18. After the thirty days' period of newspaper publication has expired, the claimant will furnish from the office of publication a sworn statement (including an attached copy of the published notice) that the notice was published for the required period, giving the first and last date of such publication, and his own affidavit, or that of some credible person having personal knowledge of the fact, showing that the notice aforesaid remained conspicuously posted upon the land sought to be patented during said thirty days' publication, giving the dates. The register shall certify to the fact that the notice was posted in his office for the full period of thirty days, the certificate to state distinctly when such posting was done and how long continued, giving the dates. In no case shall entry be allowed until the proofs specified have been filed. * *

Exchange of public lands for lands in private ownership within the limits of any Indian reservation created by executive order.

(1) Act of Congress of April 21, 1904 (33 Stat., 211).

That any private land over which an Indian reservation has been extended by executive order, may be exchanged at the discretion of the Secretary of the Interior and at the expense of the owner thereof, and under such rules and regulations as may be prescribed by the Secretary of the Interior, for vacant, nonmineral, nontimbered, surveyed public lands of equal area and value and situated in the same State or Territory. (2) Circular of March 3, 1909 (37 L. D., 537), paragraphs 11 and 12.

11. In all cases you will require the applicant, within twenty days from the filing of his application, to begin publication of notice thereof at his own expense in a newspaper to be designated by the register as of general circulation in the vicinity of the land and published nearest thereto. Such publication must cover a period of thirty days, during which time a similar notice of the application must be posted in the local land office and upon each and every noncontiguous tract included in the application. 12. The notice should describe the land applied for and give the date of application, and state that the purpose thereof is to allow all persons claiming the land under the mining or other laws, desiring to show it to be mineral in character or adversely occupied, an opportunity to file objection to such application with the local officers of the land district in which the land is situated and to establish their interest therein or the mineral character thereof.

Alaskan coal lands.

(1) Act of Congress of April 28, 1904 (33 Stats., 525), section 2.

SEC. 2. That such locator or locators, or their assigns, who are citizens of the United States, shall receive a patent to the lands located by presenting, at any time within three years from the date of such notice, to the register and receiver of the land district in which the lands so located are situated an application therefor, accompanied by a certified copy of a plat of survey and field notes thereof, made by a United States deputy surveyor or a United States mineral surveyor, duly approved by the surveyorgeneral for the district of Alaska, and a payment of the sum of ten dollars per acre for the lands applied for; but no such application shall be allowed until after the applicant has caused a notice of the presentation thereof, embracing a description of the lands, to have been published in a newspaper in the district of Alaska published nearest the location of the premises for a period of sixty days, and shall have caused copies of such notice, together with a certified copy of the official plat or survey, to have been kept posted in a conspicuous place upon the land applied for and in the land office for the district in which the lands are located for a like period, and until after he shall have furnished proof of such publication and posting, and such other proof as is required by the coal-land laws: Provided, That nothing herein contained shall be so construed as to authorize entries to be made or title to be acquired to the shore of any navigable waters within said district.

(2) Circular of July 18, 1904 (33 L. D., 114).

Upon the presentation of an application for patent, as provided by section 2, if no reason appears for rejecting the application, the same will be received by the register and receiver and the claimant required to publish a notice of such application for the period of sixty days in a new paper in the district of Alaska published nearest the location of the particular lands, and the register will post a copy of such notice in his office for the same period. When the notice is published in a weekly newspaper, 9 consecutive insertions are necessary. When in a daily newspaper, the

notice must appear in each issue for 61 consecutive issues. In both cases the first day of issue must be excluded in estimating the period of sixty days.

The notice so published and posted must embrace all the data given in the notice posted upon the claim. In addition to such data, the published notice must further indicate the locus of the claim by giving the connecting line as shown by the field notes and plat between a corner of the claim and a United States mineral monument or a corner of the public survey, if there is one, and fix the boundaries of the claim by courses and distances.

Very respectfully,

Approved, August 11, 1909.

JESSE E. WILSON,

Acting Secretary.

S. V. PROUDFIT,
Acting Commissioner.

UMATILLA INDIAN LANDS-ENTRY BY MARRIED WOMAN.

INGRAM v. GUERNSEY.

A married woman not the head of a family is not qualified to make entry of Umatilla Indian lands opened to disposition under the acts of March 3, 1885, and July 1, 1902, and an entry made by one so disqualified is not confirmed by the acts of March 3, 1905, and June 29, 1906.

First Assistant Secretary Pierce to the Commissioner of the General (W. C. P.) Land Office, August 17, 1909. (J. H. T.)

The Department, October 24, 1908, denied motion for review of its decision of June 6, 1908, affirming the decision of your office of November 26, 1907, holding for cancellation Umatilla cash entry No. 485, made by Bertha B. Guernsey for the NE. 4, Sec. 22, T. 1 N., R. 34 E. (untimbered), and the SE. SE. 1, Sec. 23, T. 1 N., R. 35 E., W. M. (timbered), September 15, 1902, upon which was submitted final proof, September 27, 1905, at the La Grande, Oregon, land office. Said action was taken upon the contest of William Ingram.

In an agreed statement of facts by the parties, it was stipulated that claimant was the wife of Henry C. Guernsey at the date of her said entry, and lived with him until his death in July, 1903; that her husband also made an entry of Umatilla land at the same time that she made her said entry; that the lands covered by her entry are not agricultural lands but are chiefly valuable for grazing purposes, and that she has never resided upon said lands.

It was urged in the contest proceedings that the said Bertha B. Guernsey was not qualified to make such entry by reason of being a married woman, and also that she had not complied with the law and the instructions issued thereunder in either residing upon the land or using the same for grazing. The question of her qualification was not decided by the Department, but her entry was ordered canceled by reason of the fact that she had not either lived upon the land or used the same for grazing.

July 26, 1909, counsel for the entrywoman filed a petition or motion for reconsideration of the case in view of the decision rendered June

11, 1909, in the case of Daniel C. Bowman, wherein it was held that in such cases where the land was shown not to be suitable for use other than for grazing purposes, the remedial acts of March 3, 1905, and June 29, 1906, relieved the entryman from residence, cultivation or the use of the land for grazing where full payment was made prior to the date of said acts and it was shown that the land was not suitable for use other than for grazing purposes.

The act of March 3, 1885 (23 Stat., 340), providing for the disposition of the Umatilla lands at public sale to the highest bidder at not less than the appraised value, states that

Each purchaser shall, at the time of making his purchase, make and subscribe an oath or affirmation that he is purchasing said lands for his own use and occupation; . . . . and before a patent shall issue for the untimbered lands the purchaser shall make satisfactory proof that he has resided upon the lands purchased at least one year, and has reduced at least twenty-five acres to cultivation.

The act of July 1, 1902 (32 Stat., 730), provided for the disposition of the remaining lands at private sale under the conditions stated in the first act at the appraised price.

It has been held uniformly that a married woman not the head of a family is not qualified to make entry under the homestead law, as she is not free to select or maintain a residence separate and apart from her husband. See Bush . Leonard (25 L. D., 129); Case . Kupferschmidt (30 L. D., 9). This rule has had legislative recognition in the remedial act of June 6, 1900 (31 Stat., 683), which allows a married woman to make homestead entry where settlement is made upon the land prior to marriage and continued.

The residence required by the acts which govern the making of entries for the Umatilla lands is of the same character as that required by the homestead law-that is, the entryman must make his actual home upon the land to the exclusion of a home elsewhere for the time specified. The entry of Guernsey, having been made by a person not qualified to make such entry, was therefore illegal and void.

It remains to be considered whether the remedial acts of March 3, 1905 (33 Stat., 1048), and June 29, 1906 (34 Stat., 611), are effective to confirm said entry. The aforesaid act of March 3, 1905, which was re-enacted June 29, 1906, provides:

That all persons who have heretofore purchased any of the lands on the Umatilla Indian Reservation and have made full and final payment thereof in conformity with the acts of Congress of March 3, 1885, and July 1. 1902, respecting the sale of such lands, shall be entitled to receive patent therefor upon submitting satisfactory proof to the Secretary of the Interior that the untimbered lands so purchased are not susceptible of cultivation or residence and are exclusively grazing lands incapable of any profitable use other than for grazing purposes.

As stated above, it was stated in the case of Daniel C. Bowman that where final payment had been made prior to the date of the said acts, respectively, and it was shown that the lands are not susceptible of cultivation or residence and are suitable only for grazing purposes, it is not necessary that the lands be actually grazed. It was not held, however, that an entry which was illegally initiated was confirmed or in any way affected by said remedial acts. It is not believed that it was the intention of Congress to confirm illegal entries, but that it was only the intention to relieve entrymen who had made entry and full and final payment thereof in conformity with the acts of Congress of March 3, 1885 and July 1, 1902,” from residence, cultivation, or use for grazing when the lands are shown to be not suitable for residence or cultivation.

The Department therefore holds that a married woman not the head of a family is not qualified to make entry of the Umatilla lands, and that the remedial acts above quoted do not confirm entries which were made by such persons.

The records of your office show that the entry of Guernsey has been canceled, and that Ingram has made entry for the lands. The petition is denied.

PRACTICE-CORROBORATING AFFIDAVITS TO AFFIDAVIT OF CON

TEST-RULE 3.

CHARLES F. WHITEHEAD.

Under Rule 3 of Practice it is within the discretion of local officers to require more than one corroborating affidavit to an affidavit of contest, and where they adopt a rule that two corroborating affidavits must in all cases be furnished, such exercise of discretion on their part will not be interfered with.

First Assistant Secretary Pierce to the Commissioner of the General (W. C. P.) Land Office, August 17, 1909. (J. F. T.)

Charles F. Whitehead has appealed to the Department from your decision of June 14, 1909, modifying the action of the register and receiver, which rejected his contest affidavit filed January 8, 1909, against homestead entry number 22194 (Clayton series), now serial 03737, made January 6, 1908, by Pearl E. Triever, for the SE. 4, Sec. 30, T. 3 N., R. 30 E., N. M. P. M., Tucumeari, New Mexico, land district.

The contest affidavit of Whitehead alleged that the said Pearl E. Triever had wholly abandoned the land, that she had changed her residence there from for more than six months since making the entry, and that the tract was not settled upon and cultivated by her.

The register and receiver rejected the affidavit for the following

reasons:

We rejected said affidavit for the reason that only one witness was furnished in corroboration thereof.

We have adopted the rule to require two corroborating witnesses to each affidavit of contest. We deemed this necessary in order to protect the office from a large number of speculative and friendly contests, which we believed were being filed. This decision has been arrived at from the fact that quite a number of the contestants dismiss their cases when they find that they are going to have to prosecute them or have them dismissed.

Your decision affirmed this holding of the register and receiver, but permitted the contestant to file an additional corroborative affidavit within ten days from notice. The appeal is prosecuted by the agent for the contestant, who states that he is now in Oklahoma and that it will be impossible for him to go to New Mexico in sufficient time to obtain the required corroboration.

In your letter to the register and receiver deciding this case, you say:

In your letter of transmittal you state:

"We have adopted the rule to require two corroborating witnesses to each affidavit of contest. We deemed this necessary in order to protect the office from a large number of speculative contests which we believed were being filed."

In my letter "H" of June 1, 1909, in the case of Williams v. Comstock, the question here presented was incidentally raised; but in its action this office was chiefly influenced by the clear insufficiency of the reason assigned by you for holding Williams' affidavit of contest speculative. Upon mature reflection the rule referred to in your letter, above quoted, is believed to be a reasonable one. Under Rule of Practice 3 the affidavit of contest, which is not jurisdictional but for your information only, must be corroborated by one or more persons, and in the absence of a clear showing that the requirement of two witnesses is an abuse of your discretion in the premises, this office must decline to interfere with your praiseworthy efforts to prevent the bringing of speculative contests.

It would be better, where affidavits are filed having but one corroborative witness, to give the contestant a reasonable time in which to secure the additional affidavit, rather than to reject it outright. You will therefore, advise Whitehead that, unless within ten days from the receipt of a copy of this decision he files in your office an additional corroborative affidavit to his affidavit of contest, or appeals herefrom within the time allowed by law, said contest will be dismissed without further notice to him. Your decision is modified accordingly, but the decision of this office in the case of Williams r. Comstock is adhered to.

The only question presented to the Department upon this appeal is the advisability and propriety of requiring two corroborating witnesses upon contest affidavits in the local office at Tucumcari, New Mexico, under the conditions described as above quoted in that district at the present time. The requirement of Rule 3 of the Rules of Practice is that:

Where an entry has been allowed and remains of record, the affidavit of the contestant must be accompanied by the affidavits of one or more witnesses in support of the allegations made.

It is therefore clear that such rule leaves discretion somewhere as to whether more than one corroborating witness shall be required,