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a State had not the power to tax lands occupied by Indians as separate allotments under the then existing legislation, and continued as follows:

As will be seen by that opinion, the conclusions there reached rest largely upon the proposition that notwithstanding the Indians, by taking separate allotments, have made a first and a long step toward civilization and independent citizenship, yet they are still in a state of pupilage and under the guardianship of the General Government. Upon the same ground, I am clear that it has not been the intention of Congress, in any legislation so far, to put these Indians, who take such separate allotments, entirely upon their own resources or to withdraw the Government's guardianship, supervision, and protection. The fact, if there were no other, that their lands so allotted are made inalienable, that the allottee has no power to cumber or charge the same with debt, would be a clear indication that Congress had not intended to remit him to courts of law for the protection of those lands; for it would be worse than idle to expect a man so untutored, so improvident, so much of a child that he can not be trusted with a control over his property, would be able, without any power to charge that property for any purpose, to protect the same in a court of law. In other words, I am entirely clear that it is the duty of the Government to protect these Indian allottees in the enjoyment of their allotments.

And as to the authority to use the United States troops for the protection of the Indians in the use and possession of their allotments, the Attorney-General said:

The Supreme Court has repeatedly decided that "Indian country" is all country to which the Indian title has not been extinguished. The Indian title to the lands allotted in these reservations under the act of March 2, 1889, is modified, but I do not think it can be said to be extinguished. In pursuance of treaties with the Indians the lands are partitioned in severalty to the Indians, not because the ordinary Indian title has been totally extinguished, but because the Indians have consented to such arrangement. This being so, and in view of the relation of guardianship, the Government still bears, and the duty of protection it still owes to these Indians, I have no doubt of the right of the President to use the troops for the protection of these allotments.

Full authority is found in this opinion for the action recommended by the Commissioner of Indian Affairs:

The continued guardianship and control of the United States over the Indians, after their lands have been allotted to them in severalty and after they have become citizens of the United States has been fully sustained by the courts. Eells et al. v. Ross (64 Fed. Rep., 417, 420); Beck . Flournoy Live Stock, etc., Co. (65 Fed. Rep., 30, 35); United States v. Flournoy, etc., Co. (69 Fed. Rep., 886, 891); Farrell e. United States (110 Fed. Rep., 942); State . Columbia George (65) Pac. Rep., 604).

Approved, November 15, 1902.

E. A. HITCHCOCK, Secretary.

DESERT LAND ENTRY-COMPACTNESS-SEC. 1, ACT OF MARCH 3, 1877.

Registers and Receivers,

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., November 28, 1902.

United States Land Offices in Arizona,

California, Colorado, Idaho, Montana,

Nevada, New Mexico, North Dakota, Oregon,

South Dakota, Utah, Washington and Wyoming.

GENTLEMEN: Your attention is called to the requirement of the last proviso of section 1, act of March 3, 1877 (19 Stat., 377):

Provided, That no person shall be permitted to enter more than one tract of land, and not to exceed six hundred and forty acres, which shall be in compact form.

The requirement by said act that desert land entries "shall be in compact form" was not changed by the amendment to said law by the act of March 3, 1891 (26 Stat., 1095).

You are hereby directed to require claimant, in all cases where the land included in a desert land application does not form a compact body (that is, where there is a material departure from a technical halfsection or lesser legal subdivision) to either amend the application so as to take land in a compact form or to furnish an affidavit corroborated by two witnesses, showing that the entry is as compact as may be, taken in relation to the topography of the surrounding country and the prior appropriation of adjacent lands. This affidavit should be in addition to the other papers in the case and should set forth clearly and in detail the facts in relation thereto.

Your strict attention to this matter is requested, in order that the time and labor involved in curing these defects by this office may be reduced to a minimum.

Very respectfully,

Approved:

BINGER HERMANN, Commissioner.

E. A. HITCHCOCK, Secretary.

ALASKAN LANDS-HOMESTEAD-SOLDIERS' ADDITIONAL-ASSIGNEE.

INSTRUCTIONS.

The limitation in the last proviso to section 1 of the act of May 14, 1898, relating to entries of public lands in the district of Alaska, "that no homestead shall exceed eighty acres in extent," applies to the acreage that may be included in a single homestead entry, and does not limit the number of entries that may be made by an assignee of several soldiers' additional rights under section 2306, Revised Statutes.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) December 4, 1902. (A. S. T.) This Department is in receipt of your letter of November 21, 1902, requesting instructions as to whether or not the last proviso to section 1 of the act of May 14, 1898 (30 Stat., 409), places a limitation upon the right of the assignee of a soldier's additional right of homestead entry under section 2306 of the Revised Statutes, so as to prevent the assignee of several of such additional rights from making several entries of eighty acres each thereunder of public lands in the district of Alaska.

Said proviso is as follows: "And it is further provided that no homestead shall exceed eighty acres in extent."

You express the opinion that the number of entries that may be made by an assignee is not limited by the terms of this proviso, and in this conclusion the Department concurs. The limitation is placed upon the acreage that may be included in a single homestead entry, and can not apply to an assignee who in the exercise of the additional right does not seek to take in any one entry more than eighty acres.

HUTTON ET AL. . FORBES.

Motion for re-review of departmental decision of May 3, 1902, 31 L. D., 325, denied by Secretary Hitchcock, December 5, 1902.

RAILROAD GRANT-EXCEPTED LANDS-PREEMPTION FILING.

UNION PACIFIC RAILWAY COMPANY.

A pre-emption filing accepted by the local officers and placed of record, which was subsisting at the date of the definite location of the line of the Union Pacific railway opposite the tract covered thereby, excepts said tract from the grant made by the act of July 1, 1862, to aid in the construction of said road, without regard to the qualification of the person making such filing.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) December 8, 1902. (F. W. C.) The Union Pacific Railway Company has appealed from your office decision of August 2, last, holding that the W. of SW. 4 of Sec. 9, T. 1 S., R. 70 W., Denver land district, Colorado, was excepted from the grant made by the act of July 1, 1862 (12 Stat., 489), and July 2, 1864 (13 Stat., 356), under which it claims this land, by reason of the preëmption declaratory statement filed December 26, 1868, by Timothy Shanahan, alleging settlement the same day, which filing was a subsisting claim of record at the date of the definite location of the line of said road opposite this tract, to wit, August 20, 1869.

In the appeal it is urged that said filing was an absolute nullity

because the records of your office showed that the preemptor had, prior to making the filing in question, exhausted his preemptive right by reason of filing a declaratory statement on July 10, 1865, for the E. of SW. of SE., Sec. 3, T. 1 S., R. 70 W., Denver land district, Colorado, and that the filing covering the tract in question could not therefore serve to except the tract filed for from the operation of the railroad grant.

and SW.

There is nothing in the record now before the Department, except identity of name, tending to show that said filings were made by one and the same person. If it be admitted, however, that both of said. filings were made by one and the same person, and that Shanahan was by reason of his first filing disqualified from making another, it nevertheless remains a fact that the local officers in permitting him to make a second filing gave recognition to his claim and entered the same upon the records, and the fact that the second filing may not have been enforcible by Shanahan and might have been canceled by the Department upon its own motion, can not affect the question as to whether the tract covered by said second filing passed under the railroad grant.

In considering the question as to the effect upon a railroad land grant of a record claim on the part of an individual under the homestead or preemption law, existing at the date of the attachment of rights under such grant, it was held by the supreme court in the case of Whitney v. Taylor (158 U. S., 85, 93):

It was enough that the claim existed, and the question of its validity was a matter to be settled between the government and the claimant, in respect to which the railroad company was not permitted to be heard.

See also Hastings and Dakota R. R. Co. 7. Whitney (132 U. S., 357, 364); Union Pacific R. R. Co., Central Branch, v. Peterson (28 L. D., 32).

The decision of your office is therefore accordingly affirmed.

HOMESTEAD-SOLDIERS' ADDITIONAL-SECTIONS 2306 AND 2307, REVISED STATUTES.

HOMER E. BRAYTON.

The widow of a soldier who made homestead entry in her own right, prior to the adoption of the Revised Statutes, for less than 160 acres of land, is, by virtue of the provisions of sections 2306 and 2307 of such statutes, entitled to an additional homestead right, and if she fails to exercise such right it becomes upon her death an asset of her estate, subject to distribution as other personal property. Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) December 9, 1902. (G. B. G.)

This is the appeal of Homer E. Brayton, assignee of John W. Brown, administrator of the estate of Mason G. Whitney, deceased, from your office decision of August 23, 1902, denying his application

to enter under sections 2306 and 2307 of the Revised Statutes the NE. of the NE. of Sec. 15, T. 14 S., R. 70 W., Pueblo land district, Colorado.

It appears that the said Mason G. Whitney served more than ninety days in the United States army during the war of the rebellion, and afterwards died without having exercised a right of homestead. March 31, 1870, which was prior to the adoption of the Revised Statutes, his widow, Emily Whitney, made homestead entry, in her own right, for 80 acres of land at the Springfield land office, Missouri. She afterwards died without having exercised an additional right of homestead. February 7, 1901, John W. Brown, administrator of the estate of Mason G. Whitney, transferred and assigned to one William E. Moses the claimed interest of said estate in an additional homestead right to 40 acres of land, and on June 24, 1901, the said Moses transferred and assigned it to the appellant, Brayton. Thus stated, this case is in all essential respects the same as the case of ex parte E. J. McLaughlin (not reported), decided by the Department July 25, 1902. In that case, citing the previous case of Sierra Lumber Company (31 L. D., 349), it was held, in substance, that the widow of a soldier, who made entry in her own right prior to the adoption of the Revised Statutes for less than 160 acres of land, was by virtue of the provisions of sections 2306 and 2307 of such statutes entitled to an additional homestead right, and further that, not having exercised the right, it became upon her death an asset of her estate, subject to distribution as other personal property.

It is earnestly insisted in the present case that the decision in the McLaughlin case is wrong in so far as it is therein held that upon the death of the widow the additional right becomes an asset of her estate, and it is argued that under such circumstances the right becomes an asset of the estate of the soldier.

The Department sees no sufficient reason for changing its ruling on this question. The soldier who died without having exercised a right of homestead never had an additional right, the additional right conferred upon the soldier by section 2306 being dependent upon the fact that he had previonsly entered a quantity of land less than 160 acres under the homestead law. If, then, he died without being seized of any right conferred by said section, how can it be well said that upon his death the right became an asset of his estate? The additional right conferred by sections 2306 and 2307 may be either for the soldier or his widow, and the circumstances of the case will control. If the soldier made the original entry, the additional right is his, but if the original entry was made by the widow, the additional right is hers. Upon her failure to exercise it during her life, it becomes an asset of her estate, and as such is not subject to the control of the administrator of the soldier's estate.

The decision appealed from is affirmed.

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