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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
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. DYAR. 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.
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:
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:
Land and scrip granted to States and Territories for educational and other purposes.