The act of 1860 has never been interpreted by a court, except in the case of Pengra v. Munz (29 Fed. Rep., 830). In this case the court held the grant to be one on condition precedent. While this decision seems well founded, and being the only one by the courts on the grant, should be followed. It makes no difference in this case whether the condition be held a precedent or a subsequent one. If a subsequent condition, there have been ample legislative declarations of forfeiture which would defeat the grant. The act of January 14, 1889 25 Stats., 642), and the amendatory act of June 7, 1902 (32 Stats. M., 642), and the disposition of the lands after directing the classification of a part as pine and all others as agricultural. (See United States v. De Repentigny 5 Wall, 267; McMichen v. United States, 97 U. S., 204; Farnsworth v. Minn. & Pac. R. R. Co., 92 U. S., 49)

The act of October 19, 1890 (26 Stats, p. 357) appropriated $150,000 to pay for damages to the Chippewa Indian lands embraced in these reservations,, by the building of dams and reservoirs, thereby overflowing them. This naturally caused damage to swamp lands first, and under this act over 1,800 of the 17,000 acres selected in this case have been paid for to the Indians.

The act of December 27, 1872 (17 Stats., 404), recites the failure of the State of Missouri to select within the two years prescribed by the act of 1860 and regrants the land forfeited and recognizes intervening rights. The regranting act did not provide specifically for the issuance of patents for the lands regranted, and this was remedied by the act of June 23, 1874 (18 Stats., 282). These acts constituted a legislative construction of the act of 1860 and determined it a grant upon condition and recognized the failure without legislative or judicial declaration of forfeiture. Congress, therefore, construed it to be a grant upon condition precedent. The Secretary of the Interior has fully discussed the act of 1860 in the decisions found in Copp's Public Land Laws, page 1081, and the Annual Report of the General Land Office, 1880, page 158, and determined that the requirement of selection within a definite time was a mere legislative discretion. His decisions, however, were based upon two entirely untenable positions, namely, (1) that the act of 1860 requires the selection to be made by the Secretary (see Wright v. Roseberry for contrary holding); (2) that the act of the Legislature of Minnesota, agreeing to accept the field notes of survey as evidence of the character of the land, constituted a selection. Besides being contrary to his first position, this second position is ill founded, because the agreement as to the evidence on which to select can not constitute the selection itself. The Secretary similarly construed the grant in Marquan v. Susmela (21 L. D., 279) ; but this decision is based on the decisions in French v. Fyan et al (93 U. S., 169) and Railroad Co. v. Smith (9 Wall., 95), rendered upon the act of 1850, and upon the theory that the Secretary should make the selection. The decision also cites and is based upon the decision in United States v. Louisiana (127 U. S., 191), which discusses a provision of the act of 1849 similar to the one in the act of 1850, as to the application of the provision upon the sale of the lands and clearly did not in any way relate to or bear upon the second section of the act of 1860. In 22 L. D., 388, the Secretary held that the act of 1889 could be deemed a legislative declaration that the lands in the reservation were not swamp in character. In the case of Minnesota v. Craig (23 L. D., 305) the Secretary clearly indicated a different view of the act of 1860, and virtually agreed with the views here set forth, namely, that it was a grant upon condition.

In 27 L. D., 418, and 32 L. D., 328, the Secretary held the act of 1860 to be a present grant, but discussed only the date and manner of the creation of the reservation; and in the latter case sided with the decision of the Supreme Court in Railroad Co. v. Fremont Co. (9 Wall., 89), which was rendered upon the act of 1850, and a grant to the railroad making an express exception in favor of that act. In neither of these decisions was the second section of the act of 1860 even mentioned. There seems to be no reason now why the Secretary of the Interior may not fully consider a case involving the construction of this second section on its merits.

The case of Farnsworth v. Minn. & Pac. R. R. (92 U. S., 49), refers to the direction contained in the act as to how the State legislature was subject to the condition precedent as to disposition provided by the act of Congress, and that no conveyance in disregard of the condition could pass any title.

In other words, the law seems to be that in case of a condition precedent no title is conferred if the condition is not performed. This applies to the failure of the State to select within the two years as required by the second section of the act of 1860. Again, the law is that in case of condition subsequent, there

must be an assertion of a breach of the condition by the grantor to restore the estate. In case of a private grant this must be by entry or its equivalent; and in case of a public one by judicial proceedings, "the equivalent of an inquest of office at common law," or some legislative assertion of ownership, "such as an act directing the possession and appropriation of the property, or that it be offered for sale or settlement."

In the case of the State of Minnesota v. Craig (23 L. D., 305), the Secretary, referring to section 2 of the act of 1860, after propounding the question "What was the effect of the requirement that the selection should be made within two years after notice? Was it mandatory and imperative, or simply directory?" cited Endlich on the Interpretation of Statutes (612, sec. 433). See section 436 of the same author.

The Secretary held in said decision relative to the character of the grant of the act of 1860:

"It is not enough to say that the grant in hehalf of the States of Oregon and Minnesota contained in the act of 1860 was a present grant, and therefore conveyed the title to all lands which were in fact of a swampy character on the date of the passage of that act of March 12, 1860.

"A grant must have definiteness and precision, and there is and could be no definiteness and precision until selection. To say that 35 years after a grant of swamp land had passed within its domain that a State can assert title to a particular tract of land is to say that there is actually no bar of time within which such selection can be made, and there would be no such thing as quiet, peaceable possession of real estate inside the State of Minnesota, for fear that now or hereafter the State of Minnesota might undertake to prove any given tract unpatented was, in fact, swamp and inured under its grant."

The department could not have held this decision in mind when it rendered the decision in 27 L. D., 418, and 32 L. D., 328. In said decision the Secretary recognized the constructive notice to the State arising by reason of its acceptance of selections made for it in the same township wherein the land involved was situated.

In this case the claim of the Indians to the proceeds of all of the land not allotted thereunder and the timber thereon, which was recognized in the act of January 14, 1889, and which was validated by treaty with the Indians, and the right of overflow secured by the appropriation under the act of August 19, 1890, and the reservation of forestry lands created by the act of June 27, 1902, are, in my judgment, such adverse claims as will bring this case within the principle of the decision in the case of Minnesota r. Craig, and prevent the State from now making such selection.

The State had actual notice of the survey of those townships lying partly within the reservation and partly without in which it made swamp selections more than two years before the date of the act of 1889, and in some other townships in which it made such selections more than two years before the act of 1902. Again, it made some indemnity school selections which were approved June 19, 1891, February 19, 1896, and perhaps on other dates, as may be shown by tract books of the General Land Office.

The department, in the case of the State of Minnesota (22 L. D., 388), held that these words of the act of 1889 were an "express declaration as to the character of said land to be accepted by this department as its guide in disposing of the same." They also constituted a recognition on the part both of the United States and the Indians that the grant by the act of 1860 had failed or been forfeited. The act was the subject of a treaty before it became operative, and the condition of the land must have been well understood by both parties thereto.

The

Congress further recognized the Indian title to these lands and the failure of forfeiture of the swamp grant by the act of August 19, 1890 (26 Stats., 357), which appropriated $150,000 for payment of damages sustained to such lands caused by building of dams and reservoirs; in other words, for overflow. damage would necessarily have been done to the swamp lands in the main, as they most naturally lie on the banks of the lakes and streams whose waters were raised by the dams and reservoirs.

The act of May 18, 1796 (1 Stats., 465), prescribes the manner in which the public lands must be surveyed, and in the latter part of section 2 thereof provides that the field books of the notes of survey should be returned to the surveyor general, who should cause a copy thereof to be filed in the local office, and who should also cause a plat of the land to be made and recorded in books kept for that purpose, and a copy thereof open at his office, and other copies

sent to the place of sale, which was the local office, and to the Secretary of the Treasury, who at that time had control of the public land. This record notice would seem to affect the governor of the State, as well as others, and, besides, as to those townships lying partly within and partly without the reservations, the State had actual notice, as is shown by its selections therein as aforesaid.

It may be that the record of the surveyor general's office would show actual notice to the governor as to the survey of all of said lands, but such does not seem necessary.

It would seem, therefore, that the right of the State to lands embraced in its pending lists herein referred to could and should be rejected, because the act of 1860 is a grant on condition precedent, which condition has not been performed within the time fixed by the act, after due notice, actual or constructive, and because the later act of 1889 recognized this failure and declared the character of those lands to be pine and agricultural; that is, not swamp, so as to be effected by the act of 1860, in any event. Surely Congress did not intend to appropriate this money to pay the Indians for lands owned by the State and for which, if so owned, it will be liable to the Indians.

However, before rendering a decision in the case, inquiry might be made at the surveyor general's office to ascertain if actual notice has been given the governor. The examination as to the character of the lands embraced in the pending lists at the date of the act of 1860, and as to the alleged fraudulent character of the field notes of survey, should be concluded, and findings of fact thereon made. And in view of the various decisions herein cited the matter is respectfully submitted to the department, with the suggestion that the subject be again inquired into and a decision rendered thereon.

Very respectfully,

F. E. LEUPP, Commissioner.

THE SECRETARY OF THE INTERIOR.

DEPARTMENT OF THE INTERIOR,
OFFICE OF INDIAN AFFAIRS,
Washington, July 20, 1907.

SIR: The office is in receipt of a letter from Agent Frater, of the Leech Lake Agency, Minn., dated July 11, submitting petitions of the Leech Lake, Cass Lake, and other Indians under his jurisdiction, protesting against the claim of the State of Minnesota to the swamp lands in the Leech Lake, Cass Lake, Chippewa, and other reservations belonging to the Leech Lake Agency. The Indians say in the petition :

"We, the undersigned members of the Chippewa Tribe of Indians of the State of Minnesota, have heard with much surprise, through the newspapers, the various Government officials, and general rumor that the United States has or is about to convey the title to all swamp lands within the boundaries of the ceded Chippewa lands in the State of Minnesota to the State of Minnesota, without compensation to the Chippewa Indians.

"When these lands were ceded to the Government by the Indians it was specifically stipulated in the treaty that all such lands were to be held in trust by the United States Government and sold, the proceeds to be paid to the Chippewa Indians.

"If your department decides that the claim of the State to the so-called 'swamp lands' within the boundaries of the Chippewa ceded lands is valid, it is earnestly requested that action be delayed until such time as we can present to your department evidence that the greater part of he so-called 'swamp lands' wihin the réservation boundaries, now selected by the State, are 'pine lands,' and were so classified by the Government corps of estimators, and that specific evidence can be given by the Government officials in the field here now in the service of the United States Indian Agent, the superintendent of logging, and the United States Forest Service.

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We most earnestly protest against any lands within the boundaries of the ceded lands in the State of Minnesota being given to the State of Minnesota or any other party or parties gratuitously."

The agent's letter and the petitions are transmitted herewith, and I most earnestly request that their protest be given careful consideration.

On December 7, 1905, the office submitted to the department an elaborate argument against the claim of the State of Minnesota to the swamp lands referred to. Attention is respectfully invited to said letter as embodying the

views of the office on the subject.

The office maintained, among other contentions, that the act of Congress of 1860 (12 Stats., 3) was a grant on condition precedent, which condition had not been performed on the part of the State within the time fixed by the act, after due notice, actual or constructive, and that the later act of 1889 (25 Stat., 642) recognized this failure and declared he character of these lands to be pine and agricultural; that is, not swamp lands so as to be affected by the act of 1860, supra, and that the act provided for the disposal of all the lands within said reservation without reference to their character, as to swamp, etc.

It is respectfully requested that the said letter of December 7, 1905, be considered in connection with the inclosed petitions of the Indians.

On July 10 the Acting Commissioner of the General Land Office, in response to office letter of June 29, gave the status of the applications of the State of Minnesota for swamp-land selections within the reservations under the jurisdicion of the Leech Lake Agency. The acting commissioner said:

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Under departmental instructions of December 10, 1903, there was prepared from the field notes on file in this office two lists of swamp lands, designated as Lists Nos. 144 and 145, special, containing 11,178.04 and 6,296.63 acres, respectively, being situated in the cede portions of the Cass Lake, Winnibigoshish, Chippewa, and Leech Lake Reservations. Such lists were confined to the lands embraced in the printed schedules of Chippewa pine lands of May 29 and August 29, 1903. The same lands were carried into approved lists Nos. 153 and 154, special, approved by the Secretary January 4, 1904, but patents have not yet issued thereon.

"The United States surveyor general reported additional swamp lands in the reservations as follows:

"List 153, February 24, 1905, 4,581.61 acres in the White Oak Point Reservation; list 154, May 29, 1905, 33,761.73 acres in the Chippewa Reservation; list 155, May 29, 1905, 8,308.71 acres in the Winnibigoshish Reservation; and list 156, May 29, 1905, 4,164.64 acres in the Leech Lake Reservation.

'No action has been taken on any of the above lists except to hold for rejection the claim to those tracts which were not found to be swampy in character by the field notes on file in this office aggregating in the neighborhood of 5,000 acres."

The office urgently renews its recommendation of December 7, 1905, that the claim of the State to the swamp lands on the Chippewa reservations be denied. This course would obviate the necessity of an examination in the field. But should it be held that the claim of the State to the swamp lands is valid, it is urgently recommended that the lists be not approved until an examination has been made in the field to determine what lands are actually swamp, and that the claim of the State be denied to all lands not shown to be swamp by such examination; and in the event of an examination in the field, that the Indians be represented by an inspector of the department or a special agent of this office.

I further recommend that the Commissioner of the General Land Office be instructed to suspend action on these lists until the rights of the Indians shall have been finally determined.

Very respectfully,

C. V. LARRABEE, Acting Commissioner.

JULY 22, 1907.

In accordance with your recommendations, the Commissioner of the General Land Office is hereby directed to suspend action on all swamp land selections in the Chippewa Indian reservations of Minnesota until the rights of the Indians shall have been finally determined.

GEORGE W. WOODRUFF,
Acting Secretary.

Mr. MERITT. I did not make notes of the various things stated by Mr. Ballinger that he has submitted, but throughout his hearing he was emphasizing the importance of his work in connection with this matter, and on the other hand discrediting the work of the Indian Bureau. If there is anything that has not been properly done in the Chippewa country we would be glad to have Mr. Ballinger bring it to our attention, and will be glad to correct anything that is not proper. We realize that the administration of Indian affairs in the Chippewa country is exceedingly difficult because of the differences among the

Indians themselves, the two factions fighting each other and sometimes both factions fighting the Indian Bureau because they can not get exactly what they want, but I believe that we are administering the affairs of the Chippewa Indians as well as they can be administered under the difficulties under which we are operating.

Mr. HAYDEN. What about the bonds he spoke of, the Liberty bonds?

Mr. MERITT. Because of the legislation that had been passed by Congress, some of the Indians in the Chippewa country have been released from Government control under the acts of 1906 and 1907, known as the Clapp amendments. Those acts released all adult mixed-blood Indians on the White Earth Reservation. We were attempting to conserve the funds of certain of those Indians and invest them in Liberty bonds. While I do not remember the details of this matter, Mr. Ballinger did bring to the attention of the office some red tape in connection with the cashing of the bonds of certain of the Chippewa Indians, and it was, if I remember correctly, straightened out, but we are doing in the Chippewa country now exactly what we are doing all over the country, permitting the Indians to sell their bonds when they need the money, and there is an emergency for it. We are encouraging the Indians to hold their bonds as long as they can, but where there is an emergency we permit them to sell their bonds and receive the cash.

Mr. BURTNESS. What about the proceedings taken with reference to the rights of Indian children born away from the reservation or away from their allotments, to which Mr. Ballinger referred?

Mr. MERITT. Mr. Ballinger took a position on that, which was sustained by the solicitor.

Mr. BURTNESS. Had a contrary position been taken by the bureau prior to Mr. Ballinger?

Mr. MERITT. We had been following the previous decision of the department on that subject.

Mr. BURTNESS. Was it through Mr. Ballinger's activities really that that decision was changed?

Mr. MÈRITT. I think it was through the activities of Mr. Ballinger that the matter was brought to the attention of the office, and we submitted the question to the solicitor, and the solicitor sustained the position of Mr. Ballinger.

Mr. HAYDEN. The effect of that change was that a number of the mixedblood Indians had moved into town and away from the reservation and their children were born away from there, but their children we given a share in the tribal estate, which, under the previous ruling of the department, would have gone to the full-blood Indians remaining on the reservation and to their children?

Mr. MERITT. Yes, sir.

Mr. HAYDEN. So that the condition of that thing was that it was a fight between the mixed bloods and the full bloods.

Mr. ROACH. I would like to clear up and get full information on the $75,000 which he claims to have saved as the result of his individual efforts on those bonds. His other allegations are rather general in character, some of them quite important, but in this particular matter of the bonds he claims that it was through his individual efforts that $75,000 was saved to the tribe. I want to inquire whether or not at the time Mr. Ballinger took this up with the department whether the department was engaged in trying to work out some plan by which those payments could be made and the bonds cashed?

Mr. MERITT. We have been cashing bonds all over the country for the benefit of the Indians, but I think Mr. Ballinger was helpful in that matter.

Mr. ROACH. I have no doubt that he was, but what I am trying to get clear in my mind is whether it was wholly as a result of his efforts that this cashing of bonds occurred or whether the department had it in mind and was working on a general plan by which they could make payments which had been ordered? Mr. MERITT. I want to give Mr. Ballinger due credit for bringing the matter to the attention of the office. I think that ultimately the matter would have been worked out satisfactorily to the Indians and that the same policy that we are now pursuing on other reservations would have been pursued in the Chippewa country.

Mr. SWANK. Did any Congressman from that section of the country ever take up that bond question with you?

Mr. MERITT. I do not recall any Congressman taking the matter up. There might have been some correspondence.