appears to present a bona fide claim under the said act, the Chief of Field Service will be directed to appraise the land applied for, in accordance with section 4 of the above act.

4. Upon receipt of the report from the Field Service on the appraisal of the land, if it shall then be determined that the applicant is entitled to a preference right to purchase the land applied for, such applicant will be required to submit the purchase price of the land in accordance with section 5 of the act, and also to begin publication of notice of the application to purchase. Such notice shall be published at the expense of the applicant, once each week for a period of five consecutive weeks, in a newspaper designated by the Commissioner of this office and having a general circulation in the vicinity of the lands applied for. The purpose of said notice will be to afford all persons claiming the land adversely to the applicant, a reasonable opportunity to file their protests or objections to such purchase in the General Land Office. A copy of such notice will be posted in a conspicuous place in the General Land Office during. the entire period of publication. Upon the completion of the publication of notice, the publisher of the newspaper shall file in the General Land Office his affidavit as to publication, together with a copy of the notice as published.

Upon receipt of the purchase price of the land and proof of pub, lication of notice, and if no protest, contest or other objection appears, and the law and regulations have been fully complied with, final certificate will be issued and the claim will be approved for patenting.

Approved:

JOHN H. EDWARDS,

Assistant Secretary.

C. C. MOORE,

Commissioner.

STATUS UNDER THE RETIREMENT LAW OF SERVICE IN THE SCHOOLS OF THE FIVE CIVILIZED TRIBES

RETIREMENT

Opinion, December 9, 1932

SERVICE CREDIT-SCHOOLS OF THE FIVE CIVILIZED TRIBES. Service in the schools of the Five Civilized Tribes prior to the act of June 28, 1898, was not service performed for the United States, and service in those schools between that date and the date on which the act of April 26, 1906, which placed the control thereof under the Secretary of the Interior, became effective, is creditable under the civil service retirement act only where the appointment was made by that official or by his authority.

FINNEY, Solicitor:

My opinion has been requested as to whether service in the schools of the Choctaw and Chickasaw Nations, Indian Territory or Oklahoma, from the autumn of 1896 to the year 1905, would be creditable under the civil service retirement law. Also whether service in the schools of the Five Civilized Tribes following the act of April 26, 1906 (34 Stat. 140), would be creditable.

There would seem to be no doubt that such service would be creditable from March 5, 1906, under the act of April 26, 1906, supra, because that act expressly provided in part as follows:

That the Secretary of the Interior is hereby authorized and directed to assume control and direction of the schools in the Choctaw, Chickasaw, Cherokee, Creek, and Seminole tribes, with the lands and all school property pertaining thereto, March fifth, nineteen hundred and six, and to conduct such schools under rules and regulations to be prescribed by him, retaining tribal educational officers, subject to dismissal by the Secretary of the Interior, and the present system so far as practicable.

See instructions issued under that act, dated July 7, 1906, wherein it was provided that the superintendent of schools should nominate suitable persons for all authorized positions, subject to the approval of the Secretary.

Prior to the act of June 28, 1898 (30 Stat. 495), referred to as the Curtis Act, the educational affairs of the Five Civilized Tribes were conducted entirely by the tribal governments. It is therefore quite clear that any service as teacher in those schools prior to the date of that act, at least, would not be subject to credit as service performed for the United States. Between the dates of these two acts there appears to be a twilight zone where it is difficult to ascertain the facts as to the degree of authority exercised by the United States over said schools. Considerable search is indicated by the memoranda submitted, and I have pursued the inquiry still further in the preparation of this opinion. My conclusion from all of the information available is that there was not uniformity in respect to all of the schools in the matter of appointments of teachers.

In a memorandum prepared in the Indian Office it is stated: After passage of the Curtis Act the Department assumed supervision of the schools of the Five Civilized Tribes and expenditures were disbursed by a Government disbursing officer. It is, of course, understood that the salaries and school expenses were paid from the tribal funds both before and after the passage of the Curtis Act. It will be noted, however, that in the case of the applicant, the selection and appointment were made by the duly appointed tribal officials, and not by the Federal Government.

*

In the instructions of November 4, 1898, issued under the Curtis Act, no provision was made for the appointment of teachers in such schools by the Federal Government. For the purpose of proper supervision of the schools of any tribe or nation it was provided

that a supervisor of schools in the Indian Territory should be appointed by the Secretary of the Interior, whose duty it would be to "visit from time to time, examine into and supervise the conduct of schools of such tribe or nation and to report, etc." If any teacher was found incompetent or immoral or whose continuance in the service would for any reason be detrimental, the matter was to be reported to the Secretary for consideration and action.

In a report by the Superintendent of Schools for Indian Territory dated July 25, 1900, I find indications that the appointing power was exercised by Federal officials to some extent. He stated that early in the year 1899 the Secretary of the Interior ruled that as the Curtis Act provided for the gradual extinction of all tribal offices and of all of their governmental machinery, and in view of his responsibility in respect to the proper use and expenditure of the funds, that thereafter all appointments of employees in the schools maintained by the royalty fund should be made by him or under his direction; that acting under instructions, he attended a meeting of the Choctaw board of education and explained the ruling of the Secretary, to which no objection was then made, and for several months they did not question "our authority to make appointments"; that examinations were held "and about 100 of the best available teachers were put in charge of their schools on the first of September"; that in October, however, the Choctaw Council met and denied the right of the Secretary of the Interior to control the schools. I infer from the report of the Commissioner of Indian Affairs dated October 1, 1900 (pages 110, 112, 113), that control of the schools of the Chickasaw, Cherokee and Creek Nations was not taken over by the Department under the Curtis Act; that only supervisory direction was exercised by the Federal Government, leaving the appointment of teachers to the tribal authorities.

It will be seen that no general rule can be given for crediting such service between the dates of the two acts mentioned, except that the controlling question should be whether or not the appointment was made by the Secretary of the Interior or by his authority. If not so made the employee should be regarded as having been the employee of the particular tribe or nation with which the contract of employment was made.

More intensive research will probably have to be made to determine the facts in the case of John D. West. The above citations would indicate that such of his service as was rendered in the schools of the Choctaw Nation, or some part of it, may have been under appointment by Federal authority, and therefore subject to credit. Approved:

Jos. M. DIXON,

First Assistant Secretary.

STATE OF NEW MEXICO, ROBERT M. WILSON, LESSEE, v. ROBERT S. SHELTON AND JOHN T. WILLIAMS

Decided December 14, 1932

PUBLIC LANDS-HOMESTEAD ENTRY-POSSESSION UNDER CLAIM OF RIGHT, ETC. By a long-settled rule of the Land Department, homestead claimants are charged with knowledge that land in the actual possession and occupancy of one under claim of right or color of title is not subject to entry by another.

SCHOOL LAND-INDEMNITY SELECTION-ERRONEOUS CANCELLATION-MAINTENANCE: OF CLAIM BY SELECTOR-WHEN LACHES IMPUTABLE.

Where a State did not acquiesce in an erroneous decision of the Land Department resulting in the cancellation of a school-land selection, but, on the contrary, gave and continued to give notice to the world, by its actions, of its continued claim to the land, laches may not be imputed, even though a long period of time has elapsed following the erroneous cancellation of the selection and though there has been tardiness in seeking correction of the erroneous decision.

INDEMNITY SCHOOL-LAND SELECTION-ERRONEOUS WITHDRAWAL-CLAIMANT COMPLYING WITH REQUIREMENTS ACQUIRES EQUITABLE INTEREST.

Where a State, possessed of the right, files an indemnity school-land selection. for public land subject thereto, and performs all things needful to perfect the selection, its right may not be defeated by a subsequent withdrawal of the lands from entry, and a homestead entry of lands included within such withdrawal will not prevail against the State or a qualified grantee of the State.

INDEMNITY SCHOOL-LAND SELECTION-STATE'S TITLE EQUITABLE ONLY-LEGAL. TITLE IN UNITED STATES JURISDICTION OF LAND DEPARTMENT-VOIDABLE: JUDGMENT.

The title a State has in an indemnity school-land selection is equitable only, the legal title being in the United States, from which it follows that, until legal title passes from the United States, inquiry as to all equitablerights is within the cognizance of the Land Department, which is clothed with jurisdiction to determine whether the land should be listed to the State or not; accordingly, the judgment of the Department, even though erroneous, is voidable only, and not void, and is therefore entitled to respect until set aside by direct attack in some manner recognized by law. REAL PROPERTY-PEACEABLE POSSESSION UNDER CLAIM OF RIGHT LAPSE OF TIME LACHES-WHEN AFFIRMATIVE ACTION REQUIRED.

Laches may not be imputed from mere lapse of time in asserting an equitableright, and, as a rule, one in peaceable possession of real estate under claim of right is not called upon to take affirmative action unless and until his title or possession is attacked; and failure to appeal to equity during the period is no defense to a suit subsequently brought to establish, enforce, or protect his right. Summers Creek Coal Company v. Doran (142 U.S. 417); Ruckman v. Cory (129 U.S. 387).

X

SCHOOL LAND-INDEMNITY SELECTION-ERRONEOUS CANCELLATION-NOTICE FROM STATE'S CONTINUED CLAIM OF TITLE TARDINESS IN ASSERTION OF RIGHT -NEW MEXICO.

Where cancellation of a State selection was the result of an erroneous decision of the Land Department, and the State did not acquiesce in such decision, but, on the contrary, took action which, in effect, gave notice to the world that it claimed title to the land, such notice was effective, even though the State has been somewhat tardy in seeking correction of the erroneous decision which resulted in cancellation of its selection. LAND DEPARTMENT ERRONEOUS CANCELLATION OF ENTRIES-REINSTATEMENT DENIED WHEN INTERVENING EQUITIES.

An examination of the cases wherein the Department, following erroneous action in canceling entries, selections, and other filings, has later declined to reinstate them, discloses that there were commonly present in such cases elements of affirmative acquiescence in the decision sought to be vacated, laches in passively permitting the initiation of adverse rights, or other equitable bar.

CASES CITED AND DISTINGUISHED.

Cases of Honey Lake Valley Company et al. (48 L.D. 192), Northern Pacific Railway Company (48 L.D. 343, 347), Hobart L. Pierson et al. (49 L.D. 436), Charles R. Haupt (48 L.D. 355), and Lillie M. Kelly (49 L.D, 659), cited and distinguished.

EDWARDS, Assistant Secretary:

1 February 2, 1917, the State of New Mexico filed indemnity schoolland selection lists, Las Cruces 015285, for Sec. 31, and 015287 for W12 Sec. 34, T. 22 S., R. 8 W., N.M.P.M. June 6, 1918, these tracts were included in a withdrawal for military purposes. At the date of withdrawal all was done that was needed to be done to perfect the selections. In accordance with the view then held, that equitable title did not vest in the State until the approval of the selections, the Commissioner of the General Land Office, by letter of July 24, 1918, held the selections for rejection because of the withdrawal, but accorded the State the right to ask for their suspension on certain terms or appeal within 30 days from notice, but warning the State if it failed to do either, the selections would be finally canceled without further notice. Evidence of the reception of this letter on August 5, 1918, by the Commissioner of Public Lands of the State is with the record. The State took no action, and the selections were finally canceled by letter of November 6, 1918. The tracts were released from the withdrawal February 11, 1921, and opened to homestead entry generally July 24, 1921, and remained free for filings of record until January 24, 1931, when applications were filed under the stock-raising homestead act, 043057 by Robert S. Shelton for Sec. 31, and 043058 by John T. Williams for Sec. 34, and both allowed January 26, 1981.

182662-33-VOL. 54-8