It was contended in the Roberts and Burke cases that the provision for survey in section 6 of the granting act—

"That the President of the United States shall cause the lands to be surveyed for 40 miles in width on both sides of the entire line of said road. * * *"

means

that the entire width of the survey was to be but 40 miles. It is argued that the purpose of the survey was to fix both the primary and indemnity limits of the grant. But this is a fundamental error: Grants of this character almost invariably provide for survey of a strip equal to the primary or place limits; indemnity or lieu land can be obtained only when the Interior Department, in due course, surveys the indemnity area. It is true that as to States the Southern Pacific survey would cover the indemnity limits and more, but Congress evidently was governed by the thought that the maximum width surveyed should, upon economical considerations, extend through States as well as Territories. But perhaps the more effective answer to this contention is that if, as Mr. Hinkley contends, Congress meant that the place limits should be 20 and 10 miles, respectively (on each side of the line), instead of 40 and 20, the survey, were it intended to cover both place and indemnity limits along the entire line of road, could not by any possibility be 40 miles in width, for the indemnity limit is "not more than 10 miles beyond the limits of said alternate (primary) sections;" and if Mr. Hinkley's theory that through Territories the place limits are 20 miles on each side of the road be correct, the total limit, primary and indemnity, would be 30 miles from the line of road, which, of course, does not comport with a 40-mile survey.

The mineral indemnity land provision of the grant is next referred to. It is found in the third proviso to section 3, which is:

"Provided further, That all mineral lands be, and the same are hereby, excluded from the operation of this act, and in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands in odd-numbered sections nearest to the line of said road, and within twenty miles thereof, may be selected as above provided."

It is said that if the claim of the railroad company to 10 sections on each side of the road through States or place limits of 20 miles on each side be correct, the place limits would be 20 miles from the line of road, which would make those limits the same as the mineral indemnity limit. There are several answers to this position: First, if the theory that through Territories the company is entitled only to 10 sections on each side be correct, we are confronted with the same objection regarding the mineral indemnity limit which is urged against the company's position as to the primary limits in States, for upon that theory the Territory limits would also be 20 miles on each sidecoextensive with the mineral indemnity. Second: It is true that this mineral indemnity provision is somewhat peculiar, in that it throws the indemnity limits within the primary limits, and this anomaly is observed in 26 L. D. 452, wherein it was decided that a homestead entry which was within these indemnity limits and which had been canceled was open to selection as mineral indemnity by the company. I quote from the opinion of Secretary Bliss:

"Without discussing this peculiar provision of the act, the selections in question meet the terms thereof, and as they are free from other claim or right I have approved the list submitted, which is herewith returned as a basis for patent."

The railroad company, then, according to the terms of the statute, must obtain its mineral indemnity lands from the odd-numbered sections within 20 miles from the line of road which were entered by individuals prior to the time when the company's rights attached, but which have since been canceled or abandoned. Here again the statute is plain, and even though the indemnity grant can not be fully satisfied (which condition I learn has not yet arisen), it must be remembered that this has often been the case and that the grant to the railroad company was not one of quantity nor is there any implied guaranty that its greatest possibilities would ever be realized. (6 L. D. 84; Southern Pacific R. R. Co. v. United States, 183 U. S. 519; Southern Pacific Railroad Co. v. Bell, ibid. 675; Barney v. Winona, &c., R. R. Co., 117 U. S. 228; Sioux City, &c., 89760°-VOL 29-13-9

R. R. Co. v. United States, 159 U. S. 349.) To amplify the argument on this point it was contended that the indemnity limits were not intended to fall within the place limits, because homestead and other entries which attached prior to the filing of the map and which were afterwards abandoned or canceled can not be selected under the mineral indemnity provision. In support of this position there were cited Kansas Pacific Railway Co. v. Dunmeyer, 113 U. S. 629, and Bardon v. Northern Pacific Railroad Co., 145 U. S. 535. But those cases are to the effect that railroad grants which, as does the Southern Pacific grant, except from their operation lands "granted, sold, reserved, occupied by homestead settlers, or preempted, or otherwise disposed of" prior to the filing of the map, and which were afterwards canceled or abandoned, do not pass as a part of the primary grant upon such cancellation or abandonment, but are reserved from its operation for all time. There was no question of indemnity involved in either of those cases. Indeed, in the nature of things, no indemnity land can pass by the grant until it is selected. And, finally, the contention is wholly negatived by the decision of Secretary Bliss, supra.

The argument against the practical construction which has been given to this grant by your department probably had its origin in what must, in view of that construction, be taken to be a clerical error found in 6 L. D. 349, 351. Secretary Lamar, in the overlapping cases, used this language: "The Southern Pacific Company located its main line January 3, 1867, and by the terms of the grant its right immediately attached to every odd section of land, not of the character excepted by the grant, and within the 10-mile limit, subject, however, to be divested to the extent of a half interest in every such odd section that might fall within the common limits of both roads, after the filing of the map of definite location by the Atlantic and Pacific Company." (Italics are mine.)

And much importance seems to be attached to the fact that Mr. Justice Brewer, in the overlapping cases reported in 183 U.S. 519, 525, used a quotation from Secretary Lamar's opinion, supra, which included the language above quoted.

But the question now before me was not raised in those cases and never has been, so far as I can discover, except in the Roberts and Burke cases, the opinion in which is silent as to the extent of the primary and indemnity limits of the grant.

It is lastly contended that all doubt must be resolved in favor of the grantor. But in view of what I have said, I see no room for the application of this principle.

I therefore advise you that the grantees under the act of July 27, 1866, are entitled to 20 odd-numbered sections per mile on each side of the line, or 40 sections per mile in all, through Territories, and 10 odd-numbered sections per mile on each side of the line, or 20 sections per mile in all, through States, extending laterally from the line

of road.

Very respectfully,

J. A. FOWLER,

Acting Attorney General.

THE SECRETARY OF THE INTERIOR.

INDIAN ALLOTMENT LANDS-ALIENATION.

Lands allotted to the Choctaw and Chickasaw Indians under the act of July 1, 1902 (32 Stat. 641), could not be conveyed prior to the act of April 26, 1906 (34 Stat. 137), by the full-blood heirs of said allottees within the period of inhibition named in the former act; and such attempted conveyances could not be validated by the approval of the Secretary of the Interior under the provisions of section 22 of the latter act, as that section is not retroactive.

DEPARTMENT OF JUSTICE,

June 7, 1911.

SIR: I am in receipt of your letter of April 28, 1911, requesting my opinion as to whether a conveyance executed by full-blood heirs of a full-blood Choctaw or Chickasaw allottee prior to April 26, 1906, is subject to the approval of the Secretary of the Interior under the provisions of section 22 of the act of April 26, 1906 (34 Stat. 137), and, if not, whether valid title passes without such approval. You say further:

"In your opinion dated August 17, 1909, construing section 9 of the act of Congress approved May 27, 1908

(35 Stat. 312), you held that its provisions were not retroactive and that all conveyances by full-blood Indian heirs of a deceased allottee who died prior to May 27, 1908, must, in order to pass a valid title thereto, be approved by the Secretary of the Interior.

"The point upon which your opinion is requested is whether the similar provision of section 22 of the act of Congress approved April 26, 1906 (34 Stat. 137), can be construed to apply to conveyances executed prior to April 26, 1906, and whether such conveyances so executed must receive the approval of the Secretary of the Interior before a valid title to the land passes by such conveyances."

From the papers accompanying your letter, it appears that a patent to the surplus lands of Lucy Cole, a fullblood Choctaw Indian, was approved by the Secretary of the Interior October 27, 1905, a few days prior to her death, which occurred November 1, 1905, and that a deed executed by her heirs purporting to convey her surplus lands is dated April 11, 1906, 15 days before the approval of the act of April 26, 1906. This deed is before you for approval and a question of law arising in the administration of your department is therefore presented.

The Choctaw and Chickasaw Nations held their lands by grant from the United States. Their title is defined by the treaty of June 22, 1855 (11 Stat. 611), as follows:

"And pursuant to an act of Congress approved May 28, 1830, the United States do hereby forever secure and guarantee the lands embraced within the said limits, to the members of the Choctaw and Chickasaw tribes, their heirs and successors, to be held in common; so that each and every member of either tribe shall have an equal, undivided interest in the whole: Provided, however, No part thereof shall ever be sold without the consent of both tribes; and that said land shall revert to the United States if said Indians and their heirs become extinct, or abandon the same.” Under section 2116, Revised Statutes United States, these lands were inalienable without the consent of the United States; Johnson v. McIntosh, 8 Wheat. 543; Jones v. Meehan, 175 U. S. 1.