ever, to the full right of the various tribes of Indians to the lands they occupied, until that right should be extinguished by the United States, with their consent. The territory then occupied by the Crows extended over a vast range of country, from the northern boundary of New Mexico to the Missouri River in northern Montana. It had no fixed boundaries, and was not recognized strictly as a reservation, but simply as the territory of the Crows. This was the condition of their territory when the grant to the Northern Pacific road was made; and at that time no treaty had been made with said Indians guaranteeing to them a positive reservation for their exclusive use and occupation.

In 1868, four years after the grant to this road, a treaty was entered into between the United States and the Crow tribe of Indians, by which a tract of land bounded on the east by the 107th degree of longitude, on the south by the territory of Wyoming, and north and west by the Yellowstone river, was set apart for the absolute and undisturbed use and occupation of said Indians, and by said treaty the Crows relinguished all title, claims or rights to any portion of the territory of the United States, except what was embraced within the defined limits of such reservation.

This treaty further provided that, under certain conditions therein named, individual members of said tribe may within said reservation select lands for agricultural purposes which shall be certified to them; and that, when their lands shall be surveyed, Congress shall provide for protecting the rights of such settlers in their improvements, and may fix the character of the title held by each. It was further provided that no cession by the tribe shall be understood or construed in such manner as to deprive, without his consent, any individual member of the tribe of his right to any tract of land selected by him as before provided.

By this treaty the Indian title was extinguished to all lands occupied by the Crows and claimed by them as their territory (except the reservation named); and by the same instrument an absolute reservation of a tract of land, designated by fixed boundaries, was formally set apart for their use and occupation, and the full and free use and enjoyment of the same was guaranteed to them by the government.

I am therefore of the opinion that Section 2 of the act of 1864, provid ing that the United States shall extinguish, as rapidly as may be consistent with public policy and the welfare of the Indians, the Indian title to all lands falling under the operation of said act, contemplates such lands as were then embraced in what was generally known as the territory of the Indians, and not such parts of said territory as were embraced in defined and technical reservations. Such reservations are as free from the operation of the grant as a reservation for any other purpose.

The land in controversy is within that portion of the reservation created by the treaty of May 7, 1868 (15 Stat., 649) which on June 12, 1880,

the Crow Indians agreed to sell to the United States in consideration of certain conditions therein named, which was accepted by the United States April 11, 1882.

The road claims that from and after the date of the agreement of June 12, 1880, the Indian title to that land was extinguished, and that from that date it became part of the public domain, and was not in a state of reservation at the date of the filing of their map of definite location June 27, 1881, because the act of April 11, 1882, accepting, ratifying and confirming said agreement, related back to the original agreement of June 12, 1880.

If this petition be true then, under the ruling of the Department in the case of Rees v. Central Pacific R. R. Co. (5 L. D., 62), that the right of the road is determined by the condition of the land at the time of the filing of map of definite location, there is no question that the road would be entitled to the land under its grant.

But I do not think that this theory is sustained by any principle of law.

The agreement of a delegation of the tribe, made May 7, 1880, which was afterward modified and concurred in by the majority of the tribe, and submitted June 12, 1880, was simply an offer on the part of the Crows to sell to the United States a certain part of their reservation, for a consideration therein named. The agreement was not in any manner acted upon until the act of April 11, 1882, when Congress accepted, ratified and confirmed it.

I am unable to see in what respect this agreement differs from any other, by which it may dispense with an essential element pertaining to all contracts-to wit, that mutual consent is requisite to the creation of a contract, which becomes binding only when a proposition is made on one side and accepted on the other.

Counsel for the road cite the case of Davis v. Concordia Parish (9 Howard, 280,) to the effect that "all treaties, as well those for cession of territory as for other purposes, are binding upon the contracting parties, unless otherwise provided in them, from the day of signing, and the ratification relates back to the day of signing; and also the case Landes v. Brandt (10 Howard, 378,) to the effect that "When there are divers acts concurrent to make a conveyance, estate or other thing, the original act shall be preferred, and to this all other acts shall have relation."

These cases, as well as all other cases in which this rule applies, refer to such treaties, cessions or agreements as have been entered into between the parties to the contract or their representatives, complete in all the essential elements necessary to the validity of a compact depending solely upon the ratification of the acts of such representatives, or the performance of some condition or stipulation therein required.

There was no original or initial act on the part of the government prior to the act of April 11, 1882, to which that act of acceptance was concurrent, and hence the doctrine of relation does not apply.

1 therefore hold that the land was not a part of the public domain until the act of April 11, 1882, and that it was in a state of reservation at the date of the filing of the map of definite location, July 27, 1881, and hence was excepted from the operation of the grant.

NOTICE AS EFFECTED BY SETTLEMENT; PATENT.

L. R. HALL.

The notice given by settlement and improvement extends only to the quarter section as defined by the public surveys.

Suit to vacate a patent on behalf of an alleged prior settler not advised, it appearing that he has an adequate remedy of his own if his allegations of priority are true. Acting Secretary Muldrow to Commissioner Sparks, September 9, 1886.

On October 14, 1880, Lewellyn R. Hall filed declaratory statement for the E. of SE. of Sec. 26, and E. of NE. † of Sec. 35, T. 120, R. "63," Watertown, Dakota, alleging settlement September 1, 1880.

On November 15, 1880, William Pascoe made additional homestead entry for the NE. of NE. of Sec. 35, T. 120, R. "64," final certificate issuing the same day. At the same time Dudley Hix made additional homestead entry for the SE. of NE. † of Sec. 35, T. 120, R. “64," and final certificate issued the same day. On December 7, 1880, the local officers forwarded the corroborated affidavit of Hall, setting forth that he had settled on the E. of SE. of Sec. 26, and E. of NE. † of Sec. 35, T. 120, R. "64," and that through mistake he had filed as above indicated. On February 3, 1881, he was allowed by your office to amend his filing so as to describe the tracts covered by his alleged actual settlement.

On July 20, 1881, the homestead entries were patented.

On March 9, 1882, Hall offered final proof, which was rejected by the local officers, because of conflict with the patented homestead entries. On appeal your office on July 10, 1882, held that Hall could not enter while the patents were outstanding, and advised that the patentees be requested to surrender said patents. The request was made, and C. H. Prior, the representative of said Pascoe and Hix, reported that he had sold the quarter section of land, part of which was included in said filing of Hall, and that the whole tract in contest had been sold in good faith. By letter of March 27, 1886, Hall, by attorney, represents that he has continued to live on said land in peaceable possession since filing, that he has the whole tract in cultivation, and that his possession is now threatened by the holder of the patents.

Your office, on the present application of Hall, recommends that proceedings be initiated looking to the cancellation of said patents, or that , your office be "instructed whether Hall should be permitted, notwithstanding the outstanding patents to renew his proof and make entry of

the land, in order to give him a standing in court as against the claimants under the patents." Said letter further reports that the proof submitted by Hall has been lost.

I am unable to concur in said recommendation.

The four quarter-quarter sections now claimed by Hall are in a line running north and south, two of them being in section 26 and two in section 35. It does not appear in which section settlement was made, nor on which subdivisions the improvements were located. In the case of Quinby v. Conlan (104 U. S., 420), it is ruled that "a settlement upon a portion of a quarter section, and making the improvements required by law, will sustain a pre-emptive claim to the whole quarter section as against subsequent settlers." Following this rule, I am of opinion that the settlement and improvements of Hall, if confined to section 26, would not be such notice as the entrymen in section 35 would be bound to regard. The notice given by settlement and improvement applies only to the quarter section as defined by the public surveys. If therefore the rights of the entrymen attached before notice of the claim of Hall was given, he is without remedy. If, however, Hall had given notice by settlement or improvement, or in any competent manner, of his claim to the tracts in section 35 prior to the making of said entries, then he has an adequate remedy in his own hands. The case then presented will be in all material respects similar to the case of Samson v. Smiley (13 Wall., 91--more fully reported in 1 Nebraska, 57).

Smiley made settlement, filed his declaratory statement, and resided on the land. Afterwards Samson settled on the tract and filed declaratoly statement therefor. A contest arose and the land was awarded to Samson by the Secretary under an erroneous construction of the preemption law. Patent issued to Samson, and Smiley filed his bill to recover the legal title from him and his grantees. A decree was rendered in favor of Smiley, according to the prayer of his bill.

I am therefore of opinion that it is unnecessary to institute suit in the name of the United States in favor of applicant, in any aspect of his case, and said recommendations are accordingly rejected.

PRACTICE-AFFIDAVIT FOR CONTINUANCE.

COUGHLIN v. DONAN.

Under the instructions of December 27, 1882, an affidavit for continuance is sufficient though executed before the day set for hearing and before some officer other than the register or receiver.

Acting Secretary Muldrow to Commissioner Sparks, September 11, 1886.

T.

December 20, 1883, Peter Donan made homestead entry for the SE. of SW., and Lot 1, Sec. 17, Lot 5, Sec. 18, and Lot 1, Sec. 20, 153 N., R. 63 W., Grand Forks, Dakota Territory.

February 27, 1885, Thomas Coughlin initiated contest against said entry, charging abandonment, and hearing was fixed for April 30th following. On that day claimant, with his attorney and witnesses, appeared; contestant did not appear personally, but was represented by attorney, who filed an affidavit sworn to by contestant on the preceding day before a notary public. In said affidavit contestant asked for a continuance of the case to a day to be fixed by the local officers, and for cause alleged that the attendance of certain material witnesses could not be procured. Claimant opposed the continuance, and after argument the local office overruled the motion and dismissed the contest, because the affidavit filed did not conform to Rule of Practice No. 20, in that it was not made before the register and receiver, and in that it was not sufficiently specific. Contestant thereupon appealed to your office, which on August 1, 1885, reversed the action of the local officers, and remanded the case to them for further proceedings under the affidavit of contest.

Upon consideration of a motion for review and reconsideration of said decision, filed on behalf of Donan, your office on November 12th following adhered to the said ruling of August 1, 1885, and stated that said decision "was rendered in accordance with instructions from this office under date of December 27, 1882, 1 L. D., 134 and 135." Donan thereupon filed an appeal. On January 13, 1886, your office held the appeal would not lie, as no decision on the merits of the case had yet been rendered, the ordering of a hearing being merely an interlocutory Hence the present application for certiorari under Rule 83 is

filed.

Upon examination of the affidavit for continuance I find the allegations therein to be sufficient. The said instructions of December 27, 1882, are in answer to an inquiry from the local officers at Montgomery, Alabama: "5. Can the affidavit required in Rule 20, Rules of Practice, be made prior to the day of trial, and before an officer other than the register and receiver?" The Commissioner says: "5. The most natural time to make the affidavit would seem to be on the day set for trial; but there could be no valid objection to the party making it at any time prior thereto. The proper time, however, to consider the affidavit is when the case comes up for trial. The rule presumes the affidavit to be made before the register and receiver. If the party is represented by counsel, an affidavit by said representative made before the register and receiver is satisfactory, or it may be made before any other officer qualified to administer oaths and using an official seal." Under these instructions said affidavit for continuance was authorized, and the case was improperly dismissed. The case will now proceed to hearing as directed in your said office letter. The papers transmitted by your letter of March 2, 1886, are herewith returned.