Further on in the opinion the court says that notwithstanding the language of the statute of 1834, that all the land in. Illinois shall be disposed of under the preemption laws, it may nevertheless be sold by the President or leased by the President under the previous law applicable to mining land.

Now, as was suggested by Mr. Vaile on yesterday, or at one of the former sessions of the committee, in 1872, on May 10, Congress enacted the present mining law, which is general in its terms. Its language is all-inclusive; its language is very similar in phraseology to the language in the Statute of 1807, and reserves all mineral land belonging to the United States from disposition except in the special manner that Congress may thereafter prescribe. Let me read that. Mr. Vaile handed me the book but I happened to have it here already. Major Dyar wanted me to read it and I want to read it. I said I would read it later but I wanted to read it in its proper place, and here it is. The act of May 10, 1872, known as the mining law, was afterwards carried forward into our Revised Statutes of the United States, and the section I have reference to became section 2318 of the Revised Statutes, and reads as follows:

"In all cases lands valuable for minerals shall be reserved from sale except as otherwise expressly directed by law."

Now, observe, gentlemen, please, the all-inclusive language that is used there, "in all cases lands valuable for minerals shall be reserved." That is language just like the language of the act of 1807. The next section provided that:

"All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States."

The Supreme Court of the United States has said in reference to this section, gentlemen, that that was an invitation by Congress to the pioneer citizens of this country to develop the vast domain of our Western States and to increase the wealth of our country-and that declaration has been repeated time after time by the courts of the various mining States and by the Federal courts-that is, that it was an invitation to our citizens to go out on the public lands and explore them and bring the hidden wealth in the earth to the surface, and to thus increase the general wealth of this country.

Now, that language does not say that it is applicable in Oregon, California, Colorado, Wyoming, Montana, and other Rocky Mountain States. It is a general law and refers to all lands belonging to the United States, wherever situated. Now, after that, Congress specifically exempted from the operation of the general mining statute the lands of six States, namely, Alabama, Missouri, Kansas, Minnesota, Wisconsin, and Michigan, but no other States. The language that was used by Congress in withdrawing the operation of this law from Government lands in those States was specific and direct, and was not susceptible of any misconstruction. Nowhere else has Congress withdrawn any of the lands that belong to the United States from appropriation under the mining laws.

Mr. RAKER. Except the railroad grants.

Colonel ROOTE. They were granted to other people, of course. The courts, in construing this statute, have read into it that it means the mineral lands

except such as have been appropriated either by some one else or by the Government itself. Of course, the Government granted lands to the railroads, and it appropriated those lands for the benefit of the railroads, and to help the railroads develop the country and to build the roads. Let me call your attention to the acts applying to Alabama, Kansas, Michigan, Missouri, Minnesota, and Wisconsin. I read now from page 24 of my brief. The CHAIRMAN. Was this land in question ever at any time classified as oil land?

Colonel ROOTE. No, sir; it was never classified as any kind of land, and I will speak of that in a moment. I hve a decision on that very question, and I will come to that right now. It is my contention that the mineral laws still apply to Oklahoma, because Congress has never expressly said that they do not apply. The language being so general, applying to every State, I should say that if the Government owned land in Maine or in Florida it would apply to it.

Here is what I said on that subject:

"If it had been the intention of Congress to exclude the mineral lands' in Oklahoma from appropriation under the general mining laws, it certainly would have said so in apt language, leaving no uncertainty about the matter. Had it been the intention of Congress to exclude mineral land in Oklahoma from the operatioin of the general mining laws, Congress would have undoubtedly used some such clear and explicit language as was used in the act of May 5, 1876 (19 Stat. 52), where the following language is used with respect to the mineral lands in the States of Missouri and Kansas, to wit, ¿ that within the States of Missouri and Kansas deposits of coal, iron, lead, or other mineral be, and they are hereby, excluded from the operation of the act entitled "An act to promote the development of the mining resources of the United States," approved May 10, 1872.'

"We call attention also to the act of Congress excluding the mineral lands of Alabama from the operation of the general mining laws. That was done under the act of March 3, 1883 (22 Stats. L., p. 487), providing as follows: "That within the State of Alabama all public lands, whether mineral or otherwise, shall be subject to disposal only as agricultural lands.""

It says whether mineral land or otherwise, it shall be subject to disposal only as agricultural land.

Mr. BURTNESS. The only substantial difference between that language you have quoted and the language applicable to Oklahoma land is the inclusion of the phrases" whether mineral or otherwise." If you should omit that language, the act would be substantially the same.

Colonel ROOTE. Yes, sir. I shall come to a statute where those words are not included, and where the Supreme Court held that it did not apply to mineral lands.

Mr. RAKER. The State of Oklahoma was formed out of the Indian Territory and the Territory of Oklahoma, was it not?

Colonel ROOTE. Yes, sir; out of two Territories.

Mr. RAKER. Was this land in what was known as Indian Territory?

Colonel ROOTE. No, sir; Oklahoma Territory.

Mr. DYAR. But all of it had been in Indian Territory.

Mr. RAKER. I want to know whether all of this land in Oklahoma was at one time in Indian Territory?

Mr. DYAR. Yes.

Mr. RAKER. Do you admit that, Colonel Roote?

Colonel RoOTE. No, sir. If you use the term "Indian Territory

" to mean

the land, then it is true that the present State of Oklahoma was once in the

so-called Indian Territory. That was the name of a Territory. There was a Territorial government, although different from the other Territorial governments in the country. However, it was a Territory of the United States, and the United States exercised sovereignty over it.

Mr. RAKER. That was the Indian Territory?

Colonel RoOTE. Yes, sir,

Mr. RAKER. Was it not divided?

Colonel ROOTE. It was later divided, and Oklahoma had the western part and Indian Territory had the eastern part. Two Territories were created. The land on the north side of the river at this place was never what was called Indian land.

Mr. RAKER. That is not the question I asked at all. I wanted to know whether or not this tract was in what was called Indian Territory?

Colonel RooTE, Yes, sir; it was at one time. At the time Oklahoma became a State it was in the Territory of Oklahoma, which was a Territory just like Arizona, New Mexico, and the other Territories.

Mr. DYAR. The Territory of Oklahoma was practically the western half, between irregular boundaries, of the present State of Oklahoma and of the old Indian Territory. Now, Oklahoma was created a Territory in 1891. It consisted then mainly of Indian lands, although some of the Indian titles had already been extinguished.

Mr. RAKER. That is what I was coming to.

Mr. DYAR. That is to say, the Seminoles and one other tribe had ceded their lands, and then this general act was passed creating the Territory, in which provision was made for extinguishing those titles, and they were extinguished. Therefore, as a matter of fact, the mining laws never applied to them.

Mr. RAKER. What I was getting at was whether this land was considered to be in the Indian Territory and whether it was considered as finally disposed of by the various treaties, acts, etc., relating to that Territory.

Mr. DYAR. Every part of it has been Indian land, except possibly the south half of the Red River.

Colonel ROOTE. That is what I was talking about. I say that that was not Indian land.

Mr. RAKER. I want to ascertain whether or not it was by a mistake that the line at the south end of the Red River was arrived at.

Colonel ROOTE. First, before any of this land was Indian territory, it was United States territory. It was United States territory when it was acquired from France in 1803. It was not Indian territory then.

Mr. RAKER. Did we send the Inidans over there and put them on this land, and did they assume control of it?

Colonel ROOTE. They were sent there, and a specific tract of land was given to them for grazing purposes.

Mr. RAKER. Did that include the land north of the line in controversy? Colonel RoOTE. Yes, sir.

Mr. RAKER. That was the situation?

Colonel ROOTE. Yes, sir; but the government was not turned over to the Indians. The United States still exercised the governmental functions. There was no difference between that territory and Arizona territory; it was all territory of the United States. The Indians did not exercise the governmental function, and they did not have all of the land in that territory. They only had the specific portions that were described in the various treaties or acts of Congress setting the land apart for their use. It is true that the major part of the land now known as Oklahoma was set apart for Indians,

but this land was not, and before any land was set apart for the Indians all of it belonged to the United States of America. The United States owned it in sovereignty and in fee. After it was made a Territory, there was a government there, but the Indians did not exercise the functions of government. The United States courts were there before and after Oklahoma Territory was created.

Now, when Utah became a State, in the enabling act Congress ceded to the State of Utah all sections of certain numbers in that State. The law did not say, "All lands except those containing minerals," but it said "sections 16 and 36"-I believe they were-belong to the State. Every section 16 and every section 36 was ceded to the State of Utah. Every such section within the exter rior boundaries of Utah was ceded to the State. That seems to be perfectly plain. Under that law the State of Utah disposed of a large number of those sections and, among others, disposed of some containing mineral. After this was done a suit was brought by the United States against a grantee of the State of Utah with respect to one of those sections, the suit being based upon the contention that although the act of Congress specifically gave to Utah every section 16 within the State, this particular section contained minerals: and that although Congress did not reserve the sections containing minerals. it would not be deemed to have departed from its previous policy of reserving all mineral lands for disposition under the mining laws. That case came to the Supreme Court of the United States. It is a very recent case, reported in the 245 U. S., at page 563. It is the case of the United States v. Sweet, I will read the following extract from our brief:

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'In United States r. Sweet (245 U. S. 563), in deciding whether Congress intended to grant to the State of Utah certain sections of land in that State, regardless of whether the said land contained mineral or not, where there were no words of exception in the grant, this court uses the following language:

"In the legislation concerning the public lands, it has been the practice of Congress to make a distinction between mineral lands and other lands, to deal with them along different lines, and to withhold mineral lands from disposal save under laws specially including them. This practice began with the ordinance of May 20, 1875 (10 Journals of Congress, Folwell's Ed. 118), and was observed with such persistency in the early land laws as to lead this court to say in United States v. Gratiot (14 Peters, 526): “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 also to hold in United States v. Gear (3 Howard, 120), that an act making no mention of lead-mine lands and providing generally for the sale of "all the lands" in certain new land districts, reserving only" designated tracts, any law of Congress heretofore existing to the contrary notwithstanding," could not be regarded as disclosing a purpose on the part of Congress to depart from "the policy which had governed legislation in respect to lead-mine lands," and so did not embrace them. A like practice prevailed in respect of saline lands, in Morton v. Nebraska (21 Wall. 660), where a disposal of such lands under an act providing generally for the sale of lands in certain territories was drawn in question, this court said, that it could not be supposed "without an express declaration to that effect" that Congress intended by such an act to permit the sale of saline lands and thus to depart from "a long established policy by which it had been governed in similar cases.'

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Now, gentlemen, just a few more words on this, and then I want to resume the history of the activities. We have here the general mining law, passed on May 10, 1872, in which it is, in substance, declared that all lands belonging to

the United States that contain minerals shall not be disposed of in any manner except as specially provided by Congress. That is to say, in no manner except under the mining laws.

Mr. RAKER. I am trying to find out the history of this matter. Before this land was authorized to be disposed of to the Indians, was it withdrawn in any manner by the Government, or was the public prohibited from entering it?

Colonel ROOTE. Do you mean withdrawn from the operation of the mining laws?

Mr. RAKER. I did not say the mining laws. I mean any laws.

Colonel ROOTE. No, sir; it was still United States land. I do not think that the Government ever parted with the title.

Mr. RAKER. The land was there and they sent the Indians to it, but it was not subject to entry?

Colonel RoOOTE. I am free to confess that I do not know.

Mr. RAKER. You ought to know whether or not that land was subject to entry before they entered into a treaty with the Indians.

Mr. DYAR. I think I can explain that. The land was originally occupied, apparently, by the Paw Paw Indians. At any rate, a treaty was made between the United States and the Paw Paw Indians on May 18, 1820. A treaty was made by which the Paw Paw Indians ceded practically the whole country north of Arkansas up to the Canadian source, or up to Canada; then to the Red River, and down the Red River to the Great Raft, including nearly the whole of the State.

Mr. RAKER. Therefore, it was not subject to entry by any citizen of the United States.

Mr. DYAR. No, sir. Immediately afterwards treaties were made by which the Choctaws were granted these lands.

Mr. RAKER. Is there any statute opening this land to entry, except as it was opened by special acts?

Colonel RoOTE. Those are all I know of.

Mr. RAKER. Then to-day there is no law authorizing the opening of these lands to entry on the south side of the Red River in the United States?

Colonel RooTE. The Supreme Court has said in its decision in this case that these lands can not be disposed of under the mining laws, nor, indeed, under any law whatever. That is what it says in the decision rendered May 1. I know of no law saying that it was open for settlement. The land originally belonged to the United States, and since the mining laws are applied to all lands belonging to the United States, and it so says

Mr. DYAR (interposing). They never did apply to Indian reservations.

Mr. RAKER. Now, it is a fact that it was Indian land, and it had been disposed of, notwithstanding the mining laws. The mining laws would not be applicable to it until it was opened up to entry.

Colonel ROOTE. It is our contention that the mining laws opened for appropriation under the mining laws all lands in the United States belonging to the United States.

Mr. DYAR. Not if it was Indian land.

Colonel ROOTE. If it belonged to the United States, and this land did belong to the United States at one time, when the act of May 10, 1872, was passed. The CHAIRMAN. Was this land subject to entry under the homestead law, after the homestead law was passed in 1862?

Colonel RoOTE. No, sir. There are two reasons for that: In the first place it is not agricultural land, that is, it is not susceptible of cultivation.

The CHAIRMAN. But, assuming that it is

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