for investigating Indian allotments prescribe no specific rule, the instructions of August 18, 1899 (29 L. D., 141), as to the procedure in special agent's reports against the validity of claims to the public lands, should be observed.

Approved:

E. A. HITCHCOCK,

Secretary.

FOREST RESERVATION LANDS-EXCHANGE PROVISIONS ACT OF JUNE 4, 1897.

WILLIAM C. QUINLAN.

The provision of section ten of the act of March 3, 1893, that the lands in the Cherokee Outlet "shall be disposed of to actual settlers under the homestead laws only," precludes the allowance of an application to select such lands under the exchange provisions of the act of June 4, 1897, in lieu of lands within a forest

reserve.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) September 25, 1900. (E. B., Jr.)

William C. Quinlan appeals from the decision of your office dated February 20, 1900, in the matter of his application, filed January 14, 1899, to select, under the exchange provisions of the act of June 4, 1897 (30 Stat., 11, 36), the NW of the SE of Sec. 19, T. 25 N., R. 17 W., Woodward, Oklahoma, land district, in lieu of the NW of the NE of Sec. 31, T. 27 S., R. 30 E., M. D. M., situated within the limits of the Sierra Forest Reserve, State of California, of which he claims to be the owner in fee simple under patent from the United States.

Said decision holds that the tract first described is not subject to selection under the act of June 4, 1897, for the reason that by section 10 of the act of March 3, 1893 (27 Stat., 612, 642), such tract, with other lands in what was then known as the "Cherokee Outlet," was opened to settlement to actual settlers under the homestead laws only, and for the further reason that the provision of that section requiring a payment before the issuing of patent, of one dollar per acre for certain lands, including the tract in question, was, at the date of your office decision, still in force, unaffected by the provision of the act of June 4, 1897, which declares that "no charge shall be made in such cases for making the entry of record or issuing the patent to cover the tract selected;" and therefore rejects Quinlan's application. Appellant contends that the tract was at the time of filing his application "vacant land open to settlement," and, as such, was subject to lieu selection under the last-mentioned act.

Since the passage of the act of May 17, 1900 (Public-No. 105), known as the free homestead act, which repealed the provisions of said

section 10 as to all further payments for the lands covered thereby except "the payment to the local land officers of the usual and customary fees," the second ground of objection stated in your office decision, to the application of Quinlan, is removed. The first ground of objection, however, appears to be well taken.

So much of the said section 10 of the act of March 3, 1893, providing, among other things, for the disposal of the lands in the "Cherokee Outlet," including the tract in question, as is here in point, reads:

The President of the United States is hereby authorized, at any time within six months after the approval of this act and the acceptance of the same by the Cherokee . Nation as herein provided, by proclamation, to open to settlement any or all of the lands not allotted or reserved, in the manner provided in section thirteen of the act of Congress approved March second, eighteen hundred and eighty-nine, entitled "An act making appropriations for the current and contingent expenses of the Indian Department and for fulfilling treaty stipulations with various Indian tribes, for the year ending June thirtieth, eighteen hundred and ninety, and for other purposes” (twenty-fifth United States Statutes, page ten hundred and five); and also subject to the provisions of the act of Congress approved May second, eighteen hundred and ninety, entitled "An act to provide a temporary government for the Territory of Oklahoma to enlarge the jurisdiction of the United States court in the Indian Territory, and for other purposes."

Section thirteen of the act of March 2, 1889 (25 Stat., 980, 1005), and section eighteen of the act of May 2, 1890 (26 Stat., 81, 90), which are referred to in the provision above set out from section 10 of the act of March 3, 1893, as controlling the manner of disposal of the lands therein specified, each expressly provides, in substantially the same language, that the lands covered thereby shall be disposed of to actual settlers under the homestead laws only," with certain exceptions not here in point.

The exchange provision of the act of June 4, 1897, under which Quinlan claims, is as follows:

That in cases in which a tract covered by an unperfected bona fide claim or by a patent is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the government, and may select in lieu thereof a tract of vacant land open to settlement not exceeding in area the tract covered by his claim or patent; and no charge shall be made in such cases for making the entry of record or issuing the patent to cover the tract selected: Provided, further, That in cases of unperfected claims the requirements of the laws respecting settlement, residence, improvements, and so forth, are complied with on the new claims, credit being allowed for the time spent on the relinquished claims.

Quinlan is not seeking title to the tract in question as a settler under the homestead laws, in any sense, but solely under the above provision of the act of June 4, 1897, as the owner of a tract covered by a patent and included within the limits of a public forest reservation. The provision that the lands covered by the said section 10, including the tract he seeks to be allowed to select, "shall be disposed of to actual settlers under the homestead laws only," is imperative and mandatory,

forbidding the disposal of any such lands in any other manner or under any other laws.

The contention that the provision that these lands shall be disposed of to actual settlers under the homestead laws only is repealed, so far as it stands in the way of the operation of the act of 1897, by that provision of the later act which allows the selection thereunder of "a tract of vacant land open to settlement" in lieu of the tract relinquished, or by the provision of the act of June 6, 1900 (Public-No. 163), which declares, subject to a limitation not necessary to be recited here, that all selections of land under the act of 1897 "shall be confined to vacant surveyed non-mineral public lands which are subject to homestead entry," can not be sustained. To hold the affirmative of that proposition would be to find in the later acts a repeal of the earlier, to the extent indicated, by implication merely. Such repeals are not favored. In Frost . Wenie (157 U. S., 46, 58), cited with approval in United States. Healey (160 U. S., 136, 147), the supreme court said:

It is well settled that repeals by implication are not to be favored. And where two statutes cover, in whole or in part, the same matter, and are not absolutely irreconcilable, the duty of the court-no purpose to repeal being clearly expressed or indicated-is, if possible, to give effect to both. In other words, it must not be supposed that the legislature intended by a statute to repeal a prior one on the same subject, unless the last statute is so broad in its terms and so clear and explicit in its words as to show that it was intended to cover the whole subject, and, therefore, to displace the prior statute.

The above quoted provisions of the act of 1897 and June 6, 1900, are not absolutely irreconcilable with the provision in question of the act of 1893. No purpose to repeal that provision is expressed or indicated in the later acts. The later acts being in pari materia are to be read together, and so read they and said provision of the act of 1893 can stand and each be given effect in its appropriate sphere. In legal effect section 10 of the act of 1893 is local and limited in its operation to certain specified lands in Oklahoma, while the exchange provisions of the acts of 1897 and 1900 are general and operative upon all vacant surveyed non-mineral public land subject to homestead settlement and entry where not otherwise specially provided.

In confining lieu selections under the later acts to surveyed lands subject to homestead settlement and entry it does not by any means follow that Congress thereby expressed an intention to include all lands wherever found which might answer that description or classification regardless of the fact that by oft repeated declaration it had proclaimed its purpose to dispose of all lands in Oklahoma Territory acquired by treaty from Indian tribes to actual settlers under the homestead laws only. It is not believed that any considerations of apparent expediency nor anything short of a clearly expressed intention to depart from that purpose and subject such lands to the opera

tion of the exchange provisions of those acts would justify the construction contended for by appellant. No such intention is manifest and the Department must therefore be guided and controlled in its conclusion by the well settled rule relative to repeals by implication as hereinbefore stated by the supreme court.

The decision of your office is affirmed in accordance with the views herein expressed.

SWAMP LAND SELECTION-CORRECTIVE LIST-ACT OF MARCH 3, 1857. STATE OF LOUISIANA.

A list of swamp land selections filed by the surveyor-general if not based upon proper data may be corrected by such officer through the filing of a second list, and thereafter the first list is not a pending list of swamp land selections upon which the confirmatory provisions of the act of March 3, 1857, will operate.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) September 25, 1900.

(A. S. T.)

On March 28, 1851, the U. S. surveyor-general for Louisiana reported to your office a list of alleged swamp lands in T. 14 N., R. 4 E., Louisiana meridian, New Orleans land district, Louisiana, which list embraced, and designated as swamp lands, sections 1, 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 16, 21, 22, 23, 24, 25, 26, 27, 34, 35, and 36, in said township.

On May 20, 1853, the register and receiver of said district transmitted to your office another list of swamp lands in said township, duly certified by said surveyor-general, and by him designated as being "Corrective of and additional to list approved March 28, 1851" (the list first above mentioned). With said second or "corrective" list the surveyor-general filed the following explanatory statement:

SURVEYOR-GENERAL'S OFFICE,
Donaldson, La., May 20, 1853.

The field notes of Henry Washington, from which a part of the above selections were made, are not as explicit upon the subject and extent of swamp lands as would be desired. It will be seen that some difference exists between the present selections and those of the 28th of March, 1851; this arises from the uncertainty of the field notes as to what should constitute swamp lands. The former list was made out not only from the description of the land in the field notes, but from the general character of the lands upon Bayou Lafourch, whereas the present list is based strictly upon the statement made in the field notes of survey, listing as swamp lands only those designated as such in express terms.

R. W. BOYD, Surveyor General, La.

By your office letter of June 6, 1899, you informed the register and receiver of the land office at New Orleans that action had been taken on said list of May 20, 1853, and that practically all the lands embraced

therein had been approved to the State or the State had received indemnity therefor, and that on the list of March 28, 1851, is noted, “superseded by list approved May 20, 1853, see certificate at foot of said list;" and that on the tract books of your office, opposite the tracts enumerated in the first list, which were not included in the "corrective list," is posted "rejected by Sur. Gen'l, see list approved May 20, 1853." In your said office letter it was stated, in substance, that said list of May 20, 1853, was taken and understood by your office to be substituted in lieu of said list of March 28, 1851, and that the following tracts in said township 14 N., R. 4 E., which were included in said list of March 28, 1851, were omitted from the list of May 20, 1853, to wit:

Lots 4 and 5 in section 2; SE. of section 3; SW. of NW. of section 5; N. of NE. of section 9; E. †, N. † of NW. 4, SE. ‡ of NW. and E. of SW. of section 10; all of section 11: S. of NW. and SW. of section 12; W. of section 13; all of section 14; E. §, E. of NW. and E. of SW. 4 of section 15; all of section 16; N. of NE. of section 22; all of section 23; NW. 4 of NE. 4, S. § of NE. 4, NW. and S. of section 24; all of section 25; all of section 26; all of section 36.

And in order to clear the swamp land selection records of your office and of said local office of "such imperfect selections" you directed the local officers to "allow the State sixty days within which to show cause why the selection of March 28, 1851, of the tracts above described, should not be canceled for the reasons herein stated."

On August 7, 1899, the State of Louisiana, by its attorney, filed its showing of cause why said selections should not be canceled, and upon consideration thereof by your office on December 5, 1899, said former action, holding for cancellation said original swamp land selection was adhered to and the local officers were directed to notify the proper parties of said decision, and that the State would be allowed the usual time to appeal therefrom.

On January 31, 1900, the State, by its attorney, filed its appeal from said decision of your office to this Department.

The substance of the contention on behalf of the State seems to be that said list of swamp land selections filed and certified by the surveyor-general on May 20, 1853, was not intended to be substituted in lieu of said list of March 28, 1851, nor to have the effect to abrogate and set aside the same, but was intended as an additional list of such selections, and that, inasmuch as both of said lists were certified by the surveyor-general and filed in your office prior to the passage the act of Congress approved March 3, 1857 (11 Stat., 251), whereby the swamp lands selected under the act of September 28, 1850 (9 Stat., 519), were confirmed as such and directed to be patented to the several States entitled thereto, said confirmatory act applied to and operated

of