be sold, leased or in any manner alienated without the consent of the President.

It is clear that the lease does not fall within the provisions of this act. The legislation has reference to allotments, made under the act of February 8, 1887 (24 Stat., 388), or other acts of Congress, where the title in fee has not passed to the allottees and does not embrace cases like the one at bar, where the title in fee has passed from the United States to the allottee.

The term of a lease permitted under the act of June 7, 1897, for business purposes, can not exceed five years, and this limitation as to the term of the lease is not the only limitation, as the Indian lessor must be one who by reason of age or disability can not personally and with benefit to himself occupy or improve his allotment or any part thereof. If this statute operates in a case like the one now under consideration, the lease would be subject to attack, not only because the term of the lease extends beyond the statutory limitation of five years, but for the further reason that there is no showing that the lessors are, on account of age or disability, unable to successfully occupy or improve the allotment of their ancestor.

But the statute does not apply to the case at bar. The Indian lessors are not allottees or heirs of an allottee. They are not occupying the position of heirs of an "allottee of Indian lands" under any act of Congress, but are heirs of a patentee, whose patent was issued not by authority of an act of Congress, but pursuant to the terms of a treaty. The provisions of such treaty have not been abrogated by the act of Congress referred to, nor by any act of Congress. The statute mentioned that of June 7, 1897 (30 Stat., 85)-is a reiteration of the policy of Congress relating to leases of Indian allotments in severalty, and its language is similar to antecedent legislation enacted as supplementary to the act of February 8, 1887, allotting lands in severalty to certain reservation Indians (24 Stat., 388; 28 Stat., 304, 900; 29 Stat., 340). It had reference to allotments where the title remains in the United States in trust for the Indians, for the statutory period, or for such additional period as the President may, by virtue of an allotment statute, impose; it has no application to a lease like the one submitted, executed by the heirs of an Indian patentee to whom the title has passed from the United States by a patent issued under the solemn provisions of a treaty.

The prohibition of alienation, under the terms of the treaty, is one which the President has seen "fit to impose," using the language of the treaty, and is expressed in the patents which convey the title in fee, issued to the Chippewa Indians residing on the Red Cliff Indian reservation, and who are those with whom the treaty was made and whose rights are secured thereby. It inhibits the Indian patentee from selling, leasing, or in any manner alienating his lands without the consent of the President. While this is a provision in restraint of aliena

tion it necessarily implies that the patentee has the power to sell, lease, and convey the lands patented with the consent of the President.

I have, therefore, to advise that, in my opinion, the lease submitted will be valid upon the approval of the President. The lease is also by its own terms conditioned upon your approval.

If it receives the joint approval of the President and of the Secretary of the Interior, it will, in my opinion, be valid.

Approved January 17, 1898,

C. N. BLISS, Secretary.

JACKSON ET AL. v. GARRETT.

Motion for rehearing denied by Secretary Bliss, January 17, 1898. See 25 L. D., 273.

RAILROAD GRANT-INDEMNITY-FORFEITED LANDS.

UNION OIL COMPANY.

The order of November 22, 1897, suspending action relative to the right of the South ern Pacific Company to make indemnity selections within the forfeited primary limits of the Atlantic and Pacific grant, revoked, and directions given with respect to the disposition of lands in said limits.

Secretary Bliss to the Commissioner of the General Land Office, January (W. V. D.)

18, 1898.

(F. W. C.)

November 22, 1897, the Department, on the application of the Southern Pacific Railroad Company, issued an order (25 L. D., 393), directing your office to suspend action upon that part of departmental decision of November 6, 1897, on review (25 L. D., 351), relating to the question of the right of the Southern Pacific Railroad Company to make indemnity selections within the forfeited primary limits of the Atlantic and Pacific grant. The purpose of this order of suspension was to withhold action upon that particular portion of said departmental decision of November 6, 1897, during the pendency, in the supreme court, of proceedings to obtain a rehearing and reconsideration of a prior decision therein, upon which the departmental decision now in question was based.

Since the issuance of said order of suspension the Southern Pacific Railroad Company has presented to the supreme court its petition for rehearing in the case named and that petition has been considered and denied, so that the decision of the court cited in the departmental decision has now become final. The said order of suspension of November 22, 1897, is hereby revoked and the application of the Southern Pacific Railroad Company, which was therein treated as a motion for re-review, is hereby denied.

In so far as departmental letter of November 8, 1893, in answer to

your office letter of October 25, 1893, operated to defer the opening to entry of the lands embraced in what was then known as suit No. 184 (which is the one recently decided in the supreme court, as herein before stated) it is hereby recalled, and you will proceed as theretofore directed in departmental letter of July 15, 1893, relating to these lands.

SECOND CONTEST-RES JUDICATA—JURISDICTION.

SEIXAS v. GLAZIER.

A second contest, or second hearing on the same charge is rarely permitted, but the mere fact that a charge against an entry has formed the basis of a contest, which failed for want of sufficient proof, will not, in itself, preclude the Land Department from further consideration of the same matter, if the legal title to the land still remains in the government, and it is made to clearly appear that adherence to the former finding, or decision, will lead to the patenting of public land in violation of express provisions of law.

Secretary Bliss to the Commissioner of the General Land Office, January (W. V.D.)

17, 1898.

(W. A. E.)

The Department is in receipt of your office letter of May 11, 1897, returning, with evidence of service, the motion for review, entertained April 24, 1897, of departmental decision of January 30, 1897, in the case of Florian Seixas v. Henry E. Glazier, involving the NW. of Sec. 11, T. 19 N., R. 2 W., Guthrie, Oklahoma, land district.

The history of the case, briefly stated, is as follows:

On May 3, 1889, Glazier filed soldier's declaratory statement for the above described tract, upon which he made homestead entry on October 2, 1889.

On August 3, 1891, Seixas filed affidavit of contest alleging that Glazier had made said entry for and in behalf of the Cherokee Land and Investment Company, and for its use and benefit; and that the entryman has never established his residence upon said tract.

A hearing was duly had and resulted in a decision by the local officers in favor of the defendant.

On appeal, your office affirmed the action of the register and receiver, and on further appeal the Department on July 2, 1894, affirmed the decision of your office and dismissed the contest.

On May 27, 1895, Glazier, after due publication, submitted final proof in support of his entry; and on the same day Seixas filed a protest against the acceptance of said proof, alleging that

the said Henry E. Glazier entered said land as a homestead for the use and benefit of the Cherokee Land and Investment Company, of which said Glazier was the President, and that the improvements made by said Henry E. Glazier, or caused to be made by him, or pretended to be made by him, were in fact made or caused to be made by the said Cherokee Land and Investment Company for their use and benefit. 12209-VOL 26-4

With this protest Seixas filed certain papers as follows:

First, an alleged copy of a contract, entered into on the first day of August, 1889, between twelve persons therein named, of whom Henry E. Glazier was one, associating themselves together into a company for the purpose of locating and building a town or city in Oklahoma, to be known as Cherokee City. Three tracts are named as part of the capital of said company, the tract in controversy being one. Henry E. Glazier is named as president of the company for the first six months after its organization.

Second, an alleged copy of a report made to the members of the company by Glazier, on January 24, 1890, in which he details the work done and expenditures made on behalf of the company, upon the tract in controversy, as well as upon the other tracts.

Seixas further alleged in an affidavit attached to his protest that during the trial of his contest against Glazier's entry he used every effort to prove the existence of the contract above referred to, but through perjury and misrepresentation, the said Henry E. Glazier succeeded in producing a preponderance of the evidence to the contrary; that affiant is informed and has good reason to believe that during the month of January, 1894, his attorneys succeeded in procuring a copy of said contract, and of a report, which copies are attached to his protest and made a part thereof; that he believes he can produce the original report.

The local officers refused to reopen the question as to whether Glazier had made this entry for his own use and benefit, or for the use and ben. efit of the Cherokee Land and Investment Company, on the ground that that matter had been adjudicated and determined by final decision of the Department. Seixas was, however, permitted to cross-examine the entryman and his witnesses on the questions of residence, improvements, etc.

On June 26, 1895, the local officers dismissed the protest and approved the final proof, whereupon Seixas appealed to your office, which, by letter of April 18, 1896, affirmed the action of the register and receiver. On further appeal, the Department, on January 30, 1897, affirmed the action of your office, on the ground that the question attempted to be raised by the protestant is res judicata.

Motion for review of said departmental decision was filed and entertained, as above stated, and is now here for consideration.

On June 25, 1897, subsequent to the filing of the motion for review, the attorneys for Seixas forwarded to the Department what purports to be the original report made by Glazier to the members of the company on January 24, 1890. The identity of this report is sworn to.

That part of the report material to the present inquiry reads as follows:

I have the honor to submit this my report as president of your syndicate showing briefly the action and disposition of your matters entrusted to my care.

I have further to report that I have expended the following sums in improving the north west quarter Sect. 19-12-2 W., filed on by the writer.

Cost me 20.00 for transportation for my daughter in supporting homestead claim....

22.50

$485.20

These figures does not include anything for my own time and services. I have spent eight months time performing all kinds of labor necessary for the interests of the company and by so doing neglected my own business, sacrificing and losing not less than $2000, but as this is not a matter of charge, I will only add that in all ages and countries the laborer is worthy of his hire. My services were reasonably worth for the nine months $900.00.

To this I have also lost my further right to use my homestead entry and advantage of service in the army, which is worth several hundred dollars. You will readily see that I have met all expenditures, including board bills, surveying, and in protecting interests of company. The North West Quarter 11-19-2 W., on which I have filed, ought to be reasonably worth $3000.00 or will be worth that without much more additional expense, and will increase in value yearly.

The record in the original contest between Seixas and Glazier has been called for and examined for the purpose of throwing light on the present protest and enabling the Department to arrive at a satisfactory conclusion.

It appears that at the original hearing the attorneys for Seixas introduced the contract above referred to, and that the same was identified by Glazier as well as by other members of the company. The attorneys then asked that the contract be copied into the record, which was done. The original, that is, the paper identified by Glazier and others, is not found with the record, and was apparently not filed, the attorneys for Seixas seemingly relying solely on the copy introduced into the record. In this contract three tracts are named as part of the capital of the company, the tract in controversy being one. The secretary of the company, testifies that he wrote in the description of this tract as Glazier had agreed to put it in, and it was generally understood among the members of the company that said tract was to be included. Glazier admits having signed the contract, and says it was the understanding that the Reed brothers should furnish two quarter sections, and Black (the vice president) and himself should furnish one quarter section. He denies, however, that it was ever his intention to put in the tract for which he had made homestead entry, or that he authorized the secretary or any one else to write the description of said tract in