hands were set apart, and that the proceeds of sale of lands in the Bitter Root Valley should be paid into the Treasury like the proceeds of sale of other public lands. The effect of this act was to extinguish all the interests of the Indians to such lands and revest in the United States full control thereof, thus making them subject to reservation for public purposes like other public lands.

There is no expression in either of those cases to the effect that the lands involved did not still remain subject to the general provisions for the disposal of said lands made by the act of 1879. It is not believed that the statements quoted are controlling of the question involved herein, the paramount question in those cases being as to the authority to temporarily withdraw lands pending the determination of the question as to the advisability of including the same in the Bitter Root forest reserve. Besides, the decision in the case of Henry E. Tiedt, rendered January 31, 1902 (not reported), which is similar to the cases referred to, more clearly and correctly describes the status of the lands in the Bitter Root Valley after the treaty of 1855 and the act of 1872, and the effect of the act of June 22, 1874, it being said therein:

The land was ceded by the Indians and its sale was directed by the act of 1872. There was no reservation of the land or of any interest in it to the Indians, only an appropriation of proceeds arising from the sale. That appropriation was satisfied by the act of June 22, 1874 (18 Stat., 146, 173), from the general funds of the Treasury. The government might at any time have reserved the land for any public purpose.

The language of the treaty of 1855 leaves it clear that there was no reservation of the land in the Bitter Root Valley, or any interest therein, to the Indians, except what may have been provided for in article eleven thereof. Even this, if it may be called a reservation or an interest, was extinguished by proclamation of the President prior to the act of 1872. The latter act limited the disposal of the lands in the Bitter Root Valley to "actual settlers only," and constitutes the only authority for the disposal of such lands, unless, as contended, the acts of February 11 and June 22, 1874, can be construed as constituting authority for a different disposal, which would necessarily amount to a repeal of the act of 1872. If there was a repeal it was by implication only, as said acts contain no express words of repeal; and repeals by implication are never favored. In the case of Breannan v. Ferrell (25 L. D., 266) it was held that the act of February 11, 1874, does not operate to repeal the general provisions for the disposition of lands in the Bitter Root Valley made by the act of June 5, 1872, it being stated that the language in said act of 1874," who may desire to take advantage of the same," is permissive in character and does not imply that settlers on said lands may not, if they so elect, acquire title to such lands under the act of 1872. The act of June 22, 1874, which was an appropriation act, merely substituted a different mode. for the disposal of the moneys arising from the sales of lands in the

Bitter Root Valley, referred to in the act of 1872, and in no sense can be construed as a repeal, express or implied, of the general provisions in said act relative to the mode of disposal of the lands themselves. Therefore as the said acts of June 5, 1872, and February 11, 1874, constitute the only authority for the disposal of the lands here in question, and specifically provide for their disposal to actual settlers only, they are not subject to entry under the timber and stone act. W. D. Harrigan (29 L. D., 153); and Joseph S. White (30 L. D., 536). The decision of your office is hereby affirmed.

INDIAN LANDS-RESERVOIR-ACT OF FEBRUARY 13, 1897.

CHICAGO AND NORTHWESTERN R. R. Co. v. HARVEY. The provisions in the act of March 2, 1889, limiting the disposal of lands within the ceded portion of the Great Sioux Indian reservation to actual settlers under the provisions of the homestead law and the laws relating to townsites, does not reserve said lands from the operation of the act of January 13, 1897, authorizing the use of public lands for reservoir purposes.

The approval of a map or plat of survey of a constructed reservoir, under the act of January 13, 1897, relates back as of the time of the filing thereof; and no further disposition should be made of the lands upon which such reservoir has been constructed, pending final action upon such map or plat, nor after the approval thereof.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) February 13, 1902. (F. W. C.)

The Department has considered the appeal by the Chicago and Northwestern Railroad Company, successor to the Dakota Central Railway Company, from your office decision of October 4, last, wherein you overrule its protest against the allowance of the homestead entry made by Annie Harvey on July 17, last, for lot 7 and SE. of SW. of Sec. 6, NE. 4 of NW. and NW. of NE., Sec. 7, T. 5 N., R. 29 E., and hold for cancellation its reservoir declaratory statement, No. 14, filed January 5, 1899, under the provisions of the act of January 13, 1897 (29 Stat., 484), covering the SE. 4 of SW. 4 of said Sec. 6, NE. of NW. and W. of NE. 4, Sec. 7, T. 5 N., R. 29 E., all within the Pierre land district, South Dakota.

The lands in question are within the ceded portion of the Great Sioux Indian reservation, provision for the disposal of which is found in the act of March 2, 1889 (25 Stat., 888), the twenty-first section of which act provides—

That all lands in the Sioux reservation outside of the separate reservations herein described are hereby restored to the public domain and shall be disposed of by the United States to actual settlers only under the provisions of the homestead law, except section 2301 thereof, and under the law relating to townsites.

Your office decision appealed from upon the authority of departmental decision of September 15, 1899, in the case of W. D. Harrigan (29 L. D., 153), held that the lands within the ceded portion of the Sioux reservation are not subject to the act of January 13, 1897, supra, providing for the reservation of lands upon which reservoirs are constructed for the purpose of furnishing water for live stock, because of the provision in the act opening these lands limiting their disposal to actual settlers under the provisions of the homestead law and the laws relating to townsites.

That said provision does not amount to a reservation of the lands so as to take them out of the operation of the act of January 13, 1897, is clear. See departmental decision in the case of Frank Laughrin (29 L. D., 147). In said case it was held that the act of May 2, 1890 (26 Stat., 81), in providing that the public land strip should be opened to settlement under the homestead laws, did not reserve said land from the operation of the act of January 13, 1897, supra, and in sustaining the application by Laughrin to file reservoir declaratory statement, it was necessarily determined that the allowance of such application did not amount to a disposal of the lands. A careful reading of the act of January 13, 1897, sustains this view, as it merely grants a use of the lands on which the reservoir is constructed so long as such reservoir is kept in repair and water kept therein.

In the Harrigan case referred to in your office decision, application had been made to have certain described water reserve lands ordered into market and sold under section 2455, Revised Statutes, as amended by act of Congress approved February 26, 1895 (28 Stat., 687). The act of June 20, 1890 (26 Stat., 169), providing for the restoration of the water reserve lands, limited the disposal of such lands, when restored, to homestead entry only. Harrigan's application contemplated a sale of the lands and, if granted, would have permitted a disposition contrary to the provisions of the act of 1890. The decision denying said application can in nowise affect the question as to the application of the act of January 13, 1897, which act, as before stated, grants only the use of the land for the purpose stated and does not contemplate the acquirement of title thereto.

The conclusion of the Department is therefore that the act of January 13, 1897, supra, is applicable to the ceded portion of the Great Sioux Indian reservation, and your office decision is therefore reversed. It is shown in the record before the Department that on January 2, 1900, the railway company, in accordance with the provisions of section 3, of the act of January 13, 1897, filed in the local land office a map or plat upon which was delineated an accurate survey of its reservoir theretofore constructed upon the lands embraced in its declaratory statement, which map was duly forwarded to your office, but no action has been taken thereon. Said section provides that

upon the approval by the Secretary of the Interior of a map or plat of the constructed reservoir the lands on which the reservoir has been constructed shall be reserved from sale so long as such reservoir is kept in repair and water kept therein, and in its appeal the company asserts that in accordance with the regulations issued under the act of 1897, it has each year since the filing of its plat, furnished proof of the continued maintenance of the reservoir.

Notwithstanding the filing of such map or plat in January, 1900, it appears that on July 17, 1901, the local officers permitted Annie Harvey to make homestead entry, as hereinbefore set forth, including the greater portion of the lands on which the reservoir had been constructed.

Relative to the allowance of said entry your office decision statedthat the entry was allowed under instructions of January 25, 1901, as follows:

"You are advised that by letter of December 19, 1900, addressed to Robert Price, the former decision of this office in the matter of reservoir declaratory statements was reversed, and it is now held that the reservoir declaratory statement, under act of January 13, 1897 (27 Stat., 484), does not. withdraw the land covered thereby from other entry.

It is therefore proper to accept homestead or other entries for such lands. The entryman, however, makes his entry subject to the right of the declarant to complete his reservoir and to use it in compliance with the law."

Without considering the question of the propriety of allowing an entry to be made for lands upon which a reservoir declaratory statement has been filed, it would seem to be clear under the act of 1897 that upon the approval of a map or plat of survey of a constructed reservoir, the lands upon which such reservoir has been constructed are not thereafter subject to disposal, and it would seem to be equally clear that if such map or plat is, upon examination, found satisfactory and approved, its approval should be held to relate back as of the time of the filing of such map or plat. It results that after the filing of a map or plat of a constructed reservoir under said act, no further disposition should be made of the lands on which the reservoir has been constructed, pending final action upon such map or plat.

After a careful examination of the plat filed by the Dakota Central Railway Company of its constructed reservoir covering the land in question, the Department approves the same, and said map is herewith returned with the approval of the Department noted thereon, and you are directed to take steps looking to the clearing of the record of the entry by Annie Harvey, erroneously allowed under the views herein expressed.

HAWAII-EXCHANGE OF LANDS-SEC. 55, ACT OF APRIL 30, 1900.

OPINION.

The proviso in section 55 of the act of April 30, 1900, limiting the amount of real estate which any corporation operating in the Territory of Hawaii may acquire and hold therein to one thousand acres, precludes an exchange of lands owned by any such corporation for a quantity of public lands in said Territory aggregating more than one thousand acres.

Assistant Attorney-General Van Deranter to the Secretary of the Inte rior, February 18, 1902. (A. C. C.)

The commissioner of public lands for the Territory of Hawaii, in a written communication, dated February 7, 1902, states that the McBryde Sugar Company, a Hawaiian corporation, has made application to exchange about 2,000 acres of land, owned by it in fee, situate on the island of Kauai, for about 6,000 acres of public land situate on the same island, and that Governor Dole desires to obtain a ruling— on the question, whether such exchange of land, if in other respects advisable would be precluded by reason of the proviso in section 55 of the organic act of the Territory, which requires that no association hold and acquire over one thousand (1,000) acres.

The question has been referred to me, with a request for an opinion. It appears, from the papers submitted, that the McBryde Sugar Company was incorporated May 25, 1899, under the general laws of Hawaii relative to corporations and joint stock companies. At that time the power of Congress was supreme over the Territory of Hawaii and over the laws established therein. It could amend, modify, or repeal any law of said Territory, or directly legislate for it. In the exercise of its power to legislate for the Territory, Congress could revoke and repeal the laws under which said corporation was chartered, or limit the amount of real estate which any corporation, operating within said Territory, could thereafter acquire (Mormon Church v. United States, 136 U. S., 1, 45). That portion of the proviso to section 55 of the act to provide a government for the Territory of Hawaii (31 Stat., 141, 150), applicable to the present inquiry, is as follows: Provided, That no corporation, domestic or foreign, shall acquire and hold real estate in Hawaii in excess of one thousand acres.

It is plainly evident, from the wording of the above, that Congress intended to limit the amount of real estate which any corporation operating in the said Territory could acquire and hold, to 1,000 acres. The power of Congress to enact such provision is unquestionable.

I am of the opinion, and so advise you, that the exchange of lands requested by the McBryde Sugar Company is prohibited by the proviso in section 55 of the aforesaid act.

Approved, February 18, 1902:

E. A. HITCHCOCK, Secretary.