of the act as between its date and the time of filing the map of definite location.

This question is not presented by your letter, and I do not deem it necessary now to decide it. If, however, the construction claimed by the company were conceded, I think the indemnity limits withdrawn as indicated herein will afford ample protection to the grant.

INDEMNITY LANDS-WITHDRAWAL.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

REGISTERS AND RECEIVERS:

GENERAL LAND OFFICE, Washington, D. C., May 22, 1883.

GENTLEMEN: It appears that under certain decisions of this office and the Department a practice has grown up at several district land offices of admitting pre-emption claims or homestead entries for land in sections withdrawn for indemnity under grants to aid in the construction of railroads, to remain of record awaiting the final adjustment of the grant, when, if the land is not needed in satisfaction thereof, such entries or claims may be perfected.

Under date 17th instant, the honorable Secretary of the Interior decided that he had authority to order withdrawals of land within the indemnity limits of the grant to the Northern Pacific Railroad Company under the act of Congress approved July 2, 1864 (13 Stat., 365), and the joint resolution of May 31, 1870 (16 Stat., 378) and that the withdrawals for that purpose should be maintained, at least for the present. In view of the probability that a large proportion of the land in the indemnity limits will be required to satisfy the several grants in which indemnity is provided, it is evident that a continuance of the practice of allowing entries of such lands will result in detriment rather than benefit to settlers, many of whom would find that the lands entered by them were needed to make up the losses within the granted limits. In such an event the settler must either purchase the land at the price fixed by the company or lose his improvements and the benefits of his labor. In the decision cited, the Secretary says:

The intention of the legislature, as manifest in these land grant acts, must in good faith be carried out by the Land Department. At the same time the rights and interests of settlers must be regarded, and the policy of the country in respect to speedy settlement of the public lands not unnecessarily restricted.

I cannot shut my eyes to the fact that vast areas of lands (public but for the right of selection), lying within indemnity limits, are barred to settlement, and that the area of arable lands open to settlement is not great when compared with the increasing demand, and is rapidly diminishing.

It becomes the somewhat difficult duty of your office and this Depart ment to administer the laws relating to these grants and the public lands, and to the rights of settlers, in such manner as to preserve, as far as possible, the rights and interests of all parties.

It was clearly the intention of the legislature that within the indemnity limits fixed by the Northern Pacific acts, the company should have the opportunity to take lands, acre for acre, for all those lost in place.

*

*

The work of ascertaining what lands in place have been lost to the company ought go forward as rapidly as possible, and the company be enjoined to make selections in lieu of such lost lands without delay.

If the company neglects to make its selections, and takes advantage of the withdrawals heretofore made, or that may be made hereafter, to withhold lands within the indemnity limit from the operation of the settlement laws, not actually needed to make good losses they have sustained, it will be the duty of the Department to revoke such order of withdrawal.

The advantage to settlers in awaiting the adjustment of the claims of the railroad companies for indemnity, and the restoration to uncondi tional entry of the lands withdrawn but not needed for that purpose, over the practice of admitting entries and holding them to await the result of the adjustment of the grants, by which settlers are kept in doubt for an indefinite period, with ultimate loss to many, is too plain for further remark.

The Secretary's decision being applicable to all withdrawals for indemnity purposes under railroad grants, you are directed to refuse applica tions for lands thus withdrawn, except where the applicant alleges settlement prior to the date of receipt of the order of withdrawal at the local office.

VII.-INDIAN RESERVATIONS.

SETTLEMENTS-WITHDRAWAL.

BROWN ET AL. v. NORTHERN PACIFIC RAILROAD COMPANY.

No rights were acquired by settlements made while the land was in the Indian reservation, and upon the extinguishment of the Indian title the withdrawal for the grant became effective and prevented the acquisition of any rights by settlement on odd-numbered sections.

Acting Commissioner Harrison to register and receiver, Miles City, Mont., August 16, 1883.

GENTLEMEN: Under date September 30, 1882, the register transmitted, for instructions, certain Sioux half-breed scrip, with applications to locate the same, filed in the local office at Helena, and transferred to your office when it was opened, stating that he was unable to adjust the locations to conform to the public surveys, which have now been extended over the land, and the following cases have been con sidered:

Nos. 592 D and 592 E, 160 acres each, issued to Ellen Brown, filed August 6, 1880, by George B. Wright, attorney in fact.

Nos. 323 D and 323 E, 160 acres each, issued to Roseau Bruguier, filed August 7, 1880, by Benjamin S. Bull, attorney in fact.

No. 310 D, 160 acres, issued to Sophia Huot, filed August 7, 1880, by W. W. Hale, attorney in fact.

The lands to which title is sought to be acquired through the location of said scrip are portions of Secs. 13, 24, 25, and 26, T. 16 N., R. 55 E., and 18 and 19, T. 16 N., R. 56 E.

A

Said townships are within the limits of the grant to the Northern Pacific Railroad Company by the act of July 2, 1864. (13 Stat., 365.) map showing the general route of said company's road was filed in this office February 21, 1872. A withdrawal from sale or entry of the odd-numbered sections, both surveyed and unsurveyed, for 40 miles on each side of the line of route shown on said map was ordered by letter from this office dated April 22, 1872, which reached the local office, then at Helena, May 6. A map showing the definite location of the line of said road through said townships was received in this office October 25, 1880, with a letter from George Gray, esq., general counsel of the company, to the Secretary of the Interior, dated 21st same month. The limits of the withdrawal have not been adjusted to said definitely located line, which through said townships is substantially the same as the line of general route.

If the land in the odd-numbered sections was withdrawn by the order of 1872, it was not subject to location at the date of filing of the applications under consideration.

At the date of the grant to the railroad company, said lands were

within that portion of the Indian country recognized and acknowledged as the territory of the Arickarees, Gros Ventre, and Mandan Indians in the treaty concluded at Fort Laramie September 17, 1851. (Revision of Indian Treaties, p. 1048.) Said treaty was never ratified, but Congress made appropriations in accordance with its provisions.

Under date April 2, 1870, the Commissioner of Indian Affairs submitted to the Secretary of the Interior a statement relative to the matter, and recommended that an Executive order be invoked setting apart a reservation for said Indians, as proposed, and such order was issued on the 12th same month. (See Report of Commissioner Indian Affairs for 1882, pp. 260-262.)

The reservation thus established-known as Fort Berthold Reserveembraced an estimated area of 8,330,000 acres (about 4,000,000 in Montana and the remainder in Dakota), and included the land in question.

By an Executive order dated July 13, 1880 (Id., 262), the boundaries of said reservation were changed, and that portion in Montana, and the greater part of that in Dakota, restored to the public domain.

A number of townships in the area thus restored have been surveyed and others are under contract. The plats of T. 16 N., R. 55 and 56 were filed in your office June 12, 1882.

The second section of said act of 1864 (supra) provides that 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 said act, and acquired in the donation to the road named.

The grant to the company by the third section of said act is of

Every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the Territories of the United States, and whenever on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free home pre-emption, or other claims or rights, at the time the line of said road is definitely fixed and a plat thereof filed in the office of the Commissioner of the General Land Office. *

*

My attention has been called to a letter of the honorable Secretary of the Interior, dated November 1, 1881, in reply to a communication from Geo. Gray, esq., general counsel for the Northern Pacific Railroad Company, claiming that under its grant said company had a right to take from the Crow Indian Reservation, adjacent to the line of its road, material for the construction thereof, and asking permission to take such material, with the consent of the Indians, to whom the company was willing to make satisfactory compensation for the same. This reservation is a part of the territory recognized as that of the Crow Indians by the treaty of 1851, herein referred to. It was established by a treaty concluded May 7, 1868, which was formally ratified and proclaimed August 12, 1868. (Revision of Indian Treaties, p. 237.) Mr.

Gray's application was denied by the Department upon the ground that the land was not public land at the date of the grant to the railroad company, being then occupied by said Indians, who did not acquire title by the treaty of 1868, the effect of which was simply to confirm title already existing.

The question before me is not whether the tracts herein described were public lands at the date of the grant, but were they such at the date of filing of the map of definite location of the road, and not within the exceptions specified in section 3 of the granting act.

As herein shown, the Executive order, which extinguished the Indian right of occupancy, antedated the filing of said map.

No rights were acquired by settlement while the land was in the reservation, and upon the issue of said Executive order the withdrawal of 1872 became effective and prevented the acquisition of any such rights. (Hoagland v. N. P. R. R. Co., 5 Copp's L. O., 107.)

So far, therefore, as the applications under consideration apply to lands in the odd-numbered sections the same are held for rejection subject to appeal within sixty days.

From the plat of the private survey of the claim of Ellen Brown it appears that the claim is intended to cover a tract of land twenty chains in width extending along the right bank of the Yellowstone River for a distance sufficient to make 320 acres, but in attempting to show said claim in connection with the lines of public survey, it is found that following the courses and distances given the greater part of the claim falls in the river. The other claims herein mentioned border on the Brown claim and their boundaries are governed by the surveys thereof, so that until the description of said claim is corrected no part of these claims can be adjusted. Such correction requires a new survey, which will be allowed provided the boundaries of said claim were originally so marked that they can now be found and identified.

After such correction, if the parties so elect, said claims will be ad. justed as to the even-numbered sections, and hearings will be ordered to determine their rights as against claimants under the pre-emption and homestead laws and under another scrip location, whose claims for a part of said even-numbered sections appear of record.

If the parties do not desire to have their claims adjusted to the evennumbered sections, they may relinquish the same, and have the scrip returned.

The odd-numbered sections herein described are included in the list of lands selected for the railroad company filed in your office on June 23d last, received in this office on 23d ultimo.

Notify the scrippees of this decision. The railroad company will be notified through its resident attorney by letter from this office.