Your office, under date of April 23, 1874, rejected his claim to the land in the oddnumbered sections, but awarded him the tract in the even-numbered sections. This decision was affirmed by my predecessor January 27, 1875, and Coughran made entry for the land in section 8, August 24, 1875.

Coughran was an actual settler upon the land at the date of the passage of the joint resolution June 28, 1870, and, under the provisions of said resolution, should have been permitted to enter the same. (See my decision of this date in the case of Samuel Tome et al.)

You are hereby instructed to allow Mr. Coughran to make entry for the said N. W. of S. W. of section 9 and the N. E. of N. E. of section 17, township 16 south, range 26 east.

The papers transmitted with your letter of October 11, 1877, are herewith returned. Very respectfully,

C. SCHURZ, Secretary.

Where the tract in question was covered by a homestead claim at the date of withdrawal for railroad purposes, and a subsequent entry was permitted under the Boyd ruling, such subsequent entry is confirmed by the act of April 21, 1876, a compliance with the homestead law being shown. An unimpeached homestead entry will be considered valid until canceled.

DEPARTMENT OF THE INTERIOR,
Washington, August 14, 1878.

SIR: I have considered the appeal of Andrew J. Stainbrook, from your decision of November 19, 1877, refusing to reinstate his homestead entry on the S. W. of section 33, township 19, range 8 east, Salina, Kans.

This tract is within the limits of the grant for the Atchison, Topeka and Santa Fé Railroad, the definite location of which was made June 30, 1869, and the notice of withdrawal was received at the local office November 3, 1869.

The entry was made November 21, 1871, and canceled for conflict with the railroad grant, September 24, 1873.

The evidence shows that Stainbrook complied with the terms of the homestead law from date of entry until August, 1874. This, together with the time for which he should receive credit for military service would constitute the five years' residence required by law, and he makes application for the reinstatement of his entry under the provision of the act of April 21, 1876, the second section of which confirms entries made under the decisions and rulings of the Land Department upon lands covered at the date of withdrawal by valid homestead or pre-emption claims.

The records show that the tract in question was covered by the homestead entry of John W. Randall, made October 21, 1863. He abandoned the land in 1868, and his entry was canceled October 12, 1871, and on the 21st of the following month the tract was entered by Stainbrook. In your letter rejecting the application you state that by the decision of the honorable Secretary of the Interior, of April 28, 1871, in the case of Boyd vs. Burlington and Missouri Railroad Company, it was held that if a homestead entry was valid and subsisting at the date of definite location, and subsequently abandoned, the tract covered thereby was excepted from the grant and became again subject to entry. The proof on which Randall's claim was canceled showed that The abandoned long prior to the date of the attachment of the right of the company; hence Stainbrook's entry was allowed in direct opposition to the rule laid down in the "Boyd decision."

*

*

Under this decision two points are presented for consideration: First, what is the correct interpretation of the phrase "under the decisions and rulings of the Land Department," as it is used in the section of the act of April 21, 1876; and, second, what was the rule established by the "Boyd" decision?

It is well known that various rulings have been in force in the Land Department at different times relative to the effect of a claim, either under the pre-emption or homestead law, to lands within the limits of a railroad grant at the date of the definite location of the road, or at the date of withdrawal for railroad purposes. Entries which were allowed under one ruling were canceled under a subsequent and different ruling. It was to remedy the effects of this evil that the act of April 21, 1876, was passed, and the same should receive a reasonable and just construction. I am of the opinion that under the provisions of this act all entries made either in pursuance of special instructions, or in accordance with the rulings in force at the date of said entries, are confirmed.

In the case of Boyd rs. The Burlington and Missouri River Railroad Company, decided April 28, 1871, my predecessor held that a homestead claim at the date of definite location of the road, excepted the land covered thereby from the operation of the grant. His language on this point is, "If the homestead claim has attached at the time the line of the road is definitely located, then the railroad is excluded. It would seem to be immaterial what became of the claim after that, whether it was perfected or abandoned.”

There can be no doubt about the interpretation which should be given to this lan

guage. It is held that if a homestead claim attached to the land at the date of definite location, it was excepted from the operation of the grant. It has been held by the Land Department since the date of the passage of the homestead law that a homestead claim attached by means of an entry. It did not necessarily follow, however, that said claim was a valid one. It will be observed that the language in the Boyd decision was not qualified; it was expressly stated that a homestead claim to the land at the date of definite location of the road excepted the tract covered thereby from the operation of the grant. The interpretation given to the decision was in accordance with this theory, and many entries were allowed thereunder.

About one year subsequent, viz, under date of May 1, 1872, in the case of the Atchison, Topeka and Santa Fé Railroad Company vs. Catlin and Frank, my predecessor held that a homestead claim in order to except the tract embraced thereby must have been valid and subsisting, or, in other words, one capable of being perfected at the date of the definite location of the road.

Under the later decision the entry of Stainbrook would have been erroneous, as Randall, the former homestead claimant, had abandoned the land prior to the date of the definite location of the road, but the entry was properly allowed under the ruling in force from the date of the decision in the Boyd case, viz, April 28, 1871, to the date of the decision in the Catlin and Frank case, viz, May 1, 1872.

In subdivision four of the circular issued by your office August 15, 1872, subsequent to the decision in the last-mentioned case, in which the rule announced in the Boyd decision was modified, giving instructions relative to hearings in connection with the adjustment of railroad grants, it is expressly stated that "when by direction of this office under its interpretation of the rulings of the department, second entries or filings have been allowed within railroad limits upon lands previously covered by homesteads or pre-emptions after the cancellation of the same, such second entries or pre-emptions will not be affected by this modification of previous decisions." This circular clearly recognizes the fact that under former rulings entries had been permitted upon lands once covered by homestead or pre-emption claims, and as a matter of fact the entries allowed under the Boyd decision were thus specified.

* * *

As the tract in question was covered by a homestead claim at the date of withdrawal for railroad purposes, and as the entry of Stainbrook was permitted under the ruling of the Land Department, established by the Boyd decision, and as he has shown a compliance with the law, I am of the opinion that his entry is confirmed under the provisions of the act of April 21, 1876, and therefore reverse your decision and direct that the entry of Stainbrook be reinstated.

The tract in question was covered by a homestead entry, valid at its inception, and uncanceled at the time the grant became effective; hence, under the ruling established by my predecessor in the case of Chalkley Thomas, the same would have been excepted from the operation of said grant and subject to appropriation by Stainbrook. His entry was canceled, however, under a ruling of the Land Department in force at the date of adjudication, and on that point must be considered res judicata, and if the application had been based upon that ground it must have been rejected. The application, however, was made under the provisions of the act of April 21, 1876, and was based upon the ground of an entry allowed under the rulings of the Land Department, and has been adjudicated in accordance therewith.

In the adjudication of applications under the act above mentioned the rule established in the Thomas case, viz, that an unimpeached homestead entry will be considered valid until canceled, will be followed.

The papers transmitted with your letter of March 2d last are herewith returned. Very respectfully,

C. SCHURZ, Secretary.

Notwithstanding the fact that at the time of the grant and withdrawal for this railroad company the title of certain Indians to lands granted to the company had not been extinguished, yet as the Indian title was extinguished at the date of the definite location of the road, the grant and withdrawal became operative and the lands inured to the road.

The ruling being based upon the last clause of the second section of the granting act, to wit: "The United States shall extinguish as rapidly as may be consistent with public policy and the welfare of said Indians the Indian titles to all lands falling under the operation of this act, and acquired in

the donation to the road named in this bill."

A party who made a settlement in violation of law acquired no right in the land before the extinguishment of the Indian right of occupancy. And the withdrawal for the company prevented the acquiring of such right after its extinguishment.

DEPARTMENT OF THE INTERIOR,
Washington, August 14, 1878.

SIR: I have considered the case of Hans S. Hogland vs. The Northern Pacific Railroad Company, involving the fractional N. W. of section 19, township 140 north, range 49 west, Fargo land district, Dakota Territory, on appeal from your decision of February 8, 1877, adverse to the claim of said company.

The land in question is within the limits of the tract of country formerly claimed by the Wahpeton and Sisseton bands of Sioux Indians as their possession; it is also

within the forty mile limits of the grant of July 2, 1864 (13 Stat., p. 365), to aid in the construction of a railroad and telegraph line from Lake Superior to Puget's Sound on the Pacific Coast by the northern route, and is claimed by said company under its grant.

The plat of the survey of said township was filed in the local land office July 25, 1873. The withdrawal of lands for said road embracing the tract in question took effect February 21, 1872, and the line of said road was definitely located May 26, 1873, opposite said tract.

At the time of the withdrawal it is claimed that the Indian title to those lands had not been extinguished, that said title was not extinguished until May 19, 1873, seven days before the right of the company attached, and that said lands did not therefore inure to the grant.

Hogland settled on this tract in 1871, built a small house thereon, and planted some potatoes; the next year he built a larger house, a stable, and made other improvements. He continued to reside on the land until the spring of 1875, when he moved his buildings on an adjoining tract (section 18), and lived thereon until the spring of 1876, when he moved the small house back on the tract in dispute, which he has since claimed under the provisions of the pre-emption law.

On August 25, 1873, one month after the township plat was filed, Hogland made application to file a declaratory statement for the tract in question, but his application was refused by the local officers, and no appeal was taken from their decision. On March 28, 1876, the register transmitted Hogland's original declaratory statement to your office, and on the 18th of April following you authorized the local officers to allow him to file for said tract, and he accordingly filed declaratory statement 1075 for the same, May 4, 1876, alleging settlement April 18, 1871. After his filing was refused in 1873, Hogland appears to have recognized the right of the company to the land, and to have entered into negotiations with its officers to purchase it of the company, but failed to complete the purchase, owing to his inability to pay for the same.

In order to correctly understand the status of this tract and others similarly situated, and to determine the rights of the respective parties to the tract in question, it will be necessary to inquire into the character of the Indian title to it, and the manner in which the same has been recognized and treated by the United States.

The whole tract, of which the one in question forms a part, was included in the Louisiana purchase, ceded to the United States by France, by the treaty of Paris, on April 30, 1803. No specific reservation of it for Indian purposes appears to have been made by foreign sovereignties previous to that time, and none was recognized by that treaty.

As a matter of law, therefore, the fee-simple title was vested in the government by virtue of said treaty, although it was then occupied by the Indians, and that fact was well known at the time to both governments.

The first authoritative declaration or admission on the part of our government of any Indian claim or title thereto is found in the act of Congress approved June 30, 1834, the first section of which reads as follows:

"That all that part of the United States west of the Mississippi, and not within the States of Missouri and Louisiana, or the Territory of Arkansas, and also that part of the United States east of the Mississippi River, and not within any State, to which the Indian title has not been extinguished, for the purposes of this act, be taken and deemed to be the Indian country." (4 Stats., 729.)

The second article of the treaty between the United States and Sisseton and Wahpeton bands of Dakota or Sioux Indians, proclaimed May 2, 1867 (in which the claim of these bands of Indians was clearly recognized by the government, and the right to construct wagon-roads, railroads, mail-stations, and telegraph lines through the Indian country, was granted to the United States), reads as follows:

"ARTICLE II. The said bands hereby cede to the United States the right to construct wagon-roads, railroads, mail-stations, telegraph lines, and such other public improvements as the interest of the government may require, over and across the lands claimed by said bands, including their reservation (as hereinafter designated), over any route or routes that may be selected by the authority of the government; said lands so claimed being bounded on the south and east by the treaty line of 1851, and the Red River of the North to the mouth of Goose River; on the north by the Goose River, and a line running from the source thereof by the most westerly point of Devil's Lake to the Chief's Bluff at the head of James River, and on the west by the James River to the mouth of Mocasin River, and thence to Kampeska Lake."

The third and fourth articles set apart as permanent reservations two small tracts within the limits above mentioned, and by the ninth article it was stipulated as follows:

"And it is further agreed that no person not a member of said bands, parties hereto, whether white, mixed blood, or Indian, except persons in the employ of the government or located under its authority, shall be permitted to locate upon said lands, either for hunting, trapping, or agricultural purposes."-(Revision of Indian Treaties, p.

guage. It is held that if a homestead claim attached to the land at the date of definite location, it was excepted from the operation of the grant. It has been held by the Land Department since the date of the passage of the homestead law that a homestead claim attached by means of an entry. It did not necessarily follow, however, that said claim was a valid one. It will be observed that the language in the Boyd decision was not qualified; it was expressly stated that a homestead claim to the land at the date of definite location of the road excepted the tract covered thereby from the operation of the grant. The interpretation given to the decision was in accordance with this theory, and many entries were allowed thereunder.

About one year subsequent, viz, under date of May 1, 1872, in the case of the Atchison, Topeka and Santa Fé Railroad Company vs. Catlin and Frank, my predecessor held that a homestead claim in order to except the tract embraced thereby must have been valid and subsisting, or, in other words, one capable of being perfected at the date of the definite location of the road.

Under the later decision the entry of Stainbrook would have been erroneous, as Randall, the former homestead claimant, had abandoned the land prior to the date of the definite location of the road, but the entry was properly allowed under the ruling in force from the date of the decision in the Boyd case, viz, April 28, 1871, to the date of the decision in the Catlin and Frank case, viz, May 1, 1872.

In subdivision four of the circular issued by your office August 15, 1872, subsequent to the decision in the last-mentioned case, in which the rule announced in the Boyd decision was modified, giving instructions relative to hearings in connection with the adjustment of railroad grants, it is expressly stated that "when by direction of this office under its interpretation of the rulings of the department, second entries or filings have been allowed within railroad limits upon lands previously covered by homesteads or pre-emptions after the cancellation of the same, such second entries or pre-emptions will not be affected by this modification of previous decisions." This circular clearly recognizes the fact that under former rulings entries had been permitted upon lands once covered by homestead or pre-emption claims, and as a matter of fact the entries allowed under the Boyd decision were thus specified.

* * *

As the tract in question was covered by a homestead claim at the date of withdrawal for railroad purposes, and as the entry of Stainbrook was permitted under the ruling of the Land Department, established by the Boyd decision, and as he has shown a compliance with the law, I am of the opinion that his entry is confirmed under the provisions of the act of April 21, 1876, and therefore reverse your decision and direct that the entry of Stainbrook be reinstated.

The tract in question was covered by a homestead entry, valid at its inception, and uncanceled at the time the grant became effective; hence, under the ruling established by my predecessor in the case of Chalkley Thomas, the same would have been excepted from the operation of said grant and subject to appropriation by Stainbrook. His entry was canceled, however, under a ruling of the Land Department in force at the date of adjudication, and on that point must be considered res judicata, and if the application had been based upon that ground it must have been rejected. The application, however, was made under the provisions of the act of April 21, 1876, and was based upon the ground of an entry allowed under the rulings of the Land Department, and has been adjudicated in accordance therewith.

In the adjudication of applications under the act above mentioned the rule established in the Thomas case, viz, that an unimpeached homestead entry will be considered valid until canceled, will be followed.

The papers transmitted with your letter of March 2d last are herewith returned. Very respectfully,

C. SCHURZ, Secretary.

Notwithstanding the fact that at the time of the grant and withdrawal for this railroad company the title of certain Indians to lands granted to the company had not been extinguished, yet as the Indian title was extinguished at the date of the definite location of the road, the grant and withdrawal became operative and the lands inured to the road.

The ruling being based upon the last clause of the second section of the granting act, to wit: "The United States shall extinguish as rapidly as may be consistent with public policy and the welfare of said Indians the Indian titles to all lands falling under the operation of this act, and acquired in

the donation to the road named in this bill."

A party who made a settlement in violation of law acquired no right in the land before the extinguishment of the Indian right of occupancy. And the withdrawal for the company prevented the acquiring of such right after its extinguishment.

DEPARTMENT OF THE INTERIOR,
Washington, August 14, 1878.

SIR: I have considered the case of Hans S. Hogland vs. The Northern Pacific Railroad Company, involving the fractional N. W. of section 19, township 140 north, range 49 west, Fargo land district, Dakota Territory, on appeal from your decision of February 8, 1877, adverse to the claim of said company.

The land in question is within the limits of the tract of country formerly claimed by the Wahpeton and Sisseton bands of Sioux Indians as their possession; it is also

within the forty mile limits of the grant of July 2, 1864 (13 Stat., p. 365), to aid in the construction of a railroad and telegraph line from Lake Superior to Puget's Sound on the Pacific Coast by the northern route, and is claimed by said company under its grant.

The plat of the survey of said township was filed in the local land office July 25, 1873. The withdrawal of lands for said road embracing the tract in question took effect February 21, 1872, and the line of said road was definitely located May 26, 1873, opposite said tract.

At the time of the withdrawal it is claimed that the Indian title to those lands had not been extinguished, that said title was not extinguished until May 19, 1873, seven days before the right of the company attached, and that said lands did not therefore inure to the grant.

Hogland settled on this tract in 1871, built a small house thereon, and planted some potatoes; the next year he built a larger house, a stable, and made other improvements. He continued to reside on the land until the spring of 1875, when he moved his buildings on an adjoining tract (section 18), and lived thereon until the spring of 1876, when he moved the small house back on the tract in dispute, which he has since claimed under the provisions of the pre-emption law.

On August 25, 1873, one month after the township plat was filed, Hogland made application to file a declaratory statement for the tract in question, but his application was refused by the local officers, and no appeal was taken from their decision. On March 28, 1876, the register transmitted Hogland's original declaratory statement to your office, and on the 18th of April following you authorized the local officers to allow him to file for said tract, and he accordingly filed declaratory statement 1075 for the same, May 4, 1876, alleging settlement April 18, 1871. After his filing was refused in 1873, Hogland appears to have recognized the right of the company to the land, and to have entered into negotiations with its officers to purchase it of the company, but failed to complete the purchase, owing to his inability to pay for the same.

In order to correctly understand the status of this tract and others similarly situated, and to determine the rights of the respective parties to the tract in question, it will be necessary to inquire into the character of the Indian title to it, and the manner in which the same has been recognized and treated by the United States.

The whole tract, of which the one in question forms a part, was included in the Louisiana purchase, ceded to the United States by France, by the treaty of Paris, on April 30, 1803. No specific reservation of it for Indian purposes appears to have been made by foreign sovereignties previous to that time, and none was recognized by that treaty.

As a matter of law, therefore, the fee-simple title was vested in the government by virtue of said treaty, although it was then occupied by the Indians, and that fact was well known at the time to both governments.

The first authoritative declaration or admission on the part of our government of any Indian claim or title thereto is found in the act of Congress approved June 30, 1834, the first section of which reads as follows:

"That all that part of the United States west of the Mississippi, and not within the States of Missouri and Louisiana, or the Territory of Arkansas, and also that part of the United States east of the Mississippi River, and not within any State, to which the Indian title has not been extinguished, for the purposes of this act, be taken and deemed to be the Indian country." (4 Stats., 729.)

The second article of the treaty between the United States and Sisseton and Wahpeton bands of Dakota or Sioux Indians, proclaimed May 2, 1867 (in which the claim of these bands of Indians was clearly recognized by the government, and the right to construct wagon-roads, railroads, mail-stations, and telegraph lines through the Indian country, was granted to the United States), reads as follows:

"ARTICLE II. The said bands hereby cede to the United States the right to construct wagon-roads, railroads, mail-stations, telegraph lines, and such other public improvements as the interest of the government may require, over and across the lands claimed by said bands, including their reservation (as hereinafter designated), over any route or routes that may be selected by the authority of the government; said lands so claimed being bounded on the south and east by the treaty line of 1851, and the Red River of the North to the mouth of Goose River; on the north by the Goose River, and a line running from the source thereof by the most westerly point of Devil's Lake to the Chief's Bluff at the head of James River, and on the west by the James River to the mouth of Mocasin River, and thence to Kampeska Lake."

The third and fourth articles set apart as permanent reservations two small tracts within the limits above mentioned, and by the ninth article it was stipulated as follows:

“And it is further agreed that no person not a member of said bands, parties hereto, whether white, mixed blood, or Indian, except persons in the employ of the government or located under its authority, shall be permitted to locate upon said lands, either for hunting, trapping, or agricultural purposes.”—(Revision of Indian Treaties, p.