As early as December 23, 1851 (1 Lester, 549), this Department held that both of said acts were present grants, taking effect from the date of their passage, and that the act of 1849 applies to the State of Louisiana alone, providing a particular method of selection, while the act of 1850 applies to Arkansas and the other States, and made it the duty of the Secretary of the Interior to make out lists and plats of the granted lands at the expense of the United States.

On January 14, 1856, my predecessor, Secretary McClelland, held that the act of 1849 is not merged in the act of 1850, but that "each is to be executed according to its special tenor and provisions, the latter being merely cumulative and embracing land which was excepted from the former." (1 Lester, 554.)

It has been uniformly held by this Department and by the courts that said acts granted to the States referred to therein all of the land of the particular character des cribed, to which the United States had title and not reserved at the date of said acts. 1 Lester, Nos. 578-595; 2 L. D., 652; 3 L. D., 174; 4 L. D., 415; 9 Opin., 254; Railroad Company v. Fremont County, 9 Wall., 89; French v. Fyan, 3 Otto, 169.

In the case of the swamp land claim of the State of Oregon (7 C. L. O., 53), my predecessor, Secretary Schurz, on June 4, 1880, rendered a well considered decision construing the act of 1850, and re-affirming the former decisions declaring that said act was a present grant, vesting an immediate interest in the State; that the Secretary of the Interior is charged with the duty of making out the list and plats of the lands granted and he may adopt such method and employ the means for the performance of that duty that seems best in his judgment for the interests of the State and the government; that the State's selection has no binding effect upon the government, and the Secretary is not bound to list every tract claimed by the State. It was also held in said decis ion that while the States have been permitted to elect that they will adopt the field notes as the basis of their claim, there is no statutory requirement compelling them to do so, and if the Secretary fails to perform the plain duty required by said act, the title of the State is not affected thereby, citing Railroad Company v. Smith (9 Wall., 95).

It is quite clear that the field notes abo ve indicated do not describe the land as of the character granted by said acts and if, as counsel alleges in his appeal, your office decision was erroneous in stating that the State applied to have the field notes made the basis for adjustment, and such request was acceded to, then the State would not be bound to accept the field notes as the basis of adjustment. Counsel for the State, however, in his letter addressed to your office, upon which said decision was rendered, asks that your office rule that where the field notes describe the character of the land as above, they are swamp or overflowed within the meaning of the grant; that the claim of the State to the lands in question shall be allowed on the basis of the field notes, and in case of a refusal of that request that a field examination

be resorted to, to determine "whether the lands described as above were swamp or overflowed within the meaning of the grant at its date." In the argument of counsel filed in this Department it is stated that "Nearly all the lands in said State were surveyed prior to March 2, 1849, and in perfecting a plan by which swamp selections could be made under the provisions of the said act the field notes made by the United States deputy surveyors were agreed upon as the basis as being a substantial compliance with the law, and have ever since been so recognized, and until very recently held as conclusive as to the character of the land." This statement does not appear to be in harmony with the rules issued under said act of 1849 (supra), which expressly provided that "where lands have been represented by the field notes as overflowed or swamp lands, but which are now believed not to be of that character, they should be now examined in reference to those points before deciding whether or not they shall enure to the State under the act." And in your office regulations, dated April 18, 1882, (Public Domain, 699), it is stated that "In Louisiana the selections under the grant of March 2, 1819, forming the bulk of the selections in said State, are made in accordance with the terms of said act by deputy surveyors under the direction of the United States surveyor-general at the expense of the State. Lands claimed under the act of September 28, 1850, are selected by agents of the State, and proof of the character of the land is furnished."

If it be true that there has been no agreement between the State of Louisiana and the United States to adjust said grants upon the basis of the field notes, then, unquestionably, the State has a right to submit proof tending to show that the land claimed is of the character granted but if the agreement has been made to make the field notes the basis of the adjustment, then those notes must clearly show that the land is of the character granted to the State under said acts (1 Lester, 553– 603)..

It is to be observed that most of the surveys of Louisiana were made prior to the passage of said act of 1849, and while the deputy surveyors were required to describe in their field no tes the character of the land, the kind of timber, and all the swamps therein, yet they were not required to make the surveys with special reference to the swamp land acts. The instructions to the surveyors-general of public lands, published February 22, 1855, being a revision of the manual prepared in 1851, and referring to said act of 1850, advised the deputy surveyors that, "In order clearly to define the quantity and locality of such lands, the field notes of surveys, in addition to the other objects of topography, required to be noted, are to indicate the points at which you enter all lands which are evidently subject to such grant and to show the dis tinctive character of the laud so noted, whether it is a swamp or marsh, or otherwise subject to inundation to an extent that without artificial means would render it 'unfit for cultivation.' The depth of inundation

is to be stated as determined from indications on the trees where tim. ber exists; and its frequency is to be set forth as accurately as may be, either from your own knowledge of the general character of the stream which overflows, or from reliable information to be obtained from others."

The general rule is that public officers are presumed to do their duty as the law requires. (Lawson on Presumptive Evidence, p. 53, and numerous cases cited therein.) The field notes of survey, made subsequently to the passage of said acts, must be presumed, in the absence of evidence to the contrary, to properly designate the character of the lands described with reference to said grants. But no such presumption attaches to the field notes of survey made prior to the passage of said acts. This presumption is not absolutely conclusive. The correctness of the surveys may be impeached for fraud or mistake, even when there has been an election by the State to accept the field notes of survey as the basis of the adjustment. This was expressly ruled by this Department in the case of Lachance v. The State of Minnesota (4 L. D., 479). If the correctness of the field notes and surveys made subsequent to the passage of said acts is denied, the burden of proof is upon the party making such denial, and on the contrary, the burden of proof is upon the State to show that the lands embraced in surveys made prior to said acts were of the character granted at the date of said acts.

In the case of the State of Oregon (5 L. D., 31), it was held that the scheme of adjustment lies within the discretion of the Secretary of the Interior, and he may vary the same, if he deems best, where the status of the land remains undetermined, and that "it is immaterial what means are employed, the essential object being the ascertainment of the character of the land."

I am not unmindful of the fact that the interests of the government and of the State require that its claim shall be speedily adjusted. Nearly forty years have passed since the passage of the first named act, and under said grant many millions of acres were selected by the States, including a large amount of land that was not of the character granted. While it is doubtless true, as stated by counsel in his letter to your office, "that many lands which have been patented as 'swamp' that are not so in fact, were included in the list confirmed by Congress to the States by the act indicated" (1857), yet, if it be shown satisfactorily that any tracts have not been listed, which are of the character granted, it is clearly the duty of the Secretary of the Interior to cause such tracts to be listed and the lists approved without delay. But in ascer taining whether lands claimed by the States pass under the grant, if there is doubt, the decision must be against the grantee. United States v. Gratiot (14 Peters, 526); Irvine v. Marshall (20 Howard, 558); The Dubuque & Pacific R. R. Co. v. Litchfield (23 Howard, 66).

Since there appears to be a misunderstanding between the counsel for the State and your office relative to his request and your action

thereon, and the record failing to show any written agreement on the part of the State to accept the field notes as the basis of adjustment, I have to direct that you will advise said counsel that the State can elect whether the field notes of survey shall be made the basis of the final adjustment of said grants, and in case such election is made you will proceed to list any tracts that appear by the field notes to be clearly of the character granted, unless there is reason to believe that the field notes and survey are false and fraudulent. Where the field notes of survey have been made since the passage of the act of 1849 and with reference thereto, they will be held to entitle the State prima facie to the lands returned as swamp and overflowed, without the additional words "made unfit thereby for cultivation;" but where made before the passage of that act, all the descriptive words in the grant, or words clearly of a like import, must appear; and where they do not so appear, the State must show by other satisfactory evidence that the lands claimed are of the class contemplated by the grant. If the State does not elect to take by the field notes of survey, then the State should be allowed to furnish satisfactory proof that the lands claimed were swamp and overflowed and rendered thereby unfit for cultivation at the date of the grant. The State should be required to designate specifically the act under which she claims, and should she elect to furnish additional testimony, showing the character of the particular tracts named, your office will duly consider the same and transmit to this Department for approval lists of such lands as the evidence. shows the State to be entitled to under said acts.

The decision of your office is modified accordingly, and the papers in the case are herewith returned.

INDIAN ALLOTMENTS-ACT OF FEBRUARY 8, 1887.

INSTRUCTIONS.

Indians that have heretofore received an allotment of a less quantity of land than provided in said act should receive thereunder an additional allotment sufficient to make the entire amount equal to that named in said act.

Allotments may be made by the regular agents in charge of the respective reservations, or. in the absence of such agents, by special agents appointed for that purpose.

The provisions of said act are to be carried into execution under such rules and regulations as may have been, or may be, authorized and prescribed by the President. All patents hereafter issued to Indians ombraced within the provisions of said act should be in the form prescribed in the act.

Acting Secretary Muldrow to the Commissioner of Indian Affairs, March 29, 1887.

Referring to your letter of the 25th ultimo requesting a construction of certain sections of the Act of February 8, 1887, providing "for the allotment of lands in severalty to Indians on the various reserva

tions," etc., I transmit herewith an opinion of 5th instant by the Assistant Attorney General for this Department, for your information and guidance upon the matters of inquiry so presented by you.

Assistant Attorney General Montgomery to Acting Secretary Muldrow, March 5, 1887.

Agreeably to your request, I have examined the communication of the Hon. Commissioner of Indian Affairs, addressed to you and bearing date February 25th ultimo, calling for a construction of certain sections of an act entitled "An act to provide for the allotment in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the Territories over the Indians, and for other purposes." Approved February 8, 1887. And in answer to your request for an expression of my opinion on the several questions presented in said communication, I beg leave to submit the following: Section 1 of said act provides:

That in all cases where any tribe or band of Indians has been, or shall hereafter be, located upon any reservation created for their use, either by treaty stipulation or by virtue of an act of Congress or executive order setting apart the same for their use, the President of the United States be, and he hereby is, authorized, whenever in his opinion any reservation or any part thereof of such Indians is advantageous for agricultural and grazing purposes, to cause said reservation, or any part thereof, to be surveyed, or resurveyed if necessary, and to allot the lands in said reservation in severalty to any Indian located thereon in quantities as follows: To each head of a family, one quarter of a section; to each single person over eighteen years of age, one-eighth of a section; to each orphan child under eighteen years of age, one-eighth of a section; and to each other single person under eighteen years now living, or who may be born prior to the date of the order of the Presi dent directing an allotment of the lands embraced in any reservation, one sixteenth of a section: Provided, That in case there is not sufficient land in any of said reservations to allot lands to each individual of the classes above named in quantities as above provided, the lands embraced in such reservation or reservations shall be allotted to each individual of each of said classes pro rata in accordance with the provisions of this act: And provided further, That where the treaty or act of Congress setting apart such reservation provides for the allotment of lands in severalty in quantities in excess of those herein provided, the President, in making allotments upon such reservation, shall allot the lands to each individual Indian belonging thereon in quantity as specified in such treaty or act: And provided further, That when the lands allotted are only valuable for grazing purposes, an additional allotment of such grazing lands, in quantities as above provided, shall be made to each individual.

As will be observed, while this section specifically provides for protecting the vested rights of all Indians holding lands under previous legislative or treaty provisions, in excess of the quantity herein designated, it makes no specific mention of another class of cases, where under act of Congress or treaty stipulation certain Indians already hold