forth the mining laws have no application to the land, the applicant is regarded as the equitable owner, the government holds the legal title in trust for him, and no subsequent discovery of mineral in the land or other change in its condition or character can impair or in any manner affect his right or title. (See Kern Oil Co. et al. v. Clarke, 30 L. D., 550; Gray Eagle Oil Co. v. Clarke, 30 L. D., 570; Kern Oil Co. v. Clotfelter, 30 L. D., 583; Kern Oil Co. et al. v. Clarke, 31 L. D., 288.)

In this case the selector has never complied with the terms and conditions necessary to secure title under the act of June 4, 1897, the land in controversy has therefore continued to be subject to the mining laws, and the protestant, as appears by the uncontradicted proofs now before the Department, has by exploration and development under the mining laws demonstrated that the land is mineral in character and is now claiming and occupying the same under a mining location.

Apart therefore from any consideration of the order of suspension of February 21, 1900, your office decision rightfully rejected Saalburg's selection, and for the reasons herein given that decision is affirmed.

WHITE EARTH INDIAN RESERVATION-SALE OF TIMBER-ACT OF JUNE 7, 1897.

OPINION.

All Indians residing upon the White Earth reservation are entitled to share in the proceeds of dead timber on that reservation disposed of under the act of June 7, 1897.

The township in the White Earth reservation set apart for the special occupancy of the Pembina Indians is, so far as the act of June 7, 1897, is concerned, to be regarded as a separate reservation, and not a part of the White Earth, and the Indians residing thereon are entitled to the proceeds of dead timber taken therefrom under said act.

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

Interior, April 25, 1902.

I am in receipt of your request for an opinion as to what Indians are entitled to share in the distribution of the funds derived from the sale of timber on the White Earth diminished reservation under the act of June 7, 1897 (30 Stat., 62, 90).

The provision referred to reads as follows:

The Secretary of the Interior may in his discretion, from year to year, under such regulations as he may prescribe, authorize the Indians residing on any Indian reservation in the State of Minnesota, whether the same has been allotted in severalty or is still unallotted, to fell, cut, remove, sell or otherwise dispose of the dead timber standing or fallen, on such reservation or any part thereof, for the sole benefit of such Indians.

The language of this provision is plain and unambiguous. The "Indians residing upon any Indian reservation in the State of Minnesota," are the persons who may be authorized to remove and dispose of dead timber on such reservation and this is to be done "for the sole benefit of such Indians," that is, the Indians residing upon the reservation from which such timber may be removed. This description embraces, in respect of the White Earth reservation, all Indians residing there. Unless there is some other provision of law or something in the history of the transactions with these Indians that demonstrates that such a result could not have been intended, this provision must be held to declare that all Indians residing upon the White Earth diminished reserve shall share in the proceeds of timber disposed of thereunder.

Formerly the various tribes of Chippewa Indians in Minnesota occupied separate reservations. The act of January 14, 1889 (25 Stat., 642), provided for negotiations with the Indians for the cession of all such reservations, except the Red Lake and White Earth, and of so much of those as were not needed for individual allotments to the Indians, for the removal of all the Indians except those on the Red Lake to the White Earth reservation, for the allotment of lands in severalty to the Red Lake Indians on Red Lake reservation, and to all others on the White Earth reservation, and for the sale of the ceded lands for the benefit of "all the Chippewa Indians in the State of Minnesota." An agreement was made as contemplated by said act of 1889 and the work of removing the Indians to and settling them upon the White Earth reservation had been substantially accomplished prior to the passage of the act of June 7, 1897.

In the passage of this later act Congress acted with a knowledge of existing conditions. If it had been intended to confer the privileges and benefits arising out of that act upon the Indians originally occupying the White Earth, or any other reservation affected thereby, and to exclude from such privileges Indians removed to and settled upon such reservation by virtue of the provisions of the act of 1889, apt words to express such an intention would have been employed. This was not done and there is nothing either in said act of 1897 or in that of 1889, which provided for a readjustment of the affairs of said Indians, to justify this Department in ignoring the plain purport of the act of 1897 and making any discrimination in the distribution of the proceeds of timber disposed of under the authority granted thereby between the Indians who originally occupied the White Earth reservation and those who were located thereon in the administration of the act of 1889.

In the papers submitted attention is called to the fact that the act of March 3, 1873 (17 Stat., 530, 539), made an appropriation for the purchase from the Mississippi bands of Chippewa Indians of one township

of land in the White Earth reservation for the use and benefit of the Pembina band of Chippewa Indians. A township was purchased and a part of the Pembina band was located thereon and still resides there. This township was in effect carved out of the White Earth reservation and set apart for the Pembina band. It must for the purposes of the act of 1897, supra, be considered as a separate reservation. The Indians for whose occupancy it was purchased, and who are residing thereon, would be entitled to all proceeds derived from the sale of dead timber removed therefrom, but are not entitled to share in the proceeds of dead timber taken from the lands constituting the White Earth reservation after the elimination of this township.

It seems that certain of the Mille Lac band have refused to remove to and settle upon the White Earth reservation although lands therein have been set aside for the purpose of making allotments to them when they shall remove thereto. The Commissioner of Indian Affairs contends that those Indians are interested in the tribal lands of that reservation and therefore entitled to participate in the distribution of money arising from the sale of timber taken from such lands under the act of 1897. They are not, however, "Indians residing upon that reservation and are not within the descriptive terms of that act. Whether they have or have not an interest in that reservation that would entitle them to share in the proceeds of a sale of the land itself, is a question that it is not necessary to consider at this time. The evident purpose of Congress was to give the Indians residing on any particular reservation assistance in establishing and maintaining themselves in their changed surroundings. The removal of the dead and down timber will not detract from the value of the land or the growing timber but will in fact be a benefit to both.

After a careful consideration of the matter I am of opinion, and so advise you, that all Indians residing upon the White Earth reservation are entitled to share in the proceeds of dead timber on that reservation disposed of under the act of 1897; that the township set apart for the special occupancy of the Pembinas is, so far as that act is concerned, to be regarded as a separate reservation and not a part of the White Earth reservation, and that the Indians residing upon this separate Pembina reservation are entitled to the proceeds of dead timber taken from such separate reservation under said act.

Approved, April 25, 1902.

E. A. HITCHCOCK, Secretary.

PRACTICE-NOTICE-RULE 100 CONSTRUED.

INSTRUCTIONS.

In all cases where sufficient service has been made on an adverse party, who fails to appear or to respond to said notice, the case shall be treated as an ex parte proceeding, and can thereafter be proceeded with without further notice to him.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) April 26, 1902. (E. F. B.)

The Department is in receipt of your letter of April 8, 1902, requesting a construction of Rule 100, of Rules of Practice, in its application to a certain class of cases referred to in your letter. Rule 100 reads as follows:

Ex parte cases and cases in which the adverse party does not appear will be governed by the foregoing rules as to notices of decisions, time for appeal, and filing of exceptions and arguments, as far as applicable. In such cases, however, the right to file additional evidence at any stage of the proceedings to cure defects in the proof or record will be allowed.

The purpose of your inquiry is to ascertain whether, in cases where the adverse party is in default, your office may allow the plaintiff to cure defects in the proof or record, and to supply the additional evidence by affidavits, without notice to the defendant.

It was the purpose of the rule that in all cases where sufficient service has been made on an adverse party who fails to appear or to respond to said notice, the case shall be treated as an ex parte proceeding. Hence, where it appears from the record that the adverse party has been properly served with notice of the proceeding and is in default, the case can thereafter be proceeded with without further notice to him.

The rule makes all cases wherein default is made, after proper service, subject to the conditions and practice relating to er parte cases. In this view you will have no difficulty in making a proper application of the rule in all cases.

LIEU SELECTION UNDER ACT OF JUNE 4, 1897.

LEAMING . MCKENNA.

A statement in the non-occupancy affidavit accompanying a lieu selection made under the act of June 4, 1897, that the land selected is "unoccupied by any one having color of title thereto,” is not a proper showing respecting the condition of the land; if it is occupied at all the affidavit should state fully all the facts relating thereto, so as to enable the land department to determine the character and effect of the occupancy.

Public land suspended from disposition by direction of the Commissioner of the General Land Office, with the approval of the Secretary of the Interior, is not subject to selection under the act of June 4, 1897.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) April 29, 1902.

(A. B. P.) October 29, 1900, Richard E. McKenna filed selection, under the act of June 4, 1897 (30 Stat., 11, 36), for the NW. 4, the W. of the NE. 4, and the NE. of the SE. 4 of Sec. 28; the S. of Sec. 32; and the SW. of the NW. of Sec. 34, all in T. 17 S., R. 14 E., M. D. M., Visalia, California, containing 640 acres, in lieu of certain other lands. situated partly in the Sierra forest reserve and partly in the Pine Mountain and Zaca Lake forest reserve, in California, and represented as containing 657.03 acres.

The selection was accompanied by duly recorded deeds from the selector to the United States, conveying the base lands, properly authenticated abstracts showing complete and unencumbered title in the selector at the time of the making of said deeds of conveyance, and by the affidavit of the selector, stating the selected land to be nonmineral in character and "unoccupied by any one having color of title thereto."

Prior to the filing of the selection, to wit, February 28, 1900, your office issued an order suspending from disposition the lands in said township 17, until further directions should be given, and this order of suspension still remains in force. Because of such suspension the local officers rejected McKenna's selection, March 2, 1901, and thereupon he appealed.

By decision of July 15, 1901, your office affirmed the action below, and McKenna has appealed to the Department.

In the meantime, to wit, March 30, 1901, several affidavits were filed on behalf of the selector, wherein it is stated, in substance and effect, that the selected land and other lands in the same vicinity are sought to be acquired by the selector and one Sinon C. Lillis, for a stock range, for grazing, and for no other purpose; that the land is essentially grazing land and has no value for any other purpose; that there are no indications that the land contains valuable deposits of petroleum or any other mineral; and that there has been no attempt to develop oil or petroleum upon it. These affidavits do not state whether this land was, at the time of their filing, occupied or unoccupied.

April 19, 1901, E. B. Leaming filed protest against the selection, supported by the affidavits of two persons, and alleging that the selected land is

essentially mineral in character, and contains petroleum and mineral oils, and is valuable only for its mineral purposes, and has no value for and is not in fact agricultural land.

The statement in the affidavit of the selector, filed with the selection, that the land was then "unoccupied by any one having color of title thereto," is not a proper showing respecting the condition of the land.