ment, and for fulfilling treaty stipulations with various Indian tribes for the fiscal year ending June thirtieth, eighteen hundred and ninety-eight, and for other purposes," approved June seventh, eighteen hundred and ninety-seven, shall be the judge of said western district, and he is hereby authorized to appoint a clerk who shall reside and keep his office at one of the places of holding court in said western district.

[Commissioners and constables.] That each of the three commissioners with headquarters at Muscogee, Eufaula, and Wewoka, respectively, shall be United States commissioners for said western district for a period of four years from the date of their appointment and until their respective successors shall be appointed and qualified, and the two constables now in office whose headquarters are at Muscogee and Eufaula, respectively, shall be constables in said western district until their successors shall be appointed and qualified; and said judge may appoint a constable for the commissioner at Wewoka, and the said judge may appoint an additional commissioner to be located at Checotah, and an additional constable for said commissioner's court. Each of the United States commissioners and each of the four constables now located in the northern district as constituted by this Act shall continue to be United States commissioners and constables, respectively, for said district until their successors shall be appointed and qualified.

[Recorder's office, northern district.] That the clerk's office at Vinita shell also be the recorder's office for the northern district, except that the clerk's office at Miami shall continue to be the recording office for the Quapaw Indian Agenes as now provided by law.

[Marshals and district attorney.] The United States marshal of the present northern district shall be marshal of the western district, and there shall be appointed by the President, by and with the advice and consent of the Senate, a district attorney for said western district, and a United States marshal for the northern district. The said officers shall be appointed and shall hold office for the period of four years, and shall receive the same salary and fees and discharge like duties as other similar officers in said Territory.

[Pending causes.] The cases now pending in that part of the northern district which is hereby made the western district shall be tried the same as if brought in said western district.

[Terms northern district.] Terms of court shall continue to be held within the territory remaining in said northern district at the places now provided by law for the holding of courts therein, and in addition thereto at the towns of Sallisaw, Claremore, Nowata, and Pryor Creek, in the Cherokee country.

[Existing laws made applicable.] All laws now applicable to the existing judicial districts in the Indian Territory, and to attorneys, marshals, clerks, and their assistants or deputies therein, not inconsistent herewith, are hereby made applicable to the western district.

[Terms southern and central districts.] In addition to the places now provided by law for holding courts in the southern and central districts, courts in the southern district shall also be held at Tishomingo and Ada, and in the central district at Durant.

[Constable, Durant.] The United States judge for the central district of the Indian Territory, after the approval of this Act, may appoint a constable for the commissioner located at Durant. [32 Stat. L. 275, 276.]

The above paragraphs are part of section 8 of the Indian Appropriation Act of May 27, 1902, ch. 888, 32 Stat. L. 275, 276. Res. No. 24, May 27, 1902, 32 Stat. L. 742, provided

that the Act "shall take effect from and after July first, nineteen hundred and two, except as otherwise specially provided therein."

[Erection of jails in Indian Territory.] To enable the Attorney-General to carry out the provisions of the Act approved July seventh, eighteen hundred and ninety-eight, for the erection of three jails in the Indian Territory, and also to erect one additional United States jail in said Territory, forty thousand dollars is hereby appropriated, to be expended under the direction of the Attorney-General, to be immediately available, and to remain available until expended. And the Attorney-General is hereby authorized and directed to cause to be erected a United States jail at each of the three places already formally designated by him, namely, at Muscogee in the western district, at South McAlester in the central district, and at Ardmore in the southern district, and one additional United States jail at Vinita in the northern district, at a total cost not exceeding one hundred thousand dollars.

That for the purpose of acquiring sites for United States jails as provided herein in the Indian Territory, there shall be appointed by the judge of the United States court in the district where such land is situated, on application of the United States by petition describing the land sought to be condemned, three disinterested referees, who shall determine the compensation and damage to be paid any owner, occupant, tribe, or nation by reason of the appropriation and condemnation of such land for the use and benefit of the United States for a jail at any of the places herein before mentioned. Such referees, before entering upon the duties of their appointment, shall each take and subscribe before the clerk of the said United States court an oath that he will faithfully and impartially discharge the duties of his appointment, which oaths, duly certified, shall be returned with the award of the referees to the clerk of the court by which they were appointed. Before such referees shall proceed with the assessment of damages for any lands sought to be condemned under this Act, ten days' personal notice of said hearing shall be given to all persons interested, and service may be had upon each tribe or nation in which said land may be located by service upon the principal chief thereof, and in case personal service can not be had upon any person interested, twenty days' notice of the time when the same shall be condemned shall be given, by publication in some newspaper in general circulation nearest said property in the district where said land is situated.

If the referees can not agree, then any two of them are authorized to and shall make the award. Any party to the proceedings who is dissatisfied with the award of the referees shall have the right, within ten days after the filing of the award in the court by which said referees were appointed, to appeal by original petition to the United States court sitting at the place nearest and most convenient to the property sought to be taken, where the question of the damages occasioned by the taking of the land in controversy shall be tried de novo, and the judgment rendered by the court shall be final and conclusive. And upon the payment into court of the amount or amounts awarded as damages, fee simple title to said tract of land shall vest in the United States. If such appeal is not taken as hereinbefore set forth, the award shall be conclusive and final, and shall have the same force and effect as a judgment of a court of competent jurisdiction, and upon the payment of the sum or sums so found due into the court, a fee simple title to said land shall vest in the United States.

Each of said referees shall receive for his compensation the sum of five dollars per day while actually engaged in the appraisement of the property and the hearing of any matter submitted to them under this Act.

That if any party or person other than the United States shall appeal from

any award, and the judgment of the court does not award such appealing party or person more than the referees awarded, all costs occasioned by such appeal shall be paid by such appealing party or person. It shall be the duty of the United States court in each district to promptly hear and determine the rights of all parties if any appeal shall be taken under this Act. [32 Stat. L. 276, 277.]

This is part of section 8 of the Indian Appropriation Act of May 27, 1902, ch. 888. Res. No. 24, May 27, 1902, 32 Stat. L. 742, provided that the Act "shall take effect from

and after July first, nineteen hundred and two, except as otherwise specially provided therein."

An Act To fix the fees of United States marshals in the Indian Territory, and for other

purposes.

[Act of June 21, 1902, ch. 1137, 32 Stat. L. 395.]

[SEC. 1.] [Fees of marshals and deputies.] That in felony cases before United States commissioners for preliminary examination, and in all cases in the district courts, whether arising under the laws of the United States or under the statutes of Arkansas, as made applicable to the Indian Territory, section eight hundred and twenty-nine of the Revised Statutes of the United States shall be applicable to the services rendered by United States marshals and their respective deputies in said Territory, and all deductions and disallowances made by the accounting officers under the decision of the Comptroller of the Treasury of the United States shall be allowed, except so far as the marshals have been reimbursed for the amounts of such deductions and disallowances; but before any item of such deductions or disallowances shall be allowed, proof satisfactory to the Auditor for the State and other Departments shall be made that the amount. of such item has not been reimbursed to the marshal. [3.2 Stat. L. 395.]

R. S. sec. 829, to which the text refers, prescribes the fees of marshals for a multitude of enumerated services and is set forth in title JUDICIAL OFFICERS.

SEC. 2. [Witnesses' fees.] That all witnesses in felony cases before United States commissioners, and all witnesses in civil and criminal cases in the district courts of said Territory, shall be entitled to the fees provided in section eight hundred and forty-eight of the Revised Statutes of the United States, except that clerks and other officers of the United States shall be entitled to the compensation provided in section eight hundred and fifty of the Revised Statutes of the United States. [32 Stat. L. 395.]

R. S. sec. 848, to which the text refers, provides as follows:

66

For each day's attendance in court, or before any officer pursuant to law, one dollar and fifty cents, and five cents a mile for going from his place of residence to the place of trial or hearing, and five cents a mile for returning. When a witness is subpoenaed in more than one cause between the same parties, at the same court, only one travel fee and one per diem compensation shall be allowed for attendance. Both shall be taxed in the case first disposed of, after which the per diem attendance fee alone shall be taxed in the other cases in the order in which they are disposed of.

"When a witness is detained in prison for want of security for his appearance, he shall be entitled, in addition to his subsistence, to a compensation of one dollar a day."

R. S. sec. 850, to which the text refers, provides as follows:

When any clerk or other officer of the United States is sent away from his place of business as a witness for the Government, his necessary expenses, stated in items and sworn to, in going, returning, and attendance on the court, shall be audited and paid; but no mileage, or other compensation in addition to his salary, shall in any case be allowed."

SEC. 3. [Repeal.] That all Acts and parts of Acts in conflict with this Act are hereby repealed. [32 Stat. L. 395.]

[Additional commissioners and constables- terms, salaries, etc.] That the judge for the western district of the Indian Territory shall be authorized and required to appoint three additional United States commissioners for said district and a constable for each of said commissioners; and the judge for the northern district of said Territory shall be authorized and required to appoint three additional United States commissioners for said district and a constable for each of said commissioners. Said commissioners and constables shall be located at places designated by said judges, respectively: Provided, That each of such judges may, in his discretion, require any commissioner appointed for his district whose headquarters are not permanently fixed by law to hold terms of court at more than one place, and in that case he shall fix the places and times of holding such terms and the length of each term. All laws applicable to the salaries duties, powers, and responsibilities of other United States commissioners and constables in the Indian Territory shall be applicable to the commissioners and constables appointed under the provisions of this Act. This proviso shall be in force from and after July first, nineteen hundred and two. [32 Stat. L. 578.] This is from the Indian Appropriation Act of July 1, 1902, ch. 1351.

[VII. INDIAN HOMESTEADS AND ALLOTMENTS OF LANDS TO INDIANS IN SEVERALTY.]

SEC. 15. [Certain Indians entitled to benefit of homestead laws.] That any Indian born in the United States, who is the head of a family, or who has arrived at the age of twenty-one years, and who has abandoned, or may hereafter abandon, his tribal relations, shall, on making satisfactory proof of such abandonment, under rules to be prescribed by the Secretary of the Interior, be entitled to the benefits of the act entitled "An act to secure homesteads to actual settlers on the public domain," approved May twentieth, eighteen hundred and sixtytwo, and the acts amendatory thereof, except that the provisions of the eighth section of the said act shall not be held to apply to entries made under this act: Provided, however, That the title to lands acquired by any Indian by virtue hereof shall not be subject to alienation or incumbrance, either by voluntary conveyance or the judgment, decree, or order of any court, and shall be and remain inalienable for a period of five years from the date of the patent issued therefor: Provided, That any such Indian shall be entitled to his distributive share of all annuities, tribal funds, lands, and other property, the same as though he had maintained his tribal relations; and any transfer, alienation, or incumbrance of any interest he may hold or claim by reason of his former tribal relations shall be void. [18 Stat. L. 420.]

See note to the next section.

The provisions of the Act of May 20, 1862, to which this section refers, are incorporated in R. S. secs. 2238, 2240, 2289, 2290, 2295, 2296, 2297, 2298, 2299, and 2300. Those sections and the sections incorporating acts amendatory of said Act of May 20, 1862, and amendatory legislation on the same subject subsequent to the enactment of the Revised Statutes, are set forth in title PUBLIC LANDS.

The eighth section of the Act of May 20, 1862, which is excepted in the text, forms R. S. sec. 2301, which section, as subsequently amended, is set forth in title PUBLIC LANDS.

Foreign immigrants. The benefit of the homestead law provided for in this section is

extended only to Indians "born in the United States." (1877) 18 Op. Atty. Gen. 557.

Citizenship. This and similar statutes do not admit Indians, who avail themselves of the provisions therein, to the privileges and responsibilities of citizenship within the meaning of the first section of the Fourteenth Amendment of the Constitution. "Whether any Indian tribes or any members thereof have become so far advanced in civilization that they should be let out of the state of pupilage, is a question to be decided by the nation whose wards they are and whose citizens they seek to become, and not by each Indian for himself." Elk r. Wilkins, (1884) 112 U. S. 94.

The period of limitation on alienation is twenty-five years, where lands were occupied under this Act but title thereto was not acquired until after the Act of July 4, 1884. Frazee . Spokane County, (1902) 29 Wash. 278. See also U. S. v. Saunders, (1899) 96 Fed. Rep. 268.

Computation of time. — The period within which the lands patented under this section are to remain inalienable is to be computed by including the date on which the patent

issued. Taylor v. Brown, (1893) 147 U. S. 640.

Period of exemption from taxation. - Lands patented to Indians under the provisions of this section and before the Act of July 4, 1884, went into effect, are held in trust by the United States for the sole use and benefit of the Indians to whom such patents have issued and are exempt from state or territorial taxation for five years from the date of the patent. (1888) 19 Op. Atty.-Gen. 161.

SEC. 16. [Entries of homestead by Indians, heretofore made, confirmed.] That in all cases in which Indians have heretofore entered public lands under the homestead-law, and have proceeded in accordance with the regulations prescribed by the Commissioner of the General Land Office, or in which they may hereafter be allowed to so enter under said regulations prior to the promulgation of regulations to be established by the Secretary of the Interior under the fifteenth section of this act, and in which the conditions prescribed by law have been or may be complied with, the entries so allowed are hereby confirmed, and patents shall be issued thereon; subject, however, to the restrictions and limitations contained in the fifteenth section of this act in regard to alienation and incumbrance. [18 Stat. L. 420.]

The foregoing two sections 15 and 16 are from the Deficiencies Appropriation Act of March 3, 1875, ch. 131.

The benefit of the United States homestead entry laws is extended to certain tribes by R. S. secs. 2310-2316, set forth in title PUBLIC LANDS. See also the next paragraph of the text.

Condition in patent void. A conditional clause inserted in a patent issued under this statute, taken from the special Act of Jan. 18, 1881, relating to the Winnebago Indians of Wisconsin, restraining alienation within a period of twenty-five years, is without authority of law and void. U. S. v. Saunders, (1899) 96 Fed. Rep. 268.

[Further application of homestead laws to Indians — patented lands held in trust.] That such Indians as may now be located on public lands, or as may, under the direction of the Secretary of the Interior, or otherwise, hereafter, so locate may avail themselves of the provisions of the homestead laws as fully and to the same extent as may now be done by citizens of the United States; and to aid such Indians in making selections of homesteads and the necessary proofs at the proper land offices, one thousand dollars, or so much thereof as may be necessary, is hereby appropriated; but no fees or commissions shall be charged on account of said entries or proofs. All patents therefor shall be of the legal effect, and declare that the United States does and will hold the land thus entered for the period of twenty-five years, in trust for the sole use and benefit of the Indian by whom such entry shall have been made, or, in case of his decease, of his widow and heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his widow and heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever. 123 Stat. L. 96.]

This is from the Indian Appropriation Act of July 4, 1884, ch. 180. See also note to the preceding paragraph of the text.

As to contests instituted by or against Indians relating to public lands, see the next paragraph of the text.

Restriction on alienation. This Act controls the period within which lands may be alienated which were entered upon under the

Act of March 3, 1875, but patented after this
Act went into effect. Frazee v. Spokane
County, (1902) 29 Wash. 278.

But where the right of homestead was perfected under the Act of March 3, 1875, the period of five years, within which the land could not be alienated as provided therein, is not extended by this Act. U. S. v. Saunders, (1899) 96 Fed. Rep. 268.