consent, and in other sections, that all Chippewa Indians in Minnesota except those on the Red Lake reservation should be removed to the White Earth reservation, that allotments should be made to the Red Lake Indians on the Red Lake reservation and to all others upon the White Earth reservation, and that all allotments theretofore made to any Indians upon the White Earth reservation should be ratified and confirmed, with a further proviso that any Indian residing upon any of said reservations might, in his discretion, take his allotment under said act on the reservation where he lived at the time the removal therein provided for should be effected, instead of being removed to, and tak ing his allotment on, the White Earth reservation.

The foregoing statement contains all the provisions of said act affecting the question under consideration, and it will be seen that none of them provides for allotments to be thereafter made to Indians of the Red Lake reservation of land within the portion that might be ceded. Section 1, to which reference is made in the note of reference, relates only to allotments theretofore made.

A commission was appointed, as directed in said act, and secured agreements with the various bauds of the Chippewa Indians. The report of this commission, giving in detail their proceedings and the agreements made, is found in H. R. Ex. Doc. No. 247, 51st Congress, 1st session.

The Red Lake Indians ceded all their interest in so much of the Red Lake reservation as was not included within certain described boundaries,

which said lands embraced within the foregoing boundaries have been reserved by the commissioners appointed under said act, and as therein authorized, for the purpose of making and filling the allotments therein provided for.

This cession was made without reservation of any kind as to the ceded lands, and there is no provision in the formal agreement for the protection of any Indian who might have made settlement or improvements upon these ceded lands. I find nothing in the first section of said act, or elsewhere in it, that authorizes this Department to allot the land in question to the Indian claimant, even though she may have made improvements thereon prior to the date of said act.

The allotment application is, however, made under the fourth section of the act of February 8, 1887 (21 Stat., 388), as amended by the act of February 21, 1891 (26 Stat., 794). The Commissioner of Indian Affairs discusses the applicant's right under that law, and I have deemed it proper to examine that question, although the question submitted to me is limited in the note of reference to her rights under the act of 1889. The act under which the allotment application was made, commonly known as the "general allotment act," provides that when any Indian not residing upon a reservation, or for whose tribe no reservation has been provided, "shall make settlement upon any surveyed or unsurveyed lands of the United States not otherwise appropriated," he

shall be entitled to have the same alloted to him. Prior to the cession under the act of 1889, these lands were appropriated to use as an Indian reservation, and were not therefore of the class contemplated by said fourth section of the act of 1887, under which this application is made. Whether this Indian applicant is within the terms of said section, I have not discussed, because no facts are presented in the papers now before me upon which a conclusion as to that question could be based.

Said act of 1889 not only provided for procuring the cession of land, but also directed the manner in which the lands thus ceded should be disposed of. It was directed that they should be surveyed and classi fied as "pine lands" and "agricultural lands," that the pine lands should be appraised and sold at public auction to the highest bidder, and that the agricultural lands should be disposed of to actual settlers under the provisions of the homestead law, with the added proviso that such settler should pay therefor the sum of one dollar and twenty-five cents per acre. The money realized from the sale of said lands, after the payment of expenses, was to be placed in the United States Treas ury to the credit of said Indians.

Soon after this cession was made the State of Minnesota claimed the swamp lands within the ceded portion of the Red Lake reservation as inuring to her under the grant of swamp and overflowed lands, but the decision of this Department was adverse to the claim thus made. (State of Minnesota, 22 L. D., 388.) It was there held that the ceded lands did not become public lands of the United States in the sense that they might be taken for any other purpose than that specified in said act of January 14, 1889. The decision of the Department referred to by the Commissioner of Indian Affairs as sustaining his conclusion that these lands are not subject to allotment, is evidently one made in a case which arose in connection with the ceded lands of the Pottawatomie Indians, in Oklahoma. It was directed by act of Congress that those ceded lands should be disposed of to actual settlers under the homestead and townsite laws, with the added proviso that each settler should pay for said lands one dollar and fifty cents per acre in addition to the fees provided by law. It was held that those lands were not subject to allotment to non-reservation Indians under the fourth section of the act of 1887 (David Trenkle, 13 L. D., 310).

After careful consideration of the matter, I am of the opinion that this land can not, under existing law, be allotted to this Indian claimant either under the act of January 14, 1889, or under the allotment act of 1887, under which her application was made.

Approved, February 28, 1898.

C. N. BLISS, Secretary.

RAILROAD GRANT-STATUTORY WITHDRAWAL-ORDER OF RESTORA

TION.

PERRIN ET AL. v. NORTHERN PACIFIC R. R. Co.

The withdrawal on general route, under the grant to the Northern Pacific, is not defeated by an erroneous order of restoration made by the General Land Office. Secretary Bliss to the Commissioner of the General Land Office, February (W. V. D.) 28, 1898. (L. L. B.)

The record in this case shows that on November 27, 1895, Marie Perrin made homestead entry No. 967, for lots 5, 6 and 7, Sec. 16, and lots 7, 8 and NE. of NE. 4 of Sec. 17, T. 46 N., R. 1 W., alleging settlement in September, 1885.

homestead entry No. 983, for SE.Sec. 15, T. 46 N., R. 1 On the same day Cæsar H. for lots 9, 10, 11, 12, Sec. 17,

December 2, 1895, Henry Rochat made lot No. 2, Sec. 22 and lots 5, 6 and W. W., alleging settlement June 16, 1885. Stauffer made homestead entry No. 981 T. 46 N., R. 1 W., alleging settlement June 15, 1887. All the tracts are situated in the Cœur d'Alene land district, Idaho.

These lands are within the primary limits of the grant to the Northern Pacific Railroad Company and were included in the limits of the withdrawal upon the map of general route of said road filed February 21, 1872, and also within the withdrawal on definite location, the order for which was not made until January 7, 1888. In the interim, to wit, on the 22d of March, 1886, a diagram prepared in your office and erroneously purporting to show an amended forty mile limit to the railroad grant was forwarded to the local office at Coeur d'Alene, Idaho. By this diagram all these tracts fall without the limit of the grant, and the local officers were directed by your office to be governed by said diagram in allowing entries.

Counsel for the entrymen claim that they are entitled to the land by reason of the amended diagram of the forty-mile limit forwarded March 2, 1886, and the order of the Commissioner directing the local office to restore to settlement, accept filings, etc., for all lands shown by said diagram to be beyond the limits of the grant. Your office decision awards the land to the company.

The questions necessary to a determination of this case were settled in the case of Pritchard v. Northern Pacific Railroad Company (20 L. D., 498), in which it was held that:

For such restoration there was clearly no authority of law and the rights of the company in the premises can not be avoided by reason of said error on the part of your office.

Counsel for homestead claimant says that:

In the case of Bernard et al. v. Northern Pacific Railroad Company (departmental decision September 3rd, 1895), the land there involved was in this district, and in precisely the same situation as this land in reference to diagrams, withdrawals, etc.

In that case the land was awarded to the homestead claimant.

It is sufficient to say that the attention of this Department was not called to the withdrawal on general route of February 21, 1872, in the Bernard case, your office decision in said case being based on the withdrawal on definite location, January 7, 1888. This would seem to be a case in which the company might be requested to relinquish, under the provisions of the act of June 22, 1874 (18 Stat., 194), upon the filing of which they would be entitled to select other lands within the limits of their grant. Upon the refusal of the company to so relinquish, however, your office decision cancelling the entries as to the lands embraced in the odd-numbered sections must be affirmed.

INDIAN LANDS-ADDITIONAL STATION GROUNDS.

GULF, COLORADO AND SANTA FE R. R. Co.

In the disposition of applications for additional station grounds under the act of April 25, 1896, the Secretary of the Interior must first determine the question as to the necessity for taking such ground, and, thereafter, if the company's maps of definite location are approved, proceed as provided by said statute to settle the question of compensation.

A statute that provides for action on the part of the Secretary of the Interior "after allowing opportunity for all parties in interest to be heard before him,” does not require such officer to personally hear the witnesses testify and listen to oral arguments, if all parties have notice, and are permitted to submit evidence and written arguments that are considered by him.

Assistant Attorney-General Van Devanter to the Secretary of the Interior

I am in receipt, through reference of the Honorable Acting Secretary, under date of February 12, 1898, for opinion, of a letter from resident counsel for the Gulf, Colorado and Santa Fe Railroad Company, relative to the application made by said company, under the provisions of the act of April 25, 1896 (29 Stat., 109), for additional station grounds at Dougherty and Ardmore, in the Chickasaw Nation, Indian Territory.

In connection with said letter I have considered reports made by the Commissioner of Indian Affairs under date of January 17, and February 4, 1898, relative to said application for additional grounds. From these papers it appears that upon the applications in question hearings were ordered by the Indian Office before the United States Indian agent of the Union agency, in order to ascertain the necessity for the use of such additional grounds by the company; whether public interests would be promoted by the use of the additional lands, and the question of compensation to be paid both to the tribe for the lands applied for and the damage sustained by the individual occupant of such lands.

At the hearings the tribe does not appear to have been represented. The company it would appear has made a satisfactory adjustment

with the individual occupants; but the tribe protests against the use of further lands by the company.

It is claimed on behalf of the tribe that the location of the road in the first instance was in violation of treaty rights with the Nation and that the granting of additional lands would be a further violation; that there is no necessity for the use of additional lands by the company, and if authority should be granted that the tribe should receive at least $100.00 per acre.

The question as to the necessity for the use of the additional lands applied for by the company is not passed upon by the Indian Office, but the entire record made in each case is forwarded with a statement that

Said act of April 25, 1896, provides that if the tribe shall not be satisfied with the compensation therein provided, and the same cannot be amicably determined, the amount to be paid by the company to the tribe and the necessity for the taking of the lands shall be ascertained in the same manner as is prescribed by section three of the act with respect to the compensation that shall be paid to the individual occupants of the land.

Section 3 provides that where the compensation cannot be agreed upon between the company and the individual occupants, the company may apply to the Secretary of the Interior, who shall thereupon appoint three disinterested referees who shall determine the matter. In case the referees cannot agree, then any two of them may make the award.

In view of these provisions of the act, it seems to be necessary for you to appoint three disinterested referees, who shall determine the necessity of the company for the taking, and the amount that shall be paid the tribe for the lands involved, and I accordingly recommend that such action be taken.

It is in this condition that the matter is referred to me for opinion, without specification of the particular points upon which my opinion is desired.

It would seem from the letter bearing the reference that the question first to be determined is one of procedure.

By the first section of the act of April 25, 1896, it is provided: That any railroad company operating a railroad in the Indian Territory may acquire the right to use such additional ground as may be necessary for railway purposes at stations now existing, or for the establishment of new stations or depots, by making it appear to the Secretary of the Interior that such additional ground is necessary for railway purposes, and that the convenience of the people and the public interests will be promoted thereby.

This section clearly makes it your duty in the first instance to determine the question as to the necessity for the taking of such additional ground.

The second section provides:

That the Secretary of the Interior may, when convinced that such application is proper, and after allowing opportunity for all parties in interest to be heard before him, grant the use of such additional lands held by the Indians in common as may be necessary for depot purposes; but before taking possession of and using such lands the railroad company shall deposit with the treasury of the tribe to which the lands belong compensation in cash at the rate of twenty-five dollars per acre: Provided, That if such tribe shall not be satisfied with the compensation herein provided, and the same can not be amicably determined, the amount to be paid by such railroad company to such tribe and the necessity for such taking shall be ascertained in the same manner