tional and other purposes which may have been sold or included in some reservation or otherwise disposed of, and other surveys shall be confined to lands adapted to agriculture and lines of reservations, except forest reservations, and lands within boundaries of forest reservations, except that the Commmissioner of the General Land Office may allow, for the survey and resurvey of lands heavily timbered, mountainous, or covered with dense undergrowth, rates not exceeding thirteen dollars per linear mile for standard and meander lines, eleven dollars for township, and seven collars for section lines, and in cases of exceptional difficulties in the surveys, where the work cannot be contracted for at these rates, compensation for surveys and resurveys may be allowed by the said Commissioner, with the approval of the Secretary of the Interior, at rates not exceeding eighteen dollars per linear mile for standard meander lines, fifteen dollars for township, and twelve dollars for section lines: Provided further, That in the States of California, Colorado, Idaho, Montana, Nevada, Oregon, Utah, Washington, Wyoming, the Territories of Arizona and New Mexico, and the district of Alaska, there may be allowed, in the discretion of the Secretary of the Interior, for the survey and resurvey of lands heavily timbered, mountainous or covered with dense undergrowth, rates not exceeding twenty-five dollars per linear mile for standard and meander lines, twenty-three dollars for township, and twenty dollars for section lines; the provisions of section twenty-four hundred and eleven, Revised Statutes of the United States, authorizing allowance for surveys in California and Oregon, are hereby extended to all of the above-named states and territories and district. (33 Stat. L. 1483, 1184.)

[These are provisions of the sundry civil appropriation act for the fiascal year ending June 30, 1906, cited above. The appropriation made and the provisos relating thereto are for the fiscal year only, but are repeated in the successive acts for recent years with little variation.]

VI.

AUTHORIZING THE ATTORNEY GENERAL, UPON THE REQUEST OF THE SECRETARY OF THE INTERIOR, TO APPEAR IN SUITS BROUGHT

BY STATES RELATIVE TO SCHOOL LANDS.

SCHOOL LANDS IN INDIAN RESERVATIONS.

That in any suit heretofore or hereafter instituted in the Supreme Court of the United States to determine the right of a state to what are commonly known as school lands within any Indian reservation or any Indian cession where an Indian tribe claims any right to or interest in the lands in controversy, or in the disposition thereof by the United States, the right of such state may be fully tested and determined without making the Indian tribe, or any portion thereof, a party to the suit if the Secretary of the Interior is made a party tnereto; and the duty of representing and defending the right or interest of the Indian tribe, or any portion thereof, in the matter shall devolve upon the Attorney

General upon the request of such Secretary. (31 Stat. L. 950; 6 Fed. St. Ann. 467.)

By

Congress "has by this legislation in effect declared that the Indians, although the real parties in interest, need not be made parties to the suit; that the United States will, for the purposes of litigation, stand as the real party in interest, and so far as it could within constitutional limits has expressed the consent of the government to the maintenance of this suit in this court. the act, it, in effect, declares that it waives all objections on the ground that it is a mere trustee; that it assumes the full responsibilities of ownership, and that it will, whatever may be the outcome of any legislation, stand responsible to the Indians for the full value of the lands in controversy. Can the court say that the United States may not assume such responsibility; may not waive all objections on account of the mere matter of trusteeship, and stand in court as the responsible owner, against whom all litigation may be directed? If it stands as such owner, then within the proposition heretofore referred to a suit which is against its agents, not affecting them individually, but affecting only its title to the real estate, is in substance and effect a suit against the United States. The controversy is made by the act of 1901, one to which the United States is a party in interest, to be directly affected by the result, and, therefore, the case is within the first paragraph, as one to which the judicial power of the United States extends. Our conclusion, therefore, is that the original jurisdiction vested by the Constitution in this court over controversies in which a state is a party is not affected by the question whether the state is party plaintiff or party defendant; that a dispute as to the title to real estate is a question of a justiciable nature, and can properly be determined in a judicial proceeding, and that the United States is to be taken, for the purposes of this case, as the real party in interest adverse to the state. We are of opinton, therfore, that this court has jurisdiction of this controversy, and is called upon to determine the case upon its merits." Minnesota v. Hitchcock (1902), 185 U. S. 373.

The general scope of the legislation of Congress in regard to public schools and also in regard to Indians as the wards of the government, as well as the technical rules of statutory construction, sustain 'the contention that none of the lands ceded to Indians passed to the state under the school grants. This is true, although no patent has been executed by the United States to the Indians in sveralty or to the tribe at large. Clearly it is enough that from what has been done there resulted a certain definite tract appropriated to that purpose and that the Indian occupation was confined by the treaty to that tract, which became in effect an Indian reservation. Minnesota v. Hitchcok (1902), 185 U. S. 373. See also, Spalding v. Chandler (1896), 160 U. S. 394.

VII.

SCHOOL LANDS IN INDIAN RESERVATION.

That any state or territory entitled to indemnity school lands or entitled to select lands for educational purposes under existing law may select such lands within the boundaries of any Indian reservation in such state or territory from the surplus lands thereof, purchased by the United States after allotments have been made to the Indians of such reservation, and prior to the opening of such reservation to settlement. (28 Stat. L. 899.)

This is from the Indian Appropriation Act of March 2, 1895, chapter 188. To give the court jurisdiction under this act of a suit for damages growing out of the claimant's settlement on Crow Creek, and Winnebago reservations, the claim must have been wholly disallowed by the department of the interior; the

suit must have been commenced within six months after the passage of the act and it must be the same case in law that was before the department. Schewson v. U. S. (1896), 31 Ct. CI. 192.

The act for opening the Colville reservation has no provision to conform to above. (See chapter 1126, p. 80, vol. 34 (1905-07, U. S. St.-at-Large).

VIII.

RELATING TO GRANTS OF LAND TO THE TERRITORY AND STATE OF WASHINGTON FOR SCHOOL PURPOSES.

Whereas, by the act of Congress of February twenty-second, eighteen hundred and eighty-nine, providing that the inhabitants of the Territory of Washington might, upon certain conditions prescribed in said act, become the State of Washington, certain lands were granted to the said state for school purposes; and

Whereas, a doubt has arisen as to what lands were granted by section ten of said act; and

Whereas, by section twenty of the act of Congress of March second, eighteen hundred and fifty-three, entitled "An act to establish the territorial government of Washington," the county commissioners of counties in said territory were authorized to locate and select certain lands in lieu of sections sixteen and thirty-six occupied by actual settlers; and

Whereas, by the act of Congress of February twenty-sixth, eighteen hundred and fifty-nine, entitled "An act to authorize settlers upon sixteenth and thirty-sixth sections, who settled before the surveys of public lands, to preempt their settlements," certain lands were appropriated for school purposes in lieu of such as might be patented by preemptors, and to compensate deficiencies for school purposes where said sections sixteen and thirty-six were fractional in quantity, or where one or both were wanting by reason of the township being fractional, or from any natural cause whatever, and providing for their selection; and

Whereas, certain lieu lands have been selected by the Territory of Washington under said acts of Congress: therefore,

That in all cases where sections sixteen and thirty-six, or either or any of them, or any portion thereof, have been occupied by actual settires prior to survey thereof, and the county commissioners of the counties in which said sections so occupied as aforesaid are situated, have, under said act of Congress of March second, eighteen hundred and fiftythree, located or selected other lands in sections or fractional sections, as the case may be, within their respective counties, in lieu of said section so occupied as aforesaid, the lands so located or selected, when the same shall have been approved by the Secretary of the Interior, shall be deemed and taken to have been granted to said state by said act of February twenty-second, eighteen hundred and eighty-nine, and the title of said state thereto is hereby confirmed.

SEC. 2. That where any lands appropriated by Congress to said territory to compensate deficiencies for school purposes, where sections sixteen or thirty-six were fractional in quantity, or where one or both

were wanting by reason of the township being fractional, or from any natural cause whatever, or where section sixteen or thirty-six were patented by preemptors, have been selected and appropriated as provided in said act of Congress of February twenty-sixth, eighteen hundred and fifty-nine, the lands so selected and appropriated, when the same shall have been approved by the Secretary of the Interior, shall be deemed and taken to have been granted to said State of Washington by the said act of February twenty-second, eighteen hundred and eighty-nine, and the title thereto confirmed. (32 Stat. L., p. 756; 6 Fed. St. Ann. 490.) State v. Johanson, 26 Wash. 668, affirmed 190 U. S. 179.

Sections 16 and 36 granted to the Territory for school purposes by the Organic act (10 Stat.-at-Large 172), and by the act of February 26, 1859 (11 Stat.at-Large 385), allowing lieu selections where sections 16 and 36 had been settled upon before survey was confirmed by the Enabling Act, the lieu selections included.

Unsurveyed sections 16 and 36, embraced in land withdrawn for a forest reserve by proclamation dated September 28, 1893, plat of survey of which was approved January 13, 1894, and filed in local land office October, 1894, do not become property of state upon survey, but are a part of the forest reserve, and should be administered free from the claim of transferees of the State of Oregon. Curtis Lumber Co. ex parte. (Decision "R" of Commissioner of the General Land Office, unpublished, dated February 28, 1906.)

Where a forest reservation includes within its limits a school section surveyed prior to the establishment of the reservation, the State, under the authority of the first proviso to section 2275 Revised Statutes, as amended by the act of February 28, 1891, may be allowed to waive its right to such section and select other land in lieu thereof.

The decision herein of December 27, 1894, 19 L. D., 585, recalled and vacated. Instructions of December 19, 1893, 17 L. D. 576, modified. State of California, 28 L. D. 57.

Section 11 of the act of February 22, 1889 (25 Stat., 676-680 affecting North Dakota, South Dakota, Montana, and Washington only), withheld sections 16 and 36 from entry under the land laws, whether surveyed or unsurveyed, in consequence of which provision they ceased to be "public lands" in the sense used in section 24 of the act of March 3, 1891 (26 Stat., 1095), authorizing the establishment of forest reserves. South Dakota v. Hiram H. Ruby. (Unpublished decision of Secretary of the Interior, dated May 21, 1904.)

By the act of June 21, 1898, a grant, in præsenti, of school lands is made to the Territory of New Mexico; and under the provisions of section 2275, Revised Statutes, as amended by the act of February 28, 1891, said Territory may relinquish its claim to such school sections as it may be entitled that are included within the limits of a forest reserve, and select other lands in lieu thereof. Territory of New Mexico, 29 L. D. 365.

IX.

DONATING PUBLIC LANDS TO THE SEVERAL STATES AND TERRITORIES WHICH MAY PROVIDE COLLEGES FOR THE BENEFIT OF AGRICULTURE

AND THE MECHANIC ARTS.

[Act of July 2, 1862, chapter 130, 12 Stat. L. 503.]

SEC. 1. That there be granted to the several states, for the purposes hereinafter mentioned, an amount of public land, to be apportioned to each state a quantity equal to thirty thousand acres for each Senator

and Representtaive in Congress to which the states are respectively entitled by the apportionment under the census of eighteen hundred and sixty: Provided, That no mineral lands shall be selected or purchased under the provisions of this act. (12 Stat. L. 503.)

SEC. 2. That the land aforesaid, after being surveyed, shall be apportioned to the several states in sections or subdivisions of sections, not less than one-quarter of a section; and whenever there are public lands in a state subject to sale at private entry at one dollar and twentyfive cents per acre, the quantity to which said state shall be entitled shall be selected from such lands within the limits of such state, and the Secretary of the Interior is hereby directed to issue to each of the states in which there is not the quantity of public lands subject to sale at private entry at one dollar and twenty-five cents per acre, to which said state may be entitled under the provisions of this act, land scrip to the amount in acres for the deficiency of its distributive share; said scrip to be sold by said states and the proceeds thereof applied to the uses and purposes prescribed in this act, and for no other use or purpose whatsoever: Provided, That in no case shall any state to which land scrip may thus be issued be allowed to locate the same within the limits of any other state, or of any territory of the United States, but their assignees may thus locate said land scrip upon any of the unappropriated lands of the United States subject to sale at private entry at one dollar and twenty-five cents, or less, per acre: And provided further, That not more than one million acres shall be located by such assignees in any one of the states: And provided further, That no such location shall be made before one year from the passage of this act. (12 Stat. L. 503, 504.)

SEC. 3. That all the expenses of management, superintendence, and taxes from date of selection of said lands, previous to their sales, and all expenses incurred in the management and disbursement of the moneys which may be received therefrom, shall be paid by the states to which they may belong, out of the treasury of said states, so that the entire proceeds of the sale of said lands shall be applied without any diminution whatever to the purposes hereinafter mentioned.( 12 Stat. L. 504.)

SEC. 4. That all moneys derived from the sale of lands aforesaid by the states to which the lands are apportioned, and from the sales of land-scrip herein before provided for, shall be invested in stocks of the United States or of the states, or some other safe stocks; or the same may be invested by the states having no state stocks, in any other manner after the Legislature of such states shall have assented thereto, and engaged that such funds shall yield not less than five per centum upon the amount so invested and that the principal thereof shall forever remain unimpaired: Provided, That the moneys so invested or loaned shall constitute a perpetual fund, the capital of which shall remain forever undiminished (except so far as may be provided in section five of this act), and the interest of which shall be inviolably appro