JOHN W. BROWNING.

Motion for rehearing of departmental decision of March 17, 1913, 42 L. D., 1, denied by Assistant Secretary Laylin, May 31, 1913.

TIMBER LAKE AND DUPREE TOWNSITES, SOUTH DAKOTA— PUBLIC RESERVE.

REGULATIONS.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., March 17, 1913,

The act of January 28, 1913 (37 Stat., 653), authorizes the reservation for school, park, and other public purposes of not more than five acres of the undisposed of lands within the townsites of Timber Lake and Dupree, in the Cheyenne River Indian Reservation, South Dakota, and the patenting of said reserves in each townsite to the respective municipalities.

Reservations of several blocks, in one townsite of about ten acres, in the other of about twenty acres, were made at the time of the surveying and platting of the townsites, and each such tract was designated on the plats as "Public Reserve."

The corporate authorities of each townsite should apply to the local officers for patent under said act to such "Public Reserves," or portions thereof, as they may desire, not exceeding five acres in each townsite, and must file therewith record evidence of the incorporation of their respective towns and of the authority of the officers filing the application to apply for the patent, such authority to be shown by resolution of the common council in each case, or other governing body.

Upon the filing of such application and proof, if found satisfactory, patent will issue to the town so applying in its corporate name for the tract or tracts covered by its application and for the public uses expressed in said act.

The act further authorizes the purchase price on the sale of lots in said townsites, hereafter made, to be paid in installments, and directs the setting apart of 20 per centum of the net proceeds of such sales to be expended "in the construction of schoolhouses or other public buildings or improvements in the respective townsites in which lots are sold." The proceeds derived from lot sales hereafter made in either of said two townsites will be deposited to the credit of the Treasurer of the United States as "Sales of town lots-Act of January 28, 1913 (Public-353)." In the settlement of the quarterly

accounts of the receiver 20 per centum of such proceeds will be certified to the Auditor for the Interior Department, to be set aside as a separate fund under the terms of the act mentioned.

Instructions relative to the terms of sale and payments of the purchase price for lots will be given in each case when sales are ordered. S. V. PROUDFIT,

Approved, April 3, 1913:

LEWIS C. LAYLIN,

Assistant Secretary.

Assistant Commissioner.

GREAT WESTERN POWER CO.

Decided March 17, 1913.

POWER AND RESERVOIR SITES WITHIN INDIAN RESERVATIONS.

Sections 13 and 14 of the act of June 25, 1910, authorizing the Secretary of the Interior to reserve power and reservoir sites within Indian reservations, has no application to lands outside of Indian reservations.

ALLOTMENTS WITHIN POWER OR RESERVOIR SITES-CANCELLATION OF TRUST

PATENTS.

Section 14 of the act of June 25, 1910, authorizing the Secretary of the Interior to cancel Indian trust patents issued on allotments within power or reservoir sites within Indian reservations, contemplates that such patents shall be canceled only in instances where the lands are required or reserved for irrigation purposes authorized under act of Congress.

LAYLIN, Assistant Secretary:

Under date of April 22, 1912, the Commissioner of the General Land Office transmitted reports of special agents and other papers relating to lands in Tps. 27, 28 and 29 N., Rs. 7 and 8 E., M. D. M., California, involved in what is described as the big Meadows scheme of the Great Western Power Company.

November 1, 1912, the Director of the Geological Survey, in response to reference from the Department, submitted his report and recommendation in the premises, and on December 31, 1912, a report and recommendation was filed by the Acting Commissioner of the Indian Office.

It appears from the papers submitted and from the records of the Department that the Great Western Power Company, a corporation organized under the laws of the State of California, has, by purchase, acquired a considerable area of privately owned lands along the north fork of Feather River, California. Through condemnation proceedings instituted and prosecuted in the California courts under the provisions of the act of March 3, 1901 (31 Stat., 1083), it has acquired title to a considerable area of lands allotted to Indians.

firmatory act passed by Congress May 5, 1908 (35 Stat., 100), quitclaimed, so far as the United States is concerned, the title to certain lands therein described and confirmed same to the Western Power Company, predecessor of the Great Western Power Company.

It is alleged that the Great Western Power Company and its predecessors have, in accordance with the laws of the State of California, appropriated certain waters for the generation of hydro-electric power and for irrigation and other purposes and have already expended approximately $300,000 in the construction of improvements at a proposed dam site in Sec. 28, T. 27 N., R. 8 E., M. D. M. The proposed power development having attracted the attention of the Geological Survey, an investigation was initiated with the object of retaining the control of the power site in the United States and permitting development, if at all, under the provisions of the act of February 15, 1901. Withdrawals were made November 23, 1911, and February 15, 1912, under the provisions of the act of June 25, 1910 (36 Stat., 847), (power site reserves Nos. 234 and 245).

According to the report of the Geological Survey there are two possible utilizations of the reservoir site. The first, which seems more feasible, and which it is understood the company hopes to have completed in 1913, involves the construction of a dam 63 feet in height, the flowage of which would cover approximately 12,500 acres. Of this area the Survey states 140 acres are vacant public lands. The alternative proposed development contemplates the construction of a 110-foot dam, which would flood 23,250 acres, of which area about 3,000 acres are said to be still under Government control. The socalled power-site withdrawals embrace also about 2,250 acres of lands covered by Indian allotments, as well as about 1,080 acres in unapproved State and lieu selections, and 80 acres in homestead entries. The Survey, in its recommendation of November 1, 1912, suggests the possibility that the lands included in the Indian allotments may be acquired by the power company through condemnation proceedings, and that if it be desired to retain control of these lands and the power possibilities thereof, the lands be withdrawn and acquired under the provisions of section 14 of the act of June 25, 1910 (36 Stat., 855-8); or, if that be deemed impossible, to create an Indian reservation including the lands.

The Indian Office, in its report of December 31, 1912, commenting upon the recommendation of the Survey, expresses the opinion that the interest of the Indians will be best subserved by offering for sale the lands of the Indians within the area involved at an appraised price which shall include their value for agriculture, timber, and power purposes.

Section 14 of the act of June 25, 1910, supra, as well as the preceding section 13, is by its express terms applicable only to lands

in Indian reservations, and section 14 imposes the further condition that where it is proposed to cancel trust patents issued on allotments within such power or reservoir sites, the lands must be required or reserved for irrigation purposes authorized under authority of Congress. That it has in contemplation only sites reserved in connection with irrigation projects is further shown by the concluding clause of section 14, which provides that the Indian whose allotment is canceled shall be allotted land of equal value "subject to irrigation by the project." It seems, therefore, that the lands within the Indian allotments here involved can not be withheld under said section 14.

With respect to the suggestion that the lands be included in an Indian reservation, the Department is aware of no circumstances which would warrant such action. These Indians are not concentrated upon a given area of public land and are not maintaining tribal relations, but are and have been for a number of years occupying these individual and scattered allotments made to them upon the public domain. The Department is not convinced that the best interests of the Indians would be subserved, even were it possible to make the withdrawals suggested by the Geological Survey. The Indian Office seems to be of the opinion that they would not.

While the power-site withdrawals heretofore made under the act of June 25, 1910 (36 Stat., 847), for vacant public lands, might be maintained, there are, according to the Survey's statement, but 140 acres within the flow line of the 63-foot dam site still under Government control. This is such an infinitesimal portion of the proposed reservoir, the remainder being in private ownership, that the Department does not feel warranted in interposing this as an obstacle to the development of the power company's power and irrigation projects. The 110-foot dam, if constructed, would include a somewhat larger area of public lands, but even in that case not exceeding one-eighth of the area involved.

Upon full consideration of the matter the Department concurs in the recommendation of the Commissioner of Indian Affairs that better returns for the Indians will be secured through the sale of lands needed by the power company, upon an appraised value. The Commissioner of Indian Affairs is accordingly hereby authorized and directed to proceed with the sale of the lands of Indian allottees involved in this matter, upon the express condition that the lands be first appraised on the basis of their value for agriculture, timber, and power-site purposes, and disposed of for not less than that valuation.

As to the public lands within the limits of the company's proposed reservoir, the Commissioner of the General Land Office is authorized and directed, upon receipt of an application by the company for the

right to use the lands under the act of February 15, 1901 (31 Stat., 790), to forward such application, together with his recommendation, to the Department, whereupon the advisability of recommending to the President that power-site withdrawals Nos. 234 and 245 be modified to the extent of lands applied for, will be given consideration by the Department. The papers submitted by the Commissioner of the General Land Office will be returned to the files of that office.

ETHEL M. CATRON.

Decided March 17, 1913.

RELINQUISHMENT OF RECLAMATION ENTRIES.

The provision in the act of February 18, 1911, that where entries made prior to June 25, 1910, embracing lands within a reclamation project, have been or may be relinquished, in whole or in part, the lands so relinquished shall be subject to settlement and entry under the homestead law as modified by the reclamation act, is applicable only to entries under the reclamation act, and can not be invoked as to entries canceled prior to the reclamation act or made before and afterwards canceled for fraud.

LAYLIN, Assistant Secretary:

Ethel M. Catron appealed from decision of the Commissioner of the General Land Office of May 2, 1912, denying her homestead application for SE. 1, Sec. 25, T. 20 N., R. 50 W., 6th P. M., Alliance, Nebraska.

May 13, 1911, Catron applied for homestead entry which the local office rejected because the land applied for is not subject to entry under act of June 25, 1910. She appealed and the Commissioner affirmed that action.

The former history of this land is, that it was entered October 17, 1891, by Ellen Hearson, who relinquished August 31, 1899, on which date Mary E. Ryan made homestead entry therefor, submitted final proof, and patent issued to her October 10, 1907. On charges of fraud made by a special agent suit was begun to set aside the patent, and the entry was canceled October 10, 1910.

The township including this land was withdrawn from entry by the Secretary of the Interior February 11, 1903, for reclamation under act of June 17, 1902 (32 Stat., 388). It has not been restored to entry. The act of June 25, 1910 (36 Stat., 836), provided that entry of lands so withdrawn should not be permitted "until the Secretary of the Interior shall have established the unit of acreage and fixed the water charges when the water can be applied and made public announcement of the same." The act of February 18, 1911, amended this section by a proviso that where entries made before June 25, 1910, have been or may be relinquished in whole or in part,