called upon to show cause, within sixty days from notice, why her said entry should not be canceled, and that of McKenzie permitted to stand. In case no response is received from Richards within the time specified, her entry will be canceled. If she should apply for a hearing, it should be granted, and the case re-adjudicated in accordance with the facts disclosed at such hearing, and in pursuance of the principles hereinbefore enunciated.

Your office decision of April 18, 1890, is modified as herein indicated.

PROCEEDINGS ON PROTEST-CORROBORATING WITNESS-ACT OF JUNE 5, 1872.

HINCHMAN ET AL. v. MCCLAIN.*

It lies within the discretion of the Commissioner to refuse an order for a hearing on protest where the allegations therein are deemed by him insufficient, and the corroborating witnesses testify from information and belief.

The fifteen townships set apart for sale for the benefit of the Flathead Indians, under the provisions of the act of June 5, 1872, did not include lands lying in part below the Lo Lo Fork of the Bitter Root River.

First Assistant Secretary Muldrow to the Commissioner of the General Land Office, March 18, 1889.

I have considered the appeal of Wilbert H. Hinchman and William H. Reed, from your office decision, dated December 28, 1887, in the contest case of said Hinchman and Reed v. Thomas A. McClain, returning for amendment the contest affidavit.

The record shows that on December 13, 1882, Thomas A. McClain made desert land entry No. 560, for the S. of the NW. 4, and the SW. 4, of Sec. 14, T. 11 N., R. 20 W., Helena land district, Montana Territory.

On August 27, 1885, in accordance with published notice, he made final proof and payment for said described tract, and on September 5, 1885, receiver's receipt and final certificate No. 306 were issued to McClain for said land.

On November 8, 1887, the register transmitted to your office a protest of Wilbert M. Hinchman, and William H. Reed, against the issuance of patent to McClain for said tract, in which they alleged that said lands will without irrigation produce an agricultural crop each year with the ordinary amount of cultivation required on other farms in the vicinity which are homestead and pre-emption claims Deponents further say that said land is within the fifteen townships surveyed and opened to settlement for the purpose of raising funds for the confederated tribes of Flat Head Indians; and that said land is south of the Lo Lo Fork in the Bitter Root valley, and is only open to preemption settlers under the act of June 5, 1872. . . that the final receipt

of said desert land entry was obtained in a fraudulent manner by imposition on the government and its officers and the witnesses, and that the said Thomas A. McClain is not entitled to any part of said tract as a desert land claim, etc.

On December 28, 1887, your office by letter "H" decided that the allegations made by protestants as to the land in dispute being within the fifteen townships reserved for the benefit of Flathead Indians, etc., "is not borne out by the records in this office." Your office also found that protestants corroborating witnesses, Theodore Upman and Pleas ant Davis, depose and say that "the foregoing allegations are true to their best knowledge, information and belief," while form (4-072) prepared by your office, the corroborating witnesses are required to testify "that they know from personal observation that the statements therein made are true," and held that said witnesses cannot testify "from information and belief," and further that "it does not appear from protestants affidavit that the agricultural crop referred to would grow upon said land in sufficient quantity, without artificial irrigation at the time said entry was made, viz: January 3, 1883, to fairly remunerate the husbandman for the seed, time and labor in producing the same,” and for said reason returned said affidavit for amendment in that particular, and for the required corroboration.

The protestants appealed from said decision, and therein alleged that the points of objection raised by your office are not material in this case, for the reason that the affidavit sets forth facts to show that the land is within the fifteen townships set apart for the benefit of the Flathead Indians under the law of June 5, 1872, and that all the entries that can be made on said lands outside of cash entries are homestead entries, and that the claimant has no legal right to a desert land entry by law on the tract in contest."

Counsel for protestants in their argument state that they waive their right to amend their affidavit of contest and rely upon the provisions of the act of June 5, 1872, as sufficient to warrant a cancellation of claimant's entry.

Section one (1) of said act declares (17 Stat., 226):

That it shall be the duty of the President, as soon as practicable, to remove the Flathead Indians (whether of full blood or mixed bloods,) and all other Indians connected with said tribe, and recognized as members thereof, from Bitter Root valley, in the Territory of Montana, to the general reservation in said Territory (commonly known as the Jocko reservation), which by a treaty concluded at Hell Gate, in the Bitter Root valley, July sixteenth, eighteen hundred and fifty-five and ratified by the Senate, March eighth, eighteen hundred and fifty-nine, between the United States and the confederated tribes of Flatheads, Kootenai and Pend d'Oreille Indians, was set apart and reserved for use and occupation of said confederated tribes.

Section two (2) of said act provides that as soon as practicable after the passage of this act, the surveyor general of Montana Territory shall cause to be surveyed, the lands in the Bitter Root valley lying above the Lo-Lo Fork of the Bitter Root river; and said lands shall be open to settlement and shall be sold in legal subdivisions to actual settlers only, the same being citizens of the United States, or having duly declared their intention to become such citizens, said settlers being heads of families or over twenty-one years of age, in quantities not exceeding one hundred and sixty acres to each settler, at the price of one dollar

and twenty-five cents per acre, payment to be made in cash within twenty-one months from the date of settlement, or of the passage of this act. The sixteenth and thirty-sixth sections of said lands shall be reserved for school purposes in the manner provided by law. Townsites in said valley may be reserved and entered as provided by law; Provided, that no more than fifteen townships of the land so surveyed shall be deemed to be subject to the provisions of this act.

And provided further, that none of the lands in said valley above the Lo-Lo Fork shall be open to settlement under the homestead laws of the United States.

The records in your office show that in accordance with the provi sions of section two of the act of June 5, 1872, a survey of fifteen townships, part of which are fractional, was made, and copies of which were duly filed in the local office. This survey contains the following townships, and is approved as designating the following fifteen contemplated by said act, to wit:

"Township 5, North, Range 20 W.,

It also appears from the records in your office that township eleven (11) north, range twenty (20) west, being in part below the Lo-Lo Fork of the Bitter Root river, is not subject to sale under the said act, and was not embraced in said reservation.

The local officers transmitted these affidavits for the consideration of your office, without expressing any opinion thereon. The duty of deciding upon the sufficiency thereof and whether a hearing should be had thereunder devolved upon your office. The action to be taken was under these circumstances largely a matter of discretion, and unless it was clearly wrong and worked an injustice should not be disturbed. Under the circumstances of this case, and in view of the fact that the appellants have virtually waived all question as to the sufficiency of these allegations, except the one hereinbefore discussed and decided, I see no reason for modifying the order made by your office.

The decision appealed from is, for the reasons herein set forth, af firmed.

MILLE LAC INDIAN LANDS ACT OF JANUARY 14, 1889.

AMANDA J. WALTERS ET AL.

The "further legislation" required by the act of July 4, 1884, prior to the disposition of the lands named therein, is provided by the act of January 14, 1889, and such legislation is now operative, as the cession of the Indian's right of occupancy has been obtained, and received the approval of the President.

Secretary Noble to the Commissioner of the General Land Office, January 9, 1891.

On March 17, 1890, there was filed in this Department, a petition on behalf of Amanda J. Walters et al., and G. W. M. Reed et al., parties who have heretofore been allowed to make entries for land within what is known as the "Mille Lac Indian Reservation" asking that special action be had in the matter of said entries and that patents be issued thereon without further delay.

In the decision of January 14, [8] 1890 (David H. Robbins, 10 L. D. 3), the history of both departmental and legislative action affecting these lands is quite fully set forth. In that case this Department held :

That the cession by the "Mille Lac Indians" as provided for in section one of the act of January 14, 1889 (25 Stats., 642) of their remaining interest in these lands, namely, the right of possession or occupancy during good behavior toward the whites is a condition precedent to the right to proceed, under the proviso to section six of the said act, with entries made on said lands, and that no steps can be taken towards perfecting said entries, or otherwise disposing of said lands until said cession has been obtained and "accepted and approved by the President."

In a message to Congress, dated March 4, 1890, (See Cong'l Record, March 6, 1890, page 1969), the President announced that said cession has been obtained in the manner prescribed in the first section of said act and that he has approved the same. In this message it is further set forth that:

The act of January 14, 1889, (25 Stat., 642), evidently contemplated the voluntary removal of the body of all these bands of Indians to the White Earth and Red Lake reservations, but a proviso in section 3 of the act authorized any Indian to take his allotment upon the reservation where he now resides. The commissioners (appointed under act of January 14, 1889), report that quite a general desire was expressed by the Indians to avail themselves of this option. The result of this is that the ceded land can not be ascertained and brought to sale under the act until all of the allotments are made.

In a letter accompanying the petition under consideration, written by Hon. C. K. Davis, United States Senator from Minnesota, it is contended that the proviso to section three of the act of January 14, 1889, applies only to land reserved by the treaty of March 11, 1863, and that the lands embraced in the entries referred to in the petition, and contained in the lists filed with it lie outside of the reservation as defined by that treaty (12 Stats., 1249), and can have no reference whatever to the mere right of non-disturbance upon these particular lands.

The lands embraced in these entries are a part of the original Mille Lac Reservation, created, with other reservations, in favor of the Chippewas, by the treaty of February 22, 1855, (10 Stats., 1165; Robert Lowe, 5 L. D., 541). By the treaty of 1863, as well as by that of May 7, 1864, (13 Stats., 695,) this domain, with that of the other reservations existing under the treaty of 1855, were ceded to the United States, and other lands were set apart for the Indians in lieu thereof. But there was a proviso to section 12, in both the treaties of 1863 and that of 1864, as follows:

That owing to the heretofore good conduct of the Mille Lac Indians, they shall not be compelled to remove so long as they shall not in any way interfere with, or in any manner molest the persons or property of the whites.

The question whether this proviso would exclude the lands then ceded by the Mille Lacs from sale and disposal by the United States came up as early as 1877, when on March 1st of that year in the case of Frank W. Folsom, the Secretary of the Interior, (Mr. Chandler) decided that the proviso:

did not in his judgment, exclude said lands from sale and disposal by the United States. It was anticipated evidently that these lands would be settled upon by white persons; that they would take with them their property and effects; and it was provided that so long as the Indians did not interfere with such white persons or their property, they might remain, not because they had any right to the lands, but simply as a matter of favor.

Secretary Schurz subsequently on May 19, 1879, directed that a large number of entries that had been made under the decision of Secretary Chandler should be canceled, believing that they were unauthorized under the statutes; but subsequently again the Secretary of the Interior, (Mr. Teller) by letter of May 10, 1882, stated that he felt constrained to substantially adhere to the decision made by Secretary Chandler in the Folsom case, and on August 7, 1882, he ordered the re-instatement of the entries canceled by order of Secretary Schurz. On August 15, 1882, the local land officers were instructed to re-instate these entries. The question then came up in Congress under a resolution of the House of Representatives, dated March 21, 1884, calling on the Department for information as to the status of the Mille Lac lands. In reply to this resolution a letter from Commissioner MacFarland to Secretary Teller, dated April 25, 1884, after giving the history of the reservation stated:

No orders or instructions appear to have been issued by this office to the local office regarding the allowance of entries or filings on said lands, save the letter addressed to them, August 15, 1882, re-instating the soldier's additional entries above referred to, and it would seem, therefore, that from the entries and filings allowed by them in 1882, 1883 and during the current year, that without waiting for instructions from this office in the premises and as previously ordered, said officers had been acting upon their own judgment. (House Ex. Doc., 148, 48th Cong., 1st Sess.)

It was under these circumstances that Congress passed the act of July 4, 1884, (23 Stats., 89,) providing that said lands "shall not be