office at Portland, Oregon, for the said unsold lands which are more particularly described in the schedule hereto attached.

The said sealed bids must be prepared, filed, received, opened, and acted on in accordance with the following rules and regulations:

First. Each bid must be made on a form similar to that attached hereto, which shall be furnished upon application to the register and receiver of the Portland, Oregon, land office, or the Commissioner of the General Land Office, and must be signed by the bidder, who shall be a citizen of the United States, and who shall therein give his post-office address.

Second. Each bid must be sealed in a separate envelope, which shall be addressed to the "Register and Receiver, United States Land Office, Portland, Oregon," and such said envelope must bear an indorsement across its face showing that it contains a bid for the ceded lands of the Grande Ronde Indian Reservation, and must not bear any indication of the amount of such bid or the description of the tract bid for.

Third. Each bid must be accompanied by a check, payable to the Secretary of the Interior, certified by the proper official of a national bank, for 20 per cent of the amount of such bid, which check must be, by the bidder, placed in the envelope containing the bid before its sealing and delivery to the register and receiver.

Fourth. No bid will be considered that is received by such register and receiver before 9 a. m. on Tuesday, the 3d day of October, 1905, or after 11 o'clock a. m. on Tuesday, the 10th day of October, 1905.

Fifth. Bids will be received for the lands as they are arranged on the attached schedule, the arrangement showing the lands in tracts of full sections where possible. This arrangement has been varied only where the full section in compact form is not found, and in some cases it will be noted that less than 640 acres may be bid for. No bid will be considered describing the tract bid for otherwise than as it appears on the schedule, or which undertakes to cover and describe parts of several tracts.

Sixth. Each bidder may present bids for any number of tracts, but with each bid must make and transmit the deposit above required. Seventh. No bid will be accepted for said lands which shall be at a less rate than $1.25 per acre for the land embraced in such bid. Eighth. The bids will be opened by the register and receiver at their said office in the presence of such bidders who may care to attend, on Tuesday, the 10th day of October, 1905, at 1 p. m., and the register and receiver will indorse on each bid the name of the bidder, the amount of the bid, and the amount of the deposit, immediately as the bids are opened.

Ninth. The register and receiver will then transmit the several bids with the certified checks to the Commissioner of the General Land

Office, with their recommendations for acceptance or nonacceptance, in each case, and the Commissioner will in turn transmit the said bids to the Secretary of the Interior with his recommendation in the premises.

Tenth. Notice of the award by the Secretary of the Interior upon said sealed bids will be given to each of the bidders by the Commissioner of the General Land Office through the ordinary mail to the address given in his bid. The names of the successful bidders will also be given to the press as a matter of news.

Eleventh. The balance due on all of the accepted bids, after crediting thereon the respective certified checks, will become due and must be paid to the register and receiver of the said local land office within thirty days from the date of the mailing of the notice by the Commissioner of the General Land Office, as aforesaid, and if not so paid, or if a successful bidder shall fail within said thirty days to submit proof of his citizenship to the said register and receiver, the amount deposited with such bid, as hereinbefore provided, will be forfeited to the United States, to be disposed of as other proceeds arising from said sale under said act, and the land will be thereafter reoffered under such rules and regulations as may be prescribed by the Secretary of the Interior.

Twelfth. The right is hereby reserved to reject any or all of said bids for said lands.

Upon the payment of the amount of their bids by the purchasers, as hereinbefore provided for, the register and receiver will issue the ordinary cash certificates and receipts, modified by indorsements across the face thereof showing that same are issued for lands of Grande Ronde Indian Reservation under the act of April 28, 1904 (33 Stat., 567), which will be transmitted to this Office as a basis of patent. A duplicate receipt will be given to the purchaser by the receiver upon the full payment.

hereby bid and offer to pay. per acre for the following-described lands, of the Grande Ronde Indian Reservation, Oregon :

for

dollars, the same

I herewith inclose certified check of being 20 per cent. of the total amount of this bid for the above-described land, the same to be retained and credited as part payment of the purchase price should this bid be accepted, or retained by the United States as a forfeit on my part if this bid is accepted and I should fail within thirty days from the mailing of the notice by the Commissioner of the General Land Office of its acceptance to furnish evidence of my citizenship and to pay the register and receiver at the Oregon City, Oregon, land office the balance due on this bid.

FOREST RESERVE-RELINQUISHMENT-SETTLEMENT,ACT OF JUNE 4,

1897.

GEORGE AUSTIN.

A deed of relinquishment, executed under the exchange provisions of the act of June 4, 1897, for land within a forest reserve, does not operate to vest title in the United States until the title tendered has been examined and accepted; and, until such time, no action should be taken or permitted by the government looking to the disposal of the relinquished land, or which would in any wise impair or cloud the relinquisher's right or claim of title. An application to enter land embraced in a relinquishment executed under the exchange provisions of the act of June 4, 1897, presented prior to examination and final acceptance or rejection of the title tendered, will be rejected, and not merely suspended pending such examination and final action. The right of a settler residing upon land excluded from a forest reserve, but embraced in a relinquishment executed under the exchange provisions of the act of June 4, 1897, while the lands were within the reserve, attaches at the instant the land becomes subject to private appropriation, by acceptance of the title tendered and consummation of the exchange under the act, and, if duly asserted, will prevail as against an application to enter not based upon rights acquired by settlement and residence.

Secretary Hitchcock to the Commissioner of the General Land Office, (S. V. P.) May 31, 1905.

(J. R. W.)

George Austin appealed from your decision of February 14, 1905, rejecting his application for homestead entry for lot 4, Sec. 2, and lots 1, 2, and 3, Sec. 3, T. 30 N., R. 14 W., W. M., Seattle, Washington.

July 26, 1899, patent for this land issued to Isaac C. McMunn. It was then in the Olympic forest reserve, created by executive proclamation of February 22, 1897 (29 Stat., 901), and was excluded therefrom by proclamation of April 7, 1900 (31 Stat., 1962). While so included, November 29, 1899, it was relinquished to the United States by Peavey, and made the basis of a selection of lieu land at Seattle, Washington, under the act of June 4, 1897 (30 Stat., 36). The selec

tion was yet pending, January 4, 1904, when Austin filed his application for homestead entry. The local office rejected the application because the land was "embraced in the patented and uncanceled entry of Isaac C. McMunn." On Austin's appeal your office affirmed the rejection upon authority of Maybury . Hazletine (32 L. D., 41). It is learned from the records of your office that Peavey's relinquishment of the land was accepted and his selection approved October 21, 1904, and homestead entry of the land by Stella B. Myers was allowed, October 29, 1904.

The appeal contends, (1) that a deed of relinquishment of land under the act of June 4, 1897, supra, operates immediately to revest title in the United States, without regard to any selection being made in lieu thereof; that title of the United States thereto nowise depends upon the legality or approval of a selection, and that upon exclusion of the land from the forest reserve April 7, 1900, it became public land subject to private appropriation and entry; (2) that if acceptance was necessary to revest title in the United States, Austin's application should have been suspended, and on acceptance of the selection should have been allowed; (3) that it was error to allow Myers's entry without notice to Austin, who states in his appeal that he was then living on and cultivating the land, and has been so doing continuously since his application.

The first contention can not be sustained. Relinquishment of lands and selection of others in lieu thereof under the act of June 4, 1897, is essentially a contract of exchange. The relinquisher proposes to vest in the United States title and to select an equal area. The court held in Cosmos Exploration Company v. Gray Eagle Oil Company (190 U. S., 301, 312, 313), that the relinquisher's acts by filing of papers are but a representation that he has title, and that some decision upon the validity of that title must be made by some authorized officer before equitable title vests. Until such decision is made the title is sub judice. It may happen, and frequently has happened, that the title so tendered is upon examination found to be defective, encumbered, or even wholly bad and irremediable. In such case it is rejected, and the United States refuses to approve the selection or to give title to public lands in exchange. Whether or not the title, if accepted, relates to the initiation of the transaction, the record of the relinquishment, it is clear that the doctrine of relation can not operate until it is found that the title tendered is good and ought to be accepted. The doctrine of relation is a fiction of the law for protection of rights and does not come into action until it is found that rights at such prior date did in fact exist, and it operates only to protection of the parties themselves and those in privity of estate. Gibson . Chouteau (13 Wall., 92, 101); Reynolds . Plymouth Co. (55 Ia., 90); Calder v. Keegan (30 Wis., 126); Hussman v. Durham

(165 U. S., 144, 148); Bear Lake Irrigation Project v. Garland (164 U. S., 1, 23). The United States refuses, and properly should refuse, to make any disposal of land relinquished under the act of June 4, 1897, pending examination of the title and its acceptance, or to do or authorize any act which can impair or cloud the relinquisher's right or claim of title. Maybury . Hazletine (32 L. D., 41).

This case, cited as basis for your decision, does not sustain it, in that Austin claims he was a settler upon the land at the time that Peavey's selection was approved and Myers's entry was allowed. In that case it was observed that—

He [Maybury] does not allege that at the time of the approval of Ayers's selection he was in actual occupancy of the land, or that he followed up his settlement by establishing residence upon the land or gained or maintained an actual occupancy of it.

At a later stage of the case this was found to be an error of fact arising from the misplacing of Maybury's affidavit alleging actual residence. On discovery of such error the adjudication of rights between Maybury and Hazletine was vacated, October 31, 1903, and a hearing was ordered, and ultimately Maybury prevailed, established the allegation, and was awarded the right to make entry (unreported). It is a rule long recognized by the land department that though one can not acquire rights by application for entry or settlement upon land segregated under a former entry or in reservation, yet, if he is residing on the land, his right attaches at the instant that the land becomes subject to private appropriation, and will prevail if duly asserted. Londgren v. Rudellat (27 L. D., 594); McDade v. Hively (27 L. D., 186); Dowman v. Moss (19 L. D., 526; 176 U. S., 413, 421). Nor was it due Austin that his application should have been suspended. It is well settled that an application for lands, withdrawn from entry or segregated under a former application or entry, yet sub judice, gives no right. By a withdrawal or a former application or entry the land is segregated from the public lands subject to disposal, and is thereby removed from the class of lands subject to appropriation. An application for entry of such lands therefore gives no right to the applicant. The principle underlying many decisions to this effect applies with equal, if not greater, force to lands patented and afterward relinquished to the United States. By the patent the land passed entirely out of the jurisdiction of the land department. Before the land department can assume jurisdiction over it, the relinquishment must be passed upon. If it was made by one not the owner, by a mere stranger to the title, no right accrued to the United States thereby, and the land department acquires no jurisdiction. It is only an unincumbered and complete title that Congress has authorized to be accepted as basis for an exchange. If the title is incumbered, it must be rejected, and no jurisdiction of the