OCR Text |
Show 3,1909, submitted for Department consideration a draft of regulations based upon the assumption that the maps of location to he filed as pro-vided in section 15 of the act were subject to the approval of the See-retary of the Interior. No action was taken by the Department until December 26, when, in a letter to this Office, it was held as follows: . Referring to your o5ce letters of March 12, March 27, and April 3, 1902, in so far as they relate to the question whether the maps directed to be filed by the lrttter part of section 15 of the act of February 28, 1902 (32 Stat., 43, 47), require or are subject to the approval of the Secretary of the Interior, I have, after extended con-sideration, but not without some di5culty, reached the conclusion that these maps do not require and are not subject to the approval of this Department. The act, in sections 13 to 23, both inclusive, gives much affirmative evidence of an intention to take the matter of the particular rights of way therein provided for out of the control of the Secretary of the Interior, except where otherwise specially pro-vided, and to place it within local judicial control, as is usual with respect to rights of way over the property of white men. The situation under this legislation is therefore not like that presented by the legislation conaidered by the Supreme Court in the m e of Catholic Bishop of Neaqually n. Gibbon (168 U. S., 156), where there was entire silence as to the tribunalin which that legislation waa to beadministered. The provision to which your office letters call attention not only requires that a map be filed in the Department of the Lnterior, but also that one be filed witb the United States Indian agent for Indian Territory and another witb the principal ohief or gopernor of the Indian tribe or nation. The purpose of this is probably only to give notice of the extent,and location of s. proposed right of way, which, so far as differences between the individual owner or tribal owner on the one hand and the railroad company on the other are concerned, is to he obtained under judi-cial rather than departmental supervision and sanction. Unlike other righbof-way acb, these sections do not make a present grant of a right of way to be subsequently identified by a map of location, but instead provide a means whereby, in the future, rights of way may be acquired, viz, by amicable settlement with the owner, and, where that fails, then by condemnation. The effect of this decision was to remove from this bureau all cou-trol of matters relating to the acquirement by railroad companies of rights of way and additional lands under the act of February 28,19Oa, and the result has been, in the opinion of this office-so far as it has been able to obtain information-a woeful disregard upon the part of railroad companies of the rights of the Indians. It is not intended to intimate that there has existed any collusion between the courts and , the railroad companies, hut,'on the contrary, that the disastrous results . are due to the legitimate operations of a law inadequate in itself to protect the weaker party in interest. Where a railroad company effects, under the act, an amicable set-tlement with an individual for a right of way or additional grounds, the necessity for the taking of such right of way or grounds remains undetermined, contrary, it would appear, to the intent of the law, else it would have been needless to insert the words " when necessary" in the clauses providing for the acquirement of rights of way and addi-tional grounds. In such cases of amicable settlement,where an iudivid- |