238
THE GREEN BAG
Upon the foundation of our government the English principle that the king was the original proprietor of all lands was adopted. But as the original thirteen colonies de rived their titles through grants from the crown, they remained largely independent of the federal government. Most of the Royal Charters to the colonies included express grants of all mines discovered, reserving to the crown, however, one-fifth of all gold and silver found.1 In Massachusetts onefifth of all precious stones discovered was also reserved. No reservation of any minerals was made in the New York Charter. That state has from the first asserted an absolute sover eignty over all gold and silver mines within its borders. The discoverers of such mines are allowed to work them for but twentyone years.2 The same provision applies to mines of other metals found in lands of persons not citizens of the United States, and also to such mines on lands of citizens of the United States in case the ore contains less than two-thirds in value of copper, tin, iron, or lead. The Continental Congress passed a law in 1785 based on the English rule, reserving to the general government one-third of all gold, silver, lead, and copper mines.8 In 1807 the President was authorized by Con gress to lease lead mines for a period not to exceed three years. The constitution ality of this act was questioned, but it was upheld by the Supreme Court.4 The ground of the decision was that as the Constitution gave Congress the power to dispose of the public lands, that power included the right to lease as well as to sell. It was also held in a later case5 that to mine without having secured such permission constituted tres pass.
1
4
Shoemaker i». United States, 147 U. S. 282. I Rev. St. 281, sec. I, 4. Am. State Papers, pt. I, 13, 14. U. S. v. Gratiot, 14 Pet. 526. U. S. v. Gear, 3 How. 120.
In 184 1 a Pre-emption Act was passed granting to certain states a large quantity of land, but expressly reserving all lands on which were situated any known salines or mines.1 By this act the reserved mineral lands of Iowa, Wisconsin, Illinois, and Arkansas were also thrown open, with the exception of the lead mines. In 1846 this law was relaxed, and all lead and copper mines in the Northwest were thrown open to settlers. About this time the question arose as to what title was taken to mining lands by a grant from an Indian tribe. In the case of Chouteau v. Moloney 2 the claim was made that as the Fox Indians had granted the right to work certain mines, which grant was later confirmed by the Spanish gov ernor and the fee declared to be in the grantee under the provisions of the treaty of 1803, the United States must respect the title of the plaintiff. The Supreme Court held, however, that as the Indians had not intended to grant the land itself, the con firmation by the Spanish government, was irregular, and that the plaintiff possessed only an interest in the mines as such. The court also made the more important state ment, though only a dictum, that the Indian tribes never had any right to interfere in any manner with possessions belonging to Spain, — that their rights extended only to occupancy. In 1850, upon the admission of California to the Union, it was expressly provided that the people of that state should never inter fere with the public lands within its bound aries. Notwithstanding this provision, the Supreme Court of California decided a few years afterwards 8 that the United States held in trust for the future state, among other things, all gold and silver mines which passed by the cession, and that upon the admission of California the ownership of 1 5 St. at L. 453. ' 16 How. 203.
- Hicks v. Be'l, 3 Cal. 219.
