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To effect a reallotment under section 3 of the act of June 25, 1910 (36 Stat. 856; 25 U.S.C. 408), the Indian owner shall endorse on the original patent a relinquishment of all lands described therein and explain the purpose of the relinquishment. The relinquishment shall name the child or children to be reallotted and follow with descriptions by legal subdivisions of the land. If a part of the allotment is being retained by the Indian owner, the relinquishment and application for reallotment may describe only the tract to be reallotted. The relinquishment must be signed by the original allottee or owner of the land involved and be acknowledged before a superintendent of an Indian agency or an officer authorized to administer oaths. The signatures of

those who cannot write must be by thumb mark and be witnessed.

§ 125.2 Relinquishment when original patent has been lost or destroyed. When the original patent has been lost or destroyed, the relinquishment and application for reallotment may be submitted in the form of a letter, which must be accompanied by an affidavit showing the loss or destruction of the original patent. If no patent has been issued, that fact should be set out in the letter.

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These procedures and requirements will govern the preparation of allotment schedules containing the names and allotment selections of the unallotted members, called members in this part, the Cabazon and Augustine Bands of Mission Indians of the Cabazon and Augustine Indian Reservations, respectively.

§ 126.2 Scope.

These procedures and requirements shall apply to those Indians whose names appear on the official enrollment records of the Cabazon or Augustine Bands of Mission Indians as of June 30, 1949, approved by the Secretary of the Interior, who have not heretofore received allotments.

§ 126.3 Size of allotments.

Each member shall be entitled to an allotment not to exceed 40 acres of land classed as irrigable or potentially irrigable by the Secretary of the Interior. § 126.4 Description of allotments.

Each allotment selection must be described as a legal subdivision of a section based upon public land surveys made by the Department of the Interior and wherever possible must consist of a contiguous tract of land.

§ 126.5 Method of selection.

The Area Director, Sacramento Area Office, or his representative, shall be available during the periods hereinafter specified at an office of the Bureau of Indian Affairs located in the proximity of the Cabazon and Augustine Reservations to assist the Indians in making allotment selections. A map of each reservation on which is shown the irrigable and potentially irrigable land, which may be allotted, is available in such office during regular business hours for use in making the allotment selections. Each eligible member shall select for his allotment land shown on the map. Priority of selection shall be by families in the order of their appearance at the designated office. If two or more applicants appear at the designated office simultaneously, the order of their priority shall be determined by drawing lots. Selections for minors shall be made by one of the parents, or by a

legally appointed guardian.

Eligible adult members who have been adjudged non compos mentis may have selections made for them by a legally appointed guardian. Members who are not able to appear personally and sign the required forms for their selection may in writing appoint a representative to make the allotment selection, provided the appointment is duly acknowledged before a notary public or other officer authorized to take acknowledgments. Failure of any eligible Indian to make an allotment selection within the period of 60 days from the date of "Notice of Allotment", as prescribed in § 126.6, shall constitute authority for the Area Director to make a selection for such member. Appropriate forms for making selections shall be furnished by the Area Director. § 126.6 Notice of allotment.

The Area Director shall mail a copy of the regulations in this part, together with a letter entitled "Notice of Allotment" bearing the date of the day it is posted, by registered mail to each member eligible for an allotment to the member's last known address. The letter shall inform each eligible member of the place where and the period of time when allotment selections will be accepted. In addition copies of the regulations in this part, together with copies of the Area Director's letter, shall be posted at several conspicuous places on and in the vicinity of the respective reservations.

§ 126.7 Priority of filing allotment selections on improved lands.

The land classified as "improved" will be so designated on the map used for allotting purposes. A priority in selecting this class of land for allotment is given to the members who own the improvements on the lands, provided such improvements were placed thereon prior to July 1, 1954. The owner of the improvements on the land shall file on such land for allotment selection within 15 days from the date of the "Notice of Allotment."

§ 126.8 Priority of selecting remaining lands available for allotment. Upon the expiration of the 15-day period prescribed in § 126.7 all members, except those who filed allotment selections under § 126.7, shall file their selections on the remaining improved and unimproved irrigable or potentially irri

gable land available for allotment. Filings thus made will be honored in the order of their receipt at the allotting office. A period of 45 days will be allowed for the filing of these selections. Upon the expiration of this 45-day period, selections shall be made by the Area Director, as prescribed in § 126.5, for those members who have not filed their allotment selections.

§ 126.9 Disposition of improvements.

Any member owning improvements on land selected properly by another member may remove, or otherwise dispose of the improvements, within a 60-day period from date of notification by the Area Director to such member, so to dispose of such improvements. If in any case the whereabouts of the owner of the improvements is not known, an additional reasonable period of time may be allowed by the Area Director in which the owner, or his duly appointed representative, may remove or dispose of such improvements.

§ 126.10 Submittal of allotment schedule.

Upon the completion of the allotment selections, a certified allotment schedule for each reservation, containing the names and the legal descriptions of the selections of the members and other pertinent information, shall be prepared by the Area Director. Each allotment schedule shall be submitted for approval to the Secretary of the Interior, through the Commissioner of Indian Affairs, before the issuance of trust patents for each of the allotment selections described therein.

§ 126.11 Special instructions.

To facilitate the work of the Area Director, the Commissioner may issue special instructions consistent with these procedures and requirements.

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(a) "Homestead" means the restricted nontaxable lands, not exceeding acres, allotted to an enrolled member of the Osage Tribe pursuant to the act of June 28, 1906 (34 Stat. 539), or the restricted surplus lands designated in lieu thereof pursuant to the act of May 25, 1918 (40 Stat. 578).

(b) "Surplus land" means those restricted lands, other than the homestead, allotted to an enrolled member of the Osage Tribe pursuant to the act of June 28, 1906 (34 Stat. 539).

§ 127.52 Application for change in designation of homestead.

Any Osage allottee or the legal guardlan thereof may make application to change his homestead for an equal area of his surplus land. The application shall give in detail the reasons why such change is desired and shall be submitted to the Osage Indian Agency on the form "Application to Change Designation of Homestead.”

§ 127.53

Order to change designation of homestead.

The application of an Osage allottee, or his legal guardian, may be approved by the Secretary of the Interior, or his authorized representative, and an order issued to change designation of homestead, if it is found that the applicant owns an equal area of surplus land. The expense of recording the order shall be borne by the applicant. The order to change designation shall be made on the form "Order to Change Designation of Homestead."

§ 127.54 Exchanges of restrictive lands.

Upon written application of the Indians involved, the exchange of restricted lands between adult Indians, and between adult Indians and non-Indians, may be approved by the Secretary of the Interior, or his authorized representative. Title to all lands acquired under

this part by an Indian who does not have a certificate of competency shall be taken by deed containing a clause restricting alienation or encumbrance without the consent of the Secretary, or his authorized representative. In case of differences in the appraised value of lands under consideration for exchange, the application of an Indian for funds to equalize such differences may be approved to the extent authorized by § 108.8 of this chapter.

§ 127.55 Institution of partition proceedings.

(a) Prior authorization should be obtained from the Secretary, or his authorized representative, before the institution of proceedings to partition the lands of deceased Osage allottees in which any interest is held by an Osage Indian not having a certificate of competency. Requests for authority to institute such partition proceedings shall contain a description of the lands involved, the names of the several owners and their respective interests and the reasons for such court action. Authorization may be given for the institution of partition proceedings in a court of competent jurisdiction when it appears to the best interest of the Indians involved to do so and the execution of voluntary exchange deeds is impracticable.

(b) When it appears to the best interest of the Indians to do so, the Secretary's, or his authorized representative's, authorization to institute partition proceedings may require that title to the lands be quieted in the partition action in order that the deeds issued pursuant to the proceedings shall convey good and merchantable title to the grantee therein. (See section 6, 37 Stat. 87.)

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vesting title shall contain the following clause against alienation:

Subject to the condition that while title to the above-described lands shall remain in the grantee or his Osage Indian heirs or devisees who do not have certificates of competency, the same shall not be alienated or encumbered without approval of the Secretary of the Interior or his authorized representative.

§ 127.57 Approval of deeds or other instruments vesting title on partition and payment of costs.

Upon completion of the partition proceedings in accordance with the law and in conformity with the regulations in this part, the Secretary, or his authorized representative, may approve the deeds, or other instruments vesting title on partition, and may disburse from the restricted (accounts) funds of the Indians concerned, such amounts as may be necessary for payment of their share of court costs, attorney fees, and owelty moneys.

§ 127.58 Disposition of proceeds of partition sales.

Owelty moneys due members of the Osage Tribe who do not have certificates of competency shall be paid into the Treasury of the United States and placed to the credit of the Indians upon the same conditions as attach to segregated shares of the Osage national fund.

PART 128-SALE OF IRRIGABLE LANDS, SPECIAL WATER CONTRACT REQUIREMENTS

CROSS REFERENCES: For additional regulations pertaining to the payment of fees and charges in connection with the sale of irrigable lands, see Part 129 and §§ 211.4 and 121.21 of this chapter. For general regulations pertaining to the issuance of patents in fee, see Part 121 of this chapter.

§ 128.1 Conditions of contract.

(a) The form of contract (Form 5462b)1 for sale of irrigable lands specifically provides that the purchaser will obligate and pay on a per acre basis all irrigation charges assessed or to be assessed against the land purchased including accrued assessment, which accrued assessment shall be paid prior to the approval of the sale, and for the payment of the construction and operation

1 Forms may be obtained from the Commissioner of Indian affairs, Washington, D.C.

and maintenance assessments on the due dates of each year. The agreement is to be acknowledged and recorded in the county records in which county the land is situated. The charges incidental to the recording of the instrument shall be paid by the purchaser at the time of executing the agreement.

(b) A strict compliance with the terms of paragraph (a) of this section is absolutely necessary and required.

(Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U. S. C. 385. Interprets or applies sec. 1, 41 Stat. 409; 25 U. S. C. 386) [22 F. R. 10566, Dec. 24, 1957]

NOTE: On May 12, 1921, Circular No. 1677, re sale of irrigable lands, was addressed to all superintendents. It was pointed out therein that the collection of irrigation construction charges was required by the terms of an act approved February 14, 1920 (41 Stat. 409; 25 U. S. C. 386), and that in addition to the construction charge there was an operation and maintenance charge assessable annually that must be paid by the landowners benefited; furthermore, that the purpose of this circular was to point out to the superintendents the necessity of advising prospective purchasers that irrigation charges must be paid and that a so-called paid-up water right was not conveyed with the land. A form of agreement to be executed by the prospective this purchaser accompanied circular.

It has been brought to the attention of the Bureau that irrigation construction charges and operation and maintenance charges have accrued against irrigable allotments prior to the time of their being advertised for sale and that the superintendents have failed to provide for payment of the accrued irrigation charges, with the result that no means are apparent for their collection.

With a view of preventing any future misunderstanding the form of contract accompanying Circular No. 1677 has been redrafted and Form 5-462b assigned to it. The circular has been designated "No. 1677a."

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The act of March 7, 1928 (45 Stat. 210; 25 U.S.C. 387) creates a first lien against irrigable lands under all Indian irrigation projects where the construction, operation and maintenance costs of such projects remain unpaid and are reimbursable, and directs that such lien shall be recited in any patent or instrument issued for such lands to cover such unpaid charges. Prior to the enactment of this legislation similar liens had been created by legislative authority against irrigable lands of the projects on the Fort Yuma, Colorado River, and Gila River Reservations, in Arizona; Blackfeet, Fort Peck, Flathead, Fort Belknap, and Crow Reservations, Mont.; Wapato project, Yakima Reservation, Wash.; the irrigable lands on the Colville Reservation within the West Okanogan irrigation district, Washington, and the Fort Hall Reservation, Idaho. This legislation, therefore, extends protection similar to that existing in the legislation applicable to the projects on the reservations above mentioned.

CROSS REFERENCES: For operation and maintenance charges and construction costs, see Parts 221, 211, 214, and 215 of this chapter. § 129.2

Instructions.

All superintendents and other officers are directed to familiarize themselves with this provision of law, and in all cases involving the issuance of patents or deeds direct to the Indian or purchaser of Indian allotments embracing irrigable lands, they will recite in the papers forwarded to the Department for action the fact that the lands involved are within an irrigation project (giving the name) and accordingly are subject to the provisions of this law. This requirement will be in addition to the existing regulations requiring the superintendents in case of sales of irrigable lands to obtain from the project engineer a written statement relative to the irrigability of the lands to be sold, and whether or not there are any unpaid irrigation charges, together with the estimated per acre construction cost assessable against the land involved in the sale. Each sale will also be accompanied by contract executed in accordance with regulations obligating the purchaser to pay the accrued charges, namely, construction, operation, and maintenance, prior to the approval of

the sale and to assume and pay the unassessed irrigation charges in accordance with regulations promulgated by the Secretary of the Interior.

CROSS REFERENCES: For additional regulations pertaining to the payment of fees and charges in connection with the sale of irrigable lands, see Part 128 and §§ 211.4 and 121.21 of this chapter.

§ 129.3 Leases to include description of lands.

It is important, also, for superintendents in leasing irrigable lands to present to the project engineer lists containing descriptions of the lands involved for his approval of the irrigable acreage and for checking as to whether or not such lands are in fact irrigable under existing works. Strict compliance with this section is required for the purpose of avoiding error.

§ 129.4 Prompt payment of irrigation charges by lessees.

Superintendents will also see that irrigation charges are promptly paid by lessees, and where such charges are not so paid take appropriate and prompt action for their collection. Such unpaid charges are a lien against the land, and accordingly any failure on the part of the superintendents to collect same increases the obligation against the land.

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