Congress thereupon, in view of the condition of affairs disclosed by said response to said resolution provided by the act of July 4, 1884 (23 Stat., 89), that said lands "shall not be patented or disposed of in any manner until further legislation by Congress." (Robert Lowe, 5 L. D., 541). By this act, Congress did not undertake to annul or set aside entries made on said lands or devest rights (if any) acquired. therein, but only directed, that the status quo be maintained "until further legislation." The power of Congress to do this and the propriety of so doing under the circumstances, can not be successfully questioned. As said by Commissioner Price, in his letter of April 26, 1882,

That their (the Mille Lacs') position since the cession of their reservation in 1863, has been an anomalous one is manifest.. . . The feeble tenure by which they have held their lands has been a great obstacle to their advancement. Their present reservation, being rich in pine lands, is the envy of the lumber men, and as long as the Indians occupy their present anomalous position, the pressure for their removal will continue, and it is to be feared the evil influences that have heretofore been brought to bear upon them to effect a forfeiture of their rights will also continue, until they are reduced to a state of utter depravity and helplessness.

The attention of the Department and of Congress has been from time to time called to their condition with a view to securing their removal or, in case of their remaining, such legislation as shall secure to them a proper share of the reservation in severalty . . . . They have ever manifested the strongest objection to removal .. Possibly, a liberal reward would induce them to yield, and the effort should be made.

By the first section of the act of January 14, 1889, the President is directed within sixty days after the passage of the act, to appoint three commissioners, "whose duty it shall be, as soon as practicable after their appointment, to negotiate with all the different bands or tribes of Chippewa Indians in the State of Minnesota, for the complete cession and relinquishment in writing of all their title and interest in and to all the reservations of said Indians in the State of Minnesota, except, etc." It is then provided in said section one, that "such cession and relinquishment shall be deemed sufficient, if assented to in writing by two-thirds of the male adults over eighteen years of age" of each band occupying a reservation, and, " for the purpose of ascertaining whether the proper number of Indians assent," that a census be taken, and "the acceptance and approval of such cession and relinquishment by the President of the United States shall be deemed full and ample proof of the assent of the Indians, and shall operate a complete extinguishment of the Indian title." The census having been taken and the cession and relinquishment "obtained, approved and ratified, as specified in section one, provision is then made in section three for the removal of the Indians. Section four provides for the survey, after cession, of the lands ceded, and the examination and classification thereof as "pine" and "agricultural" lands. By section five, it is directed, that the "pine" lands be disposed of by sale at public auction, or by private cash sale where not bid off at such auction, and by section six, that

the "agricultural" lands "be sold to actual settlers only under the provisions of the homestead law," with the proviso

That nothing in this act shall be held to authorize the sale or other disposal under its provision of any tract upon which there is a subsisting, valid pre-emption or homestead entry, but any such entry shall be proceeded with under the regulations and decisions in force at the date of its allowance, and if found regular and valid, patents shall issue thereon.

(The remainder of the act provides for the appropriation of the proceeds of the disposal of the lands under its provisions for the benefit of the Indians.)

It is contended, that under this proviso entries on said lands may be at once proceeded with. This contention, in my opinion, can not be sustained. Taken by itself, the language of the proviso might authorize such an interpretation, but it must be construed as a part of and in connection with the entire act and in the light of the treaty obligations of the government, which are fully recognized by the provisions of section one of the act. By providing in said section one for "the complete cession and relinquishment of all their title and interest," Congress recognizes that the cession by the treaty of 1863 was not a "complete" cession, but that the Mille Lacs still retained an interest, the right of occupancy during good behavior, by virtue of the proviso to that effect to section twelve of said treaty. While the condition in said treaty proviso as to continued good conduct, is not limited to the period of the war, yet it is probable, from the fact said treaty was made during the war and two years before its close, that Congress had primarily in view in said proviso the maintenance of the attitude of friendly neutrality to the United States during the continuance of the war, which these Indians had prior to said treaty voluntarily assumed in opposition to the remainder of their tribe. Congress by the elaborate provisions in section one of the act of 1889 for the cession and relinquishment by these Indians of their remaining interest, shows clearly that in enacting said law it was mindful of the obligation incurred in time of need and that the government will not, when the exigency has passed, repudiate an obligation entered into under such circumstances and on such a consideration.

I am, therefore, of the opinion, that the cession by these Indians, as provided for under section one of said act, of their remaining interest in these lands, namely, the right of possession or occupancy during good behavior toward the whites, is a condition precedent to the right to proceed, under the proviso to section six of said act, with entries made on said lands, and that no steps can be taken towards perfecting said entries, or otherwise disposing of said lands, until said cession has been obtained, "and accepted and approved by the President." (It is not necessary herein to pass upon the question of the validity or present status of said entries as affected by the right of occupancy of the Indians.)

By letter of Hon. T. J.-Morgan, Commissioner of Indian Affairs, dated July 8, 1889, papers regarding the proposed construction by certain lumber-men of a canal through sections 17, 20 and 29, T. 42 N., R. 26 W., which is a part of the "Mille Lac" reservation, "the object being to raise the water in Rum river for logging purposes," have been referred to this Department, with request that they be considered in connection with this case. It appears from these papers, that said proposed canal would lower the water in Mille Lac lake about four feet and greatly injure its beauty, and lessen, if not destroy, its utility, and is bitterly opposed by both the Indians (Mille Lacs) and the white settlers near it. There seems to be no pretence of authority for digging this canal. It is, therefore, directed that the proper Indian agent be instructed to at once give this matter his personal attention, and take the necessary steps to protect the rights of the Indians and all parties concerned.

HOMESTEAD-SECOND ENTRY.

CLEMENT SPRACKLEN.

The right to make a second homestead entry may be accorded when the first, through no fault of the entry-man was made for a tract covered by a prior bona fide preemption claim.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 9, 1890.

This is an appeal by Clement Spracklen from your office decision of December 4, 1888, refusing his application to amend his homestead entry, made December 28, 1887, for the S. of the NW. 4, the N. of the SW. 1, Sec. 25, T. 29 N., R. 50 W., Chadron, Nebraska.

By said application, dated April 24, 1888, sworn to and corroborated, Spracklen asks that his entry be so amended as to include, in lieu of the tracts named, the N. of the NW. 4, Sec. 33, the SW. 4 of the SE. and the SE. of the SW. 4, Sec. 28, in the same town and range. The said application sets out that he (Spracklen) went to the land described in his said entry in December, 1887, and found a house thereon, but was informed that one Frank Pinkerton, who had built said house, had allowed the three months following his settlement to elapse without filing for said land; that he then went to the local office, and finding that the plat book showed the same to be vacant, made the said entry; that when he went to improve said land "he for the first time. found that the plat book was erroneous, as the said Pinkerton showed his receiver's receipt, dated June 25, 1887;" that upon again going to the local office he found that "the other records showed Pinkerton's filing to be in range 49, except one book shows the filing to be in range 50, the same as the receiver's receipt;" that Pinkerton has complied

with the law "in the matter of settlement and residence;" that he (Spracklen) has neither abandoned, relinquished, nor agreed to relinquish in the interest of another his said entry; that he would not have made the same, if the claim of Pinkerton had been of record, and that he applies in good faith to amend.

The register and receiver certify by endorsement "that the applicant and his witness are credible persons," and that "the statements as to the plats and tract-book are correct," although Pinkerton's orig inal filing can not be found in the local office. They recommend that, if said filing "covers the land described, this application should be granted."

It appears by the decision appealed from that the records of your of fice show that Frank E. Pinkerton filed pre-emption declaratory statement June 25, 1887, alleging settlement the day before, upon the tracts described in Spracklen's entry, and that the land which he seeks to enter in lieu thereof is vacant.

The case at bar is in all material respects parallel to that of James A. Harrison (8 L. D., 98). In that case the Department held that the right to make a second homestead entry should be accorded when the first, through no fault of the entryman, was made for a tract covered by a prior bona fide pre-emption claim.

The application of Spracklen is in effect an application to make second homestead entry. In the absence of a valid adverse claim, and under the authority cited, the same should be allowed.

Spracklen's existing entry will therefore be canceled without prejudice, and he will be permitted, within a reasonable time after notice. hereof, to enter, in lieu of the land covered by said entry, the tracts described in his said application.

The decision appealed from is reversed.

TIMBER CULTURE CONTEST-CULTIVATION-PLANTING.

COSTELLO v. JANSEN.

No fixed rule can be laid down as to what shall constitute satisfactory cultivation. The character of the soil, the nature of the season, the age and kind of trees planted, as well as various other conditions are entitled to due consideration in each case.

Though subsequent transplanting may be necessary in order to secure the requisite growth and number of trees, such fact does not warrant a finding of either bad faith or improper planting.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 9, 1890.

I have considered the case of John Costello v. Anders Jansen upon appeal of the former from your office decision of June 30, 1888, dismissing his contest against the timber culture entry of the latter for SE.Sec. 3 T. 102 N., R. 68 W., Mitchell, Dakota land district.

The entry in controversy was made December 30, 1881, and on January 6, 1886, affidavit of contest was filed.

Hearing was concluded April 3, 1886, and the local officers decided in favor of contestant. Your office on appeal reversed their decision. The affidavit of contest alleged "that during the third year after entry claimant failed to plant five acres on said tract in a workmanlike manner, and that during the fourth year after entry he failed to cultivate the first five acres planted to seeds and also failed to plant to trees seeds or cuttings the second five acres broken, and up to date hereof."

The evidence is somewhat conflicting, but upon the first charge, viz: that claimant failed to plant the first five acres in a workman-like manner, the evidence is conclusive that it was planted to box elder seeds in hills about four feet apart each way and that the ground was at the time in a good condition, and that 2500 or more of these seeds grew and were at the time of the contest of various sizes from two to twenty-six inches high, so that it may be said the evidence fails to sustain this charge.

The next charge is that during the fourth year after entry he failed to cultivate this first five acres. In regard to this, contestant and several witnesses state that upon an examination of the ground, made just before contest, it did not show any indication of cultivation, and several of them say they passed over or by the land one or more times during the summer of 1885, but noticed no cultivation. On the other hand claimant's agent and each of his witnesses testify to the fact of its cultivation, the agent fixing June 16th and 17th as the days upon which he cultivated it with a two horse cultivator, and it further appears that the trees were in a thrifty condition and, considering the unusually dry season, had made a good growth. No certain rule can be fixed for the kind of cultivation which must be governed largely by the character of the soil, the kind of season, the age and kind of trees and various other contingencies, but it is obvious that if following an unusually dry season, trees planted as seeds the fall before, are found to have been cultivated at all and have made a good growth, are all alive, and that there is a stand of from two to four thousand on five acres, the cultivation has not been so defective as to warrant the cancellation of the entry.

The testimony shows that the agent for claimant had employed another to plow the second five acres which had been sowed to flax, but he failed to do so until after the ground froze up, but the ground having thawed out in the latter part of December the said agent went there with several men and plowed six strips across said five acres, each about five feet wide, and in a furrow marked out in the center of each strip he drilled in, quite thickly, box elder seeds. These strips were separated from each other by spaces of flax stubble from twelve to fifteen feet wide.

The second five acres cannot of course be allowed to remain in the condition shown by the evidence, for final proof showing timber grown