directed that final certificate be issued to Henderson, which in the event of said decision becoming final, would be submitted to the board of equitable adjudication under rule 33, general circular, approved February 6, 1892, page 212.

The statute requiring a homestead entryman to make final proof within seven years from the date of his entry was suspended as to Henderson during that period covered by his enforced absence from the land.

This being true, he was not too late to make final proof when he offered to do so, upon being summoned by the local officers to show cause why his entry should not be canceled.

For this reason your decision is affirmed.

Approved,

JOHN I. HALL,

Assistant Attorney-General.

SHEPHERD . BIRD ET AL.

Motion for review of departmental decision of July 7, 1893, 17 L. D., 82, denied by Secretary Smith, February 21, 1894.

HOMESTEAD ENTRY--SETTLEMENT RIGHT.

GAYLER . RANDLE.

Residence on public land, with no intention of acquiring title thereto under the settlement laws, confers no right as against the subsequent entry of such land by another.

Secretary Smith to the Commissioner of the General Land Office, Febru

April 17, 1891, of the and the NW. 4 of the

John M. Randle made homestead entry, on W. of the NW. and the SE. 4 of the NW. SW. of Section 9, T. 9, R. 11 E., of the Huntsville, Alabama, land district.

On June 20, 1891, Thomas A. Gayler filed an affidavit of contest alleging that he has a prior and better right of entry to the SE. 4 of the NW. and the NW. 4 of the SW. 4 of the same tract; that he first settled upon it in 1882, and has continuously resided on and cultivated it since that date, and that Randle does not reside on the land and has no improvements on the same.

After hearing upon the issue thus joined, the register and receiver rendered dissenting opinions, and the case is before me on appeal from your office decision affirming the recommendation of the register that the contest be dismissed.

The testimony shows that Gayler made a settlement on a forty adjoining the land in controversy, in 1882, but it appears, also, that at the time this settlement was made, and for many years thereafter, the contestant's dwelling was supposed to be on the land of his father lying immediately to the north. It is shown that contestant cultivates the lands of his father, and for years has managed the latter's farming operations. During all the years of his residence thereon, he has cultivated none of the public lands, nor exercised, nor claimed any proprietary rights thereto. He admits, under oath, that in building the house in which he lives, the controlling consideration was convenient proximity to the tillable lands of his father. The evidence satisfies my mind that, when Gayler established himself on the public land near by the line of his father's property, he did not have in view the acquisition of any part of the public domain for private uses. This purpose was formed later, but after other rights had accrued. The land in question was segregated by Bogan's entry on March 28, 1891, whose subsequent relinquishment appears to have been contemporaneous with the contestee's entry. The latter has six months within

which to establish himself on the land covered by his entry, and I do not find that there is any bona fide claim adverse to his right. The decision of your office is affirmed.

INDIAN LANDS-OCCUPATION BY RELIGIOUS SOCIETIES.

INSTRUCTIONS.

A religious society that occupied land at the date of the passage of the act of March 2, 1889, can have the land, to the extent of one hundred and sixty acres, granted to it, so long as the same shall be used for educational and missionary work; or, in lieu thereof such society may purchase one hundred and sixty acres, at the price prescribed in the statute, and acquire the fee simple title thereto. But such society can not have one hundred and sixty acres granted to it under the first provision of section 18, of said act, and in addition thereto purchase a similar amount under the second provision of said section.

A religious society not in the occupancy of land within either of the two reservations named in section 18, of said act, can not be granted the temporary use and benefit of these lands under the provisions of said act; but, under the general authority of the Secretary of the Interior in respect to Indian reservations, permission might be given such society, with consent of the Indians, to occupy said lands so long as the Indians and the secretary of the Interior may deem proper. Secretary Smith to the Commissioner of Indian Affairs, February 14,

1894.

I acknowledge the receipt of your communication of 2nd September last, in which you refer to the provision contained in the 18th section of the Sioux act of March 2, 1889 (25 Stats., 888), relating to the occu

pation of lands by religious societies for missionary and educational work and request to be advised as follows:

(1). Whether under said section, any religious society or organization that was in occupancy of land within any of the Sioux reservations at the time of the passage of the act can be granted the use and occupancy of additional land without being required to purchase the same.

(2). Whether any such society or organization, not in occupancy of land within any of said reservations at the date of the passage of said act, can be granted the temporary use and occupancy of land for religious and educational purposes, as is done in the case of other Indian reservations.

(3). Whether, in order to acquire the use of land within any of said reservations, any such society or organization that was not in occupancy of land within any of said reservations at the date of the passage of said act will be required to purchase the same.

In response thereto, I transmit herewith an opinion, dated January 29, 1894, of the Hon. Assistant Attorney General for this Department, in which I concur.

OPINION.

Assistant Attorney-General Hall to the Secretary of the Interior January 29, 1894.

The Commissioner of Indian Affairs, on September 2, 1893, addressed you a letter in which he called attention to the provision of section 18 of the act of March 2, 1889 (25 Stat., 888-895), in relation to the occupation, use and purchase, by religious societies, of land in the Sioux Indian reservation, and requested to be advised on the following points: 1. Whether under said section, any religious society or organization, that was in the occupancy of land within any of the Sioux reservations at the time of the passage of the act, can be granted the use and occupancy of additional land without being required to purchase the same.

2. Whether any such society or organization, not in occupancy of land within any of said reservations at the date of the passage of said act, can be granted the temporary use and occupancy of land for religious and educational purposes, as is done in the case of other Indian reservations.

3. Whether, in order to acquire the use of land within any of said reservations, any such society or organization that was not in occnpancy of land within any of said reservations at the date of the passage of said act, will be required to purchase the same.

I have been asked for my opinion as to the proper answer to be made to said questions.

The 18th section of the act of March 2, 1889, referred to in the Commissioner's letter, is as follows:

That if any land in said Great Sioux reservation is now occupied and used by any religious society, for the purpose of missionary or educational work among said Indians; whether situate outside of or within the lines of any reservation constituted by this act, or if any such land is so occupied upon the Santee Sioux Reservation, in Nebraska, the exclusive occupation and use of said land, not exceeding one hundred and sixty acres in any one tract, is hereby, with the approval of the Secre

tary of the Interior, granted to any such society "so long as the same shall be occupied and used by such society for educational and missionary work among said Indians" and the Secretary of the Interior is hereby authorized and directed to give such religious society patent of such tract of land to the legal effect aforesaid; and for the purpose of such educational or missionary work any such society may purchase upon any of the reservations herein created, any land not exceeding in any one tract one hundred and sixty acres, not interfering with the title in severalty of any Indian, and with the approval of and upon such terms, not exceeding one dollar and twenty-five cents an acre, as shall be prescribed by the Secretary of the Interior.

In my opinion the proper construction of this section of the act of March 2, 1889, is that any religious society for the purpose of missionary and educational work among the Indians on the Great Sioux Reservation, or on the Santee Sioux Reservation, which occupied any of said lands at the date of the passage of the act, would be entitled to have one hundred and sixty acres in any one tract granted to said society, so long as such land should be occupied and used by the same for educational and missionary work among said Indians. This is the right given to such societies by the act; and it does not depend upon the consent of the Indians, nor of the Secretary of the Interior.

The same section also provides that any such society may purchase, upon any of the reservations, therein created any land not exceeding in any one tract one hundred and sixty acres, not interfering with the title in severalty of any Indian, and with the approval of and upon such terms, not exceeding one dollar and a quarter per acre, as shall be prescribed by the Secretary of the Interior.

Construing these provisions of the section, I think it is very clear that Congress meant, in the first instance, that any religious society, in actual occupancy of land at the date of the passage of the act aforesaid, should have the right to have the grant (patent?) issued to such society for one hundred and sixty acres of said land, so long as said society should occupy and use the same for educational or missionary work; or, in lieu thereof, such society (to wit, such society as used and occupied the land at the date of the passage of the act), might be permitted to purchase one hundred and sixty acres of land, and receive therefor a title in fee simple, if such society should conform to the terms and regulations prescribed by the Secretary of the Interior.

I do not believe it was the intention of Congress to give the society one hundred and sixty acres of the public lands so long as the same might be used for educational and missionary work, and also to give such society the right to buy one hundred and sixty acres of land, and get the fee simple thereto from the government; but in my opinion the intention was to give to such society the right to elect between what might be called a temporary title and right to occupy the land, and a fee simple title by purchasing the land at the government price.

In my opinion, the words "such society" in the fourteenth line of this section refer to societies in the occupancy of land on one or the other of the said reservations at the date of the act of 1889-supra. This

view is strengthened, in my opinion by reference to the use of the same words "such society" in the ninth line of the same section. It will be seen that the words "such society" are used in the portion of the ninth line which requires that the land shall be granted to any such society so long as the same shall be occupied," etc.,--which must have reference to a society which occupied the land at the date of the passage of the act; and if the words "such society" in the ninth line refer to a society which occupied the land at the date of the passage of the act, it seems to me conclusive that the words "such society" in the fourteenth line refer also to a society which was in occupancy of land on the Great Sioux or Santee reservation at that date.

The act of 1889 does not give to any religious society the right to have lands granted to it so long as it uses said land for educational and missionary work, or the right to purchase as provided in said act, unless such society occupied lands on one of the two reservations at the date of the passage of the act. I therefore advise that the following answer be made to the questions propounded by the Commis sioner of Indian Affairs.

(1) A religious society that occupied land at the date of the passage of the act of March 2, 1889, could have the land, to the extent of one hundred and sixty acres, granted to it, so long as the same shall be used for educational and missionary work; or, in lieu thereof, such society can purchase one hundred and sixty acres of land, at the price prescribed in the statute, and get the fee simple title thereto. But such society could not have one hundred and sixty acres granted to it under the first provision of section 18, and then in addition thereto, purchase one hundred and sixty acres as provided in the second provision of the same section.

(2) A society not in the occupancy of land within either of the two reservations mentioned in the 18th section of the act of 1889 could not be granted the temporary use and benefit of these lands under the provisions of said act; as said act confers no rights upon any society unless it was in occupancy of the lands in one or the other of the two said reservations at the date thereof. But, under the general authority of the Secretary of the Interior in respect to the Indian reservations, permission might be given to such religious society, with the consent of the Indians, to occupy said lands so long as the Indians and the Secretary of the Interior may deem proper.

(3) My answer to the third question is covered by the above answer to the second.