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by the fractional shape of the townships, or much reduced in area by the intervention of small lakes or navigable rivers, and no complaint has come from any

of them about such unavoidable deficiencies in many cases. The 7th section of the Act of March 3, 1853, provides, “ that where any settlement, by the erection of a dwelling-house, or the cultivation of any portion of the land, shall be made upon the sixteenth and thirty-sixth sections before the same shall be surveyed, or where such sections may be reserved for public uses, or taken by private claims, other land shall be selected by the proper authorities of the State in lieu thereof,” but it makes no provision for supplying deficiencies to the State, arising from the omission to survey mountainous regions, “unfit for cultivation, as said Act directs.

I have the honor to be, very respectfully, your obedient servant,
Hon. Jacob Thompson,

Thos. A. HENDRICKS,
Secretary of the Interior.

Commissioner.

No. 541. By the Act organizing Kansas, sections sixteen and thirty-six are not granted,

but are merely reserved by Congress for School purposes.

DEPARTMENT OF THE INTERIOR,

September 23, 1858. In your

letter of the 27th ultimo, transmitting the papers which accompanied the appeal taken by Major R. H. Weightman, from a decision rendered by you in the Pre-emption Case of Elisha Reno, from the Kickapoo, Kansas, Land Office; you state, that "the only point presented by the appeal is, did the 34th section of the Act of 30th May, 1854, (No. 239,) make an absolute grant in presenti, of the fee-simple title of sections sixteen and thirty-sixth to the Territory of Kansas, so as to invest the legislature thereof with power to dispose of the same."

I do not hesitate in deciding, that the construction given by you to the language of said 34th section, is correct. Sections sixteen and thirty-six, are not granted, dedicated, or disposed of, but are simply reserved by Congress for the purpose of being applied to schools. No trust was created by said Act unless Congress itself assumed it. That Congress did not intend to divest itself of all power over, and control of, said lands, is evident from the very terms employed. But if any doubt on this point could exist, it would be removed by the joint Resolution, approved 3d March, 1857, (No. 320) which provides, that where any settlements, &c., shall be made upon sections sixteen and thirty-six before the survey thereof, other sections shall be selected in lieu thereof.

This Resolution, is tantamount to a legislative declaration of the meaning, and will govern the construction of the former law. By it, Congress has not only claimed, but has exercised the power of disposing of said sections sixteen and thirty-six. This Department will not in any event, disregard a positive Act of Congress, until the same shall be pronounced null and void by a court of competent authority.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 542. A Settler on sections sixteen or thirty-six, in Minnesota, is not entitled to the right of Pre-emption, if his settlement was not made prior to the survey.

DEPARTMENT OF THE INTERIOR,

Washington, June 20, 1859. Sir:-The papers which accompanied your report of the 12th April last, in the appeal of N. P. Causin, Esq., attorney for E. S. Hanscome, from your decision of the 1st of that month, as contained in your letter of that date to Mr. Causin, are herewith returned. I concur in your conclusion adverse to the right of Hanscome.

After an examination of the laws relative to sections Nos. 36 and 16, in Minnesota, viz., Act 3d March, 1849, February 19, 1851, February 26, 1857, March 3, 1857, May 11, 1858, and February 26, 1859, it is clear to me that the State is entitled to all lands in the sections of those numbers, to which no valid pre-emption claim can be established under the joint Resolution of 3d March, 1857, (No. 320,) and the Act of February 20, 1859.

Hanscome not being a settler before survey, is not entitled to a preemption right in the land he claims, and so far as anything to the contrary now appears, the title of the State has become absolute, and he must look to the State laws for relief.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 543.
School sections in the Lake Pepin Reserve, Minnesota, are not subject to

Pre-emption Settlement after survey.
A Half-breed settler or occupant may locate Scrip thereon.

DEPARTMENT OF THE INTERIOR,

Washington, July 18, 1859. Sir:- In the case of Jas. D. Hutchinson's appeal from your order, cancelling his pre-emption entry in a school section, within what is called the Sioux Half-breed Reserve, submitted with your report of the 20th ultimu I concur in the opinion expressed in said report, that sections sixteen and thirty-six, within said reserve, are not subject to pre-emption based on settlements made after the surveys, but are to be regarded as school lands.

The only class of cases in which such sections appear to be subject to location with scrip, are those in which the party to whom the scrip issued, was at the time of its delivery to him, a half-breed settler or occupant of the particular lands, and maintained possession thereof until the location of the scrip was effected.

In such cases, the actual possession by the Indian, under the treaty of 1830, and the law of 1854, (No. 243,) maintained until after the application of the land in satisfaction of his own scrip, may be regarded as such an appropriation of the land to private use, in accordance with law, as to exclude the reservation, or the grant for school purposes, from attaching to the particular tracts. Mr. Hutchinson's letter is now returned.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

TITLE VII.

Internal Improvement Selections.

No, 544.
Circular to Registers of United States land offices.

GENERAL LAND OFFICE,

February 21, 1846. Sir :-To simplify the mode of proceeding in making State selections under the 8th section of the Act of Congress, 4th September, 1841, (No. 48,) and to enable the States to close up this intricate business as soon as possible, I have deemed it expedient to adopt the following regulations:

1st. That if the State selects a tract of land which contains three hundred and twenty acres, the compact parcel required by law, and on examination by this Office it is ascertained that a portion of it is interfered with

The eighth section of the Act of 4th September; 1841, (No. 48,) granting lands to Lousiana and other States, did not vest the fee in those States. In a suit to try the legal title, one claiming such land under a patent from the United States, must prevail over one claiming under a patent from the State.--Foley v. Harrison, 15 How. 433 ; 20 Condensed Reports, 589.

Under the Act of Congress of August 3, 1846, (No. 110,) the Commissioner of the Land Office, the Secretary of the Treasury, (Interior) and the Attorney General, bad power to decide finally on claims of these parties, and their decision, and a patent issued in accordance therewith, were conclusive in a suit for the land.-Ib.

The States to which five hundred thousand acres of land were given for internal improvements, are not entitled to take any land to which pre-emption rights exist.“ (Opinion of Attorney-General, July 11, 1842, vol. 4, p. 71.)

The Des Moines Improvement.

Congress, in 1846, for the purpose of improving the navigation of the river Des Moines, " from its mouth to Raccoon Fork,granted to the Territory of Iowa alternate sections of land" in a strip five miles in width on each side of said river."

As construed by the Government at the time, and as accepted by the State of Iowa, this grant extended only to the Raccoon Fork.

Subsequently to this, the Secretary, for the time being, (Walker,) expressed an opinion that the grant extended up the river to its source; but went out of office the next day without this opinion having yet received execution.

The succeeding Secretary (Ewing,) entertained a different opinion, and refused to approve selections above the Fork.

Reference being made to the Attorney General, (Johnson,) be expressed an opinion that the grant extended to the source of the river ; but the Secretary did not act on that opinion.

Reference was then made to the succeeding Attorney General, (Crittenden,) who held that the grant did not extend above the Fork.

The Secretary (Stuart,) entertained, and officially expressed the same opinion, but without changing his opinion, and in his order, expressly saying it was unchanged, he ordered selections to be allowed above the Fork, up to the north boundary of the State.

On question of the duty of the present Secretary (M. Clelland,) in these circumstances, it is held:

1. The true construction of the act, and its intention, were to grant lands from the mouth of the river Des Moines to the Raccoon Fork, and no further.

by a valid claim, the residue will be approved, notwithstanding it may contain less than three hundred and twenty acres after the rejection of the part interfered with, because, in the first instance, the law was complied with.

2d. If the State selects a tract of land covered at the time by the declaratory statement of a pre-emption, that fact does not invalidate the selection, if, at the expiration of the time allowed by law, the pre-emption claimant fails to establish his claim.

3d. When selections reported to this Office are found to conflict with the declaratory statements of pre-emptions, the approval of the selections thus covered by such statements will be suspended to await the result of the pre-emption claims, which if not established at the expiration of the period allowed by law, the selections of the State will then be approved ; and this regulation will apply to all cases of selections heretofore made which have not already been finally disposed of by the Secretary of the Treasury.

I am, very respectfully,

Your obedient servant,
Jas. SHIELDS, Commissioner.

No. 545.
State Selections. Circular to the United States Registers.

GENERAL LAND OFFICE,

August 6, 1847. Sir :-Herewith

you will receive a copy of the 8th section of the Act of 4th September, 1841, (see No. 48,) entitled “An act to appropriate the proceeds of the sales of the public lands, and to grant pre-emption rights.”

In order to facilitate the business of State selections under this act, I have to draw your attention to the following: Ist. The whole area to which the State of

is entitled under this law, is

2d. The act requires the selections to be “in parcels conformably to sectional divisions and subdivisions of not less than three hundred and twenty acres in any one location,” &c.

Under this requirement, a selection may include a whole section or a fractional section, or an island containing three hundred and twenty

acres.

2. Even if, by construction heretofore, the grant be extended above the Fork, it cannot pass beyond the limits of the State of Iowa into Minnesota.

3. The opinion expressed by Secretary Walker, being opinion only, did not conclude any of his successors or bind the Government.

4. The action of Secretary Stuart cannot be reversed by his successor in so far as regards selections made and approved by him, but is not obligatory any further on himself or his successors.

5. The opinion of the Attorney General for the time being, is in terms advisory to the Secretary who calls for it; but it is obligatory as the law of the case, unless, on appeal by such Secretary to the common superior of himself and the Attorney General, namely, the President of the United States, it be by the latter overruled.

6. In the present stale of this question, the actual Secretary is free to elect either to act on the opinion of Secretary Walker, as construed by Secretary Stuart, and approve up to the north boundary of the State, and no higher, or to return to the true and original construction of the act, refusing to allow further selections above the Raccoon Fork.

7. But the Secretary cannot lawfully acquiesce in and abide by the rule of action of Secretary Stuart, unless that rule he also accepted by the State of Iowa ; it no anore binds one than the other; and, unless the State relinquish all claim to land above its north boundary, the Secretary is bound to refuse to permit selections above the Raccoon Fork.(Upinion of Attorney-General, May 29, 1856 ; vol. 7, p. 691.)

more or less; provided the State, where the quantity is less than the prescribed number of acres, will agree to accept the same for and in lieu of a tract containing the full quantity of three hundred and twenty acres but not otherwise.

Or it may embrace the east, west, north, or south half of a section, or two adjoining quarters of different sections, or any number even of the smallest legal subdivisions of different sections; provided the tracts selected adjoin each other, and form compact parcels, containing together not less than three hundred and twenty acres.

3d. The selections must be based upon the official township plats of the public surveys, which are required to be approved by the Surveyor-General, and on file in the local land office at the time of filing the selection.

4th. The law allows selections to be made upon public lands, whether offered or unoffered. But no State selection is admissible upon any land to which a pre-emption or other valid claim shall be legally established, nor on any land which “is or may he reserved from sale by any law of Congress, or proclamation of the President of the United States,” nor upon any tract which is reserved or withdrawn from market for any purpose what

ever.

5th. The selecting agent of the State should file in your office, an authenticated copy of his letter of appointment, or other satisfactory evidence of his authority : and

It is important and necessary that he should make such careful and thorough preliminary examinations as will enable him to select lands to which there may exist no valid claim by pre-emption or otherwise ; and to avoid the embarrassments and delays consequent upon such conflicts, you will also examine the plats, records, and papers in your office, before the lists of lands so selected are filed, and see that such selections are in all respects free from such objections.

6th. If, notwithstanding such precaution, the State shall hereafter select lands which shall be found to be interfered with by any prior and better claim or claims, the selection to the whole extent of such, [claim or claims] will of course be null and void; and if such valid claim or claims shall only extend to a part of the selection, by the rejection of which the remaining portion or portions shall be reduced to one or more detached bodies below the quantity of three hundred and twenty acres, the part or parts not interfered with may, nevertheless, be confirmed, provided the State will accept each detached parcel which may thus be reduced to less than three hundred and twenty, as equivalent to, and in lieu of the full quantity of three hundred and twenty acres; otherwise such parts or parcels will be rejected on the ground of the land not forming the compact parcel required

by law.

7th. That the action of this Office may be uniform, it is hereby determined, from the date of this circular, that when selections are reported to this Office which are found to conflict with declaratory statements of pre-emptors, the approval of that part of the selection thus covered by such statement, together with such portion as may not be interfered with, but which would be less than three hundred and twenty acres, if the part covered by the declaration should be confirmed to the claimant, will be suspended to await the final result of the pre-emption claims, which, if not established at the expiration of the period allowed by law, the selection of the State will then be approved.

8th. Should a tract of land be selected by the State and rejected on the ground of not forming the compact parcel required by law, it is no bar to its being re-selected, provided other land not interfered with is selected in

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