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Mr. Dyar. Those are on riparian lands, I guess.
Colonel RootE. And part of the money on hand came from those wells. Now, of the $3,200,000 the receiver had on October 16—wasn't it?-I dare say there is more than half of that would come from these other wells to north and to the east, and then you must return and the flood-plain wells. I suppose there will be a million and a half left.
Mr. DYAR. It will be more than that.
Colonel RootE. Oh, no; I do not mean that; but it would be nothing great. If we could get what we believe we are entitled to, what we are contending for and what we believe we ought to have, we will get some money.
The CHAIRMAN. Well, what do you believe, roughly, there will be left after these deductions are made?
Colonel RootE. Well, more than a million dollars.
Colonel RootE. Oh, no. I said more than a million; there are three millions in the hands of the receiver.
The C'HAIRMAN. The Major interrupted; he said coming to you and you said yes.
The CHAIRMAN. And then how much do you figure the total sum in the hands of the receiver, to divide up, will be after making these necessary deductions?
Colonel Roote. Something more than $2,000,000.
Mr. Dyar. I just wanted to demonstrate the economy practiced by the Department of Justice in the matter of counsel fees, as compared with the receiver and with other claimants.
The CHAIRMAN. Mr. Barbour suggests that you might include the members of the committee; that is, those who are attending to-night.
Mr. BARBOUR. Include them in your figures, Major. (Laughter.]
Mr. DYAR. The receiver himself gets $90,000 and his attorneys get $43,500, as his advisers, etc. I do not mean to criticize that, but the total counsel expenses of the Government for winning practically $3,000,000 are practically $38,706; so that you see the Department of Justice is entitled to credit for having practiced economy in counsel fees.
The ('HAIRMAN. Well, Warren Hastings said “When I consider my opportunities, I marvel at my moderation.” [Laughter.]
The hearings will close.
DEPARTMENT OF JUSTICE,
Washington, D. C., January 29, 1923. To the Chairman of the Committee on Public Lands, House of Representatives.
MY DEAR MR. SINNOTT: You will remember that I was very uncertain as to the time when we instructed the United States attorney to file a suit for the protection of Indian riparian rights on the theory that those rights extended clear across the river, and was given leave to ascertain and put in the true facts in that regard after the hearing closed.
I now send you a copy of the letter in question.' It was dated nearly seven months earlier than I thought, namely, on May 5, 1919; and as some members of the committee seemed to attach so much importance to this letter and its date, I suggest that it be incorporated in the record.
I also transmit a copy of a telegram just received from John A. Fain, who at the time was United States attorney for the western district of Oklahoma. This telegram shows that he actually filed a suit under those instructions on July 5, 1919, but that Oklahoma immediately agreed not to sell or lease any riparian lands of Indian allottees, and no summons or process was ever issued and the suit was abandoned.
Mr. Burtness, you will remember, asked that I give the date and a copy of the first memorandum in which a member of the department came to the conclusion that the south half of Red River belonged to the United States. As I stated to the committee, this was one of the questions as to which we differed among ourselves and had been discussing for a considerable time. I send you a copy of the memorandum of my own dated November 1, 1919, which, as our files indicate, was the first formal opinion given by any member of our force that the south half of the river belonged to the United States. I do not claim any originality for this, because we had been discussing it pro and con before that date.
I have again looked through the files, and I do not find that a single one of us ever expressed any opinion that the mineral laws applied to this land. Sincerely yours,
W. W. Dyar,
Special Assistant to the Attorney General. Inclosure, No. 143113,
OKLAHOMA CITY, OKLA., Jan. 26, 5.20 p. m. The ATTORNEY GENERAL, Washington, D. C:
Telegram received. I filed suit July 5, 1919, United States District Court, Western Districy Oklahoma, for the United States, behalf Indian allottees north bank Red River, against Commissioners of Land Office, Oklahoma, to enjoin the sale of leases then about to be made covering riparian rights Indian allottees. After suit filed, on same day, defendant agreed not to sell or make any lease covering riparian rights of allottees, and thereafter order of injunction was not insisted upon nor issued and suit was abandoned, but not dismissed. No summons or process was ever issued. Bill of complaint asserted riparian rights of allottees across river bed to south bank in accordance with the opinion of Kearful.
DEPARTMENT OF JUSTICE,
Washington, D. C., May 5, 1919. JOHN A. Fain, Esq.,
United States Attorney, Oklahoma City. Sir: There is herewith transmitted for your consideration a copy of a letter of the 6th ultimo from the Assistant Secretary of the Interior, and therewith a copy of a letter dated January 17, 1919, to the Commissioner of Indian Affairs from the superintendent of the Kiowa Agency, relative to the appropriate action to be taken in regard to the bed of the Red River in Jefferson, Cotton, and Tillman Counties, Okla., referred to in
your letter of February 25, 1919.
From your letter and other communications, it appears that there are various claims asserted to the bed of the river by the State of Texas and persons holding grants thereunder, claimants under the mineral laws of the United States, the State of Oklahoma, and by the superintendent of the Kiowa Agency in behalf of Indian allottees so situated on the ground that the land within the river bed is appurtenant to the allotments. The contention of the superintendent, as you understand it, is that the riparian allottees on the north bank of the river own to the south bank, while the contention of the mineral claimants is that that portion of the bed of the Red River is public domain and subject, therefore, to mineral entry, and you request the advice of this department as to the right to the south half of the river bed in Cotton and Tillman Counties.
It is noted that you say that it is conceded that Red River, at the point in question, and in fact for several hundred miles below, is a nonnavigable stream, and that you are of the opinion that the State of Oklahoma has no just claim to any poriton of the bed of the river except as riparian owners of any school land situated on the north bank of the river in ('otton and Tillman Counties. If the Red River is in fact nonnavigable at this point, your conclusion that the State of Oklahoma has no claim to any portion of the bed thereof, is sound. In this connection there are sent under separate cover the following executive documents containing all the reports of the engineer's office of the War Department having any bearing on the question of the navigability of the river as far west as Denison, Texas:
1. Senate Executive Document No. 42, Forty-fifth Congress, third session.
2. House of Representatives Executive Document No. 75, Forty-eighth Congress, second session.
3. House of Representatives Executive Document No. 53, Fifty-sixth Congress. first session.
4. House of Representatives Executive Document No. 84, Fifty-sixth Congress, second session.
5. House of Representatives Executive Document No. 200, Fifty-eighth Congress, second session.
6. House of Representatives Executive Document No. 193, Sixty-third Congress first session.
7. House of Representatives Executive Document No. à 17, Sixty-fourth Congress, first session.
These reports substantiate what you say is the conceded nonnavigability of this portion of the river.
As pointed out in your letter, the decision of the Supreme Court in United States v. Texas (162 U. S. 1), is conclusive of the fact that the north boundary line of Texas is the south bank of the Red River, and this would seem to finally dispose of any possible claim that the State of Texas, or grantees from that State, might have to the bed of the river.
In Howard v. Ingersoll (13 How. 380), the boundary line between Alabama and Georgia was fixed on a line running along the western bank of the Chattahoochee
River. Howard claimed under a grant from the State of Georgia the right to the bed of the stream and built a dam across the (hattahoochee River from the east to the west bank. Ingersoll had a mill built on the west side of the river near the Alabama line on land that was dry at low water but overflowed at high water. The building of Howard's dam caused the backing up of the water at the mill site of Ingersoll, thus damaging the property. Each brought suit in his own State. Ingersoll, page 414, claimed that the mill was in the bed of the river to the east of the abrupt bank by the prolongation of his north and south boundary line from the bank, which right he claimed “from his being the owner of the land to the bank of the river, as a riparian right.” The court held, page 416, that of that part of the river not navigable, Georgia had both the soil and the jurisdiction, and reversed the case in which damages were awarded to the owner of the land in Alabama. This case would seem to clearly dispose of the claim of the State of Texas, or the grantees from that State, to any riparian rights in the bed fo the Red River.
The question of what riparian rights are appurtenant to the owners of the land on the north bank of the river is not free from doubt, but is is clear that as to the diminished Indian reservation under the treaty of October 21, 1867 (15 Stat. 581), the south boundary thereof was the middle of the main channel of the river. Since the enactment of Section 17 of the act of June 30, 1913 (38 Stat. 92), lands in this former reservation can only be disposed of in the manner authorized by this act, and are not subject to entry under the mineral laws or any other form of disposition than as authorized by the act. Ethel E. Huston, (43 L. D. 531).
The Assistant Secretary calls attention to the provision of the act of June 6, 1900 (31 Stat. 672), which reads as follows:
“That should any of said lands allotted to said Indians or opened to settlement under this act contain valuable mineral deposits, such mineral deposits shall be opened to location and entry, under the existing mining laws of the United States, upon the passage of this act, and the mineral laws of the United States are hereby extended over said lands." and also to the provision of the act of June 5, 1906 (34 Stat. 213), reading as follows:
“That prior to the said proclamation the Secretary of the Interior shall allot 160 acres of land to each child of Indian parentage born since June 6, 1900, whose father or mother was a duly enrolled member of either the Kiowa, Comanche, or Apache tribes of Indians and entitled to an allotment of land under the act of June 6, 1900, opening said Kiowa, Comanche, or Apache Reservations to settlement, said allotments to be made out of the lands known as the pasture reserves in said reservation." As to these sections, however, in Acme Cement & Plaster Co. (31 L. D. 125), Assistant Attorney General Van Devanter, now Mr. Justice Van Devanter, held that where lands on this reservation had been allotted in severalty to an Indian, although mineral deposits might be found thereon, they could not be acquired under the mining law. This opinion, which seems to have been overlooked by the Assistant Secretary, makes it perfectly clear that no mineral claimant can acquire rights on the land allotted in severalty to these Indians.
While the treaty of March 21, 1867 (15 Stat. 581), defines the boundary of the reservation as the middle of the main channel of Red River, and by the treaty of June 6, 1900, known as the Fort Hall treaty (31 Stat. 676), these Indians ceded to the United States their reservation, describing the south boundary line of the same as the middle of the main channel of the Red River, from which it would appear that the Indian tribes relinquished to the United States all of the bed of the Red River between the middle of the channel to the south bank, yet I am of the opinion that the theory advanced by the superintendent of the Kiowa Agency that the riparian allottee's right extended as far into the river as the grantor owned at that time, and thus would extend to the south bank of Red River, is correct.
The situation as to Red River is not unlike that as to the Chattahoochee River above set out, where the boundary of the State of Georgia was fixed upon the bank on the Alabama side of the river. In Young & Calhoun v. Harrison (6 Ga. 130, 141), considering this question, the Supreme Court of Georgia said:
“It is not pretended that the Chattahoochee is at this point a navigable river, where the tide ebbs and flows; such is notoriously not the fact; it belongs to the second class or division in the foregoing enumeration. Now, it is well settled in England, and the doctrine is pretty uniform in this country, that the proprietor of the land on the margin, owns the bed over which the river passes; and though it be nominally and in terms, bounded on the margin, it extends, by construction of law, to the middle of the stream. In this case it reaches to the opposite bank, that being the western boundary of the State. The public right is one of passage, and nothing more, as in a common highway; it is called in the books an casement, and the proprietor of the adjoining land has the right to use the land and water of the river, in any way not inconsistent with the easement."
In Jones v. Water Lot (0. (18 Ga. 539, 541), the Supreme Court of Georgia said:
• In Young v. Calhoun & Harrison (6 Ga. Rep. 130, 141) this court held, that grants of land, bounded on rivers above tide-water, or where the tide does not ebb and flow, carry the grantee to the middle of the river. And that in grants bounded by the Chattahoochee, this riparian right extended to the opposite bank; that, and not the river itself, being the western boundary of Georgia.
And we see nothing to change or modify that opinion. True, the plaintiff's fraction, No. 1, is bounded by the Chattahoochee River; but by construction of law, it reaches to the opposite shore, unless there are expressions in the terms of the grant, taken in connection with the situation and condition of the land granted, which clearly indicate the intention of the State to stop at the eastern edge or margin of the river. We see in the grant to Colonel Jones, the plaintiff, no reservation or restriction, express or necessarily implied, which controls the operation of the general presumption in favor of riparian proprietors, and which makes his particular grant an exception to the general rule.
In Howard v. Ingersoll, supra, Howard, the grantee from the State of Georgia, was held to have as incidental to his grant the right to erect a dam entirely across the Chattahoochee River. Certainly, it can not be said that if the white grantees from the United States on Red River get as incidental to the grant of the upland the entire right to the bed of the river which the United States had, it was intended that the allotment to the Indians of lands on this river should have incident thereto any lesser riparian right than the white grantees acquired, simply by virtue of the fact that the south boundary of the Indian Reservation was fixed as the main channel of the river rather than the south bank thereof.
You might also examine Handley's Lessee v. Anthony, (5 Wheat. 374) and Indiana v. Kentucky (136 U. S. 479).
This matter has been held under consideration for so long that the exact situation calling for relief is not known. You are accordingly directed to immediately report whether or not in your judgment a suit should be instituted to protect the rights of these allottees in and to the bed of the stream between the middle of the channel and the south bank. If you conclude that such a suit should be instituted to enjoin the attempted lease of any of these lands, please prepare the bill of complaint and forward it to the Department for approval before filing. In the meantime, make as full a report as practicable of existing conditions. Respectfully,
F. J. KEARFUL, Assistant Attorney General. (For the Attorney General.)