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and in effect sets aside the withdrawal order which had been made pursuant to the act of 1906.
It appears from the papers submitted by you that under the drainage laws of the State a canal has actually been constructed through Mud Lake, as a result of which the bed of the lake is now dry land and susceptible of cultivation at little or no preliminary expense.
It also appears that most of the lots surrounding the former lake have been entered as homesteads, pursuant to the Nelson Act, supru. Of the lots in township 156 north of range 41 west, lots 2 and 3 of section 16 appear to be vacant, as are also the two islands; the rest appear to be subject to some 11 subsisting entries, 1 of which was initiated as early as November, 1903, and has gone to the point of final certificate, while the others were initiated as late as 1910 and 1911. Of the shore lots in the other township, No. 1 of section 13 alone appears to be vacant, the others having been included in seven entries, which all, with one exception (initiated in 1911), have reached final certificates, having originated at dates ranging from June, 1900, to April, 1905. I am not informed that patents have issued upon any of the final certificates.
The character of the lake and the lands surrounding it, as they were before the canal was constructed, is revealed in the reports accompanying the surveys of 1892 and 1902. Concerning township 156 north of range 41 west, the deputy who made the former survey reported:
“ This township is very level. There is no soil anywhere in the township near the surface except peat or decomposed vegetation, which covers the township to the depth of 6 feet. There is some tamarack and spruce in the northern part suitable for fencing. The meadows are covered with heavy grass and will cut 2 tons of hay per acre. Mud Lake has marshy shores lined with willows and tall weeds. The water is about 4 feet deep.”
Concerning the other township he reported:
“ This township is nearly all meadow, tamarack swamp, or open marsh, and has no land fit for cultivation to speak of. There is good fencing and fuel in the tamarack swamp. The meadows are too rough to mow and the marshes are
covered with water to the depth of 1 or 2 feet. Thief River has low marshy banks and is liable to overflow.”
The deputy who surveyed the two islands in 1902 says in his report:
6. These islands are low and unfit for agricultural purposes. The west end of each is timbered but most of the large timber is cut; the east end is covered with reeds and willows.
Mud Lake is shallow, from 3 to 6 feet in depth, and is almost completely surrounded with swamp. It is 18 miles from the nearest railroad point, Thief River Falls, and is not approachable in summer except by boat. No improvements on the islands and very little in the vicinity of the lake. The lake has a great reputation as a shooting resort.”
Further light is shed on this subject by the map and report of the drainage survey of 1906, submitted to Congress by the Secretary of the Interior and found in House Document No. 607, supra. That survey embraced a large area lying to the northeast of Thief River Falls, including Mud Lake and the lands surrounding it. The plan evolved contemplated the drainage of 266,750 acres of Government and private land and the improvement of 135,750 acres in addition. The map shows that one of the main canals was projected through the basin of Mud Lake itself, and the report leaves no doubt that the surrounding country was found to be so water-soaked and marshy as to be hardly subject to human occupancy. I quote as follows:
“In the area surveyed many thousands of acres have been patented, and occasionally it has been possible to raise a crop. But for much of every year the land is so soaked in water as to be unfit for cultivation.
“At certain seasons the people are entirely isolated on account of the impassability of the country surrounding them and they have been reduced to dire poverty by their inability to secure outlets for such ditches as they have been able to dig. *
“ The conditions governing the relation between run-off of streams and precipitation are unusual in the region under consideration. Not only is the relief exceedingly low, but
the underlying stratum of impervious clay is covered by a layer of peat, often several feet thick, which, acting as a huge sponge, retains the rainfall indefinitely, permitting the run-off to occur largely as ground water and at a quite uniform rate throughout the year.
It does not appear that the lake ever subserved any human purpose beyond floating the canoes of hunters. It may or may not have possessed sufficient uniformity of depth to permit of its navigation by boats of somewhat greater draft in the prosecution of more serious pursuits, but the fact is patent that no occasion ever arose to test its possibilities as a useful avenue of commerce.
Upon this state of facts the question is presented whether and to what extent the lands formerly covered by the lake, but now reclaimed by drainage, are subject to disposition by the United States for the benefit of the Indians. The inquiry naturally divides itself into two branches, viz: (1) Did the title pass to the State of Minnesota at the time of her admission into the Union? (2) If not, should the lands constituting the lake bottom be surveyed and sold for the benefit of the Indians, or must they go gratuitously to those persons who acquire title to the riparian lots?
1. In dealing with the rights of the State, it should be observed in limine, that she is making no claim, and without doubt could sustain none, by virtue of the swamp-land act. (Red Lake Reservation, 22 L. D. 388.) The suggestion of State ownership proceeds from the theory that this was a navigable lake. The general principle is thoroughly established that the land beneath navigable waters, whether marine or inland, belongs to the State within whose jurisdiction the waters are situate. Such was the dominion inherited by the original States from the Crown of England, and such also, it has been repeatedly held, must be the prerogative of all States subsequently created in virtue of that sovereign equality which the Constitution insures. It has been said that such lands are, in the first instance, held by the United Sttaes in trust for the State whose territorial jurisdiction will embrace them. (Shively v. Bowlby, 152 U. S. 1, 49; Weber v. Harbor Com’rs., 18 Wall 57, 65,
66; Knight v. Land Ass'n., 142 U. S. 161, 183.) But it is r.ot to be conceded that the implied constitutional duty to preserve such lands intact for the future State is so far paramount and inflexible that Congress may not in its discretion dispose of them in promotion of other constitutional objects while the lands remain subject to the absolute sovereignty as well as the proprietary dominion of the General Government. Certain dicta to the contrary in early cases are explained as such in Shively v. Bowlby, supra, where the court, after a thorough review of the entire subject, laid down the true doctrine very clearly in the following language:
“By the Constitution, as is now well settled, the United States, having rightfully acquired the Territories, and being the only Government which can impose laws upon them, have the entire dominion and sovereignty, national and municipal, Federal and State, over all the Territories, so long as they remain in a Territorial condition.
“We can not doubt, therefore, that Congress has the power to make grants of lands below high-water mark of navigable waters in any Territory of the United States, whenever it becomes necessary to do so in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several States, or to carry out other public purposes appropriate to the objects for which the United States hold the Territory” (p. 48).
The same principle would be equally, and indeed more evidently, applicable to lands beneath a navigable lake. As suggested by the learned First Assistant Secretary of the Interior, Mud Lake (even though navigable) might lawfully have been withheld from the State of Minnesota by an appropriate reservation for the Indians made prior to the admission of the State into the Union. (United States v. Winans, 198 U. S. 371.) Whether the acts constituting the reservation in the present case are so definite as to evince an intention to exclude the State may not be so clear (Ward v. Race Horse, 163 U. S. 504), but need not be decided, since I am obliged to conclude upon the facts as
liere presented that the lake was not navigable in the sense required for the application of the constitutional rule of State equality.
The rule which reserves to the Crown in England and to the States in this country the control of the navigable waters, and the land beneath them and their shores, rests fundamentally upon the proposition “that the public authorities ought to have entire control of the great passageways of commerce and navigation, to be exercised for the public advantage and convenience.” (Barney v. K’eokuk, 94 U. S. 324, 338.) Consistently with this reason, naviKable waters in England are confined by the common law to tide waters, because there the waters of that description include practically all that are of serious commercial utility. The same conditions do not exist in this country. Our great inland rivers and lakes, though far above the ebb and flow of the tide, are of immense importance to the public as ways of commerce, and consequently the English test has been abandoned simply because its application is opposed by the underlying reason (namely, the convenience and necessity of the public) for subjecting any water, tidal or nontidal, to a public interest and control. (The Genesee Chief, 12 How. 443; The Daniel Ball, 10 Wall. 557, 563; The Montello, 20 Wall. 430, 441; Barney v. Keokuk, 94 U. S. 324; Illinois Central Railroad v. Illinois, 146 U. S. 387, 435; Leovy v. United States, 177 U. S. 621, 630.) In The Genesee Chief, supra, wherein it was held that the admiralty jurisdiction exists over the Great Lakes, notwithstanding their virtual freedom from tides, the court said (p. 454):
“In England, undoubtedly the writers upon the subject, and the decisions in its courts of admiralty, always speak of the jurisdiction as confined to tidewater. And this definition in England was a sound and reasonable one, because there was no navigable stream in the country beyond the ebb and flow of the tide; nor any place where a port could be established to carry on trade with a foreign nation, and where vessels could enter or depart with cargoes. In England, therefore, tidewater and navigable water are synony