In Andrus v. Utah, 446 U.S. 500, 100 S.Ct. 1803, 64 L.Ed.2d 458 (1980), the Justice Department filed a memorandum on behalf of the Secretary of the Interior which commented as follows: [I]n the view of the United States, the Tribe's claim that the Uncompahgre Reservation survives is both erroneous and irrelevant.
Though title to Sixteenth Section land vested in the state upon approval of the federal survey, the state had a "binding and perpetual obligation to use the granted lands for the support of public education." Andrus v. Utah, 446 U.S. 500, 523, 100 S.Ct. 1803, 1815, 64 L.Ed.2d 458 (1980) (Powell, J., dissenting). All proceeds from the sale or lease of such land were thus "impressed with a trust in favor of the public schools."
In some instances, additional sections have been granted.'" Andrus v. Utah, 446 U.S. 500, 506-507, n 7, 64 L.Ed.2d 458, 100 S.Ct. 1803 [1806-07] (1980) (quoting United States v. Morrison, 240 U.S. 192, 198, 60 L.Ed. 599, 36 S.Ct. 326 [328] (1916) (footnotes omitted)). Thus, the basic Ohio example has been followed with respect to all but a few of the States admitted since then.
Therefore, according to Occidental, it could locate mineral claims upon the selected lands pursuant to section 36-1-140 and is entitled to an exploration permit. In Andrus v. Utah, 446 U.S. 500 (1980), however, the United States Supreme Court concluded that the nature of the federal government's role in the approval of a state's selection of indemnity lands was altered by a combination of congressional legislation and executive withdrawals of federal lands from disposal after Wyoming v. United States was decided. In Andrus, the Supreme Court held that the Secretary of the Interior now has broad discretion to decide whether to classify lands as available for indemnity selection by the states.
{2} Since 1802, the United States Congress has passed enabling acts that have granted federal lands to each new "public-land" state admitted to the Union for the purpose of supporting its schools. Andrus v. Utah, 446 U.S. 500, 506, 100 S.Ct. 1803, 64 L.Ed.2d 458 (1980). Unlike the original thirteen states, many newly created states, including New Mexico, encompassed vast tracts of federal land that were immune from taxation.
The precise reasons for this practice are somewhat unclear, but it seems likely that they were a combination of an overall practice of encouraging education, a congressional desire to accelerate the disposition of western lands at a higher price, and a policy of trying to put the public-lands States on some sort of a par with the original States in terms of taxable property since federal land, a large portion of the new States, was not taxable by them. See generally Andrus v. Utah, 446 U.S. 500, 522, 523 (1980) (POWELL, J., dissenting); P. Gates, supra n. 2, at 288-289; B. Hibbard, A History of the Public Land Policies 309-311 (1939). Following the Ohio example of reserving lands for the maintenance of public schools, "'grants were made for common school purposes to each of the public-land States admitted to the Union. Between the years of 1802 and 1846 the grants were of every section sixteen, and, thereafter, of sections sixteen and thirty-six.
Therefore, out of an abundance of caution, I will address it. I begin with the history of the enabling acts of the western states, as summarized in Andrus v. Utah, 446 U.S. 500, 520-24, 100 S.Ct. 1803, 1813-16, 64 L.Ed.2d 458 (1980) (Powell, J. dissenting). When the original thirteen states formed the Union, each state had sovereign authority over the lands within its borders.
Watt, 462 U.S. at 38 n. 1, 103 S.Ct. at 2220 n. 1. Pursuant to the Taylor Grazing Act (Act of June 28, 1934, 48 Stat. 1269, 43 U.S.C. §§ 315–315r), President Roosevelt issued Executive Order No. 6910 on November 26, 1934, ordering that “all of the vacant, unreserved, and unappropriated public land” in certain states, including Montana, is “temporarily withdrawn from settlement, location, sale or entry ... pending determination [by the Secretary of the Interior] of the most useful purpose to which such land may be put.” See Andrus v. Utah, 446 U.S. 500, 513–16 & n. 19, 100 S.Ct. 1803, 1810–12 & n. 19, 64 L.Ed.2d 458 (1980); S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 787 (10th Cir.2005). As a result, it may be that Arvilla McLean could not have made her entry after November 26, 1934, and that her entry necessarily occurred before that date.
The state acquired a fee interest in the State Trust Lands upon completion of a survey for section-in-place grants, and upon selection and approval by the Secretary of the Interior (“Secretary”) for the bulk-grant and indemnity-in-lieu selections. Enabling Act, §§ 24, 29, 36 Stat. at 572–74, 575–76; see Andrus v. Utah ( Andrus), 446 U.S. 500, 506–07, 100 S.Ct. 1803, 64 L.Ed.2d 458 (1980); Land Comm'n Report at 13–14. ¶ 6 The Enabling Act required Arizona to hold granted lands in trust:
Though title to Sixteenth Section land vested in the state upon approval of the federal survey, the state had a "binding and perpetual obligation to use the granted lands for the support of public education." Andrus v. Utah, 446 U.S. 500, 523, 100 S.Ct. 1803, 1815, 64 L.Ed.2d 458 (1980) (Powell, J., dissenting). All proceeds from the sale or lease of such land were thus "impressed with a trust in favor of the public schools."