There is then nothing in the law authorizing the entryman to make a purchase under said section and act, or in the regulations of the Land Department, which prohibits him from making such contract of future sale, as is here shown to have been made. The party, having made the entry, could "entitle" himself absolutely to the tract covered by it, by paying the price therefor. And the fact that he made a previous agreement to sell can in no way, so far as I can see, in the absence of a prohibition to that effect, impair this right of purchase. No law was violated and no fraud practiced, but a clear legal right was exercised, both as to the purchase and sale.

I therefore decline to concur in the recommendation to the Attorney General.

PRE-EMPTION; OSAGE TRUST LANDS.

TODD KNEPPLE.

By filing Osage declaratory statement and perfecting entry thereunder in accordance with the act of May 27, 10, the right of pre-emption to such, or any other lands, is thereby exhausted.

Acting Secretary Muldrow to Commissioner Sparks, March 31, 1887.

This is an appeal from your decision of February 19th last, affirming the action of the local officers in rejecting the application of Todd Knepple to file for the NE. of Sec. 17, T. 24 S., R. 46 W., Lamar, Colorado, upon the ground that Knepple had exhausted his right of preemption by filing and perfecting entry on Osage Lands in Kansas under the act of May 28, 1880 (21 Stat., 143). It is admitted that applicant filed declaratory statement for a quarter-section of the Osage Indian trust and diminished reserve land at Garden City, Kansas, claiming said tract as a pre-emption right under the provision of the act of May 28, 1880, perfected said entry, and that certificate therefor was issued to him February 19, 1886.

January 24, 1887, Knepple offered to file declaratory statement for the NE. of Sec. 17, T. 24 S., R. 46 W., Lamar, Colorado, claiming the same as a pre-emption right under the act of September 4, 1841. The register and receiver rejected said application, for the reason above stated, from which rejection applicant appealed, upon the ground (1) That he has never made such pre emption filing as is contemplated by section 2261 of the Revised Statutes, and (2) That Osage Indian trust and diminished reserve lands are not subject to the general pre-emption laws, and hence a filing and entry upon such lands is no bar to a subsequent entry of public land under the act of September 4, 1841.

This appeal brings directly in issue the question, whether a preemptor exhausts his pre-emption right by a filing on Osage trust and diminished reserve lands, and that is the sole issue in the case.

It is claimed by appellant that the ruling of the Department in the case of Woodbury, administrator, v. United States (5 L. D., 303), is decisive of this question. In that case the sole question decided was that the statutory oath required of a pre-emptor is not applicable to an entry under the act of May 28, 1880, the only condition prerequisite to such entries being that the entryman shall be an actual settler, with the qualifications of a pre-emptor.

It does not follow, however, that an entry of Osage Indian lands is not the exercise of a pre-emption right, although the conditions of entry may not be governed by the general pre emption law in all respects. It was distinctly held that an entry of Osage lands could be made only by a person having the qualification of a pre-emptor. The exercise of a right due alone to a pre-emptor is necessarily the exercise of a pre-emption right.

But appellant urges in support of this appeal that the oath required of appellant in the present application is "that he has never had the benefit of any right of pre emption under section 2259," and that he did not exercise his "pre-emption right" in making his entry of the Osage trust lands, or claim said lands by virtue of the provision of section 2259, but that in his Osage declaratory statement "he declared his intention to claim said tract as a pre-emption right under the provisions of the act of May 28, 1880, for the disposal of the Osage Indian lands." This statement of appellant seems to be a conclusive argument against the further exercise of the right of pre-emption.

What is the right of pre-emption under section 2259 of the Revised Statutes? It is a right based upon settlement, inhabitancy, and culti vation, to purchase by legal subdivisions any number of acres not to exceed one hundred and sixty, upon subscribing to the statutory oath required in section 2262 of the Revised Statutes.

The art of May 28, 1880, provides that the Osage Indian trust and diminished reserve lands shall be "subject to disposal to actual settlers only having the qualifications of pre-emptors."

A pre-emption right in its general sense is defined to be "the right or privilege of purchasing before others." As applied to the act of May 28, 1880, it is the exclusive right of purchasing in the first instance, because these lands can not be offered for sale in any other manner until the pre-emption right has been exercised by some one and default in payment be made therefor.

It being shown that this is a pre-emption right, the question arises can this right be again exercised in the purchase of either Osage lands or other lands under the general pre-emption laws?

It can not be questioned that the spirit and policy of the general land law is that no person shall have more than one preference right of pur chase of any part of the public domain, and that such right is exhausted when exercised in the purchase of any legal subdivision allowed by law under the general pre-emption law, or under the act of May 28, 1880,

providing for the disposition of the Osage Indian trust and diminished reserve lands.

Under the act of July 15, 1870 (16 Stat., 362) it was not contemplated that settlement upon these lands should be governed in all respects by the general pre-emption laws (Foster v. Brost, 11 Kan., 350) but the act of May 9, 1872, declared that these lands should be subject to disposal to actual settlers only in accordance with the general principles of the pre emption laws, under the direction of the Commissioner of the General Land Office, provided, however, "that the restriction of the pre-emption laws relating to previous enjoyment of the pre-emption right, to removal from one's own land in the same State, or the ownership of over three hundred and twenty acres, shall not apply to any settler actually residing on his or her claim at the date of the passage of this act." (17 Stat., 90).

It would seem from this that, while Congress did not intend by the act of July 15, 1870, to apply to these entries the general principles of the pre-emption law, it did not dispense with the restriction of the preemption law as to the exercise of more than one pre-emption right, otherwise there would have been no necessity for the provision in the act of May 9, 1872, as to the settlers actually residing on their claims at the date of the passage of that act.

This provision applying only to settlers, who were actually residing on their claims on the 9th day of May, 1872, it follows that all entries based upon settlement made after said date were governed in all respects by the general principles of the pre-emption law, until the act of May 28, 1880, which provided that actual settlers under existing laws (any failure to comply with such existing laws notwithstanding) shall be allowed sixty days in which to make proof of and payment for their claims in the manner therein provided, and section two of said act provides that the remaining unappropriated lands shall be disposed of to actual settlers only having the qualification of pre-emptors. To deter mine the qualification of a pre-emptor, it is necessary to look to the general pre-emption law. Under this law no one is a qualified pre-emptor who has once exercised the right of pre emption.

Appellant was only authorized to make entry of Csage trust and diminished reserve lands by virtue of his right as a pre-emptor, and having exercised that right or privilege in the purchase of Osage lands, it was exhausted as a pre-emption right to all other lands.

Your decision is therefore affirmed.

TOWNSHIP PLAT-FINAL PROOF.

ELISHA B. CRAVENS.

The right to submit final proof recognized, pending suspension of the township plat; it appearing that the survey is substantially correct, that the lines of the section involved will not be changed, and that the settler may not be able to make final proof in the event of further delay.

Acting Secretary Muldrow to Commissioner Sparks, March 31, 1887.

Elisha B. Cravens, by his attorney, has filed an application for cer tiorari under rules 83 and 84 of practice.

In this application it is alleged that Cravens settled upon lots 2, 3, 4, and 5, in Sec. 9, T. 6, R. 89, Glenwood Springs, Colorado, on the 12th of May, 1884, the plat of said township having been filed prior to that date, and has since resided there continuously, cultivating and improving said tracts, his improvements thereon being valued at about $13,000; that on the 28th of August, 1885, he offered final proof, and tendered payment for the land described under the pre-emption law, which proof and payment were refused, because the township plat had been suspended, for the reason that the survey of the township was erroneous. It is further alleged that since September, 1885, applicant has often requested you to remove said order of suspension and allow him to submit his final proof, and, if necessary, to have an examination of said surveys made in the field, in order to ascertain from what cause the apparent error therein arose; that some time in June, 1886, an order was made by you for the surveyor-general of Colorado to have said survey examined, and in pursuance thereof said surveyor-general selected a skillful examiner and surveyor, who went upon the ground and thoroughly examined said township and other townships complained of, embraced in the order of suspension before mentioned; that when said examiner reported to your office you determined to adopt the survey of township 6, and held that it was to the interest of the government as well as the people that a fractional township should be thrown in somewhere to the east of said survey, and that the survey should be allowed to remain as it is; that said examiner's report was to the effect that the interior corners of the township were substantially correct in location, and that the error in the matter was not in said survey, but in the one to which this one was attached having been made at a point to the east in the mountains; that it was recommended to you by the surveying division of the department that the order of suspension be removed from township 6, except as to the southern and western tiers of sections, inasmuch as those lines had not been finally examined; that finally, by letter dated November 18, 1886, you declined to remove said order of suspension, either in whole or in part, until another examination of said survey could be made; and that by letter dated November 30, 1886, you declined to allow an appeal from said decision. It is further urged as a reason why said order of

suspension should be removed, so far as this claim is concerned, that the witnesses by whom claimant expects to establish his compliance with the law are of a migratory character, and are liable to leave that part of the country, and thus render it difficult, if not impossible, for him to make final proof on his said claim.

It being alleged that you have agreed to accept the survey of said township in the main as correct, and that in any event the lines of said section 9 would not be changed, and the further allegations before mentioned as to the possible difficulty claimant may have in making proof if the same be delayed any length of time, appear to establish a prima facie case for the relief prayed for.

Said application is therefore granted, and you will please certify the record of the case to this department, and in the mean time suspend further action thereon until further advised.

INDIAN LANDS-MILLE LAC RESERVATION.
ROBERT Lowe.

By the act of July 4, 1884, the lands acquired from the White Oak Point and Mille Lac bands of Chippewa Indians, by treaty of March 20, 1865, were withheld from disposal in accordance with the provisions of said treaty.

The words "on the White Earth reservation" in said act are repugnant to its other wise clearly expressed intent and meaning and must yield thereto in construction.

Acting Secretary Muldrow to Commissioner Sparks, April 4, 1887.

You refused to issue patent upon soldier's additional homestead entry, No. 2579, for the S. of SE. 1, Sec. 20, "T. 42 N., R. 25 W.," and the NE. of SW. 4, Sec. 18, "T. 42 N., R. 25 W., Taylor's Falls land district, Minnesota, upon the ground that Congress, by act of July 4, 1884, provided, "that the lands acquired from the White Oak Point and Mille Lac bands of Chippewa Indians, on the White Earth reservation, in Minnesota, by treaty proclaimed March 20, 1865, shall not be patented or disposed of in any manner until further legislation by Congress;" and that the land in question seems to be included within the meaning and intent of the clause above quoted."

Appellant claims that "T. 42 N., R. 25 W.," is not embraced in the White Earth reservation, and hence said act has no application to the land covered by this entry.

By treaty of February 22, 1855 (10 Stat., 1165), there was reserved and set apart a quantity of land for the permanent home of the Mississippi bands of the Chippewa Indians, the land so reserved being set apart in separate tracts and reservations, and known as Mille Lac, Rabbit Lake, Gull Lake, Pokagomin Lake, Sandy Lake, and Rice Lake, respectively.

The first reservation embraced the following fractional townships, viz: 42 N., R. 25 W.," 42 N., R. 26 W., 42 and 43 N., R. 27 W., and also the three islands in the southern part of Mille Lac.