultivation, to the benefit both of the United States and the water users. The State does not irrigate and cultivate its lands, but disposes of them to private individuals. Such individuals are unable to present any water right application until the State has offered the lands for sale, and the action of the project engineer would penalize the purchaser from the State, because the State officers, acting within the discretion conferred upon them by the State law, had not made an earlier sale. Such State lands are also not within the spirit of section 9 of the act of August 13, 1914, supra, but fall rather in the same category as unentered public lands of the United States. This allegation of the protest is well founded, and the decision of the Director as to it is reversed. Relative to the second allegation of the protest the record discloses that the demand is for operation and maintenance charges accrued for the years 1912, 1913 and 1914 at the rate of 60 cents per acre per annum, such charges for subsequent years not accumulating, in view of an order of the Reclamation Service dated December 6, 1916. This tract is embraced in the public notice of May 2, 1912, which directed that the lands be classified into four classes. Class A included all public lands entered on or before January 24, 1911, and all lands in private ownership held under trust deed or signed under contract with the Belle Fourche Valley Water Users Association on or before that date. Lands of class A were made subject to a building charge of $30 per acre of irrigable land, payable in certain installments. Class B included all lands embraced in class A, the entryman or owner being given the opportunity of making payments at a differently graduated scale than in class A. The building charge for class B was $35 per acre. Class C included all public lands vacant on and after January 24, 1911, and all lands in private ownership which on that date were not held under trust deed or were not signed under contract with the Belle Fourche Valley Water Users Association. Lands in class C were subject to a building charge of $40 per irrigable acre payable in certain installments. Class D was described as follows: Class D includes all lands in this unit now or hereafter owned by the State of South Dakota, and they shall be subject to the charges, limitations, terms and conditions as for lands of class A, if water-right application be made within two years of the date thereof. All lands in class D for which water-right application shall not have been made within the said period of two years, shall become subject to the charges, conditions and limitations imposed upon lands in class C. This land accordingly falls within class C as to construction, operation and maintenance charges. Paragraph 11 (B) of the public notice provides: For operation and maintenance for the irrigation season of 1912 and annually thereafter, until further notice, shall be 60 cents per acre of irrigable land, whether water is used thereon or not. For all lands in classes A and B the portions of the installments for operation and maintenance shall be due December 1, 1912, and annually on December first of each year thereafter, whether or not water-right application is made or water is used thereon. For lands of class C the portion of the first installment for operation and maintenance shall be paid at the time of entry or filing of water-right application; the portion of the second installment shall become due on December first of the following year, and subsequent portions on December first of each year thereafter. [Emphasis added.] Under the very terms of the public notice the tract was not subject to operation and maintenance charges until the filing of the waterright application. The action of the project manager was erroneous and the decision of the Director as to this feature of the protest is likewise reversed. As to the third allegation of the protest the appellant states. That the Reclamation Service will not make any ditches to make delivery of water to said tract. It is my understanding that the Policy of the Reclamation Service is to make delivery to each and every farm unit of Government land and to each and every tract of Privately owned land. I am informed that the school section takes the status of privately owned land, but no ditches run to or across said section 36. In order to get water to said section 36, it is neeessary that a ditch be constructed from the Beresford Lateral from the north on section 25. The Government is in much better position, and I consider it, its duty to construct such lateral and secure right-of-way therefor. For me to construct such a lateral across the private lands of others and damage their land and crops, would involve not only considerable expense but also might involve me in litigation. * It will be necessary to deliver water to three points on this land on account of its broken character. The survey for only one of these laterals has so far been made. The project Mgr informs me that no profile and final estimate of costs have so far been prepared for this survey but that his estimate of the probable cost of this lateral slightly less than half mile in length with seven or eight drops, will be about $300; the other two laterals not yet surveyed with no drops but the same length can be constructed in my judgment for about $100 to $125. The project manager reports that: No deliveries have been provided for State lands for the reason that said lands were not subdivided at the time the distributing systems were being constructed and it was impossible to determine what form the farmsteads would eventually take. And, further, that this office is not permitted to spend Government funds on lands already under Public Notice that will tend to increase the final cost to the United States. * 串 * * * the cost of making delivery to the tract of land in question will probably be about as stated in the appeal, but that the principal delivery (the one estimated to cost $300), serves two other 80-acre tracts of school land for which water right application has been made and which should assume at least $200 of the cost of construction of the delivery. The delivery of water upon the various irrigation projects is sometimes made upon the farm unit and sometimes at a point within a reasonable distance therefrom, according to the circumstances existing in each particular case. The question of the point of delivery must necessarily be left to the sound discretion of the local officers. of the Reclamation Service, and no abuse of that discretion is here present. Further, the construction charge of the project has now been fixed exclusive of the cost of these ditches and there is no other provision to defray the expense thereof. As to any right of way for such ditches over contiguous land which may be necessary, attention may be called to section 31, chapter 180, South Dakota Laws of 1907 (Compiled Laws, 1910, page 710) which provides: Any person, association or company who may have or hold any possession, right or title to any agricultural lands within the limits of this state shall be entitled to the usual enjoyment of the waters of the streams or creeks in said state and for the purpose of directing flood waters for irrigation or for stock purposes any person, association or company may build or construct dams across any dry draw or water course within the state and such person, association or company shall have the right of way through, and over any tract or piece of lands for the purpose of conveying said water by means of ditches or flume. The decision of the Director is in this respect affirmed. The matter is remanded for further proceedings in harmony herewith. INSTRUCTIONS. June 8, 1918. TURTLE MOUNTAIN INDIANS-HOMESTEAD ENTRY-ACT OF APRIL 21, 1904. A Turtle Mountain Indian who has received a patent in fee on his allotment, and thus become a citizen of the United States, may subsequently make a homestead entry upon the public domain, and it is immaterial, as regards such subsequent right, whether he satisfied his allotment right on lands within the former Turtle Mountain reservation or upon the public domain. VOGELSANG, First Assistant Secretary: The Department is in receipt of your [Commissioner of the General Land Office] letter of March 22, 1918, requesting instructions as to whether "a Turtle Mountain Indian, who has received a patent in fee on his allotment, thus having become a citizen of the United States, has the right to make a homestead entry on the public domain the same as a white citizen.” The proposition is clearly established that in taking an allotment in severalty from the tribal lands an Indian does not exhaust or in any wise affect his right as a citizen of the United States by virtue of section 6 of the act of February 8, 1887, to make a homestead entry of public lands (30 L. D., 375; 42 L. D., 192), and in principle no distinction can be made between a member of the Turtle Mountain band or tribe and a member of any other tribe of Indians. Nothing is found in the treaty of 1892, ratified by the act of April 21, 1904 (33 Stat., 189-194), to warrant any other conclusion, and members of this band of Indians who have received allotments on the reservation, should, therefore, be accorded the same rights on the public domain as are granted to other Indians who attain citizenship, without discrimination. This raises a question whether, as a citizen, the rights under the homestead law of a member of the band who has received a patent in fee for lands on the public domain under article 6 of the aforesaid agreement, are any different from those of a member of the band who has received an allotment on the reservation. In other words, for the purpose of determining their rights on the public domain, can the members of this band be divided into two classes, those who took allotments or homesteads on the reservation and those who made selection on the public domain. |