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attached to the opinion; and the court, in a part of the opinion quoted by the Supreme Court yesterday, had said that unquestionably the boundary line of the treaty followed the south bank. Now, of course, Texas at some time took up the idea that that question was not in issue, and that the United States Supreme Court had the authority to say whether the bank was in the middle of the river, but only as between the two forks.
Yow, here is an interesting thing: Texas, after that decree was entered, made a motion in the Supreme Court for a rehearing. I went to the Supreme Court to ascertain that fact, and found that it had made a motion for a rehearing, and I asked the clerk for the paper and he brought it to me-a little, thin pamphlet.
I sat down at the table and took notes from it and I recited it in my brief. It was nine pages long. It set out 17 different grounds of error on the part of the court in making the decree in the Greer County case-17 different grounds-everything that they could think of.
It never said one word, never made any complaint, of the fact that the decree had laid the boundary along the south bank of the river.
Now, the clerk of the court told me that that was the only copy that they had. I gave it back to him, or left it on the table, I do not know which., It has never been seen from that day to this, and when I made that argument before the Supreme Court Mr. Justice Pitney made the remark that he had never been able to find that motion and that they did not know officially what it contained. And so it depended on what I had in my brief; but I had it in my brief so particularly that, even if they had doubted my word, they could have found it in my brief, and they tried to find every possible objection to the decree, and never did complain of the part that laid the boundary along the south bank.
The CHAIRMAN. Just briefly, what is your view of the decision of Assistant Attorney General Van Devanter on April 29, 1897?
Mr. DYAR. I dealt with that particularly in the issue that was before the Supreme Court as to the north bank and the south bank. And it was simply this: The question before Assistant Attorney General Van Devanter, as shown entirely by the letters submitting it is—it was a question of cut-off; the river had abandoned its old bed and cut off a piece of land by the new bed.
The surveyor put up to the department the question of whether the boundary which they were trying to locate—they were surveying the north shore at that time-whether they should run the line along the old bed or along the new bed that the river had made. That was the question before them; and they said, "You follow the old bed.” Now, that opinion does not mention the Greer County case; and I must assume that Assistant Attorney General Van Devanter did not know about it; and in knowing something about the preparation of those opinions, it may be that Mr. Van Devanter did not prepare that opinion ; maybe he did. At any rate, the Greer County opinion was entirely overlooked or they never would have said what they did. They went on, unnecessarily, to say: "I assume it is the middle of the river ; ” he did not decide that at all. The decision was that it followed the old bed of the river and not the new one, and he simply assumed that it was in the center of the river.
Mr. BARKLEY. I want to say something about the decision as to the river ; where it now mentions the old bank, it is the south bank; under that opinion, rendered last Monday, it is the bank
Mr. ('OLTON. Say that again, please; I did not get that.
The CHAIRMAN (interposing). Just a moment. Is Mr. Van Devanter's decision susceptible of this interpretation, that he found that the middle of the channel was the south bank at the time he rendered his decision?
Mr. DYAR. No, sir; I do not think so.
Mr. DYAR. I was going to undertake to make a brief statement now, because it seems so pertinent here. Prior to Mr. Van Devanter's opinion, away back, the question came before the Supreme Court of Arkansas, as to whether the boundary was along the middle of the river, or on the south bank, in a criminal case. A crime had been committed in a place where there was a cut-off, and the river had abandoned its old channel ; and on the south bank of the old channel, there was a little shack built out there on the south bank, and a man had committed a murder in that shack; and the Arkansas Supreme Court had before it the question of whether it had jurisdiction of that crime. And the Supreme Court of Arkansas held-and there is a little corner of Arkansas, you know, that depends on this same treaty—it held that the south bank was the line, and it punished the man for the murder.
Mr. RAKER. It assumed jurisdiction.
Mr. DYAR. It assumed jurisdiction; yes, sir. You see there are all sorts of questions that come up in this matter.
The CHAIRMAN. Is it your opinion, Mr. Dyar, that, relying upon the Van Devanter decision when he was in the Interior Department, they had the just ground for thinking that the middle of the main channel was the boundary line
Mr. DYAR (interposing). That is pretty hard to say; I should say, no; because they had the trial decision of the supreme court in the Greer County case, expressly laying it along the south bank. The Van Devanter opinion did not refer to that decision at all.
The CHAIRMAN. They should not have relied upon the Van Devanter opinion alone; is that your view ?
Mr. DYAR. Well, is not a decision of that. But of course the average man will say,
Why, that is the departmental view, and maybe we are justified in relying upon it." That is a hard question to answer.
Mr. LARSEN. Do you think the Van Devanter opinion is determinative in deciding the question of good faith?
Mr. DYAR. That is a question for the committee to answer; but I would say, not in any sense, as I would define good faith, of a man of ordinary truths, examined with some intelligence. The authority was available; they had the Greer County decision of the Supreme Court of the United States itself on the one hand. They had the Arkansas decision on the same subject. But they had opposed to them two decisions of the highest court of Texas, and they had the Van Devanter opinion.
Mr. LARSEN. Measured by the rule that I believe you said had been laid down in one case where an abstract of title was overlooked and the mortgage was actually on record, and yet the abstract overlooked it—did you say that that could be taken as showing good faith in that case?
Mr. DYAR. No; did not. I only said good faith was such as entitled a man to get his own money back.
Mr. LARSEN. Well, I say if that could be taken as evidence of good faith in that particular case, assuming that that had been taken as evidence of good faith, and these parties saw that decision and acted on that decision, why should not the same rule apply here?
Mr. DYAR. I do not know about the Greer County decision ; Mr. Van Devanter must have overlooked it; that is all I can say.
The CHAIRUAN. You may proceed, Mr. Barkley.
Mr. BARKLEY. I was just about to say that if our people, living 2,000 miles from Washington, can not depend on the decisions of the Land Department and the Department of the Interior, which is the only one authorized to give opinions in these cases, which are matters of public knowledge, there is not anything that can be trusted in this world; and we should at least be protected as having acted in good faith.
Mr. RAKER. Just one question: How far do you live from the territory in question?
Mr. BARKLEY. About 400 miles.
Mr. BARKLEY. I was; but I want to state this: There was a young lawyer employed by this company that passed on the title, and they bought it on his opinion as to the title.
Mr. RAKER. Well, a young lawyer's opinion ought to be worth something.
Mr. BARKLEY. He attended the University of Texas and the University of California. And they put the thing up to him first and he passed on the title, and they bought it; and then they went out to drill.
Mr. RAKER. I want to ask you this: From your knowledge of that country, is it not a matter that was generally understood that the line of Oklahoma was on the south bank of the river, since the decision of the Supreme Courtimmediately following that—and that it depended upon the question involved, whether it was assault in Texas or murder in Arkansas, or on Indian lands in Oklahoma—that each party was taking his chances in going in there and getting some results if he could ?
Mr. BARKLEY. No, sir; I do not think so. Our Supreme Court had gone into the matter; and I do not think there was any question about the middle of the river being the boundary. When Congress gave Texas to the middle of the Sabine River, it was thought that this was in issue, it certainly would give the middle of this river also. I think they had to so construe it. If they were willing to give us the middle of the Sabine River, it would have been thought if there bad been any question in anybody's mind at that time, that they would have been willing to give us the middle of the Red River. And in the very act of Congress creating Oklahoma Congress, specifically reserved the right to change the boundaries,
Mr. DYAR (interposing). I do not know about that.
Mr. BARKLEY. Now, I want to go into this question of the procedure: When Greer County got into dispute the record shows that the Government sent its employees through there, warning people that the title was in dispute, and that their Texas titles were about to be declared void.
Now, what did Congress do for the pioneers in Greer County? When the litigation was over, it gave the pioneer the same land that he would have been entitled to if he had gone on the land originally as Government land, without the title being in question. Now, we do not ask any more than that in this case.
The CHAIRMAN. What statute is that?
Mr. BARKLEY. I will get it and furnish it to the committee. I did not know that I was to appear here this afternoon
Now, to come back to this question of Texas rangers, etc. Everybody on the Oklahoma side believes that their property went to the south bank. If
that were true, either the Federal court or the State Court of Oklahoma would have jurisdiction to the south bank, and entitled to issue its process to that point.
If Texas was right, the Federal court for the northern district of Texas or the State court of Texas adjacent to that territory would have the right to exercise the jurisdiction over this, and their receivers would be appointed ; and neither State could waive that question and let the other State take possession of it, without, in a measure, surrendering a substantial part of its claim. And that was the reason that neither State, as I take it, would be willing for the other State to take possession of it. Obviously—and what many people tried to get worked out, but other counsel prevailed with the State of Texas-was to get them to appoint two receivers, from each State simultaneously, the two receivers filing joint reports, so that whatever court was determined to have the jurisdiction the proceedings would be binding and not void.
The CHAIRMAN (interposing). It was not necessary for them to go vi et armis, was it?
Mr. BARKLEY. No, sir. But that question came up on both sides. You have heard about the Gatling gun and the sawed-off guns, etc.; but I was in that section a good deal, and I never saw anybody hurt. A few rangers are always kept in oil fields in the suppression of crime. When Texas jurisdiction was questioned, and her courts decided that it went to the middle of the stream, naturally they sought to protect their property. About this disobedience of a Federal injunction issued in Oklahoma, they voluntarily went up to Okla. homa, as I understand it, to the Federal judge, and on full hearing he discharged them on the contempt proceedings after they had explained fully from their standpoint.
Mr. DYAR. You say you never heard of anybody being hurt. A surveyor employed by the United States, engaged in the investigation and in making surveys for these investigations, was beaten over the head by one of those Texas officials and he is practically an idiot to-day as a result of that.
Mr. BARKLEY. Major Dyar, I think if you go into that, you will find that he was a private citizen and not an official.
Mr DYAR. No; he was employed as a surveyor by the United States.
Mr. DYAR. No; he was the man placed in charge by the Texas court, by the receiver of the Texas court; in charge of the parties, probably.
Mr. BARKLEY. I want to say this: The General Oil Co. did not have any rangers or any armed guard; it relied on the authorities, the same as anybody else, to protect its properties. But the Texas courts were trying to take possession of this property, just like the receiver in Oklahoma was.
Now, if this committee, in its judgment, should see fit to report the bill out and should in addition to the one-eighth royalty see fit to deduct all the expenses that the Government has been put to and subtract it from what it bas produced, and authorize the leasing to us of the land, we would have no objection.
We submit to you one-eighth, because while the Government has been to great expense, so have these private litigants. But we believe that would be fair to all concerned; or if this committee sees fit to apply a different royalty, based upon the output of the wells, we will take the judgment of the committee as to that.
The ('HAIRMAN. Is the Interior Department bill satisfactory to the Texas people?
Mr. BARKLEY. Yes, sir; it is to the General Oil Co. and the people I represent. The others I have never heard any expression from, except that I heardI might state this: The attorney general of Texas objected until they had that clause in the bill about not disturbing the possession of the Supreme Court until the property was discharged, on the ground that they did not want two people in charge of the same property.
The CHAIRMAN. Well, it is generally conceded that we can not take this property out of the hands of the United States Supreme Court.
Mr. BARKLEY. That was the only objection of the attorney general.
The CHAIRMAN. Now, as to the Sanders bill, you do not object, except in the way you have indicated ?
Mr. BARKLEY. Yes, sir.
The CHAIRMAN. With that language stricken out, would that bill be satisfactory?
Mr. BARKLEY. It would; yes, sir; provided you have the language in the general leasing bill, with that language stricken out.
The CHAIRMAN. And you have no objection to offer to the Sanders bill outside of that?
Mr. BARKLEY. No, sir; I have not. And I say that because there were a few cases where our people were not able to send representatives here. There may be people down there who have made expenditures and have gone broke and are not able to send any representatives to Washington. And the reason I say that is that this bill appears to be so framed that everyone would have a right to come up and present his equities and have his claim considered.
The CHAIRMAN. Would the date named in the Interior Department bill,
Mr. BARKLEY. I do not know whether it would or not.
Mr. BARKLEY. No. That date is satisfactory to us; either date is satis. factory to us.
The CHAIRMAN. I mean that date in the Sanders bill.
Mr. BARKLEY. It is stated in the brief that I submitted to the Senate committee.
Mr. DRIVER. Will you refer to that? I want a note made of it.
Mr. BARKLEY. Suppose, if you have no objection, I furnish the clerk of the committee with a copy of that permit and our assignment, to go into the record.
Mr. DRIVER. I wish you would do so.
[Sam Sparks. Oil and gas prospect. Petroleum and gas prospect application, under
sections 3 and 4, chapter 83, act approved March 16, 1917.)
(If one applies for a whole survey or section, or 80 acres, or some multiple of 80 acres, of such survey or section, the application should be filed with the county clerk; otherwise the application must be filed with the county surveyor and field notes and plat must be furnished by him.)
DECEMBER 2, 1918.
I am a citizen of the United States and desire to obtain the right to prospect
varas per inch. Variation, 10° 30 east.