last, upon application of the Western Oklahoma Railroad Company for additional station grounds at Ardmore, Indian Territory.

In so far as the company is seeking to acquire additional lands for "new stations or depots," a matter not specifically considered or reported on in your said office letter, it is directed that the applications be again submitted with your recommendation thereon.

MINERAL LAND-INDIAN ALLOTMENT-ACT OF JUNE 6, 1900.

ACME CEMENT AND PLASTER COMPANY.

Lands which have been allotted to Indians, or to which a homestead entryman has acquired fixed and vested rights by reason of his compliance with the homestead laws, are not subject to the mining laws or to mineral exploration and entry. From the time of the passage of the act of June 6, 1900, the body of lands which were to be allotted or opened to settlement thereunder were subjected to the mining laws, and to mineral exploration and entry, so far as the same should be found to contain valuable mineral deposits; but such lands were to be subject to the mining laws, or to mineral exploration and entry, only so long as they should remain free from any vested right of individual ownership.

Upon the allotment of said lands in severalty, or upon title thereto being earned by a homestead entryman by compliance with the homestead law, the lands allotted, or embraced in a homestead entry, cease to be subject to the mineral provision of said act.

Valuable mineral deposits which may be found upon land allotted in severalty to an Indian under the act of June 6, 1900, are not withheld from the allottee or reserved to the United States, and can not be acquired under the mining law;

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but such land may, with the approval of the Secretary of the Interior, be leased by the allottee under the general statute relating to the giving of mining leases by Indian allottees.

Assistant Attorney General Van Devanter to the Secretary of the (W. C. P.)

Interior, October 28, 1901.

The Acme Cement and Plaster Company having proposed to lease certain lands, allotted to members of the Comanche, Kiowa, and Apache Indians, for the mining of gypsum, the matter has been referred to me for opinion as to whether there is authority in law for leasing these minerals, in view of that provision of the act of June 6, 1900 (31 Stat., 672, 680), which reads as follows:

That should any of said lands allotted to said Indians or opened to settlement under this act contain valuable mineral deposits, such mineral deposits shall be open to location and entry, under the existing mining laws of the United States, upon the passage of this act; and the mineral laws of the United States are hereby extended over said lands.

Stated in other words the question is, Does this mineral provision have the effect of withholding from the allottee and reserving to the United States all valuable mineral deposits, which may at any time be found in the allotted land?

The allotments were made in pursuance of the agreement, "accepted, ratified, and confirmed as herein amended" by the act of June 6, 1900. By that agreement the Indians ceded, conveyed, and surrendered all their claim and title to a certain tract of land therein described. That cession was made subject to the allotment of land in severalty to the individual members of said tribes as in said agreement provided, and subject to other conditions and payments therein named. The provisions as to allotments are that each member shall have the right to select an allotment of 160 acres; and

When said allotments of land shall have been selected and taken as aforesaid, and approved by the Secretary of the Interior, the titles thereto shall be held in trust for the allottees, respectively, for the period of twenty-five (25) years, in the time and manner and to the extent provided for in the act of Congress entitled "An act to provide for the allotment of land in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and Territories over the Indians, and for other purposes," approved February 8, 1887, and an act amendatory thereof, approved February 28, 1891.

And at the expiration of the said period of twenty-five (25) years the titles thereto shall be conveyed in fee simple to the allottees or their heirs, free from all incumbrances.

That act also provided

That the lands acquired by this agreement shall be opened to settlement by proclamation of the President within six month after allotments are made, and be disposed of under the general provisions of the homestead and town-site laws of the United States.

In a later paragraph appears the provision quoted in your note of reference, as hereinbefore set forth.

Under the act of June 6, 1900, the act of January 4, 1901 (31 Stat., 727), and the act of March 3, 1901 (31 Stat., 1093, 1094), the allotments in severalty to the Indians were made and approved, and the President's proclamation was issued July 4, 1901, declaring that the lands ceded by said agreement, excepting certain classes thereof, among them being "lands allotted in severalty to individual Indians," would, on August 6, 1901, in the manner therein prescribed, be opened to entry and settlement and to disposition under the general provisions of the homestead and town-site laws.

The time when the mineral deposits were to be open for location and entry is fixed by the phrase "upon the passage of this act," and this is intensified by the provision "and the mineral laws of the United States are hereby extended over said lands." These are words of present import, indicating that the law was to operate at once upon the lands to be affected thereby. This language is plain and unambiguous, leaving no room for doubt as to its meaning and consequently no necessity for interpretation. The lands upon which the law was to operate are described in the words "lands allotted to said Indians or open to settlement under this act." If these words are to be taken in their ordinary sense and as describing the condition of the lands

upon which the law was to have immediate operation, they are meaningless and without effect, because none of the lands had been alloted to said Indians or opened to settlement at that time. The act did not. itself allot any lands to Indians or open any lands to settlement, nor could any lands have been so allotted or opened "under this act" prior to its passage. If this phrase, "allotted to said Indians or opened to settlement," is to be taken literally as describing the condition in which the lands must be to be affected, and as indicating that when the lands reach that condition the mining provision is to become operative, the phrase is in conflict with the clear and certain phrases indicating that the provision was to have effect upon the passage of the act. Literally read, the two branches of the provision-the one fixing the time at which and the other the land upon which it was to operate-are therefore inharmonious and incapable of reconciliation. It must then be examined in the light of other provisions in the act to ascertain if the apparently conflicting portions of this provision are not capable of a construction which will give the whole of the paragraph effect. Literally read, the paragraph is also irreconcilably in conflict with the provision of Article V of said agreement regarding the title and right of the allottees in their respective allotments, is inharmonious with the policy of the government toward the Indians, as evidenced by the whole system of legislation affecting allotments in severalty, and is obnoxious to all right ideas of justice to and fair dealing with the Indians.

One of the considerations promised the Indians for the cession of valuable rights by the tribe was that each individual should receive one hundred and sixty acres of land, to be conveyed to him in fee simple, free from all incumbrances. The only limitation upon that right of selection, found in the agreement, is in the provision that no person shall make his selection of land in any part of said reservation used or occupied for "military, agency, school, school farm, religious, or other public uses, or in section sixteen (16) and thirty-six (36), in each Congressional township," except where he may have theretofore made improvements upon and then occupied a part of said sections sixteen and thirty-six. A construction of this provision of the law which would impute to Congress the intention of violating the promises upon which a cession of these lands was obtained, and which would work an irreparable injury, should not be entertained if there be any other not in conflict with the recognized canons of construction.

Looking outside of the mineral provision we find that other portions of the act direct that, subject to certain reservations therein declared, the ceded lands shall be allotted in severalty to the Indians so far as necessary to give each the requisite acreage, and that the lands remaining unallotted shall be open to settlement. Thus there were lands to be allotted to the Indians or opened to settlement under said act. This

indicates that the words "allotted" and "opened" in the mineral provision were used as referring to the future instead of to the past. Understood in this sense, there was, at the time of the passage of the act, something upon which they could operate. Words which, according to their letter, have reference to past transactions may be and should be read as referring to the future when necessary to harmonize provisions which would otherwise be conflicting and to give effect to portions of a statute which would otherwise be meaningless. (Heydenfeldt. Daney Gold and Silver Mining Co., 93 U. S., 634, 639.) A consideration of the entire act and of the policy of the government in dealing with Indian allotments and with mineral deposits in public lands requires that the mineral provision be read as if referring to the lands which were to be "allotted to said Indians, or opened to settlement under this act." Read in this sense, it harmonizes with the words "upon the passage of this act," "hereby," and "under this act," in the mineral provision, harmonizes with the provision of Article V respecting the title and right of the allottees to their respective allotments, and gives to the mineral provision a common sense and just operation in harmony with the system of legislation affecting allotments in severalty and with the general operation of the mining laws upon public lands.

Understood in this sense, the mineral provision does not subject to the mining laws or to mineral exploration or entry lands which have been allotted to Indians or lands to which a homestead entryman has acquired fixed and vested rights by reason of his compliance with the homestead laws. Understood in this sense, that provision, from the time of the passage of the act, subjected to the mining laws and to mineral exploration and entry the body of lands which were to be allotted or opened to settlement under said act so far as the same should be found to contain valuable mineral deposits. Even these lands were not always to be subject to the mining laws or to mineral exploration and entry, but, like other lands, only so long as they should remain free from any vested right of ownership in an individual, Indian or white. Upon their allotment in severalty or upon title thereto being earned by a homestead entryman by compliance with the homestead law, the lands allotted or embraced in the homestead entry cease to be subject to statutes, like this mineral provision, which prescribe the manner of disposing of public lands.

I am therefore of opinion that valuable mineral deposits which may be found upon land allotted in severalty to an Indian under said act are not withheld from the allottee or reserved to the United States, and that they can not be acquired under the mining law, but that such land may, with your approval, be leased by the allottee under the general statute relating to the giving of mining leases by Indian allottees. Approved October 28, 1901:

E. A. HITCHCOCK, Secretary.

HOMESTEAD-ADDITIONAL-SECTION 5, ACT OF MARCH 2, 1889.
MILLER. NORTHERN PACIFIC RY. Co.

A married woman is not disqualified to make additional entry under section 5 of the act of March 2, 1889, where prior to the passage of said act, and when possessing the necessary qualifications, she made her original entry and submitted final proof thereon showing due compliance with law.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) October 29, 1901. (F. W. C.)

Maria Miller has appealed from your office decision of May 15, last, rejecting her application to make additional homestead entry, under the provisions of section 5 of the act of March 2, 1889 (25 Stat., 854), for the N. of NE. 4, Sec. 29, T. 135 N., R. 4 W., St. Cloud land district, Minnesota, for the reason that at date of the tender of her said application, April 10, 1895, she was not qualified to make entry under the homestead law, being a married woman.

This tract is within the indemnity limits of the grant made in aid of the construction of the Northern Pacific railroad and was included in a list of selections, filed on account of said grant, July 16, 1885. This list was not accompanied by a designation of lost lands as a basis for the selections, but the same was supplied in a list filed April 26, 1892.

From the statement of facts contained in your said office decision it appears that Maria Herckenrath, now Maria Miller, made homestead entry No. 2855 on July 8, 1874, for the W. of SE. of Sec. 20, T. 135 N., R. 45 W., adjoining the land here in question, upon which she made final proof and final certificate issued August 16, 1881.

The fifth section of the act of March 2, 1889, supra, under which the application under consideration is made, provides:

That any homestead settler who has heretofore entered less than one-quarter section of land may enter other and additional land lying contiguous to the original entry, which shall not, with the land first entered and occupied, exceed in the aggregate one hundred and sixty acres, without proof of residence upon and cultivation of the additional entry; and if final proof of settlement and cultivation has been made for the original entry, when the additional entry is made, then the patent shall issue without further proof: Provided, That this section shall not apply to or for the benefit of any person who at the date of making application for entry hereunder does not own and occupy the lands covered by his original entry: And provided, That if the original entry should fail for any reason, prior to patent, or should appear to be illegal or fraudulent, the additional entry shall not be permitted, or if having been initiated, shall be canceled.

Where, prior to said act, entry had been made under the homestead law, by a qualified homestead settler, for less than one-quarter section, and proof had been made thereon showing due compliance with law, such person was granted a right to enter additional contiguous land, in 6855-Vol. 31—02—9