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The remaining question is one of the statute of limitations. By the act of March 3, 1891 (26 Stat. 1099), it was provided that “suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act. While the statute of limitations has run against the suit by the United States to cancel the patents issued to the State the contention is that the United States can maintain a suit to recover the value of the lands mistakenly patented to the State on the theory that the statute of limitations bars only one remedy, leaving other remedies open.

The decisions of the courts in this regard, however, are at variance. In United States v. The Chandler-Dunbar Co. (209 U. S. 447), it was held in speaking of the statute of limitations of March 3, 1891, that:

This statute must be taken to mean that the patent is to be held good and is to have the same effect against the United States that it would have had if it had been valid in the first place.”

It could hardly be claimed, in the face of the above holding, that the United States being barred from a suit to cancel the patents could, nevertheless maintain a suit to recover the value of the lands, on the theory that the patents were void in the first place.

On the other hand, in United States v. Whited and Wheless (246 U. S. 552), the court said that although the statute of limitations had run against the suit to vacate and annul the patent, it being a suit to recover damages for the fraudulent procuring of the patent, the statute did not run against it since the statute should be construed to apply only to the one remedy, that for annulling the patent, and left the other remedy, one for damages for the fraud, untouched.

Assuming that the later decision supersedes the former, the question remains whether in a case where the patents are issued through mistake and not through fraud the United States still has the right to compel the State to pay the value of the lands, rather than to return the title. With respect to lands which the State had conveyed to bona fide purchaser, such remedy might exist, but it does not follow that the remedy would apply where the title remains undisposed of in the State. If as to them the sole remedy of the United States is to cancel the patents and regain the title, and if suit to cancel the patents is barred, then nothing further can be done. However, there is substantial ground to claim that this alternative remedy exists and is not barred by the statute of limitations. It is not certain that the court would follow the decision in the case of Whited & Wheless, there being no element of fraud but only of innocent mistake.

The solicitor general in his aforementioned memorandum gave it as his opinion that said suit should never have been brought. He felt, he stated, that the claim of the United States was founded on technicalities, was without equity and unconscionable; that the whole case was based on the ground that the lands, being reserved, were not subject to the swamp-land grant of 1860, but after the relinquishment by the Indians they could have been granted in 1863; that as the lands were patented to the State at various times, all more than 20 years ago (now almost a quarter of a century), the State having expended more than $2,000,000 in obedience to the requirements that it drain and reclaim the lands; that the State having dealt with the lands as though properly granted, no question having been raised by the Government until recently and the lands being admittedly swamp in character, there would seem to be no reason why the United States should deprive the State of these particular swamp lands because of said technicalities. In his opinion if the United States were to continue to prosecute this suit with success, it would win a hollow victory, because Congress would probably refuse not to enact, if requested, legislation confirming the transaction.

In this situation the Attorney General in his letter of October 21, 1927, hereinabove referred to, said:

“I also think that if the United States should succeed in this case the State of Minnesota ought to have no difficulty in obtaining legislation from Congress confirming the State's title, notwithstanding the decision."

The act passed by the State April 18, 1929, is contingent upon the passing of this bill. Due consideration has been given this proposed disposition of the matter and the same is thought to be a fair and just arrangement thereof. Accordingly, the passage of S. 4283 is hereby recommended.

The matter of the disposition of the suit and set-offs claimed by the State on the part of the Government and the State authorities can be taken up should this bill become a law.

H. R. 5178, Seventy-first Congress, first session, is identical with the S. 4283, second session. Under date of September 6, 1929, this office submitted to the Secretary a memorandum, which in words corresponds to this memorandum. Attention is called to a letter of December 31, 1929, by the Secretary to Hon. Don B. Colton, chairman Committee on Public Lands, House of Representatives, which was predicated upon, among others, the memorandum of December 6, 1929.

C. C. MOORE, Commissioner. I concur: May 8, 1930

C. J. RHOADS, Commissioner of Indian Affairs. O

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SENATE

71ST CONGRESS

2d Session

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REPORT No. 836

AUTHORIZING THE SECRETARY OF THE INTERIOR TO INVESTI. GATE AND REPORT TO CONGRESS ADVISABILITY OF ESTABLISHING THE UPPER MISSISSIPPI NATIONAL PARK

May 29 (calendar day, JUNE 5), 1930.-Ordered to be printed

Mr. NYE, from the Committee on Public Lands and Surveys, sub

mitted the following

REPORT

[To accompany H. R. 4020)

The Committee on Public Lands and Surveys, to whom was referred the bill (H. R. 4020) to authorize the Secretary of the Interior to investigate and report to Congress on the advisability and practicability of establishing a national park to be known as the Upper Mississippi National Park, in the States of Iowa, Illinois, Wisconsin, and Minnesota, having considered the same, report favorably thereon with the recommendation that the bill do pass without amendment.

The facts are set forth in the report of the House Committee on the Public Lands (H. Rept. No. 1263, 71st Cong., 2d sess.), which is appended hereto and made a part of this report, as follows:

(House Report No. 1263, Seventy-first Congress, second session) The Committee on the Public Lands, to whom was referred the bill (H. R. 4020) to authorize the Secretary of the Interior to investigate and report to Congress on the advisability and practicability of establishing a national park to be known as the Upper Mississippi National Park in the State of Iowa, and for other purposes, having considered the same, report favorably thereon and recommend that it do pass with the following amendments:

Page 1, line 8, after the word "Iowa”, insert a semicolon and the following: "the county of Jo Daviess of the State of Illinois; the counties of Grant, Crawford, Vernon, La Crosse, Trempealeau, Buffalo, Pépin, and Pierce of the State of Wisconsin; and the counties of Houston, Winona, Wabasha, and Goodhue, of the State of Minnesota.”

Amend the title so as to read:

“A bill to authorize the Secretary of the Interior to investigate and report to Congress on the advisability and practicability of establishing a national park, to be known as the Upper Mississippi National Park in the States of Iowa, Mlinois, Wisconsin, and Minnesota."

The approval of the Secretary of the Interior and the purpose of the proposed legislation are contained in a letter under date of February 21, 1930. This letter is herein set out in full for the information of the House:

DEPARTMENT OF THE INTERIOR,

Washington, March 10, 1930.
Hon. Don B. COLTON,
Chairman Committee on the Public Lands,

House of Representatives. My Dear MR. CHAIRMAN: With further reference to your request of February 17 for a report on H. R. 4020, which would authorize the Secretary of the Interior to investigate and report to Congress on the advisability and practicability of establishing an Upper Mississippi National Park in the State of Iowa, I transmit herewith a memorandum from the Acting Director of the National Park Service. After a review of the proposed measure I agree with the acting director. Very truly yours,

Ray LYMAN WILBUR, Secretary.

DEPARTMENT OF THE INTERIOR,

NATIONAL PARK SERVICE,

Washington, February 21, 1930. Memorandum for the Secretary.

Reference is made to letter dated February 17, from the chairman Committee, on the Public Lands, House of Representatives, inclosing copy of H. R. 4020, entitled, “A bill to authorize the Secretary of the Interior to investigate and report to Congress on the advisability and practicability of establishing a national park to be known as the Upper Mississippi National Park in the State of Iowa, and for other purposes,” with request for report thereon.

As indicated by the title, this bill would authorize an investigation as to the advisability and practicability of establishing a national park in the area mentioned with a view to reporting to Congress thereon. In the summer of 1929 the associate director of this service made a preliminary examination of the area described in the bill and surrounding territory, and expressed the opinion that the scope of any proposed investigation for national park possibilities in this vicinity should not be confined to the State of Iowa and the counties specifically mentioned but to the Mississippi Valley, the Mississippi River, and adjoining banks from Bellevue, Iowa, to Lake Pepin, which is not far from Minneapolis. This could be accomplished by amending the bill as follows:

(1) Insert a semicolon and the following after the word “Iowa”, page 1, line 8: “the county of Jo Daviess of the State of Mlinois; the counties of Grant, Crawford, Vernon, La Crosse, Trempealeau, Buffalo, Pepin, and Pierce of the State of Wisconsin; and the counties of Houston, Winona, Wabasha, and Goodhue of the State of Minnesota. (2) Amend the title of the bill to read:

Á bill to authorize the Secretary of the Interior to investigate and report to Congress on the advisability and practicability of establishing a national park to be known as the Upper Mississippi National Park in the States of Iowa, Illinois, Wisconsin, and Minnesota."

It is noted that the bill would also authorize an appropriation of $500 for the proposed investigation. Funds for this purpose, however, are provided for the fiscal year 1931 in the appropriation bill now pending in Congress, and it would appear that this authorization is unnecessary. Therefore, the last sentence of the bill covering this authorization should be eliminated.

If the amendments above suggested are made, this service would have no objection to the proposed legislation, and it is recommended that the bill be favorably reported on by the department accordingly.

Arno B. CAMMERER, Acting Director.
O

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MAY 29 (calendar day, JUNE 5), 1930.-Ordered to be printed

Mr. Nye, from the Committee on Public Lands and Surveys, sub

mitted the following

REPORT

[To accompany H. R. 9169]

The Committee on Public Lands and Surveys, to whom was referred the bill (H. R. 9169) for the relief of the successors of Luther Burbank, having considered the same, report favorably thereon with the recommendation that the bill do pass without amendment.

The facts are fully set forth in the report of the House Committee on the Public Lands (H. Rept. No. 768, 71st Cong., 2d sess.), which is appended hereto and made a part of this report, as follows:

(House Report No. 768, Seventy-first Congress, second session) The Committee on the Public Lands, to whom was referred the bill (H. R. 9169) for the relief of the successors of Luther Burbank, introduced by Mr. Lea of California, having considered the same, report thereon, with the recommendation that it do pass with the following amendment:

Strike out all after the enacting clause and insert in lieu thereof the following:

That the time within which Luther Burbank, his heirs or successors in interest, must make payment and comply with the other provisions of the act of Congress approved August 24, 1912, entitled 'An act to patent certain semiarid lands to Luther Burbank under certain conditions,' be, and the same is hereby extended until five years from the passage of this act.

On the 24th of August, 1912, an act was approved permitting Luther Burbank to select certain public lands for experiment in the production of spineless cacti on condition that Burbank, his heirs or successors in interest, might acquire title to such lands upon the terms therein specified.

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CONDITIONS UNDER THE ACT OF 1912 The lands selected were to be portions of the unappropriated nonmineral, nonirrigable, nontimber, and unreserved public lands, located in California, New Mexico, Arizona, and Nevada, as Burbank might select, and not to exceed 12 sections in all.

The act carried the right to enter upon the land and propagate spineless cacti, with incidental possessory rights, for that purpose.

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