ary 4, 1895, in which to establish his actual personal residence on the land, and such residence, if established within that time, would relate back to the date of his entry. He would thus become a resident, in contemplation of law, from the date of his entry, and would be

the next settler in the order of time on the same tract of land who has given notice and otherwise complied with the conditions of the law,

and would have a better right than Stewart, who took no steps to protect his settlement rights until after the expiration of three months from the date of his settlement and after the intervention of Provence's claim.

As before shown, the proviso to Sec. 2297, as amended, reads:

That where there may be climatic reasons the Commissioner of the General Land Office may, in his discretion, allow the settler twelve months from the date of filing in which to commence his residence on said land under such rules and regulations as he may prescribe.

Here the entryman, who has not yet commenced his residence upon the land, is spoken of as "the settler." The statute authorizes the Commissioner to "allow the settler twelve months from the date of filing in which to commence his residence." The person who has filed, but has not commenced his residence upon the land, is by legislative interpretation called a "settler." Being a "settler" and having filed upon the land, he is a "settler. who has given such notice" within the meaning of Sec. 2265.

The trial in this case was held before the expiration of six months from the date of Provence's entry, so that, although he had not at that time established his actual, personal residence on the land, he was not in default, as the law gave him six months in which to establish an actual, personal residence which would relate back to the date of his entry. As the record is presented to the Department, Provence has the superior right to the tract in dispute.

Your office decision is affirmed.

PRACTICE-MOTION

FOR REVIEW-ATTORNEY.

EDWIN F. FROST ET AL. (ON REVIEW.)

A motion for review filed by an alleged agent and attorney of a State will not be entertained where such attorney has not complied with the regulations in regard to the admission of attorneys-at-law to practice before the Department, and has shown no authority to represent the State either as attorney or agent; and where it must be presumed that the State would not give such authority to any person, on account of its having executed a quit-claim deed of the land involved to the United States.

Secretary Bliss to the Commissioner of the General Land Office, June 15, (W. V. D.)

1897.

(J. L.)

This case involves lots 3 and 4 of section 35, and lots 3 and 7 of section 36, T. 31 S., R. 39 E., Gainesville land district, Florida.

One B. F. Hampton, describing himself as agent and attorney for the State of Florida, has filed in the name of the State, a motion for a review of departmental decisions of December 26, 1896, and February 6, 1897, 24 L. D., 228, in this case.

Said motion cannot be entertained. I am informed by your letter of transmittal that Mr. Hampton has never complied with the regulations in regard to the admission of attorneys-at-law to practice before the Department of the Interior. He has shown no authority to represent the State of Florida either as agent or as attorney. Moreover, the decision sought to be reviewed shows, that the Commissioner of the General Land Office informed the governor of Florida that the lots of land in question had been inadvertently and through mistake certified to the State, requested him to transmit a deed relinquishing and reconveying said lots to the United States, and offered to permit the State to select an equal quantity of land elsewhere in lieu thereof. Accord ingly, the governor transmitted to the General Land Office a quit-claim deed to the United States for the four lots of land involved, bearing date August 17, 1895, and executed by the Board of Education of the State of Florida. Therefore, it is presumed, that the proper authorities of the State have not authorized and will not authorize any person to file a motion for review, or to attempt to take any step inconsistant with the deed aforesaid.

Said motion for review is hereby denied; and your office will proceed to comply with the directions contained in the departmental letter of February 6, 1897, above referred to.

CALDWELL . GOLD BAR MINING CO, ET AL.

Motion for review of departmental decision of March 15, 1897, 24 L. D., 258, denied by Secretary Bliss, June 15, 1897.

TOWNSITE-ACT OF INCORPORATION-ADDITIONAL ENTRY.

CITY OF CHAMBERLAIN v. KING ET AL.

An act of a territorial legislature establishing the corporate limits of a city, so as to include therein lands embraced at such time within an Indian reservation, is inoperative as to the lands so reserved, and on the removal of the reservation no bar to the allowance of a homestead entry.

The right to make an additional townsite entry only exists where the applicant has, prior thereto, made a townsite entry of public land, and is limited then to land contiguous to that embraced within the original entry.

Secretary Bliss to the Commissioner of the General Land Office, June 15, (W. V. D.) (C. J. W.)

1897.

On April 15, 1895, Henry J. King made application to make homestead entry for lots 3 and 4 and SE. SW. 1, Sec. 10, and lots 1 and 9,

Sec. 15, T. 104, N., R. 71 W., 5th P. M., Chamberlain land district, South Dakota. On the same day J. W. Orcutt, as mayor of Chamberlain, made application to make townsite entry of said land, for the use and benefit of the occupants thereof, and on the same day Eliza Reynolds applied to make homestead entry for lots 1 and 9 of Sec. 15.

Henry J. King's application was first presented, and with it the lawful fees were tendered. Orcutt and Eliza Reynolds were present, and each protested against the allowance of the entry. The fees were rejected, and the application received and filed. Orcutt, as mayor, then presented his application to make townsite entry (and tendered the fees), which was disposed of in the same way; and next in order Eliza Reynolds presented her application to make homestead entry for lots 1 and 9 of Sec. 15, T. 104, R. 71 W., with a tender of the fees, which application was similarly treated.

The various applications set out the basis of their respective claims. A hearing was ordered, that the parties might have opportunity to offer proof of their claims, and on the day set, the several parties appeared in person and by councel, and the case was duly continued, and the hearing finally commenced on June 20, 1895, with all parties present. Each party offered evidence from time to time, until the hearing closed,-two continuances occurring before the close, on July 19, 1895. On September 24, 1895, the local officers rendered their decision, in which they reject the application of Orcutt, Mayor, and hold that Eliza Reynolds is entitled to make homestead entry, for the land applied for by her, and that Henry J. King is entitled to make homestead entry, for the lands applied for by him, except lots 1 and 9 of Sec. 15.

From this decision appeal was taken to your office, and on March 24, 1896, your office modified the decision by limiting the right of entry of Eliza Reynolds to lot 9, and awarding to King the right to make entry for all the land applied for, except lot 9. The application of the mayor was dismissed. The modification of the decision of the local officers as between the homestead applicants was in accord with a stipulation and agreement between them, filed December 16, 1895. Orcutt filed a motion to strike out this agreement and certain affidavits from the record. No specific action seems to have been taken on this motion. April 20, 1896, a motion for review of your office decision of March 24, 1896, was filed, and on July 6, 1896, the same was overruled and the decision adhered to. Counsel for the townsite claimants filed an appeal from this decision on July 18, 1896 and brief in support of the same. On motion of counsel for homestead applicants, the case was made special, and a hearing had, at which counsel for both sides appeared and were heard orally and by brief. The appeal undertakes to specify forty grounds of error, but it is not deemed necessary to set them out here, or to treat them in detail in this opinion, since all that is vital and material to the case, in the contentions of appellant, can be stated

in more concise form. The land involved is a part of the Crow Creek and Winnebago Indian reservation, and for which the Chicago, St. Paul and Milwaukee Railway Company treated with said Indians, with the approval of the Secretary of the Interior, and occupied it under agreement made with them; but it does not appear that the agreement was ratified by Congress.

By section 16 of the act of March 2, 1889 (25 Stat., 888), the land in question was provisionally included in the grant to the Chicago, St. Paul and Milwaukee railway company, and in the event of the forfeiture of the company's rights, the land covered by the grant was to revert to the United States and become a part of the public domain, and be open to homestead entry under the provisions of said act, upon notice of its restoration. The forfeiture of the company's rights was declared by proclamation of the President on December 5, 1894 (19 L. D., 431). The land thus forfeited and restored was duly opened to entry under the homestead laws, on April 15, 1895. Such rights as the railroad company had were acquired while the land was in reservation, and the effect of its agreement with the Indians was to keep it in reservation, except for its own use, so long as held by virtue thereof, and it may therefore be said that it was never subject to entry, until April 15, 1895, and all applications to enter before that time go for naught (Smith v. Malone, 18 L. D., 482). The act of March 2, 1889 (Section 23) makes provision for preference rights to persons who attempted settlement upon lands declared to be open to settlement under proclamation of February 27, 1885, between said date and April 17, 1885, when it was revoked. This provision has no application as between persons claiming to have made or attempted settlement during this period, but is applicable as between such settler or settlers, and applicants who neither made nor attempted to make settlement under said proclamation.

The status of the land as well as of the claimants is to be considered as it existed on the 15th of April, 1896, when in fact and law the land was opened to settlement. As to this particular land, the 16th section of the act of March 2, 1889, provides, if it remains the property of the railroad, that no part of it shall directly or indirectly be used for townsite purposes, and in the event of the forfeiture of the rights of the railroad, that it shall be open to homestead entry under the provisions of this act. It may be questioned whether it is subject to other than homestead entry, but be that as it may, the claims of the townsite settlers will be further considered.

Their contention is, that the land in controversy is within the corporate limits of the city of Chamberlain, and is therefore not subject to homestead entry, but is subject to entry for townsite purposes. It is shown that the legislature of the Territory of Dakota, amended the act incorporating the city of Chamberlain, so as to include the land in controversy, which amending act was approved, March 7, 1885, a short time before the various attempts at settlement were made.

It is apparent that the alleged fact that the land is within the corporate limits of the city, depends upon the validity of the act mentioned, and its validity depends upon the power and authority of the territorial legislature to exercise control over it. It is to be observed from the date of the act, that it was passed during the interval between the proclamation opening the Crow Creek and Winnebago Indian reservation to settlement, February 27, 1885, and the subsequent proclamation, revoking that order on the ground that it was violative of the treaty stipulations with said Indians, which later proclamation bears date, April 17, 1885. Presumably the legislature assumed legislative control of this territory, on the theory that it was no longer an Indian reservation, but by order and proclamation of the President, had become and was a part of the public domain, and lawfully within its. jurisdiction. Under this view it was not asserting a right to exercise jurisdiction over territory within an Indian reservation, but simply over territory which had once been a reservation, but was then a part of the public domain. Under any other view it would appear to have ignored section 1839 R. S., which contains an express prohibition of territorial interference with the rights of Indians or their property where they have rights unextinguished by treaty between them and the United States. The proclamation of the 17th of April, 1885 (23 Stat., 844), revoking the order of February 27, 1885, declares the ground of its revocation to be that it is in contravention of the treaty obligations of the United States, with the Sioux tribe of Indians, and that the lands intended to be embraced were existing Indian reservations. The treaty to which reference is made was concluded April 28, 1868, and proclaimed February 24, 1869 (15 Stat., 685). The land in dispute is embraced in a reservation created and set apart by article 2 of said treaty, and declared to be for the absolute and undisturbed use and occupation of the Indians, and to be free from settlement, use or occupancy of any other persons than said Indians.

The act organizing the Territory of Dakota, March 2, 1861 (12 Stat., 239), which fixes the general boundaries and authority of the Territory, excepts therefrom the rights of person and property of Indians, so long as they remain unextinguished by treaty.

Section 1851 U. S. Rev. Stat., provides:

The legislative power of every territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States.

The Sioux treaty was a law of the United States, and a territorial statute attempting to extend a city or town government over a reservation established by that treaty was inconsistent therewith and beyond the legislative power of the Territory. The attempt to include the land in controversy within the corporate limits of the city of Chamberlain was consequently abortive. Its inclusion in an Indian reservation was the obstacle in the way. It has been considered, whether or not, upon the removal of that obstacle, ipso facto, the act of the legislature 10671-VOL 24-34