of $1.25 per acre; that is, the claimant must show the existence of a habitable house on the land at the time of final commutation proof, that residence for the period of not less than 14 months was actual and substantially continuous, and cultivation of one-sixteenth of the area during the second year of the entry, and, if commutation proof is submitted after the second entry year, one-eighth of the area the third entry year and until the submission of final commutation proof. In such cases the homesteader is entitled to a 5 months' leave of absence in each year, but cannot have credit as residence for such period, since actual presence on the land for not less than 14 months is required. However, an additional entry under the act of April 28, 1904 (33 Stat. 527; 43 U. S. C. 213), or a national forest homestead under the act of June 11, 1906 (34 Stat. 233; 16 U. S. C. 506–509), is not subject to commutation.

The land included in a settlement claim may be surveyed without expense to the settler, provided he submits, within five years from the date of the filing of notice of settlement claim in the land office, an application to enter on Form 4-007 and acceptable final or commuted homestead proof as required by § 65.23. [Circ. 1971, 22 F. R. 1431, Mar. 7, 1957] § 65.21 Survey at expense of settler.

A settler who wishes to secure earlier action in the matter of survey may have a survey made at his own expense by a deputy surveyor appointed by the authorized officer of the Bureau of Land Management.

[Circ. 1971, 22 F. R. 1431, Mar. 7, 1957]

§ 65.22

Application to enter land included in special survey.

After a special survey has been made, in accordance with § 65.21, application to enter should be made as in the case of other settlements on surveyed lands. Circ. 1971, 22 F. R. 1431, Mar. 7, 1957] § 65.23 Submission of proof.

(a) Proof may be submitted without previous notice of intention by publication.

(b) Whenever the claimant is ready to submit proof, he may appear, with two witnesses having knowledge of the facts, before either the manager of the land

office for the district in which the land is situated or before any other officer authorized to administer oaths in homestead cases and submit proof of his residence, cultivation, and improvements on the land. The proof testimony must be filed in the proper land office.

[19 F.R. 8855, Dec. 23, 1954, as amended, Circ. 1971, 22 F.R. 1431, Mar. 7, 1957]

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

tances.

(a) When a homesteader applies to make entry he must pay an application nonrefundable 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. 143; 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. 8545, Aug. 25, 1962] § 65.25 Publication and posting.

(a) Where a special survey has been made, the notice of proof must give the survey number of the land, and other information required by § 60.3 of this chapter and it must be published once a week for nine consecutive weeks, in accordance with § 106.14 of this chapter, at the expense of the applicant, in a newspaper designated by the manager as being one of general circulation nearest the land. Moreover, during the period of publication the entryman must keep a copy of the plat, and of his notice of having made proof, posted in a conspicuous place on the land.

(b) Where the public system of surveys has been extended over the land, and the claimant has an entry allowed in conformity therewith, notice must be published once a week for 5 consecutive weeks in accordance with § 106.14 of this chapter. The manager must cause a

(a) In conformity with provision contained in section 10 of the act of May 14, 1898 (30 Stat. 413; 48 U.S.C. 359), during the period of posting and publication or within 30 days thereafter any person, corporation, or association, having or asserting any adverse interest in or claim to, the tract of land or any part thereof sought to be acquired, may file in the land office where the proof is pending, under oath, an adverse claim setting forth the nature and extent thereof, and such adverse claimant shall, within 60 days after the filing of such adverse claim, begin action to quiet title, in a court of competent jurisdiction in Alaska, and thereafter no patent shall issue for such claim until the final adjudication of the rights of the parties, and such patent shall then be issued in conformity with the final decree of the court.

(b) Where such adverse claim is filed, action on the proof will be suspended until final adjudication of the rights of the parties in the court or until it has been shown that the adverse claimant did not commence an action in the court within the time allowed.

(c) Any protest which may be filed which does not show that the protestant intends to commence an action to quiet title, as stated, and any contest which may be filed will be disposed of by the manager in accordance with Appeals and Contests, Part 221 of this chapter.

§ 65.27 Proof of publication and posting.

The proof of publication must consist of the statement of the publisher or foreman of the designated newspaper, or some other employee authorized to act for the publisher, that the notice (a copy of which must be attached to the statement) was published for the required period in the regular and entire issue of every number of the paper during the period of publication in the newspaper proper and not in a supplement. Proof of posting on the claim must consist of the statements of the applicant and one witness who of their own knowledge know that the plat of survey and proof notice were posted as required and remained so posted during the required period. The manager must certify to the

posting of the notice in a conspicuous place in his office during the period of publication.

HOMESTEADS SUBJECT TO MORTGAGE LOANS § 65.29 Mortgage loans on existing homestead entries; allowance on homestead applications for lands subject to mortgages held by the United States acting through the Secretary of Agriculture; occupancy of the land.

A homestead entryman who desires to secure a loan on an existing homestead entry, or a homestead applicant who wishes to make a homestead entry for lands in a canceled or relinquished homestead entry subject to a mortgage lien held by the United States acting through the Secretary of Agriculture under the act of October 19, 1949 (63 Stat. 883, 7 U.S.C., Supp. III secs. 1006a, 1006b), should proceed in accordance with § 166.86 of this chapter.

§ 65.30 Mortgage liens.

A mortgage lien held by the United States acting through the Secretary of Agriculture shall not extend to mineral deposits in the lands, which have been or may be reserved to the United States pursuant to law.

may be initiated by actual settlers on public lands which are known to contain workable coal, oil, or gas deposits or that may be valuable for the coal, oil, or gas contained therein, and which are not otherwise reserved or withdrawn; (2) such claims initiated in good faith may be perfected under the appropriate public land laws and, upon satisfactory proof of full compliance with these laws, the claimant shall be entitled to patent to the lands entered by him, which patent shall contain a reservation to the United States of all the coal, oil, or gas in the land patented, together with the right to prospect for, mine, and remove the same; and (3) should it be discovered at any prior to the issuance of a final certificate on any claim initiated for unreserved lands in Alaska that the lands are coal, oil, or gas in character, the patent issued on such entry shall contain the reservation referred to in subparagraph (2) of this paragraph.

(b) The act of May 17, 1906 (34 Stat. 197), as amended August 2, 1956 (70 Stat. 954; 48 U.S.C. 357), permits, subject to the provisions of the act of 1922, homestead allotments to Indians, Aleuts, and Eskimos of vacant, unappropriated, and unreserved lands in Alaska that may be valuable for coal, oil, or gas deposits and the act of August 17, 1961 (75 Stat. 384), permits the Secretary of the Interior to sell under the provisions of section 2455 of the Revised Statutes (43 U.S.C. 1171), as amended, lands in Alaska known to contain workable coal, oil, or gas deposits, or that may be valuable for the coal, oil, or gas contained therein, and which are otherwise subject to sale under said section 2455, as amended, upon the condition that the patent issued to the purchaser thereof shall contain the reservation required by section 2 of the act of 1922. (See Part 250 of this Title.)

(c) Section 2 of the act of 1922 provides (1) the coal, oil, and gas deposits reserved under the act shall be subject to disposal by the United States in accordance with the provisions of the laws applicable to coal, oil, or gas deposits, or coal, oil, or gas lands in Alaska, in force at the time of such disposal; (2) any person qualified to acquire coal, oil, or gas deposits, or the right to mine and remove the coal, or to drill for and remove the oil or gas under the laws of the United States shall have

the right at all times1 to enter upon the lands as provided by the act for the purpose of prospecting for coal, oil, or gas upon the approval, by the Secretary of the Interior, of a bond or undertaking to be filed with him as security for the payment of all damages to the crops and improvements on such lands by reason of such prospecting; (3) any person who has acquired from the United States the coal, oil, or gas deposits in any such land or the right to mine, drill for, or remove the same, may reenter and occupy so much of the surface thereof as may be required for all purposes reasonably incident to the mining and removal of the coal, oil, or gas therefrom, and mine and remove the coal or drill for and remove the oil or gas upon payment of the damages caused thereby to the owner thereof, or upon giving a good and sufficient bond or undertaking, in an action instituted in any competent court to ascertain and fix the said damages.

§ 66.2

Reservation of coal, oil, or gas to the United States; practice and procedure.

The act of 1922 extends to Alaska the principles of the acts of March 3, 1909 (35 Stat. 844; 30 U.S.C. 81), June 22, 1910 (36 Stat. 583; 30 U.S.C. 83-85), and July 17, 1914 (38 Stat. 509; 30 U.S.C. 121-123), which, among other things, govern agricultural entries on coal, oil, or gas lands in States other than Alaska. The general instructions under these acts relating to the reservation of coal, oil, or gas to the United States as set forth in Part 102 of this chapter will, therefore, be followed in matters of practice and procedure.

§ 66.3 Rights of prior mineral permittees or lessees.

If prior to the date of the initiation of a claim that is subject to the provisions of the act of 1922, the land was embraced in an oil and gas lease, or a coal permit or lease, or an application for or offer of such a lease or permit, the land will be subject to the right of such prior mineral permittee or lessee, or of such prior applicant for or offeror of a mineral permit or lease, to occupy and use so much of the surface of the lands as may be reasonably required for mineral leasing operations, without

1 After the issuance of, and pursuant to, a lease or permit therefor.

liability to the entryman, allottee, or patentee for crop and improvement damages resulting from such mineral activity.

§ 66.4 Obligations of subsequent mineral permittees or lessees; bonds for prospecting damages; bonds for mining damages.

(a) Any coal permit applicant or noncompetitive oil and gas lease offeror whose application or offer was filed subsequent to the date of the initiation of a claim that is subject to the provisions of the act of 1922 must file with the appropriate Land Office Manager a waiver from, or a consent of, the claimant, or a bond or undertaking on Form 4-1130 for coal applicants and Form 4-208g for oil and gas offerors for the payment of all damages to the crops and improvements on the lands caused by the prospecting.

(b) There must be filed with the bond or undertaking required by the preceding paragraph, evidence of service of a copy thereof upon the claimant. The bond must be executed by the prospector as principal and by a corporate surety which has been approved as required by section 1 of the act of July 30, 1947 (61 Stat. 646; 6 U.S.C. 1-15), in the sum of $1,000. Where surety bonds are tendered with individuals as sureties, they must be executed by not less than two qualified individual sureties. Each surety must execute a statement showing that he is worth $2,000 in real property not exempt from execution, over and above his just debts and liabilities and that he is either a resident of the same State or Territory and the United States Judicial District as the principal on the bond, or of the United States Judicial District in which the lands involved are located. There also must be furnished a certificate by a judge or clerk of a court of record, a United States Attorney, a United States Commissioner, or a United States Postmaster, as to the identity, signature, and financial competency of the sureties. The statement of justification required to be furnished by the sureties, and the certificate of competency must be on Form 4-215.

(c) Bonds or undertakings executed pursuant to the provisions of § 66.1(c) (3) must not be filed with the Bureau of Land Management. Such bonds or undertakings are to be arranged for as specified in that subparagraph.

67.12

Rules of practice for hearings upon possessory claims to lands and waters used and occupied by natives of Alaska.

RESERVATIONS FOR INDIANS AND ESKIMOS 67.13 Extension of certain provisions of the Wheeler-Howard Act to Alaska; establishment of reservations.

AUTHORITY: §§ 67.1 to 67.13 issued under R.S. 2478, 34 Stat. 197; 43 U.S.C. 1201, 48 U.S.C. 357. Statutory provisions interpreted or applied are cited to text in parentheses.

CROSS REFERENCES: For applications and entries, see Parts 60, 101–108 of this chapter. For Indian homestead entries and patents, see § 166.7 of this chapter.

ALLOTMENTS TO INDIANS, ALEUTS AND
ESKIMOS

SOURCE: $ 67.1 to 67.9 contained in Circular 2008, 23 F. R. 9484, Dec. 6, 1958. § 67.1 Statutory authority.

(a) The act of May 17, 1906 (34 Stat. 197), as amended August 2, 1956 (70 Stat. 954; 48 U.S.C. 357), authorizes the Secretary of the Interior to allot not to exceed 160 acres of vacant, unappropriated, and unreserved nonmineral land in Alaska or, subject to the provisions of the act of March 8, 1922 (42 Stat. 415; 48

U. S. C. 376-377), of vacant, unappropriated, and unreserved public land in Alaska that may be valuable for coal, oil, or gas deposits, or, under certain conditions, of national forest lands in Alaska, to certain Indians, Aleuts, or Eskimos of full or mixed blood, who reside in and are natives of Alaska.

as

(b) Under the Allotment Act, amended, an applicant for allotment must be at least 21 years of age or the head of a family.

(c) Under the terms of the Allotment Act, as amended, the land allotted is deemed to be the homestead of the allottee and his heirs in perpetuity, and is inalienable and nontaxable. An Indian, Aleut, or Eskimo who receives an allotment under the act, or his heirs, however, may with the approval of the Secretary, convey the complete title to the allotted land by deed. The allotment shall thereafter be free of any restrictions against alienation and taxation unless the purchaser is an Indian, Aleut, or Eskimo native of Alaska who the Secretary determines is unable to manage the land without the protection of the United States and the conveyance provides for a continuance of such restrictions. § 67.2 National forest lands.

Allotments may be made in national forests if founded on occupancy of the land prior to the establishment of the particular forest or if an authorized officer of the Department of Agriculture certifies that the land in the application for allotment is chiefly valuable for agricultural or grazing purposes.

§ 67.3 Coal, oil, or gas lands.

Lands in applications for allotment and allotments that may be valuable for coal, oil, or gas deposits are subject to the regulations of Part 66 of this chapter. § 67.4 Number of allotments; conti

guity.

(a) No more than one allotment may be made to any one person.

(b) Lands in an allotment must be in a reasonably compact form and cannot consist of incontiguous tracts of land. § 67.5 Applications for allotment.

(a) Applications for allotment must be filed, in triplicate on Form 4-021, properly and completely executed, in the land office which has jurisdiction over the lands. The application must be signed by the applicant but if he is unable to

write his name, his mark or thumb print must be impressed on the application and witnessed by two persons.

(b) If surveyed, the land must be described in the application according to legal subdivisions of the public land surveys. If unsurveyed, it must be described as accurately as possible by metes and bounds and natural objects, and its position with reference to rivers, creeks, mountains or mountain peaks, towns or other prominent topographic points or natural objects or monuments, and to well-known nearby roads and trails, must be given.

(c) The application must be accompanied by a statement by the applicant that he has plainly indicated on the ground the corners of the land applied for by setting substantial posts or heaping up mounds of stones on each corner and that he has posted a notice of the application on the land, describing the tract applied for in the terms employed in the application on Form 4-021.

(d) Any application for allotment of lands which extend more than 160 rods along the shore of any navigable waters must be accompanied by a showing that the lands are not necessary for harborage, landing and wharf purposes and that the public interests will not be injured by waiver of the 160-rod limitation (see Part 77 of this chapter).

(e) Applications for allotment will be referred by the Bureau of Land Management to the Bureau of Indian Affairs for certification by an authorized officer that the applicant is a native qualified to make application under the Allotment Act, as amended. If the application is returned without such a certification, the application will be rejected.

(f) The filing of an application for allotment will grant no rights to the applicant over and above those which are specified in §§ 67.6 and 67.11. If the applicant does not submit the proof required by § 67.7 within 6 years of the filing of his application in the land office, his application for allotment will terminate without affecting the rights of the applicant gained by virtue of his occupancy of the land, or his rights to make another application. If the application was filed prior to the effective date of this paragraph, the application will be terminated under this paragraph only by decision of the authorized officer after appropriate notice to the applicant, granting him a reasonable period within which to file proof of continuous use and