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very certain before proceeding. He had arranged, himself, to go down on the 10th of December, 1919, to take a last view of the land and make up his mind, but something intervened and I was sent in his place. I went and I walked over that flood plain for two or three days; I spent two or three days there with Mr. Tellier. He went for the purpose of accompanying me, as well as Mr. Fain and some of our ecologists and physiographers. I looked it all over and I came back and made a verbal report.

Mr. BURTNESS. Was your trip down there before or after the United States district attorney was instructed to file this action on the theory that the Indians were the owners?

Mr. DYAR. I can not tell you because we never got anywhere with that at all. As soon as Oklahoma filed her bill we did not go any further down there. Now, that makes me think I may be mistaken about the date of that letter instructing the United States attorney to bring suit down there on that theory, because I think as soon as the Oklahoma suit was filed on the 8th day of December, we must have temporarily abandoned all idea of a suit immediately down there.

The CHAIRMAN. Mr. Tellier went down pursuant to instructions contained in your letter of August 7, 1919.

Mr. DYAR. Yes, sir.

The CHAIRMAN. Was he the first man you sent down?

Mr. DYAR. No; Mr. Fain was there, and I have read these letters from Mr. Fain. The CHAIRMAN. I mean on the ground.

Mr. DYAR. Mr. Fain had been there two or three times and looked it over, and Mr Fain said that he thought that land,-do you not remember that letter of, I think, February 25th, 1919, when he was down there? It is in the record.

Mr. GORE. But he did not say it belonged to the United States; he said if it belonged to the United States.

Mr. DYAR. Now, let us come to this matter. The United States Government and the Department of Justice

The CHAIRMAN (interposing). Well, Mr. Dyar, in that connection I want to call your attention to your letter:

"The United States itself began investigations upon the ground early in the spring of 1919. From the 7th day of August of that year it had upon the ground continuously a corps of surveyors and investigators preparing data for the assertion of the claims of the United States."

Mr. DYAR. The 7th day of August is a mistake; I gave the date of the letter instructing him to go there but he did not go there until the 14th.

The CHAIRMAN. The impression left in my mind or the deduction I made was that you were down there making the claims of the United States as they were finally announced by the Supreme Court.

Mr. DYAR. No.

The CHAIRMAN. That is an erroneous deduction from this language. Mr. DYAR. I think so; I do not think we intended to convey that idea. Colonel ROOTE. I think I can throw some light on this, if you will permit me to do so. The CHAIRMAN. I have all the light I want upon this proposition. I just wanted to dispel any inference that might be taken from this language in the letter to the effect that the language I have just read indicates that you had people down there making the claims that the Government now makes.

Mr. DYAR. No; but I did mean to infer that we made claims that would exclude the placer miners at all times.

Now, I just want to say that when we get a big proposition of this kind in the Department of Justice it may be months before a final decision is made as to just what we will do and what claims we will make and, as happened in this case, it is very frequently the case that we differ among ourselves, but we keep at it until we finally decide the decision being made either by the Assistant Attorney General in charge

or the Attorney General himself, and the Attorney General himself finally authorized this suit—what it is our duty to do and what the probabilities of success are.

The CHAIRMAN. When did the clouds finally clear up in the Department of Justice? Mr. DYAR. As I say, I was down there on December 10th, 1918.

The CHAIRMAN. 1918?

Mr. DYAR. 1919. When I came back we decided to immediately go ahead with the suit. Now, whether the theory was decided at that time I cannot say, but Oklahoma had filed her bill and I immediately began-I was then placed in charge of the suit in the office-drafting a bill of intervention by the United States. I could not fle it until after Texas had replied to Oklahoma, because we would not know where Texas filed her answer on March 1st or 2d, 1920, and our bill of intervention was then immediately completed. I finished the draft and we filed on the 29th day of March.

we were.

Colonel ROOTE. The 29th of March.

Mr. DYAR. The 29th day of March, 1920, and immediately afterwards we applied for a receiver and he was appointed, including the whole thing.

Mr. BURTNESS. And in that bill of intervention you set up ownership in the United States?

Mr. DYAR. Yes, sir. Mr. Green the other day stated that we never did claim ownership in the United States until after the first decision. I was astonished to hear him make that statement.

Mr. GREEN. You are wrong about that and I beg your pardon. If I said that I want to correct it. I said until after they first filed their intervening petition. My understanding is that when the intervening petition was filed in 1920 then the ownership of the United States, as guardian of the Indians, was claimed. It was twice amended, and on the second amendment it asserted ownership in fee of the United States. That is what I meant to say, and I believed that to be correct.

Mr. DYAR. You are utterly incorrect, because that bill was not twice amended. Mr. GREEN. I said the bills would show that—that is, your intervening amendments would show that. I did not mean to say anything wrong to the committee.

Mr. GORE. If Mr. Dyar will pardon me, I think Mr. Green's error grew out of this fact. A few moments ago you read an advertisement on behalf of the school land board of Oklahoma advertising the Red River bed for sale as the property of the State of Oklahoma. Now, Mr. Fain did institute a suit in the Western District of Oklahoma to restrain the school land board from selling the river bed pursuant to that advertisement, and in that bill, on which he obtained an injunction, he did allege ownership on behalf of the Indians.

Mr. DYAR. If you please, Senator, I think you are mistaken in that. I recollect that he prepared such a bill, a separate bill, and that was the first thing on which he asked instructions. He wrote the Department and said that the superintendent of the Kiowa Agency had asked him, through instructions from his office, to bring suit against Oklahoma to restrain her from selling the bed of Red River in front of the Indian allotments. He prepared a bill and I have a copy of it here, but my very strong belief is that that was never filed because they came to an agreement. Am I wrong about that?

Mr. TESTERMAN. You are wrong. They got a temporary injunction. The CHAIRMAN. That is not so important. The one main thing that stands out as important to me is that as late as the spring of 1920 you were all more or less at sea. Mr. DYAR. We were more or less at sea and we could not get together and we felt the thing was so important that we should not proceed until we felt sure of our ground. Now, as to the river bed, it was decided in our minds long ago that we were going to claim it for somebody to the exclusion of the placer miners.

The CHAIRMAN. When did Mr. Green appear on the scene?

Mr. DYAR. I could not say definitely, but Mr. Green appeared in my office several times, but I do not know just when first.

Mr. GREEN. About the time the first petition was presented for a suit?

Mr. DYAR. You are willing to acknowledge from this that you are all wrong about having induced us to begin suit, are you not?

Mr. GREEN. You did not begin the suit until we begged you to come into the suit; we prayed to have the Department of Justice come into the suit that was brought between Oklahoma and Texas, because we had to rely upon this land being United States land in fee or we had acquired no title by location. That is what I meant to say.

Mr. DYAR. Well, I think it is perfectly fair to say that your prayer or your request had very little, if any, influence on the department, because we were investigating all the time and we made up our minds entirely without suggestions from the outside. Mr. GREEN. I did not say that.

The CHAIRMAN. When did you become associated allies against the entente of Texas and Oklahoma. You referred to that the other day, that you went in together and they put up some money for you. When did that take place?

Mr. DYAR. No; the placer miners never paid any money for us.
The CHAIRMAN. I understood somebody to say they paid $300.

Mr. DYAR. No; that had nothing to do with it. When the record of the first hearings came in to the Supreme Court and was filed to be printed, the clerk of the court got some crochet in his head that the United States must pay into the clerk's office the money to have that record printed before he would send it to the printer. Judd & Detweiler are the printers of the Supreme Court and it had to be paid or he would not send it. Our accounting officers said they could not put up the money in advance, and they could not. You know how the Government is tied up; our hands are absolutely tied. So the record lay there; eveybody was anxious to get the case heard but he would not print it, and in that emergency Colonel Roote, or somebody, wired some money to him, without the knowledge of the Department of Justice, to pay for the printing of the record, for which the United States should have paid, and which we have been trying to pay back ever since. That is the only bill ever paid.

Colonel ROOTE. It is a minor matter, but let us be accurate as to the amount. You said it was $300, but I paid $596.88 for the Government, and you promised a few days later that you would pay it back, but I have not gotten it yet.

Mr. DYAR. But I presume you are willing to testify that it has not been because of lack of effort on my part.

Colonel RooTE. No.

Mr. BURTNESS. Colonel Roote, you are in exactly the same position as thousands and thousands of taxpayers of the country who have claims for refunds under the internal revenue laws.

Colonel ROOTE. I merely wanted to get the correct amount as long as he said it was $300,

Mr. DYAR. I want to show what was contended in our bill of intervention, which was filed at the end of March, 1920.

"In the Supreme Court of the United States. The State of Oklahoma, complainant, v. The State of Texas, No. 27. Original. Motion on behalf of the United States for leave to intervene. The Attorney General, on behalf of the United States, moves the court for leave to intervene in the above-entitled cause, and for that purpose to file herein its petition, a copy of which is attached hereto. As cause for this motion it is shown "

The CHAIRMAN. Is it necessary to read all of that? Can you not state the substance of it?

Mr. DYAR. I think it is necessary to read one page.

"As cause for this motion it is shown:

"1. The cause involves a controversy and conflict of jurisdiction between two States which affect the public tranquility and the interests of the United States and all the States of the Union.

"2. The cause involves the construction of a treaty of boundaries made between the United States and a foreign nation upon which depends property rights of the United States and of its Indian wards of great value and importance.

"3. The cause involves conflicts of jurisdiction between the courts of two States which conflicts hinder and embarass the United States in the protection of its own property and that of its Indian wards."

The CHAIRMAN. Why are you referring to the Indian wards there?

Mr. DYAR. Because we were claiming for the Indian wards as against Oklahoma, which claimed the whole river bed, that they owned the title by riparian right to the middle of Red River, and we were claiming that against numerous placer miners who had plastered claims over the north as well as the south half.

The CHAIRMAN. Does that indicate that you were not absolutely clear as to your theory?

Mr. DYAR. Not at all; it shows we were clear on our theory and we set it out in the first paper we filed in this case.

The CHAIRMAN. Maybe I did not understand your former answer about Indian wards. What were you predicating on that?

Mr. DYAR. We were asserting on behalf of the Indian wards that they took title, by riparian right, as far as the middle of Red River but no further.

The CHAIRMAN. No one was contending for ground north of the middle channel. Mr. DYAR. Yes; there were placer miners located two or three deep all over the top of that.

Mr. DRIVER. And did not the advertisement you have just read offer to lease or sell all of those lands?

Mr. DYAR. Yes; the State of Oklahoma was offering to lease the whole river bed. Mr. GREEN. You are wrong about that; it was only half of the river bed.

Mr. DYAR. I want to read further, and this is one of the allegations:

"The United States is still the owner in fee simple in its own right and free from any lawful claims of Indian allottees or white purchasers of a large part of the bed of Red River and of numerous islands therein and of lands which were islands at the date of the ratification of said treaty of 1819 or which formed as islands thereafter, and have since become connected with the south bank as a result of the abandonment by the river of the channels which formerly separated such islands from the south bank."

Mr. BURTNESS. That is certainly very specific as setting up the contention that this was United States land.

Mr. DYAR. Now, you must remember that when we drew this bill we could not make any private claimants defendants and if we had done that it would have ousted the jurisdiction of the Supreme Court of the United States. We were suing the State of Texas and the State of Oklahoma-intervening as against both of them. We sex up the existence of these mining claims and that there were claimants under Texas, claiming parts of the river under Texas, but we could not make such specific allegations against them as would enable the court to say, "We can not determine this controversy without the presence of these other parties." So it was a delicate job to so formulate the allegations as not to lead up to that possibility.

The CHAIRMAN. Where was the case when you intervened?

Mr. DYAR. In the Supreme Court of the United States; it was an original case; it was a suit between two States, which can not be brought in any other place, and we intervened in the Supreme Court. Now, we did later amend this bill, which presented a controversy between the United States and Texas and another controversy between the United States and Oklahoma. On the original bill and the reply of Texas and the intervening petition of the United States the case was set down on the specific question as to whether the line of the boundary between the two States was along the middle of Red River or along the south bank. That was heard and decided separately from all

other issues, and was preliminary to all other issues. After that was done and the court held that the boundary followed the south line-and the court rendered that decision April 11, 1921—I immediately prepared an amended bill, or had prepared an amended bill in advance, because these private parties had all come in as intervenors, and then they came in by leave of court and the court could take jurisdiction over them and their rights, by reason of the fact that the lands were in its custody through its receiver, and these parties came in voluntarily and set up an interest in them; therefore they were claiming something the court had in its own possession and the question of jurisdiction disappeared. As soon as they were in we filed an amended bill setting up our rights against all the intervening parties.

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Mr. DYAR. Before the adjournment of the court for that term. This was in April and very shortly afterwards I filed the bill; I had the bill practically prepared beforehand, anticipating that the court would decide just what it did. Then we got the issues stated between the United States and all these private claimants, the case was set down for hearing on those issues. This five-volume record was taken, in which these placer mining claimants and the north shore riparian, claimants set up and proved their claims; that was argued and decided, and then the third issue was as to what was the south bank of Red River, and that was decided the other day. Mr. BURTNESS. Did you give the date of your petition of intervention? The CHAIRMAN. March 29, 1920.

Mr. BURTNESS. I would like to have leave given Mr. DYAR to insert as a part of the record the very first memorandum, opinion, or in whatever form it may have been, made by any member of the Department of Justice to the effect that this land south of the medial line was, in the opinion of the person making the memorandum or rendering the opinion, the property of the United States.

Mr. DYAR. I will furnish you with such a copy.

Mr. BURTNESS. I think it would be well to have that in the record.

Mr. DYAR. I think I was the first one who took that position, but it was nothing new because that idea was abroad in Oklahoma and elsewhere.

The CHAIRMAN. That was between the 1st of January, 1920, and March 29, 1920, was it not?

Mr. DYAR. Yes, but my memorandum was issued earlier than that. However, others took a different view and the views were all mulled over.

Mr. BURTNESS. I would like to get the first view to that effect from any person connected with the Department of Justice.

Mr. DYAR. I will look through the files, find it and send it to you.

The CHAIRMAN. You gave instructions on the 1st of January, 1920–

Mr. DYAR (interposing). I want to ask the privilege of correcting that date; I want to get the exact date. I thought it was here, but it is not.

The CHAIRMAN. I will give you my understanding. About the 1st of January, 1920, you gave instructions to proceed on behalf of the Indian allottees and riparian owners going across the river.

Mr. DYAR. Before we leave that subject I would like to inquire what the importance of that is in the minds of the committee so that I may devote myself to it. It seems to me it is perfectly clear that to take the position that the riparian owners had title clear across, absolutely excluded the placer miners, excluded persons claiming under the Sam Sparks lease, excluded everybody in Texas, and excluded the State of Oklahoma.

The CHAIRMAN. It excluded the placer miners, but you did not contend for that yourself?

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