§ 168.7 Mineral reservation in patent; conditions to be noted on mineral applications.

(a) There will be incorporated in patents issued on homestead entries under this act the following:

Excepting and reserving, however, to the United States all the coal and other minerals in the lands so entered and patented, and to it, or persons authorized by it, the right to prospect for, mine, and remove all the coal and other minerals from the same upon compliance with the conditions, and subject to the provisions and limitations, of the act of December 29, 1916 (39 Stat. 862).

(b) Mineral applications for the reserved deposits disposable under the act must bear on the face of the same, before being signed by the declarant or applicant and presented to the manager, the following notation:

Patents shall contain appropriate notations declaring same subject to the provisions of the act of December 29, 1916 (39 Stat. 862), with reference to disposition, occupancy, and use of the land as permitted to an entryman under said act.

CROSS REFERENCES: For applications and entries, see Parts 101 to 108 of this chapter. For enlarged homesteads, see Part 167 of this chapter. For land classifications, see Part 296 of this chapter. For national forest homesteads, see Part 170 of this chapter. For original, additional, second and adjoining farm homesteads, authorized by the general provisions of the homestead laws, see Part 166 of this chapter. For stock-raising homesteads, see Part 168 of this chapter.

§ 169.1 Lands subject to Kinkaid entry.1

It is directed by the act of April 28, 1904 (33 Stat. 547; 43 U. S. C. 24) commonly known as the Kinkaid Act, that in that portion of the State of Nebraska lying west and north of the line described therein, upon and after June 28, 1904, except for such lands as might be thereafter and prior to said date excluded under the proviso contained in the first section thereof, homestead entries may be made for and not to exceed 640 acres, the same to be in as nearly a compact form as possible, and must not in any event exceed 2 miles in extreme length. § 169.2 Additional entry contiguous to original; ownership and occupancy of original required.

Under the provisions of the second section of the act of April 28, 1904, as amended by section 7 of the act of May 29, 1908 (35 Stat. 466; 43 U.S.C. 224), a person who within the described territory has made entry prior to May 29, 1908, under the homestead laws of the United States, and who owns and occupies the lands theretofore entered by him, and is not otherwise disqualified, may make an additional entry of a quantity of land contiguous to his said homestead entry, which, added to the area of the original entry, shall make an aggregate area not to exceed 640 acres; and he will not be required to reside upon the additional land so entered, but residence continued and improvements made upon the original homestead entry subsequent

1 While the Kinkaid Homestead Act authorizes original homestead entries for not exceeding 640 acres, and additional entries for an area sufficient with the area of the originals to make up 640 acres, the maximum area of land withdrawn by E. O. 6964, Feb. 5, 1935 which may be entered under said act and section 7 of the Taylor Grazing Act of June 28, 1934 (48 Stat. 1269), as amended by the act of June 26, 1936 (49 Stat. 1976; 43 U. S. C. 315f) is 320 acres. See Part 296 of this chapter.

to the making of the additional entry will be accepted as equivalent to actual residence and improvements on the land covered by the additional entry. But residence either upon the original homestead or the additional land entered must be continued for the period of 3 years from the date of the additional entry, except that entrymen may claim and receive credit on that period for the length of their military service, not exceeding 2 years.

CROSS REFERENCE: For public land rights of soldiers and sailors, see Part 181 of this chapter.

§ 169.3

Proof on original and additional entries required within statutory period.

A person who has a homestead entry upon which final proof has not been submitted, and who makes additional entry under the provisions of section 2 of the act of April 28, 1904 (33 Stat. 548; 43 U.S.C. 224), will be required to submit his final proof on the original entry within the statutory period therefor, and final proof upon the additional entry must also be submitted within the statutory period from date of that entry. § 169.4

Additional entry must be contiguous to original and compact in form.

Such additional entry must be for contiguous lands, and the tracts embraced therein must be in as compact a form as possible; and the extreme length of the combined entries must not in any event exceed 2 miles. § 169.5

Rule for determining compactness of form.

In accepting entries under the act of April 28, 1904, compliance with the requirements thereof as to compactness of form should be determined by the relative location of the vacant and unappropriated lands, rather than by the quality and desirability of the desired tracts.

§ 169.6 Additional entry contiguous or incontiguous to original; ownership and occupancy of original not required.

By the first proviso of section 3 of the act of April 28, 1904 (33 Stat. 548; 43 U.S.C. 224), any person who made a homestead entry either within the Kinkaid territory or elsewhere prior to his

application for entry under this act, if no other disqualification exists, will be allowed to make an additional entry for a quantity of land which, added to the area of the land embraced in the former entry, shall not exceed 640 acres, but residence upon and cultivation of the additional land will be required to be made and proved as in ordinary homestead entries. But the application of one who has an existing entry and seeks to make an additional entry under said proviso can not be allowed unless he has either abandoned his former entry or has so perfected his right thereto as to be under no further obligation to reside thereon; and his qualifying status in these and other respects should be clearly set forth in his application.

§ 169.7 Second entry.

Under the act of April 28, 1904, no bar is interposed to the making of second homesteads for the full allowable area by parties entitled thereto under existing laws, and applications therefor will be considered under the instructions of the respective laws under which they are made.

§ 169.8

Improvements required.

Upon final proof, which may be made after 3 years and within 5 years from date of entry, the entryman must prove affirmatively that he has placed upon the lands entered permanent improvements of the value of not less than $1.25 per acre for each acre, and such proof must also show residence upon and cultivation of the land for the 3-year period as in ordinary homestead entries, but credit for military service may be claimed and given.

§ 169.9 Form of final proof.

In the making of final proofs the homestead-proof form will be used, modified when necessary in case of additional entries made under the provisions of section 2 of the act of April 28, 1904 (33 Stat. 548; 43 U.S.C. 224).

§ 169.10 Payments required at the time of entry and proof; form of remit

tances.

(a) When a homesteader applies to make entry, he must pay a nonrefundable application service charge of $25. In addition, he must pay with his final proof, a nonrefundable service charge of $25. A successful contestant for the

lands, pursuant to the act of May 14, 1880 (21 Stat. 141; 43 U.S.C. 185), as amended, must pay, as a nonrefundable cancellation service charge, an additional $10. On all final proofs made before the manager, or before any other officer authorized to take proofs, the claimant must pay to the manager the costs of reducing the testimony to writing, as determined by the manager. No proof shall be accepted or approved until all charges have been paid.

(b) Remittances other than cash or currency are to be made payable to the Bureau of Land Management. Checks or drafts are accepted subject to collection and final payment without cost to the government.

[Circ. 2085, 27 F.R. 8546, Aug. 25, 1962] § 169.11 Commutation prohibited.

Entries under the act of April 28, 1904, are not subject to the commutation provisions of the homestead law.

176.19

Action on relinquishments. PUBLIC LANDS OCCUPIED BY INDIANS 176.20 Applications by other than Indian occupants to be suspended.

AUTHORITY: §§ 176.1 to 176.20 issued under R. S. 2478; 43 U. S. C. 1201.

SOURCE: §§ 176.1 to 176.20 appear at 19 F. R. 8983, Dec. 23, 1954; 26 F.R. 5006, June 6, 1961.

CROSS REFERENCES: For land classifications, see Part 296 of this chapter. For Bureau of Indian Affairs, Department of Interior, see Indians, 25 CFR Chapter I. For regulations of the Bureau of Indian Affairs concerning

leasing of Indian allotted and tribal lands for farming, grazing and business: See Indians, 25 CFR Parts 131, 151. For regulations of the Bureau of Indian Affairs relating to enrollment and reallotment to Indians, see Indians, 25 CFR Parts 101, 125. For regulations of the Bureau of Indian Affairs relating to heirs and wills, see Indians, 25 CFR Parts 15, 16. For regulations of the Bureau of Indian Affairs, relating to the sale of Indian lands, patents in fee, competency certificates, see Indians, 25 CFR Part 121.

INDIAN ALLOTMENTS ON THE PUBLIC
DOMAIN 1

1

§ 176.1 Statutory authority.

Section 4 of the General Allotment Act of February 8, 1887 (24 Stat. 389; 25 U.S.C. 334), as amended by the act of February 28, 1891 (26 Stat. 794), and section 17 of the act of June 25, 1910 (36 Stat. 859; 25 U.S.C. 336), provides that where any Indian entitled to allotment under existing laws shall make settlement upon any surveyed or unsurveyed lands of the United States not otherwise appropriated, he or she shall be entitled, upon application to the land office for the district in which the lands are located, to have the same allotted to him or her and to his or her children in manner as provided by law for allotments to Indians

1 The act of March 1, 1933 (47 Stat. 1418; 43 U. S. C. 190a) provides that no further allotments of lands to Indians on the public domain shall be made in San Juan County, Utah.

Public land withdrawn by Executive Orders 6910 and 6964 of November 26, 1934, and February 5, 1935, respectively, is not subject to settlement under section 4 of the General Allotment Act of February 8, 1887, as amended, until such settlement has been authorized by classification. See Part 296 of this chapter.

residing upon reservations, and that such allotments to Indians on the public domain shall not exceed 40 acres of irrigable land, or 80 acres of nonirrigable agricultural land or 160 acres of nonirrigable grazing land to any one Indian. § 176.2 Certificate that applicant is Indian and entitled to allotment.

Any person desiring to file application for an allotment of land on the public domain under this act must first obtain from the Commissioner of Indian Affairs a certificate showing that he or she is an Indian and entitled to such allotment, which certificate must be attached to the allotment application. Application for the certificate must be made on the proper form, and must contain information as to the applicant's identity, such as thumb print, age, sex, height, approximate weight, married or single, name of the Indian tribe in which membership is claimed, etc., sufficient to establish his or her identity with that of the applicant for allotment. Each certificate must bear a serial number, record thereof to be kept in the Indian Office. The required forms may be obtained as stated in § 176.5.

§ 176.3

Who may apply for allotment.

An applicant for allotment under the fourth section of the act of February 8, 1887, as amended, is required to show that he is a recognized member of an Indian tribe or is entitled to be so recognized. Such qualifications may be shown by the laws and usages of the tribe. The mere fact, however, that an Indian is a descendant of one whose name was at one time borne upon the rolls and who was recognized as a member of the tribe does not of itself make such Indian a member of the tribe. The possession of Indian blood, not accompanied by tribal affiliation or relationship, does not entitle a person to an allotment on the public domain. Tribal membership, though once existing and recognized, may be abandoned in respect to the benefits of the fourth section.

§ 176.4 Allotment applications.

even

(a) The applicant, upon receipt of the required certificate, will fill out the blank form of allotment application and present the same, properly executed to the manager of the land office for the district in which the land is situated. The statements attached to the applications

for certificate and allotment must be signed by the applicant.'

(b) In case an allotment application is presented without the required certificate, the manager will suspend the same for a period of 90 days from notice to enable the applicant to obtain and file such certificate, and that officer will advise the applicant and the Commissioner of Indian Affairs by duplicate notice that unless such certificate is furnished within that time the allotment application will be finally rejected; unless prior to the expiration of the 90-day period the Commissioner of Indian Affairs shall ask for additional time within which to determine the applicant's Indian status.

(c) The filing of an application for allotment on public lands does not secure to an Indian a vested right.

§ 176.5 Blank forms.

Blank forms for application may be had from the Bureau of Indian Affairs, and land office, or district forester's office. § 176.6 Rights of heirs of Indian settlers and applicants.

(a) Allotments are allowable only to living persons or those in being at the date of application. Where an Indian dies after settlement and filing of application, but prior to approval, the allotment will upon final approval be confirmed to the heirs of the deceased allottee.

(b) In disposing of pending applications in which the death of the applicant has been reported, the heirs of an applicant who was otherwise qualified at the date of application should be notified that they will be allowed 90 days from receipt of notice within which to submit proof that the applicant personally settled on the land applied for during his or her lifetime, and while the land was open to settlement, and upon failure to submit such proof within the time allowed the application will be finally rejected.

(c) When it is sufficiently shown that an applicant was at the time of death occupying in good faith the land settled on, patent will be issued to his or her heirs without further use or occupancy on the part of such heirs being shown.

18 U. S. C. 1001 makes it a crime for any person knowingly and willfully to make to any department or agency of the United States any false, fictitious or fraudulent statements or representations as to any matter within its jurisdiction.

§ 176.7 Certificate of allotment.

(a) When the manager accepts an application under the fourth section of the act of February 8, 1887, as amended, he will issue to the applicant a "certificate of allotment," on a prescribed form, showing the name in full of the applicant, post-office address, name of the tribe in which membership is claimed, serial number of the certificate issued by the Commissioner of Indian Affairs, and a description of the land applied for.

(b) Where the application under investigation is that of a single person over 21 years of age, or of the head of a family, report will also be made as to the character of the applicant's settlement and improvements. A similar report will be made on applications filed in behalf of minor children as to the character of the settlement and improvements made by the parent, or the person standing in loco parentis, on his or her own allotment under the fourth section.

§ 176.8

Facts as to settlement which must be shown in application; issuance of trust patent.

(a) The nature, character, and extent of the settlement, as well as the manner in which performed, must be fully set forth in the allotment applica tion. In examining the acts of settlement and determining the intention and good faith of an Indian applicant, due and reasonable consideration should be given to the habits, customs, and nomadic instincts of the race, as well as to the character of the land taken in allotment.

(b) While the act contains no specific requirements as to what shall constitute settlement, it is evident that the Indian must definitely assert a claim to the land based upon the reasonable use or occupation thereof consistent with his mode of life and the character of the land and climate.

(c) To enable an Indian allottee to demonstrate his good faith and intention, the issuance of trust patent will be suspended for a period of 2 years from date of settlement; but in those cases where that period has already elapsed at the time of adjudicating the allotment application, and when the evidence, either by the record or upon further investigation in the field, shows the allottee's good faith and intention in the matter of his settlement, trust patents will issue in regular course. Trust pat

ents in the suspended class, when issued, will run from the date of suspension.

(d) In the matter of fourth-section applications filed prior to the regulations in this part, where, by the record or upon further investigation in the field, it appears that such settlement has not been made as is contemplated by the regulations, such applications will not be immediately rejected, but the applicant will be informed that 2 years will be allowed within which to perfect his settlement and to furnish proof thereof, whereupon his application will be adjudicated as in other cases.

§ 176.9 Character of land and area subject to allotment; minerals may be reserved.

(a) The law provides that allotments may include not to exceed 40 acres of irrigable land, 80 acres of nonirrigable agricultural land, or 160 acres of nonirrigable grazing land.

(b) Irrigable lands are those susceptible of successful irrigation at a reasonable cost from any known source of water supply; nonirrigable agricultural lands are those upon which agricultural crops can be profitably raised without irrigation; grazing lands are those which can not be profitably devoted to any agricultural use other than grazing.

(c) Where an Indian makes settlement in good faith upon lands not reserved therefrom, an allotment therefor can not be denied on the ground that the lands are too poor in quality. Also, where settlement was made in good faith, the presence of valuable timber does not warrant the rejection of the allotment.

(d) An allotment may be allowed for coal and oil and gas lands, with reservation of the mineral contents to the United States.

§ 176.10 Segregative effect of application.

(a) An allotment application under the fourth section of the act of February 8, 1887, as amended, filed prior to September 23, 1913, does not, in the absence of a certificate from the Indian Office showing that the applicant is an Indian entitled to allotment, segregate the land, and subsequent applications for the same land may be received and suspended to await final action on the allotment application.

(b) Where an allotment application under the fourth section, filed subsequent to September 23, 1913, is not ac