with the terms of the treaty of February 27, 1867; that on October 10, 1868, the Department approved the form of certificate showing that said railroad company, upon a full compliance with the stipulations of the treaty, would be entitled to demand and receive a patent for the unallotted lands belonging to the Pottawatomies, and directed a certificate to be prepared accordingly; that such a certificate was prepared and approved by the Department, and on October 20, 1868, receipt of the same was acknowledged by the attorney for the railroad company; that on February 5, 1869, by instructions from the board of directors, the attorney and chief engineer of the railroad company requested the cancellation of the original certificate and the issue, in lieu thereof, of separate certificates for each quarter section or fractional quarter section of land included in the purchase under the treaty; that under instructions from the Department, dated February 9, 1869, the original certificate having been canceled separate certificates were issued, and receipt of same was acknowledged by the attorney for the railroad company March 3, 1869; that a settlement was made with the railroad company, and on August 28, 1869, a schedule was submitted to the Department containing a description of the unallotted lands (338,766.82 acres) by legal subdivisions, as the same appeared on the tract books on file in the Indian Office, which purported to embrace all the lands of the Pottawatomie Indian reservation in Kansas at the date of the treaty; and that upon this schedule patent was issued September 16, 1873, to the railroad company. The island in question was not included in this or any other patent to the said company.

In view of the facts as herein set forth it was concluded by your office that, under the last proviso of the amended second article of the treaty of February 27, 1867, Emma L. Pape is entitled to a patent for the land in question, upon payment by her of the price fixed by said treaty, viz: $1.25 per acre.

Frank Level has appealed from your said office decision to this Department, it being alleged, inter alia, that the Atchison, Topeka and Santa Fe Railroad Company never made application to purchase the land in question, and therefore had no right or equity in said land; that the only lands purchased or pretended to have been purchased by the railroad company were included in the certificates and patents issued to said company, and this land is not included in said patents; that the railroad company never having made application for said land, and no certificates or patents having been issued therefor, Sage and each of the grantees in the pretended chain of title took with notice; and that the land in question, being an island and never having been surveyed until the appellant made application therefor, neither Pape nor her grantors could acquire any rights until after such survey had been made and a plat thereof filed in the local office.

The first article of the treaty of November 15, 1861, supra, authorized the Commissioner of Indian Affairs to cause the whole of the

Pottawatomie Indian reservation to be surveyed in the same mauner as the public lands are surveyed. For some reason this island was never surveyed until after application therefor was made by Frank Level, though reference is made to it in the field notes, showing that it was in existence at the date of the survey of the surrounding lands. It therefore remained unallotted Pottawatomie land which the Atchison, Topeka and Sante Fe Railroad Company had been given preference right to purchase, but which purchase they did not and could not complete on account of the same never having been surveyed.

According to the language of the amended second article of the treaty of February 27, 1867, supra, it was the evident intention to give to the Atchison, Topeka and Santa Fe Railroad Company the privilege of purchasing from the Pottawatomies all of their unallotted lands, with certain specified exceptions; and it was provided that the Secretary of the Interior, upon the filing of the bond for the purchase and payment of these lands, should issue to said railroad company "certificates of purchase, and such certificates of purchase shall be deemed and holden, in all courts, as evidence of title and possession in the said railroad company to all or any part of said lands, unless the same shall be forfeited as herein provided." The land in question was not included in any certificates of purchase issued to the company, nor was it embraced in the schedule of lands on which patents were issued to said company. The reason of this omission is obvious. The tract-books from which the schedule was made up contain only surveyed lands. The railroad company therefore, is without that evidence of title provided for in the treaty, in the form of a certificate of purchase, to the part of the unallotted lands in question.

The decision of your office, recommending the patent issue to Emma L. Pape, was evidently based upon the theory that the Atchison, Topeka and Santa Fe Railroad Company, having complied with the requirements of the treaty for the purchase of all of these unallotted lands, were justified in believing that they had the right to sell the land in question, and that the purchaser thereof from said company was of the same belief. The Department is disposed to agree with this view, but it does not concur in your office opinion that Emma L. Pape is entitled to patent for this land under the last proviso of the amended second article of the treaty. That proviso refers only to lands for which certificates of purchase were issued to the railroad company, and which the company may have failed to pay for. It is conceded that the railroad company complied, within the specified time, with all the requirements of the treaty as to those lands for which certificates were issued; consequently, as the proviso contemplates a forfeiture on the part of the company in the manner suggested, it is inapplicable to the case under consideration. The Department is of opinion that Emma L. Pape must secure her title, if at all, through the railroad company. It would seem, under all the circumstances of the case, that

the only obstacle in the way of conferring such title by the company is the absence of evidence of a title in them. The question, therefore, arises as to whether, by the terms of the treaty limiting the time for payment, the railroad company is now debarred from making payment for and perfecting title to the island in question.

As previously set out herein it was not due to the fault of the railroad company, but failure on the part of the government to have this land surveyed, that said land was not paid for and included in the patents issued to the company. The records of the Department, in addition to the facts set forth in your office decision, disclose that on the settlement with the railroad company they were allowed a rebate on account of excess of interest paid for the years 1869, 1870, 1871 and 1872, showing that their bond was for a sum larger than the number of acres for which the company completed purchase and secured patents under the treaty.

Until this island was surveyed the railroad company could not know what they were required to pay for the same. They secured the right to purchase this land by fully complying with the treaty in other respects. That treaty gave this company the privilege of purchasing the whole of the unallotted lands belonging to the Pottawatomie Indians at the date of said treaty, and the company can not be held to have forfeited that right. It was the duty of the government to have this land surveyed; hence, until it was surveyed and thus placed in such condition that the company might exercise their privilege of purchas ing the same, the five years limitation as to payment provided by the treaty could not reasonably be held to run against the company as to this particular tract. The said company having attempted to convey this land, without having paid therefor, your office will proceed to notify the company that they will be afforded a reasonable time, to be prescribed by your office, within which to consummate their purchase by paying for this land; and in the event of their making the required payment for the land, patent will issue to said company in regular form. If the said company should fail to thus consummate their purchase within a reasonable time, your office will make report to this Department.

It is apparent from what has been set out herein that the land in question has never been public land subject to homestead entry. The entry of Frank Level, at whose instance the land was surveyed, was therefore properly canceled as having been erroneously allowed. He could gain no rights by such entry, although the allegations contained in his appeal may be substantially true.

Your office decision of August 28, 1897, with modification suggested herein, is hereby affirmed.

RAILROAD LANDS-RIGHT OF PURCHASE-HOMESTEAD.

COOPER v. SCHERRER.

The amendment of section 3, act of September 29, 1890, by the act of January 23, 1896, whereby actual residence as a pre-requisite to the right of purchase is not required if the lands have been fenced or improved, can not operate to divest the right of an intervening homesteader acquired under the original act. Secretary Bliss to the Commissioner of the General Land Office, February (W. V. D.) 21, 1898. (E. F. B.)

I am in receipt of your letter of February 3, 1898, resubmitting for consideration by the Department, in view of the amendatory acts of January 23, 1896 (29 Stat., 4) and February 18, 1897 (29 Stat., 535) the application of John L. Cooper to purchase the W. of NW. 4, NE. 4 NW. and NW. NE. Sec. 21, T. 1 N., R. 13 E., W. M., The Dalles, Oregon, under the third section of the act of September 29, 1890 (26) Stat., 496).

It appears from the record that John L. Cooper filed in the local office at The Dalles, Oregon, notice of intention to purchase said tract under the third section of the act of September 29, 1890, but failed to exercise his right of purchase within the time limited by the act of September 29, 1890, and as extended by the act of January 31, 1893 (27 Stat., 427.)

On February 24, 1894, Markus Scherrer made homestead entry of the land in controversy. Cooper contested the entry alleging that he was in possession of the land at the date of the passage of the act of September 29, 1890, and had improved the same with the intention of purchasing the land from the railroad company when it earned it and that it had not been settled upon by Scherrer nor cultivated by him.

The Department by decision of February 10, 1896 (22 L. D., 127), affirming the decision of your office, held that as Cooper did not have possession of the land under a deed, written contract, or license from the railroad company, his right to purchase could only be based on the second paragraph of the third section of the act of September 29, 1890, which right is limited to two years from the passage of the act, which was extended to January 1, 1894, by the act of January 31, 1893, supra. Having failed to exercise his right of purchase within the time required, his contest was dismissed, and as no testimony was introduced at the hearing touching the allegation that Scherrer had not settled upon or cultivated the tract no action was taken thereon.

As Cooper did not have possession of said lands under a deed, written contract or license from the company, he did not come within the first class provided by section 3 of said act, and as he had not estab lished a residence on the land claimed by him he did not come within the second class, provided for by said section. This was the law in force at the date of the rejection of his application and the allowance

of the homestead entry of Scherrer. The amendment of said section made by the act of January 23, 1896, supra, which provides "that actual residence upon the lands by persons claiming the right to purchase the same shall not be required where such lands have been fenced, culti vated, or otherwise improved by such claimants" will not operate to divest the right acquired by the homestead settler under the act as originally passed, and prior to said amendment.

If however, it is true that Scherrer has not complied with the homestead law, which may be determined by a contest, I see no reason why Cooper, upon the successful determination of such contest might not renew his application to purchase under said section as amended.

HADLEY . WALTER.

Motion for review of departmental decision of September 22, 1897, 25 L. D., 276, denied by Secretary Bliss, February 21, 1898.

NATURALIZATION-RAILROAD GRANT-SECTION 5, ACT OF MARCH 3,

1887.

NEILSEN v. CENTRAL PACIFIC R. R. Co. ET AL.

A declaration of intention to become a citizen filed before a clerk of a court in 1868 (prior to the revision of the United States Statutes) is valid, and qualifies, in the matter of citizenship, the person taking such action, as a claimant under the settlement laws.

The settlement claim of a qualified pre-emptor, existing at the date of the attachment of rights under a railroad grant, excepts the land covered thereby from the operation of the grant.

Rights under a pre-emption filing are forfeited by long continued failure to assert the same in the manner provided by law.

The fact that a railroad company may have known of the existence of a settlement claim that covered a tract of land at the date of its sale by the company is not material in determining the right of purchase under section 5 act of March 3, 1887, if the purchaser was not at such time apprised of said claim.

In the exercise of the right to perfect title under said section, it is not material whether the purchase from the company was made before or after the passage of the act, if made in good faith, believing the title to be good, and before the land was held to be excepted from the grant.

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

21, 1898.

An appeal has been filed on behalf of the Central Pacific Railroad Company from your office decision of August 15, 1895, holding that the SE. of Sec. 29, T. 10 N., R. 2 W., Salt Lake City, Utah, was excepted from the operation of the grant made by the act of July 1, 1862, 12 Stat., 192, and July 2, 1864, 13 Stat., 358, and directing the cancella