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Show REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS. 121 taws holding a three-fourths interest in the lands occupied by the Chickasaws and the Chickaeaws holding a one-fourth interest in those occupied by the Choctaws. Because of this joint interest it was held that both nations should join in the agree-ment ratified by the act of June 28, 1898, by which a change in the tenure of their lands was to be effected. The leases or contmts ratified and confirmed bv mid agreement were those made by the "National agents of the Choctaw and ~hickasaw nations," and not those made by the representative of one nation alone. It was not intended by that agreement to recognize any contract or lease made by one of these nations alone through its representatives. As said hy the Comminsioner of Indian Affairs, it is not shown or claimed that the Choctaw Nation ever gave its assent to the Chickasaw act under which the Davis Mining Company claims existence. I am of opinion that no claim based upon that act is entitled to recognition under the agreement. If a charter or license granted under that act is affected by said agreement, it is not by way of ratification or con-finnation, and hence no claim to a preference right to a lease of gmund covered by a charter issued under said Chickaeaw law can be succesafullv asserted bv virtue of any provision of said agreement. The matter of leasing mineral lands is fully cov-ered by the provisions of said agreement and unless an au~licanct laimine a urefer- A A A ence &ht to; lease can bring himself within its provisions and the regulations issued thereunder his claim must fail. The Davis Mining Company, not having a lease that comes within the confirmatory provisions of said agreement, has no preference right to a lease for the land in question. Neither of the other applicants claims to hold under a contract made direetly with the national agents of the Choctaw and Chickamw nations, or either of them, and hence neither has my claim falling within the confirmatory provisions of the agree-ment ratified in 1898. They, in each inatitnce, went upon the land in pursuance of and under the authority of the license to the Davis Mining Company. That license, being given without authority, conferred no right upon the Davis Mining Company, and that company could not amnt any right which it never had. Even if it be adkitted that parties who & in possession of lands under suchlicense, lease, or contract as those presented here may have a riaht that should be recognized. the fact still remains thatieither of these phties is entitled under those instimen& to exclusive possession of the lands in question. The license to the Davis Mining Company was to mine "all minerals, gases, oils, coal, and asphaltum, or all minerals known to the law." The lease to Dennis, transferred by him to the Rock Creek Natural Asphalt Company, was of "all the asphaltum and petroleum" under and upon the same land, and the lease to Baxter, tmsferred to the Gilsonite Roofing and Paving Company, was of "all the lime-rock asphaltum underand upon said land." In this instrument a right was reserved to the Rock Creek Company "to use any and all lime asphalt rock for its own use and to do its own minin-~ ." If these instru-mcnrs are w he ivmsnlrcd tu deterruin*! rllr rights of tllrPe npplicante tire r.ourltrsion wunld LC rhar ucithrr is cnritlcd to a pwfereucr righr w axairnit rllc other to a irwr by reason of possession, because neithkr has a right to the ~xclusivep hgsessionof the tract in controversy between them. In no phase of the case an either of these appli-cants successfully asmrt a preference right to a lease of mid lands by reason of the instruments under which they went upon it. I concur in the conclusion reached by the Indian Office that these parties are upon the laud in question without any right to he there recognized by the law, and that neither of them can, as a matter of legal right, demand a lease thereof. In paragraph 9 of the regulations governing mineral leleases in the Choctaw and Chickasaw nations it is provided that persons or corporations who have, under the customs and laws of the Choctaw and Chickasaw nations, made leases with the national agents for mining coal, asphalt, or other minerals, and who, prior to April 23, 1897, had taken possession of and were operating any such mine in good faith, |
