by said scripee precluded any examination into the fact as to whether the improvements on these lands were made for her personal use and benefit." I do not think the position taken by the Department on this phase of the case has been successfully assailed in the arguments advanced in support of this specification. The question is not one between the beneficiary of this scrip and her alleged attorney in fact, but is one be tween the claimants under the scrip locations on the one side, and the other claimants and the United States on the other; and as against the United States or claimants in good faith under the public land laws, the deed of ratification can have no effect. The question to be determined is whether the locations in question were made in good faith in accordance with the law and regulations. As was said in the decision complained of: "If the location of the scrip was illegal and invalid, then the deed of ratification could not give it validity-could not vitalize that which had not in it the germ or essence of legal vitality." There was no error in said decision on this point.

This disposes of all specifications of error in the motion for review filed in behalf of the claimants under said scrip locations adversely, and the conclusion reached in the original decision in regard to these locations will be adhered to.

The motion for review filed in behalf of the pre-emption claimants contains sixteen specifications of error, alleging in substance that the merits of these claims were not brought in question by the order for a hearing or the notice issued thereon; that the testimony touching the validity of those claims should have been excluded; that even admitting such testimony, it is not sufficient to warrant the conclusion reached, that the testimony was misquoted in said decision; that it was error to hold that the appeal of these parties from the action of the local officers rejecting their respective applications to file declaratory statements, which appeal was never acted upon by your office, was sufficient to bring their claims before this Department for consideration; and that it was error to refuse them a preference right of entry.

On October 9, 1884, Hyde and McDonald each filed a paper, duly verified by affidavit, termed "an application for leave to contest" the scrip locations mentioned herein, in which applications the qualifications of the respective parties as pre-emptors were duly set forth and in each of which it was alleged that the party making the same nad settled upon the land described therein "for his own exclusive use and benefit" with the intention of filing declaratory statement therefor under the pre-emption laws. On July 20, 1885, these parties each presented his declaratory statement for the tract claimed by him, which statements were rejected by the local officers. From this action of the local officers the applicants each flled an appeal, which appeals were transmitted to your office August 25, 1885. With these facts thus presented your office ordered a hearing. At this hearing testimony was submitted for and against not only the scrip locations but also the

claims of these pre-emption applicants. The local officers found in favor of the validity of the scrip locations, and in view of that fact declared it unnecessary to consider "the bona fides of Hyde and McDonald or their rights under the pre-emption law."

The decision rendered in your office made no disposition of the applications of Hyde and McDonald. The applications of these parties to file pre-emption declaratory statements came up with the record in the case and it was entirely competent for this Department, in the exercise of the jurisdiction conferred upon the head of it, to consider and determine all questions presented by the record. The testimony alleged to have been misquoted is contained in the following extract from the testimony of Hyde found in the original decision:

Q. Did you have any contract with Mr. White in writing or otherwise by which he was to receive any compensation or interest in the land?-A. Yes, there was a con

tract.

Q. Where is it ?-A. I don't know.

Q. When and where did you last see it?-A. I have not seen it since it was drawn up by Mr. White.

Q. What did it contain?-A. It contained that, when I proved up I was to secure him a one-half interest.

It seems the last answer should have read “It contained that, when I proved up I was to secure him on a one-half interest." This change does not, however, destroy the effect of the testimony taken as a whole, or necessarily demand a different conclusion. There is testimony to sustain the finding on this particular phase of this case, and it is not shown that such finding was against the palpable preponderance of the evidence. In such cases a review will not be allowed. Croghan Graves (9 L. D., 463).

After the filing of the motions for review herein, to wit: on July 10, 1889, affidavits of Hyde, McDonald and S. F. White were filed. Hyde in his affidavit sets forth in substance that he settled upon this land and built a house on the NE of the SW of said section 30, wherein he has continued to reside; that his improvements have cost, as he verily believes, to exceed $3,000; that whatever agreement he had with White did not affect or refer to the above described tract upon which his house stands, but referred only to the land claimed under the scrip locations; that said agreement was "That if at the time said contest should be ended in favor of affiant said affiant should be owing for services in contest, then and in that even the should secure the payment of said services upon the undivided one-half of said land;" that as a matter of fact he has paid his attorney from time to time in cash and has paid him in full, and that affiant never contemplated giving said attorney any interest in the land, but always contemplated paying him in cash for his services. McDonald sets forth that his agreement with White was that he would secure the payment of any sum that might be due for attorney fees at the close of the contest by giving a mortgage on a one-half interest in said claim, and that he has already

paid his attorney in full in cash. White's statement, in so far as it relates to the matter of the contract between him and these parties, is as follows:

Deponent further says that, while he has not seen the written contract between himself and Hyde for a long time, and can not give the exact terms of said contract, that he does remember that said contract contained a description of the lands supposed and intended to be affected thereby and that description does not include the northeast quarter of southwest quarter of section No. 30 aforesaid.

This is apparently an effort to take the tract described out of the contract mentioned and to clear it of the taint attaching to the claim. A contract made before entry to convey any part of the land filed for renders invalid the whole claim. The statements made in these affidavits do not in my opinion destroy the force of the testimony given at the hearing or call for further action on these claims. (Smith v. Custer et al., 8 L. D., 269.)

The question as to whether these parties, Hyde and McDonald or either of them, were entitled to a preference right of entry was not expressly decided in the decision complained of, but it may perhaps be said that question was inferentially decided adversely to them by the declaration that the land was "open to disposal under the public land laws of the United States applicable thereto." Any question as to their preference right of entry would arise only upon application within thirty days after due notice of the cancellation of the scrip locations to exercise such right and it ought not to be decided prior to that time. Saunders v. Baldwin (9 L. D., 391), and authorities there cited.

The decision complained of will be modified to the extent of saying that the question as to a preference right of entry in either of these parties is not decided. It is not intended herein to express any opinion whatever upon that question.

It is alleged that a part of the land in question has been entered by other parties since the promulgation of said departmental decision, and if this be true those parties will be entitled to notice if the attempt shall be made to exercise a preference right of entry.

This leaves yet to be disposed of the claim of Huntress who, subsequently to the hearing had herein before the local office, filed an affidavit of contest attacking both the scrip locations and the pre-emption claims. No action could at that time be taken on this application, and it was held to await the determination of the proceedings then in progress. Those proceedings resulted in the cancellation of the scrip locations and the rejection of the applications to file pre-emption declaratory statements. This left nothing for Mr. Huntress to contest, and his said application to contest should have been refused. The question as to whether he was entitled to a preference right of entry had not arisen, and the decision upon it was error. The decision complained of is, as to that portion relating to the claim of Huntress, hereby modified in accordance with the views herein expressed.

17581-VOL 12—11

This disposes of all questions arising under the various motions for review, and the decision complained of is modified in the particulars indicated herein.

On November 11, 1889, a patent was issued by your office for lots 1 and 2 and the SW of the NE of said section 30 without authority of law or sanction of the Department. How said patent came to be issued has been the subject of investigation by the Department, and the action of those individuals by whose connivance or neglect the said patent was allowed to go out from the Department has been condemned. So long, however, as said patent remains outstanding and uncanceled, the Department has no jurisdiction to make any disposition of said land. John P. S. Voght (9 L. D., 114).

INDIAN ALLOTMENT.-RELINQUISHMENT—ACT OF FEBRUARY 8, 1887.

GEORGE PRICE.

A non-reservation Indian who has made application for an allotment under section 4, act of February 8, 1887, has no authority to relinquish the same, except by the consent and under the direction of the Department.

Secretary Noble to the Commissioner of Indian Affairs, November 29, 1890.

Your communication of November 20th was duly received, and in pursuance of your request to know whether a non-reservation Indian has a right to relinquish his claim to lands under the fourth section of the general allotment act of February 8, 1887, prior to the approval by the Secretary of the Interior, you are informed that no such relinquishment can be made without such approval. The question does not appear to have arisen, however, in any legal way, and the case is apparently a merely hypothetical one, the local land office having refused to allow the relinquishment proposed by the Indian.

I enclose you a copy of the opinion of the Assistant Attorney-General, to whom the question was referred, which has been approved by me.

OPINION.

Assistant Attorney General Shields to the Commissioner of Indian Affairs, November 28, 1890.

I have the honor to acknowledge the receipt, by reference from First Assistant Secretary Chandler, of a communication from the Indian Office transmitting the relinquishment of George Price, a non-reservation Chippewa Indian, covering his entry No. 6 of the S of the SE and the Sof the SW of Sec. 9, T. 58 N., R. 18 W., Duluth land district, Minnesota, made July 28, 1888, under the provisions of the general allotment act of Congress approved February 8, 1887 (24 Stats., 388).

From the papers presented, it appears that said Price presented said reliquishment, which was marked "filed August 30, 1890," by the register of said office, but was rejected by the local office for the reason that they had no authority to allow the same, and for the further reason that they considered said “relinquishment to be in fact a sale, as Frank B. Seldon, the same person who filed said relinquishment at the same time made application for said land, which application is held subject to your (Comm'r G. L. O.) action." Said relinquishment and communication of the local office were referred by the General Land Office to the Indian Office on October 9, 1890, with a request "for instructions in regard to same." In a communication dated November 20, 1890, the Indian Office acknowledged the receipt of said reference, and after referring to the provisions of said Indian allotment act, and also to the act of Congress approved May 14, 1880 (21 Stats., 140), requested to be advised by the Department "whether a non-reservation Indian has the right to relinquish his claim to land covered by application for allotment under the 4th section of the general allotment act of February 8, 1887, prior to the approval of the same by the Secretary of the Interior." Said section 4 provides:

That where any Indian not residing on a reservation, or for whose tribe no reservation has been provided by treaty, act of Congress, or executive order, shall make settlement upon any surveyed or unsurveyed lands of the United States not otherwise appropriated, he or she shall be entitled, upon application to the local land office for the district in which the lands are located, to have the same allotted to him or her, and to his or her children, in quantities and manner as provided in this act for Indians residing upon reservations; and when such settlement is made upon unsurveyed lands, the grant to such Indians shall be adjusted upon the survey of the lands so as to conform thereto; and patents shall be issued to them for such lands in the manner and with the restrictions as herein provided.

Section 5 of said allotment act provides:

That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, That the President of the United States may in any case in his discretion extend the period. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void.

On September 17, 1887, the Department issued a circular prescribing the rules and regulations relative to allotments under said fourth sec. tion, which (p. 4) require the applicant

tribe; that he was born in the

to make oath that he is an Indian of the United States; that he is the head of a family, or a single person over eighteen years