(Notes from a presentation given by Kerby Jackson at a miner's meeting of the Galice Mining District)
What is Public Land?
“Public land is land owned or administrated by Federal, State, county, municipal, or other governments for common or public purposes (e.g. highways, airports, national defense, flood control, water supply, forests and parks). Public Land frequently is used for farming and grazing under a system of permits or leases.” - “Historical Statistics of the United States, Colonial Times to 1970”, United States Bureau of Census, 1975, pgs. 426-427
What is the Public Domain?
As one source explains it: “All of this (referring to the entirety of California, Nevada, Arizona, New Mexico, Utah, Colorado and Wyoming) became national and public domain (after the Treaty of Hidalgo), and the land laws of the United States were extended over it by Congress (for disposition and sale), excepting certain grants made therein by Spanish and Mexican authorities.” - “The Public Domain”, United States Public Land Commission, 1881, pg 134
“'Public Domain' …. denotes those lands
which are or were subject to the public land laws of the United States.”
- “SME Mining Engineering Handbook”, Hartman, 1992, pg. 141
“Congress passed thousands of laws providing for the disposal of the original Public Domain to the states, and their subdivisions and to private owners”. - “Historical Statistics of the United States, Colonial Times to 1970”, United States Bureau of Census, 1975,pg. 423
“An Act to Secure Homestead to Actual
Settlers on Public Domain” - actual title of the 1862 Homestead
As we know, in recent decades, the basic
Congressional policy to dispose of land has begun to change in that:
“It should be recalled that according
to formal general usage and present legal definition the public domain
is that part of the original remaining (land) at any given date, open to
entry, settlement and other disposition under the public land laws.
By an extension of the same definition, … land retained in federal ownership,
but not subject to entry under the land laws was no longer public domain,
but part of the federal estate.”
- “The Closing of the Public Domain: Disposal and Reservation Policies,
1900-1950”, Peffer, 1950, pg.358
Who has authority over the Public Domain?
“With the respect to the public domain,
the Constitution vests in Congress the power of disposition and of making
all needful rules and regulations. That power is subject to no limitations.
Congress has the absolute right to prescribe the times, the conditions
and the mode of transferring this property or any part of it, and to designate
the persons to whom the transfer shall be made. No state legislation
can interfere with this right or impair its exercise; and, to prevent
the possibility of any attempted interference with it, a provision has
usually been inserted in the compacts by which new states have been admitted
to the Union”. - Gibson v. Chouteau
Note that the “compacts” described above refers to the varying state Admission Acts. In Oregon and California alike, interference by the states, its legislatures and their people, in the will of Congress to dispose of the public domain or with any rules Congress had established pertaining to disposal (such as outlined in the 1872 Mining Act) are specifically forbidden.
Ask yourself if the State of Oregon has
a right to require you to obtain permits to work your mineral deposit located
under the 1872 Act. It appears that while the states have authority upon
State Lands, they have no authority upon the Public Domain, whether or
not the land in question is in possession of a miner or not.
What happens when a mining location is entered upon the Public Domain?
“The effect of valid location is to segregate the territory inclosed within the boundaries of the claim from the public domain, and in so far as everybody is concerned, the locator is entitled to exclusive possession”. - Johnson's Guide to Government Land (1905)
“The court quoted the following from Clipper Min. Co. v. Eli Min. & Land Co., 194 U.S. 220 [24 S.Ct. 632, 48 L.Ed. 944]: " 'In St. Louis Min. & Mill. Co. v. Montana Min. Co., 171 U.S. 650, 655 [43 L.Ed. 320, 322, 19 S.Ct. Rep. 61, 63], the present Chief Justice declared that "where there is a valid location of a mining claim, the area becomes segregated from the public domain, and the property of the locator." Nor is this "exclusive right of possession and enjoyment" limited to the surface, nor even to the single vein whose discovery antedates and is the basis of the location. It extends (so reads the section) to "all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically." In other words, the entire body of ground together with all veins and lodes whose apexes are within that body of ground becomes subject to an exclusive right of possession and enjoyment by the locator. And this exclusive right of possession and enjoyment continues during the entire life of the location, or, in the words of Chief Justice Waite, just quoted, while there is "a valid and subsisting location of mineral lands, made and kept up in accordance with the provisions of the statutes of the United States." There is no provision for, nor suggestion of, a prior termination (of rights).' " - Montgomery v. Gerlinger, 146 Cal. App. 2D 650, (1956)
“A valid discovery removes the land from unappropriated public domain and the claim holder has exclusive possession”. - Mining Claim Procedures for Nevada Prospectors & Miners (5th edition), Nevada Bureau of Mines
“(The) entry, so long as it remained undisturbed of record, had the effect to segregate the lands from the public domain and make them not subject to entry... It will be observed that the Supreme Court uses the word “entry” without distinguishing between a homestead entry at the land office and the initiation of a homestead right by settlement, but holds that lands are segregated by a homestead entry, from the public domain, and no valid entry can thereafter be made upon the land until it is restored to public domain by the cancellation of the entry that segregated it.”.- Holt v Classen, et al (Supreme Court of Oklahoma, 19 OKL 131)
“This prima facie valid entry removed the land, temporarily at least, out of the public domain, and beyond the reach of other homestead entries.” - Hodges v Colcord, US 192, 24 Sup. Ct. 433
“After an entry, lands once public become private and are segregated from the public domain.” - Appeal of Cornelius J. McNamara to the Department of the Interior/General Land Office, April 20, 1905 (“Decisions Relating to the Public Lands, Vol 33)
“In Witherspoon v. Duncan, 4 Wall. 210, this court decided, in accordance with the decision in Carroll v. Safford, 3 How. 441, that 'lands originally public cease to be public after they have been entered at the land-office, and a certificate of entry has been obtained;' and the court further held that this applies as well to homestead and pre-emption as to cash entries. In either case, the entry being made, and the certificate being executed and delivered, the particular land entered thereby becomes segregated from the mass of public lands, and takes the character of private property. … In the light of these decisions, the almost uniform practice of the department has been to regard land, upon which an entry of record valid upon its face has been made, as appropriated and withdrawn from subsequent homestead entry, pre-emption settlement, sale, or grant until the original entry be canceled or declared forfeited; in which case the land reverts to the government as a part of the public domain, and becomes again subject to entry under the land laws. ” - Hastings & D.R. Co. v. Whitney, et al, (1889) 132 US 357
“When an entry thereof is made under
those laws (whether pre-emption, homestead, or other), the particular
land entered thus becomes segregated from the mass of public lands and
takes the character of private property.” - Graham v Hastings &
Dakota RY Co., (Decisions of the General Land Office/Department of Interior,
Feb 12, 1883)