leges of citizenship." People v. Bray, (1894) 105 Cal. 344, citing Elk v. Wilkins, (1884) 112 U. S. 94. The only way to citizenship for an Indian, it would seem, is in complying with the requirement of this Act. In re Burton, (1900) 1 Alaska 111. Restraint on alienation not inconsistent with citizenship. The restraint on alienation of the lands allotted in severalty is not inconsistent with the citizenship conferred in this section. Beck . Flournoy Live-Stock, etc., Co. (C. C. A. 1894) 65 Fed. Rep. 30; U. S. v. Flournoy Live-Stock, etc., Co., (1895) 69 Fed. Rep. 886; U. S. v. Flournoy Live-Stock, etc., Co., (1896) 71 Fed. Rep. 576; Frazee v. Spokane County, (1902) 29 Wash. 278. See also Jones t. Meehan, (1899) 175 U. S. 1, holding that, while citizenship as conferred in the above section does not enable Indians to alienate lands which before were not alienable, it certainly does not take away a power of alienation conferred by the treaty under which the allotment was made. Not applicable to Indians as a tribe. This section has no application to a tribe of Indians, as the Eastern Band of Cherokees of North Carolina, but is intended to cover the case of the individual Indian who has taken up his residence separate and apart from his tribe, and has adopted the habits of civilized life. U. S. v. Boyd, (1897) 83 Fed. Rep. 547. When citizenship attaches. — The issuance of a patent to an Indian to whom lands have been allotted under this Act is not essential to his complete citizenship. When one who possesses the statutory qualifications accepts the lands allotted and complies with the law in other respects, he becomes entitled to a patent to his land and his citizenship attaches. Accordingly, the Indians of Winnebago and Perry precincts in Thurston county, Nebraska, as well as those to whom patents had issued, were qualified electors and entitled to vote at the election of Nov. 3, 1891. State v. Norris, (1893) 37 Neb. 299. See also Hankey v. Bowman, (1901) 82 Minn. 328. Authority to sue. - Indians to whom lands have been allotted under this section are given, among their other rights, privileges, and immunities, the right to sue in the proper forum. The government itself may sue when necessary for the protection of the rights of Indians, but an Indian agent has no authority to do so. In re Celestine, (1902) 114 Fed. Rep. 551. The right to bring and defend actions in the state courts is conferred upon Indians who comply with the provisions of this Act. Wa-la-note-tke-tynin v. Carter, (Idaho 1898) 53 Pac. Rep. 106. See also Bird v. Winyer, (1901) 24 Wash. 269. In Hatch v. Ferguson, (1893) 57 Fed. Rep. 959, it was held that an Indian woman who married a white man and voluntarily took a residence apart from the tribe to which she belonged, became entitled to the same rights as other female citizens, and after the death of her husband was entitled to sue in the federal courts a citizen of another state. In Bem-way-bin-ness v. Eshelby, (1902) 87 Minn. 108, it was held that a tribal Indian, 3 F. S. A.- 32 497 whether a citizen under the above section or not, may maintain an action in the courts of the state of Minnesota to redress any wrong committed outside the limits of his reservation against his person or property. over The jurisdiction of federal courts crimes committed by Indians on Indian reservations is not abandoned by the declaration in this section that the Indians to whom lands have been allotted shall be subject to the laws of the state in which they reside. In re Blackbird, (1895) 66 Fed. Rep. 541; State r. Columbia George, (1901) 39 Oregon 127. The state courts, however, have jurisdiction of crimes committed by persons other than Indians on Indian reservations. Draper v. U. S., (1896) 164 U. S. 240. The unlawful cutting of timber by an Indian, upon the land which he holds in severalty, is not an offense punishable under the Act of Congress of the 4th of June, 1888, making it unlawful to cut timber upon lands belonging to or occupied by any tribe of Indians under authority of the United States." (1888) 19 Op. Atty.-Gen. 183. 66 Reservation not revoked. The citizenship conferred by the Act does not emancipate the Indians from all control, or abolish the reservation. "Some of the restraints of a reservation may be inconsistent with the rights of citizens; the advantages of a reservation are not; and if, to secure the latter to the Indians, others not Indians are excluded, it is not clear what right they (the Indians) have to complain. Eells v. Ross, (1894) 64 Fed. Rep. 419; U. S. v. Flournoy Live Stock, etc., Co.. (1896) 71 Fed. Rep. 576. See also State 7. Columbia George, (1901) 39 Oregon 127; Frazee v. Spokane County, (1902) 29 Wash. 278. An Indian who has lived since, and for a long time prior to, the passage of the Act of Feb. 8, 1887, separate and apart from any tribe, and after the manner of a civilized white citizen, is not an Indian within the meaning of the above section and is not entitled to hold his lands exempt from taxation by virtue of the Act of July 13, 1787, art. 3, providing that the lands and property of Indians shall never be taken from them without their consent. Miami County v. Godfroy, (1901) 27 Ind. App. 610. Government control of liquor traffic not disturbed. This section does not deprive the government of its power to regulate commerce with Indians situated as referred to therein, to protect them, as its wards, against their appetites, passions, and incompetence; and laws making the selling of spirituous liquors to such Indians punishable by fine or imprisonment are passed in the proper exercise of that power. Farrell v. U. S., (C. C. A. 1901) 110 Fed. Rep. 942; State v. Wise, (1897) 70 Minn. 99. To entitle an Indian to vote in the state of Nebraska by virtue of his citizenship under the Act of Feb. 8, 1887, it must be shown that the Indian offering to vote was born within the territorial limits of the United States, and that an allotment of land has, in fact, been made to such Indian by the government of the United States in pursuance of said Act, or of like authority of law or treaty Volume III. of the United States. State v. Frazier, (1890) 28 Neb. 438. The Puyallup Indians, by virtue of patents issued to them Dec. 26, 1854, to certain lands of the Puyallup reservation, Washington Territory, and by reason of the citizenship conferred by the above section, are the owners in fee of the said lands and can permit the building of a railroad upon the same, and the government has no authority to interfere. Ross v. Eells, (1893) 56 Fed. Rep. 855. See also U. S. v. Kopp, (1901) 110 Fed. Rep. 160. The above section 6 in the text apparently wholly supersedes R. S. sec. 2312, which read as follows: "SEC. 2312. Whenever any of the chiefs, warriors, or heads of families of the tribes mentioned in section twenty-three hundred and ten, having filed with the clerk of the district court of the United States a declaration of his intention to become a citizen of the United States, and to dissolve all relations with any Indian tribe, two years previous thereto, appears in such court, and proves to the satisfaction thereof, by the testimony of two citizens, that for five years last past he has adopted the habits of civilized life; that he has maintained himself and family by his own industry; that he reads and speaks the English language; that he is well disposed to become a peaceable and orderly citizen; and that he has sufficient capacity to manage his own affairs; the court may enter a decree admitting him to all the rights of a citizen of the United States, and thenceforth he shall be no longer held or treated as a member of any Indian tribe, but shall be entitled to all the rights and privileges, and be subject to all the duties and liabilities to taxation of other citizens of the United States. But nothing herein contained shall be construed to deprive such chiefs, warriors, or heads of families of annuities to which they are or may be entitled." Act of March 3, 1865, ch. 127, 13 Stat. L. 562. The Indians mentioned in R. S. sec. 2310, to which the above section 2312 refers, are "each of the chiefs, warriors, and heads of families of the Stockbridge Munsee tribes of Indians, residing in the county of Shawana, State of Wisconsin." SEC. 7. [Secretary of Interior to prescribe rules for use of waters for irrigation.] That in cases where the use of water for irrigation is necessary to render the lands within any Indian reservation available for agricultural purposes, the Secretary of the Interior be, and he is hereby, authorized to prescribe such rules and regulations as he may deem necessary to secure a just and equal distribution thereof among the Indians residing upon any such reservations; and no other appropriation or grant of water by any riparian proprietor shall be authorized or permitted to the damage of any other riparian proprietor. [24 Stat. L. 390.] SEC. 8. [Act not to extend to lands of certain tribes.] That the provision of this act shall not extend to the territory occupied by the Cherokees, Creeks, Choctaws, Chickasaws, Seminoles, and Osage, Miamies and Peorias, and Sacs and Foxes, in the Indian Territory, nor to any of the reservations of the Seneca Nation of New York Indians in the State of New York, nor to that strip of territory in the State of Nebraska adjoining the Sioux Nation on the south added by executive order. [24 Stat. L, 391.] The provisions of this Act are extended to the Wea, Peoria, Kaskaskia, Piankeshaw, and Western Miami tribes by Act of March 2, 1889, ch. 422, 25 Stat. L. 1013. Compilers' note, 1 Supp. R. S. 536. SEC. 9. [Appropriation for surveys.] That for the purpose of making the surveys and resurveys mentioned in section two of this act, there be, and hereby is, appropriated, out of any moneys in the Treasury not otherwise appropriated, the sum of one hundred thousand dollars, to be repaid proportionately out of the proceeds of the sales of such land as may be acquired from the Indians under the provisions of this act. [24 Stat. L. 391.] Erroneous reference- intention of lawmakers to be given effect. The reference in this section to section 2 of this Act is erroneous, the surveys and resurveys alluded to being mentioned in section 1, but since it is the plain intention of the lawmakers that the costs of these surveys should be paid by the appropriation contained in the above section, the law will be so construed as to carry out that intention. (1887) 18 Op. Atty.-Gen. 593. SEC. 10. [Rights of way for railroads, etc., not affected.] That nothing in this act contained shall be so construed as to affect the right and power of Congress to grant the right of way through any lands granted to an Indian, or a tribe of Indians, for railroads or other highways, or telegraph lines, for the public use, or to condemn such lands to public uses, upon making just compensation. [24 Stat. L. 391.] SEC. 11. [Removal of Southern Utes not affected by act.] That nothing in this act shall be so construed as to prevent the removal of the Southern Ute Indians from their present reservation in Southwestern Colorado to a new reservation by and with the consent of a majority of the adult male members of said tribe. [24 Stat. L. 391.] An act authorizing the Secretary of the Interior to accept the surrender of and cancel land patents to Indians in certain cases. [Act of Oct. 19, 1888, ch. 1214, 25 Stat. L. 611.] * following-named * * Indians, * * X [SEC. 1.] [Acceptance of surrender of land patents from Indians.] That the Secretary of the Interior be, and he is hereby, authorized to accept the surrender of and to cancel patents conveying the land therein described and issued to the and to allot and patent to said Indians, under the act of February eighth, eighteen hundred and eightyseven, such lands as they would be thereby entitled to had no previous patents to them severally been made. [25 Stat. L. 611.] Section 1 of this Act is special, and only so much is here retained as is necessary to an understanding of section 2, which contains the only general legislation in the Act. The Act of Feb. 8, 1887, to which the text refers, is set forth supra, p. 492. SEC. 2. [Indians may surrender patents, and receive allotments in severalty.] The Secretary of the Interior is hereby authorized, in his discretion, and whenever for good and sufficient reason he shall consider it to be for the best interest of the Indians, in making allotments under the statute aforesaid, to permit any Indian to whom a patent has been issued for land on the reservation to which such Indian belongs, under treaty or existing law, to surrender such patent with formal relinquishment by such Indian to the United States of all his or her right, title, and interest in the land conveyed thereby, properly indorsed thereon, and to cancel such surrendered patent: Provided, That the Indian so surrendering the same shall make a selection, in lieu thereof, of other land and receive patent therefor, under the provisions of the act of February eighth, eighteen hundred and eighty-seven. [25 Stat. L. 612.] An act to amend and further extend the benefits of the act approved February eighth, eighteen hundred and eighty-seven, entitled "An act to provide for the allotment of land in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States over the Indians, and for other purposes." [Act of Feb. 28, 1891, ch. 383, 26 Stat. L. 794.] SEC. 1. [Allotment of one-eighth section of land in severalty to each Indian on reservation.] That in all cases where any tribe or band of Indians has been, or shall hereafter be, located upon any reservation created for their use, either by treaty stipulation or by virtue of an Act of Congress or Executive order setting apart the same for their use, the President of the United States be, and he hereby is, authorized, whenever in his opinion any reservation, or any part thereof, of such Indians is advantageous for agricultural or grazing purposes, to cause said reservation, or any part thereof, to be surveyed, or resurveyed, if necessary, and to allot to each Indian located thereon one-eighth of a section of land: [Allotment pro rata, if lands insufficient.] Provided, That in case there is not sufficient land in any of said reservations to allot lands to each individual in quantity as above provided the land in such reservation or reservations shall be allotted to each individual pro rata, as near as may be, according to legal subdivisions: [Allotment by treaty or act, not reduced.] Provided further, That where the treaty or act of Congress setting apart such reservation provides for the allotment of lands in severalty to certain classes in quantity in excess of that herein provided the President, in making allotments upon such reservation, shall allot the land to each individual Indian of said classes belonging thereon in quantity as specified in such treaty or act, and to other Indians belonging thereon in quantity as herein provided: [Allotment under existing agreements or laws in accordance with former act may be made as herein provided if Indians consent.] Provided further, That where existing agreements or laws provide for allotments in accordance with the provisions of said act of February eighth, eighteen hundred and eighty-seven, or in quantities substantially as therein provided, allotments may be made in quantity as specified in this act, with the consent of the Indians, expressed in such manner as the President, in his discretion, may require: [Double allotments of lands fit for grazing only.] And provided further, That when the lands allotted, or any legal subdivision thereof, are only valuable for grazing purposes, such lands shall be allotted in double quantities. [26 Stat. L. 794.] The above section is preceded by the following clause: "That section one of the Act entitled 'An act to provide for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the Territories over the Indians, and for other purposes,' approved February eighth, eighteen hundred and eighty-seven, be, and the same is hereby, amended so as to read as follows: " The section for which the above section is thus substituted is set forth in a note supra, p. 492. Leases to others than native members of their respective tribes were not provided for by any treaty, Act of Congress, or otherwise, until the passage of this Act. U. S. v. Flournoy Live-Stock, etc., Co., (1895) 69 Fed. Rep. 886. See also Beck . Flournoy Live-Stock, etc., Co., (C. C. A. 1894) 65 Fed. Rep. 30. SEC. 2. [Existing allotments in certain cases to be augmented no existing approved allotment to be reduced.] That where allotments have been made in whole or in part upon any reservation under the provisions of said act of February eighth, eighteen hundred and eighty-seven, and the quantity of land in such reservation is sufficient to give each member of the tribe eighty acres, such allotments shall be revised and equalized under the provisions of this act: Provided, That no allotment heretofore approved by the Secretary of the Interior shall be reduced in quantity. [26 Stat. L. 795.] The Act of Feb. 8, 1887, to which the text refers, is set forth supra, p. 492. SEC. 3. [Leases of allotments, when permitted.] That whenever it shall be made to appear to the Secretary of the Interior that, by reason of age or other disability, any allottee under the provisions of said act, or any other act or treaty can not personally and with benefit to himself occupy or improve his allotment or any part thereof the same may be leased upon such terms, regulations and conditions as shall be prescribed by such Secretary, for a term not exceeding three years for farming or grazing, or ten years for mining purposes: Provided, That where lands are occupied by Indians who have bought and paid for the same, and which lands are not needed for farming or agricultural purposes, and are not desired for individual allotments, the same may be leased by authority of the Council speaking for such Indians, for a period not to exceed five years for grazing, or ten years for mining purposes in such quantities and upon such terms and conditions as the agent in charge of such reservation may recommend, subject to the approval of the Secretary of the Interior. [26 Stat. L. 795.] For the nonpayment of rent and for the commission of waste the secretary of the interior has not power to cancel and annul the lease, though by the terms of the lease all the parties thereto covenant and agree that it is made with the express proviso that if any of the rent shall remain unpaid for thirty days after the same shall have become payable, or if the lessee shall commit waste or suffer it to be committed on such premises, the lease shall thereupon expire at the option of the lessors, with the approval of the secretary of the interior, without notice or demand, with the right of re-entry, as the secretary has not authority to adjudge and determine that the contingencies upon which the lease should terminate have happened. Mosgrove v. Harper, (1898) 33 Oregon 252. Rights of lessee. A lease can be made in the first instance only under certain circumstances, and by the consent and approval of the secretary of the interior, but after it has been executed by an allottee competent to enter into such an agreement, and has been approved, it becomes a complete contract, binding upon all the parties, and can be canceled or abrogated only in the same manner, for the same reason, and by the same tribunal, as any other similar contract. "By such a contract the lessee secures a vested interest, of which he can no more be deprived by an order of the secretary of the interior than he can be deprived by such order of any other property lawfully acquired." Mosgrove v. Harper, (1898) 33 Oregon 252. Liability for rent when approval delayed. - By the terms of a lease the lessee was to pay rent on a certain date, but the statute contains a provision that it should not be valid or enforceable until it was approved by the secretary of the interior, and it was not approved until four months after such date. If the lease had been delivered as soon as it was approved, it could not have constituted a binding agreement between the parties before its approval and there could not have been any liability upon the lessee to pay the rent on the date named. Lemmon v. U. S., (C. C. A. 1901) 106 Fed. Rep. 650. The words "bought and paid for " are not limited to lands which have been actually paid for in cash, or to lands which have been patented and the title thereto actually parted with by the United States, but it was the intention of Congress that the statute and these words should apply to all lands which have been purchased by the Indians, either by the payment of money, or exchange or surrender of the possession of other property. Strawberry Valley Cattle Co. v. Chipman, (1896) 13 Utah 454. SEC. 4. [Indians entitled to allotment may select public lands fees to be paid from Treasury.] That where any Indian entitled to allotment under existing laws shall make settlement upon any surveyed or unsurveyed lands of the United States not otherwise appropriated, he or she shall be entitled, upon application to the local land office for the district in which the lands are located, to have the same allotted to him or her and to his or her children, in quantities and manner as provided in the foregoing section of this amending act for Indians residing upon reservations; and when such settlement is made upon unsurveyed lands the grant to such Indians shall be adjusted upon the survey of the lands so as to conform thereto; and patents shall be issued to them for such lands in the manner and with the restrictions provided in the act to which this is an amendment. And the fees to which the officers of such local land office would have been entitled had such lands been entered under the general laws for the disposition of the public lands shall be paid to them from any moneys in the Treasury of the United States not otherwise appropriated, upon a statement of an account in their behalf for such fees by the Commissioner of the General Land Office, and a certification of such account to the Secretary of the Treasury by the Secretary of the Interior. [26 Stat. L. 795.] SEC. 5. [Determination of descent-" Cherokee Outlet" lands excepted · certain Sacs and Foxes excepted.] That for the purpose of determining the descent of land to the heirs of any deceased Indian under the provisions of the fifth section of said act, whenever any male and female Indian shall have co-habited together as husband and wife according to the custom and manner of Indian life the issue of such co-habitation shall be, for the purpose aforesaid, taken and deemed to be the legitimate issue of the Indians so living together, and |