the courts, all show that the President had the power to make the order." Mr. Justice Lamar's opinion for the court described exhaustively the long-continued administrative practice, in which "there had been, prior to 1910, at least 252 Executive orders making reservations for useful, though nonstatutory purposes." "The opinion pointed out that not one of those withdrawals was disaffirmed by Congress, that in many instances Congress enacted legislation in assistance of the purposes for which withdrawals were made, and that not one of those withdrawals was declared invalid by the courts. The holding in this case, after the exhaustive consideration of the question by the court, established with certainty in constitutional law the Executive's withdrawal power, independent of statute.

The Midwest Oil Company case was followed in Mason v. United States (1923) (260 U.S. 545, 553), in which a 1908 Executive order withdrawing certain lands in Louisiana was upheld. Mr. Justice Sutherland, in his opinion for a unanimous court: stated:

Whatever legitimate doubts existed at the time of the locations respecting the validity of the executive order, were resolved by the subsequent decision of this Court in United States v. Midwest Oil Co., 236 U.S. 459, where it was held that a similar order, issued in 1909, was within the power of the executive. Upon the authority of that ease the order here in question must be held valid.

The Executive power of withdrawal, both under the act of 1910 and under the state of law existing prior to that act, has been recognized in several United States Supreme Court cases: United States v. Wilbur (283 U.S. 414, 419); Sinclair v. United States (279 U.S. 263, 285); Kinney Coastal Oil Co. v. Kieffer (277 U.S. 488, 490).

Among the many decisions in the lower Federal courts sanctioning the Executive withdrawal power, Shaw v. Work (9 Fed. 2d, 1014, 1015), certiorari denied (270 U.S. 642), is outstanding. There it was held that under the act of 1910 the President could withdraw public lands for purposes which by provision of the same statute could be accomplished only by means of legislation, and that such a withdrawal remained effective notwithstanding the failure in Congress of the necessary legislation.

The decisions referred to above show definite judicial sanction of the Executive power of withdrawal, whether its basis be nonstatutory or statutory.

Section 1 of the act of 1910 provides:

That the President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States including the District of Alaska and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes, to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress.

The statutory enumeration of certain purposes for reservation is followed by the omnibus clause, "or for other public purposes to be specified in the orders of withdrawals "; so that the statute may properly be construed as declaratory of the general nonstatutory power. An Executive order withdrawing public lands for any public purpose may, therefore, with legal propriety, rely for authority upon both the nonstatutory and the statutory powers.

It can not be questioned that withdrawal of public lands for the purpose of reserving them for use as federally regulated grazing lands is a withdrawal for a public purpose. Congressional determination supports this conclusion. Section 10 of the act of December 29, 1916 (39 Stat. 862), "an act to provide for stockraising homesteads, and for other purposes," provides:

SEC. 10. That lands containing water holes or other bodies of water needed or used by the public for watering purposes shall not be designated under this Act but may be reserved under the provisions of the Act of June twenty-fifth, nineteen hundred and ten, and such lands heretofore or hereafter reserved shall, while so reserved, be kept and held open to the public use for such purposes under such general rules and regulations as the Secretary of the Interior may prescribe; Provided, That the Secretary may, in his discretion, also withdraw from entry lands necessary to insure access by the public to watering places reserved hereunder and needed for use in the movement of stock to summer and winter ranges or to shipping points, and may prescribe such rules and regulations as may be necessary for the proper administration and use of such lands.

I have made particular reference herein to the proposed order's purpose of creating a grazing district because the second question herein considered is concerned with regulations of the use of the withdrawn lands for grazing. The other purposes expressed in the proposed order are expressly recognized in the act of 1910 or may be included in the act's omnibus phrase, "other public purposes."

Although the act of 1910 makes certain exceptions to the effect of withdrawals, and although the proposed order subjects the withdrawal "to all valid existing rights ", neither the statute nor the order would protect against the withdrawal's effect those who are using the lands involved for grazing stock, at the sufferance of the landowner, the United States.

Protection under section 2 of the act of 1910 would not be available, unless the lands for which protection was claimed were at the date of the withdrawal " embraced in any lawful homestead or desertland entry theretofore made, or upon which any valid settlement has been made and is at said date being maintained and perfected pursuant to law" (36 Stat. 847, 848). Nor would mere use of the lands for grazing, at the sufferance of the United States, be sufficient to establish a "valid existing right" to which the proposed withdrawal is declared subject. The only right of those so using the

lands is to graze stock upon the land so long as the United States suffers them to do so. Buford v. Houtz (133 U.S. 320). The proposed withdrawal order would terminate the sufferance. There is direct authority for this position in Omaechevarria v. Idaho (246 U.S. 343, 352), which held constitutional an Idaho statute that regulated the United States public lands located in Idaho as between those grazing cattle thereon and those grazing sheep thereon. In affirming the Idaho Supreme Court decision upholding the act against objections made by sheep owners, Mr. Justice Brandeis stated in his opinion for the court:

This exclusion of sheep owners under certain circumstances does not interfere with any rights of a citizen of the United States. Congress has not conferred upon citizens the right to graze stock upon the public lands. The Government has merely suffered the lands to be so used. Buford v. Houtz, supra. It is because the citizen possesses no such right that it was held by this court that the Secretary of Agriculture might, in the exercise of his general power to regulate forest reserves, exclude sheep and cattle therefrom, United States v. Grimaud, 220 U.S. 506; Light v. United States, 220 U.S. 523.

The proposed withdrawal order necessarily would terminate the sufferance by the United States of the present grazing upon its public lands. The proposed withdrawal derives its authority under the act of 1910 from any one or a combination of the purposes expressed in the proposed order, i. e., " for classification" and "in aid of legislation." The Federal courts have repeatedly held that an appropriation of public lands for a public purpose by proper governmental action prevents the further use of the withdrawn lands by private persons for any purpose which is in conflict with the purpose for which the withdrawal was made. Case law supports this position. United States v. Tygh Valley Land & Livestock Co. (76 Fed. 693); Shannon v. United States (160 Fed. 870); (grazing on lands appropriated for a specified public purpose deemed inconsistent with the purpose, and therefore unlawful and subject to being restrained, notwithstanding Buford v. Houtz, 133 U. S. 320); Scott v. Carew (196 U.S. 100); United States v. Hodges (218 Fed. 87); Stockley v. United States (271 Fed. 632).

Examination of the pertinent case law and statute law makes it clear that the President has the power to make the proposed withdrawal order, and that the order would be effective to terminate the unregulated grazing on the public lands involved.

II

There is no specific legislative authorization for the Secretary of the Interior's regulation of Federal grazing districts, but specific legislative authorization is not needed. The proposed order's desig

nation of the Secretary of the Interior as the official to regulate grazing upon the lands withdrawn clearly places the lands under his jurisdiction; and this designation of jurisdiction or regulatory authority is consonant with the Secretary's "general powers over the public lands as guardian of the people." And, having jurisdiction over the land withdrawn, the Secretary of the Interior, by virtue of his general authority, may prescribe such rules and regulations as are necessary to effectuate the public purposes for which the withdrawal and reservation are made.

There is a general statutory authorization of appropriate regulation by the Secretary of the Interior in the execution of those land. laws not otherwise specially provided for. In Title 43 of the United States Code (which contains the public land laws, including the act of 1910 relied upon in the proposed order), section 1201 provides:

The Commissioner of the General Land Office, under the direction of the Secretary of the Interior, is authorized to enforce and carry into execution, by appropriate regulations, every part of the provisions of this title not otherwise specially provided for.

Rules and regulations which had no statutory basis of authority other than the section set forth above have been given judicial sanction by the Supreme Court of the United States. Caha v. United States (152 U.S. 211, 216); Roughton v. Knight (219 U.S. 537).

When the general authorization of Executive regulation (R.S. 2478, 43 U.S.C. 1201) is considered in the light of the withdrawal power granted in the act of 1910 (36 Stat. 847, 43 U.S.C. 141) and elaborated in section 10 of the Stock-raising Homestead act of December 29, 1916 (39 Stat. 862, 43 U.S.C. 300) the inevitable conclusion is that the Secretary of the Interior has legislative authority to prescribe such regulations for public lands withdrawn under the act of 1910 as are necessary and proper to effectuate the public purposes of the withdrawals.

This conclusion is borne out by judicial pronouncements of the general powers of the Secretary of the Interior over the public lands. Williams v. United States (138 U.S. 514, 524); United States v. Wilbur (283 U.S. 414, 419).

Finally, since effective exercise of the well-established Executive withdrawal power requires the concomitant power to regulate for the purposes for which the withdrawn lands are reserved, policy favors the legal conclusion I have reached.

Approved:

T. A. WALTERS,

First Assistant Secretary.

LANDS OF PAPAGO INDIANS

Opinion, March 7, 1934

PAPAGO INDIAN LANDS-TITLE-PROPRIETORSHIP OF THE UNITED STATES-INDIAN RIGHT OF OCCUPANCY-RIGHT TO MINERALS.

Held, That under dominion of Spain and Mexico the Papago Indians did not have title in fee to the lands they occupied; that in 1853, through the Gadsden Purchase, the United States acquired title to these lands, subject to an Indian right of occupancy of an area not exactly determined; that no interest in minerals was accessory or incidental to whatever surface rights the Indians may have enjoyed; that complete and unincumbered title to minerals in the land was formerly vested in the Mexican State and passed to the United States upon cession of the territory; that the appropriate manner of protecting the Papagos in their possession is a matter exclusively of political cognizance.

INDIANS AND INDIAN LANDS-JURISDICTION AND OWNERSHIP RESULTING FROM DISCOVERY-TITLE TO SPANISH AND MEXICAN LANDS-SUCCESSORSHIP. It was accepted legal theory of the European nations which colonized America that upon discovery of any new lands complete jurisdiction and ownership became vested in the sovereign to whom the discoverer owed allegiance, from which it follows that all rights or titles to lands once a part of Mexico, vested in private persons, severally or in groups, must derive their legal character from the Spanish crown or succeeding proprietors.

PAPAGO INDIAN LANDS-LAW GOVERNING LAND TITLES.

Spanish and Mexican law are decisive of the question of the title under which the lands of the Papago Indians are held.

INDIANS AND INDIAN LANDS NATURE OF GRANT BY SPANISH CROWN.

The numerous decrees of the monarchs of Spain protecting Indians in their occupation of lands are not in effect a grant of complete title to Indian communities in possession generally.

PAPAGO INDIAN LANDS-TITLE BY COMMUNITY OWNERSHIP REQUISITES.

A claim of tribal ownership of a large land area cannot be established without a fixing of boundaries, and ownership by village communities can be established only if such communities can be defined.

INDIAN LANDS-TITLE-UNITED STATES COURTS-CONFIRMATION OF GRANTS MADE

BY SPANISH OFFICERS.

By confirming the acts of Spanish officers in granting lands which were in Indian possession, United States courts, Federal and State, have accorded recognition to the doctrine that title to lands held by Indians in Mexico was not a fee simple title.

PAPAGO INDIAN LANDS-OWNERSHIP OF MINERALS BY THE SPANISH CROWNSUCCESSORSHIP BY THE UNITED STATES.

Since the cession to the United States of the territory which embraces the Papago lands, the courts in this country have recognized the ownership of mines by Spain and Mexico before the cession as well as the succession of the United States to that ownership, and the Supreme Court has stated expressly that under Spanish law minerals in Indian lands were the property of the Crown; also the Executive and Legislative branches of the Federal Government have likewise recognized the succession of the Federal