It may be said, however, that the placer mining claimants had good reason to think that the south half of the river was open to mineral location. This, again, is a misconception, and a mere reading of the opinion of the court will be sufficiently convincing on that point.

The very act creating the original Territory of Oklahoma, after providing that certain lands theretofore ceded by Indian tribes should be open to entry "to actual settlers only, under the homestead laws," then added this general declaration :

'Whenever any other lands within the Territory of Ohlahoma, now occupied by any Indian tribe, shall by operation of law or proclamation of the President of the United States be open to settlement, they should be disposed of to actual settlers only under the provisions of the homestead law."

This, of course, plainly excluded the mineral laws. Subsequent acts of Congress ratifying and accepting cessions by Indian tribes-some nine in number-all contain specific declarations to the same effect; and in one of these acts (act of March 13, 1891, 26 Stat. 759) this further declaration was made: 'All lands in Oklahoma are hereby declared to be agricultural lands and proof of their non-mineral character shall not be required as a condition precedent to final entry."

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In only two instances were exceptions made, and in those instances Congress expressly extended the mineral laws to certain restricted areas of ceded Indian lands.

In accordance with these acts, as the opinion shows, the Land Department had repeatedly denied applications for mineral claims outside the excepted

areas.

So that it is not too much to say there was never any reasonable or substantial foundation for any belief on the part of these mineral claimants that the mineral laws applied to these lands. Not only is this true, but some of the mineral claimants, after making formal filings in the local land office, applied for patents and pushed their claims before the land department. Among these parties especially were those now represented by the Burk Divide Co.

On May 9, 1919, before any actual development was commenced on the claims, the Commissioner of the General Land Office rejected the application of the Judsonia Developing Association for a patent upon its claim 012255. The company appealed to the Secretary of the Interior, who affirmed the decision of the General Land Office on October 13, 1919. This was two days less than one month after the Burk Divide people, by the evidence of their own witnesses, actually began to drill their first well. The Interior Department then held that these lands were not open to mineral location; nevertheless, the Burk Divide people elected not only to go on with the well they had then commenced but to start new wells, and so continued at all hazards their adventurous enterprise. The foregoing facts are shown by the opinions of the land office as contained in the record before the Supreme Court (vol. 5, p. 2576).

It also appears that the other two claims of the Burk Divide Company. namely, the Belle Isle and the Mary Isle, were both rejected by the Commissioner of the General Land Office, the former on May 21, 1919, and the latter on August 26, 1919; and that these decisions were later affirmed by the Secretary of the Interior (R. 2578-2581).

But this was not all. The bona fides of any act manifestly must be determined primarily upon the situation at the time the act was performed. Now at the time the placer miners went upon these lands they were claimed by the State of Texas. In 1880 the Court of Criminal Appeals of that State had decided that the north boundary of Texas was along the middle of Red

River. Spears v. State, 8 Texas Criminal Appeals, 467. The Supreme Court of the State reaffirmed that position in 1905. Parsons v. Hunt, 98 Texas 420. The latter decision was made nine years after the decision of the Supreme Court of the United States in United States v. Texas, 62 U. S. 1. In that case the Supreme Court had held and decreed that the boundary followed the south bank, but the State of Texas and her representatives for many years contended that there was no issue in that case warranting any decision as to whether the line followed the middle or the south bank, and therefore denied the jurisdiction of the Court to include such a declaration in its decree. 'So that there was at the time the mineral claimants went upon these lands a real and substantial question as to whether the boundary was in the middle or along the south bank.

In 1915, the Attorney General of the State of Texas, in a formal opinion, had advised the State Game and Fish Commissioner that the boundary was in the middle of the river. On August 26, 1918, the State of Texas granted to H. C. Poe a mineral license covering a large part of the river bed lands here in controversy up to the middle of the channel; and on October 28, 1918, granted a lease of all the rest of the lands in controversy to Sam Sparks. Now the earliest of the placer claims here relied on (the Mellish claims) were not located until December 8, 1918, and those of the Burk Divide claimants January 18-21, 1919. So that at the time the placer people attempted to initiate their claims, all the lands were already covered by adverse mineral licenses emanating from the State of Texas.

Again-At the time the placer miners went upon these lands the State of Oklahoma was claiming the whole of the river bed. She claimed not merely that the whole river was subject to her political jurisdiction but that the title to the soil of the river bed was vested in the State as a proprietor. The latter claim was based on two grounds; First, that the river was navigable in fact; second, that it was navigable in law. The former ground was something of an absurdity, but the latter had apparent support in several decisions of the Supreme Court of the United States; and at that time it was a fairly debatable question whether the river must not be considered a navigable river in law so that the title had passed to the State.

The fact that Oklahoma was then asserting these claims is shown by an order made April 23, 1918, by the Commissioners of the General Land Office of the State, composed of the Governor, the secretary of state, the State auditor, the superintendent of public instruction, and the president of the Board of Agriculture. On that day the board passed a resolution directing that a large body of river bed lands, comprising all those here in controversy, be advertised for leasing for oil and gas purposes (R. 239). This order was followed on November 20, 1918, by another order directing that the river bed be surveyed to ascertain the acreage, etc. (R. 240); and on February 4, 1919, by an order which after reciting that it was reported that parties were drilling for oil in the bed of Red River in the vicinity of Burk Burnett,' directed the assistant attorney general for the school board to take such steps as might be necessary to protect the rights of the State, etc.

Just when advertisements for leases were first actually made does not appear, but the records of the Department of Justice contain a letter from the United States Attorney at Oklahoma City, Okla., dated February 25, 1919, to which is attached a copy of an advertisement cut from a newspaper in which it is stated that bids would be received on March 11, 1919. So that there can be no doubt that these placer miners who had then already made their locations, but had done no development work, were aware of the claim of the State to the ownership of the whole bed of the river.

Still further: From the beginning the view was expressed in many quarters that the Indian allottees and the purchasers of Indian lands on the north bank took title by riparian right clear across the river to the south bank. This view was urged upon the Indian Office by the superintendent of the Kiowa Agency in a letter dated January 17, 1919; and on February 25, 1919, the United States Attorney reported to the Department of Justice that the Indian superintendent had requested him to bring suit to enjoin the Oklahoma Land Commissioners from selling leases, on lands opposite Indian riparian allotments, on the theory that the rights of the allottees extended clear to the south bank. This view was supported by two decisions of the Supreme Court of Georgia, being the only cases known which directly involved a question of this kind: Young v. Harrison, 6 Ga. 130; Jones v. Water Lot Co., 18 Ga. 539. In fact, the question was always regarded by the Department of Justice as the most doubtful of the series of questions involved in the suit.

Just when the extended claims of the north shore riparian owners were asserted in a manner to come to the notice of other claimants is not entirely clear, but certainly they could not but have become aware thereof before any of them commenced any actual development work in the river bed.

The United States itself began investigations upon the ground early in the spring of 1919. From the 7th day of August of that year it had upon the ground continuously a corps of surveyors and investigators preparing data for the assertion of the claims of the United States. What those claims were became well known to all parties long before the bill of intervention was filed, and it seems futile to maintain that its position was not known either by the placer miners, the claimants under Texas, or the claimants under Oklahoma, before any of them actually began drilling wells in the river bed.

From the foregoing, it it apparent that the placer miners went upon the river bed with the knowledge, at the time they located their claims, of the assertions of ownership by Texas, by Oklahoma, and by the north shore riparian owners; that certainly before they began actual development work they knew of the claims and position of the United States; that in fact Texas had already leased the south half of the river bed at the time they located their claims thereon; that Oklahoma advertised the whole river bed for sale shortly after they had located their claims; and that their applications for patents had been rejected by the General Land Office before they commenced development work and again rejected by the Secretary of the Interior a short time after the first wells had been commenced.

It is apparent, therefore, that it can not be said in any just or reasonable sense that the placer miners went upon this land and made their developments in good faith. Good faith implies a belief that the land was open to location and that there were no adverse claims having at least any reasonable foundation. Also, it is apparent that those who drilled wells under the licenses issued by the State of Texas were fully aware of the claims of the State of Oklahoma, of the north shore riparian owners, and of the United States; and so in the case of all parties, whatever their alleged source of title as opposed to the United States, it is evident that none of them can be said to have expended money in the development of these lands in good faith. They took all the risks of the title with knowledge of all the opposing claims.

So that, as stated in the beginning, all the bills now pending before this committee are, in my judgment, founded upon a misconception of the actual situation, and in sober truth it is impossible, under the circumstances, that any private claimant to the river bed lands can in any legal sense lay claim to have started development work in good faith. It is my judgment, there

fore, that none of them have any equitable claims to the moneys now in the hands of the receiver which are the proceeds of oil taken from lands which shall finally be adjudged to belong to the United States.

If, notwithstanding the foregoing, this committee in its wisdom still feels disposed to recommend that those who actually expended money in the development of these lands should have some part of the money now in the hands of the receiver, I can only suggest that the proportion granted to them by these bills should be greatly reduced, and instead of getting seven-eighths of the total production they should receive a lesser proportion. In that event, possibly something along the lines of the provision made in 18a of the leasing bill might commend itself to the wisdom of the committee and to Congress. Under these bills, as I understand them, only 10 per cent of the one-eighth royalty would go into the Treasury of the United States, and the Secretary's bill proposes that the cost of administration should be paid therefrom. It is very evident that by such legislation the United tSates would not be reimbursed by any means for the cost of this litigation.

It only remains to add that, with one exception, all the parties who actually put down wells from which oil has been produced have already been repaid under orders of the court and with the assent of the United States the actual costs of their development work, so far as the process of the oil produced from the wells, respectively, would cover such expenditures.

Thus, the Burk Divide Oil Co. has already been paid out of the receivership funds $31,584.55 as the expense of drilling one of its wells, and $14,626.35 as the expense of drilling the other. (7th Report of Receiver, p. 8.) The single exception is that of the well known as the Burk Senator put down by Thomas Testerman on one of the Mellish claims. As I understand, the court has thus far declined to authorize the receiver to pay for that well because of allegations on the part of Texas claimants that the well was drilled in violation of an injunction from a Texas court.

In compliance with your request, Mr. W. W. Dyar, special assistant to the Attorney General, is designated to appear before your committee at the hearing to be held on January 12.

Respectfully,

W. D. RITER,
Assistant Attorney General,
For the Attorney General.

These letters are all the departmental communications we have on the bills. Now, I think we ought to get some idea as to how many witnesses are here who desire to be heard or representatives of these various claimants. Mr. Dyar is here representing the Depatment of Justice.

Mr. SANDERS. The only witness we have representing our constituents, Mr. Chairman, is Colonel Roote.

Mr. VAILE, Mr. Chairman, Mr. James T. Macey, of Denver, is here representing a group of placer locaters.

Mr GORE. I would like to be heard in behalf of Mr. Testerman, whose claim has been mentioned here and who has been mentioned as the pioneer that went in and put down a well and who did not have notice.

Mr. SANDERS, I should have metioned the name of James G. Piety.

Mr. GERNERD, I would like to state that Captain Green, a former Member of Congress, would like to testify.

Mr. MCCLINTIC, Inasmuch as Congressman Carter has introduced a resolution, representing the State of Oklahoma, I am going to suggest that his name be placed on the list and that he be given an opportunity to be heard

later. I notified him of this hearing, and he will probably want to ask the committee to substitute his resolution in place of the pending legislation in behalf of the State of Oklahoma.

Mr. CAMPBELL. My colleague, Mr. Murphy, of Ohio, introduced H. R. 12580. He can not be here on account of a meeting of the Appropriations Committee, but a number of his constituents in Dayton, Ohio, and a number of people from Pittsburgh, are interested. Have you had any report on his bill?

The CHAIRMAN. That bill has never before been called to my attention. Mr. Murphy did not request a report on it.

Mr. CAMPBELL. He introduced it, I think, in September. You may remember that I mentioned it to you one time and told you he was going to introduce it and would ask for a hearing. I do not think he knew of the hearing today. It was introduced on September 11, 1922.

The CHAIRMAN. We can hear him.

Mr. WILLIAMSON. Mr. Chairman, may I ask whether you have a report on H. R. 12233, the bill introduced by Mr. Sinnott?

The CHAIRMAN. Yes; and the report has already been read.

Mr. WILLIAMSON. Are you having a hearing on that or some other bill?

The CHAIRMAN. We are having hearings on these two bills and the entire controversy. The hearings are not confined to the two bills, but those are the only bills now before the committee.

Is there anyone else here representing any of the interested parties?

Mr. MCCLINTIC. Mr. Chairman, Mr. Raker, a member of the committee, has asked for the number of the resolution which was introduced by Congressman Carter.

The CHAIRMAN. This is the first I have heard of that resolution, but when we locate it we shall be glad to hear Mr. Carter. The committee can consider any bill that may have been introduced.

Mr. RAKER. Mr. Dyar, may I ask whether you have a printed record referring to the various decisions and acts mentioned in your opinion?

Mr. DYAR. We have the brief which we used in the Supreme Court, and it refers to those decisions and acts and a great many others.

Mr. RAKER. Does your brief cover all of those questions so that one can get at them readily?

Mr. DYAR. Yes, sir.

Mr. RAKER. May I see it for a moment, and then I want to ask one question in regard to it.

Mr. DYAR. A good many subjects are handled in it.

Mr. RAKER. But the main subjects before the committee is set out in it in full? Mr. DYAR. Yes, sir. The question as to whether these lands were open to mineral location is dealt with here [indicating].

Mr. RAKER. Just that one subject?

Mr. DYAR. Yes, sir; the subject was separately treated.

Mr. RAKER. May I ask you this question? Have you any of these that are accessible for the committee?

Mr. DYAR. They are pretty nearly exhausted and that is my own personal copy. I think I can provide the committee with copies but you may take that. Mr. RAKER. What I was going to ask you, Mr. Chairman, was this, so that anyone who would like to read it will not have to run all over the country for it: Whether or not this part of the brief could be inserted in the record in 10point type? I think we are entitled to have that so as to assist the committee and the House, because it is so important.

Mr. BARBOUR. Do you mean the whole brief?