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Court did not attach to that opinion the statement that its judgment was not a joke. It did not say, “Know all men by these presents that the south bank of Red River is the north bank of Texas and anybody who crosses it is a transgressor.” But it said that the south bank was the boundary between the two jurisdictions. That was known to Tom Testerman, and known to other men.

Now, when the oil interests excited Wichita County, men's eyes naturally began to search for lands of the United States which might be available. But Tom Testerman did not rush in where angels fear to tread. He made as thorough an investigation and survey as his circumstances would allow him to make, and this must be kept in mind: He and his conduct must not be judged in the light of the three recent opinions of the Supreme Court of the United States. It is now easy to say that the south half of Red River belongs to the United States and that it was not subject to the mining laws of the United States. The child at its mother's knee knows that now. But you must judge Tom Testerman, his motives and his conduct, under the circumstances as they were at that time.

In judging of the conduct and the genius of Christopher Columbus we do not reach that judgment in the light of present day science. We have to travel back to August, 1492, and make ourselves denizens of that age as well as denizens of the old world, and we must judge of his motives, his conduct, his genius, and his greatness by the knowledge of mankind at the hour he set sail. In judging the conduct of Washington and his compatriots we do not judge them in the light of twentieth century civilization. Those men looked at their situation and at their prospects through the midnight gloom of Valley Forge, and looking through that gloom they could not catch sight of the splendors which have since come upon us and our country.

Tom Testerman was a layman, a practical man. He believed that the south half of Red River belonged to the United States because Oklahoma went to the South bank of the river and because the Indian treaties and the lands that were granted under them, as well as the act opening the lands to settlement, stopped at the middle line of Red River. It required no impulse of genius to reach the conclusion that that land belonged to the United States. But he did not go on his mere assumption. He was a member of the State Senate at the time and had served several terms in the State Legislature. He was an intimate friend of Governor Williams, at that time Governor of Oklahoma but who had been chief justice of our State and is now an ornament to the Federal bench. He went to Governor Williams and told him that he had taken an oath as Governor to execute the laws of Oklahoma throughout the territorial extent of Oklahoma, and he asked him how far he executed the laws of Oklahoma in Red River. The Governor told him he executed the laws of Oklahoma to the south bank of Red River. Now then, an ordinary farmer had a right to attach some weight to the opinion of the former chief justice of our State.

He did not stop there. He found, that the companies which owned the toll bridges across Red River paid taxes on the entire bridge to the counties in Oklahoma where they were situated. Commonwealths are rather alert in collecting all the taxes that are coming to them. It would not have been allowed to go unchallenged if it were not a matter of common knowledge, the fact that the south half of Red River was within the jurisdiction of Oklahoma.

He did not stop there. He found that the railroads sold tickets in Oklahoma marked to the south bank of the river. They were required to make returns as to their gross earnings to the state, and they counted as a part of their earnings the fares to the south bank of the river. They were allowed in Texas and in Oklahoma to issue bonds based on their mileage. The Oklahoma railroads based their bonds on the mileage to the south bank and the Texas railroads also based their bonds on their mileage to the south bank. We had a 2-cent fare in Oklahoma and a 3-cent fare in Texas. The railroads were contesting the 2-cent fare on the ground that it was confiscatory, yet they sold tickets at 2 cents a mile to the south bank of Red River.

Not only that, but they placed markers at the bridges on the south bank, “Texas and Oklahoma,” in order that he who runs might read. It was advertised to the world that the south bank was the boundary, and Tom Testerman knew that because he took the trouble to find it out. I believe there was an opinion by the criminal court sustaining the jurisdiction of Oklahoma to the south bank, but I am not prepared to give the citation or style of the case. I have been so informed.

Tom Testerman did not stop there. He went to the south side of Red River and made inquiries. Before he set foot on the south half of Red River he made an inquiry of Mr. Aynesworth, an attorney in the Greer County case, and asked him where the south boundary of Oklahoma was and he told him it was the south bank of Red River and advised him that the south half of the river was the property of the United States. He has since embodied that opinion in an affidavit.

Testerman did not stop there. Before he spent any money in the development of these claims he went to the tax assessor of Wichita County and inquired of him as to what was the north boundary of Wichita County—which was also the north boundary of Texas and the assessor of Wichita County, who had been assessor for 2 years and deputy for 10 years preceding, advised him in an affidavit that under the direction of the county judge and county commissioners of Wichita County he assessed property to the south bank of Red River and no further. He assessed the property in that county for taxation. We have here the affidavit of ex-Sheriff Hawkins, and he gave testimony to the same effect; that his jurisdiction extended to the south bank of Red River and that the jurisdiction of the officials of Cotton County, Okla., came down to the south bank of Red River.

Now, I ought to say in fairness, Mr. Chairman, that several of these men, particularly those in office, recanted when the fight waxed furious. When the election drew near they saw a light, and they changed their conscientious convictions. I say that for whatever it may be worth, and whether they were right or wrong, Mr. Chairman, in their first affidavits or in their second affidavits. Tom Testerman may have a wizard's eye in searching out the treasures of this earth, but he had no such talent in searching the minds of men and forecasting that they would revoke or renounce their oaths in the future. He could not tell that these officials, trusted by their fellow citizens, would make different affidavits in the future. When he was contemplating the development of the south half of Red River, he had to go by the lights as they were shining at the time; he could not draw aside the veil of futurity.

He did not stop there, Mr. Chairman. He consulted officials in Oklahoma; he consulted officials in kas, and he examined the method of paying taxes. But he did no stop there. He went to an official of the Federal Government and he ascertained that the Federal enforcement officer, charged with the duty of arresting those who were introducing whisky into Oklahoma-Wichita County was wet and Oklahoma was drywould arrest them for introducing whisky into Oklahoma the moment the wheels rolled off the green grass on to the bed of Red River, and if he arrested them before the wheels rolled off the green grass he did not charge them with introduction, but with conspiracy to introduce.

I am showing you the pains Tom Testerman took not to become a trespasser upon the public lands of his country. He did not stop there. He went to a prominent attorney in our State, one who had served as a member of the Supreme Court Commission, and he had Judge Rummons prepare an opinion as to whether or not the south half of Red River belonged to the United States, whether or not it could be acquired under the mining laws and, if acquired, whether rights could be assigned. Judge Rummons reported to him that the lands were public lands belonging to the the United States; that they were subject to the mining laws and that rights so initiated could be assigned.

Now, he had the right to act under all these circumstances but he was not willing to do that. He took precaution; he used "extreme caution and due diligence,"

and he paid $1,000 for an opinion at the hands of Judge Rummons which advised him that these were Government lands and subject to the mineral laws.

But he did not stop with that. Tom Testerman knew nothing about the mining laws. I was talking with him the other day and he said he never heard of the placer mining laws and knew nothing about them; that he had heard that when the Government owned lands that were valuable for minerals a citizen of the United States could acquire them under the laws of the land, and he took this extreme precaution. He had Judge Rummons go with him to Wichita Falls and to Red River; he had this distinguished lawyer prepare the notices, prepare the certificates of location and advise him so that he would not sin against the laws of the land. He took those precautions, and what more could he do?

It has been intimated here that Tom Testerman, this rough and ready old frontiersman, ought to have investigated the case of Lenertz against Malloy. Tom Testerman never heard of that case, and if he had read it, he probably would not have been able to decipher the technicalities of it. It is a sound decision; I do not challenge it, but it is inapplicable, as Colonel Roote so clearly demonstrated. I do not assent to the proposition that it was incumbent upon Tom Testerman to investigate the authorities on which Judge Rummons rested his opinion. He was not qualified to do it.

He remarked to me the other day that if Judge Rummons wanted somebody to pass judgment on a herd of cattle or a drove of mules he would probably have consulted him, but when it came to a question of law, constitutional rights, or the interpretation of statutes he was bound to be governed by others. He had no authoritative judgment of his own in the premises, but it seems to me he did all that could be required of a prudent man. He showed good faith.

I shall not embark upon an investigation of the authorities upon which Judge Rummons rested his opinion because I can not think it material and I can not think this man was charged with any obligation to make such an independent investigation. However, there is one point to which I might advert and it is with respect to the claim of the Government as to the Plumb amendment, attached to the Indian appropriation bill of March 3, 1891, which declared that all the lands in Oklahoma should be declared agricultural lands and that proof of their nonmineral character should not be a condition precedent to final entry. That is relied upon to take this strip of land out of the operation of the general mining laws, because the general mining laws are universal in their terms.

The Plumb amendment was attached to the Indian appropriation bill which carried a rider opening lands to settlement in five different States and Territories and it provided for the opening of three different reservations to settlement in Oklahoma. Section 16, to which the Plumb amendment is attached, is not only one section; it is one sentence, and this Plumb amendment is embodied in a proviso. As you know, Judge Storey said that a proviso to a statute will be strictly construed to cover only the exception intended, and that has almost been consecrated into a maxim of the law. Not only is it one sentence, but that proviso contained three distinct propositions. One fixed the price of the land and the other preserved the rights of exUnion soldiers and sailors. Senator Plumb kicked this in on the floor of the Senate, and he told why. Judge Riter contends and is unfortunately supported by the Supreme Court—that this agriculturalized all of Oklahoma and repealed the mining laws of Oklahoma.

Mr. DYAR. No; it did not say that; it said as the mining laws never did apply they never had to be repealed.

Mr. GORE. I believe they did say that, but they said that if this had applied it would have modified it. I believe they did say that. Now, it is a controverted question as to whether the mining laws ever applied here. They applied in the

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Red River in Arkansas and Louisiana, and on the Arkansas River and elsewhere; everywhere except at this particular point. Now, I do not think the Plumb amendment can be relied on because Senator Plumb never intended that it should be. He made a speech on this amendment and he intended that it should apply to the three reservations then being opened and said so. He not only said that but he said, “There are mineral lands in the future State of Oklahoma; there is coal, gold, silver, zinc and lead, but in Oklahoma as it is now,”-and only five counties were involved “and as it will be when these reservations are opened there are no mineral lands but,' he said, “under the ruling of the Interior Department these homesteaders are required to file a non-mineral affidavit, and that puts an honest homesteader to no end of trouble.” That was all it was intended to do, and it could only apply to agricultural lands. The south half of Red River is, perhaps, one portion of the earth's surface which never was agricultural land, certainly not in the memory of man. The Interior Department issued a circular on July 1st, 1918, before these entries were made in December, showing that there was not an acre of public land in Cotton County or Tillman County, Okla., where this strip is situated. The Government did not know it owned this strip and if it did, had paid no heed to it.

My own theory is that this strip was left out through oversight. Judge Dyar has presented a theory, which, I think, is more ingenious than practical—that this little strip was left there as a sort of Chinese wall between the Kiowa, Comanche, and Apache Indians and the people of Texas. Let us assume that that theory is the fact and that that strip of land would have kept them apart and that it did keep them apart. A theory that does not account for all the facts is not a sound theory, Mr. Chairman. When the Government bought this reservation from the Comanches and when the Government opened it to settlement to white men this theory of Judge Dyar's had no application. At that time there was not any necessity for having this little strip of sand between the white people of Oklahoma and the white people of Texas. Of course, they may have had unwonted foresight and may have foreseen the controversy that arose when the rangers came down. But that theory does not account for leaving this strip out when this country was opened to settlement, and there is only one explanation which attributes reflection or judgment to the Congress and that is that it was either an oversight—and that impeaches them on the ground of negligence or that they expressly applied the mineral laws to this reservation down to the middle of the main stream of Red River, and Congress undoubtedly thought that the south half was already within the purview of the general mining laws and that there was no necessity of expressly saying so. Now, that gives rationality to the acts of Congress and to the legislation.

Of course, the big pasture was situated here and that was subsequently opened, but the mining laws were not applied to that pasture because it belonged to the Indians, all the top and all the bottom. The Government sold it as trustee for the Indians and sold all the top and all the bottom (surface and subsurface) and gave the Indians all the proceeds. It would have been bad faith to have applied the mining laws to the Indian lands, but undoubtedly when Congress extended the mining laws to the north half of Red River they must have assumed that the mining laws applied to the south half. However, we are here with this land adjudged to be land of the United States and finally adjudged not to be subject to the mining laws; we are here with no legal rights. We are here as suppliant American citizens standing upon our equities, and I say that in no cringing sense, as you gentlemen appreciate. We stand here appealing to your consciences and to your judgments for such relief as the circumstances may warrant in the premises.

Now then, what did Tom Testerman do after making these investigations and after obtaining the opinion of Judge Rummons that the south half of Red River was the property of the United States and subject to the mining laws? What did he do? He undertook, in accordance with Judge Rummons's advice, to locate placer mineral


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claims, and he surveyed the claims along the line where the green grass kisses the yellow sand. He kept off of the flood plain. He did not want to take any chances; he did not want to be a trespasser on land within the jurisdiction of Texas; he kept on land that belonged to the Government and where he thought he had a right to go or where he had the right to think he had a right to go. He surveyed his claims from the green grass on the south side, from the cut bank, which the Supreme Court decides to be the boundary. He surveyed his claims from that line to the medial line of the stream; he did not cross the thread of the stream to the north where it belonged to the riparian owners on the north bank, and he did not cross the green grass on the south where he thought it might belong to the State of Texas. He has four claims there oi 640 acres. The eastern claim is longer north and south than the most westerly claim, because it is farther from the green grass to the thread of the stream at the east end than at the west, and he kept his claims away from the green grass on the Texas side. Was that the conduct of a reckless man? Was that the conduct of a man acting in bad faith? Was that the behavior of a trespasser? Was that the behavior of a man who was disregarding the rights of others? He was acting upon the advice of his attorney and in the light of the circumstances as he had been able to ascertain them.

Tom Testerman-and I say this because it is uncontroverted and because I do not wish to embark on controverted points—was the first white man to go in this oil field in Red River. That is undisputed. There is no controversy about that. He went in on the 8th day of December, 1918.

The CHAIRMAN. What do you mean by saying he went in there on that date?
Mr. GORE. That is the date he staked his claims.
The CHAIRMAN. You mean, located them?
Mr. GORE. Yes, sir; he located them on that date.
The CHAIRMAN. I suppoes he was there before that time looking over the ground?

Mr. GORE. Yes, sir; undoubtedly he had looked over the situation and decided, I suppose, where would be the likeliest place for development. I mean that he located his claims under the placer mining laws, or attempted to, on December 8, 1918. Soon after that he became involved in a controversy with other claimants, but he did not resort to any shotgun remedies. He went into the courts of his country, In January, after he located his claims in December, he went into the district court of Cotton County and made an application for a restraining order to restrain certain other parties from trespassing upon the property he had located. The temporary order was granted in January and was made permanent in August, on the ground that the land belonged to the United States and was subject to placer mining entry. That was the judgment of the court.

He sought judicial protection; he sought judicial relief, and he stood on the judg. ment of the court that this was Government land and was subject to placer claims, this in addition to the other precautions, because this came on subsequent to his location. Later on, he drove into the thistle brake with a caterpillar tractor and broke down the thistles and brush, spudded in in May, I believe it was, struck sand on the 13th day of August, swabbed his well on the 20th and 21st, made a trial run of the oil on the 22d day of August, 1919, went into Wichita Falls about 6 o'clock and at 8.30 was served with an injunction issued out of the district court of Travis County, Tex., where Austin is located, enjoining him not to go on the property to do any development work or anything else. The district court of Travis County, Tex., jurisdiction of his person, because he was in Texas, took jurisdiction of property situated outside the State of Texas, took jurisdiction of property that belonged to the United States of America and exercised jurisdiction outside the domain of Texas where it had no more authority than it would have had in the Valley of the Nile. As I say, the trial run was made

The CHAIRMAN (interposing). What do vou mean by the trial run?

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