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where right here [indicating). Do not let me go astray, Mr. Testerman. Somewhere about there [indicating), and there are comparatively few beyond, I think.
Mr. TESTERMAN. I think there are 13 wells on our property.
The CHAIRMAN. How many wells are there outside of the Burk Divide and Mellish wells?
Mr. DYAR. I could not tell you.
Mr. Dyar. I do not believe there are more than one or two. What do you think, Mr. Testerman?
Mr. TESTERMAN. I do not think there are.
Mr. Dear. The receiver worked northward across the river, and the medial line has moved north in the meantime. There are three producers north of the medial line and outside of the Burk Divide claims.
Mr. Raker. Then that answers the chairman's question, that there are practically no wells outside of these known claims, which are on the land that is in controversy before the committee?
Mr. Dyar. I think that is practically true. Of course, that does not mean that there will not be other claimants.
Mr. RAKER. I understand that.
Now, while we are on the subject of statistics, I was asked by the chairman to produce for the information of the committee the cost of this suit to the United States. We can not give it to you with absolute certainty and this is an approximation, but I think it is practically and subtstantially the total expenditure of the United States. The Department of Justice itself, except as to two or three little items I will give you later, expended $74,408.60. The Surveying Division of the Department of the Interior expended $30,091.74. The Bureau of Soils of the Department of Agriculture, $1,268.70 The first item I gave you included the salary of our regular attorney in the field, who was in charge of that end of the case, Mr. John A. Fain. His compensation was $10,000 a year up to the last few months and then reduced to $5,000, and the total paid him was $26,976.06.
The CHAIRMAN. That is included in the other amount?
Mr. DYAR. Yes, sir; that is included. So far as other counsel fees are concerned, I myself was a regular employee of the Department of Justice in Washington at the time this suit was placed in my charge, at or about the end of 1919, my salary was $4,500, later increased to $5,000.
The CHAIRMAN. That is included in the general statement?
Mr. Dyar. Yes, sir. Now, this is just an estimate. I estimate that I spent, perhaps, two-thirds of my time during that period on the case, and I estimate that amount to be, $12,875. Two-thirds of that is $8,584, being the approximate cost of my services to the Government. I would have had the same money if I had never heard of the case, I suppose, unless I had been fired in the meantime.
Mr. J. A. Tellier, who was here yesterday, and who made some preliminary investigation and afterwards shared in the taking of a part of the testimony, was paid an annual salary of $7,500, being a man in the field in Arkansas. We estimate he put approximately five months on this case, and that would mean $3,125. So that summing up
Mr. RakeR (interposing). Before you sum up, the clerk hire would run about $3,000 a year, would it not?
Mr. Dyar. You mean in the department itself?
MR. RAKER. The clerk hire necessary for this case would run at least $3,000 a year, would it not?
Mr. DYAR. It is very hard to say. Of course, the clerical assistance we had in the field had to be specially employed here and there, and that is included in the estimate I have already given. But there is no way of estimating the time the regular employee in the Department of Justice put on this case. My own stenographer put a great deal of time on it; she is not figured in it at all; and other stenographers did a great deal.
Mr. RAKER. I was taking the work that clerks would ordinarily be called on to do in a case of this kind and I should think that $3,000 would be a very modest sum per year.
Mr. DYAR. I think it would be an extremely modest sum. The total we figure up in that way, covering all expenditures, makes $117,442.04.
Colonel RootE. That is for both departments, Interior and Justice?
Mr. DYAR. Yes, sir, and the Agricultural Department. We had some of their experts.
Mr. RAKER. And for the Bureau of Fisheries, how much?
Mr. DYAR. Well, they were not concerned, because there are not very many fish in that part of Red River.
Mr. GORE. A good many suckers.
Mr. DYAR. We had two ecologists and several physiographers. We had the most distinguished men in those lines in the country and, perhaps, in the world. We beat them down from their ordinary charge of $100 a day and paid them $50 a day.
Mr. Raker. What is an ecologist?
Mr. DYAR. Ecology is a new science and a wonderfully interesting one. It is the study of the history of lands, especially newly made lands, as gathered from the tree growth and vegetation growth upon them.
Mr. DRIVER. We call them tree bugs.
Mr. Raker. I take it from that that if he finds an island in a river with a tree growing on it and afterwards the river moves out he determines from the vegetation and finds there that the land from the tree out to the bank is the original soil.
Mr. Driver. He is not a land expert; he is a tree expert, and ecologists can tell you the age of trees and the vegetation.
Mr. Dyar. You will find an area of this flood plain with large trees on it; an ecologist will go there and he can find out the age of it by cutting it and counting the rings.
Mr. RAKER. We bore holes in it.
Mr. Dyar. Yes. He can study the vegetation inside, and if he finds that there is young growth and no old growth between that and the bluff and finds that the characteristic vegetation is of a kind which has recently been overflown by water, he infers that at some date-he can get mighty close to it, too-water was flowing through there.
Mr. RAKER. An ecologist is able to distinguish between newly made land and land that has been there for hundreds of years.
Mr. DYAR. If he finds vegetation which is characteristic of newer made lands he infers there was an island out there with water flowing between it and the land.
Mr. RAKER. I wonder whether their opinions are anything like the opinions of the geologists and mining experts of the world who said that the lands in Nevada did not contain gold, and yet when they went to work at Goldfield and Tonopah they found the richest mining country and the richest bearing quartz in the world. So I wonder whether the opinions of ecologists would turn out in the same way as did the opinions of the geologists who determined that there was nothing in that country?
Mr. DYER. Well, the court held that this was indefinite and speculative.
Mr. DYAR. I was very skeptical about it in the beginning, but when we compared the opinions of the ecologists with the evidence of eye witnesses as to conditions that prevailed there and even the evidence of many living witnesses, I was sure there was a body of water running there since 1821.
Mr. LARSEN. You do not know how these ecologists arrive at their conclusions. They may ask the same witnesses.
Mr. DYAR. In this case it is all explained, and it is the most fascinating thing imaginable.
Mr. DRIVER. Was Van Swank a witness?
Mr. Raker. You have not included any charge for that opinion, have you?
Mr. DYAR. Yes; they were all paid for the time they spent on the work and at fixed rates per day. It is all charged in the whole expense of the case, as far as we could compile the expense.
Now, yesterday, I asked Mr. Tellier to give us his remembrance of the date of the coming in of the Texas Chief well. A question was asked him and he made an answer which led some members of the committee to think-as appeared from the avidity with which they seized upon his statement—that that was the very beginning of the Government's investigation in this case.
Mr. Green the other day made some very astonishing statements as to how he persuaded the Government in October, or later, of 1919 to take up this case. Now, I think you ought to know about that matter and, by the way, the very first paper at the very beginning of our file is a memorandum, written for some other purpose in 1917, holding that the mineral laws did not apply to the State of Oklahoma. That is the first paper
in our files.
Mr. Dyar. That was in 1917. I was not there and it does not show the connection, but there is a memorandum to the Assistant Attorney General in charge and it does not state what the controversy was or what the questian was. However, it was quite a full memorandum.
Colonel RootE. Who made it?
Mr. DYAR. Mr. Underwood, an old Land Office employee who was more familiar, probably, with the history of the development of titles to Indian lands than any of us, or at least, than we were at the beginning; we have learned something since. It will take me a little while, but I really want the committee to know about this. Now, the first letter addressed to the department from the United States attorney, and being the second paper on the subject, was addressed to the department on January 28, 1919, by John A. Fain, then United States attorney for the western district of Oklahoma. He
says: “I assume that the department had some information as to the recent oil developments and activities in Wichita County, Tex., in the vicinity of Burkburnett and Red River and the supposed active development of the bed of Red River. I feel it my duty, however, to report present conditions as relating to the bed of Red River so far as I am informed.'
Then he goes on to state the fact that the river bed has been located by mineral claimants of Oklahoma and Texas. He says:
"The river bed is from one-half to one mile wide and it is generally conceded that it is very valuable for oil and worth many millions of dollars."
That was just after the Burk Divide people had located, 10 days after they had located their claims.
“One-half mile south of the river a well was recently brought in which, I am informed, is producing 1,200 barrels of oil a day.”
Now, I do not think that refers to this immediate region, but farther down the river, the Burk Burnett land. How far down the river is it, Mr. Testerman?
Mr. TESTERMAN. Nine miles.
"I am informed that wells can be drilled in this vicinity to a depth of 1,700 feet, where the producing oil sand is found, in about two weeks. If the Government owns this part of the river bed and recognizes these mineral claims as valid, then I assume there will be no occasion for concern for the Government's interests in that portion of the river bed or litigation that has arisen or may yet arise. If this is Government land and the mining laws do not apply or if it is desired to withdraw the bed of the river from mineral location, it may become quite necessary for the Government to take prompt action."
And he asked for instructions.
Mr. BURTNESS. How does the date of that letter compare with the date of the filings of Testerman and the predecessors of the Burk Divide Co.?
Mr. DYAR. His letter is dated January 28, 1919, and Mr. Testerman's first filing was on December 8, 1918, and the Burk Divide filings were from January 18 to 21, 1919, and began ten days before Mr. Fain made this report. So he must have referred to the construction of derricks that were farther down the river.
Well, we did not give him any instructions, but we wrote for further information and asked some questions of the Secretary of the Interior. The correspondence was very active from then right on through February.
Mr. BURTNESS. In your reply to him there was no statement whatever as to whether the land belonged to the United States or not.
Mr. DYAR. No. It all needed investigation and it was all a new thing to us. But prior to that time there was sent to us, a letter from the Department of the Interior. Commossioner of Indian Affairs. This letter is addressed to the Commissioner of Indian Affairs by the superintendent of the Kiowa Agency, and is dated January 17, 1919.
The CHAIRMAN. That is referred to in your letter?
Mr. DYAR. Yes, sir; and that calls attention to the activities along there. He says he thinks the Indian rights on the north shore, that is, the riparian rights, extend clear across to the south bank, and they maintained that position for quite a while.
Mr. GORE. The United States district attorney brought suit in the Federal Court of the Western District of Oklahoma setting up the fact that the rights of the Indian riparian owners went to the south bank, did he not?
Mr. DYAR. I have forgotten just the circumstances. I think we filed a bill which was followed by an amended bill. You must understand that the proposition was under consideration for a long while and there was correspondence back and forth. Our idea was that the suit would be instituted in the District Court for the Western District of Oklahoma and that it would probably be brought by the United States as guardian for the Indians against the individual people who were in possession of lands along Red River and lying in front of Indian allotments. That was the original idea.
The CHAIRMAN. When did you have that idea?
Mr. DYAR. Well, you see, that idea was expressed first, I think, by the superintendent of the Kiowa Agency; at least, that is the first thing they sent us from their department. The Secretary of the Interior wrote us in answer to our letter and he referred to this letter, and said that these questions were so complex and involved that he felt they must be decided by a court and that it was not worth while for him to express
much of an opinion on them, and from the very first we were-well, I was not there; I had not gotten home yet; but the people in the office were engaged on these problems more or less all the time.
Mr. Green. What was the date of the letter that is photographed there, which Mr. Stinshecum wrote?
Mr. Dyar. I gave the date, and it is January 17, 1919. I do not know that that was the first communication from him to his own department.
On February 25, 1919, the United States Attorney writes the department:
“Inclosed herewith I hand you advertisement appearing in the Daily Oklahoman, wherein it appears that the State of Oklahoma through the Commissioners of the Land Office proposes to lease to the highest bidder for oil and gas purposes all of the bed of Red River below high water mark and the meander lines thereof in Jefferson, Cotton and Tillman Counties, and that bids for these leases will be received on March 11, 1919."
Here is the advertisement, cut from a newspaper, but without preserving the date. It describes all the lands in the three ranges, including 14 and 15, the whole river bed. They are advertised by Oklahoma for sale, the bids to be received on the 11th day of March, 1919, about two months after the placer miners first went on the ground and while we were at work on various investigations. This appears in the same letter, the letter of February 25, 1919:
“You have no doubt been advised of the oil development on the south bank of Red River opposite these allotments"
Now, this language probably refers to allotments farther down the river; I do not know just exactly"and the prospecting for oil that is active north of the river. In fact, the production on the south bank of the river appears to warrant the payment of large bonuses for leases north of the river in Cotton and Tillman Counties and the superintendent of the Kiowa Agency has already sold a number of leases in that vicinity at prices ranging from $300 to $2,750 per acre bonus.”
That was on the north side of the river, but must have been farther down.
"It is generally considered that the bed of Red River in Cotton and Tillman Counties is very valuable for oil and gas. You have, no doubt, been advised that the State of Texas, as well as the State of Oklahoma, is claiming the bed of Red River in this locality and that also numerous persons have filed mineral locations on the bed of Red River throughout Cotton and Tillman Counties, claiming same under the mining laws of the United States, particularly from the middle of the main channel of the river to the south bank, on the theory that that portion of the river is public domain of the United States and subject to mining laws."
The CHAIRMAN. What date was that?
Mr. BURTNESS. What is the reply to that letter, in so far as the onwership of the land is concerned?
Mr. Dyar. We did not move rapidly; it was a complicated question and we went to the foundations of it. Nearly every man in the office wrote a memorandum on some feature of it. Here is a memorandum from a young man named Pine, who was in the office. This is of a later date, May 1, 1919, and he discusses the question at some length. He concluded that the Indian rights do extend clear across the river. That was in May, 1919.
Colonel Roots. And did you not afterwards bring suit in Oklahoma City, in the Federal Court, to enjoin everybody all the way down on the south bank on behalf of the Indians, alleging that the Indians owned it?
Mr. DYAR. Well, I can not answer that question. A suit was brought, and I was coming to that pretty soon. Mr. Fain was instructed to get ready, and he sent in copies of bills for the department's inspection and for its suggestions. Those bills