1095). In this case, it is shown that the final entry was made, and receiver's receipt issued on December 23, 1883. The tract was encumbered after final entry and before Ma rch 1, 1888. No fraud has been found against the mortgagee, and no adverse claim originating prior to final entry exists. Prima facie, the facts show that a patent should issue for this tract under said section.

Axford v. Shanks et al. (12 L. D., 250); Charles C. Cranson et al. (12 L. D., 279); Fuller v. Hill et al. (12 L. D., 600); Joseph S. Taylor (12 L. D., 444); Geo. De Shane et al. (12 L. D., 637); Gerlach v. Kindler (12 L. D., 571); Edward Brotherton et al. (12 L. D., 305) Northern Pacific R. R. Co. v. Edgar et al. (12 L. D., 540); Patrick H. McDonald (13 L. D., 37).

You will accordingly call on the present owner of said tract to furnish testimony, as required by the letter to chiefs of divisions, dated May 8, 1891 (12 L. D., 450). After receiving this evidence, you will adjudicate the case in the light of the act and instructions cited.

SETTLEMENT RIGHTS-ALIEN-MOTION FOR REVIEW.

WILMARTH v. LAYBOURNE.

The settlement of an alien is made good by a subsequent declaration of intention to become a citizen, filed prior to the intervention of any adverse claim.

After the cancellation of an entry the land covered thereby is open to settlement. A motion for the review of the decision cancelling such entry does not operate to reserve the land from settlement, though the settler's right thereon is subject to the final disposition of said motion.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, August 18, 1891.

I have considered the appeal of Albert W. Wilmarth from your de cision dismissing his protest against the final proof of Eliza A. Laybourne for the NE. of NW. and N. of NE. 4 of Sec. 35, and SE. of SE. of Sec. 26, Tp. 114 N., R, 56 W., Watertown, South Dakota, and rejecting his homestead application for said tract.

The cash entry of Wilmarth for this land was canceled by decision of this Department dated February 27, 1889. Due notice of this decision was given by your office on March 20, 1889, and the entry was canceled. Subsequently, on March 28, 1889, Wilmarth filed a motion for review, which was denied October 31, 1889.

Laybourne filed declaratory statement for the tract April 11, alleging settlement April 10, 1889, and on October 25, 1889, submitted final proof showing a substantial compliance with the law.

You dismissed the protest of Wilmarth against said proof, and rejected his application to enter the land as a homestead.

He has appealed, alleging as error, first, "in holding that an entry.

man can make a legal settlement before declaring an intention to become a citizen of the United States."

It appears that Laybourne did not declare her intention to become a citizen until the day she filed her declaratory statement, which was one day subsequent to the date of settlement.

It is the settled ruling of this Department that where a defect of this sort exists it may be cured by fulfilling the requirements of law at any time prior to the interven tion of an adverse claim, and otherwise showing good faith. Mann v. Huk (3 L. D., 452).

Laybourne became qualified as to citizenship before any adverse claim attached, hence her settlement and filing as between herself and the government is recognized as valid.

The second ground of error alleged is "in holding that a settler can acquire any right to land once segregated by a former entry, while a review is pending to determine the rights of said entryman.”

At the time Laybourne made settlement and filed her declaratory statement, the cash entry of Wilmarth had been canceled.

It is true that had that decision been recalled, and the entry re-instated, Laybourne would have acquired no rights under her settlement. It is true that she could not perfect title during the pendency of Wilmarth's application for a review of the decision canceling his entry, but as said entry was properly canceled before she made settlement, her rights under that settlement must be recognized, as Wilmarth's appli cation only preserved his rights, provided he had any to preserve, but it did not reserve the land from settlement in the event that he had no right to the same.

Your decision seems to be in accordance with the law and the facts, and the same is affirmed.

HOMESTEAD ENTRY-ACT OF JUNE 15, 1880.

J. F. FISHER.

The validity of a cash entry under the act of June 15, 1820, made through one acting under power of attorney, is not affected by the fact that the requisite affidavit is made by said attorney.

A cash entry thus made, and subsequently canceled for want of an affidavit executed personally by the entryman, must be re-instated and intervening claims excluded. Acting Secretary Chandler to the Commissioner of the General Land Office, August 21, 1891.

I have considered the appeal of J. F. Fisher from the decision of your office of April 16, 1890, holding for cancellation his timber culture entry No. 11,622, of the NE. of Sec. 27, T. 2 S., R. 24 W., in the Kirwin land district, Kansas.

The record shows that Clayton Forbes made homestead entry No. 8884 of this land December 2, 1878, and on the 28th of April, 1884, by

his attorney, under a power of attorney duly executed, made cash entry No. 3416 of the same tract under the second section of the act of June 15, 1880 (21 Stat., 237). Having paid the purchase money, he obtained final certificate on the same day, which entitled him to a patent. Your office, by letter bearing date April 18, 1885, suspended this cash entry for the reason that the affidavit required was made by the claim. ant's attorney, and not by the claimant in person, and the local officers were instructed to notify Forbes to furnish his personal affidavit within sixty days. In pursuance of this order, notice was sent to him by letter (not registered), but no answer was received thereto, and your office was so informed.

On the 26th of November, 1888, the local officers were further instructed to notify Forbes that his entry would be canceled unless he should furnish his personal affidavit within sixty days from date of said notice. This notice was sent by registered letter, but no answer having been made thereto by Forbes, your office, by letter bearing date April 27, 1889, canceled his cash entry.

On the 8th of May, 1889, Fisher, the present claimant, was allowed to make timber culture entry of the same land, and claims to have complied with the requirements of the timber culture law. But, from evidence found in the record, under an affidavit of Forbes' attorney, corroborated by two witnesses and dated June 13, 1885, your office was notified that Forbes died in September, 1881, some months before either of the above-mentioned notices were mailed to him, and that it was impossible, therefore, for him to comply with the order requiring him to furnish the personal affidavit.

An attorney of this city, acting in behalf of the heirs of Clayton Forbes, by letter bearing date June 6, 1889, called the attention of your office to the facts above stated, and requested that your official action in ordering the cancellation of Forbes' cash entry be rescinded, and that his said entry be re-instated. Thereupon, your office, by letter dated December 17, 1889, directed the local officers to notify Fisher of the foregoing alleged facts, and that he would be allowed sixty days within which to show cause why his timber culture entry for said land should not be canceled, and why the cash entry of Forbes should not be re-instated. Fisher, in reply, filed an affidavit in which he alleged that at the time he made application to enter said land the land was vacant; that his entry was made in good faith; that he had complied with the law, and asked that his entry be allowed to remain intact. But your office, having considered said affidavit, held his entry for cancellation, and re-instated the cash entry of Forbes. From this decision Fisher has appealed to this Department.

Under the power of attorney above referred to, Francis M. Snow was authorized by Forbes to purchase for him the land in question under the second section of the act of June 15, 1880, and, in general, to do all other acts and things necessary in connection with the said purchase.

Accordingly, the said attorney filed an affidavit with the local officers complying with the requirements of the law, and completed the purchase. Like affidavits, made by the attorney of record, have been held by this Department to be sufficient; (see the cases of George T. Jones, 9 L. D., 97; Graham v. Garlichs, 11 L. D., 555, and McFarland v. Elliott, id. 587) and Forbes, having in his lifetime complied with the terms of the act of June 15, 1880, and obtained final certificate, the decision of your office is affirmed.

INDIAN LANDS-ALLOTMENT.

AMY HAUSER.

A Cheyenne Indian who has received an allotment in Oklahoma under section 4, act of February 8, 1837, can not, while said allotment is outstanding, receive a further allotment within the Cheyenne and Arapahoe reservation under the agreement ratified by the act of March 3, 1891.

Acting Secretary Chandler to the Commissioner of Indian Affairs, August

21, 1891.

I acknowledge the receipt of your communication of 8th instant, submitting for the decision of the Department, whether Amy Hauser, a Cheyenne Indian, and her four children, all under eighteen years of age, who received allotments in Oklahoma Territory in 1889, under section four of the act of February 8, 1887, can now receive an allotment of lands within the Cheyenne and Arapahoe reservation, under the agreement with said Indians ratified by act of March 3, 1891.

In response I transmit herewith an opinion, in which I concur, of the Chief Law Clerk of the Office of the Assistant Attorney General for this Department, to the effect that neither Amy Hauser nor her children can claim other and additional allotments, so long as their said allotments shall remain intact.

OPINION.

DEPARTMENT OF THE INTERIOR,

OFFICE OF THE ASSISTANT ATTORNEY-GENERAL.

The SECRETARY OF THE INTERIOR.

August 20, 1891.

SIR: On the 13th instant the Honorable Acting Secretary Chandler "referred to the Hon. Asst. Att'y General for the Department of the Interior with request for an opinion upon the matter herein presented," namely, a communication from the Acting Commissioner of Indian Afffairs, dated the 8th instant, relative to the right of Amy Hauser and family to allotments on the Cheyenne and Arapahoe reservation.

It appears from the paper before me that said Amy Hauser is a Cheyenne Indian, the wife of a white man who settled upon unoccupied

lands east of the Cheyenne and Arapahoe reservation prior to the pas sage of the act of Congress approved March 2, 1889 (25 Stat., 980-1024), opening the Creek and Seminole lands to settlement; that after said lands were opened Mrs. Hauser and her child ren, who were then under eighteen years of age, took allotments under the provisions of the fourth section of the act of Congress approved February 8, 1887 (24 Stat., 388), giving to her one hundred and sixty acres and to each of the children forty acres; that by article III of the agreement with the Cheyenne and Arapahoe Indians, ratified by the act of Congress approved March 3, 1891 (26 Stat., 989-1023), it was stipulated that:

Out of the lands ceded, conveyed, transferred, relinquished, and surrendered by article II hereof, and in part consideration for the cession of lands named in the preceding article, it is agreed by the United States that each member of the said Cheyenne and Arapahoe tribes of Indians over the age of eighteen years shall have the right to select for himself or herself one hundred and sixty acres of land, to be held and owned in severalty, to conform to legal surveys in boundary; and that the . father, or, if he be dead, the mother, if members of either of said tribes of Indians, shall have a right to select a like amount of land for each of his or her children under the age of eighteen years.

The Acting Commissioner states that he is unable to determine whether "Mrs. Hauser and her children are now recognized as members of the tribe;" that the Hauser family were given said allotments because it was shown that they had settled upon the lands claimed, under the information given by the agent that they were within said Cheyenne and Arapahoe reservation, and, having settled upon and improved said lands, it was considered by the Department that they should be protected in their possessions and allowed to take said lands under the fourth section of said act of 1887. (Letters Indian Affairs, Dept. Int., from Feb. 1889 to May 1889, p. 236.)

The question is submitted" whether, in view of the facts and circumstances in the case as shown, those people are now entitled to further allotments of land within the limits of the Cheyenne and Arapahoe reservation under the agreement of 1891."

Upon the foregoing statement, in my judgment, Amy Hauser and her children are not entitled to allotments of lands within said Cheyenne and Arapahoe reservation, so long as their allotments already made under said act of 1887 are outstanding and uncanceled.

In an opinion rendered by this office on June 22, 1889, 8 L. D., 647, relative to the object of the general allotment act of 1887, it was stated that

Its immediate purpose is to obliterate the tribal relations of the Indians, so far as to induce them to become individual land owners, thence stepping by easy gradation, it is hoped, along the path of civilization into the dignity of citizenship. To make such act effective to accomplish the purpose in view, it was doubtless intended it should be administered, so far as practicable, like any other law based upon settlement.

Again, on July 14, 1890 (11 L. D., 103), the Secretary of the Interior adopted the opinion of this office holding that members of the citizen

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