Very little more is required than the above statement of the provisions of law affecting these public building fund bonds to demonstrate that they are not "supported by the taxing power." They are merely payable out of a trust fund, and the State's liability does not extend beyond the faithful administration of, and accounting for, that fund. It is true that the bonds, according to the sample submitted to me, recites "that the State of Oklahoma hereby acknowledges iself indebted to, and, for value received, promises to pay to the bearer, the sum of one thousand dollars ($1,000) on the first day of May, A. D. 1926, together with interest thereon from the date hereof until paid; " but this is qualified by the subsequent provisions of the obligation, for in them it is recited that the bond is issued under and by virtue of the act of March 15, 1911; that certain lands had been granted by the United States to the State for public building purposes, and that the State, by section 1, Article XI, of its constitution, had accepted this grant, and by the act of March 15, 1911, had constituted the proceeds of the sale or rental of said lands a “public building fund;" and the bond then pledges the good faith of the State, not to the payment of the obligation absolutely and in any event, but merely to administer the trust created by the enabling act and the constitution of the State and to the application of the fund arising from the sale or rental of the lands to the payment of the bonds authorized by the act. Moreover, even if the direct promise of the State to pay the bond, contained in the opening clause, be held to override the subsequent qualification of that promise contained in its later provisions, it is certain that the bonds can have no greater obligatory force than the act itself gives them, and the act nowhere contains a provision looking to any liability of the State outside of the faithful administration of the fund. I assume, without at this time directly deciding, that if a State contract a lawful obligation which it is morally bound to pay by an exercise of its taxing power if necessary, that obligation is supported by the taxing power" within the meaning of section 9 of the act of June 25, 1910. If this be not the

66

proper construction of section 9, then the language can have no application at all to State bonds, since a sovereign State can never be held legally bound to pay its obligations by an exercise of its taxing power. As said in Bank of Washington v. State of Arkansas (20 How. 530, 532), "those who deal in the bonds and obligations of a sovereign State are aware that they must rely altogether on the sense of justice and good faith of the State." But, in the case of these Oklahoma public building fund bonds, I am unable to find anything in the act authorizing them which indicates an intention on the part of the legislature to make the State itself liable for their payment. Certain lands were granted by the United States to the State with the purpose that the proceeds of their sale should be used for public buildings. The State accepted the lands and pledged itself to use the proceeds thereof for public building purposes and no other. To carry out this trust, and to convert these lands into money to be used for these purposes, the legislature passed the act of March 15, 1911, which, in effect, did nothing more than provide for the issuance of bonds against the land and pledge the land for their repayment. Reading the enabling act, the constitution of Oklahoma, and the act of March 15, 1911, together, a consistent scheme appears to turn the land into money by the issuance of bonds which would make the grant of the United States immediately available, but no intent can be discovered to expend the money of the State for the payment of the bonds, if the proceeds of the sale of the lands be not sufficient for that purpose.

I desire, of course, not to be understood to reflect in any way whatsoever upon the validity of these bonds, nor upon their value as an investment. They simply do not fulfill the requirements prescribed by Congress in section 9 of the postal savings act.

Respectfully,

GEORGE W. WICKERSHAM.

THE POSTMASTER GENERAL.

DISPOSITION OF RECLAIMED LAND FORMERLY COVERED BY MUD LAKE, MINN.

Lands in Minnesota ceded to the United States by the Chippewa Indians which were formerly covered by Mud Lake but are now reclaimed by drainage should be surveyed and disposed of for the benefit of the Indians like any other lands included in the cession which have been reclaimed pursuant to the act of May 20, 1908 (35 Stat. 169), and the drainage laws of the State. Any patents that may issue for the shore lots should be by appropriate description confined expressly to the land above the meander line.

Public lands beneath the waters of a navigable lake become subject to the disposition of the State wherein they lie upon and by virtue of her admission to the Union; but the question of navigability is a Federal question ultimately determinable by the Supreme Court of the United States, applying the Federal constitution.

The test of navigability is actual or potential utility for the purposes of commerce-Mud Lake considered and held nonnavigable. Public lands beneath the waters of a nonnavigable lake do not pass to the State by virtue of her admission, but are subject to be disposed of by the United States apart from the surrounding upland.

DEPARTMENT OF JUSTICE,

June 19, 1912.

SIR: I have the honor to respond to your request for an opinion regarding the status of lands in Minnesota constituting what was once the bed of Mud Lake. The area in question lies in townships 156 north of ranges 41 and 42 west of the fifth principal meridian, and, according to the township plats, occupies approximately 5,000 acres. Both of these townships were part of the Red Lake Indian Reservation at the time of the admission of the State of Minnesota into the Union (Minnesota v. Hitchcock, 185 U. S. 373; State of Minnesota, 28 L. D. 374) and constitute a portion of the large body of land which was ceded to the United States by the Chippewa Indians pursuant to the act of January 14, 1889 (25 Stat. 642), commonly called the Nelson Act. (See Ex. Doc. No. 247, 51st Cong., 1st sess.) That act provided that as soon as the cession and relinquishment of the Indian title had been obtained and approved by the President the Commissioner of the General

وو

or

Land Office should cause the ceded lands "to be surveyed in the manner provided by law for the survey of public lands" (sec. 4); that the lands should thereupon be examined in 40-acre tracts, and classified as "pine lands "agricultural lands" according to the presence or absence of pine timber; that the pine lands should be appraised at their actual cash value, not less than a minimum fixed by the statute, and should be disposed of, first, at public sale at not less than the appraised value, and, next, so far as any remained, at private sale, at the appraised value, and that the agricultural lands, so far as they were not allotted or reserved for the future use of the Indians, should be disposed of, to actual settlers only, under the homestead law, each settler being required to pay for the land so taken by him "the sum of one dollar and twenty-five cents for each and every acre," etc. (ib., secs. 4-6). The act also provides (ib., sec. 7) that all money accruing from such disposals of the land, after deducting certain expenses, shall “be placed in the Treasury of the United States to the credit of all the Chippewa Indians in the State of Minnesota, as a permanent fund," to be held at interest for 50 years, at the expiration of which period the principal, subject to the right of Congress to use 5 per cent of it to promote civilization and self-support among the Indians, is to be divided among the Indians then in esse. Three-fourths of the interest during this trust period is to be paid to the Indians, and the remaining one-fourth devoted exclusively to the establishment and maintenance of a system of free schools for their benefit. Pursuant to the statute the two ceded townships were surveyed in 1892. The lands they contain were classified as agricultural. The shore of the lake was meandered, and the fractional subdivisions thus occasioned were laid out into lots, which border on the meander line throughout its periphery and vary in magnitude from 3.75 to 50.35 acres. The lines of the survey were not extended generally over the lake itself, but in the year 1902 two small islands lying in the lake, one of 2.95 acres in section 18 and one of 1.86 acres in section 19, of township 156 north of range 41 west, were duly surveyed and designated as lots, and this had been accomplished at a time when no

filings had been made upon the shore lots fronting on that half of the lake in which the islands lie.

By the act of June 21, 1906 (34 Stat. 352), the Secretary of the Interior was authorized to cause to be made a drainage survey of the lands ceded by the Chippewa Indians under the Nelson Act which at that time remained unsold and were wet, overflowed, or swampy in character, with a view to determining what portions thereof might be profitably and economically reclaimed by drainage, the number, location, cost, and extent of drainage ditches, canals, or improved natural watercourses required to afford drainage outlets; and whether a sufficient fund for such improvements could be provided by an increase in the price at which such unsold ceded lands should be sold in the future. The Secretary of the Interior was authorized to withdraw from entry the whole or any portion of the ceded lands pending the survey and the drainage operations contemplated, and the act made an appropriation of $15,000 for the purpose of paying the expenses of the survey, and provided that the amount appropriated should be reimbursable from any funds in the Treasury belonging to the Indians derived from the sale of lands under the Nelson Act. Twenty thousand dollars more of the Indian funds was subsequently appropriated to the same ends (34 Stat. 1033; 35 Stat. 82).

Pursuant to this legislation two drainage surveys were made, one in 1906 (see H. Doc. No. 607, 59th Cong., 2d sess.) and the other in 1907-8 (H. Doc. No. 27, 61st Cong., 1st sess.).

By the act of May 20, 1908 (35 Stat. 169), Congress made all lands in the State of Minnesota, when subject to entry, and all entered lands for which no final certificates had issued, subject to all of the provisions of the laws of the State of Minnesota relating to the drainage of swampy or overflowed lands for agricultural purposes, to the same extent and in the same manner in which lands of a like character held in private ownership were subject. This act also provides that the cost of the drainage works shall be equitably apportioned among all such lands, viz, private lands, lands unentered, and lands entered but not patented,