GAME REFUGES. 19 



stitutional power conferred upon Congress. The word " territory" 

 in the constitutional provision has been stated by the Supreme Court 

 to mean land. I am not going to cite the decisions of the Supreme 

 Court at any length, because I wish to call the committee's attention 

 to two opinions of Attorney General Knox in which he considered 

 this question exhaustively from beginning to end, and this direct 

 question was before him at the time. In his opinion of November 

 29, 1901, to the President, the issue, as stated by him, was this: 



Mr. Gifford Finchot, of the Bureau of Forestry, in his letter to you accompanying 

 the above note, requests the submission to the Attorney General of the question, in 

 substance, whether for the preservation of the big game of the West the Secretary of 

 the Interior has power to prohibit, by rules and regulations, the killing of such game 

 within the national-forest reserves — in other words, whether he can make such reserves 

 the refuges for game, in order to secure its preservation — and he suggests the inquiry 

 whether the act of June 4, 1897 (30 Stat., 11, 34), confers this power, as it does the 

 power to make rules and regulations in many other respects. 



The question before the Attorney General in that case was whether 

 the Secretary of the Interior had the authority under the act of June 

 4, 1897, which is the forest-administrative act, to forbid hunting in 

 the national forests. The Attorney General considered the question 

 exhaustively 



Mr. Reilly (interposing). Does he mention the Race Horse case or 

 any of those cases ? 



Mr. Williams. I do not think he does, but I shall dispose of the 

 Race Horse case. I think I can convincingly show the committee 

 that the Race Horse case has nothing to do with this issue at all. 



The Attorney General came to the conclusion hi his opinion that 

 the Secretary of the Interior had no such power, because Congress 

 had not given it to him, but he distinctly asserts the right of Congress 

 to give him the power. Quoting from this opinion : 



It is true that the United States has the absolute title to and ownership of all the 

 public domain, including the forest reservations; and equally true that this title and 

 ownership carry with them the right of either absolute or partial exclusion from such 

 lands and the right to permit intrusion thereon for such purposes and upon such 

 terms as the owner may prescribe. And I have no doubt that, as incident to such 

 ownership, Congress has the power, if it so chooses, to absolutely prohibit the intrusion 

 of the public into any of the public lands, or to prohibit it for certain purposes, as 

 for cultivation, mining, cutting timber, hunting, fishing, etc. Such right of control 

 and exclusion is incident to the ownership and is a part of that which the owner owns 

 with the land. But it does not follow from this that the Secretary of the Interior 

 may exercise this right of control which resides in the Government and may be exer- 

 cised by Congress. 



He reiterates that again in the closing paragraph in the opinion, 

 where he says : 



It is with regret that I reach this conclusion, as I would be glad to find authority 

 for the intervention by the Secretary for the preservation of what is left of the game 

 from wanton or unnecessary destruction, but it would seem that whatever is done in 

 that direction must be done by Congress, which alone has the power. 



Mr. Attorney General Knox, in an opinion a year after to Hon. 

 John F. Lacey, who was then, I believe, the chairman of the Public 

 Lands Committee, went into the question somewhat more exhaus- 

 tively. In that opinion he had some other issues also before him. 

 That opinion of Attorney General Knox is reported in House Docu- 

 ment, No. 321, volume 70, Fifty-seventh Congress, first session. It 

 reviews the pertinent decisions of the Supreme Court upon like issues 

 involved in this very bill. He concludes, as he concluded in his 



