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to the contrary, and even to-day we have got lands that are not worth over 10 cents an acre, and they have not increased, because they are located in the Okefinokee swamp, a swamp that is 60 by 40 miles square. Now, in speaking of that as an acreage, it looks pretty big, but when it comes to a bill, it amounts to nothing. Most all of the swamp is in the southern part of my State, although it extends over into Florida, practically all of it is in Georgia.

I think that is true in most States. If this land that you were wasking for was all appraised as agricultural land, that would be one thing, but we have to take our chances.

Mr. MERRITT. We do not know whether there will be any oil discovered in this territory or not, that may do Oklahoma as a State any good, or be any benefit to it, after this little field which has been discovered shall have been pumped dry.

Mr. LARSEN. I do not want you Okalhoma gentlemen to get the idea that I am not in favor of this, because I do not know. I am not trying to pass on it now, but I am simply trying to state what is in my own mind, and that is the reason I am bringing up these questions. I am rather inclined toward relief, but I am not prepared to say what it should be, or anything about that.

Mr. MERRITT. As to the question of the values of the land or the money to the State, in order for Oklahoma to have come into the Union on equal footing with every other State, it should have received sections 16 and 36 in every township in the State. That statement, I think, can not be changed.

Now-
The CHAIRMAN. That was settled by your enabling act?
Mr. MERRITT. That was settled by our enabling act.
The CHAIRMAN. Yes.
Mr. MERRITT. I do not just understand how it was settled.
The CHAIRMAN. You were given $5,000,000 in lieu of 16 and 36.

Mr. MERRITT. Yes; we were given that in lieu, but the other States were given 16 and 36. They were given the property that they could handle, dispose of, and get the benefits out of. They came in, they had the right to handle these properties, and increase their values, and enjoy the increase in values, but a value was put upon the land in Oklahoma at the time, and the $5,000,000 granted was not commensurate with the value of the land, because most of the land was sold a few years afterward, in 1911, and some along in 1915, and 1916, but all of that land averaged about $16.50 per acre.

The CHAIRMAN. But you accepted your enabling act?

Mr. MERRITT. Certainly. We had to accept it or we could not become a State, and would not be a State to-day. We were compelled to do that, and we accepted the grant and we were glad to come into the Union and be one of the States, but when we did not get these sections, we are just simply showing this, that if we had received the sections, or the value of them, would be due us, if we did not receive them. That is the only purpose of this. We are not complaining about it. We accepted that when we came into the Union. But now here is a grant of land that we have never received and a grant that every other State in the Union has received, except two-Arizona and New Mexico—and they have received other grants of lands in lieu, and we have not received them.

Now, here is the land, about 140,000 acres of land which Oklahoma says to this committee that we will receive in lieu of that 210,000 and we will wipe the slate clean.

The CHAIRMAN. Did the other States receive mineral lands?

Mr. MERRITT. The other States, when the lands granted to them that were public lands, public domain, and if they took the lands, they took the lands subject to the laws of the United States that extended over that territory, but Congress for some reason in Oklahoma provided that the mineral laws should not extend to the laws in Oklahoma, and did make some difference in Oklahoma.

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The CHAIRMAN. The other States got no mineral lands?
Mr. MERRITT. Well, the other-
The CHAIRMAN. You are wanting mineral lands here.
Mr. MERRITT. There are no mineral lands in Oklahoma. Congress has said so.
The CHAIRMAN. This is mineral land.

Mr. MERRITT. Well, but the Supreme Court of the United States has said that the law relative to minerals does not extend to Oklahoma, and, therefore, there are no mineral lands in Oklahoma. In other words, the burden of proof is upon the other fellow to show that they are mineral lands, and until that law is repealed, there are no. mineral lands in Oklahoma.

Mr. LARSEN. If this is adjudged to be in Arkansas, you might have your lands in Arkansas, and then they might be mineral lands.

Mr. MERRITT. If they are in Arkansas?

Mr. LARSEN. Yes. What do you want us to do with these lands if the decision of the Supreme Court of the United States should be to the efiect that this land is in Arkansas ?

Mr. MERRITT. That it belong to Arkansas?
Mr. LARSEN. Yes; there is a gentleman here that has a bill to that effect.

Mr. MERRITT. I suppose that we would have to show-I do not know what he intends to do in regard to this. Of course, the gentleman no doubt has great sincerity in presenting his claim, but I think when he comes to examine these acts that he will find that this was merely an act which extended the jurisdiction of Arkansas Over into the Indian Territory for jurisdictional purposes, and that that is about all it amounts to. If

you will give us this grant, grant this land to us under this bill, we will promise you this, that we will not be afraid of Arkansas taking it from us.

Mr. BURTNESS. I presume that you want those portions of the river bed that prove to be oil territory, as well as those that are not?

Mr. MERRITT. We want it all, certainly.
The CHAIRMAN. What valuation do you place upon the area you desire?

Mr. MERRITT. The value of this land in the river to-day, amounting to about 140,000 acres, is very hard to determine, because it is only valuable provided that there is oil and gas in it. Otherwise, the only use that I know that it might be put to, if any of you are Shriners, I am not, but if you want to hop on hot sand you might find a place there to travel the hot sands. I am not a Shriner. I do not know anything about that, but that is the only value that it could have.

The CHAIRMAN. If it is only nominally agricultural land, we might enact a law making it subject to surface entry of 240 acres and give you the surface, preserving the oil rights.

Mr. MERRITT. That would appear as an interest—but thank you.

There is another consideration that has been suggested in connection with its oil value, or in connection with the value there, and that is that the Supreme Court has determined, by its decision, that this is in Oklahoma, and whatever you do, it will be up to the State of Oklahoma to police this property down there.

Mr. BURTNESS. Do you think that Oklahoma can do a better job policing it than was done in 1919? Mr. MERRITT. In 1919—why, I just want to say this, and I suppose

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have reference to the Texas rangers coming in there?

Mr. BURTNESS. Yes.

Mr. MERRITT. Oklahoma knew where the boundary line was and knew that it was within the bounds of Oklahoma, and, as I have already stated, our attorney general for the State of Oklahoma took the stand that Texas was doing what she was doing as

a bluff and did not think that they would go as far as they did with it, but he found that they meant more than he thought and were not bluffing, and we might have gotten in a fight if Oklahoma had gone that far about it; but we knew this, that this was no time for a little civil war down there between Texas and Oklahoma. If our governor had been as flighty, I might say, as the governor of Texas and sent some troops down there, we might have had some little feeling, and maybe Oklahoma would have been beaten, maybe Texas would have been too much for us, but Oklahoma was willing to abide by the law.

We felt that we were acting in good faith. In fact, we knew that we were within our State, and we believed that we had a right to the decisions of the United States Supreme Court to declare that river navigable, and if it was navigable, and we could do it and it was a question of local law, as the Supreme Court said in the Kansas case, then the bed of the river belonged to us, and we were willing to abide by the decision of the court and that we were willing to abide by that decision and accept the decision of the United States Supreme Court as final, and that is all wiped off the slate.

The CHAIRMAN. Did the Supreme Court of the United States ever hold that the declaration that a stream was navigable by a State was binding upon the Federal Government where its property was concerned?

Mr. MERRITT. Not exactly where its property was concerned.

In the case of State v. Akers, which was taken to the Supreme Court of the United States by writ of error, and is reported at pages 145–149 of 245 United States, under style of Norman Wear v. State of Kansas, ex rel. S. M. Brewster, attorney general (62 L. Ed., p. 214), in the Supreme Court, the Attorney General of Kansas made the contention that so far as navigability related to title it is a State and not a Federal question, and cited many authorities referred to in the case of State v. Akers (supra), in support of this proposition.

In affirming the decision of the Supreme Court of Kansas and reiterated the doctrine that so far as navigability relates to title, the State law governs, the Supreme Court of the United States said (245 U.S. 218, 62 L. Ed. 158):

“Then it was said if navigability in fact is the test, the plaintiffs in error were entitled to go to a jury on the fact as it was in 1860, the date of the original grant, and the , supreme court of the State was not entitled to take judicial notice that the river was navigable at Topeka.

“But there is no constitutional right to trial by jury in such a case, and if a State court takes upon itself to know without evidence whether the principal river of the State is navigable at the capital of the State, we certainly can not pronounce it error. In the respect it is a question of State law."

And under that, they cite 224 U. S. 243, 262, 57 L. Ed. 820, 828, 33 Supreme Court Reports, 449, Annual Cases 1913, E. 710.

Mr. DYAR. That is the Donnelly case?
Mr. MERRITT. The Donnelly case; yes.
The CHAIRMAN. The rights of the United States are not at issue?

Mr. MERRITT. Now, an Indian treaty comes in there. That is where I say the Indian treaties have been involved in these facts.

In fact, the rights of the United States in the Arkansas River case, along the boundary of the Osage Nation, they held the treaty granted rights to the middle of the stream and that the law could not apply. That is what was decided in the Brewer

case.

The CHAIRMAN. There is one question that I intended to ask: Is any of this river navigable above this land in question?

Mr. MERRITT. No; not under any decision of the court.
The CHAIRMAN. I mean is it navigable in fact?

Mr. MERRITT. In fact, no. It has been at times. There is evidence. That, I remember. They could, when the water is up high, run some pretty good boats. Now, a gentleman somewhere has made that statement. I do not recall the case. I had it here, and I could furnish it to the committee after I go home, but the case was up in Minnesota where the United States Supreme Court held that a river was navigable, even though the only commerce that had been on the river had been Indian traders that had gone up the river, in their canoes and coming down.

Mr. Dyar. I guess that is the Economy Light and Power Case, in Wisconsin.

Mr. MERRITT. Yes; that is the case. So that as to the question of navigability, even the Supreme Court decisions are not based on the question as to whether or not the stream is navigable in fact, but whether they are declared so by the Supreme Court.

Mr. Drar. Mr. Merritt, do you not think that in the Brewer-Elliott case, that the court now hold that it is a question of fact and treat of the facts in the case. In the Economy Light & Power case, and when I was making an argument before the Supreme Court here on the subject of the declaration of Oklahoma, a member of the court stated that it was a question of fact. I think up to that time that some weight was given to the consideration, but there must be some fact.

Mr. MERRITT. I think you are right. Now, the Supreme Court in that decision said that the question of the navigability was not only a question as to whether it was navigable in fact, but it must be navigable, and was not merely a qustion of law.

Mr. Chairman, I want to make this a part of the record. Is that all right, Mr. McClintic?

Mr. McClintic. Anything that you want to use, provided it meets with the wishes of the chairman.

The CHAIRMAN. Yes; but I want to know in advance what is going into the record.

Mr. MERRITT. Well, this is a statement showing the swamp and overflowed lands granted to different States, and then the other is a statement of grants of land to the different States, for different purposes. I did not want to put it in the record without asking permission.

The CHAIRMAN. Without objection, it may go in. (The document referred to follows:)

SWAMP AND OVERFLOWED LANDS.

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Under the grant of swamp and overflowed lands made by the acts of Congress approved March 2, 1849 (9 Stat. 352), September 28, 1850 (9 Stat. 519), and March 12, 1860 (12 Stat. 3), now sections 2479, 2480, 2481, and 2490, United States Revised Statutes, the several States, which were the beneficiaries of it have received patents for the following areas to and including June 30, 1915: Acres.

Acres. Alabama. 418, 520. 14 Minnesota.

4, 662, 727. 10 Arkansas.. 7,685, 512. 07 Mississippi.

3, 284, 280. 08 California. 2,095, 105. 18 Missouri.

3, 346, 024. 51 Florida. 20, 201, 045. 30 Ohio..

26, 251. 95 Illinois. 1, 457, 359. 20 Oregon.

262, 590. 34 Indiana.. 1, 254, 270. 73 Wisconsin...

3, 251, 462. 34 Iowa.

873, 816. 42 Louisiana.

9, 357, 928. 14
Total..

63,832, 583. 06 Michigan.

5, 655, 689. 56

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In addition to these lands in place, cash and land indemnity has been given to the same States under the acts of March 2, 1855 (10 Stat. 634), and March 3, 1857 (11 Stat. 251), as follows:

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Acres.

Land and scrip granted to States and Territories for educational and other purposes. Alabama: Tuskegee Normal and Industrial Institute...

25,000.00 Industrial School for Girls..

25,000.00 Seminary of learning...

46, 080.00 Internal improvements.

500,000.00 Agricultural College scrip...

240,000.00 Common Schools, section 16..

911, 627.00 Salt Springs and contiguous lands.

23, 040.00 Seat of government.

1, 620.00

1,772, 367.00 Alaska Territory:

Common schools, sections 16 and 36, reserved (estimated)......

21, 009, 209.00 Agricultural College and School of Mines, certain section 33, reserved (estimate)..

336, 000.00

21, 345, 209.00 Arizona: University..

46, 080.00 Common schools, sections 16 and 36.

4,046, 578.00

4,092, 658.00 Arizona (act of June 20, 1910): University ....

200,000.00 Public buildings.

100,000.00 Penitentiaries.

100,000.00 Insane asylums..

100,000.00 Deaf, Dumb, and Blind Asylum.

100,000.00 Miners' hospital..

50,000.00 Normal schools.

200,000.00 Charitable, penal, etc

100,000.00 Agricultural and mechanical colleges.

150,000.00 School of Mines.

150,000.00 Military institutes.....

100,000.00 Payment of bonds issued to Maricopa, Pima, Yavapai, and Coconino Counties....

1,000,000.00 Common schools, sections 2 and 32

4,046, 578. 00

6, 396, 578.00

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