tions,' 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.2 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. Such locators have the right to go upon or across the reservation for the purpose of maintaining their right to their claims and to develop them. If their claims are abandoned or become subject to relocation, they do not lapse into the reservation, but may be relocated, and the relocator is entitled to the same privileges as are accorded to the original locator.3 186. 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 1 See, post, § 192. Chief Moses Indian Reservation, 9 Copp's L. O. 189; Navajo Indian Reservation, 30 L. D. 515. See, for an analogous case, Hibberd v. Slack, 84 Fed. 571. Navajo Indian Reservation, 30 L. D. 515. by the first-comer, regardless of the acts done by others while the land was withdrawn from the public domain.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 requisite annual labor; and upon the abandonment or forfeiture of the claim, it does not become subject to the reservation; the estate of the original locator may be restored by resumption of work, or the claim may in default of this be relocated. ARTICLE VII. MILITARY RESERVATIONS. $ 190. Manner of creating and § 192. Effect of creating a mili abolishing military reser vations. § 191. Status of mining claims lo Icated within the limits of a subsisting military tary 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: 66 "The commanding officer of a military department recommends 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 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 reserva"tion 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 secre"tary 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 66 66 66 same from disposal, and respect the reservation. If upon unsurveyed land, the United States surveyorgeneral 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."'1 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.2 This authority has been held to extend to Hawaii, where a military reservation may be carved out of the public lands.3 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.1 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, 'Public Domain, p. 249. 'Wilcox v. Jackson, 13 Peters, 498; Stone v. United States, 2 Wall. 525; Grisar v. McDowell, 6 Wall. 381. Opinion Atty.-Gen., 29 L. D. 32. Act of July 5, 1884, 23 Stats. at Large, p. 103. See, also, Act of Aug. 23, 1894, 28 Stats. at Large, p. 491; Act of Feb. 15, 1895, Id., p. 664. the act of July 5, 1884,1 in terms provides that whenever any lands 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. 191. 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.2 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 Attorney-General 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.* 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 123 Stats. at Large, p. 103. Leavenworth L. and G. R. Co. v. United States, 92 U. S. 733. 3 Fort Maginnis, 1 L. D. 552. 4 Sucia Islands, 23 L. D. 329. 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 office, held that the subsequent enlargement of a military reservation, so as to include within its limits previously located mining claims, prevented the locator from perpetuating his title by performance of annual work, his only remedy being to relocate the claim upon the restoration of the reservation to the public domain.1 But in the opinion given by Attorney-General McVeagh at the request of the secretary of war, referred to in the preceding section, a contrary rule is stated. Mr. McVeagh thus expresses his views: 66 "It seems to me that where such rights have attached "to mineral lands in favor of the locator of a mining claim, the land during the continuance of the claim (i. e. so long as it is maintained in accordance with "law) becomes by force of the mining laws appropriated to a specific purpose-namely, the develop"ment and working of the mine located; and unless "congress otherwise provides, it can not, while that right exists, notwithstanding the title thereto remains "in the government, be set apart for public uses." 2 66 Ever since the promulgation of this opinion the land department has accepted the rule as stated by the attorney-general, and has applied it to the Yosemite national park,3 and to reservoir sites.1 This is the 1 1 Camp Bowie Reservation, 7 Copp's L. O. 4. 1 Land Decisions, 552, 554; 8 Copp's L. O. 137. 15 L. D. 418. |