HOMESTEAD ENTRY-RESIDENCE-MILITARY SERVICE.

W. A. JONES.

A person now serving in the Army or Navy cannot make homestead entry if his duties would prevent him complying with the law as to residence.

Commissioner McFarland to Maj. W. A. Jones, San Francisco, California, May 9, 1883.

In reply to your letter of the 19th ultimo, referred to this office by the Hon. Secretary of the Interior, I have to state that a person now serving in the Army or Navy of the United States cannot make a homestead entry if his duties would prevent him from complying with the law as to residence.

In the case of Gen. Jeff. C. Davis, the Hon. Secretary of the Interior, under date of April 9, 1879, decided that section 2308 U. S. Revised Statutes has reference only to entries made by persons before or after enlistment into the service during the war of the rebellion, and whose rights were sacrificed by reason of their absence in said service; and the said section was not intended to include persons who have served in the Regular Army since the close of the rebellion, and that such service cannot be construed as equivalent to actual residence.

ENTRY UNDER ACT OF JUNE 15, 1880.

INSTRUCTIONS.

Acting Commissioner Harrison to register and receiver, Taylor's Falls, Minnesota, May 21, 1883.

I am in receipt of your letter of May 5, 1883, as follows:

In case of a man dying and at the time holding a homestead, can an alien heir or heirs enter his homestead land under the act of June 15, 1880 An entryman has died here and his relations reside in Canada.

Before any heirs can legally be permitted to purchase the land embraced in the entry of a deceased homestead party it must be shown that the entryman left no widow. This fact being established, the rights of infant children under section 2292 R. S. must next be protected. If it be shown that neither widow or infant children survive the entryman, then the rights of other heirs may be considered, and they may be permitted to acquire title in any of the methods prescribed by law. In the event that they elect to purchase the land as provided by second section of act of June 15, 1880, it is immaterial whether they be citi zens or aliens. There is nothing in the statutes prohibiting aliens from purchasing lands subject to private entry, and the effect of the second section of act of June 15, 1880, is to render lands affected by it subject to private entry by the persons entitled to the benefit of its provisions.

PATENT-BOARD OF EQUITABLE ADJUDICATION.

INSTRUCTIONS.

Secretary Kirkwood to Commissioner McFarland, December 12, 1881.

Referring to your request of June 8, 1881, for instructions respecting the requirement of the issue of final certificate before the submission to the board of equitable adjudication of homestead cases not proved up in due time, I have to state that I see no necessity for a positive rule on the subject.

Under the present practice, cases are submitted in some instances upon the final proofs offered, without the issue of the official patent certificate, and in others the final certificate is issued and accompanies the papers.

While the law creating the Board provides for the issue of patent directly upon the adjudication, thereby conveying a clear implication that the entries to be submitted are substantially in form for such immediate issue of patent, yet I am inclined to the opinion that the power of the Board to confirm may be exercised at any period after the defect, if the case is in such reasonable completeness as to render it possible in due ordinary course to carry it speedily to patent.

This may be done by directing the final certificate to issue after the confirmation, as well as by directing the patent to issue upon a certifi cate already returned.

In many cases hardship might result from a too stringent regulation in either direction, and I prefer to leave the matter open for your discretion as individual cases may arise, leaving the Board free to act upon both classes as they may be respectively presented.

ISSUE OF PATENT-MINOR HEIRS.

OWEN COTTON, DECEASED.

Before patent can issue to minor heirs the following evidence must be adduced:
The appointment of the guardian.

The names and ages of all children surviving the demise of the soldier.

The death or remarriage of the widow, with the date when either occurred.

Commissioner McFarland to Francis Howard, Magnolia, Wisconsin, February 28, 1882.

I am in receipt of your letter of the 15th ult., inclosing a copy of letter C from this office to the register and receiver at Worthington, Minn., respecting the homestead entry No. 9701, final certificate No. 4099, NE. 1, 12, 102, 44, for the benefit of the minor heirs of Owen Cotton, deceased.

You state that "some mistake has occurred, as the mother of said heirs is still living." The deceased party was a soldier during the War of the Rebellion, and his right to make a homestead entry descended upon his death to his widow if living and not remarried. In the event of the death or marriage of the widow, then the infant orphan children, by duly appointed guardian, might initiate an entry. In the papers relating to the case under consideration there is no evidence of the death or remarriage of the widow and none of the appointment of a guardian for the infant orphan children, nor do the names or ages of the children appear. Before patent can issue upon this entry evidence must be filed in this office showing:

1. The appointment of the guardian.

2. The names and ages of all children surviving the demise of the soldier.

3. The death or remarriage of the widow, with date when either occurred.

This evidence must be transmitted through the district land office at Worthington, Minn., and so far as practicable should consist of certified copies from official records and of instruments in writing, relating to the facts to be established.

ADDITIONAL HOMESTEAD ENTRY-RESIDENCE.

JOSEPH D. SHARP.

The act of March 3, 1879, provides that no patent shall issue on new or additional entries made thereunder until the parties have actually and in conformity with the homestead laws occupied, resided upon, and cultivated the land at least one year.

The act does not exclude parties having made entries thereunder from paying for the lands upon homestead proof of inhabitation and cultivation of the homestead, treated as an entirety in cases of additional entry, for a period such as would evidence good faith in pre-emption cases.

Commissioner McFarland to register and receiver, Denver, Colorado, March 1, 1882.

I am in receipt of yours of the 29th ultimo, with affidavit of Joseph D. Sharp, stating that he purchased the land embraced in the cash entry referred to below, November 15, 1880, and has since occupied the same, and desires patent to issue for the entire tract. The entry as to the S. of SW. Sec. 4, T. 4 N., R. 67 W., was suspended by letter to you the 10th of last June in the following language :

The original homestead entry of Frank Buffmire, No. 3649, January 28, 1878, and his additional entry, No. 4320, made October 6, 1880, under the act of March 3, 1879, covering the SW. of Sec. 4, T. 4 N., R. 67 W., were commuted to cash entry No. 3248, on November 13, 1880. The additional entry was made less than two months previous to the cash entry. The act of March 3, 1879, provides that no patent shall issue on

new or additional entries made thereunder until the parties have actually and in conformity with the homestead laws occupied, resided upon, and cultivated the land embraced therein at least one year; that is, one year from date of new or additional entry. The party is regarded as entitled to credit for the period of residence upon the original entry tract, and cultivation of the additional entry tract, so far as relates to the latter tract from October 6, 1880, and, therefore, in view of the provision of law mentioned, he will be required to make proof not sooner than October 6, 1881, showing such residence and cultivation for at least one year from October 6, 1880, in order to be entitled to a patent for this tract. When the proof is furnished the matter of issuing patent will be considered.

It appears by the affidavit of Sharp that Buffmire left the land immediately after cash entry. Sharp urges that Buffmire was entitled to commute his entry as to the latter tract under section 2301 of the Revised Statutes by reason of residence on the original entry tract.

Upon a review of my predecessor's decision above quoted, I have concluded to relieve the cash entry from suspension. The act of 1879 is not regarded by me as excluding parties having made entry threunder from paying for the land upon homestead proof of inhabitation and cultivation of the homestead, treated as an entirety in cases of additional entry, for a period such as would evidence good faith in pre-emption cases the period of inhabitation required by section 2301 of the Revised Statutes. Homestead entries are made under the general provisions of the original homestead law-the act of May 20, 1862, and while additional privileges have since been conferred with certain limitations, I hold that the 8th section of the original act (sec. 2301 of the Revised Statutes) not having been repealed or modified in express terms by subsequent statutory provisions, is applicable, according to its letter, to homestead entries generally.

Notify Mr. Sharp of the action taken.

INDIAN RESERVATION-COMMON INDIAN TITLE.

W. N. BRADEN.

A permanent Indian reservation, within the meaning of the act of March 3, 1857, is a territory with definite boundaries, set apart by the government for the use of Indians, to which an unlimited occupancy as to time is guaranteed by the gov

ernment.

Secretary Teller to Commissioner McFarland, October 20, 1882.

I have considered the question presented to me in your communication of October 3, 1882, and submitted to you in a letter addressed to your office August 16, 1882, by Hon. W. N. Braden, auditor of the State of Minnesota, making inquiry as to what is understood by your office

"as permanent Indian reservation," and what is understood "as reservation held by common Indian title."

August 19, 1882, you reply to such a letter, and state "that the term permanent Indian reservation, as used in the act of Congress of March 3, 1857 (11 Stat., 200), is understood to mean lands allotted to Indians in fee. Lands held by common Indian title are lands subject to occupation in common by Indian tribes, but to which the paramount title remains in the United States."

And in reply to a letter addressed to you August 26, 1882, by the same party, asking whether the Sioux and Winnebago reservations were regarded as permanent Indian reservations, you state that "they were not so regarded."

By your communication of the 3d inst. to this Department, you submit a letter from Hon. W. S. Hahn, attorney-general of said State, addressed to this Department, and inquiring whether the views thus stated by you meet the approval of this Department.

I do not coincide with the views thus expressed by you. I am of the opinion that a permanent Indian reservation within the meaning of the act of March 3, 1857, referred to by you, is a territory of country with definite boundaries set apart by the government for the use of Indians, and to which an unlimited occupancy as to time is guaranteed by the government, and of which the Indians cannot be deprived, except by their own acts; and that a fee simple vested in the Indians is not essential to a permanent reservation.

The question was also submitted as to what is understood by "com. mon Indian title," and to which you reply that "lands held by the 'com. mon Indian title' are lands subject to occupation in common by Indian tribes, but to which the paramount title remains in the United States.” This is, I think, correct, except in that it assumes that as to permanent reservations the fee is in the Indians.

The term "common Indian title" seems to have been used somewhat indiscriminately; but in its generally accepted use it refers to the reservation title, and is thus distinguished from the aboriginal right of occupancy recognized in the Indians as to the great mass of land originally occupied by them.

I have examined the several treaties under which the Sioux and Winnebago reservations were created, and am of the opinion that such reservations were permanent reservations within the meaning of the act of March 3, 1857.

This question does not now arise in any controversy to which the United States is a party, but the question has been entered upon by your office, and I have deemed it best to answer the questions thus submitted to me. The practice is not to be approved, nor are the views here expressed to prevent a full examination of any questions which may be presented to your office in the adjustment of any accounts with States for such five per cent.