not state that he has not made an additional entry under any other act. Such proof should be supplied.

From original letters and copies of correspondence filed with the appeal, it appears that the affidavit required has been executed by Ewing, and was sent by him to the bank at Lincoln, Nebraska, and was returned to him with Barnes's unpaid check for $160. In a letter to applicant's attorneys, purporting to have been written by Ewing, through W. S. Walker, and dated March 8, 1901, he says: "The affidavit I still have as returned to me, and shall hold until I get my money, either in Boise bank or know that I have it in the Lincoln Bank.” If the soldier refuses to furnish the affidavit, the proofs required by the regulations may be supplied from other sources, but you should require a reasonable showing by the applicant that the soldier is entitled to the additional right of entry before the entry can be allowed.

Your decision is modified accordingly.

HOMESTEAD-SOLDIERS' ADDITIONAL-CERTIFICATE.

JOHN H. HOWELL.

Where it appears that a party has been given a mere power to locate a soldier's certificate of right to make additional entry, uncoupled with any interest therein, it is unnecessary for the present holder of such certificate, upon applying to locate the same, to furnish the affidavit of such party showing whether or not he now has any interest in the certificate.

Acting Secretary Ryan to the Commissioner of the General Land Office, (S. V. P.) September 9, 1901. (J. R. W.)

John H. Howell appealed from your office decision of June 28, 1901 requiring him to file the affidavit of Thomas Alsop, whether or not he had any interest in the certificate of right of additional entry issued January 24, 1880, in the name of Allen and Carrie Crawford, minor orphan children of Michael Crawford, for 85.63 acres, of which 5.63 acres remain unsatisfied.

The certificate of right having issued to one Kavanaugh, guardian of the minors, he afterward executed two powers of attorney to D. H. Talbot, both dated April 2, 1880, one giving him power

To receive the certificate acknowledging my said right, and to locate for me, and in my name, place and stead, at any land office in the United States such lands as I may be entitled to enter as additional to my original homestead.

No further power than to locate the right was conferred by this instrument, except a power of substitution. To that power Talbot, June 1, 1881, substituted Thomas Alsop, of Laramie, Wyoming.

The other power authorized Talbot or his substitute to locate the

land, take possession, sell, and convey it, on any terms to them meet, and

covenanting with my said attorney, his heirs or assigns, that I will, from time to time, and at all times hereafter, execute, acknowledge, and deliver, or cause to be executed, acknowledged, and delivered, such further and other conveyances, for the better assuring to my said attorney or his assigns the said described premises, as my said attorney or his assigns of the said described premises shall reasonably advise and require, giving, &c. This power of attorney is made irrevocable, and I

do hereby release unto my said attorney all my claims to any of the proceeds of any sale or lease of said premises; hereby ratifying and confirming whatever my said attorney, or his substitute may do in the premises.

To this power Talbot, June 1, 1881, in due form, substituted Walter Sinclair, of Laramie, Wyoming.

July 3, 1900, Walter Sinclair, by a bill of sale in the form of an affidavit, assigned the residue, 5.63 acres of the right, to John H. Howell, making oath that he is the owner and is the person who located the original certificate upon eighty acres, March 7, 1883. at Cheyenne, Wyoming, and who purchased it in good faith for full value from the original owner, and that he never used or sold the 5.63 acres residue of the certificate. The applicant Howell makes oath that he is owner. The power is much more full and manifestly a sale than that in Webster . Luther (164 U. S., 331, 333), in that the word "heirs" and the covenant for further assurances of title to the attorney, his heirs or assigns, appear in the power here in question. Under that decision it must be held that this power, to which Sinclair was substituted, evidences an absolute sale to him of the whole right.

The power to which Alsop was substituted was a naked power to locate, uncoupled with any interest, and indicates no right or interest. in him. An affidavit from him is therefore unnecessary.

Your office decision is reversed.

INDIAN LANDS-COMMISSIONS—ACTS OF JANUARY 14, 1889, AND JANUARY 26, 1901.

INSTRUCTIONS.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington D. C., September 6, 1901.

Registers and Receivers, United States Land Offices.

GENTLEMEN: Under date of August 17, 1901 [31 L. D., 72], the Department held that in case of moneys received on certain homestead entries made on agricultural Chippewa Indian land in the Crookston, Minn., land district, under the act of January 14, 1889 (25 Stats., 644), and thereafter commuted in pursuance of the provisions of the act of January 26, 1901 (31 Stats., 740), that:

The Register and Receiver at Crookston are not entitled to commissions on the moneys in question, either payable out of such moneys or out of the public moneys

of the United States, but that, upon the price of the land embraced in said entries as excess acreage and upon the price of the land involved in the commuted entries, said officers are, in the opinion of the Department, entitled to the commissions specified in the third paragraph of section 2238 of the Revised Statutes, the same to be paid by the entryman as therein provided.

This ruling applies to all homestead entries on ceded Indian reservations, affected by the act of May 17, 1900 (31 Stats., 179), and commuted, under the provisions of the act of January 26, 1901, above referred to.

You will, therefore, in all such cases require the entryman to pay, in addition to the Indian price per acre, two per cent on the price of the land as final commissions, and also a commission of two per cent. on the amount received for excess acreage.

Very respectfully,

Approved, September 13, 1901:

THOS. RYAN, Acting Secretary.

W. A. RICHARDS,

Acting Commissioner.

WICHITA AND COMANCHE, KIOWA AND APACHE LANDS-DISPOSITION AFTER EXPIRATION OF “SIXTY DAYS PERIOD.”

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., September 16, 1901.

Registers and Receivers, El Reno and Lawton, Oklahoma.

SIRS: By act of Congress approved March 3, 1901 (31 Stat., 1093), it was provided that the ceded Wichita and Comanche, Kiowa and Apache lands

shall be so opened by proclamation of the President, and to avoid the contests and conflicting claims which have heretofore resulted from opening similar public lands to settlement and entry, the President's proclamation shall prescribe the manner in which these lands may be settled upon, occupied, and entered by persons entitled thereto under the acts ratifying said agreements, respectively; and no person shall be permitted to settle upon, occupy, or enter any of said lands except as prescribed in such proclamation until after the expiration of sixty days from the time when the same are opened to settlement and entry.

And by proclamation of the President dated July 4th last, after providing for the manner in which these lands might be settled upon, occupied and entered during the sixty days period, it was further provided that

after the expiration of the said period of sixty days, but not before, any of said lands remaining undisposed of may be settled upon, occupied, and entered under the general provisions of the homestead and townsite laws of the United States in like manner as if the manner of effecting such settlement, occupancy, and entry had not been prescribed herein in obedience to law.

According to said proclamation this period of sixty days began on August 6, 1901, and as a consequence will expire at midnight of October 4, 1901. Thereafter all lands not having been entered under the plan provided for in said proclamation may, in accordance with the terms thereof, be settled upon, occupied, and entered under the general provisions of the homestead and townsite laws of the United States in like manner as if the manner of affecting such settlement, occupancy, and entry had not been prescribed in said proclamation in obedience to law.

While these lands will become subject to settlement immediately after midnight of the 4th, it will not be possible to make entry thereof until the opening of the respective land offices on the morning of the 5th of October next. It may and possibly will occur that at the time of the opening of the office on October 5th next a number of persons will have assembled at your office seeking to enter these remaining lands, and in order to avoid confusion it is directed that the applications of all qualified persons present at your office at nine o'clock a. m. on October 5th next. seeking to make entry of these lands, be received and treated as presented at nine o'clock a. m., and if there be more than one application for the same tract, they will be considered as simultaneously presented. Such of the persons present who may be acting as agents of honorablydischarged soldiers and sailors entitled to the benefits of section 2304 of the United States Revised Statutes, as amended by the act of March 1, 1901 (31 Stat., 847), will each be entitled to file but one soldiers' declaratory statement at that time. After the disposition of applications presented by persons present at nine a. m., which should be proceeded with at once, all other applications presented will be disposed of in the usual way, the time of actual presentation being duly noted on the application.

Lands containing deposits of ordinary brick clay are not mineral lands within the meaning of the mining laws, though more valuable for such deposits than for agricultural purposes.

Secretary Hitchcock to the Commissioner of the General Land Office,

(W. V. D.)

October 10, 1901.

(A. C. C.)

February 21, 1891, Fielding Bradford applied to make homestead entry for the SE. of the SE.Sec. 17, T. 3 N., R. 7 W., M. M.,

Helena. Montana, land district. The land being within the limits of the grant to the Northern Pacific Railroad Company, act of July 2, 1864 (13 Stat., 365), a controversy involving the same arose between Bradford and said company, the proceedings in which resulted in a decision of this Department, August 7, 1897 (unreported), wherein it was held that the land was excepted from the company's grant. Proceedings were subsequently had by other parties involving the land, which it is unnecessary to set forth in detail. It is sufficient to say that on July 14, 1899, Bradford was allowed to make homestead entry of said land.

July 31, 1899, Silas F. King et al. filed a protest against said entry, alleging that the land contains placer gold and a deposit of brick clay; that it is mineral in character; that the clay therein is valuable for the manufacture of brick; and that the land is more valuable for minerals than for agricultural purposes. A hearing was had at which all parties. appeared. On the evidence submitted the local officers found that the land does not contain mineral, but that a deposit of clay exists therein from which ordinary brick can be manufactured, and, when manufactured, can be sold at a profit in Butte City, Montana, near which place the land is situated; further, that the land is more valuable for the manufacture of brick than for agricultural purposes.

July 1, 1900, on appeal, your office affirmed the finding of the local officers, in that said land is non-mineral in character, from which decision protestants have appealed to the Department.

From the evidence submitted at the hearing the following facts appear:

1. That the land in controversy is of very little value for agricultural purposes.

2. That no substance heretofore regarded as mineral by the Department exists therein.

3. That said land contains a deposit of ordinary clay from which an inferior quality of brick have been manufactured, which have been used in the erection of ordinary buildings and in the construction of a sewer in Butte City, Montana, in the immediate vicinity of said land. 4. That the brick so made have been sold at a profit in Butte City. 5. That said land is more valuable for the manufacture of such brick than for agricultural purposes.

It is a matter of common knowledge that the deposit which is found upon the land is a substance which exists generally, in quantities more or less varying, throughout the entire Rocky Mountain region, and that lands where such substances exist are usually capable of producing agricultural crops.

The facts in this case, however, bring it clearly within the rulings in Dunluce Placer Mine (6 L. D., 761), and Blake Placer, decided January 17, 1889 (unreported), which are to the effect that lands contain