be informed if the 160 acres of public lands selected by members of the Turtle Mountain band of Chippewa Indians under the provisions of the act of April 21, 1904 (33 Stat., 189), must be in one contiguous tract.

The superintendent says that a number of Indians have complained to him that they have had some difficulty with the local land officers in Montana, who, it seems, have objected to selections made by them of 80 acres in the State of North Dakota and an additional 80 acres in the State of Montana, but that he has received no official notice from any of the local land officers that such selections have been rejected.

The superintendent says further that owing to the limited area of the Turtle Mountain reservation, in North Dakota, it was impossible for all of the members of this band to secure allotments thereon, and prior to the passage of said act of April 21, 1904, supra, many of these Indians settled on and occupied 40 and 80-acre tracts of vacant public land outside of the reservation; that they have occupied their selections for a number of years; that all of the vacant lands in the vicinity of their selections have long since been taken up by whites; that these Indians want to retain their present selections, but also wish to secure the additional quantity of land to which they are entitled under the act of April 21, 1904. The superintendent says, also, that he has a number of applications of this nature on file but will hold them pending instructions from the office. He requests that the local land officers in North Dakota and Montana receive instructions on this subject.

If it is held that the 160 acres selected by members of this band must be in one contiguous tract it will be necessary for them to give up their present holdings. Manifestly this would be an injustice to some of the Indians in question, as they will be compelled to abandon any improvements they may have placed on their present selections.

The construction to be placed on a number of provisions of the act of April 21, 1904, has been outlined in an opinion by the Assistant Attorney-General for the Department of the Interior in a letter addressed to the Department under date of January 24, 1905.

Your attention is especially invited to a part of this opinion, pages 5, 7, 8, and 9, reading as follows:

All members of the band unable to secure land on the reservation are allowed to take their homesteads upon any vacant land belonging to the United States. An unusual and in many respects unfortunate condition exists here, due in large part to the long delay in acting upon the agreement negotiated in 1892, and not ratified by Congress until 1904. In the meantime many of the Indians having, perhaps, in mind the provision allowing any who could not secure land on the reservation to make selections from the public domain, and influenced by the fact that the public domain was being rapidly appropriated, asserted claims

to public lands under the general homestead laws, the Indian homestead laws and the Indian allotment law. Such Indians should not be made or allowed to suffer injury by reason of having asserted such claims. These claims should now be held and treated as selections under the agreement. The superintendent should be so advised in reply to his fourth question. Whatever evidence of selection is given to others taking land under this agreement outside the reservation should be given to those of the band who have heretofore asserted a claim to a portion of the public domain under other laws and such change or notation as may be necessary should be made in the records of the proper local land offices.

The Indian Office, in response to the Superintendent's fifth question, expresses the opinion that a member of the band taking land on the reservation and unable to secure the full amount he is entitled to, will not be allowed to fill up the quantity by selecting the additional amount outside the reservation. If any Indian be unable to secure within the reservation all the land he is entitled to, in one body, he may take it in separate tracts. The same reason for allowing one who selects his land on the public domain to take it in separate tracts does not exist and such a one should be required to take his land in one body. If, however, an Indian has made improvements within the reservation upon a tract containing less land than he is entitled to take and is unable to secure land adjoining thereto, or elsewhere in the reservation, it would seem but just to allow him to go outside for the quantity to make up his full selection. If he may not do this he must suffer injury either by abandoning his improvements or by accepting the smaller quantity. The provision is that any member of the band who may be unable to secure land upon the reservation' may take vacant land of the United States. This clearly means the quantity of land to which he is entitled. Thus read and taken in connection with the provision that the selections shall be so made as to include in each case, as far as possible, the residence and improvements of the Indians making selections' justifies the conclusion that an Indian living on the reservation who is unable to secure on the reservation the quantity to which he is entitled, may take additional land outside to make up the full amount to which he would be entitled were there sufficient land on the reservation. Such cases must be exceptional and all should be carefully scrutinized and applications to take additional lands outside the reservation should be refused unless shown to be absolutely necessary.

From the foregoing it appears that the privilege should be extended to members of this tribe to hold their present selections and take the additional quantity of land to which they are entitled under the agreement, where it can be shown that substantial injury will result to them by being required either to give up their present holdings in order to secure the allotment to which they are entitled in one contiguous tract, or hold their present selections of a lesser quantity of land than that to which they are entitled under the agreement.

It is not the intention of this office to encourage any individual of this band to select his homestead or allotment in two or more noncontiguous tracts simply through whim or caprice. On the other hand, where it can be shown that material injury will result to any individual Indian in this tribe the office feels constrained to suggest that this privilege should be extended to them.

It is respectfully recommended therefore that the General Land Office be directed to instruct its local land officers that applications from members of the Turtle Mountain band of Indians for allotments of 160 acres in two or more non-contiguous tracts of vacant land be considered only in those cases where such application is accompanied by a certificate from the superintendent in charge of the Fort Totten school, North Dakota, that material injury will result to such applicant should he be required to give up his present holdings in order to secure the quantity of land to which he is entitled under the agreement.

Should the recommendation contained in the foregoing meet with your approval the superintendent in charge of the Fort Totten school, North Dakota, will be instructed to cooperate with the local land officials to see that the privilege herein mentioned is not abused. He will be requested to scrutinize closely every application for allotment of this character, recommending to them only those applications in which it can be satisfactorily shown that substantial injury will result to the applicant where he is denied this privilege.

Approved, June 3, 1908:

FRANK PIERCE,

First Assistant Secretary.

PRIVATE CLAIM-FASSAGE OF TITLE-EXCLUDED LANDS.
BACA FLOAT No. 3.

The final act by which title passes under the grant made by section 6 of the act of June 21, 1860, is the acceptance by the Department, and the filing of approved plat and field notes, of a survey whereby the surveyor-general made location of the selection of lands affirmatively shown to have been vacant and nonmineral at the date of selection, so far as was then known by the selectors.

Lands which at the date of the selection of Baca Float No. 3 were embraced

within the Tumacacori, Calabazas, and San Jose de Sonoita claims were not "vacant land" within the meaning of section 6 of the act of June 21, 1860, and were therefore not subject to such selection.

First Assistant Secretary Pierce to the Commissioner of the General (G. W. W.) Land Office, June 2, 1908. (C. E. W.)

This is an appeal from your office decision of May 13, 1907, affirming the report and recommendation of the surveyor-general of Arizona, dated November 5, 1906, in the above-entitled case, involving title to nearly one hundred thousand acres of land situated in the Gadsden Purchase, and being a third of a series of five locations, in square form, each containing 99,289.39 acres, of land in lieu of certain

claims to a tract also claimed by the town of Las Vegas, authorized to the heirs of Luis Maria Cabeza de Baca by the 6th section of the act of June 21, 1860 (12 Stat., 71).

Said section is as follows:

That it shall be lawful for the heirs of Luis Maria Baca, who make claim to the said [same] tract of land as is claimed by the town of Las Begas [Vegas]. to select instead of the land claimed by them an equal quantity of vacant land. not mineral, in the Territory of New Mexico, to be located by them in square bodies, not exceeding five in number. And it shall be the duty of the surveyorgeneral of New Mexico to make survey and location of the lands so selected by said heirs of Baca when thereunto required by them: Provided, however, That the right hereby granted to said heirs of Baca shall continue in force during three years from the passage of this act, and no longer.

Four of these tracts have been selected and surveyed, and are not in dispute: Nos. 1 and 2 being located in what is now New Mexico; No. 4 in what is now Colorado; and No. 5 within the confines of Arizona.

The situs of float No. 3 was selected by the heirs of Baca on June 17, 1863, but no survey thereof was made until 1905, when the surveyorgeneral reported, among other things, that the lands within the grant were notoriously mineral in character on June 17, 1863; that the Tumacacori, Calabazas, and San Jose de Sonoita grants, as well as the townsite of Tubac, fell partly within the exterior lines of the selected tract; and that the land was neither shown to have been nonmineral nor vacant at the time of selection. Hence he recommended that the selection be rejected in its entirety. Whereupon you directed said officer to allow the claimants sixty days after notice within which to apply for a hearing and to present evidence rebutting the findings of the surveyor-general; in default whereof, or of an appeal from said order, the entire selection would be finally rejected.

It is from this order that the present appeal lies. It is contended: 1. The Department is without jurisdiction in the premises;

2. That its construction of section 8, act of July 22, 1854, in Baca Float No. 3 (30 L. D., 97 and 497), is erroneous;

3. That its present construction of section 6, act of June 21, 1860, is erroneous; and

4. That the Commissioner erred in not approving the survey of said location as the survey of the grant to the Baca heirs made by Congress on said June 21, 1860.

In one form or another this case has been before the Department a number of times. Six reported decisions present various aspects of this remarkable litigation: 5 L. D., 705; 12 L. D., 676; 13 L. D., 624; 29 L. D., 44; 30 L. D., 97 and 497. Commenced not so many years after the establishment of this Department, it has grown in importance and in intricacy until now, aside from title to a tract of land more than twice the area of this District of Columbia, vast mineral

wealth and the rights of a multitude of settlers, adversely claiming, are involved, dependent upon the final decision of this controversy.

The effectiveness of appellants' contention depends upon whether or not the Department has exhausted its jurisdiction in rem; whether or not the rights of the locators have vested and the legal title to the land covered by this float has passed out of the United States. If it is true that at some stage in the proceedings, the initial act of which was the selection of June 17, 1863, the complete requirements of the granting act were met, then the Department has not the power to issue the order from which the appeal lies.

Three propositions are advanced by appellants:

1. That the grant made by the act of June 21, 1860, was completely effectuated when the selection was made and notified to the surveyorgeneral; or

2. That, if the above be not the last act required, the approval of the surveyor-general vested the legal title in the claimants; or, finally, if more is required by the implied terms of the act,

3. That the action of the Commissioner of the General Land Office, on April 9, 1864, was an adjudication of title in the grantees.

The action of April 9, 1864, was an order issued to the surveyorgeneral by your office, directing the survey of the tract-later to be discussed in this decision.

The fourth and last possible act would be the survey, the certification of the plat, and the filing of the same in the General Land Office. Whether this is an act required in the investiture of title is the crux of the present controversy. If title does not pass until there is a survey, a plat certified, returned, and approved, then the Secretary still has jurisdiction to enquire into all matters involved in the passing of title, including the known character of the land at the time of its selection.

There can be little merit in appellants' contention that title passed at the conclusion of the first or second steps, i. e., upon selection by the claimants or upon the approval of that selection by the surveyorgeneral. For if that be true, then these grantees have no claim and never have had a lawful claim to the land selected on June 17, 1863, because the selection on that date was not the first attempt to locate float No. 3. It appears from the record that on October 31, 1862, John S. Watts, in behalf of the Baca heirs, filed the third of the series of selections, on land on the River Pecos, a place known as Bosque Redondo, situated in New Mexico. The surveyor-general certified that the tract was vacant and non-mineral and approved the selection. Further evidence of its vacant and non-mineral character was afforded by the certificate of the register and receiver. The Commissioner of the General Land Office was duly notified of the selection. But before any action was taken by the Commissioner, or order for its sur