lands ceded to the United States by the Comanche, Kiowa, and Apache tribes of Indians in the Territory of Oklahoma.

With the communication of November 15 a proposed letter of instructions to the local officers having jurisdiction in the premises, on the subject of receiving applications for patent to mining claims, is submitted for the consideration of the Department.

The communication of November 22 is accompanied by a letter of November 16, 1901, addressed to your office by the register of the local office at Lawton, Oklahoma, wherein it is stated, in substance, that numerous notices of mineral locations have been filed with the Register of Deeds of Comanche county, Oklahoma, covering lands within the limits of the city of Lawton, which have been purchased from the government by lot owners in said city: that the entire city is practically covered by such mineral locations, and clouds upon the titles of lot owners have thus been created, which have become a source of great annoyance, and are calculated to injuriously affect the business interests of the city.

The register asks that he be advised as to what effect, if any, the mineral claims thus asserted have or may have upon the property rights of lot owners in said city.

You state that numerous letters are being received by your office. ́. calling attention to the conditions reported by the register, and, without recommendation, you submit the matter for the consideration of the Department.

The provision of the statute referred to is as follows:

That should any of said lands allotted to said Indians or opened to settlement under this act contain valuable mineral deposits, such mineral deposits shall be open to location and entry, under the existing mining laws of the United States, upon the passage of this act; and the mineral laws of the United States are hereby extended over said lands.

In an opinion by the Assistant Attorney-General for this Department, dated October 28, 1901, wherein said provision was considered and construed, it was held, in substance, (1) that lands which have been allotted to Indians, or lands to which a homestead entryman has acquired fixed and vested rights by reason of his compliance with the homestead laws, are not subject to the mining laws or to mineral exploration and entry; (2) that from the time of the passage of the act the body of lands which were to be allotted or opened to settlement under the act were subjected to the mining laws, and to mineral exploration and entry, so far as the same should be found to contain valuable mineral deposits; (3) that such lands were not always to be subject to the mining laws, or to mineral exploration and entry, but, like other lands, only so long as they should remain free from any vested right of ownership in an individual, Indian or white; (4) that upon their allotment in severalty, or upon title thereto being earned

by a homestead entryman by compliance with the homestead law, the lands allotted, or embraced in a homestead entry, cease to be subject to said mineral provision.

There can be no question that the principles stated in said opinion are applicable to lands as to which vested rights of ownership have been acquired under the townsite law, as well as to lands which have been allotted to Indians, or which have been earned by entrymen under the homestead law.

These principles are in entire harmony with those long recognized and uniformly applied by the land department in the administration of the public land laws generally. In the case of Kern Oil Company v. Clarke (30 L. D., 550), where the subject was discussed at length and many authorities cited and considered, the Department, among other things, said (p. 556):

In the disposition of the public lands of the United States, under the laws relating thereto, it is settled law: (1) That when a party has complied with all the terms and conditions necessary to the securing of title to a particular tract of land, he acquires a vested interest therein, is regarded as the equitable owner thereof, and thereafter the government holds the legal title in trust for him; (2) that the right to a patent once vested, is, for most purposes, equivalent to a patent issued, and when in fact issued, the patent relates back to the time when the right to it became fixed; and (3) that the conditions with respect to the state or character of the land, as they exist at the time when all the necessary requirements have been complied with by a person seeking title, determine the question whether the land is subject to sale or other disposal, and no change in such conditions, subsequently occurring, can impair or in any manner affect his rights.

In view of the opinion of the Assistant Attorney General, it is clear that the mineral provision of the act of June 6, 1900, was not intended to operate as an exception to the settled principles applied by the land department in the administration of the public land laws generally. Controversies between mineral and agricultural or townsite claimants, as to any of the lands over which the mining laws were extended by said provision, are to be determined upon the same principles which apply to like controversies with respect to the public lands situated elsewhere.

Applications for patent to mining claims should not be received by local officers for any of the lands referred to, which may, at the time, be embraced in an Indian allotment, or in any existing entry under the homestead or townsite laws; and no protest by a mineral claimant, the object of which is to have the land claimed determined to be subject to entry under the mining laws, should be accepted, as against any Indian allotment, or as against any entry under the homestead or townsite laws where the entryman has complied with all of the terms and conditions necessary to entitle him to a patent, unless the protest be accompanied by an allegation or averment, properly verified and corroborated, to the effect that the land was known to contain valuable

mineral deposits at the time when the Indian allotment was approved, or, as the case may be, when the terms and conditions necessary to obtain title under the homestead or townsite laws were complied with. Lands not known to contain valuable mineral deposits at the time when, in the absence of such knowledge, the rights of the allottee, or of the homestead or townsite entryman, become fixed and vested, are not thereafter subject to exploration, location, or entry by other parties under the mining laws. Rights once vested in an allottee or in an entryman under the homestead or townsite laws, or in a town lot purchaser, can not be affected by the subsequent exploration or location of the lands for minerals.

No mining location of land within the county-seat townsites of Lawton, Anadarko, or Hobart, made after the special reservation of those townsites on June 24, 1901, under the act of March 3, 1901 (31 Stat., 1093), is of any validity or effect whatever. Where the lands in these three townsites were so reserved they became appropriated and set apart for a specific purpose under the law, and were thenceforth withdrawn from the operation of the mining and other public land laws.

In the matter of the surveying of mining claims with the view to obtaining patents therefor, the mining laws provide (Sec. 2325, R. S.) that such surveys, excepting as to placer claims located upon surveyed lands, and which conform to legal subdivisions, where no further survey or plat is required (Sec. 2321, R. S.), shall be made by or under the direction of the United States surveyor-general. It is further provided that at the time of filing application for patent to a mining claim, or at any time thereafter, within the sixty days' period of publication, the claimant shall file with the register a certificate of the United States surveyor-general that five hundred dollars' worth of labor has been expended or improvements made upon the claim by himself or grantors, and that the plat is correct, with such further description ast may be necessary to identify the claim and furnish an accurate description to be incorporated in the patent, and (Sec. 2334, R. S.) that the surveyor-general of the United States shall appoint, in each mining district containing mineral lands, as many competent surveyors as shall apply for appointment, to survey mining claims.

The Congress has made no provision for a United States surveyorgeneral for the Territory of Oklahoma. Nor is there any provision in the statute extending the mining laws over the aforesaid ceded lands, or in any other, which specially directs or authorizes the duties required. to be performed by the United States surveyor-general in the administration of the mining laws generally, as aforesaid, to be performed in said Territory by any other officer. The question arises, therefore, as to how said laws are to be executed with respect to the lands in said Territory over which they were extended by said act of June 6, 1900. In the absence of special legislation giving full and complete direc

tions in the premises, resort must be had to the general laws conferring upon the land department jurisdiction and power in matters relating to the surveying and sale of the public lands.

Sections 453 and 2478 of the Revised Statutes provide as follows:

Sec. 453. The Commissioner of the General Land Office shall perform, under the direction of the Secretary of the Interior, all executive duties appertaining to the surveying and sale of the public lands of the United States, or in anywise respecting such public lands, and, also, such as relate to private claims of land, and the issuing of patents for all agents [grants] of land under the authority of the government.

Sec. 2478. The Commissioner of the General Land Office, under the direction of the Secretary of the Interior, is authorized to enforce and carry into execution, by appropriate regulations, every part of the provisions of this title not otherwise specially provided for.

Referring to these sections, the supreme court, in the case of Knight ". United States Land Association (142 U. S., 161, 177), said:

The phrase, "under the direction of the Secretary of the Interior," as used in these sections of the statutes, is not meaningless, but was intended as an expression in general terms of the power of the Secretary to supervise and control the extensive operations of the land department of which he is the head. It means that, in the important matters relating to the sale and disposition of the public domain, the surveying of private land claims and the issuing of patents thereon, and the administration of the trusts devolving upon the government, by reason of the laws of Congress or under treaty stipulations, respecting the public domain, the Secretary of the Interior is the supervising agent of the government to do justice to all claimants and preserve the rights of the people of the United States.

In Bishop of Nesqually ». Gibbon (158 U. S., 155, 167) the court, speaking on the same subject, after referring to and quoting from the opinion in the former case of Knight. United States Land Association, further said:

It may be laid down as a general rule that, in the absence of some specific provision to the contrary in respect to any particular grant of publie land, its administration falls wholly and absolutely within the jurisdiction of the Commissioner of the General Land Office, under the supervision of the Secretary of the Interior. It is not necessary that with each grant there shall go a direction that its administration shall be under the authority of the land department. It falls there unless there is express direction to the contrary.

The mining laws of the United States, excepting certain amendments and special statutes, not material to be here mentioned, constitute a part of the provisions of the title of the Revised Statutes (Title 32) referred to in said section 2478, and are therefore subject to and fall within the authority conferred by said section.

In view of these general statutory provisions, and of the decisions. of the supreme court respecting the same, in the cases referred to, it is clearly the duty of the Commissioner of the General Land Office, in administering the mining laws as extended over the aforesaid ceded lands by the act of June 6, 1900, to perform, under the direction of the Secretary of the Interior, all executive duties appertaining to the

surveying of mining claims located upon said lands, with the view to obtaining patents for such claims, and all similar duties in any manner respecting the conduct of proceedings to obtain such patents; and also, under like direction, to enforce and carry into execution any and every part of the provisions of the mining laws with respect to said ceded lands, not otherwise specially provided for in the act extending said laws over said lands.

You are accordingly directed to appoint in each of the land districts containing mineral lands, wherein said ceded lands are situated, as many competent surveyors as shall apply for appointment to survey mining claims; and you will perform all the duties appertaining to the surveying of mining claims located upon said lands for the purpose of obtaining patents from the government, and with respect to the patent proceedings, which would be performed by the United States surveyor-general if there were such an officer for the Territory of Oklahoma.

For their guidance in the premises, you will furnish to the registers and receivers of the land offices having jurisdiction of applications to enter said ceded lands, copies of this decision. You will also supply said officers with all necessary blanks, with the usual printed instructions relating to the subject of applications for patent to mining claims, and with such special instructions, in accordance with the views herein expressed, as may be deemed proper to secure the effective administration of the mineral provisions of said act of June 6, 1900.

The proposed letter of instructions submitted by your office is herewith returned, without approval.

The applications of A. J. Meers, O. E. Noble, and G. W. Vickers, surveyors, for appointment to survey mining claims upon said lands, transmitted by your letters of September 30, October 3, and October 5, 1901, respectively, are returned for your consideration and action under the directions herein given.

HOMESTEAD-COMMUTATION-RESIDENCE.

FRY . KUPER.

In the commutation of homestead entries constructive residence from the date of the entry will be recognized where settlement is made and residence established within six months thereafter.

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

December 6, 1901.

(J. R. W.)

Christian C. Kuper appealed from your office decision of August 5, 1901, holding his commutation proof to be prematurely made on his