HE POLICY OF LEASING DEPOSITS OF NONMETALIFEROUS MINERALS AND WATER-POWER SITES ON THE PUBLIC DOMAIN

(Extract from a speech of Hon. Carl Hayden of Arizona in the House of Representatives, January 11, 1916)

Mr. FERRIS. Mr. Speaker, I move that the House resolve itself to Committee of the Whole House on the state of the Union for the urther consideration of the bill (H. R. 406) to authorize exploration or and disposition of coal, phosphate, oil, gas, potassium, or sodium. The motion was agreed to.

Mr. HAYDEN. Mr. Chairman, I do not intend to speak upon the erms of the pending measure. The bill speaks for itself. I have, owever, thought it important to discuss the general principles upon hich this legislation is based, because it has been charged that this ill is in violation of the moral, legal, equitable, and constitutional ights of the Western States.

Does the United States own the public lands in the Western States nd has Congress the same power to sell, to lease, or to reserve these ands as any other private proprietor who may own lands within hese States? A majority of your Committee on the Public Lands as answered this question in the affirmative, for without reaching uch a conclusion it would have been impossible to have reported this ill in its present form. When we agree that the United States holds he public lands as owner, then there is a logical reason for every rovision in this measure.

A minority of the committee believe that the United States holds hese lands not as owner but as trustee. The minority report says: It is true that the legal title to the public domain rests in the United States, out that title is simply held in trust with the ultimate object that it shall be ransferred to the people who will develop it and thereby make possible the reation of or the maintenance of independent States of the Union. It was said n Shively v. Bowlby (152 U. S. 1, 49):

"The territory is held by the United States for the benefit of the whole people nd in trust for the several States to be ultimately created out of that territory." To prove this contention the minority report refers to the terms of the cession to the United States of the western lands belonging o Virginia and the others of the original thirteen States. Prior o the adoption of the Articles of Confederation certain of the States, ncluding Maryland and New Jersey, six in all, insisted that the vestern lands claimed by the remaining seven States of the Conederation ought to be handled for the general good of the entire Confederation and not retained and dsposed of by the individual States alleging ownership thereof. The matter was formally laid efore Congress by the State of Delaware February 23, 1779; by he State of Maryland May 21, 1779. New York, claiming 202,187 cres, was the first to respond, her delegates on March 7, 1780,

presenting an act proposing to relinquish the lands claimed by her in the West

with respect to the jurisdiction as well as the right or preemption of sale, or the right or preemption of sale only, shall be and inure for the use and bereft of such of the United States as shall become members of the Federal alliance t the said States and for no other use or purpose whatever.

On receipt of this document the Congress of the Confederatio adopted a resolution providing—

that the unappropriated lands which may be ceded or relinquished to the United States by any particular State * * * shall be disposed of for the common benefit of the United States * * * that the lands shall be granted or settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled or any nine or more of them.

Thereafter, and in compliance with the resolution, the following States made cessions of their territory in the West to the United States: New York, March 1, 1781; Virginia, March 1, 1784: Massachusetts, April 19, 1785; Connecticut, September 13, 1786, atd May 30, 1800; South Carolina, August 9, 1787; North Carolina February 25, 1790; Georgia, April 24, 1802.

The lands so ceded involved a total of 259,171,780 acres of land extending as far south as the Gulf of Mexico, as far west as the Mississippi River, and as far north as the Great Lakes.

A decision of the Supreme Court, rendered in 1845, is quoted t show that the transaction between the United States and the original States constituted a contract and created a trust under which th United States secured control of the public lands, and that the United States holds the public lands for temporary purposes only and in trust for the States wherein they lie.

Allow me to read from the minority report:

In the case of Pollard's Lessee v. Hagan (3 How. 212) the Supreme C of the United States with great learning discusses these contracts between *** several States and the United States and the meaning and force of the tutional provisions thereafter passed. It is there declared as to the Govertime lands within such States that the United States never held any munisina s ereignty, jurisdiction, or right of soil in and to their territory, or in and ot territory of any of the new States, excepting the right over them of executing t trust, which trust was to provide for their disposition by cessions or sale. It further held that every new State comes into the Union upon terms of e with all other States, and such an equality can not exist if in any one State exercises sovereign powers over the lands, while in another it has disposed such lands, or in the execution of its trust must dispose of them. In Cre Smith (221 U. S. 559) these doctrines are reasserted and affirmed, and the pe of the United States to pass any law which will create inequality between States has repeatedly by the Supreme Court of the United States itse declared to be void and of no effect. (New Orleans v. De Armas, 9 Pet Groves v. Slaughter, 15 Pet. 449; Illinois Central R. R. v. Illinois, 146 387; United States v. McBratney, 104 U. S. 621; Hardin v. Shedd, 190 * 508; United States v. Winans, 198 U. S. 371.)

The conclusion reached in most of these cases is based upo fact that the deeds from Virginia and all but two of the State ceded their lands to the United States provided that these la should be erected into new States that should be equal in err respect to the original States. It is, therefore, argued that the public lands are disposed of, the new States are not on a for of equality with the original States. This is the basis for the des made by certain western governors that the public lands ma * transferred to the States wherein they are located.

Unfortunately for the minority there is another line of decision by he Supreme Court which hold that the United States owns the ublic lands.

By the act of Congress of March 3, 1807, Congress authorized the President to lease lead mines in Indiana Territory for terms not exeeding five years. In the case of the United States v. Gratiot et al. 14 Pet. 526) it was contended that Congress had no power to authorze leases of public lands and obtain profits from working mines; that Congress can not delegate the power to lease public lands. The Supreme Court, in substance, held that the power over the public lands s vested in Congress by the Constitution, without limitation; that he words "dispose of" the public lands, used in the Constitution, can not, under the decisions of the Supreme Court, receive any other contruction than that Congress has power to authorize the leasing of ead mines in the public lands in the Territories of the United States. The court further states that the State of Illinois subsequently created out of a part of the Territory involved, "can not claim a right to the public lands within her limits. It has been the policy of the Government at all times, in disposing of the public lands, to reserve the mines for the use of the United States, and their real value can not be ascertained without causing them to be explored and worked under proper regulations."

In the case of Light v. United States (220 U. S. Rep. 536), the Supreme Court said:

* *

* * * The Nation is an owner, and has made Congress the principal agent to dispose of its property. * Congress is the body to which is given the power to determine the conditions upon which the public lands shall be disposed of. (Butte City Water Co. v. Baker, 196 U. S. 126.) The Government has with respect to its own land the rights of an ordinary proprietor to maintain its possession and prosecute trespassers. It may deal with such lands precisely as an ordinary individual may deal with his farming property. It may sell or withhold them from sale. (Čamfield v. United States, 167 U. S. 524.) And if it may withhold from sale and settlement, it may also as an owner object to its property being used for grazing purposes, for "the Government is charged with the duty and clothed with the power to protect the public domain from trespass and unlawful appropriations.' (United States v. Beebe, 127 U. S. 342.)

The United States can prohibit absolutely or fix the terms on which its property may be used. As it can withhold or reserve the land, it can do so indefinitely. (Stearns v. Minnesota, 179 U. S. 243.) It is true that the "United States do not and can not hold property as a monarch may for private or personal purposes." (Van Brocklin v. Tennessee, 117 U. S. 158.) But that does not lead to the conclusions that it is without the rights incident to ownership, for the Constitution declares, section 3, Article IV, that "Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or the property belonging to the United States." The full scope of this paragraph has never been definitely settled. Primarily, at least, it is a grant of power to the United States of control over its property. (Kansas v. Colorado, 206 U. S. 89.)

All the public lands of the Nation are held in trust for the people of the whole country. (United States v. Trinidad Coal Co., 137 U. S. 160.) And it is not for the courts to say how that trust shall be administered. That is for Congress to determine. The courts can not compel it to set aside the lands for settlement, or to suffer them to be used for agricultural or grazing purposes, nor interfere when, in the exercise of its discretion, Congress establishes a forest reserve for what it decides to be national and public purposes. In the same way and in the exercise of the same trust it may establish a reserve and devote the property to some other national and public purpose. These are rights incident to proprietorship, to say nothing of the power of the United States as a sovereign over the property belonging to it.

Mr. SLOAN. Mr. Speaker, will the gentleman yield?

Mr. HAYDEN. Certainly.

Mr. SLOAN. I desire to ask a question purely for information The gentleman says that the Congress has not the full power of control or ownership that a monarch would have under other forms of government. Does the United States have any less dominion or power or right of ownership over the public lands than a monare would have in another country?

Mr. HAYDEN. I was quoting from a decision of the Supreme Cour of the United States, where that statement is made. In another case the court said that the statement that the United States do not and can not hold property as a monarch may, for private or persta purposes, does not lead to the conclusion that it is not without the rights incident to ownership, for the Constitution declares that Congress shall have the power to dispose of the public lands.

Mr. SLOAN. Is there any power over land owned by the Gover ment that the Government can not exercise, either to alienate it any way or to use it or cultivate it under the direction of its servants Mr. HAYDEN. According to one line of decisions of the Suprem Court of the United States, the question asked by the gentlema is answered in the affirmative. On the other hand, there is anothe line of decisions inconsistent with the cases that I have just met tioned in which the court holds that the United States can not use its lands for purposes which would create inequality among t States.

Both the majority and the minority of the Public Lands Co mittee are therefore at liberty to quote our highest tribunal in saf port of their views and with equal vehemence to urge that Supreme Court is with them.

As a Representative from Arizona, however, I do not have to na the contradictory decisions of the Supreme Court to find out whet or not the United States owns the public lands that are within th boundaries of my State. Congress and the people of Arizona entered into an agreement which settles that question forever. T enabling act, under which Arizona was admitted into the Union an equal footing with the original States," provides that the pe of the State shall agree to forever disclaim all right and title to public lands. Congress passed this act, and the people of Arz adopted an irrevocable ordinance as a part of their constit which is as follows:

The people inhabiting this State do agree and declare that they for claim all right and title to the unappropriated and ungranted public an within the boundaries thereof and to all lands lying within said owned or held by any Indian or Indian tribes, the right or title to w have been acquired through or from the United States or any prior soven and that until the title of such Indian or Indian tribes shall have b guished the same shall be and remain subject to the disposition and var absolute jurisdiction and control of the Congress of the United States. Another ordinance in the constitution of the State of Arizona as follows:

There are hereby reserved to the United States with full acquiescerce d this State all rights and powers for the carrying out of the provisions United States of the act of Congress entitled "An act appropriating from the sale and disposal of public lands in certain States and Tentor the construction and irrigation works for the reclamation of arid latis June 17, 1902, and acts amendatory thereof or supplementary then same extent as if this State had remained a Territory.

SELECTIONS IN ARIZONA

Section 28 of the enabling act admitting the State of Arizona into ne Union contains the following provision:

There is hereby reserved to the United States and excepted from the operaon of any and all grants made or confirmed by this act to said proposed State l land actually or prospectively valuable for the development of water power power for hydroelectric use or transmission and which shall be ascertained nd designated by the Secretary of the Interior within five years after the proclanation of the President declaring the admission of the State; and no land so eserved and excepted shall be subject to any disposition whatsoever of said tate, and any conveyance or transfer of such land by said State or any officer hereof shall be absolutely null and void within the period above named; and in eu of the land so reserved to the United States and excepted from the operaon of any of said grants there be, and is hereby, granted to the proposed State m equal quantity of land to be selected from land of the character named and the manner prescribed in section 24 of this act.

DEPARTMENT OF THE INTERIOR,

REGISTER AND RECEIVER,

Phoenix, Ariz.

GENERAL LAND OFFICE, Washington, September 23, 1914.

SIRS: By Executive order of September 5, 1914, the hereinafterdescribed lands in Arizona, involving, with other lands not in your Histrict, approximately 40,000 acres, were withdrawn from settlement, location, sale, or entry and reserved for water-power sites as power-site reserve No. 446, subject to the limitations, provisions, exceptions, and conditions contained in the act of Congress entitled 'An act to authorize the President of the United States to make withdrawals of public lands in certain cases," approved June 25, 1910 36 Stat. 847 as amended by the act of August 24, 1912 (37 Stat. 197)).

GILA AND SALT RIVER MERIDIAN, ARIZ.

All lands within a quarter of a mile of Colorado River within the ollowing unsurveyed townships:

All lands located on the north or west bank of Colorado River within a quarter of a mile thereof, in the following unsurveyed townships and portions of townships: