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SUBCOMMITTEE OF THE COMMITTEE ON Public LANDS,

HOUSE OF REPRESENTATIVES,

Saturday, May 20, 1916. The subcommittee this day met, Hon. James V. McClintic (chairman) presiding:

Mr. McClintic. Gentlemen of the committee, a subcommittee has been appointed by Congressman Ferris, chairman of the Public Lands Committee, to hold this public hearing, which is for the purpose of considering H. R. 15156, an act granting public lands to the State of Oklahoma. The committee is composed of myself, Congressmen McLemore, Tillman, Timberlake, and Freeman.

(The bill under consideration is as follows:)

[H, R. 15156, Sixty-fourth Congress, first session.]

A BILL Granting public lands to the State of Oklahoma.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the State of Oklahoma is hereby granted the number of acres of public land, or its equivalent thereto, as is provided for in the acts of July second, eighteen hundred and sixty-two, and July twenty-third, eighteen hundred and sixty-six, relating to land grants made to new States for the support of their educational institutions: Provided, That the State of Oklahoma has by proper legislative enactment accepted the terms of said acts.

Sec. 2. That the Secretary of the Interior is hereby directed to take such steps as will be necessary to carry out the provisions of this act.

In order that all of those present may know the history of this legislation I desire to put in the record a letter under date of February 25, 1916, in which I took this matter up with the Secretary of the Interior and asked that no decision be made by the department until I could have sufficient time to appear orally and file such additional statements as I would like to file in the case. (Said letter follows:)

FEBRUARY 25, 1916. Hon. FRANKLIN K. LANE,

Secretary of the Interior, Washington, D. C. DEAR MR. SECRETARY : In the case in which the State of Oklahoma has been represented by E. G. Spilman, acting for the board of agriculture, in which a brief has been filed asking for land or land scrip equaling the amount the State feels it is entitled to under the act of 1862, amended in 1866, I respectfully ask that no decision be made by the department until I can have sufficient time to appear orally and to file such additional statements as I am preparing. Very respectfully,

Jim McCLINTIC. On February 29 I received a reply from the department stating that 30 days' additional time had been granted me to appear orally and file such additional statements as I might desire.

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(Said letter follows:)

DEPARTMENT OF THE INTERIOR,

Washington, February 29, 1916. Hon. Jim McCLINTIC,

House of Representatives, Washington, D.C. DEAR MR. MCCLINTIC: The department is in receipt of your letter of the 25th instant, asking that action be suspended on the application of the State of Oklahoma to select certain lands under the provisions of the act of Congress approved July 2, 1862, and the act of July 23, 1866, for the benefit of agricultural and mechanical colleges, in order that you may have sufficient time to appear orally and file additional statements which you are now preparing.

In reply you are advised that in accordance with your request action in this matter is suspended for 30 days from date hereof. Very truly, yours,

ANDRIEU'S A. JONES,

First Assistant Secretary.

On April 4 a brief that had been compiled by Hon. Houston B. Teehee, Register of the Treasury, was filed with the Department of the Interior, and this brief was signed by the entire Oklahoma delegation. In this brief Mr. Teehee presented an able argument in favor of this kind of legislation.

On April 24 an opinion was rendered by the Secretary of the Interior which, in substance, was that no grant of public land had ever been made to any State except by the authority of Congress, and that, in his opinion, it would be necessary to follow this procedure if the State of Oklahoma was to receive any benefits accruing under the provision of the act of 1862, as amended by the act of 1866, and that this was a matter to be decided by Congress.

I would like to put in the record a copy of the brief that was filed, which was signed by each member of the Oklahoma delegation.

(Said brief follows:) Before the honorable Secretary of the Interior. On appeal from the Com

missioner of the General Land Office. In re application of the State of Oklahoma to enter public lands donated to the State of Oklahoma for agricultural and mechanical colleges by act of Congress approved July 2, 1862, and act of Congress approved July 23, 1866, and for land serip to the amount in acres for the 204,240 acres.

SECOND SUPPLEMENTARY BRIEF AND ARGUMENT ON BEHALF OF THE STATE OF

OKLAHOMA.

STATEMENT.

This cause has its inception upon the filing of an application by the State of Oklahoma for 210,000 acres of unoccupied public lands within the State or their equivalent, to which claim is made by virtue of the provisions of an act of Congress approved July 2, 1862 (12 Stat., 503), making a grant of public lands to the States then existent for agricultural and mechanical college purposes on a basis of 30,000 acres for each member of their congressional representation under certain and specified conditions, the benefits of which act were extended to States thereafter admitted into the Union upon compliance with these conditions by the act of Congress approved July 23, 1866 (14 Stat., 208 ). It is asserted that Oklahoma had specifically compiled with the conditions and the terms under which claim could be made for said grant.

The application of the State was denied by the honorable Commissioner of the Land Office, whereupon an appeal was taken before tlie honorable Secretary of the Interior, where the cause is now pending, all of which proceedings are set forth on pages 1 to 18, inclusive, in the first brief filed on behalf of the State in said cause by Messrs. West and Spilman, attorneys for the State.

Subsequently, upon oral presentation and argument of said cause by Hon. R. L, Owen on behalf of the State, certain inquiries, under the date of August 6, 1915, were, by the honorable First Assistant Secretary, addressed to Senator Owen, all of which are set forth on pages 2, 6, 11, and 17 of the supplementary brief and argument in behalf of the State of Oklahoma, filed by Mr. Spilman.

In denying the application of the State the honorable Commissioner of the Land Office construed the enabling act of Oklahoma of June 16, 1906 (34 Stat., 267), after reference to certain grants for agricultural and mechanical college purposes therein made, in the following language:

“Although it is not expressly stated in the act of June 16, 1906, that this specific grant for an agricultural college was in lieu of any and all claims under the act of 1862, supra, it is not believed to have been the intent of Congress that the State of Oklahoma should in addition thereto claim the benefits of the act of 1862 for the same purpose as this would be contrary to the course pursued with any other State.”

He concluded his decision as follows:

“ By the enabling act of Oklahoma she has received all that she is entitled to for the purpose of an agricultural and mechanical college as provided by the act of 1862 and considerably more in addition thereto. It would not, therefore, appear reasonable to believe that Congress intended she should have the benefit of the act of 1862 and be granted scrip to be located in other States, after having received a large grant of public lands within her own limits for the identical purpose.”

Of the inquiries propounded by the honorable First Assistant Secretary, which, for the purpose of this brief and argument is deemed material, is the fourth, and is as follows:

“ Does not the fact that since 1866 no State or Territory has been given or secured a grant of lands for the support of agricultural colleges under said acts of 1862 and 1860, but, on the contrary, each and all of the States admitted since that time have secured their grants by virtue of the provisions of other and different laws, constitute a legislative confirmation of the view that the act of 1862 as amended by the act of 1866 only applied to those States or Territories in existence in 1860 upon which the apportionment mentioned could be based?"

Hence there is involved in the case at bar the construction of the enabling act of Oklahoma of June 16, 1906 (34 Stat., 267), and the acts of 1862 and 1866 in their relation to the question of land grants for agricultural and mechanical college purposes to the State of Oklahoma.

It will be noted from the foregoing extracts that the honorable Commissioner of the Land Office denied the application of the State on the ground that it was not in the intent of Congress that the benefits of the acts of 1862 and 1866 should inure to the State of Oklahoma, for the reason that said State was provided with lands for agricultural and mechanical college purposes by the enabling act under which she was admitted into the Union (34 Stat.), supra, although there was no express provision contained in the said enabling act expressly and specifically providing said grants therein made were in lieu of the grant of 1862 and 1866, nor any express provision precluding said State from any other or further grants in this connection to which she might make claim, nor any provision either impliedly or expressly repealing any act or parts of any act that might conflict with the provisions of the said enabling act.

The questions propounded by the honorable First Assistant Secretary are, as a matter of fact, summed up in the fourth inquiry, above quoted, wherein he submits it as a matter of fact that since 1866 no State or Territory secured their grants for the purposes in question under said acts of 1862 and 1866, but secured the same “by virtue of the provisions of other and different laws,” and for that reason the said acts of 1862 and 1866 were rendered inapplicable to the State of Oklahoma.

It is submitted that the reasons for the denial of the application of the State, and the questions propounded by the honorable First Assistant Secretary, have been met and fully answered by both the briefs and arguments now on file in said cause and the oral presentation and argument made by Senator Owen.

The purpose of this brief and argument will be to analyze the various acts of Congress admitting or enabling the admittance of new States into the Union subsequent to said grant of 1862 and 1868 in so far as they relate to the questions involved in the cause at bar,' and the action taken thereon by such new States, as a further supplement to the arguments heretofore made. For this purpose the questions involved in this cause may be resolved into the following proposition:

If the act of July 2, 1862, as extended to new States by the act of July 23, 1866, is a subsisting one and the grant therein ripened upon compliance with the conditions thereof by any State admitted into the Union subsequent to said act, was it the intention of Congress to exclude the State of Oklahoma therefrom?

To this proposition our efforts will be directed and we shall endeavor to show that said acts of 862 and 1866 is a subsisting one; that it became a solemn compact between the United States and the State of Oklahoma upon compliance with the terms and conditions of the grant by the State; that the State of Oklahoma was not excluded from the benefits thereof by the enabling act, and hence, is now entitled to receive its benefits on the basis of 30.000 acres for each member of her congressional representation at the time of admission into the Union. In these efforts we ask the indulgence of the honorable Secretary of the Interior to briefly review with us the aforesaid various acts of Congress having a relation to the subject matter of the cause at bar, enacted subsequent to said acts of 1862 and 1866. We shall also refer to the grant of lands for internal improvements to new States by the act of Septeni ber 4, 1841, as we believe this has a relation to the cause at bar by analogy.

ARGUMENT.

STATES ADMITTED BETWEEN JULY 2, 1862, AND JULY 23, 1866.

West Virginia, being a part of the State of Virginia, was admitted into the Union directly by act of Congress approved December 31, 1862 (12 Stat., 633). Her congressional representation was fixed at five. By act of April 14, 1864 (13 Stat., 47), the grant of 1862 was extended to her and thereunder she took in lieu of lands scrip as provided by said act calling for 150,000 acres.

Nevada was admitteil into the Union under the enabling act of March 21, 1864 (13 Stat., 30), with her congressional representation fixed at three. So reference was made to the grant of 1862. By act of July 4, 1866 (14 Stat., 85), Congress extended the grant of 1862 to said State of Nevada and thereumder she received 90,000 acres, and was authorized to divert the use of this grant from that of its original purpose to that of a school of mines. Congress, later. by act of March 16, 1872 (17 Stat., 40), extended the time within which a full compliance with the conditions of said grant might be made, to May 10, 1877.

Nebraska was admitted into the Union under the enabling act of April 19, 1864 (13 Stat., 47), with her congressional representation fixed at three. By act of March 30, 1867 (15 Stat., 13), Congress extended the grant of 1862 to her " in the same manner as if Nebraska had been a State of the Union at the date of the passage of the said law," and thereunder she receivel 90,000 acres.

It does not appear that these separate acts of Congress extending the grant of 1862 to these three States exempted them from complying with the terms and conditions of said grant, for they each by acts of their legislatures assented to said terms and conditions. West Virginia expressed her assent by act approved October 10, 1863 (s. L., 1863, p. 55), which in point of time was prior to the extending act of Congress, and also by act approved February ,7, 1867 (S. L., 1867, p. 12); Nevada, by act of January 13, 1867 (S. L., 1867, p. 57); and Nebraska, by joint resolution approved February 12, 1869 (S. L., 1869, p. 308).

In the cases of these States no reference was made to the grant for internal improvements in the acts whereunder they were admitted into the Union, nor were there any express limitations as to said grant.

It does not appear that West Virginia shared in the internal improvement lands, but each of the other two States received its share of 500,000 acres for this purpose without further congressional action.

STATES ADMITTED INTO THE UNION SUBSEQUENT TO THE EXTENDING ACT OF 1866.

Colorado was the first State admitted into the Union subsequent to the extending act of 1866, under the enabling act of March 3, 1875 (18 Stat., 474). No grants were made for agricultural college purposes by this act, nor was any reference made to the grant of 1862 and 1866. Her congressional representation was fixed at three. She accepted the grant of 1862 and 1866 by legislative enactment approved January 27, 1879 (S. L., 1879, p. 174). Section 3 of the act of Congress of April 2, 1884 (23 Stat., 10), in part provides as follows:

“The State of Colorado, in selecting lands for agricultural college purposes under the acts of July 2, 1864 (2), and July 23, 1866, may select an amount of land equal to 30,000 acres for each Senator and Representative which said State is entitled to in Congress.”

Thereunder she received 90,000 acres. In referring to the case of Colorado, the honorable Commissioner of the Land Office in denying the application of the State of Oklahoma said:

“The enabling act of Colorado of March 3, 1875 (18 Stat., 474), made no grant of land for agricultural college purposes, and it was ruled by this office (see Public Domain, p. 229) that the grant made by the act of 1862 inures to a new State without further legislation."

Evidently the honorable commissioner had reference to further legislation on the part of the United States. Then he proceeded thus:

"This decision was evidently based upon the fact, as in the State of Nebraska, that there was no other grant of lands for the same purpose, and the enabling act contained no words that were inconsistent with or repugnant to the grant of 1862.”

It will be noted that this language doubtless is used for the purpose of supporting his denial of the application of Oklahoma. That the decision of his office respecting Colorado is the correct ruling now to be applied is made apparent and was recognized by Congress when it said:

“ That the State of Colorado in selecting lands for agricultural college purposes under the acts of July 2, 1864 (2), and July 23, 1866, may select," etc.

In other words, Congress recognized that Colorado had complied with the terms and conditions of the grant and was merely giving the extending act of 1866 legislative construction as to the basis of participation in said grant by new States, and was a legislative declaration that the grant inured to a new State upon compliance with the terms and conditions thereof as prescribed by the granting act. Colorado also received her share of internal improvement lands without further action by Congress.

The States of North Dakota, South Dakota, Montana, and Washington were admitted into the Union under the enabling act of February 22, 1889 (25 Stat., 676). Section 16 of this act is as follows:

“ That 90,000 acres of land, to be selected and located as provided in section 10 of this act, are hereby granted to each of said States, except to the State of South Dakota, to which 120,000 acres are granted, for the use and support of agricultural colleges in said States, as provided in the acts of Congress making donations of lands for such purpose.'

The congressional representation of each of these States was three, except as to South Dakota, which was four. The act further provided, in section 17 :

" That the States provided for in this act shall not be entitlel to any further or other grants of land for any purpose than as expressly provided in this act.”

By said section 17, all of these States received certain grants expressly in lieu of internal improvement lands. Here in section 16 is another instance of congressional construction of the acts of 1862 and 1866, for the grants mentioned were made in accordance with certain acts of Congress “ making donations of lands for such purpose,” which can have reference to no other acts than those of 1862 and 1866, and here was also a limitation, in section 17, as to the possible assertion of any claims or demands by any of these States as to other public-land grants.

That it was necessary for these States to express their acceptance of these respective grants as required by the acts of 1862 and 1866 is clearly shown by their public records. Montana did so in specific terms by the act approved February 17, 1893 (S. L., 1893, p. 171) ; South Dakota by joint resolution “accepted the grant of land from the General Government (S. L., 1890, p. 327); North Dakota “ accepted with all the conditions and provisions in said act contained,” referring to the enabling act, by legislative enactment of March 8, 1890 (S. L., 1890, p. 471) ; and Washington by specific reference to the act of 1862 and acts amendatory thereof, by legislative enactment of March 28, 1890 (S. L., 1887-1890, p. 429).

Idaho was admitted into the Union directly by the act of July 3, 1890 (26 Stat., 215), with her congressional representation fixed at three. Section 10 of this act provided as follows:

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