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Show REPORT OF THE COMHISSIONER OF INDIAN AFFAIRS. 155 their value. I think that the sel&tion of a homestead is secondary or subordinate to the making of the allotment,and that it is only when the allotment equals or exceeds in area one hundred and sixty acres that the full complement allowed as a home-stead may be selected from the allotment. Concerning the second question, the Assistant Attorney-General held that- The provision 'Ithat the said Choctaw and Chickasaw freedmen, who may be entitled to allotments of forty acres each, shall be entitled each to land equal in value to forty acres of the average land of the two nations," conforms to, and tends to intensify, the controlling intention of the agreement that the allotment or division of the land shall be made according to value rather than according toacreage. That .the h d s allotted to the freedmen are to he appraised is especially shown by this provision and hy the dire_ction that they shall be deducted from the body of lands to he allotted under the agreement "80 as to reduce the allotment to the Choctaws and Chickasaws by the value of the same." Their value can only he ascertained by appmisement, and the only purpose in their appraisement is to enable an allotment thereof to be made according to value. It seems to me to he intended that each freedman entitled to an allotment shall receive land which in value equals "forty acres of the average land of the two nations9'-that is, land the value of which neither exceeds nor falls short of what would he the value of forty acres if the lands to be allotted were all of the average value ascertained by the appraisement. The treaty of April 28, 1866, contemplated the making of allotments anlong the Indians and freedmen on an acreage basis, irrespective of value, hut the agreement ratified by the act of June 28, 1898, provided a different basis, as herein indicated, and is therefore controlling. No allotments have been made except such as have been 'made to the Seminoles and those which were made to 'the Creeks prior to the adoption of the Creek agreement and which are, "so far as there is no contest," approved by section 6 of that agreement. Conflicting allotments in Creek Hation.-Many contests between Creek citizens in the selection of their prospective allotments have been filed with the commission. In some cases the unsuccessful applicant has appealed to this office from the decision of the commission, and again from this office to the Department. The decisions of the commission have as a general thing been sustained by this office, and the decisions of this o5ce have been generally sustained by the Department, except in a certain line of cases which involved the question a,s to whether or not the setting of posts or the driving of stakes was occupying lands within the meaning of the law. The office held that the setting of posts or the driving of stakes without further action on the part of the claimant did not reduce the land to possession. The Department, however, held otherwise. AQREEWENTS. March 18,1900, the omm mission entered into an agreement with rep-resentatives of the Creek Nation relative to the distribution of the lands in severalty to the members of the nation and April 9, 1900, it entered |