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that was put on a high monument exempting this particular tract of timber that you claim, and you can not have that particular tract.” That would be more analogous to this case than the one you cite.
Mr. Dyar. Well, if he knew the tract was exempted, if he did not have any reason to think it was open to his taking the timber, under our liberal laws of course he would have to pay for whatever he took off.
The CHAIRMAN. He did suppose it was open and he knew nothing of this particular law, knew nothing of the reservation regarding this particular tract of timber. There you would have an analogous case to these, according to their contention.
Mr. DYAR. According to their contention. Now a flood of light was thrown on this subject by Mr. Roote the other day and by Senator Gore to-day. Mr. Roote said that when Judge Dale was asked about how they could get title to the lands in the bed of the Red River-well, he stated, first, that Judge Dale had been practicing law in Oklahoma for many, many, years, and had a very large land practice; that when he was asked that question, he did not know anything about the placer mining law; that he went down to the land office at Guthrie and inquired of the registrar and receiver there how he could get title and they said that somebody had told them something about the placer mining laws, but they did not know anything about it and they had to refer the matter up here to the Government. And to-day Senator Gore says that Tom Testerman never heard of a mining claim. Now, don't that throw a flood of light on this? If those gentlemen had been in Colorado or one of those mining States, every citizen would have known about a mining claim and they would know about it so well that they would not have to ask a lawyer what to do; they would go and get it. They know it is open to location and they go and locate it. But here they knew nothing about it; there was no presumption that anything was open to mineral location anywhere around; they did not know anything about it, and yet, when somebody told them about it, they rushed in and took a chance on it.
Mr. BURTNESS. On advice of counsel, however, was it not, Mr. Dyar? And as I heard the decisions read, I must confess it seems to me there were at least two decisions of the Supreme Court which were very pat upon the proposition and which are cases that, it seems to me I must hold, were reversed in so far as the principle is concerned by the recent decision of the Supreme Court.
Mr. Dyar. There again—I put up a map here—that goes to the good faith question. [Laughter.]
Mr. BURTNESS. But regardless of whether those lawyers were right or wrong, or whether they had two decisions of the Supreme Court behind them, would not the fellow who accepts the decision of that attorney be acting in good faith, even though it might be on a matter he had never heard about before?
Mr. DYAR. Judge Dale has written a letter to the chairman and I would not dispute anything that Judge Dale says on his own responsibility, and, as I understand him to say, he did advise some of these people that the land was open to mineral location. But so far as the Rummons' opinion is concerned (I read it here awhile ago), there is not one word in the whole opinion passing upon any question as to whether these lands were subject to mineral location. He assumed that they were and he goes and finds out what the mineral law is and he sets out the primordial principles of the mineral law as if he never knew them, even, and evidently, as a lawyer of Oklahoma, he did not know anything about the mineral law and therefore he was putting it there. And all it amounted to, he assumed as a matter of course that the mineral laws applied to these lands and then he only told what the mineral law was and how they could operate under it.
The CHAIRMAN. He referred to the fact that all deposits of mineral on the public lands were open to exploration and entry?
Mr. Dyar. Yes. That brings us back to just where we started the other day: What reason had anybody to think this land was open? Colonel Roote says, with the
utmost emphasis, that this land belonged to the United States and the mineral law says that deposits in the lands of the United States are open to exploration.
Colonel Roote. Except where otherwise appropriated.
Mr. Drar. Except where otherwise appropriated. Now, as a matter of fact, Mr. Roote is a Montana lawyer and what he said, out there, might be true, that since the acquisition of Louisiana in 1803 the United States had owned the lands up there; but it did not own these lands. It owned them for a while. These lands, for 35 years before the mineral law was passed, did not belong to the United States. None of the lands in Oklahoma belonged to the United States; they were lands owned in fee simple by the Indian Tribes, under patents issued by the United States. Now that would be surprising to some, but some of the members of this committee doubt. less know it. In 1820, these lands were granted to the Choctaws when they were moved from the East (there was another treaty in 1828) and this corn-colored land reached from the Arkansas, from the border there at Fort Smith, up the Arkansas and then along the Canadian River clear over to the west here (indicating on map). All of that land was granted to the Choctaw Indians and, in 1830, a new treaty was made in which the Government directed that the fee simple title pass to these Indians and that a patent should issue therefor, and the patent did issue.
Mr. GORE. Is it your theory that the patent went to the south bank?
Mr. DYAR. Talking first, now, about the general situation in Oklahoma: If everybody is satisfied that the mining laws never did apply to Oklahoma, I need not go on with this; but I think we ought to know about that. The Cherokees had a similar patent issued in 1828 and under a similar law, for all this land here, reaching clear up here [indicating on map]. It was their land; not the land of the United States. And so with the Creeks; they had a patent for this yellowish land in here, clear up to here [indicating on map]. And there was not a foot-well there might be a foot; I do not want to be too broad in my statement, but practically the whole region of the Indian Territory was land that the United States did not own at all. Now, then, I do not know whether anybody will contend that Indian lands are subject, even lands occupied by Indians under their right of occupancy, and especially in a reservation, are ever, at any time, open to location under the mining laws of the United States. If anybody doubts that, I can refer him to the law. The Indian Reservations are absolutely excepted from the mineral laws, as they are from every other land law. Yet there are lands of the United States subject to Indian occupancy outside of this territory; but these lands were patented to the Indians.
In Kendall v. San Juan Mining Co. (144 U. S. 658), the Supreme Court of the United States held that a man who slips into an Indian Reservation and locates a mining claim gets nothing whatever. In that case he was there; he had made his mining location and had done the things the mining laws required him to do. The lands were then ceded by the Indians, and somebody else slipped in and located the same lands, a new man, and the Court held the first location was utterly invalid. Indian lands and reservations are absolutely free from mineral laws and every other land law.
Now, then, these were patented lands and they remained patented lands for a long while. Curiously enough, just prior to the passage of the mineral law of 1865—well, in 1855—the United States leased this strip from the Choctaws and Chickasaws. The Chickasaws had acquired an interest in the meantime by treaty. The United States took a lease from the Indians and held for 10 years as the lessee of the Indians all of this Choctaw country from the 98th meridian, including this territory we are talking about and including the western border.
Mr. Burtness. Including this land south of the medial line?
Mr. Dyar. I do not know about that; we will come to that in just a minute. Now that land, as I say, for 10 years, was held by the United States as lessee of the Indians, and the lease was made for the express purpose of locating upon those lands the
Kiowa and Comanche Indians; and in 1865 this thing was done: Those lands being subject to a lease for the purpose of the location of other Indians upon it, a treaty was made with the Kiowas and Comanches who then were evidently occupying a portion of western Texas. This is a map of Texas (indicating), and a reservation was created beginning at the northeast corner of New Mexico, down the line of New Mexico to the southeastern corner; thence in a northeasterly direction to the Red River, at a point opposite the mouth of the North Fork, on the bank of the Red River opposite the mouth of the North Fork, and thence down the Red River to the 98th meridian, including all these lands (indicating), being on the south side of the river opposite the mouth.
Mr. GORE. Those lands are situated in Texas, Judge, and do not belong to the United States at all.
Mr. Dyar. Thence along the 98th meridian, so as to take in all of these Choctaw lands, and there is a picture of that reservation in green. Now these maps are made for the purpose of showing these different locations. That shows it. I just wish the members of the committee would look at that. All of this land, including the river bed, according to the construction by the Supreme Court the other day were included in the reservation, first, of the Kiowa and Comanche Indian Reservation, which included a part of Texas, the southwestern corner of Oklahoma, clear down to the 98th meridian, including all of these lands, and thence north, up this way (indicating on map].
Mr. GORE. The United States did not own a foot of that land beyond the south bank of Texas, did it, embodied in that cession there?
Mr. DYAR. No.
Mr. GORE. Comprising the whole panhandle of Texas, to which the United States never did acquire title.
Mr. Dyar. But the United States did have the right to create a reservation of that part of Indian Territory leased from these Indians?
Mr. GORE. Oh, yes.
Mr. GORE. Yes. If the judge will allow one interruption: There is no doubt but what this land was ceded and receded to and from the Indians time and time again. Whether it went to the south bank, of course, is a controverted question. And it was ceded back to the United States by the Choctaws in 1866.
Mr, Dear. If you please, Sentaor Gore, I am going to follow the story right through. Mr. GORE. Yes.
Mr. DYAR. These Indians were brought in and located and then, in 1866, on the 2d day of July, 1866, two days before the mining law was passed (the mining law was passed on the 4th day of July, 1866), a treaty which was made sometime before was ratified by Congress with an amendment; or rather it was ratified some days before by Congress with an amendment and on the 2d day of July the amendment was accepted by the Indians and the President proclaimed the treaty on the 10th of July which was after the passage of the mining law. And that treaty was a cession from the Indians of the land that up to that time had been held by the United States under the lease.
Now the whole basis of the argument made by all the proponents of these bills, of the placer mining locators, is that undoubtedly the mineral laws applied to these lands from the time it was passed and they have assumed that the question is whether it was afterward repealed or not. Now it was not a question of repeal at all; it was a question simply of opening these lands and, when they did open them, whether the laws and treaties made them subject to the mineral laws or not. We have been over all that subject and we know that they did not make them subject to the mineral laws.
Now, take another view of it. Senator Gore has referred to what he called the Plumb amendment, is it?
Mr. GORE. Yes.
Mr. DYAR. And I think he has very truly said that these particular lands that were ceded, by that act of 1891, in which this general declaration occurs, it was intended to prevent the unnecessary requirement by the officials of the Land Office-to prevent them from requiring the applicants for homesteads to make nonmineral affidavits, because the lands were not subject to mineral entry. But there is nothing in the world to support the Senator's ststement that that amendment only applied to the three tracts of land that were then ceded; because numerous other lands, number of tracts, had been already ceded with the same provision that they should be subject to entry, by actual settlers only, under the homestead laws. And that declaration covered them all.
In addition to that, we have the declaration in the act creating the territory, which has been referred to so often.
Now it is of course true, as a general proposition, I suppose-it used to be a great deal more true than it is now—that a proviso is limited, as a rule, to the subject matter of the legislation to which it is attached; but anybody at all familiar with the history of the legislation of Congress knows that nowadays constantly, and I have no doubt -at every Session, the most general legislation is inserted in bills in the way of provisos, and sometimes the general legislation has only the remotest connection with the subject matter of the preceding part of the section, and there has ceased to be any presumption. It depends entirely on the nature of the proviso. The proviso can be and often is couched in such terms that you legislate on some subject very remote from the subject matter of the clause to which the proviso is attached. You are doing it all the time. I suppose you realize the truth of that, do you not, Mr. Chairman and other Members?
The CHAIRMAN. How is that, Major?
Mr. Dear. That Congress constantly is legislating by provisos—legislation much broader than the matter to which the proviso is attached. For instance, you make an appropriation for the Department of Justice and then, in a proviso, you say that none of the moneys hereby appropriated, or any other moneys appropriated for the Department of Justice, shall be expended for salaries in the District of Columbiaa much broader declaration than the other.
The CHAIRMAN. That would be a limitation.
Mr. DYAR. No, it would be legislation, entirely aside from the subject matter of simply making an appropriation.
The CHAIRMAN. I say, that is what we would call a limitation.
Mr. Dyar. Yes. But I think the Senator is entirely mistaken in the construction of the law when he attempts to limit the declaration that all the lands in Oklahoma are declared to be agricultural and no nonmineral affidavits shall be required, merely to those lands with which clause preceding the proviso deals.
Mr. GORE. There is no doubt I was mistaken about it; I concede that.
Mr. DYAR. And don't you concede your statement was wrong of the law, that that proviso was limited merely to the three bodies of lands that were ceded?
Mr. GORE. The point I made was that Senator Plumb’s amendment applied only to those lands. The courts have held that Congress intended it to be broader, but Senator Plumb stated it meant what he intended.
Mr. DYAR. Now, that being the case, that declaration applied to every foot of land in Oklahoma Territory as it then existed. That was in 1891. The Territory of Oklahoma was created by the act of May 30th
Mr. GORE. May 2.
Mr. Dvar. Yes, May 2, 1891. The south boundary of Oklahoma was therein described specifically as the north boundary of Texas. Oklahoma Territory reached to
the north boundary of Texas, which was the south bank of Red River. The next year-in this act of which we have been speaking, the Congress of the United States said that all the lands in Oklahoma, in the Territory of Oklahoma, are declared to be agricultural lands and no nonmineral affidavits shall be required. It included every foot of land in the south half of Red River and everywhere else. Of course, the Senator says the south half of Red River is not agricultural land; but neither were, perhaps, the peaks of the Wichita Mountains agricultural lands. But the declaration applied to all the lands there were; unquestionably so; so that the mineral laws were absolutely excluded.
Mr. CHAIRMAN. Major, with reference to the language in the enabling act, about the lands being open to settlement and that they shall be disposed of to actual settlers only, under the provisions of the homestead law: Was the attention of the court, in that connection, directed to the preemption law?
Mr. DYAR. Not that I know of.
The Chairman. I wondered if it would not be reasonable to say that is what they meant, “shall be disposed of to actual settlers only, under the provisions of the homestead law?” Now, lands under the preemption act were open to settlement and the settler got his land by paying a certain price for the land?
Mr. DYAR. Yes.
The CHAIRMAN. It seems to me it would be plausible, at least reasonable, to say that was the distinction they were making there—they shall be open to settlement--that they should be disposed of to the actual settlers only when they were open to settlement. They could have been open to settlement either under the preemption law or under this law, and I wonder whether that matter was suggested to the court.
Mr. DYAR. You mentioned that the other day; that is the point you brought out the other day.
The CHAIRMAN. I did not have it so clearly as I have it now, because I have just looked up this old preemption law.
Colonel Roots. No, the preemption law settlement was not.
The CHAIRMAN. Here is the preemption law briefly: That a person who hereafter makes a settlement on public lands subject to preemption, and so on, may obtain the land upon paying the United States the minimum price of such land; and it occurs to me that possibly this is subject to the interpretation that that is what they meant; that when it is thrown open to settlement, that it must be a settlement under the homestead law and not under the preemption law.
Mr. Dyar. I can not follow you, I confess. Here is a declaration that all the lands in Oklahoma are to be considered as agricultural lands.
The CHIARMAN. No; I am not considering that part; just this other part.
Colonel Roote. It was not, except in limited way in the brief. There was no opportunity in the argument; the time was so short that it was not mentioned by any one, simply because there was not the time. . Mr. DYAR. I was going to say, Colonel Roote. But, in the brief, it was so contended.
Mr. Dyar. I was going to say that whatever I did we may have on the subject, the Land Department has uniformly held, under these expressions, that the lands generally in Oklahoma were not subject to mineral exploration at all; that the mineral laws did not apply. Those land lawyers in Oklahoma, Judge Dale and the others, probably had the Land Decisions there; but, nevertheless, they shut their eyes entirely to