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ment claim had attached to these lands and was subsisting at the date of the company's attempted selection, then the selection can not stand, and it is immaterial that such settlement claim was subsequently abandoned.

Frank v. Northern Pac. R. Co., 37 L. D. 193, p. 194.
Frank v. Northern Pac. R. Co., 37 L. D. 502.

No selection was possible under this grant while the lands were unsurveyed, and the right of further selection was terminated by proclamation so long as the lands remain reserved for forestry purposes.

Northern Pac. R. Co. v. Mann, 33 L. D. 621, p. 624.

The selections of the railroad company are made under the provisions of this act. Idaho v. Northern Pac. R. Co., 37 L. D. 135.

A relinquishment duly executed by the railroad company was accepted as sufficient and the department recognized the Northern Pacific Railway Company as the successor in interest to the Northern Pacific Railroad Company to the land granted by the original act of July 2, 1864 (13 Stat. 365), and the acts amendatory and supplemental thereto, and the Northern Pacific Railway Company was authorized to select an equal quantity of nonmineral public lands classified as such at the time of the actual Government survey and to which no adverse right shall have attached at the time of making the selection, and the company is not restricted in its selection to odd-numbered sections.

Ferguson v. Northern Pac. R. Co., 33 L. D. 634, p. 636.
Comstock v. Northern Pac. R. Co., 34 L. D. 88.

3. CLASSIFICATION OF LANDS BY FIELD NOTES OF SURVEY.

The field notes of the survey of the subdivisional lines of a township clearly constitute a return or classification by the surveyor general of the entire township and each legal subdivision thereof as coal land, and the term "mineral" used in the description is intended to refer to the only mineral specifically mentioned in such field notes, and that is coal.

Brown v. Northern Pac. R. Co., 31 L. D. 29, p. 31.

The custom in surveying public lands is to make in the field notes and surveyor's returns notations of the mines, outcroppings, and evidences of valuable mineral deposits where found, and to say nothing upon the subject where no evidences of mineral deposits are found, and when the field notes and surveyor's returns make no such notation of minerals, then such lands may be considered and treated as nonmineral in the classification provided by this statute.

Davenport v. Northern Pac. R. Co., 32 L. D. 28, p. 30.
See Bedal v. St. Paul, etc., R. Co., 29 L. D. 254, p. 255.

Congress did not intend that the return made at the time of actual Government survey should be conclusive as to the character of the land, and the earlier classification under the act of February 26, 1895 (28 Stat. 683), may be considered as a matter of evidence the same as any other material fact bearing upon the character of the land.

Idaho v. Northern Pac. R. Co., 37 L. D. 135, p. 139.

By confining the right of the railroad company to a selection of land returned as nonmineral at the date of survey, the department is bound to give some weight to that return as evidence of the actual character of the land, and this return itself is prima facie evidence that the land is in fact of the character described.

Idaho v. Northern Pac. R. Co., 37 L. D. 135, p. 139.

The report of the surveyor is in effect a nonmineral return.

Bedal v. St. Paul, etc., R. Co., 29 L. D. 254.
Idaho v. Northern Pac. R. Co., 37 L. D. 135.
Northern Pac. R. Co., In re, 40 L. D. 64.

4. LANDS SELECTED IN EXCHANGE MUST BE NONMINERAL.

The words descriptive of the land which may be selected by the railroad company under this act are "nonmineral public lands classified as such at the time of the actual Government survey," and the two elements are separately enumerated, and the land selected must not have been known to be mineral in fact at the time of selection, and it must have been returned as nonmineral at the time of the Government survey.

Idaho v. Northern Pac. R. Co., 37 L. D. 135, p. 139.

The words "public lands" in this statute are qualified by the adjective "nonmineral" which precedes it, as well as by the phrase "so classified as nonmineral at the time of the actual Government survey which has been or shall be made," which follows them, and means that lands authorized by Congress to be taken by the railroad company in lieu of lands to be conveyed by it to the United States must not only be classified by the Government surveyor as nonmineral, but must be nonmineral in fact.

Northern Pac. R. Co. v. United States, 176 Fed. 706, p. 708.
Affirming United States v. Northern Pac. R. Co., 170 Fed. 498.
See Northern Pac. R. Co., In re, 40 L. D. 64, p. 67.

Any lands selected in lieu of lands surrendered must be of the general class nonmineral and must have been so classified in the past or must be so classed in the future, and the fact of their nonmineral character must exist, and while classification is essential before the right of selection attaches, yet if the lands are not nonmineral the fact that they have been so classified does not operate as a binding determination that they were not nonmineral in character so as to preclude the Government from asserting its right to have lands which are mineral in fact excluded from those out of which a selection may be made, as the true character of the land and not classification without regard to such true character is the fundamental meaning of the act.

United States v. Northern Pac. R. Co., 170 Fed. 498, p. 501.
Affirmed Northern Pac. R. Co. v. United States, 176 Fed. 706.

The Land Department is unwarranted in assuming that lands returned as nonmineral at the date of the survey are not subject to selection under this act, where the classification under the act of February 26, 1895 (28 Stat. 683), is not set up as the true one, and no question is raised as to the correctness of the return, as the railroad company is not required to overturn the earlier classification.

Idaho v. Northern Pac. R. Co., 37 L. D. 135, pp. 139, 140.
See Davenport v. Northern Pac. R. Co., 32 L. D. 28, p. 30.

Bedal v. St. Paul, etc., R. Co., 29 L. D. 254, p. 255.

Lands selected by the railroad company under this act may not in fact be mineral, but the Land Department can inquire into the question as to whether or not the lands are mineral where they are not classified as nonmineral by the return of the surveyor. Northern Pac. R. Co., In re, 40 L. D. 64, p. 66.

The question as to the mineral or nonmineral character of land to be selected is one between the Government and the railroad company, and where no protest is made against the selection upon the ground that the land selected is mineral, the company will be permitted to perfect its claim, and if the land were in fact mineral this would defeat the right of the State to take the land under a school grant.

Idaho v. Northern Pac. R. Co., 37 L. D. 135, p. 140.

5. GRANT OF LANDS IN EXCHANGE FOR LANDS "WITHIN THE GRANT."

The expressions "land grant" and "granted lands" and "lands within the grant" and similar expressions include not only the lands within the place or primary limits,

but also those within the secondary or indemnity limits, but it was not intended by this act to grant a right of selection for other lands in lieu of those which might fall within these reservations so far as they were included within the secondary or indemnity belt.

Northern Pac. R. Co. v. Mann, 33 L. D. 621, p. 624.

See Northern Pac. R. Co. v. Frei, 34 L. D. 661, p. 662.

6. SELECTION OF LANDS CLASSIFIED AS MINERAL-EFFECT.

If at the time of the filing of the application for land by the railroad company the the Land Office finds the land applied for was classified as mineral at the time of the survey, then the selection must be rejected, and if rated by the Government surveyor as nonmineral the inquiry as to the true character of the land is open to the Government up to the time of the issuance of its patent.

Northern Pac. R. Co. v. United States, 176 Fed. 706, p. 709.

See Iron Silver Min. Co. v. Campbell, 135 U. S. 286.

Williams v. United States, 138 U. S. 514.

Hawley v. Diller, 178 U. S. 476.

Diller v. Hawley, 81 Fed. 651.

7. COAL AND IRON LANDS AS MINERAL UNLESS EXCLUDED.

The special express provisions made in certain acts of Congress to aid in the construction of rules to the effect that coal and iron lands are not to be deemed mineral within the provisions of such acts show that such lands would be included as mineral if not specifically excluded, and undoubtedly the lands to be taken under this act are such as the definitions of Congress and the decisions of the courts have attached to the word "mineral" since 1864.

United States v. Northern Pac. R. Co., 170 Fed. 498, p. 500.

See United States v. Mullan, 10 Fed. 785.

Barden v. Northern Pac. R. Co., 154 U. S. 288.

Northern Pac. R. Co. v. Soderberg, 188 U. S. 526.

The general policy of Congress has been to reserve mineral lands from grants made of public lands, and coal lands are mineral lands within the meaning of this policy and as generally employed in the laws regulating disposal of the public domain.

United States v. Northern Pac. R. Co. 170 Fed. 498, p. 500.
Affirmed Northern Pac. R. Co. v. United States, 176 Fed. 706.
See Mullan v. United States, 118 U. S. 271.

Northern Pac. R. Co. v. Soderberg, 188 U. S. 526.

8. LIEU LANDS PROTECTED FROM SUBSEQUENT DISCOVERY.

The filing of a coal declatory statement nearly a year after a lieu selection under this act is regularly presented can not of itself affect the lieu selection, nor is such a selection affected by a protest filed nearly a year thereafter, in which it is stated that at the time of filing the protest the land contained mineral deposits. Davenport v. Northern Pac. R. Co., 32 L. D. 28, p. 30.

38 STAT. 699, AUGUST 22, 1914 (PUBLIC NO. 177, 63D CONGRESS).
GLACIER NATIONAL PARK-MINERALS PROTECTED.

AN ACT To accept the cession by the State of Montana of exclusive jurisdiction over the lands embraced within the Glacier National Park, and for other purposes.

Be it enacted, etc., That the provisions of the act of the legislature of the State of Montana, approved February 17, 1911, ceding to the United States exclusive jurisdiction over the territory embraced

within the Glacier National Park are hereby accepted, and sole and exclusive jurisdiction is hereby assumed by the United States over such territory, saving, however, to the said State the right to serve civil or criminal process within the limits of the aforesaid park in suits or prosecution for or on account of rights acquired, obligations incurred, or crimes committed in said State but outside of said park, and saving further to the said State the right to tax persons and corporations, their franchises and property, on the lands included in said park. * * *

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SEC. 4. * * * That the Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary and proper for the management and care of the park and for the protection of the property therein, especially for the preservation from injury or spoliation of all timber, mineral deposits other than those legally located prior to the passage of the act of May 11, 1910. (36 Stat., 354). Any person or persons, or stage or express company, or railway company, who knows or has reason to believe that they were taken or killed contrary to the provisions of this act and who receives for transportation any of said animals, birds, or fish so killed, caught, or taken, or who shall violate any of the other provisions of this act or any rule or regulation that may be promulgated by the Secretary of the Interior with reference to the management and care of the park or for the protection of the property therein, for the preservation from injury or spoliation of timber, mineral deposits, other than those legally located prior to the passage of the act of May 11, 1910 (36 Stat., 354), natural curiosities, or wonderful objects within said park, or for the protection of the animals, birds, or fish in the park, or who shall within said park commit any damage, injury, or spoliation to or upon any building, fence, hedge, gate, guidepost, tree, wood, underwood, timber, garden, crops, vegetables, plants, land, springs, mineral deposits other than those legally located prior to the passage of the act of May 11, 1910 (36 Stat., 354), natural curiosities, or other matter or thing growing or being thereon, or situated therein, shall be deemed guilty of a misdemeanor and shall be subject to a fine of not more than $500, or imprisonment not exceeding six months, or both, and be adjudged to pay all costs of the proceedings. * * *

31 STAT. 672, p. 676, JUNE 6, 1900.

INDIAN RESERVATIONS-MINERAL LANDS OPEN TO LOCATION.

AN ACT To ratify an agreement with the Indians of the Fort Hall Indian Reservation in Idaho, and making appropriations to carry the same into effect.

Be it enacted, etc. * *

SEC. 5. That on the completion of the allotments and the preparation of the schedule provided for in the preceding section, and the classification of lands as provided for herein, the residue of said ceded lands shall be opened to settlement by the proclamation of the President, and shall be subject to disposal under the homestead, townsite, stone and timber, and mining laws of the United States only, excepting as to price and excepting the sixteenth and thirty-sixth sections in each congressional township, which shall be reserved for common-school purposes and be subject to the laws of Idaho: Pro

vided, That all purchasers of lands lying under the canal of the Idaho Canal Co., and which are susceptible of irrigation from the water from said canal, shall pay for the same at the rate of $10 per acre; all agricultural lands not under said canal shall be paid for at the rate of $2.50 per acre, and grazing lands at the rate of $1.25 per acre, onefifth of the respective sums to be paid at time of original entry, and four-fifths thereof at the time of making final proof; but no purchaser shall be permitted in any manner to purchase more than 160 acres of the land herein before referred to; but the rights of honorably discharged Union soldiers and sailors, as defined and described in sections 2304 and 2305 of the Revised Statutes of the United States, shall not be abridged, except as to the sum to be paid as aforesaid.

The classification as to agricultural and grazing lands shall be made by an employee of the General Land Office under the direction of the Secretary of the Interior.

No lands in sections 16 and 36 now occupied, as set forth in article 3 of the agreement herein ratified, shall be reserved for school purposes, but the State of Idaho shall be entitled to indemnity for any lands so occupied: Provided, That none of said lands shall be disposed of under the town-site laws for less than $10 per acre: And provided further, That all of said lands within 5 miles of the boundary line of the town of Pocatello, shall be sold at public auction, payable as aforesaid, under the direction of the Secretary of the Interior for not less than $10 per acre: And provided further, That any mineral lands within said 5-mile limit shall be disposed of under the mineral land laws of the United States, excepting that the price of such mineral lands shall be fixed at $10 per acre instead of the price fixed by the said mineral land laws.

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That should any of said lands alloted to said Indians, or opened to settlement under this act, contain valuable mineral deposits, such mineral deposits shall be open to location and entry, under the existing mining laws of the United States, upon the passage of this act, and the mineral laws of the United States are hereby extended over said lands.

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A. CONSTRUCTION OF ACT.

1. MINERAL DEPOSITS ON INDIAN ALLOTMENTS.

2. MINING LAWS EXTENDED TO ALLOTTED LANDS.

3. RIGHT TO PROSPECT ALLOTMENTS FOR MINERALS-LIMITA

TIONS.

4. TIME FOR MAKING MINERAL LOCATIONS ON ALLOTMENTS.

5. MINERAL CHARACTER OF LAND-BURDEN OF PROOF.

1. MINERAL DEPOSITS ON INDIAN ALLOTMENTS.

A consideration of this entire act and of the policy of the Government in dealing with Indian allotments and with mineral deposits in public lands requires that the mineral provision of this act be read as if referring to the lands which were to be "allotted to said Indians, or open to settlement under this act," and this consideration

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