Form 4-062a, as the case may require. Upon receipt of the proof, and payment having been made for the lands, the local officers will issue the proper final papers. They will also, in the event of the sale of the lands to other than the applicant for the offering (the latter being a bidder for the lands), refund to applicant the amount originally deposited by him to cover the cost of publication of notice. Should different tracts included in one notice be sold to several bidders other than the applicant, the cost of publication must be apportioned among them and collected for return to the applicant, as above indicated. If the applicant is the successful bidder for one or more of the tracts offered, the remaining tracts being disposed of to other bidders, the proportionate cost of publication only shall be collected from the successful bidders other than the applicant, for refund to the latter.

Very respectfully,

Approved:

FRANK PIERCE,

Acting Secretary.

FRED DENNETT,
Commissioner.

ISOLATED TRACTS-KINKAID ACTS-CITIZENSHIP-AMENDING CIRCULAR OF OCTOBER 28, 1908.

CIRCULAR.

REGISTERS AND RECEIVERS,

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., October 2, 1909.

United States Land Offices.

SIRS: Paragraphs 17 and 25 of the circular of October 28, 1908 (37 L. D., 225), are hereby amended to read as follows:

17. Applicants must show by their affidavits, corroborated by at least two witnesses, that the land contains no salines, coal, or other minerals; the amount, kind, and value of timber or stone thereon, if any; whether the land is occupied, and if so the nature of the occupancy; for what purpose the land is chiefly valuable; why it is desired that same be sold; that applicant desires to purchase the land for his own individual use and actual occupation and not for speculative purposes; that he has not heretofore purchased, under section 2455, Revised Statutes, or the amendments thereto, isolated tracts, the area of which when added to the area now applied for, will exceed approximately 480 acres, and that he is a citizen of the United States, or has declared his intention to become such. If applicant has heretofore purchased lands under the provisions of the acts relating to isolated tracts, same must be described in the application by subdivision, section, township, and range.

25. At the time and place fixed for sale the register or receiver will read the notice of sale, offer each body of land included in the notice separately. and allow all qualified persons present an opportunity to bid. After all bids have been offered the local officers will declare the sale closed and announce the name of the highest bidder, who will be declared the purchaser and who

must immediately deposit the amount bid by him, and, if the highest bidder or bidders be other than the applicant for offering, an amount sufficient to cover the cost of publication of notice, with the receiver, and within ten days thereafter furnish evidence of citizenship, or of declaration of intention to become a citizen, nonmineral and nonsaline affidavit, Form 4-062, and purchaser's affidavit, Form 4-093. Upon receipt of the proof, and payment having been made for the lands, the local officers will issue the proper final papers. They will also, in the event of the sale of the lands to other than the applicant for the offering (the latter being a bidder for the lands), refund to applicant the amount originally deposited by him to cover the cost of publication of notice. Should different tracts included in one notice be sold to several bidders other than the applicant, the cost of publication must be apportioned among them and collected for return to the applicant, as above indicated. If the applicant is the successful bidder for one or more of the tracts offered, the remaining tracts being disposed of to other bidders, the proportionate cost of publication only shall be collected from the successful bidders other than the applicant, for refund to the latter.

CITIZENSHIP-MINOR CHILD-SECTION 2172, REVISED STATUTES.

THOMAS . HOLLEY.

One who at the date of the admission of South Dakota into the Union was an inhabitant and recognized as a member of that political community became by such admission a citizen of the United States; and his minor children at that time residing in the United States thereby, by virtue of the provisions of section 2172 of the Revised Statutes, also became citizens.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, October 5, 1909.

(C. J. G.)

An appeal has been filed by plaintiff in the case of Susan M. Thomas v. Siver Holley from the decision of your office of May 1, 1909, sustaining the action of the local officers in denying her application to make homestead entry for the SW. of Sec. 32, T. 9 N., R. 29 E., Pierre, South Dakota.

This land is located in the former Fort Bennett military reservation. The plat of survey of said land was filed in the local office May 12, 1908, survey in the field having been made in May, 1905. Siver Holley made homestead entry for the land May 13, 1908, alleging that he settled thereon more than two years prior to his entry, at which time he commenced his improvements, consisting of a house, shed, and fences, said improvements being worth $450, and that he 3098-VOL 38-09-17

had maintained continuous residence. His papers were accompanied by a copy of a declaration of intention to become a citizen of the United States. The original declaration, however, was later returned to the court.

May 27, 1908, Susan M. Thomas applied to enter the same land, alleging that she settled thereon May 20, 1907, built a house, and continued to reside there ever since, with the intention of making homestead entry as soon as the land should become subject to entry.

A hearing was had for the purpose of determining priority of right to the land, and upon the testimony submitted the local officers rendered decision recommending that the application of Thomas be rejected and that Holley's homestead entry remain intact. Your office affirmed said decision.

The testimony is found to fully sustain the conclusion that Holley was the prior settler and that Susan M. Thomas knew of such settlement at the time she erected her house and established residence. The facts as to this point are sufficiently set forth in the decision of your office.

The only other question to be determined is as to the qualification of Holley, in respect to his citizenship, to make entry. He was born in Norway in 1877 and came to the United States with his parents in 1878 or 1879, and to what is now South Dakota in 1884, where the father lived to the time of his death and where the son, the defendant, has lived ever since. The evidence shows that the father during his lifetime was a voter in Dakota Territory and the State of South Dakota and had taken out his first naturalization papers. It is proIvided in section 2172 of the Revised Statutes:

The children of persons who have been duly naturalized under any law of the United States being under the age of twenty-one years at the time of naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof.

An alien may become naturalized under the organic and enabling acts and the act admitting a State into the Union. Boyd v. Thayer (143 U. S., 135). At the date of the admission of South Dakota, the father of Siver Holley was an inhabitant thereof and was recogrized as a member of that political community. Based upon the case of Boyd. Thayer, it was held in the case of William J. Parker (36 L. D., 352):

One who at the date of the admission of North Dakota into the Union was an inhabitant and recognized as a member of that political community became by such admission a citizen of the United States.

Children born abroad of aliens who subsequently emigrated to this country with their families, and were naturalized during the minority of their children, are citizens of the United States. (10 Ops. Atty.

Gen., 329; and Campbell ». Gordon, 6 Cranch, 176.) It is immaterial in what lawful mode the naturalization of the parents is effected, the language of the statute being "the children of persons who have been duly naturalized under any law of the United States," etc. In the case of Crane. Reeder (25 Mich., 303) it was held that a treaty is just as much a "law of the United States," within the meaning of section 2172 of the Revised Statutes, as an act of Congress, and, hence, that a minor child of one who became a citizen under Article 2 of Jay's Treaty (8 Stat., 116), if residing in the United States at the time, thereby became a citizen. His father having been naturalized by the act of Congress admitting South Dakota into the Union, Siver Holley thereby became a citizen of the United States, he being a minor at the time of such naturalization.

The judgment of your office, for the reasons stated herein. is affirmed.

RAILROAD GRANT-DONATION CLAIM-SECTION 5, ACT OF MARCH 3,

1887.

ADA A. STANG.

An abandoned donation claim, though uncanceled of record at the date of the definite location of a railroad grant, does not except the land covered thereby from the operation of the grant; and until it is determined by the land department that the land is excepted from the grant, a purchaser thereof from the company is not entitled to the right of purchase accorded by section 5 of the act of March 3, 1887.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, October 7, 1909.

(S. W. W.)

This is the appeal of Ada A. Stang from your office decision of September 29, 1908, affirming the action of the local office rejecting her application to purchase, under the provisions of the fifth section of the act of March 3, 1887 (24 Stat., 556), lots 4, 5, and 6, Sec. 21, T. 26 S., R. 6 W., Roseburg, Oregon, land district.

It appears that the land involved is within the primary limits of the grant made to the Oregon and California Railroad Company by the act of July 25, 1866 (14 Stat., 239), opposite that portion of the road definitely located March 26, 1870; that said land was listed by the company September 21, 1871, per list No. 1, but was not patented, presumably on account of conflict with the donation notification, No. 371, filed November 24, 1855, by George Evans, which said donation claim was canceled by your office April 4, 1896.

The local office rejected the application because it had not been determined by the Department that the land was excepted from the company's grant, and an appeal was taken to your office, in which it was alleged that the applicant was a purchaser by mesne conveyance

from the railroad company and that the land was excepted from the operation of the company's grant by reason of the donation claim of Evans. It was further stated by the applicant that she had no contest with the railroad company regarding the matter and that it would be as satisfactory to her for the government to issue a patent to the company, which would protect her title.

It is stated in your office decision under consideration that under the previous rulings of the Department the existence of an uncanceled donation notification at the date of the definite location of the road, excepted the land covered thereby from the operation of the grant, but in view of the decision of the Supreme Court in the case of the Oregon and California Railroad Company . United States (190 U. S., 186), and in further view of a decision of the Circuit Court for the District of Oregon, wherein it was held that the existence of a donation notification of record did not prevent the operation of the grant to the company, your said decision held that the land in question was not excepted from the operation of the company's grant, and that therefore no right of purchase has accrued to the applicant under the act of March 3, 1887, supra.

In appealing to the Department the applicant contends that the existence of the donation claim on the records in the surveyor-general's office operated to except the land covered thereby from the grant to the company, and maintains that the burden is on the railroad company to prove that the donation claim had been abandoned. Appellant insists that she is entitled to protection by reason of her purchase from the railroad company, and that if the Department should conclude that she is not entitled to purchase because the land was not excepted from the grant to the company, in that event a patent should issue to the railroad company.

In the case of Oregon and California Railroad Company . United States, supra, the court said:

Even admitting that the donation notification was on file in the office of the surveyor-general, there was no proof required by section seven of the act to be filed within twelve months from the time of settlement, that the settlement and cultivation required by the act had been commenced; nor after the expiration of four years from such settlement was there any proof of continual residence or cultivation, required by the same section. The record which informed the company that the land had been settled by a donee also apprised it that the provision of the statute had not been complied with. We think that, considering the fact that fourteen years had elapsed since the original settlement, the railroad company would be authorized to infer that the donee had abandoned the land, as in fact appears to have been the case. Under the facts of this case we think the lands were not reserved within the meaning of the granting act.

It is true, as stated in your office decision under consideration, the land involved in that case was within the indemnity limits of the