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In this connection I will state that one John Abernathy and another party called at our office in August, 1918, stating that they understood or believed that the south half of the bed of Red River was Government land; and subject to placer mining locations. We were employed by those parties to give an opinion upon the question. And after considerable investigation we reached the conclusion that the south half of the bed of Red River was public domain and that under sections 2318 and 2319, of the Revised Statutes, the same was subject to mineral location under the placer-mining laws of the United States, and so advised them, and at that time organized two associations of eight persons each, and advised them fully as to how the locations should be made upon the ground, and for the purpose of calling attention of the Land Department to the fact that the Government was possessed of the title to this strip of land, we prepared applications and filed the same in the United States land office located in this city, although we, of course, knew that such applications would not be held to give us any right to a patent to the lands until after discovery of valuable minerals. But believed that if we called the matter to the attention of the land department at Washington, they would readily grasp the situation, and if the department gave recognitions to the fact that this strip of territory was Government land, there would be no controversy between the citizens of the States of Oklahoma and Texas, nor would there be any between the two States, and that our clients would be permitted to take and hold possession and develop the land.
We directed these parties to immediately begin the sinking of a well upon one of the tracts and this was dome. The matter was taken up with the Commissioner of the Land Office by the register and receiver of the local land office, and the register and receiver were directed, as we assumed they would be, to reject our application. We immediately appealed from such rejection and the Land Department first held that the river bed had passed to the State of Oklahoma, first under the organic act of the Territory, which defined the boundaries of such Territory, and second, that the State had succeeded to the interests of the Territory in such land. That was their first holding. From that time on there were a number of applications made through the local land office, and locations were made upon the ground, and we prepared papers forming a large number of these associations, and after it became generally known that we had taken the position that these lands were subject to location, other lawyers became interested, and it would be impossible without a research of the records here, to show how many of these locations were made, but in my judgment, perhaps 30 or 40 went through our office.
Upon examination of authorities, I reached the conclusion that this land, being public domain, was clearly within the terms of the provisions of sections 2318 and 2319, of the Revised Statutes, and I do not think that the so-called “Plumb amendment,” of March 3, 1891, was intended in any manner to affect the status of the south half of the bed of the Red River. However, the Supreme Court has reached a different conclusion. I filed a large number of briefs with the Land Department (typewritten) on appeal. Other lawyers also did the same.
Summarizing the decisions of the land department, first, they held that the land belonged to the State of Oklahoma, as heretofore suggested. Afterwards that there was no law to permit lands located in river beds to be acquired under the placer mining laws. That riparian right claimants on each side would take to the center of the stream, and, in fact, as I read their decisions, at no time did they ever base a refusal to recognize the rights of placer miners upon the reasons announced by the Supreme Court in its decision.
We gave to these first parties who came to us no written opinion, but our views on the matter can be readily ascertained by beginning with the cases which we appealed to the Commissioner of the General Land Office, as exhibited by the discussion of the questions in our appeals.
We thought, after we had looked into this matter, and we still believe, that this land was properly subject to disposition under the mining laws of the United States. Very respectfully,
FRANK DALE. The CHAIRMAN. Senator Gore, we will be glad to hear you.
STATEMENT OF HON. THOMAS P. GORE.
Mr. GORE. Mr. Chairman and gentlemen of the committee: I wish to thank the committee for the courtesy shown me in having this called meeting, and in exchange for the courtesy I wish to tender you my sympathy. It seems as if the hearings on this Red River question are to be as perpetual as the brook in the poem. So for as I am concerned will try to abbreviate my part in the discussion.
I am sorry not to have been here yesterday. I understand that on yesterday a representative of the State of Oklahoma appeared before the committee and pressed the proposition that these entire lands, that the entire south half of Red River from the Arkansas line to the 100th meridian, be granted outright to the State of Oklahoma. It is hardly necessary for me to say, Mr. Chairman, that any grant of land which the general government might make to the State of Oklahoma, which did not impair the equitable claims of these pioneers, would be a source of great satisfaction to me.
I would like to see the entire strip, the entire south half of Red River, top and bottom, granted to Oklahoma, reserving, of course, the equities which, in my judg ment, have accrued in view of the circumstances, in behalf of men who discovered this oil field. Neither I nor those whom I represent have taken the initiative in any effort to secure a grant to Oklahoma for these reasons. I have undertaken to proceed in a practical way. I have undertaken to place myself in the situation of this committee, to make a survey first of the things it was possible for you to do, then to make a choice among the possibilities and a choice based upon the general and established policy of the United States in dealing with oil and gas lands of this character.
I realize that if Congress should grant this oil field to Oklahoma, Montana, Wyoming, and California would immediately not only insist but demand that the oil fields within their borders be granted to their respective commonwealths.
Mr. McClintic. Mr. Chairman, will the Senator allow me to interrupt him there? Mr. GORE. Yes.
Mr. McClintic. I am sorry you were not here yesterday. In order that the record may portray the true facts, I want to say that Montana and these other States would not have a right to come in on the same grounds as Oklahoma because we ask for this land
upon the authority of the land grant of 1862 and 1866, which have been satisfied so far as the States you name are concerned.
Mr. GORE. I appreciate that.
Mr. GORE. I appreciate that and also the fact that the General Government has dealt rather generously with the State of Oklahoma in respect to lands. It has treated the State and the institutions of the State pretty generously, notwithstanding that the General Government is in default to the State of Oklahoma with respect to the lands granted in the Morrill Act. I hope that the General Government will yet find ways and means to fulfill that unredeemed obligation. If the opportunity should arise, so far as might lie within my power, I would contribute to the redemption of that pledge which has not been made good and which I would rejoice to see made good in the future; but notwithstanding that fact, I would still doubt the forbearance of Montana, Wyoming, and California in the event the proposition were made to convey this oil field to the State of Oklahoma.
I would doubt if they would find themselves possessed of sufficient forbearance not to venture a similar request in behalf of their Commonwealths. Now, I do not know what is twinkling in the eye of Judge Raker there, but he is a more moderate man than I imagine, if he did not take occasion to intimate on that occasion that California would not be adverse to receiving the oil fields situated within her borders.
It has occurred to me that possibly the State might ask for the royalties. Mr. Chairman, whether the United States leases these lands or grants them to Oklahoma to lease away, a royalty would be reserved in behalf of the United States in case the United States leased this land. If granted to Oklahoma and Oklahoma leased the lands a royalty would be reserved to the State of Oklahoma. Assuming that you take care of the pioneers in either contingency, all that Oklahoma would receive would be the royalties accruing from the lands claimed by these pioneers, so that the transfer of the entire estate to Oklahoma, allowing Oklahoma to lease the lands, reserving a royalty would not really speed her on her way very far. In other words, the practical results would be the same, because I should favor no scheme for disposing of this land either by the general or the State government which did not guard and recognize the rights of those men who took the chance and developed the presence of this hidden treasure.
Mr. Chairman, I have assumed that this committee in meeting this exceptional situation would as far as possible pursue, adopt and apply the general and established policy of the United States. These circumstances are exceptional. They must therefore be dealt with in an exceptional way, and by special or relief legislation, but in enacting relief legislation, I assume that the committee will, as far as possible, adapt and apply the general policy of the Government to the peculiar circumstances of this case.
When these lands were located in December, 1918, and January, 1919, the general mining laws of the United States did apply to the public domain. It was an ancient policy. It had been the policy of the Government for more than half a century. That policy was displaced in February, 1920, displaced by the leasing act so far as oil and gas deposits are concerned. The leasing act was the result of a great deal of deliberation and it embodied a compromise of various conflicting interests, but it was a matured policy. So far as I know the act has worked well. It has justified and vindicated the wisdom of the men who prepared it and the men who enacted it.
I have assumed that the committee in meeting this emergency would apply the provisions of the leasing act to these exceptional circumstances as far as that can be done in working out practical justice.
Under the leasing act a royalty is reserved to the United States, and under the leasing act the lessees are obligated, of course, to pay a royalty to the Government of the United States.
Now, I assume that that characteristic will attend any relief legislation which may be enacted to meet this situation. Nothing but the Supreme Court of the United States would have convinced me, Mr. Chairman, that the leasing act did not apply to the south half of Red River. The first section is general in its terms. It contains an express exception, which would indicate that everything that was not excepted out of its operation was included within its operation, but the Supreme Court has held otherwise.
The leasing act contains several relief sections, sections 18, 18a, 19 and 37. Section 37 provided that anyone having a valid mineral claim existent at the date of the act could pursue the claim to patent. Now, mark you, it used the expression “valid claim.” That presupposed that the land in question was subject to the mining laws, and it presupposed that the claimant had complied with the requirements of the mining law, and having done that he was entitled to a patent. Relief under section 37 of the leasing act turned on the character of the claim.
Section 19 was a relief section, somewhat similar to section 37, except that the relief granted under 19 did not turn on the character of the claim, but turned on the character of the claimant. It provided that any bona fide claimant or occupant of oil and gas lands under a claim-not under a valid claim-but under a claim, initiated prior to
October 1, 1919, who had complied with certain conditions and requirements, being in the main, of course, conditions stipulated in the general mining laws, should be entitled to relief in the form of a permit or lease.
I believe that the chairman of this committee and Mr. Raker both had much to do with the drafting of the leasing act-I think I have seen their finger prints on that measure. I have wondered what section 19 was inserted for, if it means the same as section 37, and under the construction of the Supreme Court, it seems to grant relief to no one who can not obtain relief under section 37, and I assume that no man would seek relief under a lease where he was entitled under the law to a patent. Now section 19 reads as if it were drawn to meet exactly this emergency, and I take it this committee will apply section 19 to this situation as far as that can be done. The two measures, one introduced by the chairman and one introduced by Mr. Sanders, fall within the general boundaries and purview of the leasing act. The spirit and purpose and policy of that act are embodied in those measures.
Whatever legislation you enact will, of course, define the conditions and fix the standard which must have been conformed to by the claimants who are to be entitled to relief. In fixing these conditions and circumstances the committee will, of course, add, as one of the conditions, the presence of good faith.
Now, of course, there will be contests, Mr. Chairman, arising under this legislation, whatever you enact. There will be claimants insisting that they did in good faith comply with the conditions and that they enjoy priority of right.
A good deal has been said here during the course of the hearing with respect to the detailed circumstances and evidence tending to establish priority in behalf of one claimant as against another. As I view the situation those details are not essentially material at this time. You will prescribe the conditions, fix the standard. The duty of determining whether a given claimant qualifies under those conditions and standards must be devolved upon an administrative officer of the Government. The committee is not equipped for that sort of work. It is a quasi-judicial duty, which must, in the nature of things, be devolved on some official of the Government. That duty will, of course, be devolved upon the Secretary of the Interior. The thing now is to secure relief legislation based upon sound, public policy, which makes provision for the equities of the cise, and when the committee has done that it has discharged its duty, and we must, of course, assume that the Secretary of the Interior will then discharge the duties devolving upon him.
The necessity for legislation in behalf of these claimants, depends upon their claim that they acted in good faith. Those who did not act in good faith can not appeal to you for consideration. Judge Dyar made his entire protest turn upon the point of good faith and he took the position that under the circumstances which obtain in this controversy no one could have acted in good faith. He claims that the circumstances negative the presence or the possibility of good faith.
The chairman read authorities into the record which stripped the issues down to a clear-cut point, so that it can be seen of all men, and it is clear that good faith can be exhibited where there is an adverse claim or an adverse claimant. Judge Dyar assented to the general propositions laid down by the chairman or, rather, laid down in the authorities cited by the chairman, with two qualifications. First, he insisted that the rule is that the party alleging good faith must have used extreme caution and exercised due diligence. Now, I agree with the Judge. His first qualification is well founded. That is the law. The other qualification was that in the cases cited by the chairman those alleging good faith were seeking to recover improvements or the value of improvements and that no claim was set up for the substance of the property and, therefore, the authorities did not constitute precedents in a case where a claimant was seeking the substance of the property itself. Now, I can not agree with Judge Dyar in the application of that rule. He was reasoning by analogy, and no method of reasoning is so dangerous as that of analogy, because there may be an
essential difference, a fundamental difference in the facts and circumstances of the
The difference may be latent, but if there is a fundamental difference, of course, any analogy fails.
I submit that in the existing situation the analogy suggested by Judge Dyar utterly fails. No individual who owns land ever blazes forth to the world that if the people will come and find valuable mineral deposits on his premises the mineral deposits shall be theirs for a song. That is never done, but the United States for more than half a century has said to all men, to all men who could qualify, to all citizens of the United States, without regard to age, color, or sex, “Find a mineral deposit of value anywhere on the public domain and that deposit is yours”—the substance, not the shadow—"The substance is yours for a nominal consideration.” That is the purpose of the policy and that is the title of the act. The act of May 10, 1872, was entitled “An act to promote the development of the mineral resources of the United States.'' Judge Pitney in a recent case said it held forth an invitation to all men and the promise of a generous reward to those who accepted the invitation.
These men accepted the invitation, and Attorney General Williams, the year that measure was enacted, rendered an opinion saying it ought to be liberally construed in order to effectuate the policy of the law.
The object of the mining laws of the United States has been to dispose of the substance, to dispose of the minerals, I believe, under a placer mining claim at $2.50 an acre and under a lode claim, I believe, at $5 an acre. Judge Raker will correct me if that is not right. That is the law and it has been a wise policy. It has been justified by a progress which has no parallel in the annals of the race. It is not analogous to a private individual who generally observes the ancient rule, the good old plan, “Let him get who has the power and let him keep who can.” So the analogy fails altogether.
Now, Mr. Chairman, with respect to good faith, I think this distinction ought to be made. It is not necessary for these claimants to make a showing of good faith before this committee which would justify you in granting them a lease or leases to these lands, if you were vested with authority to do that. Your function, as I conceive it, is to consider the circumstances of the case; to consider the showing of good faith which they did make; it is your duty, as I conceive it, to determine whether or not an executive officer of this Government ought to be vested with the power and charged with the duty of making a thorough and judicial investigation, weighing the evidence, measuring the situation, dealing with these men in the light of our history and determining whether or not they used such good faith and did such development as would entitle" them to a lease, a lease that would be in harmony with our public policy. That is the duty of the committee as I understand it with respect to good faith.
What showing have these claimants made in regard to good faith? I think they have made such a showing;—they have made such a showing as warrants you in commissioning someone to make a thorough-going investigation of the facts and equities in the premises, and to render judgment in accordance with such findings.
It is my own belief that my client, Mr. Testerman, has made such a showing of good faith as will justify you gentlemen in the pursuit of such a policy. Now, what did he do? Tom Testerman is a plain, practical man; he is one of the men who has made Oklahoma what it is; he has builded better than those who built palaces; he has helped to build a commonwealth and to establish a seat of civilization, than which there is no greater service to this country or to the people of this country.
Now, Mr. Chairman, the Greer County case was a matter of common knowledge; it excited a great deal of interest while it was pending, and it was known to all men that the United States won the suit; it was known of all men that the Supreme Court of the United States decided that the south bank of Red River was the southern boundary of Oklahoma and that the south bank of Red River was the northern boundary of Texas. Everybody knew that, and Tom Testerman took the word of the Supreme Court in good earnest when it said so. As I suggested before, the Supreme