Section 2372, Revised Statutes, reads as follows:

In all cases of an entry hereafter made, of a tract of land not intended to be entered, by a mistake of the true numbers of the tract intended to be entered, where the tract, thus erroneously entered, does not, in quantity, exceed one half-section, and where the certificate of the original purchaser has not been assigned, or his right in any way transferred, the purchaser, or, in case of his death, the legal representatives, not being assignees or transferees, may, in any case coming within the provisions of this section, file his own affidavit, with such additional evidence as can be procured, showing the mistake of the numbers of the tract intended to be entered, and that every reasonable precaution and exertion had been used to avoid the error, with the register and receiver of the land-district within which such tract of land is situated, who shall transmit the evidence submitted to them in each case, together with their written opinion, both as to the existence of the mistake and the credibility of each person testifying thereto, to the Commissioner of the General Land Office, who, if he be entirely satisfied that the mistake has been made, and that every reasonable precaution and exertion had been made to avoid it, is authorized to change the entry, and transfer the payment from the tract erroneously entered, to that intended to be entered, if unsold; but, if sold, to any other tract liable to entry; but the oath of the person interested shall in no case be deemed sufficient, in the absence of other corroborating testimony, to authorize any such change of entry; nor shall anything herein contained affect the right of third persons.

Though it is seen that the section is expressly applicable to assignable entries yet it was evidently intended that it should not apply to any entry except where the legal or equitable right had passed from the government and vested in the entryman and where he had a right to assign and transfer whatever right, title and interest he had in the land. The words "when the certificate of the original purchaser has not been assigned” and “shall be authorized to change the entry and transfer the payment," can have reference only to entries where the final certificate had issued. Hence the recognition of the right of assignment in the desert land act does not constitute an exception to the prohibition against amendments by assignees as declared by said section 2372, but the section is applicable to that class of entries, as it is to all other entries, only after the legal and equitable title has passed from the government. The assignable character of the entry does not take it out of the operation of the section.

Many reasons may be suggested why Congress was prompted to limit the operation of the act to the entryman and to exclude from its provisions assignees or transferees. The increased risk and difficulty in securing from a transferee a title free from incumbrance, especially where it has been derived through mesne conveyances might be suggested as a very potent reason. It is sufficient however that the prohibition, in language free from ambiguity and doubt, is contained in the act which furnishes the chart for the guidance of the land department in allowing a change of entry in cases where the legal or equitable title has passed out of the government. As to such entries the

Executive Department is controlled by the terms of the act, which cannot be varied except so far as authorized therein.

This view controlled the decision of the Department in the case of Phidelah A. Rice, supra, in which no principle was announced in conflict with the views herein expressed. In that case the application to amend was presented by Rice, a transferee through mesne conveyance, from a preemption entryman to whom a patent had issued. Notwithstanding the strong equities presented by the application, it was denied because it came clearly within the prohibition declared by the section against the right of amendments by assignees, which restrains the exercise of supervisory power by the Secretary in the premises. While it was stated in said decision that the Department has, by regulation and by judicial action, extended its [Sec. 2372] application to all classes of entries," and the case of Christoph Nitschka (7 L. D., 155) and the General Circular are cited as authority for that statement, inasmuch as that case came within the terms of the statute, it must be considered as having been made with reference to entries where the legal or equitable title has passed from the government, as to which power and authority of the land department to allow a change of entry is controlled by the terms of the act.

But it was not intended that the provisions of section 2372 should control or restrain the Secretary of the Interior in the exercise of that power of supervision in the administration of the public land laws conferred upon him by the organic law under authority of which he may, before any legal or equitable right has vested, allow amendments and changes of entries, under such rules and regulations as he may prescribe or upon the merits of a particular case, where it will not impair the rights of others or violate any provisions of law.

In Crail Wiley's case (3 L. D., 429, 430) the Secretary said

I do not deem it advisable to deny by arbitrary rules the right of settlers to apply voluntarily for such amendment as will enable them to secure the right to their homes, where clerical mistakes or conflicting claims have been made to their prejudice. It is the duty of this Department to aid rather than obstruct the prosecution of settlement rights, and all cases should be fairly heard and adjudged upon their merits, without the restriction of technical regulations.

In that case and in other cases through a long line of decisions previously rendered, amendments of entries where final certificate had not issued were allowed by the Secretary, not upon any express statutory authority as to the particular class of cases but in virtue of the inherent power and authority vested in him under section 441, Revised Statutes, which charges him with supervision in the disposal of the public lands. This will be seen by an examination of the long list of cases cited in the case of Christoph Nitschka (7 L. D., 155), in which it is stated that those cases and other cases that might be cited show

that no particular method of procedure was required of applicants for amendment, but each case was decided on its merits as presented, independently of any specified rule as to the form or character of the evidence. "Ordinarily, if no adverse claim appeared, the evidence consisted of the affidavit of the applicant, corroborated by two or more affiants." That practice continued until October 25, 1884, when a circular was approved, prescribing rules and regulations to be observed in applications for amendments, but after being in force for about four months was revoked by the decision in the case of Craig Wiley, above cited, and the former rule of determining each case according to its merits seems to have prevailed, with very few, if any, exceptions, until the decision in the case of Christoph Nitschka, in which the opinion was expressed that a rule similar to that contained in section 2372. Revised Statutes, requiring the written opinion of the register and receiver as to the existence of the mistake and the credibility of the persons testifying thereto, may properly be applied in all classes of entries to which said section is not made applicable.

A rule was accordingly formulated to govern in all cases of applications to amend which are not specifically provided for by section 2372, which requires certain affidavits to be filed with the local officers, who are required to transmit the same with their joint report as to the existence of the error and the credibility of the witnesses in the same manner as provided by section 2372.

It was not decided in that case that the power of the Secretary in granting amendments was conferred solely by section 2372 or that his power and authority in that respect was limited otherwise than as expressed in that section. He merely adopted the provisions of that section as to the character and extent of evidence required and the manner of presenting it, a safe rule to govern in all cases. He said:

While the statute [2372, Revised Statutes] does not specifically apply to and oper ate upon timber culture entries, the reasons thereof may be appropriately applied to such cases, and the Department may therefore properly make a rule containing a requirement relative to applications to amend timber culture or homestead claims similar to that contained in said section 2372 of the Revised Statutes.

There is no utterance of the Department in any of the decisions referred to in your letter that prohibits amendments by assignees under the supervisory authority of the Secretary when the right of assignment is recognized, provided the legal or equitable title still remains in the government, and no reason appears why your office should not allow amendments in such cases if a proper case is made.

ROSEBUD CEDED LANDS-DISPOSITION AFTER EXPIRATION OF “SIXTY DAYS' PERIOD.”

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., September 19, 1904.

Register and Receiver, Chamberlain, South Dakota.

GENTLEMEN: By the act of Congress approved April 23, 1904 (33 Stat., 254), it was provided that the ceded lands of the Sioux Indians within the Rosebud Indian Reservation—

shall be opened to settlement and entry by proclamation of the President, which proclamation shall prescribe the manner in which these lands shall be settled upon, occupied, and entered by persons entitled to make entry thereof; and no person shall be permitted to settle upon, occupy, or enter any of said lands, except as prescribed in such proclamation, until after the expiration of sixty days from the time when the same are opened to settlement and entry,

and by the proclamation of the President, dated May 13, 1904, after providing for the manner in which these lands might be settled upon, occupied, or entered during the sixty-day period, it was further provided: After the expiration of said period of sixty days, but not before . . . . any of said lands remaining undisposed of may be settled upon, occupied, and entered under the general provisions of the homestead and town site laws of the United States, in like manner as if the manner of effecting such settlement, occupancy, and entry had not been prescribed herein in obedience to law.

According to said proclamation this period of sixty days began on August 8, 1904, and, as a consequence, will expire at midnight of October 6, 1904. Thereafter all lands which have not been entered on the plan provided for in said proclamation may be settled upon, occupied, and entered under the general provisions of the homestead and town site laws of the United States.

While these lands will become subject to settlement immediately after midnight of the 6th of the month, it will not be possible to make entry thereof until the opening of your office on the morning of the 7th of October next.

It

may be, and possibly will occur, that on the opening of the office on October 7, next, a number of persons will have assembled at your office seeking to make entry for the remaining and undisposed of land, and the duty will devolve on you to make and enforce such rules and regulations as may be necessary to secure a fair and orderly course of proceedings on the part of all concerned.

The transmission of applications by mail is permissible, but it was not intended to confer upon such applicants a superior right.

You will, therefore, upon opening your office, note the number of

persons in line, and give the filings you may have received by mail the next numbers, to be taken up and acted upon when reached to the exclusion of those who may in the meantime have formed in the line.

Such of the persons present who may be acting as agents of exsoldiers under section 2309, R. S., will be allowed to make one entry in his individual character, and to file one declaratory statement as agent, if properly authorized, and if desiring to make other filings you will require him to take his place at the end of the line and await his proper turn before doing so, and he will be allowed to file but one declaratory statement at a time.

After the disposition of applications presented by persons present at 9 o'clock a. m., which should be proceeded with at once, all other applications presented will be disposed of in the usual way, the time of actual presentation being duly noted on the application.

You are expected to act promptly under the lawful instructions before you as occasions arise, allowing any parties feeling aggrieved by your action, the right of appeal, under the Rules of Practice, without seeking special instructions from this office in the particular cases before acting thereon.

You will, however, bear in mind that until the expiration of three months from the date of opening, or until the closing of the office for business on November 7, 1904, parties making entries will be required to pay at the rate of $4 per acre in the manner and at the time required by said act; thereafter and until the closing of the office on February 7, 1905, you will require payment in like manner at the rate of $3 per acre, except as to the tracts which may have been entered or filed upon within said three-month period and subsequently relinquished, for which tracts the entryman will be required to pay the same amount as the person who made the first entry or filing; thereafter in all entries under the homestead laws you will require payment in like manner at the rate of $2.50 per acre, except on tracts which have previously been entered or tiled upon, for which tracts the amount to be paid will be that prevailing at the time said tract was first entered or filed upon.

Although the lands are to be disposed of under the general provisions of the homestead and town site laws after the expiration of the period of sixty days, you will continue to number the entries consecutively in the "Rosebud series."

Your attention is also called to the provision of the second section

of the act:

That in case any entryman fails to make such payment or any of them within the time stated, all rights in and to the land covered by his or her entry shall at once cease, and any payments theretofore made shall be forfeited and held for cancella tion and the same shall Le canceled.