HOMESTEAD ENTRY-TIMBER LAND-CONTEST.

LUCAS v. DUDLEY.

A contest against a homestead entry on the ground alone that the land embraced therein is unfit for cultivation, and of no value except for the timber thereon, will not be entertained.

Secretary Bliss to the Commissioner of the General Land Office, March (W. V. D.) 30, 1897. (J. L. McC.) Robert Dudley made homestead entry, on January 24, 1895, of the SW. of the SE. 4, the SE. 4 of the SW. 4, and lot 4, of Sec. 30, and lot 1, of Sec. 31, T. 149, R. 31, St. Cloud land district, Minnesota.

Later in the same day John W. Lucas offered for filing his sworn statement to enter the same land under the provisions of the timber and stone act of June 3, 1878 (20 Stat., 89); but his application was rejected because of Dudley's prior homestead entry.

On the next day Lucas filed contest affidavit against Dudley's entry, alleging:

That said land is unfit for cultivation, and has no value except for the timber thereon; that the same is valuable for the timber thereon; that the same is unfit for agricultural or farming purposes, and crops cannot be raised thereon; that about January 12, 1894, affiant selected said land under the timber and stone act as soon as the same should be subject to entry, and at said time he erected thereon a comfortable house for use in utilizing the timber thereon, and much other improvements.

Due notice issued for a hearing on the day fixed (March 20, 1895); the defendant moved to dismiss the contest, contending, in substance, that it set forth no sufficient cause of action; that it did not charge the homestead entryman with want of good faith; and that an allegation that land entered as a homestead is unfit for cultivation is not sufficient basis for a contest.

The local officers granted the motion and dismissed the contest.

The contestant appealed to your office, which, on December 21, 1895, sustained the action of the local officers. The contestant has appealed to the Department.

The law which provides that land unfit for cultivation, and chiefly valuable for its timber, shall be (in certain states named), subject to entry as timber land, does not prohibit the entry of such land under the settlement laws. It is true that settlements on land chiefly valuable for timber should be closely scrutinized, and that the character of the land may, in connection with other facts in the case, affect the question of the settler's good faith (Porter . Throop, 6 L. D., 691). But in the case at bar the applicant to contest relies solely upon the character of the land, not connecting it with any "other facts" tending to show bad faith on the part of the homestead entryman. The burden of proof showing bad faith is on the contestant; and the character of the land is not, alone, sufficient proof of such bad faith. (Hoxie . Peckinpah, 16 L. D., 108.)

The decision of your office is affirmed.

INDIAN LANDS--ALLOTMENT-CITIZENSHIP.

ULIN v. COLBY ET AL.

Children born of a white man, a citizen of the United States, and an Indian woman, his wife, follow the status of the father in the matter of citizenship, and are therefore not entitled to allotments under section 4, act of February 8. 1887, as amended by the act of February 28, 1891.

Secretary Bliss to the Commissioner of the General Land Office, March (W. V. D.) 30, 1897. (C. W. P.)

William W. Ulin has appealed from your office decision of July 15, 1896, in the case of the said Ulin against Elizabeth and Harry Colby. The land in controversy is the NE. of the NW. and the NW. of the NE. of Sec. 15, T. 32 N., R. 13 W., Seattle land district, Washington.

The record shows that on April 14, 1893, Eliza Obalthsa (Mrs. Colby) made allotment application No. 5, under the general allotment act of February 8, 1887 (24 Stat., 388), as amended by the act of February 28, 1891 (26 Stat., 794), for unsurveyed land, supposed to be the NE. of the SW. and lot 3 of township 32 N., range 13 W. Lot 3 is the fractional S. of the NW. . The section is not given, but it elsewhere appears to be section 10.

At the same time she made application No. 3 for her minor child, Elizabeth Colby, for the SW. 1 of the SE. of Sec. 10, the NW. of the NE. of Sec. 15, Tp. 32 N., R. 13 W., also application No. 4, for her minor child Harry Colby, for the SE. of the SW.

of Sec. 10,

N., R. 13 W.

The official

the NE. of the NW. of Sec. 15, Tp. 32 plat of survey was filed August 2, 1893. On October 30, 1893, the local officers allowed William W. Ulin to

make homestead entry (No. 15,696) of the N. of the NW. 4, the N. of the NE. of Sec. 15, Tp. 32 N., R. 13 W. On December 23, 1893, your office held Ulin's entry for cancellation. On April 18, 1895, the Department reversed this action and ordered a hearing.

The local officers found in favor of the allottees, on the ground that the testimony showed that Ulin was aware when he first went to the land in 1892 that it was claimed by said Indians, and that, furthermore, he failed to make settlement on the land and to establish residence before the year 1895.

Ulin appealed. Your office affirmed the judgment of the local officers and held for cancellation Ulin's homestead entry as to the NE. of the NW. and the NW. of the NE. of Sec. 15, T. 32 N., R. 13 W. The testimony shows that the father of Mrs. Colby, the mother of these children, belonged to the Hoko tribe of Indians and her mother to the Makah tribe; and it is admitted that she was married to a white man, a citizen of the United States, who is the father of Elizabeth and Harry Colby. It also appears that Mrs. Colby was not residing on any

Indian reservation at the time she made selection of the lands for herself and her children.

These being admitted facts, the question arises, are these children entitled to allotments under the fourth section of the act of February 8, 1887, as amended by the act of February 28, 1891.

The circular of September 17, 1887, relating to allotments under the act of 1887, directs that Indian women married to white men, or to other persons not entitled to the benefits of this act, will be regarded as heads of families. The husbands of such Indian women are not entitled to allotments, but their children are. But in the case of Black Tomahawk v. Waldron, reported in 13 L. D., 683, it was held by the Department, adopting the opinion of the Assistant Attorney-General, that:

The common law rule that offspring of free persons follows the condition of the father prevails in determining the status of children born of a white man, a citizen of the United States, and an Indian woman his wife. Children of such parents are, therefore, by birth not Indians, but citizens of the United States, and consequently not entitled to allotments under the act of March 2, 1889.

In the same case, reported in 19 L. D., 311, it is said:

Upon further considering the matters involved in this controversy, I see no good reason for changing the conclusions heretofore reached by the Assistant AttorneyGeneral, on the record then before him, and which conclusions were approved by me. There can be no doubt of the correctness of the general rule as laid down, that, among free people, the child of married parents follows the condition of the father. But it has been suggested that the laws and usages of the Sioux Indians may have made Mrs. Waldron a member of the tribe on March 2, 1889, the date of the agree ment between the tribe and the United States, either by furnishing a different rule as to the effect of her birth, or by causing her adoption as a consequence of the facts connected with her life. While the general rule is as has been before held, yet it must yield to the laws and usage of the tribe when laws and usage upon the subject are satisfactorily proven.

Upon the authority of these cases, it must be held that Elizabeth and Harry Colby are not entitled to allotments under the acts of February 8, 1887, and February 28, 1891.

Consequently your office decision is reversed.

ALASKAN LANDS-SURVEY-INDIAN OCCUPANCY.

BENJAMIN ARNOLD.

A survey of Alaskan lands under sections 12 and 13, act of March 3, 1891, should not be allowed to include a ditch or water way, used by native Alaskan villagers for the purpose of securing the necessary fresh water supply for domestic use and consumption.

Secretary Bliss to the Commissioner of the General Land Office, March (W. V. D.) (W. M. B.)

30, 1897.

This is an appeal by Benjamin Arnold from your office decision of May 8, 1895, wherein was suspended, in its present form, survey No. 22,

executed by Albert Lascy, U. S. deputy surveyor, under provisions of sections 12 and 13 of the act of March 3, 1891 (26 Stat., 1095), of a tract of land claimed by appellant, containing 7.19 acres, situated on Kayanak Bay, Kadiak Island, district of Alaska, and used as a trading post.

The field notes and plat of this survey show that the tract of land claimed, as laid off, is about four times as long as its average width, that the same is very irregular in form, and it appears that your office suspended the said survey in its existing form for the reason that it does not embrace a tract of land in square form as near as practicable, and for the further reason that the whole of the tract does not appear to be used by the claimant for carrying on the business engaged in.

The right of the claimant to the tract in its existing form appears to be affected by a feature or condition other than those already mentioned, with respect to which your said office decision contains the following statement:

Upon the tract of land embraced within this survey and running across from one side to the other is shown a ditch almost a half mile long which the deputy says "leads the water from the lake on the west boundary line to another below the native village of 100 inhabitants on the southeast, and supplies the same with water". It is not stated whether this ditch is a natural water course, or built by and for the natives for supplying the necessary fresh water for their consumption. Upon this fact hinges the right of the claimant to lands including any portion of the ditch.

An emendation of the survey is suggested in your office decision in manner therein particularly described, but it appears from a careful examination of the plat of the survey that if said survey was so amended the entire portion of the referred to ditch which is included in the survey in its original or present form would still be embraced within the lines of a survey amended and made in the form indicated in your said office decision, and it matters not whether said ditch be an artificial or natural water course the right of the native villagers to the free and uninterrupted use and enjoyment of the said stream of water would appear to be protected by that particular portion of sec tion 14 of the said act of March 3, 1891, in words following:

That none of the provisions of the last two preceding sections of this act shall be so construed as to warrant the sale of any lands. . . . to which the natives of Alaska have prior rights by virtue of actual occupation.

If it be ascertained that said ditch is an artificial water course constructed by or for the natives for the purpose stated, no portion of the land upon which it is located should be included in a purchase and entry made by claimant, and if on the other hand it is found to be a natural water way the actual and prior appropriation of the same by the native Alaskan villagers for the purpose of securing the necessary fresh water supply for domestic use and consumption entitle the said villagers to the exclusive use, control, and possession of said water way, and the particular portion of the land which is occupied by said

water way, and sought to be purchased and entered by claimant, may be considered, as land in or under the "actual occupation" of the said .villagers, by virtue of which they have a prior right thereto, within the meaning of said section 14 of the act herein cited.

For the foregoing reasons if there be an emendation of the survey, the same should not be amended as suggested in your office decision, but on the other hand the lines of survey should be run in such manner as not to include any portion of the above described ditch.

The decision of your office, with the modification herein indicated, is hereby affirmed.

ALASKAN LANDS-ACTUAL USE AND OCCUPANCY.

SOUTH OLGA FISHING STATION.*

On application to purchase Alaskan land under the act of March 3, 1891, the extent of the actual use and occupancy of the land should not be determined on the report of the deputy-surveyor alone, and prior to the submission of final proof. Secretary Francis to the Commissioner of the General Land Office, Decem ber 23, 1896.

(W. C. P.)

The South Olga Fishing Station (a corporation) has appealed from your office decision of June 27, 1895, in the matter of survey No. 47, of a tract of land claimed by said company, situate on the south shore of Olga Bay, Kadiak Island, Alaska, containing 39.30 acres, and used as a fishing station.

It seems that said survey was approved on May 29, 1893, but afterwards by the decision appealed from herein, that action was revoked, and the survey "suspended pending emendation, for the reason that more land is claimed than is actually occupied by the claimants for their business." It is stated in the appeal from this decision that final proof has been submitted in support of the application to purchase, but this proof presumably had not reached your office when said decision was rendered. There seems to be no objection to the manner in which the survey was made nor to the form of the tract.

Claimants are entitled to purchase only so much land as is occupied, that is, actually used for trade and manufacture, in no case to exceed one hundred and sixty acres. Instructions (20 L. D., 434); McCollom Fishing and Trading Co., (23 L. D., 7).

The character of the use made of the land and the extent of the occupancy thereof can not as a rule be satisfactorily determined until final proof shall have been submitted, as required by the regulations provided under said act. Among other things required to be shown by the final proof are the actual use and occupancy of the land as a trading post or for manufacturing purposes, the date when the land

Not reported in Vol. 23.