CONTENTS. Page. Britton, Alex., representing Northern Pacific Railway Co... 218, 237, 324 McGowan, D. F., United States Forest Service..... Proudfit, S. V., law examiner, General Land Office............. Sherman, Hon. E. A., associate forester, United States Forest Service... 315 THE NORTHERN PACIFIC LAND GRANT. COMMITTEE ON THE PUBLIC LANDS, The committee met at 10 o'clock a. m., Hon. Nicholas J. Sinnott (chairman) presiding. The CHAIRMAN. The committee will come to order, Mr. McGowan, you may proceed. STATEMENT OF MR. D. F. MCGOWAN Resumed. Mr. MCGOWAN. Mr. Sherman's letter of January 12, 1924, which appears in the first volume of the hearings, page 6, is a reply to a letter from the Commissioner of the Land Office of December 19, 1923, in connection with the adjustment of the grant. I do not know that the commissioner's tentative adjustment has been introduced, but I think in view of the fact that Mr. Sherman's letter was directed to it, it might be well to have that in the record. Mr. PROUDFIT. I expect to introduce that when the Land Office comes on. Mr. McGoWAN. I will withdraw the suggestion then. In reviewing my testimony of Thursday, March 6, I find what I believe to be an inacuracy, and I wish to correct it. This correction should likewise hold as to a similar statement made in the acting forester's letter of January 12, to the Commissioner of the General Land Office, page 28, volume 1 of these hearings. It is with reference to the effect of the failure of the railroad company to apply the moneys obtained under the mortgage authorized by Congress to build the main line of the railroad before constructing or financing feeder lines. I stated. in substance, that in my judgment. in the event the company had diverted any of the funds raised under the mortgage authorized by the joint resolution of May 31, 1870, from the construction of the main line to the construction or financing of feeger lines it would be a breach of contract. I still adhere to this position, I further stated that the construction of feeder lines before the construction of the main line had been completed would in substance have the effect of partially defeating the grant of lands opposite the main line road, for the reason that the fallure of the raliroad speedy to build the main-line road made it possible for homesteaders to take up the granted ad alta de preven the railroad company from getting them. While the suggestion at the present moment is not of major importance my statement. I believe, was party in error and I want to correct it. At an early Gate there were withdrawals of land opposite the general route of the railroad company, which general route in p present maps of definite location and the withdrawals of definite location. It will be seen, therefore, that even though the company was not devoting its entire energies to the construction of the main line, the lands in the grant, generally speaking, were protected to it, first under the general route withdrawals and later under the withdrawals opposite the maps of definite location, so that the failure of the company to construct its main line before building its feeder lines did not have the effect of defeating its land grant, except for any possible reservations made by the United States within the general route withdrawals. I wish to make this correction, and this correction affords me an opportunity to call your attention more fully than I did on Thursday to the effect of the withdrawals on general route. It is quite possible that the effect of the withdrawals on general route and the advantages obtained thereunder by the railroad company can never be figured in dollars and cents, yet it is just as true that the railroad company profited by them, which, if the facts could be ascertained, would show that general route withdrawals were worth many dollars to the railroad company, which for the most part they were not entitled to. General route maps were what may be called the preliminary maps and were made and preceded by several years the maps of definite location. In the Land Office compilation of 1915, pages 14 and 15 of which were introduced in my testimony, you will see the dates of general route and the dates of definite location. Opposite the maps of general route the Interior Department made general route withdrawals. These general route withdrawals were first held to be superior to the right of the settler to take up the railroad lands within them. Mind you, the general route withdrawals were prior in time to the withdrawals on definite location. In the case of Buttz v. the Northern Pacific (119 U. S. 55), the Supreme Court of the United States held that a general route withdrawal was sufficient to hold an odd section against a preemptor. This was based in part upon the conclusion that the land grant of the Northern Pacific conveyed the fee. This position, however, was not adhered to in later decisions of the Supreme Court (176 U. S. 28; 188 U. S. 108), in which the Supreme Court held that no right or title to any particular section attached until the map of definite location was filed. Undoubtedly if the later decisions of the Supreme Court with respect to general route withdrawals had prevailed at the time of the earlier decisions, the Northern Pacific would have lost thousands of acres of land in its primary limits which were protected to it under decisions of the Supreme Court which were later held to have been erroneous. This is hardly more than history now, as no one can now tell how much land the settlers would have taken in the general route withdrawals if the opportunity had been open to them. It is a matter, however, with which you gentlemen should be made familiar, as it shows that the Northern Pacific profited by the Supreme Court decisions with reference to withdrawals on general route, which later were held to be erroneous. In my testimony regarding the Crow Indian Reservation at the proceedings on Friday, March 7, I contended that the Crow lands were excepted from the Northern Pacific grant prior to July 2, 1864, by reason of the treaty of Laramie of September 17, 1851, and that therefore they were lost to the Northern Pacific prior to July 2, 1864, and consequently the Northern Pacific was not entitled to make in demnity selections in the second indemnity limits by reason of these Crow losses. Mr. Williams directed the attention of the committee to section 2 of the act of July 2, 1864, and the provision therein that The United States shall extinguish as rapidly as may be consistent with public policy and the welfare of the said Indians the Indian titles to all lands falling under the operation of this act and acquired in the donation to the road named in this bill. Mr. Williams felt that because of the Indian reservations existing at the present time (1924) within the primary limits of the grant, in any equitable consideration of the grant the company could claim that the United States had failed to comply with its contract, inasmuch as it has failed to extinguish for the benefit of the railroad company the Indian title to the lands in the now existing reservations. In the consideration of the Indian titles under the Northern Pacific act these points must be kept in mind: First, that the lands in Indian occupancy, whether within or without an Indian reservation were not public lands in the sense that the public land laws were applicable thereto. Newhall v. Sanger (92 U. S. 761). It must also be remembered that the Northern Pacific land grant granted only public lands (see sec. 3 thereof). It must also be kept in mind that the Indian title to lands within an Indian reservation was not of a quality higher than the lands covered by Indian occupancy, although not included within an Indian reservation, for the reason that the rights of the Indians in each instance were only rights of occupancy, the United States being the owner of the fee. With reference to lands in Indian occupancy not within an Indian reservation, the Supreme Court of the United States held in Buttz v. Northern Pacific (119 U. S. 55) that section 2 of the act pertaining to the extinguishment of Indian title in the Northern Pacific grant gave the Northern Pacific a right to the Indian lands involved in that case, subject to the Indian occupancy, and that upon the extinguishment of the Indian title a full and clear title vested in the railroad company. The decisions of the Supreme Court with reference to lands within Indian reservations within the primary limits of the Northern Pacific grant as distinguished from lands in Indian occupancy, although the quality of the title in each instance was the same, have been that the reserved Indian lands were lost to the railroad company and for the losses the railroad company was entitled to make indemnity selections. This, I think, is a correct statement of the law, and we are confronted with it in the present consideration of the Northern Pacific case. However, it does not seem to me in view of the fact that the quality of the title to the Indian lands within reservations and outside reservations was the same-that is, the right of the Indians to occupy the lands subject to the paramount ownership to the Government, and especially in view of the fact that the act of July 2, 1864, does not differentiate between the Indian title to lands within reservations and without reservations with respect to the obligation of the United States to extinguish the Indian title-that whatever obligation there was on the part of the United States by virtue of the provision in section 2 of the act would run against any and all Indian titles within the primary limits of the grant. It should likewise be borne in mind that the obligation of the United States to extinguish the |