extinguished, with the requisite discovery, with surface boundaries marked and notice posted, could adopt these antecedent steps, and manifest their adoption by then recording his notice of location in the proper office, and by so doing and performing the amount of labor and making improvements could date his rights from that day;1and this doctrine also met with the approval of the supreme court of the United States.2 The general rule with reference to mining claims within Indian reservations was first announced by the supreme court of Dakota in the case of French v. Lancaster; but no written opinion was filed. In this case it seems that both parties litigant, being rival mineral claimants in pari delictu, stipulated to waive all objections that might have been raised to evidence of acts of location and appropriation performed prior to the extinguishment of the Indian title. The trial court acted upon the stipulation, and determined the case regardless of the existence of the reservation.1 The appellate court, however, held that public policy required that notice should be taken of the facts, and held the attempted locations invalid. The general doctrine announced in this case was followed by the same court in a later case." The land department has uniformly adhered to the doctrine that the occupancy and location of mining claims. within an Indian reservation prior to the extinguishment of the Indian title is an open violation of solemn treaty obligations, and without even a shadow of right." Manifestly, the precise time when the Indian title becomes effectually extinguished, and the reserved lands 1 Caledonia G. M. Co. v. Noonan, 3 Dak. 189. 2 Noonan v. Caledonia G. M. Co., 121 U. S. 393. 32 Dak. 346. 4 See Golden Terra M. Co. v. Mahler, 4 Morr. Min. Rep. 390, 405. 5 Golden Terra M. Co. v. Smith, 2 Dak. 374, 462. 6 Townsite of Deadwood v. Mineral Claimants, 8 Copp's L. O. 153; Rattlesnake Jack Placer, 10 Copp's L. O. 87; Crow Indian Reservation, Copp's Min. Lands, 236; Circ. Instructions, 3 L. D. 371; 6 L. D. 341. In a recent case decided by Judge Hanford, sitting as circuit judge for the district of Washington, it was held in the case of the Colville become open to entry and occupation for any purpose, depends upon the facts of each particular case.1 185. Effect of creating an Indian reservation embracing prior valid and subsisting mining claims. The land department, following the opinion of the attorneygeneral with reference to military reservations," has held that mining claims valid and subsisting cannot be included within an Indian reservation set apart after the location of such claims so as to deprive the locator of his previously acquired rights. Where an Indian reservation has been made including such claim, the locators may show by proper proof, that their claims were valid and subsisting at the date of such reservation." Considering the dignity accorded to a mining title, perfected and acquired at a time when the lands were a part of the public domain, we think the ruling in harmony with the spirit and intent of the mining laws. Should the claim, however, become forfeited, after the reservation was created, it would not be open to relocation, but would become subject to the reservation. No new right could be initiated after the original right lapsed. The creation of the reservation would operate as an intervening obstacle, cutting off subsequent locations, as well as preventing the Indian reservation that the act of congress opening a part of it pro tanto annulled the executive order creating the reservation and restored the lands to the public domain, subject only to the right of the Indians to make selection for allotments in severalty. For this purpose settlements upon and entries of agricultural lands must be postponed under the act until six months after the president's proclamation opening the lands; but prospectors and miners are not required to wait for the proclamation to open the tract to exploration for minerals, mineral lands not being subject to allotment to the Indians. Collins v. Bubb, 73 Fed. 735. By act of Feb. 20, 1896, the mineral land laws were extended to the north half of this reservation. (1st sess. 54th Cong., p. 9.) 1 Congress has passed several special acts opening lands within Indian reservations to occupation, location, and purchase, under the provisions of the mineral laws only, with a preference right of purchase to those who had located prior to the opening of the reservation - for example, the Blackfeet, Fort Belknap, and San Carlos reservations. (1st sess. 54th Cong.) See, post, 192. 3 Chief Moses Indian Reservation, 9 Copp's L. O. 189. restoration of the estate of the original locator by resumption of work. 186. Conclusions. We announce the following as our conclusions from the foregoing exposition of the law: No right to appropriate a mining claim within the limits. of an Indian reservation can be initiated so long as the Indian title remains unextinguished. Acts which in the absence of such reservation might be valid may be adopted upon the extinguishment of the Indian title, if such adoption is manifested by perfection of the location and the performance of the required work or making improvements. Otherwise, the claim may be located by the first-comer, regardless of the acts done by others while the land was withdrawn from the public domain. A mining claim valid and subsisting at the time an Indian reservation is created is not affected by such reservation, nor are the rights of the prior locator impaired, so long as he perpetuates his estate by the performance of the requsite annual labor; but upon the abandonment or forfeiture of the claim, it becomes subject to the reservation; nor can the estate of the original locator be restored by resumption of work. ARTICLE VII. MILITARY RESERVATIONS. 190. Manner of creating and 192. Effect of creating a military abolishing military reser vations. ? 191. Status of mining claims lo cated within the limits of a subsisting military res- reservation embracing prior valid and subsisting mining claims. 190. Manner of creating and abolishing military reservations. The method of creating military reservations is thus outlined by Mr. Donaldson: "The commanding officer of a military department rec"ommends the establishment of a reservation, with certain "boundaries; the secretary of war refers the papers to the "interior department, to know whether any objection exists 66 "to the declaration of the reserve by the president. If no objection is known to the general land office, and it is so "reported, the reservation is declared by the president, upon "application of the secretary of war for that purpose, and "the papers are sent to the general land office, through the "secretary of the interior, for annotation upon the proper "records. If upon surveyed land, the United States land "officers are at once instructed to withhold the same from disposal, and respect the reservation. If upon unsurveyed "land, the United States surveyor-general is furnished with "a full description of the tract, and is instructed to close "the lines of public surveys upon the outboundaries of the "reserve; the United States land officers are also instructed "not to receive any filing of any kind for the reserved "lands."" 66 The authority of the president, acting through the secretary of war and his officers, to have posts and forts established, with a proper quantity of ground appropriated for military purposes, is unquestioned." Such reservation is vacated, or "reduced," by executive proclamation. Whenever in the opinion of the president of the United States the lands, or any portion of them, included within the limits of any military reservation have become useless. for military purposes, he causes the same, or so much thereof as he shall designate, to be placed under the control of the secretary of the interior for disposition under the general laws relating to the public lands, and causes to be filed with the secretary of the interior a notice thereof.3 The lands thus restored are not always opened immediately for entry and settlement for agricultural purposes. Congress usually provides for their sale or extends the privilege of settlement upon them under the homestead laws. But with reference to mineral lands, the act of July 5, 1884,* in terms provides that whenever any lands 1 Public Domain, 249. 2 Wilcox v. Jackson, 13 Peters, 498; Stone v. United States, 2 Wall. 525; Grisar v. McDowell, 6 Wall. 381. Act of July 5, 1884, 23 Stats. at Large, 103. See, also, Act of Aug. 23, 1894, 28 Stats. at Large, 491; Act of Feb. 15, 1895, Id. 664. 423 Stats. at Large, 103. containing valuable mineral deposits shall be vacated by the reduction or abandonment of any military reservation under the provisions of the act, the same shall be disposed of exclusively under the mineral land laws of the United States. 2191. Status of mining claims located within the limits of a subsisting military reservation. Every tract set apart for some special use is reserved to the government, to enable it to enforce that use; and there is no difference in this respect whether it be appropriated for Indian occupancy or for other purposes. There is an equal obligation resting on the government to see that neither class of reservation is diverted from the uses to which it was assigned.' Much that has been said in the preceding articles with reference to Indian reservations applies with equal force to military reservations. In an opinion given by AttorneyGeneral McVeagh to the secretary of war, that officer was advised that mineral lands might be included in reservations for military purposes, and they are not subject to appropriation by mineral claimants while such reservation exists. And this is the rule recognized by the land department.3 The law is too well settled to require discussion, that no right exists under any of the public land laws to invade the limits of a subsisting reservation for the purpose of initiating a title to the lands therein. The creation of the reservation is a withdrawal of the lands from the operation of the public land laws; and so long as such reservation remains in force, no entry thereon. can be lawfully made under the mining or other public land laws. 192. Effect of creating a military reservation embracing prior valid and subsisting mining claims.—Mr. Armstrong, while acting commissioner of the general land 1 Leavenworth L. & G. R. Co. v. United States, 92 U. S. 733. 3 Sucia Islands, 23 L. D. 329. |