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were not satisfactory in some ways, and they raised other questions. Further investigations of the law were made, and on June 20, 1919, he sent in a draft of a bill to be filed in the District Court of the Western District of Oklahoma.

The CHAIRMAN. Who did this?

Mr. Dyar. The United States attorney. At that time he did not know but a few of the defendants, the line for the names of the defendants being left blank. It was merely a tentative draft.

Mr. Gore. Is that when he alleged ownership in the Indian allottees or in the Government?

Mr. DYAR. I have not looked into that, but I think he alleged in this first bill ownership in the Indian allottees extending clear across, but we had better be accurate about that. [Reading.)

“4. The lands so allotted, and for which trust patents issued as aforesaid, abut and border on the said Red River. By reason of the allotment of the lands so situated in the Indians specified, the said allottees have severally acquired riparian rights in the lands constituting the bed of said Red River as appurtenant to the lands allotted to them and which border on said river."

The CHAIRMAN. What is the date of that?
Mr. DYAR. There is no date to it, but it was sent in with a letter dated June 20, 1919.
Mr. BURTNESS. What is the caption of the case?
Mr. Dyar. It is “United States of America, plaintiff, v.


defendants," western district of Oklahoma, and the first paragraph is:

“The United States of America, by John A. Fain, United States attorney for the western district of Oklahoma, at the request of the Secretary of the Interior, and by order and direction of the Attorney General of the United States, for itself and acting for and in behalf of certain members of the Kiowa, Comanche, and Apache Tribes of Indians in Oklahoma, hereinafter named, brings this its bills of complaint."

Mr. Gore. And in that they set up a claim of ownership in behalf of the allottees to the south bank?

Mr. DYAR. Well, that bill was never pressed.
Colonel RootE. That was never filed?
Mr. DYAR. I do not think this was ever filed, but I do not know.

Mr. GORE. I think, Mr. Dyar, this is, perhaps, the history of it: A bill was prepared and submitted to the department alleging that the ownership was vested in the tribes to the south bank, and our information, which may not be borne out by the record, was that Mr. Fain was instructed not to file a bill claiming the land in behalf of the tribes to the south bank, but to file a bill in behalf of the allottees.

Mr. DYAR. I do not think that can be the case.
Mr. GORE. I may be in error about it, but that is the information I had.
The CHAIRMAN. It would not make much difference which way it was.
Mr. GORE. No; not as far as the fundamental question is concerned.

Mr. DYAR. But we filed such a bill and it was considered that we would probably bring the suit in behalf of the Indian allottees claiming a clear free, and that would have absolutely excluded the possibility of the mineral claimants having any rights whatever. If that theory was correct there was no right that anybody had to the land except the north shore claimants, that is, the Indians, and they would have a right clear across the river, as well as white men who had purchased Indian land, because their lands, of necessity, would have the same boundaries and the same riparian rights that the Indians had. So there was no room for any placer miners anywhere and it was an absolute denial that the river was open to mineral location.

Mr. Burtness. And was entirely inconsistent with any theory of the ownership of the land by the United States?

Mr. Dyar. Yes, sir; wholly.
The CHAIRMAN. And it was wholly in good faith?

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Mr. Drar. We were investigating the subject and in the meantime these bills were sent in, a number of them, and in the meantime they worked on that theory for a long while.

Mr. GORE. I want to emphasize this point, if I may: That this bill was filed in behalf of the Department of the Interior and the Attorney General of the United States.

Mr. DYAR. I believe you must be mistaken.
Mr. GORE. Read the caption you read a moment ago.
Mr. Dyar. I will read it again:
"The United States of America, plaintiff, v. defendants.

"The United States of America, by John A. Fain, United States attorney for the western district of Oklahoma, at the request of the Secretary of the Interior and by order and direction of the Attorney General of the United States, for itself and acting for and in behalf of certain members of the Kiowa, Comanche, and Apache Tribes of Indians in Oklahoma.”

Mr. GORE. That is the point I was making, that it was at the request of the Attorney General of the United States.

Mr. DYAR. Every bill filed by a United States attorney recites it is at the request and direction of the Attorney General of the United States.

Mr. GORE. I desired to emphasize the point that the bill made that recitation and asserted title and ownership in behalf of the Indians.

Mr. Dyar. Now, there is further correspondence.
Mr. BURTNESS. But this bill was never filed as a matter of fact.
Mr. Dyar. No; I do not think so.
Mr. Gore. This one was; this bill was filed.

Mr. DYAR. A letter was addressed to Mr. Fain pointing out certain defects in his bill.

Mr. BURTNESS. Does that letter contain anything to the United States district attorney for the western district of Oklahoma by which the point is urged that the United States owned the land and not the Indians, or do the defects refer to other matters?

Mr. Dyar. These defects referred to other matters, but I will answer your point, because I am going to give you the whole story. Here is a letter dated July 2, 1919, from United States Attorney John A. Fain, when Testerman's well was going down and some others, but before the Burk Divide people had commenced to drill well No. 1.

Colonel Roote. It was after their derricks were up, though.

Mr. DYAR. Yes. After stating that he had a conversation with the superintendent of the Indian Agency, he says:

“The chief concern of the superintendent of the Kiowa Indian Agency has been to take prompt and necessary action which would enable leases to be made on the river bed for oil and gas for the highest possible bonus and to take advantage of the opportunities now afforded on account of the oil excitement and development in the vicinity of the river bed, insuring high bonus values for leases thereon. The superintendent informs me that if the river bed involved in this suit could be leased in a reasonable time he is confident that as much as $10,000,000 would be received in bonuses. His estimate


be a little high, but at this time there is great confidence in the extension of the Burk Burnett oil field across the river into Oklahoma."

That was on July 2, 1919.
The CHAIRMAN. That was still on the theory that it was Indian land.

Mr. DYAR. Yes; I think they were still proceeding on that theory. Here is another letter from the United States attorney dated July 16, 1919. We have had up the question of when the Texas Chief came in, and this letter of July 16, 1919, has this statement:

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“Mr. C. V. Stinchecum, superintendent of the Kiowa Indian Agency, drove with me to Burk Burnett and up Red River about 6 or 8 miles through what is known as the Burk-Waggoner and Texas Chief extension of the Burk Burnett oil field. My special purpose was to investigate the river bed in this vicinity, it having been reported that there is every evidence that the Red River was formerly on the south side, contiguous to a high bank.”

You remember where the Texas Chief extension is, and I take it that this letter is proof in connection with what Mr. Tellier said yesterday—that the Texas Chief had come in previous to this date, which is July 16, 1919.

Mr. TESTERMAN: Some time in June.
Mr. Dyar. By the way, I have not had any reply to my telegram to Judge Carrigan.
Mr. TESTERMAN. They do not know anything about it.
Mr. Dyar. He was part owner of it, was he not?
Mr. DYAR. I know he took me up there when I was there.
The C'HAIRMAN. Did the Texas Chief become a paying well?

Mr. DYAR. Yes, sir; it was supposed to have produced mighty well. My recollection is that Judge Carrigan told me it came in at the rate of 3,000 barrels.

Mr. TESTERMAN. That is paper talk. The Texas Chief has not been making but about 600 or 700 barrels for the last year and a half, but it came in pretty well.

Mr. Dyar. Then it might have come in at the rate of as many as 10,000 barrels.

Mr. GORE. It came in as a pretty good well, and I was in Wichita Falls when it came in.

Mr. DYAR. In the same letter, dated July 16, 1919, Mr. Fain states:

“While I was in Wichita Falls I was informed by a member of the Mid-Continent Refining Co. that they had that day sold a lease of 25 acres which they had acquired under the Texas claim for $60,000 per acre'

I am rather inclined to think he means for the whole tract, but I do not know“80 per cent of this tract being below the south bank above referred to, and as yet there are no producing wells thereon."

The south bank he was referring to was along by the Texas Chief and right contiguous to these other wells.

On July 25, 1919, a letter was written by Assistant Attorney General Frank K. Nebeker to Hon. Lucian W. Parrish, House of Representatives, Washington, D. C.:

“My DEAR MR. PARRISH: Acknowledgment is made of your letter of July 23, 1913, requesting that before any suit is instituted by the United States affecting lands ‘south of the present bank of Red River, which is being claimed by the State of Oklahoma,' an entirely disinterested man from some section of the country other than the States of Texas and Oklahoma be especially selected to make an investigation of the matter and furnish a report that will not be at all influenced by the claims of either State.

“I have the honor to inform you that the matter of an additional investigation other than that made by the United States attorney for the western district of Oklahoma is now under consideration by the department, and I wish to assure you that your representations in this regard will be given very careful consideration and you will be promptly notified of the conclusion arrived at by the department."

This concerned lands on the south side of Red River claimed by Oklahoma, and south of the present bank of Red River, referring, of course, to the patented flood plain land and not to the sand bed.

Now, Mr. Tellier is from Arkansas and he was in the employment of the Government. He had had large experience in somewhat similar work in rooting out the character of lands that had been overflowed, etc., in Arkansas, and had been wonderfully successful in his suits, and, therefore, he was detailed to make this investigation, in order that those lands south of the bank of Red River might be thoroughly under

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stood and studied, not as to whether we were going to bring any suit at all but as to whether we were going to include those lands in the suit. Investigation of those lands held us up for several months, because we did not want to make any mistake. You heard what Mr. Tellier said yesterday about reporting on the whole thing, and I called his attention to the fact that he had slipped a cog in his memory. This is a letter dated August 7, 1919, addressed by Assistant Attorney General Frank K. Nebeker to Mr. J. A. Tellier, and it says:

“In accordance with our conference you are directed to proceed, as soon as the other business under your charge will permit, to the Red River in Oklahoma, for the purpose of making an investigation of the question as to whether the lands lying immediately south of the present south bank of Red River in R. 14 W., Oklahoma, are within the State of Oklahoma or within the State of Texas.

“You will understand that the States of Oklahoma and Texas each claim these lands, aggregating some 6,400 acres, to be within its own boundaries, and it is asserted by the Indian Office that some, if not all, of these lands belong to the allotted Indians of the Kiowa, Comanche, and Apache tribes. You are directed to make this investigation for the purpose of determining whether such lands should be included in any suit to be instituted by the United States to restrain claimants under the mineral laws, or assignees or grantees from the States of Oklahoma or Texas, or either of them, from drilling for oil and gas purposes thereon.”

Mr. Burtness. That letter is also written on the theory that the rights which they were particularly protecting were the rights of the Indians.

Mr. Dyar. Yes, sir. That clears up the matter.

Mr. BURTNESs. In other words, this correspondence proves conclusively that the statements made by those who are interested in the passage of this bill were correct, namely, that until these men filed their different applications under the mining act, etc., and called the matter to the attention of the Department of Justice, they apparently had never claimed that this land belonged to the United States, and even for months after those things were called to the attention of the Government departments they did not claim the lands as belonging to the United States but proceeded rather upon the theory that they belonged either to the tribe of Indians living next to them or to the allottees.

Mr. DYAR. There could be no question of ownership by the tribe, but by individual Indians.

Mr. BURTNESS. Senator Gore referred to some bill which had been filed which would indicate that the lands belonged to the Indian allottees.

Mr. DYAR. Yes, sir.

Mr. Burtness. During all the months that that claim was made by the Department of Justice, and when they felt that was a matter for careful investigation, were they acting in good faith in doing so and acting in good faith when they overlooked the fact, as the Supreme Court has now held it to be, that this land actually was land that belonged to the United States?

Mr. Dear. Well, your statement of that is not quite a fair one. We were investigating all the questions before us, and I do say that when it was suggested by the Indian Department

Mr. BURTNESS (interposing). I realize that, but in your investigation you were proceeding for months upon the assumption that the interests that it was up to the United States to protect were the interests of Indian allottees.

Mr. DYAR. Yes, sir.

Mr. BURTNESS. Now, what I am interested in, if you have it in your files—I do not mean in detail-is the date when the Department of Justice abandoned that theory and proceeded on the theory that the land was land which belonged to the United States and not to the Indian allottees.

Mr. DYAR. This file, unfortunately, ends here, and I did not think much about that, but as late as, I think it was, the first day of December, 1919, a letter was written


from the Department, -I ought to have that date, but I believe it was after the 1st of January, 1920, a letter was actually written from the department giving final instructions to Mr. Fain to institute a suit on the theory that the Indian allottees did go clear across.

Mr. LARSEN. If I understood Mr. Fain's first letter there was somewhat of an impression on his mind at least and you might consider him an official of the Department of Justice—that these lands belonged to the United States.

Mr. Dear. Well, the very truth about it is
Mr. LARSEN (interposing). So there is one official of the Department of Justice.

Mr. Dyar. In the next volume is a memorandum prepared by me, one which must have been in October or November, and it ought to be here. I read it the other day and it may be in the next file, because we were so busy on this thing and kept our force so busy that when the papers went to the files they were not arranged in consecutive order.

The Chairman. Do I understand you to say that as late as December, 1920, your theory was that it was Indian land?

Mr. Dear. There was a letter which went out directing the United States Attorney to bring suit on that theory.

Mr. BURTNESS. Was that in 1920?

Mr. GORE. The Judge must be in error as to the date. That must have been in January, 1920.

The CHAIRMAN. You said the 1st of December, 1920.
Mr. Dyar. No; I said January, 1920; early in January, is my recollection, 1920.
Mr. LARSEN. There is a statement from Mr. Fain as regards that.

Mr. DRIVER. Before you take that up will you permit me to interrupt you? Did Mr. Tellier make a report after he was directed to make this investigation?

Mr. Dyar. Yes; he made a long report.

Mr. Driver. In that report did he offer to the department the suggestion of the possible ownership of the Government, or did he make any recommendation?

Mr. Dyar. My recollection is that his report did suggest that the south half belonged to the United States, but before he made that report-and that is why I told you these files were not consecutive-he came to Washington with all his information, all his data, and made up his report in Washington, and he covered not only the original thing but the views of undoubtedly a half dozen of us, because we were all working together; we worked out the various theories and ran out the legal end of it. But Mr. Tellier, having started the thing, went on and made a complete report which embodied the suggestions of a good many others. I made a memorandum, and the first time I was called on for anything in this case, I think, must have been in October or November of 1919. Theretofore I had not had anything to do with the

And my memorandum was to the effect that the Indian rights and the purchasers, the white purchasers of Indian lands, took only to the line of the Indian reservation in the middle of the river and no further, and that the south half of the river belonged to the United States, and that was the view which finally prevailed. But whether or not that had anything to do with the filing of Oklahoma’s bill on the 8th-well, they filed it in the court or asked leave to file it in September, 1919.

Mr. TESTERMAN. October.

Mr. DYAR. And the court allowed the filing of it on the 8th,of December, 1919, in Oklanoma v. Texas, and that was the beginning of this suit. Then after that bill was filed there was some new objection to including in our suit the flood plain lands on the south and we had a hearing at the department before a number of our lawyers; a number of claimants were represented, and the Assistant Attorney General in charge wanted to be very sure because he knew it was such a serious thing to interfere with the claims of these people over here holding under Texas patents, and he wanted to be



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