Congress places certain restrictions upon the powers of a territorial legislature, such restrictions cease to operate the moment such Territory is admitted as a State. By parity of reasoning a country ceases to be foreign the instant it becomes domestic." (De Lima v. Bidwell, 182 U. S. 1, 197.)

to

Your Department in the case of Alaska Treadwell Gold Mining Company, 40 L. D. 426, held, in effect, that the forest reservations in Alaska fell within the scope of the act of 1901, because those reservations, created by the President and recognized by Congress, must be regarded as the same in character and incidents as the forest reservations of the country in general, to which that act in terms applies. In like manner the "public lands" of Alaska must be held to have fallen within the scope of the act of 1901, and the act of 1911 also, if their general status is essentially the same as that of the "public lands which those acts refer. The term "public lands" as there used means any lands of the United States which are not held for public uses, set aside for special purposes, or affected by private rights, but which are open to private acquisition under the general public land system. (Newhall v. Sanger, 92 U. S. 761; Bardon v. Northern Pacific, 145 U. S. 535.) The public lands of Alaska satisfy this definition. Congress, before the act of 1912, had opened them to general disposition through the same mechanism and, largely, in the same ways, as had been provided for the rest of the United States. The same surveying system had been established there, the same system of land offices and land districts, the same direct and supervisory jurisdiction in your Department. The general mining law was there with all its incidents, and the homestead, townsite, coal land, and other general dispositive laws to which I have called attention above. I would notice also that Congress, as long ago as 1898, declared that the tide lands of Alaska and the beds of its navigable waters and the right to regulate the use and control the possession of such lands "shall continue to be held by the United States in trust for the people of any State or States which may hereafter be erected out of said Dis

trict" (30 Stat. 409, sec. 2), and that very recently the usual reservation of lands for educational purposes was made for the benefit of Alaska (Mar. 4, 1915, 38 Stat. 1214, ch. 181). True, some of the land laws were withheld entirely, others were extended with modifications, and still other provisions, entirely new, were adopted for Alaska alone. But the facts that the lands in a given State or Territory are not subject to acquisition under some of the general laws which apply in other localities, and are subject to acquisition under other laws which do not apply in other localities, could not be allowed to remove them from the scope of a general statute granting privileges in "the public lands of the United States." Perfect geographical uniformity has never existed in the public land scheme; many of the general laws, like the mining law and the original timber and stone law and the reclamation laws (not to add further illustrations), have been geographically restricted by their own terms. Obviously it is not upon the number of the laws through which lands may be disposed of that their status as "public lands" depends, but rather upon the fact that they are submitted to private acquisition in accordance with the policy which this country has adopted of disposing of its public domain through general rules.

Of course, Congress, for disposing of the lands in Alaska, might have adopted a plan so peculiar and distinct as to manifest an abiding policy to deal with them apart; and in that event the public lands in Alaska would not be "public lands" in the sense of any of the general land laws, and those laws would be "locally inapplicable," because their subject matter would be wholly absent from the Territory. But Congress did not do this. On the contrary, the policy has been to treat these lands as part of the common mass, and to include them gradually in the general scheme of disposition, with such special modifications and restrictions as seemed to be called for by peculiar local conditions. The remoteness of Alaska, the tardy growth of its population and industries, and the slow upbuilding of the Territorial government, are enough to explain the cautious progress of the land laws, without assigning rea

sons opposed to the general trend of what was actually done.

Before the local government was perfected, Congress thought it necessary to withhold the general land laws by express declaration. This was consistent with a purpose to extend them ultimately and a belief that the purpose would be anticipated if the declaration were omitted. With the perfection of the local government, Congress significantly omits this declaration, while proclaiming anew that all the laws of the United States, not locally inapplicable, shall extend over the Territory. It is possible that this omission may have resulted from an oversight, but I do not feel at liberty to consider it so lightly. I regard it as an omission which very logically and very properly might be expected in an organic act by which, for the first time, the people of Alaska were placed upon a parity with the people who inhabited the other Territories in the United States, and were trusted with a voice in the wielding of their own affairs. It is quite natural, I think, that Congress, in fully organizing this Territory and in thus conceding the importance and capacity of its population, should wish to offer to its citizens the same opportunity and the same incentive to develop and thrive upon the resources about them as have been accorded in all similar

cases.

I answer your question, therefore, by saying that the acts of 1901 and 1911 are applicable to the public lands in Alaska. It is hardly necessary for me to add that my finding is confined to those laws. How far the other general laws which Congress has not expressly extended to the Territory may operate consistently with the special legislation and the local conditions can only be determined in each case as it arises.

Very respectfully,

To the SECRETARY OF THE INTERIOR.

T. W. GREGORY.

JACKSON LAKE DAM-TIMBER FROM NATIONAL FOREST.

Under the act of February 21, 1911, authorizing the Reclamation Service to cooperate with private parties in carrying out projects under the Carey Act, the Kuhn Irrigation & Canal Co. may be permitted to take timber from the Teton National Forest free of charge for use in raising the dam at Jackson Lake, Wyo., which is a project authorized under the reclamation act of June 17, 1902. The Reclamation Service is not entitled to the receipts from sales of timber from lands withdrawn from public entry that the Forest Service may make to private parties for general commercial purposes.

DEPARTMENT OF JUSTICE,

July 3, 1915..

SIR: You have requested my opinion upon the following questions which have arisen in the administration of the Teton National Forest in Wyoming:

"(1) Whether under the provisions of the act of February 21, 1911 (36 Stat. 925), authorizing the Reclamation Service to cooperate with private parties in carrying out projects under the Carey Act (28 Stat. 422), the Kuhn Irrigation and Canal Company, engaged upon such a project, is entitled to timber from that forest free of charge for use in raising the height of the dam at Jackson Lake, Wyo., which is a part of the Minidoka project, constructed by the Reclamation Service under the National Irrigation Act of June 17, 1902 (32 Stat. 388), the timber to be taken from land withdrawn under the last named act for use in the construction of works authorized by that act; and

"(2) Whether the Reclamation Service is entitled to the receipts from any sales of timber from land so withdrawn that the Forest Service of the Department of Agriculture may make to private parties for general commercial purposes."

1. The national irrigation act of June 17, 1902 (32 Stat. 388) creates the "reclamation fund" out of moneys derived from the sale of public lands in certain States and Territories, to be used for all expenditures sanctioned by the act (sec. 1), and authorizes the Secretary of the Interior to locate and construct irrigation works (sec. 2), and to contract for their construction (sec. 4).

The act of February 8, 1905 (33 Stat. 706), provides: "That in carrying out the provisions of the national irrigation law, approved June seventeenth, nineteen hundred and two, and in constructing works thereunder, the Secretary of the Interior is hereby authorized to use and to permit the use by those engaged in the construction of works under said law, under rules and regulations to be prescribed by him, such earth, stone, and timber from the public lands of the United States as may be required in the construction of such works, and the Secretary of Agriculture is hereby authorized to permit the use of earth, stone, and timber from the forest reserves of the United States for the same purpose, under rules and regulations to be prescribed by him."

It can hardly be said that the Secretary of the Interior, in constructing irrigation works for the Government with authority "to use" timber from the public lands, must pay for such timber; yet his authority "to use" is given in the same terms, by the same sentence, and for the accomplishment of the same object as is his authority and the authority of the Secretary of Agriculture to "permit the use." The act of March 3, 1891 (26 Stat. 1095, 1101), grants rights of way to canal and ditch companies through "the public lands and reservations," and "also the right to take, from the public lands adjacent to the line of the canal or ditch, material, earth, and stone necessary for the construction of such canal or ditch." It would be absurd to impute to Congress an intention to require payment for material used in the construction of irrigation works for the Government when it had granted the right to take such material for the construction of similar works in private ownership.

These considerations point to the conclusion that the words "to use" and "to permit the use" as employed in the act of February 8, 1905, should be taken to mean the use and permission to use timber on the public lands and forest reserves free of charge.

This use of timber is authorized "in carrying out the provisions of the national irrigation law, approved June 17, 1902, and in constructing works thereunder." The