2. The right granted is not in the nature of a grant of lands, but is a base or qualified fee, giving the possession and right of use of the land for the purposes contemplated by the act, during the period of the beneficial use. When the use ceases, the right terminates, and thereupon proper steps will be taken to revoke the grant.

No right whatever is given to take from any part of the reservation any material, earth, or stone for construction or other purposes, nor does it give any right to use any land outside of what is actually necessary for the construction and maintenance of the works.

3. Applications for right of way under this act should be made in the form of a map and field notes, in duplicate, and must be filed in the local land office for the district in which the land traversed by the right of way is situate; if in more than one district, duplicate maps and field notes need be filed in only one district and single sets in the others. The maps, field notes, evidence of water rights, etc., and, when the applicant is a corporation, the articles of incorporation and proofs of organization, must be prepared and filed in accordance with the then existing regulations, under the general right of way act (for present regulations see paragraphs 4 to 23, inclusive, circular of June 26, 1902), appropriate changes being made in the prescribed forms so as to specify and relate to the act under which the application is made. 4. An affidavit that the applicant is a citizen of the United States must accompany the application, and if the applicant is an association. of citizens, each must make affidavit of citizenship, and a complete list of the members thereof must be given in an affidavit of one of them. A copy of their articles of association must also be furnished, or if there be none, the fact must be stated over the signature of each member of the association.

If the applicant is not a native-born citizen, he must file the usual proof of naturalization. The applicant must set forth in the affidavit the purposes for which the right of way is desired.

5. When application is made for right of way for water plants, the location and extent of ground proposed to be occupied by buildings, or other structures necessary to be used in connection therewith, must be clearly designated on the map and described in the field notes anʼl forms by reference to course and distance from a corner of the public survey. In addition to being shown in connection with the main drawing, the buildings or other structures must be platted on the map in a separate drawing on a scale sufficiently large to show clearly their dimensions and relative positions. When two or more of such structures are to be located near each other, it will be sufficient to give the reference to a corner of the public survey for one of them, provided all others are connected therewith by course and distance shown on the map.

The applicant must also file an affidavit setting forth the dimensions

and proposed use of each of the structures and must show definitely that each is necessary to a proper enjoyment of the right of way granted by the act.

6. The applicant must file with each application under this act a stipulation, under seal, incorporating the conditions set forth in paragraph 3 of the circular of June 26, 1902 (subdivisions 1, 2, 3, and 4).

The applicant will also be required to give bond to the Government of the United States, to be approved by the Commissioner of the General Land Office, such bond stipulating that the makers thereof will pay to the United States " for any and all damage to the public lands, timber, natural curiosities, or other public property on such reservation, or upon the lands of the United States, by reason of such use and occupation of the reserve, regardless of the cause or circumstances under which such damage may occur." A bond furnished by any surety company that has complied with the provisions of the act of August 13, 1894 (28 Stat., 279), will be accepted, and must run in the terms of the stipulation above quoted. The amount of the bond can not be fixed until the application has been submitted to the General Land Office, when a form of the bond will be furnished and the amount fixed.

No construction can be allowed on the reservation until an application for right of way has been regularly filed in accordance herewith and has been approved by the Department, or has been considered and permission specifically given by the Secretary of the Interior.

7. Upon the filing of an application under this act, the register will note the same in pencil on the tract books, opposite the tracts traversed, giving date of filing and name of applicant, and also indorse on each map the name of the land office and the date of the filing over his written signature.

If it does not appear that some portion of the public lands in reserve would be affected by the approval of such maps, they will be returned to the applicant with notice of that fact. If unpatented lands are affected by the proposed right of way, the register will so certify on the map and duplicate, over his signature, and will promptly transmit the same to the General Land Office; with report that the required notations have been made.

8. Upon the approval of a map of location by the Secretary of the Interior, the duplicate copy will be sent to the local officers, who will mark upon the township plats the lines of the right of way as laid down on the map. They will also note the approval in ink on the tract books, opposite each legal subdivision affected, with a reference to the act mentioned on the map.

Approved, March 1, 1905:

W. A. RICHARDS, Commissioner.

E. A. HITCHCOCK, Secretary.

JOHN S. MAGINNIS.

Motion for review of departmental decision of November 10, 1901, 33 L. D., 306, denied by Secretary Hitchcock, March 3, 1905.

SCHOOL LAND-INDIAN OCCUPANT-SEC. 4, ACT OF FEBRUARY 8, 1887, AND SEC. 10, ACT OF FEBRUARY 22, 1889.

SCHUMACHER . STATE OF WASHINGTON.

Lands in a section sixteen or thirty-six in the State of Washington which at the date of survey were in the possession and occupation of an Indian living apart from his tribe, and improved by him, and for which application for allotment has been made by the Indian occupant under the provisions of section four of the act of February 8, 1887, are "otherwise disposed of by of under the authority of an act of Congress," within the meaning of that term as employed in section ten of the act of February 22, 1889, making a grant to the State of sections sixteen and thirty-six in each township in support of common schools, and are therefore excepted from the grant. Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) March 7, 1905.

(F. W. C.)

With letter of October 9, 1903, the register at Seattle, Washington.. forwarded an application, filed in his office on August 26, 1903, by George A. Keepers, special Indian allotting agent, in behalf of James Schumacher, as the head of a family, for an allotment of lot 2, Sec. 16, T. 35 N., R. 6 E., W. M., under the provisions of section 4 of the act of February 8, 1887 (24 Stat., 388), which section provides:

That where any Indian not residing upon a reservation, or for whose tribe no reservation has been provided by treaty, act of Congress, or executive order. shall make settlement upon any surveyed or unsurveyed lands of the United States not otherwise appropriated, he or she shall be entitled, upon application to the local land-office for the district in which the lands are located, to have the same allotted to him or her, and to his or her children, in quantities and manner as provided in this act for Indians residing upon reservations; and when such settlement is made upon unsurveyed lands, the grant to such Indians shall be adjusted upon the survey of the lands so as to conform thereto; and patents shall be issued to them for such lands in the manner and with the restrictions as herein provided. And the fees to which the officers of such local land-office would have been entitled had such lands been entered under the general laws for the disposition of the public lands shall be paid to them from any moneys in the Treasury of the United States not otherwise appropriated, upon a statement of an account in their behalf for such fees by the Commissioner of the General Land Office, and a certification of such account to the Secretary of the Treasury by the Secretary of the Interior.

As the tract applied for is a portion of section 16 granted to the State for the support of common schools under and by virtue of the act of Congress approved February 22, 1889 (25 Stat., 676), the State

was advised thereof, and in response to said notice objected to the allowance of the application for the reasons: first, that the grant of February 22, 1889, being in prosenti, and as the land in question was a part of section numbered sixteen, it having been previously identified by the lines of the public survey, it became, upon the passage of said act, segregated from the public domain and was not thereafter open to settlement, preemption, homestead, Indian allotment, or any other entry, under the land laws of the United States; second, that on January 5, 1892, upon application duly presented therefor, the State, after due and legal notice of publication, sold the lot in question to one B. D. Minkler, and upon said day a contract of sale was entered into which is still in force and effect and binds the State of Washington to make to said Minkler the title to said property; and third, that James Schumacher, the applicant for allotment, never made a bona fide residence upon said land prior to the survey thereof in the field or prior to the filing of the plat of survey of said township, and never has complied with the laws of the United States as to settlement, cultivation or improvement of public lands, and has never complied with the laws of the United States relating to the allotment of lands to Indians.

Following the filing of said protest. your office, by decision of March 31, 1904, rejected the application for allotment, upon the ground that the title to the land had become, vested in the State of Washington prior to the filing of said application; from which decision an appeal has been taken to this Department.

It might first be noted that it does not appear from the record now before the Department that any notice was given the Indian office of the protest by the State or of your office decision denying the application for allotment.

The plat of survey of the township in question was filed in the local office April 15, 1880. In his application for allotment Schumacher alleged that he was the head of a family, over sixty years of age, and that he had made his home upon this land all his lifetime, and that his father and mother both resided upon this land until their death; that he is an Indian of the Skagit tribe and that no reservation has been provided for said tribe by treaty, act of Congress, or executive order, and that his application was made for actual bona fide settlement of the lands described for the exclusive use and benefit of himself and family.

In support of his appeal affidavits are filed to the effect that Schumacher has resided upon this land many years and made improvements thereon of a reasonable value of $500; that he was in ignorance of the methods of acquiring title thereto but believed that he was fully protected by his occupancy and improvement thereof, which

had never been questioned until the year prior to the filing of his application, when persons claiming to represent the owners of the land took possession of his orchard and gathered and used the fruit grown upon the land.

This Department has uniformly respected the occupancy of Indians upon the public lands living apart from their tribes and has, by cir cular, directed the register and receiver of the several land offices to peremptorily refuse all entries or filings attempted to be made by others than the Indian occupants upon lands in the possession of Indians who have made improvements of any value whatever thereon (see circular of May 31, 1884, 3 L. D., 371; reissued October 26, 1887, 6 L. D., 341), and has held that such lands are not unappropriated lands within the meaning of section 2289 of the Revised Statutes and are therefore not subject to homestead entry. See Ma-gee-see c. Johnson (30 L. D., 125).

This continued practice would seem to amount to an appropriation or dedication of such lands, and when considered in connection with the provisions of section 4 of the act of February 8, 1887, hereinbefore quoted, and under which the application for allotment in question is made, lands so occupied and applied for would seem to have been "otherwise disposed of by or under the authority of an act of Congress," within the meaning of those terms as employed in section 10 of the act of February 22, 1889, supra, making the grant to the State of Washington in support of common schools.

If it can be shown, therefore, at a hearing, that the land in question has been occupied and improved, as alleged by Schumacher. it would seem to have been excepted from the operation of the grant to the State. It is true that the Indian did not give notice of his intention to apply for an allotment of this land until after the State had made disposal thereof, but the purchaser at such sale was bound to take notice of the actual possession of the land by the Indian if, as alleged, he was openly and notoriously in possession thereof at and prior to the alleged sale, and that the act did not limit the time within which application for an allotment should be made.

Assuming that the land was not within the exception contained in section 10 of the granting act above quoted, it is nevertheless a fact worthy of consideration that by the act of February 28, 1891 (26) Stat.. 796), amending sections 2275 and 2276 of the Revised Statutes. it is provided that

Where settlements with a view to pre-emption or homestead have been, or shall hereafter be made, before the survey of lands in the field, which are found to have been made on sections sixteen and thirty-six, those sections shall be subject to the claims of such settlers; and if such sections, or either of them. have been or shall be granted, reserved or pledged for the use of schools or colleges in the State or Territory in which they lie, other lands of equal