I say further, that if it had not been for the operations of these pioneer men the Government would not have had anything at all.

The CHAIRMAN. What is the maximum royalty for known territory in Texas in this vicinity?

Colonel ROOTE. One-eighth is the usual royalty, I think.

The CHAIRMAN. On known land or proven land?

Colonel ROOTE. Yes, sir.

Now, just one more word: The Burk Divide Co, and Mr. Testerman demonstrated to the world that this was oil land. There is no doubt in the world about that. When they went there and expended their money, it was what was commonly called wildcat land; and I think they should be treated or placed in the same situation as persons who go on wild-cat land. The leasing law provides that the Secretary of the Interior may issue permits to prospect, and if a person under those permits succeeds in discovering oil a lease is given on not to exceed 640 acres of land at the low royalty of 5 per cent.

Mr. DYAR. I think it is 160 acres.

Colonel ROOTE. No, sir; it is 640 acres. We ought to be put in as satisfactory a position as the man who obtains a permit from the Secretary, under the leasing law, to prospect for oil. You can go to-morrow and procure a permit to prospect, and under that permit you can prospect, and if you discover oil, they will give you a lease on 640 acres at a royalty of 5 per cent.

Mr. RAKER. Now, some people can not see this whole matter at once, and none of them will get all the facts in this record. That will be impossible. The chairman asked you what was the royalty in Texas in a known field: Do you know what it is in Oklahoma?

Colonel ROOTE. I do not know. As I have said, I am not a practical oil man. I have gathered a little superficial knowledge about it, but I am not a practical oil man. However, I will have some one answer that. I can only guess at it.

Mr. RAKER. I wanted to get your idea as to the royalty paid in this community, as a general proposition.

Colonel ROOTE. I do not know. That is a matter that is not in my line, and I do not know.

The CHAIRMAN. If you are willing to follow by analogy the leasing act, then you would be entitled to one-fourth of the land that you located on.

Colonel ROOTE. A permit may be given for 2,560 acres.

The CHAIRMAN. But you would not ask for a permit for that much, because you are simply asking for a permit on 480 acres, or 640 acres, and under the leasing law, you would get one-fourth of that by the discovery of oil, and a preference right to the bal

ance.

Colonel ROOTE. Yes, sir. In this case, however, suppose the royalty is 123 per cent instead of 5 per cent. Inasmuch as these people went there in perfect good faith, I think they should have the full 480 acres.

The CHAIRMAN. What is the royalty in that vicinity in Oklahoma on proven land? Colonel ROOTE. That is the question that Judge Raker asked me, and I am not able to answer it.

Mr. DYAR. Did you ever hear of a 50-50 contract?

Colonel ROOTE. Yes; I know of a case where a man had a piece of property with a well on it, and he gave someone else a lease to sink a well two or three hundred feet away from it, where oil was known to exist, and he got a 50 per cent royalty. The royalty, however, varies, and it runs down to one-eighth. I do not know about those matters, and it would be guess work with me. I have heard in a casual way that the roylaty varies, depending upon whether the land is wild cat, or not.

The CHAIRMAN. Has the receiver kept a record of the production of those wells?

Colonel ROOTE. I so understand it.

Mr. DYAR. He is required to do so by order of the court. Colonel ROOTE. I know he has. The court instructed him to do so, and I presume that he follows the court's directions.

I am now done, gentlemen, but I can not resume my seat until I express to the committee my thanks for the very courteous attention that I have been given. The uniform courtesy that has been accorded me by the members of the committee has made my labor much easier. In full confidence that I have shown that my clients were first upon this property, in the utmost good faith; that they remained there in good faith; and that they have been in good faith from the beginning, I submit the matter into your hands for decision, in the belief and confidence that the committee will do what is just.

STATEMENT OF MR. HENRY D. GREEN, REPRESENTING THE MELLISH INTERESTS.

Mr. GREEN. Gentlemen, I represent the owners of the Mellish interests who live in Pennsylvania, Maryland, and New Jersey. I am one of the owners myself, and practically all of the money I have in the world is in this proposition. A great many of my friends are in the same situation.

The CHAIRMAN. Is that a part of the Testerman property?

Mr. GREEN. Yes, sir; this is Testerman property. We have been interested in this matter from the beginning, and we are in here now hoping for something by which we can fight the matter out. We are at the end of our rope and broke, and that is the reason we want a bill passed. If we do not get relief here, we will be in bad shape. The reason we have come before this committee is this: This Congress ends on March 4, and we do hope that between now and the 4th of March some relief bill will be passed. We are in a position where we would concede almost amything, irrespective of what we believe our rights to be, but we believe that this committee is wise enough to enact a bill that will provide a tribunal.

If you provide a tribunal, then we want sufficient latitude given that tribunal to hear all of these cases. We know now that there are five or six of them, and we think when any of those people have shown sufficient good faith, they should be permitted to come before that tribunal. We ask that you give that tribunal sufficient power to give us the reward that belongs to us, according to the facts that we may be able to submit to that tribunal. We know that we can not try this case here, as some people have apparently attempted to do. We can not do that. The thing that the committee wants to know is whether there is anybody here who has made a location of his claim in good faith, and that should be tried before this tribunal. If there is any 1 man here out of 50 or out of 5 who has done that, then I think it is the duty of this committee to report a bill under which justice may be done. So far as the Department of Justice is concerned, we feel this way: The Department of Justice has a perfect right to ask you to put into this bill a provision under which it shall go to them only when good faith is proved, and they have done so. The Department of Justice has done that so far as they have been heard. I think that the question of what each man should get, whether 10 acres or 640 acres, and whether coupled with a royalty of whether it can be given a patent, should be decided by the tribunal provided in this legislation; because the tribunal should have broad powers under which it can make a fair and equitable decision on these matters.

Of course, this committee, in the bill it reports, should guide in the matter by writing in certain provisions, but we feel that all such provision should be written in broadly, so that the legislation would cover the principles, but not individual cases, or the decisions in indiviudal cases. I do not think there is a member of this com

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mittee, who, when he looks at the recent decision of the Supreme Court turning us out of court, will agree to its justice. All of you will not say, as good lawyers— because this has been submitted to some of the best lawyers in the country-that you are of the same opinion. You might be of a different opinion. Some of you might think that the Supreme Court is right, and some lawyers think it is right. I say that if there is anything wrong in it, I hope you will right it.

Mr. RAKER. All of you participated in this litigation upon your strict legal rights? Mr. GREEN. Yes, sir.

Mr. RAKER. And you made the best fight you could?

Mr. GREEN. Yes, sir.

Mr. RAKER. And you lost out?

Mr. GREEN. We understand that, and we come here before you to say that this committee should determine if anybody here has an equity, and if so, then you should give us a tribunal to try the matter and determine our equities.

Mr. RAKER. The Government won, or the other side won: Would you consider that the side that won should have some consideration for its care and attention to this business?

Mr. GREEN. We won the Government's side. We were the Government, or we won it for them. We had come into the court, and I was the one who framed the petition in October, 1919, with the attorney general of Oklahoma, asking that a petition should be filed. We followed it up, and it was granted. We got the right to file it in December, 1919. We went in there and asked the United States for God's sake to intervene. We asked them to come and help us, but the United States until March never came into this thing. When we made the application for receiver in April, 1920, the United States then was in. Before that, the United States was not in, because they said that they did not know whether they owned the land or not. They were having men to make maps, and a great deal of the $117,000 was spent in making maps and surveys. You see those five volumes over there, and I say to you that $3,000 or $4,000 was put into those volumes by the Mellish people in getting testimony. They made us pay every night. The Burk Divide people and the rest of them have largely contributed to this cost. We paid our portion of it. The United States has paid its attorneys, of course, but as to the $117,000, I will say that we have done more than $117,000 work on this matter. Now, let me go one step further, because I want to get something out of your mind, Judge Raker: Until 1921, the United States never said that they claimed this land in fee simple, and that it was not subject to placer mining entry, and let me tell you that in 1919, when I went over to the Indian Department, Mr. C. V. Stinshecum told me positively that the United States had no interest in it, except in so far as it was trustee for the Indians, and that the riparian rights extended to the Texas shore.

Mr. MORGAN. Who was that?

Mr. GREEN. Mr. Stinshecum, who had charge of the Kiowa Reservation. The department will not say that we had not been using good faith in connection with this, because we stood shoulder to shoulder with them, and bore much of the expense. They will not tell you that, but they will tell you that we discovered that this strip of land in the bed of the Red River belonged to the United States in fee. We had to show it to them, and we did so, because we would have no title unless we did show that. Mr. DRIVER. You first disclosed that to the legal department?

Mr. GREEN. Yes, sir. When we came here in October, 1919, and said that it belonged to them, they said that they did not know.

Mr. DRIVER. That is what caused them to intervene in this litigation?

Mr. GREEN. Yes, sir. We wanted the assistance of the United States.

Mr. BURTNESS. Did you consult anyone then besides officials of the Interior Department?

Mr. GREEN. It was the Department of Justice we went to. The Interior Department had nothing to do with it then. We went to the Department of Justice, and they were our allies all the way through, as Major Dyar will tell you. He told us that the best brief to establish the fact that this land belonged to the United States in fee simple was the one filed by Senator Gore, and it was. Gentlemen, read it over. The reason I am pleading for this is because there seems to be an idea that the United States is not going to be paid. I want to tell you this, that there is not a man that has cone or will come before this committee that does not consider that Tom Testerman and the Mellish people are all right. They are not speculators, and the United States gets a royalty on our lands. We say this, that we are not only the discoverers of the fact of this land belonging to the United States in fee, but we discovered these oil lands and we located them, believing them to be subject to location. Some of the best lawyers in the country passed on that question, and we located these lands, fulfilled every requirement, and brought oil up.

Mr. RAKER. Right there, to get my own mind clear on the subject, do you mean that the Attorney General's office during all this time considered that these lands were public lands and open to placer mining applications?

Mr. GREEN. They contended at first that it belonged to the Indians. The Government contended that it belonged to the Indians, and that their riaprian rights extended to the Texas shore.

Mr. BURTNESS. Did the Department of Justice contend that it belonged to the Indians, or was that the Interior Department?

Mr. GREEN. No, sir; the Department of Justice. They had communication with the Department of the Interior. When the Department of the Interior has a legal question to determine, they go to the Department of Justice with it.

Mr. RAKER. When did they first contend that if the land belonged to the United States it was not subject to mineral entry?

Mr. GREEN. In March, 1921. They amended their original brief three times, and the third brief says that.

Mr. MORGAN. Do you mean to say that the United States did not attempt to intervene until you solicited them to intervene?

These lands were worthNow, I have been in this

Mr. GREEN. No, sir; they did not know about this at all until we came here and asked them to go in. That was in October, 1919. These lands were not worth a dollar when Tom Testerman came here in November, 1918. less. That is where Roosevelt hunted foxes and wolves. case since October, 1919. I came over here when the petition was drawn, and we sat there in the Raleigh Hotel and drew up the first petition, asking first for permission to file a petition. We made application to file a petition in this case of Oklahoma against Texas. We wanted the United States to help us, which was very natural. Mr. MORGAN. When did you first make an appeal to the United States authorities to assist you?

Mr. GREEN. I think it was at that time, or in October. I think we asked Major Dyar-did we not, Major?

Mr. DYAR. I do not know. We had a good many consultations.

The CHAIRMAN. You furnished the ammunition for Uncle Sam's gun?

Mr. GREEN. I think we touched off Uncle Sam's gun. If they were to kick us alone we would not be kicked, but there are other people here that they would like to kick. They would not kick Tom Testerman and those claiming under him. I do not think that anyone connected with the Government would say that the Testerman claimants are not here with a clean bill of health. There is not a man that would claim that our crowd had done or would do anything crooked in this matter.

Mr. MORGAN. I suppose the other crowd thinks the same thing.

Mr. GREEN. I hope so. We are here to show our equities, but we do not come here to criticise this man's case or that man's case. I do not do that, but I have come to establish my own case.

Mr. RAKER. In view of the fact that there are about $3,000,000 held by the Government, what part of it do you think the Government should retain, if you people should be allowed to go on with this business?

Mr. GREEN. This $3,000,000, put in as a lump sum, sounds big, but let me tell you that when the Supreme Court came upon this land, of course there was a lot of oil upon it, but there was a great deal more that the people of Texas disposed of, and they put the money in their pockets. Probably nobody will ever recover it.

The CHAIRMAN. They will have to refund it in order to get any relief under this act. Mr. GREEN. These men are not asking for relief, but are speculators. They had taken up that land at the rate of 10 cents per acre. There were 1,000 acres of land, and they simply sold the acreage, took the money and put it in their pockets. They will not come here.

Mr. MORGAN. Do you mean the Sparks interests?

Mr. GREEN. The Sparks interests, yes, sir. They sold it out, and they got big money for it. They are rich.

The CHAIRMAN. But their assignees, in order to get relief under these bills, will have to account for the production.

Mr. GREEN. Yes, sir; but you understand that while the assignees may be held, these people got the money out of the assignees. I am talking about the original Sparks crowd. I am not criticizing any man, but this Sparks title would be decided by the tribunal that we are asking you to set up. You would not try that here. There are the Sparks titles, and there were half a dozen other titles, but you could not try those titles here.

Mr. RAKER. What would you do with the $3,000,000?

Mr. GREEN. Leave the tribunal that tries these cases to say to whom the $3,000,000 belongs. Now, let me give you our idea on this particular thing. We had made our guess in supposing that this was Government land subject to mineral entry. There are five points in our title, and that making it subject to mineral entry was just one. Some of the best lawyers in this country, just as good as those on the Supreme Court, took that view. The Supreme Court decided the case, and we bow to it, of course. In that connection, I had made a guess down in North Carolina, where I had 640 acres of woodland. Right beside me was a man who secured a patent from Tennussee, while I got my patent from North Carolina. The United States Supreme Court, in a case in which I was not brought in with a lot of other landowners, and made a party to the suit, established the Tennessee title, and they got the land. Then something happened in which there was some change, and the thing came up again with another group of men, including myself, and the United States Supreme Court decided that they did not have sufficient evidence at the time they decided in favor of the Tennessee title, and by a second decision the North Carolina title owners got the land. That is not astonishing to those who understand the pressure under which the Supreme Court has to work. Very few of those cases are decided by the full bench unanimously, and you do not have to have a dissenting opinion to know that that is true. It is done there just as it is in any other body.

On this committee you make your decisions, but they are decided by a majority vote, and that will carry the decision. There does not need to be anybody there to file a dissenting opinion; there does not need to be anybody there to say, "I dissent; I do not believe that." I can not imagine that seven men on that bench would agree to that particular part of the opinion. I do not believe there is a lawyer here who would say that. Now, when you come to give us charity, give us charity combined with justice, when you decide the question as to what should be given to us. We