MINING LAWS-LANDS SUBJECT TO LOCATION, ETC.-DETERMINING TEST. MINING LAWS-DEPOSITS OF SAND AND GRAVEL-MARKETABILITY THE TEST GOV- No logical reason appears for discriminating between deposits of sand and MINING LAWS-SAND AND GRAVEL DEPOSITS-MARKETABILITY-DISPOSITION AS Sand and gravel which can be extracted, removed, and marketed at a FEDERAL AID HIGHWAYS-APPROPRIATION OF SAND AND GRAVEL FROM PUBLIC While there is no law authorizing the removal of gravel from the public PRIOR DECISION OF DEPARTMENT REAFFIRMED. Case of Layman et al. v. Ellis (52 L, D. 714) reaffirmed. ་ FAHY, Acting Solicitor: By letter of September 5, 1933, the Acting Director of Investigations has requested my opinion upon certain questions propounded by Special Agent in Charge Bywater at Santa Fe, New Mexico, relative to the propriety of the practice, stated to prevail in this and the Salt Lake Field Division, of collecting trespass fees for sand and gravel obtained from the public domain and used in the construction of Federal aid highways. Two cases are specifically mentioned where sand and gravel were so taken and used. In one case the State of Arizona sought refund of $214.48 collected by the Field Service for sand and gravel, supposedly taken from land embraced in a stock-raising homestead entry, but later ascertained to be "public domain," and used on a Federal aid highway. Refund was made by letter of August 28, 1933. In the other case, the sand and gravel used on such a highway was mined and removed under a placer mining location. The Special Agent refers to the case of Layman et al. v. Ellis (52 L.D. 714) and expresses disapprobation with the action there taken in overruling Zimmerman v. Brunson (39 L.D. 310) and refers to the latter as in harmony with Hughes v. Florida (42 L.D. 401) and to both of these cases as in harmony with the attitude of the courts, expressing the view that the "present rulings" of the Department involve the consequence that it has "no right to collect trespass fees for the mining of sand and gravel, even though it be in conflict with a homestead." A further opinion is expressed "that it is not the attitude of the Government to wish to collect trespass fees from a State which is using sand and gravel, allegedly mined in trespass, for the construction of Federal aid highways." In Layman et al. v. Ellis, supra, the Department held (syllabus) that Gravel is such substance as possesses economic value for use in trade, manufacture, the sciences, and in the mechanical or ornamental arts, and is classified as a mineral product in trade or commerce. Lands containing deposits of gravel which can be extracted, removed and marketed at a profit are mineral lands subject to location and entry under the placer mining laws. The reasons for the above-stated conclusions were elaborately set forth in the opinion in the case and need no restatement here. It suffices to observe that upon examination of this case it appears that the Department followed and applied the principle which it had applied in other cases there cited, involving the locatability of other kinds of commonplace stones used for construction and manufacturing purposes-the same principle that had been consistently applied by the courts, namely, that in the solution of the question whether lands containing a given mineral substance were subject to location and purchase under the mining laws, the test was the marketability of the product. It was pointed out that there was no logical reason for discrimi. nating between sand and gravel, if marketable at a profit, and other low grade deposits of wide distribution, used for practically the same or similar purposes, which also met the same test; that the distinctions assigned in the Zimmerman case for excepting sand and gravel from the rule were unsubstantial and that the doctrine of that case had been vigorously criticized by the leading text-writers on the mining law. The main objection that appeared to the application of this principle to such commonplace substances as sand and gravel, was that it would render facile the acquirement of title to numerous areas containing sand and gravel for other purposes than mining, but this objection may be urged with as much reason against other mineral substances of wide occurrence and extent which under the same limitations and qualifications are locatable and enterable under the mining law, such as, for example, limestone, marble, gypsum, and building stone. Furthermore, the objection mentioned is not of much force when it is considered that the mineral locator or applicant, to justify his possession, must show that by reason of accessibility, bona fides in development, proximity to market, existence of present demand, and other factors, the deposit is of such value that it can be mined, removed and disposed of at a profit. Cases have been frequent where the Department has refused patent to lands containing the mineral substances last mentioned in abundance, where the evidence as to the value of the deposit was insufficient or lacking. No reason is seen, therefore, to overrule the case of Layman et al. v. Ellis. It follows that sand and gravel which can be extracted, removed, and marketed at a profit, obtained from land that has been duly and properly located under the mining law as a placer claim, may be lawfully disposed of for use, not only on Federal aid highways, but for other purposes. With respect to the question of the propriety and legality of collecting from the State the value of sand and gravel obtained by it from the open public domain for use on Federal aid highways, it appears that the Department has ruled on that question in the identical case cited by the special agent. By letter "K" 1427700 from the Acting Commissioner of the General Land Office to the Director of Investigations, approved by the Assistant Secretary, August 28, 1933, it was held that no payment should be required of the State Highway Department of Arizona for the value of gravel taken from public land and used by it on a public highway of the State, although it did not then appear that the gravel was used on a Federal aid highway, and directed that the sum of $214.48 collected from the State Highway Department in payment for the gravel be returned to it. In that connection the letter stated: Section 17 of the act of November 9, 1921 (42 Stat. 212–216), known as the Federal Highway Act, provides for the use of public lands for rights of way or materials, in connection with roads constructed under the provisions of that act. It appears that the gravel first above referred to was taken for road construction purposes but it does not appear that it was removed in connection with a highway constructed under the Federal Highway Act, and under such circumstances the removal of the gravel was not authorized by said act. There is no law authorizing the removal of gravel from the public domain for public roads or highways, except as provided in the Federal Highway Act. In view of the fact, however, that public roads and highways are a public benefit, it has been the policy of this Department to interpose no objection to the removal of such material from the public domain by State and county officers for road construction purposes as long as there is no substantial damage to the property, although a permit specifically granting such privilege cannot be issued. A policy has also grown up, after repeated requests, to permit an entryman tc sell sand or gravel, for construction or repair of public roads and highways, from the lands embraced in his pending claim, payment for such material to be forwarded to this office and held in escrow pending final disposition of the claim. No substantial objection is perceived to the continuance of the policy outlined in the letter with respect to the sand and gravel taken from the public domain by instrumentalities of the State for use on State highways, and the views there expressed seem sufficiently clear for guidance of the Division of Investigations in future like cases. Approved: OSCAR L. CHAPMAN, Assistant Secretary. HEIRS OF MARY ROGERS Opinion, September 21, 1933 INDIANS-INHERITANCE-TRIBAL MEMBERSHIP. Upon the death of an Indian, the right of inheritance in his property is controlled by the laws, usages and customs of the tribe or nation of which he is at the time a member, whether by birth or adoption. INDIANS-INHERITANCE-TRIBAL ADOPTION-RIGHT TO BENEFITS. The absence, in an Indian tribe, of any law, rule or custom of inheritance, would not preclude a member of said tribe who had obtained adoption into another tribe, the latter having laws of inheritance, from obtaining the benefit of inheritance, even though the property involved was a benefit conferred only upon members of the tribe abandoned. INDIANS CHEROKEE NATION-STATUTES OF DESCENT AND DISTRIBUTION-LAWS OF ARKANSAS APPLIED, Under authority of successive treaties with the Cherokee Nation, these Indians passed and administered their own laws, including statutes of descent, until October 1, 1898, and by the Act of May 2, 1890 (26 Stat. 81), the laws of Arkansas were extended to Indian Territory. Held, that upon the death, intestate, in 1888, of an Indian adopted into the Cherokee Nation, the statutes of descent of the Cherokee Nation would govern her estate, and upon the death of her husband, also adopted into the Cherckee Nation, in 1901, the laws of Arkansas relative to descent and distribution would control. INDIANS-LOYAL SHAWNEES' CIVIL WAR CLAIMS-ACT OF DECEMBER 22, 1927TRIBAL ADOPTION-INHERITANCE-LAW GOVERNING. A Shawnee Indian woman entitled to share in the appropriation made by Congress (Act of December 22, 1927) in settlement of Civil War claims of certain Shawnees, was adopted, together with her husband, into the Cherokee Nation, where she died intestate and without issue in 1883, leaving a husband surviving, who died in 1901. Held, that the tribal laws of the Cherokee Nation covering inheritance, at the date of her death, applied in her case, and that her approved claim against the Government, although originating while she was a member of the Shawnee tribe, would be governed, in the matter of inheritance, by said laws of the Cherokee Nation. INDIANS JURISDICTION-DISTRIBUTION OF CHEROKEE ESTATES. The cases of Nivens v. Nivens (64 S.W. 604, 76 Id. 114) and Jones v. Mechan (175 U.S. 1) cited and applied. FAHY, Acting Solicitor: You [the Secretary of the Interior] have requested an opinion upon the question of what laws govern in the determination of heirs of a Loyal Shawnee Indian who apparently had been adopted as a member of the Cherokee Nation. The facts in the case are briefly as follows: Mary, or Sally, Rogers, No. 113 of the Loyal Shawnee Indian Tribe, died intestate in 1883, in the country of the Cherokee Nation, and it appears that she had been adopted as a member of that nation. She was without issue but left Henry F. Rogers as her surviving husband, who died in 1901. In the act of December 22, 1927 (45 Stat. 1, 18) appropriation was made to pay the Civil War claims of the Indians of the Shawnee Tribe and for the disposition of the estate of Sally Rogers the Department determined her heirs on March 1, 1932, in accordance with the laws of the State of Kansas. On February 2, 1933, the Department approved a recommendation by the Commissioner of Indian Affairs that the case be not reopened. A petition for rehearing is now pending. Under treaties with the Cherokee Nation these Indians had the right to pass and administer their own laws until October 1, 1898. |