desert-land laws have occupied any of said lands with the intention of entering the same under the homestead or desert-land laws, such persons shall be allowed three months from and after the passage of this act, or after the said lands shall be restored to entry, within which to make their entries, and the fact that such persons have improved or reclaimed such desert lands shall be no bar to their making such entries. It will be observed that the act above quoted confers preference rights upon two classes of persons-viz., those who prior to May 23, 1898, had purchased from the grant claimants portions of said lands and had established homes thereon, and those who prior to the passage of the act had occupied portions of the land with the intention of entering the same under the homestead or desert-land laws. Neither of these classes of preferred claimants is given preference over the other, but the rights awarded to them by the statute seem to be of equal dignity, and therefore, in case of a conflict between claimants of the two classes, their respective rights must be determined by priority of initiation, just as is done in other cases of conflicting claims arising under the same statute.

Applying this rule, the Department, in the decision complained of, found that Smith's claim was entitled to the preference because it was first initiated, he having taken possession of, improved, and cultivated a portion of the land in 1897, while Priest did not purchase from French, nor establish his residence on the land until 1899, and said decision is based principally upon this ground. But it was also found that Priest had not furnished sufficient evidence to show that his vendor, French, was a purchaser from the Algodones Company, and therefore it was held that he was not entitled to purchase the land as a remote purchaser from the company.

But if it be conceded that French was a purchaser from the Algodones Company, Priest would not be entitled to the benefit of said statute, for the simple reason that such benefits are expressly limited to those who purchased prior to May 23, 1898, and Priest's purchase from French was subsequent to that time. That was the date of the decision of the Supreme Court in the case of United States v. Coe (170 U. S., 681), wherein it was held that the land belonged to the United States, and those who purchased from the grant claimants after that decision did so with notice that the company had no title to the land.

It may be said that Priest purchased whatever right French had to the land, and that he is now entitled to the same rights and privileges with respect to it that French would be if he had not sold to Priest, but this proposition leaves Priest in no better situation, for the reason that French had never established a home on the land, and this Department, in the case of Lynn v. Miles (32 L. D., 11), held that the statute applied only to purchasers from the Algodones Company who had established permanent homes on the land.

23286-Vol. 32-03-19

It was clearly the intention of Congress to award the right of purchase to those who, relying upon the judgment of the Court of Private Land Claims, had purchased and established permanent homes on the land prior to the decision of the Supreme Court in the case of the United States v. Coe, supra. The establishment of a home on the land after that time would confer no rights under the statute any more than would an original purchase from the Algodones Company after that time; and so, if French had not sold to Priest, and if he had established his residence on the land in 1899, as Priest did, it would not have given him a right to purchase the land under the statute in question.

But there is still another reason why French would not have been qualified to purchase under the statute. The preamble to the statute, after reciting the rendition of the judgment by the Court of Private Land Claims sustaining the grant, states that

immediately thereafter, the said alleged grantees for large and valuable considerations sold to numbers of people, citizens and bona fide settlers on said lands, . . . and said settlers then believing that they had a bona fide title to said lands sold, made lasting and valuable improvements, and permanent homes thereon . . Therefore: Be it enacted. . . . That where such persons in good faith and for valuable considerations purchased from the grant claimants, prior to May twenty-third, eighteen hundred and ninety-eight, ... such persons may purchase the same at the price of one dollar and twenty-five cents per acre.

The statute limits the right to purchase to "such persons" as are described in the preamble-viz., persons who, after the decision of the Court of Private Land Claims and prior to the decision of the Supreme Court, purchased in good faith from the grant claimants. French was not such a person, because his alleged purchase from the grant claimants was in July, 1893, long prior to the decision of the Court of Private Land Claims, and therefore he was not in a situation to claim that he had been misled by said decision.

The statute awards the right to purchase only to those who purchased from the grant claimants between the dates of the two decisions, and French's purchase was prior to the first decision, while Priest's was subsequent to the last one, and therefore neither of them is such a person as described in the statute.

This Department has held that, upon the final rejection of the claims under the Algodones grant, the land embraced therein immediately became subject to settlement and entry. Katharine Davis (30) L. D., 220). Smith was a settler on the land prior to and at the time when it was opened to entry, and his settlement was prior to that of Priest, and it was properly held that his rights were superior to the claim of Priest.

Several affidavits have been filed with the motion for review wherein it is alleged that Priest has made extensive improvements on the land in question, and he states in a letter to this Department that, if said decision is adhered to, it will have the effect to deprive him of his

home and of the fruits of much labor and hardship. It is to be regretted if he should suffer such loss, but this Department in deciding contests between conflicting claimants must be guided by the law and the evidence, regardless of the amount that may be lost or gained by the contending parties. Moreover, if Priest has expended a large amount of money and labor in the improvement of the land in question, basing his claim upon his purchase from French, he is not in a position to complain that he is likely to suffer loss thereby, because he had full notice that the land belonged to the United States, and if he placed extensive improvements thereon he did so at his peril.

The motion presents no sufficient reason for disturbing said decision, and none appearing otherwise, it is denied.

INDIAN HOMESTEAD—ACT OF JULY 4, 1884.

DOC JIM.

Until the issuance of final patent on an Indian homestead entry under the act of July 4, 1884, the land department retains jurisdiction over the land embraced therein and is bound to protect the rights of the homesteader.

No preference right of entry is acquired by filing a contest and procuring the cancellation of an Indian homestead entry made under the act of July 4, 1884.

The relinquishment of an Indian homestead entry made under the act of July 4, 1884, does not become effective until approved by the Department.

Acting Secretary Ryan to the Commissioner of Indian Affairs, October (F. L. C.) 27, 1903. (C. J. G.)

The Department has considered the case of Doc Jim, an Indian, submitted by your office letter of August 4, 1903, involving his homestead entry No. 358, Yakima series, for the E. SE., Sec. 5, T. 23 N., R. 19 E., Waterville, Washington.

The land is within the primary limits of the grant opposite the Cascade branch line of the Northern Pacific Railway Company as definitely located December 8, 1884. The notice of withdrawal on account of the location was received in the local office January 20, 1888. The homestead entry of Doc Jim was made March 30, 1885. In a case on appeal involving the conflicting claims of the railway company and Doc Jim, the Department under date of May 1, 1901 (not reported), held that as the latter, following the passage of the act of July 1, 1898 (30 Stat., 597, 620), filed his election to retain this land as against the company, said claims should be adjusted under the provisions of said act, which are as follows:

That where, prior to January first, eighteen hundred and ninety-eight, the whole or any part of an odd-numbered section, in either the granted or the indemnity limits of the land grant to the Northern Pacific Railroad Company, to which the right of the grantee or its lawful successor is claimed to have attached by definite

location or selection, has been purchased directly from the United States or settled upon or claimed in good faith by any qualified settler under color of title or claim of right under any law of the United States or any ruling of the Interior Department, and where purchaser, settler, or claimant refuses to transfer his entry as hereinafter provided, the railroad grantee or its successor in interest, upon a proper relinquishment thereof, shall be entitled to select in lieu of the land relinquished an equal quantity of public lands.

The railway company relinquished its claim to the land in question, the relinquishment was accepted, and the case finally closed by the General Land Office. Doc Jim was notified of the action taken and that he might proceed to perfect his claim to the land. He applied to submit final proof on his entry and a day was set for a hearing thereon. But he failed to submit proof and on the contrary filed a relinquishment of his entry.

The further facts in the case, as gathered from the reports of an Indian agent sent to investigate the same, are very fully set forth in your office letter, from which it is fair to conclude that some pressure, although not necessarily of a reprehensible and dishonest character, was brought to bear on Doc Jim to induce him to relinquish his entry. He was offered a money consideration for the land and seems to have been impressed with the idea that he was subject to contest for failure. to comply with the law under which the entry was made. There is grave doubt as to whether he was in a position to submit satisfactory final proof, judged by the rule applicable to the ordinary homesteader in such matters. Charges were subsequently filed against him by the purchaser of his relinquishment, pending action on the latter, and a hearing was had thereon.

On account of the contradictory character of the evidence relative thereto it is impossible to determine with sufficient certainty whether the act of Doc Jim in relinquishing his entry was entirely voluntary or not. There are papers filed indicating on their face a willingness on his part to sell the land. On the contrary the Indian agent reports that both Doc Jim and members of his family have expressed a desire to retain the land, and it is gathered from the record that he would have proceeded to submit his final proof had he not been advised to the contrary by one claiming to act in his behalf as well as in that of the purchaser of his relinquishment. Under all the circumstances the Department is warranted in taking such action as is seemingly for the best interests and welfare of the Indian, unless such a claim has attached to the land as deserves recognition and would rightfully prevent action in his favor.

The act of March 3, 1875 (18 Stat., 402, 420), extended the benefits. of the homestead law to

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.

The act of July 4, 1884 (23 Stat., 76, 96), further extended the same benefits as follows:

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.

Any question as to the sufficiency of Doc Jim's claim to the land in question as against the Northern Pacific Railway Company, for the purposes at least contemplated by the act of July 1, 1898, supra, was settled by departmental decision of May 1, 1901, supra. It appears that his entry was made under the act of July 4, 1884, supra, which confers the benefits of the homestead law upon "Indians" as distinguished from "citizens of the United States." Both the acts of 1875 and 1884 provide special rules and limitations not applicable to other homestead cases, and impose certain restrictions, as to encumbrance and alienation, upon the title the beneficiaries secure. The language of section 5 of the act of February 8, 1887 (24 Stat., 388, 389), with respect to the issuance of patents upon Indian allotments and the trusteeship of the United States, closely follows that of the act of 1884 with respect to Indian homesteads. It is well settled that the issuance of the first or trust patent on an allotment does not terminate the jurisdiction of the Department. Until the issuance of final patent the allottee remains as a ward subject to guardianship, whose rights the Department is bound to protect. The language of the act of 1884 is undoubtedly susceptible of the same construction, and all the reasons for the exercise of the protecting care of the government in the case of an Indian allottee are equally applicable in the case of the Indian homesteader.

The hearing had on the charges brought against Doc Jim's entry, pending departmental action on his relinquishment, was evidently premature, and consequently no rights were secured thereunder. In the matter of an allotment, on account of the peculiar status of the Indian, no encouragement has ever been given to third parties to attack the same with the hope or expectation of securing any advantage by reason of such attack. In the event of the cancellation of the allotment no