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The CHAIRMAN. You may file a copy of the brief for the record.
(The brief referred to is as follows:) In the Supreme Court of the United States, October term, 1921. The State of Okla
homa, complainant, v. The State of Texas, defendant, United States of America, intervener. Original. No. 20.
MOTION ON BEHALF OF THE STATE OF ARKANSAS FOR LEAVE TO INTERVENE.
The attorney general and special assistant to the attorney general, on behalf of the State of Arkansas, moves the court for leave to intervene in the above-entitled cause, and for that purpose to file therein its petition, a copy of which is attached hereto.
As cause for this motion it is shown:
1. The cause involves a controversy and conflict of jurisdiction between two States which affect the jurisdiction of the State of Arkansas.
2. The cause involves the construction of a treaty of boundaries made between the United States and a foreign nation upon which depends the political jurisdiction of the State of Arkansas.
3. The cause involves a controversy and conflict of jurisdiction between two States over property rightfully within and properly belonging to the jurisdiction of the State of Arkansas and which both States are claiming, as against the prior and superior rights and political jurisdiction of the State of Arkansas.
J. S. UTLEY,
Walter HOLLAND, Special Assistant to the Attorney General.
PETITION OF INTERVENTION ON BEHALF OF THE STATE OF ARKANSAS.
Now comes the State of Arkansas, by J. S. Utley, attorney general, and Walter Holland, special assistant to the attorney general, and by leave of the court first had and obtained files this its petition of intervention in the above-entitled cause, and alleges and shows as follows:
I. June 15th, 1836, only 16 years after the Spanish treaty and before Texas had been recognized by the United States as an independent power, the State of Arkansas was admitted into the Union. In the act of admission her western and a portion of her southern boundaries were described (going south from the southwest corner of Missouri) as follows:
“And from thence to be bounded on the west, to the north bank of Red River, by the lines described” in the Cherokee treaty of May 26, 1828, “and to be bounded on the south side of Red River by the Mexican boundary line to the northwest corner of the State of Louisiana."
Act of June 15, 1836 (5 Stat. 50, 51).
II. That by act of June 7, 1844, “all that Indian country heretofore annexed by the said twenty-fourth section of the act aforesaid to the Territory of Arkansas, be and the same hereby is annexed to the State of Arkansas.” That said Territory "is bounded north by the north line of lands assigned to the Osage Tribe of Indians, produced east to the State of Missouri; west, by the Mexican possessions; south, by Red River; and east, by the west line of the Territory of Arkansas and the State of Missouri.” This is territory now claimed by the State of Oklahoma as being within its boundaries. This territory was only bounded on the south by Red River.
III. Your intervener would show, that the language of the act of June 15, 1836, is very plain and free from ambiguity. That it clearly shows that all Territory of the United States, south of the north bank of Red River, is made the Territory of Arkansas, as far as the Mexican boundary and the northwest corner of Louisiana.
The only question is what territory lies south of the north bank of Red River and the Mexican boundary line. The intervener would show that (conceding for the purpose of argument but not otherwise) if the words “Mexican boundary line” mean “Spanish boundary line, as fixed by the treaty of 1819," that said boundary line has never been run on the ground by representatives of these nations. That said line if run on the ground is fixed by the treaty of 1819 as follows:
“The boundary line between the two countries west of the Mississippi shall begin on the Gulf of Mexico, at the mouth of the River Sabine, in the sea, continuing north along the western bank of that river to the thirty-second degree of latitude (not through the thirty-second degree of latitude, as said line is improperly run on most maps); thence by a line due north to the (northernmost part of the thirty-second) degree of latitude where it (the thirty-second degree of latitude) strikes the Rio Roxo of Natchitoches, or Red River; thence following (not the bank but) the course of the Rio Roxo westward (west) to the degree of longitude one hundred west from London and twenty-three from Washington (not through the degree of longitude one hundred west from London and twenty-three from Washington); then crossing the said Red River and running thence by a line due north to the River Arkansas, etc.” The State of Arkansas claims territorial jurisdiction and political sovereignty over all territory south of the north bank of Red River, east of the one hundredth degree of longitude west of London, north of the northernmost part of the thirty-second degree of north latitude, east of the western boundary of Louisiana, and north of the northernmost part of the thirty-third degree of north latitude.
IV. Your intervener would further show that the words “Mexican boundary line," June 15, 1836, are not synonymous with “Spanish boundary line.” The deed of partition between Spain and the United States (treaty of 1819) is void. Where one of the parties has no title to the premises, the deed of the other to him is void, being without consideration. (Davis et al. v. Agnew, 2 S. W. Rep. 376.) Mexico rebelled against Spain in 1808. The Rio Grande was the boundary line of Louisiana Purchase (United States 9. Texas, 162 U. S. 1). Spain had no right, title, or interest east of the Rio Grande. Texas, forgotten, neglected, and forsaken by American authorities, under misapprehension that treaty of 1819 was valid, declared its independence March 2, 1836. This court holding the Mexican boundary line, March 2, 1836, was the Rio Grande River. (McKinney r. Saviego, 18 Howard 235.) Both Mexico and United States recognizing that all territory east of Rio Grande ceased to be Mexican territory March 2, 1836. (Protocol to treaty of Guadalupe-Hidalgo.) March 2, 1836, the Republic of Texas became a foreign nation occupying the soil of the United States, without having any territory of its own. July 4, 1845, that independent sovereignty was extinguished by annexation to the United States. The State of Texas was created December 29, 1845, having as its territory the territory rightfully within and properly belonging to the Republic of Texas.” This could be construed as against the United States as the territory within the partition of 1819, that was set apart to Spain, but as against the State of Arkansas it can not be construed as being anything south of the north bank of Red River and between that and the Mexican boundary line. The Mexican treaty of 1828 was void for like reason. Mexico as against the United States, never came east of the Rio Grande. The Texas treaty of 1838 was inoperative, as attempting to partition the State of Arkansas, and divide it with the Republic of Texas, without consideration. The recognition of the Republic of Texas by the United States in March, 1837, can not be construed to include within the limits of Texas lands ceded by the (addo Indians to the United States July 1, 1835. (7 Stat. 470.)
V. Your intervener would further show that by the treaty of May 14, 1836, between the Republic of Texas and the United Mexican States, the boundary was fixed as the Rio Grande del Norte.
VI. Your intervener would further show that by the treaty of 1819 Texas, then owned by the United States, was to be divided with Spain, and that under the terms of said treaty the United States so obligated itself to partition Texas with Spain. , That by Article XXIX of the treaty of July 3, 1902, the treaty of 1819 and all obligations thereunder were expressly abrogated and annulled. That the agreement between the United States and Spain, in 1819, to divide the territory of the United States, as described in said treaty, was never in fact done, and such obligation is now expressly annulled and abrogated. That by reason of these facts the Mexican boundary is now and has been the Rio Grande del Norte, and was such river June 15, 1836, when Congress of the United States placed within the limits and jurisdiction of the State of Arkansas all territory between the north bank of the Red River and the Mexican boundary line.
VII. Your intervener would further show that all that territory south of the north bank of Red River and lying between same and the Mexican boundary line and the State of Louisiana, is territory of and within the political jurisdiction and territorial sovereignty of the State of Arkansas. That when the State of Texas was admitted into the Union, its territory was described as "the territory rightfully within and properly belonging to the Republic of Texas,” and your intervener whould show that such territory as lies between the Red River and the Mexican boundary, or between the Red River and Spanish boundary line is not now and pever was "pightfully within and properly belonging to the Republic of Texas" but rightfully within and properly belonging to the State of Arkansas, ceded by the Caddoes to the United States and made a part of the State of Arkansas by the act of June 15, 1836.
VIII. Your intervener would further show that as effecting all of said territory the attempted treaties with Mexico of 1828, and with the Republic of Texas of 1838, are void under the law of nations, as the United States, having obligated to convey and transfer this property to Spain, was without power to convey it to any other nation as long as the obligation of the treaty of 1819 was in force. That the obligation of the treaty of 1819 was not abrogated and annulled until by the execution of the treaty of July 3, 1902, when the Spanish Government released the United States from its obligation to convey this territory to Spain.
IX. Your intervener would further show that the President of the United States, by proclamation, February 10, 1831, denied the right of Mexico to exercise political authority within the territory between the Red River and the Mexican boundary line, and authorized the employment of such military force as was necessary to prevent such exercise of political authority by Mexico. Your intervener would further show that the treaty of 1819 was the supreme law of the land, and that your intervener did not attempt to extend its jurisdiction west of the proposed dividing line of 1819, but respected the treaty of 1819. That since the abrogation and nullification by said treaty of 1902 of the treaty of 1819, the State of Texas without right has withheld and still withholds possession and political jurisdiction from the State of Arkansas to its rightful territory, and though often requested has failed and refused and still fails and refuses to deliver to the State of Arkansas territorial sovereignty and political jurisdiction of the territory sued for and claimed herein by your intervener.
X. The present uncertainties as to the true location of the north and south bank of Red River at the date of the admission of Arkansas into the Union, the existing controversy between the States of Oklahoma and Texas, their attempts to exercise jurisdiction over the territory in dispute, and the measures taken by their officials and courts, respectively, to enforce their alleged right and those of their grantees, licensees, and permittees are detrimental to the public tranquility in which the United States and all the States of the Union have a deep interest, and deprive this intervener of its lawful rights and territory, and that the State of Oklahoma is unlawfully claiming its boundary on the south to be the boundary of the State of Texas, and at the same
time claiming to the Mexican boundary line as its southern boundary, when its southern boundary line as fixed by act of June 17, 1844, is bounded on the west by the Mexican boundary line and south by the Red River. Had Congress intended that Oklahoma should have been bounded by the Mexican boundary on the south it would have said so, and not said “south, by Red River.”
Wherefore, this intervener prays:
That it be permitted, in this cause and court, to take and present evidence, examine witnesses, and be heard in argument; That the State of Texas be decreed to have no right, title, or interest in any
lands or any part of the river bed lying south of the north bank of said Red River, east of the one-hundredth degree of west longitude from London; north of the thirty-second degree of north latitude, being the thirty-second parallel of north latitude; west of the State of Louisiana, from the northernmost part of the thirty-second degree of north latitude to the northernmost part of the thirty-third degree of north latitude, and north of the northernmost part of the thirty-third degree of north latitude.
That the State of Oklahoma be decreed to have no right, title, or interest in any lands or any part of the river bed lying south of the north bank of the Red River.
That the State of Arkansas have and recover of and from both the State of Texas and the State of Oklahoma political jurisdiction and territorial sovereignty of all territory lying between the north bank of Red River, the one hundredth degree of longitude west of London, the thirty-second parallel of north latitude, to the western line of the State of Louisiana and east by the western line of the State of Louisiana.
That the State of Arkansas have and recover of and from the State of Texas and the State of Oklahoma political jurisdiction and territorial sovereignty of all territory bounded on the north by the north bank of Red River, on the west by the Mexican boundary line, as same existed June 15, 1836, on the south by the Mexican boundary line, to the northwest corner of the State of Louisiana.
That in the alternative the State of Arkansas have and recover of and from the State of Texas and the State of Oklahoma political jurisdiction and territorial sovereignty of all territory lying south of the north bank of Red River, east of the one hundredth degree of longitude west from London, north of the thirty-second degree of north latitude, and west of the Red River, as described in the Spanish treaty of 1819.
That this intervener have such other and further relief as it may be entitled to in equity and good conscience.
· J. S. UTLEY,
Special Assistant to the Attorney General. APRIL, 1922.
(Thereupon, the committee adjourned until Tuesday, January 23, 1923, at 2 o'clock p. m.)
COMMITTEE ON THE PUBLIC LANDS,
Tuesday, January 23, 1923. The committee met at 2 o'clock p. m., Hon. Nicholas J. Sinnott (chairman) presiding.
The CHAIRMAN. The committee will come to order. Mr. Macey and the gentleman representing Oklahoma are the only two gentlemen to be heard. We will hear you now, Mr. Macey, and state for the record who you are.
STATEMENT OF MR. J. T. MACEY, DENVER, COLO., REPRESENTING
THE DENSON GROUP OF PLACER CLAIMANTS.
Mr. Macey. Mr. Chairman and gentlemen of the committee, I represent what was known in the Supreme Court hearing as the Denson group of placer claimants. These placer claimants, possibly some 1,500 people, are mainly from Rocky Ford, Colo., a few, I believe, from Wyoming, possibly a few from Oklahoma, and there are some other interests that have since coine into the same group of claimants.
In taking up this matter, I would like to refer, just briefly, to the question of the ancient history which has been discussed here a great deal. It seems impossible to find the beginning of the Government's title. I have tried to ascertain where this land was ever granted or given to Indian Territory, because of the statement in the Supreme Court decision that this was formerly a part of Indian Territory. I have never found the law on that point. The only thing I did find was in volume 11, Statutes at Large, pages 611, 612, where it says
“The following shall constitute and remain the boundaries of the Choctaw and Chickasaw country, viz: Beginning at a point on the Arkansas River, 100 paces east of old Fort Smith, where the western boundary line of the”I call attention to "the western boundary line”—
State of Arkansas crosses the said river, and running thence due south to Red River" It was to Red River; not across it
thence up the Red River to the point where the meridian of 100 degrees west longitude crosses the same.”
Mr. VAILE. What is the date?
Mr. Macey. That is the act of June 22, 1855. Under this act this land on the north side of the river was made a part of the Chickasaw and Choctaw country, but not the land on the south side. That land went down to the river, but not across it. The Chickasaws then ceded this land back to the Government, and in 1866 or 1867 this land was given to the Kiowa-Comanche-Apache Reservation by treaty. This KiowaComanche-Apache Reservation embraces between three and four million acres, as shown on this yellow plat of the Oklahoma map of 1898. I refer to that map for this reason: On the question of good faith a great many people who were not experts in surveying or technicalities might think the south boundary of the reservation and the north boundary of Texas were one and the same. As a matter of fact, of course, we find now there is that half-mile strip on the south side of the river intervening between that boundary and the State of Texas. I think anyone might be excused for taking that view of it if they did not have the Indian treaties for a guide. That is my reason for producing that map here, to show what the old reservation was.
The next action taken in regard to this land was in the act of June 6, 1900, and 1 wish to take a slight exception to the conclusion reached by Mr. Dyar, of the Department of Justice, in regard to that matter The act of June 6, 1900, provided this, that should any of said lands allotted to said Indians or open to settlement under this act contain valuable mineral deposits, such mineral deposits shall be open to location and entry under the existing mining laws of the United States upon the passage of this act, and the mineral laws of the United States are hereby extended over said lands.
There was a period of a little over one year when that 4,000,000 acres of land was subject to mineral entry down to the center of the river. That is what Mr. Dyar referred to as being a small tract on the Wichita Mountains-practically 4,000,000 acres—and at that time was all the land open in the State of Oklahoma to mineral entry.
It is true that same act provides for the creation of the Big Pasture Reserve of 480,000 acres. The Government created three reserves, but that was not done until