NOVEMBER 1, 1919.

MEMORANDUM RE RED RIVER OIL LANDS.

Referring to the memorandum of Mr. Fain for the terms of the treaties in extenso, I think we may regard the following as settled:

1. The boundary between Oklahoma and Texas is "along the south bank" of the Red River.

This was directly involved and expressely decided in the Greer County case (162 U. S. 1).

Just where the line of "the south bank" was located and is to be located now, depends, of course, upon the facts and the law relating to accreations and avulsions. 2. As a consequence from the foregoing, Texas has neither political jurisdiction nor ownership of soil north of the south bank, wherever that may finally be located.

3. The political jurisdiction of Oklahoma extends to said south bank; but, as the river is nonnavigable, she has not the ownership of the soil in the river bed.

If there can be any doubt of these conclusions, such doubts should not affect our decision as to the positions we shall now take; because we certainly would not hesitate to assert the foregoing propositions in the courts.

4. The description contained in the cession by the United States to the Choctaws, and in the various treaties with them and the Chickasaws have become wholly immaterial now, because, by the Treaty of April 28, 1866, they receded absolutely to the Government all their right, title, and interest in the lands lying between the ninetyeighth and one hundredth degrees of west longitude.

This was expressly held in United States v. Choctaw and Chickasaw Nations (179 U. S. 494, pp. 536, 537).

The strip lying between the ninety-eigth and one hundredth degrees was thus receded to make room for the Kiowas, Comanches, and other tribes or bands, some of whom were already located on these lands. When, by the treaty of October 21, 1867 (15 Stat. 581), their location was finally fixed, new language was used to describe their southern boundary along the Red River, namely:

"Thence down said north fork, in the middle of the main channel thereof,

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to the main Red River; thence down said river, in the middle of the main channel thereof to its intersection with the ninety-eighth meridian of longitude west from Greenwich"; thence north along that parallel, etc.

In view of the foregoing specific description, I don't see any reasonable ground for claiming that the boundary of these Indian reservations extended beyond the thread of the stream. As the United States had ultimate title to the soil of the river bed clear to the "south bank," this left a strip of land belonging to the United States between the thread of the stream and the "south bank," so long as the lands north of the river remained Indian lands.

The next change in the status of the land on the north bank was wrought by the agreement of October 21, 1892, between the Comanches, Kiowas, and Apaches, as ratified by Congress on June 6, 1900 (34 Stat. 213).

By this agreement and for a money consideration the three Indian tribes receded to the United States all their lands between the two parallels "subject to" certain terms and conditions.

The pertinent parts of the ceding language are as follows:

"Subject to the allotment of land in severalty to the individual members" of the three tribes "and subject to the setting apart as grazing lands for said Indians, 480,000 acres of land as hereinafter provided for," the said "Indians hereby cede, convey, transfer, relinquish, and surrender forever and absolutely, without any reservation whatever, express or implied, all their claims, title, and interest, of every kind and character in and to the lands embraced in the following described tract of country," etc. The description of the southern boundary of the lands ceded was in the same language as the treaty of 1867, viz: "Thence down the said Red River, in the middle of the main

channel thereof" to the ninety-eighth degree of west longitude. This agreement was ratified, as above stated, on June 6, 1900. Shortly thereafter the Secretary of the Interior set aside 480,000 acres of grazing land in several tracts. Tract No. 1, known as the Big Pasture, was located along the bank of Red River, in the region of the subsequent oil developments, and embraced all the lands with which we are here concerned. It would seem that some allotments were made under this treaty out of portions of the ceded territory not embraced in the Big Pasture.

Articles XI of this agreement provided that should the Indian allotments or the lands opened to settlement under the agreement prove to contain mineral deposits, such deposits "shall be open to location and entry, under the existing mining laws of the United States." But no allotments were made and no lands were opened to settlement under this treaty out of the lands embraced in the Big Pasture. On the contrary, the Big Pasture lands were allotted and sold under a subsequent act of Congress, namely, the act of June 5, 1906 (34 Stat. 213).

This act, in its first section, repealed so much of the agreement of 1892 (ratified in 1900) as provided for setting aside the 480,000 acres of grazing land, etc. And by its second section provided that these pasture lands

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"shall be opened to settlement by proclamation of the President and be disposed of upon sealed bids or at public auction to the highest bidder under the provision of the homestead laws of the United States and under the rules and regulations adopted by the Secretary of the Interior," etc.

The lands were not to be sold for less than $5 per acre, payable in installments, and after five years any lands remaining unsold were to be disposed of for cash under rules and regulations to be prescribed by the Secretary. The proceeds of sale were to be placed in the Treasury to the credit of the Indians.

But prior to the sale of any lands under proclamation of the President, allotments were to be made to Indian children born since June 6, 1900—being the date of the ratification of the agreement of cession.

The only allotments with which we are concerned are therefore those made to such children out of the Big Pasture lands.

There is nothing in the act of June 5, 1906, to subject the allotments, or lands sold, to the mineral laws, or others, to quality the titles acquired, and the Secretary of the Interior has expressly held that allotments made from the Big Pasture lands are not subject to the mineral laws. 35 L. D. 421.

Some of the Big Pasture lands bordering the Red River were allotted to Indians and some were sold to whites.

I assume that Indians receiving allotments on the banks of a stream would have the same rights in the bed thereof as would white purchasers of public lands similarly situated; that is, both would be governed in this respect by Rev. Stat. Sec. 2476, or by the local law.

If this is so, then the Indian allottees and the white purchasers of Big Pasture lands stand in the same position with reference to ownership in the bed of Red River. Rev. Stat. U. S., Sec. 2476, declares that:

In all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both.

This statute was construed in Railroad Co. v. Schurmeir, (7 Wall. 272) and held to mean that each took title to the thread of the stream, in accordance with the rule of the common law.

The rule prevailing in Oklahoma is embodied in Rev. Stat. Okla. Sec. 6639, and is expressed in the same language as the Federal statute; and doubtless subject to the same construction. The south boundary of the Indian lands at the time they were allotted and sold-was also in the middle of the main channel. It was specifically located there by the treaty of 1867; and it is unnecessary to determine whether or not this reservation boundary was wiped out by the agreement of 1892-1902,

because, when the Secretary of the Interior established the grazing land reserves, as directed by that treaty, he placed the southern boundary of the Big Pasture in the middle of the main channel. The selection was made by an agent of the Indian Bureau. The description of the southern line reads as follows:

"Beginning at a point where range line 10 W. (between townships 10 and 11) intersects the mid-channel of Red River; thence west along mid-channel of said river to that point where," etc.

The selection, with this boundary, was approved by the Secretary by letter of April 22, 1901.

There seems to be no doubt, therefore, that this big pasture must be considered as an Indian reservation. It formed part of the consideration for the cession of 18921900, and the lands to be included therein were not to be paid for by the United States. When these pasture reservations were broken up on June 5, 1906 (by simple act of Congress, 34 Stat. 213), it was provided that Indian children born since the ratification of the agreement of 1892, i. e., born since June 6, 1900, should receive allotments out of it, and that the rest should be sold "upon sealed bids" at not less than $5 per acre, etc.; the proceeds to go to the tribes. Thus these lands were allotted and sold as Indian reservation lands are usually allotted and sold.

Up to the time, therefore, when the lands of the Big Pasture Reserve passed to private individuals by allottment and sale, I see no reason to doubt that the river bed from the middle of the main channel to the Texas border on the south shore belonged to the United States.

What happened, then, when the lands passed into private ownership? Did the private owners take only to mid-channel, where the Indian boundary and both the Federal and local law would have placed them if the case had been one of a nonnavigable stream bordered on both sides by lands originally owned by the United States? Or did they take to the limit of the Federal ownership on the south bank? There is nothing in any of the treaties or the acts of Congress to show the intent of the Government, other than the mere fact that its own title extended to the south bank.

A similar situation existed as between Georgia and Alabama, except that there was no Indian reservation or boundary to complicate the matter. Georgia was one of the original States and therefore had both political jurisdiction and right of soil in all lands within her borders. She claimed land far to the westward, but after the Revolution following the example of other States, she ceded to the Government all lands west of the Chattahoochee River, and her western boundary was finally fixed as the west bank of that river. The State of Alabama was formed from part of the territory thus ceded; and in Howard v. Ingersoll, 13 How. 380, there were involved private rights in the bed of the river and on the western bank. But the case was presented and decided solely as a question as to the exact location of the boundary line along the western bank, it being taken for granted (and was perhaps conceded) that the party deriving title from Georgia took to the boundary line.

The Supreme Court of Georgia in Young v. Harrison, 6 Ga. 130, seemed to proceed on the same assumption. At least it is not clear that the question was directly involved. However, in the later case of Jones v. Water Lot Co., 18 Ga. 539, the question was involved, and the court held that a grant from Georgia of lands bounded by the river extended to the State line on the western bank. The court also said that it had decided this question in Young v. Harrison, supra. The opinion then proceeded: "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."

This quotation comprises all the reasoning of the court on this question. The "general rule" referred to is evidently the general rule of the common law which carries a riparian proprietor to the thread of the stream, and, the court simply assumes that where the granting soverign owns the soil to the farther bank the grantee would take to that line.

Berry v. Snyder, 3 Bush (Ky.) 266, involved lands granted by Virginia while she still owned the lands now comprised in the State of Kentucky. The grant was made, however, after Virginia ceded to the United States the lands northwest of the Ohio. The lands in controversy comprised a small island or sand bar in the Ohio lying in front of the premisse granted and close to the Kentucky shore. No question was involved as to any lands lying beyond mid-channel. But it was necessary to decide whether the title stopped at the shore or extended into the river. The court discussed the question as to whether the common law rule carrying the grant to the middle of the stream was applicable; and held that it was; and said the grantee took to mid-channel. No reference was made to the fact that the title of Virginia extended to the north shore. Under a similar state of facts this statement of the law was followed in Miller v. Hepburn, 8 Bush, 326.

It is easily seen that both the Georgia and Kentucky cases are very unsatisfactory on the question here involved. About all that can be said is that they fairly balance each other.

Little light is shed upon this subject by the textbook writers. In the Eleventh Edition of Kent's Commentaries (Comstock), a note is appended at a point in the text where the common law rule carrying grantees to the middle of the stream is discussed. This note merely states that as the boundary of Georgia is on the west bank of the Chattahoochee "the rights of proprietors therein extend beyond the middle of the stream to the bank." The author of the note simply cites Jones . Water Lot Co., supra, and makes no comment.

Gould on Waters, discussing the common law doctrine in the various States, refers particularly to Georgia, and says:

"In the last named State it is held that, as the western bank of the Chattahoochee River, and not the river itself, is the boundary between that State and Alabama, the title of the riparian owners in Georgia, whose lands border upon this river, extends to the opposite bank, thus including the entire river bed, and is not limited to the thread of the stream."

The author simply cites the two Georgia cases above mentioned, with two later ones which simply take the law to be as stated therein without comment. Moses v. Eagle Mfg. Co. (62 Ga. 455), and Cook v. Winter (68 Ga. 259).

Farnham on Waters and Water Rights (vol. 2, p. 1454), also discussing the common law doctrine, says:

"If the sovereign does not, in granting land bounding on a stream, reserve any title to himself, the presumption is that the boundary is upon the next adjoining owner, and his holding being on the opposite side of the stream, each tract being the boundary of the other, the point of contact is necessarily carried to the center of the stream. If the sovereign making the grant has title to the opposite shore, his grant will carry to that point."

The only citation to the last sentence is Jones v. Water Lot Co., supra.

There is no doubt, of course, that the Georgia decisions establish the law for that State. But as authority here, they must depend largely on the force of the reasons by which they may be supported. They give practically no reasons themselves. If the reason given by Farnham is valid—namely, that it is presumed that the grant shall be bounded by the line of the next owner, unless there is something in the terms

of the grant to indicate the contrary, still the question arises whether the general rule prescribed by the Federal statute to make Government grants extend to the middle of the stream, is not an indication of intent to so limit these grants. Also, if, as I have above concluded, these lands were allotted and sold as Indian lands bounded by the middle of the channel, would not that further indicate an intent to except the land south of the middle of the river?

Of course, it may be said that the Federal statute contemplates only streams where the title to lands on both sides is derived from the United States. I am not entirely clear, however, that this act can thus be put aside, and on the whole I am inclined to think that because of this statute and the existence of the Indian boundary, if for no other reasons, the allotments and the lands sold go only to the middle.

If we are inclined to take this view, perhaps we can strengthen it by invoking the old rule that grants by the sovereign are to be strictly construed in its favor. This rule, of course, does not apply to grants made under the general land laws, because they are based on a liberal policy of their own. But in a case like this where the general land laws are inapplicable and the situation is unique, it does not seem unreasonable to rely upon that doctrine in the absence of any other principle which will solve the question.

On the other hand, I suppose it might be said with some reason that, as at the date of these grants there was nothing to indicate that the bed of the river had any value either to the Government or any body else, it should be considered as passing with the granted lands on the principle of which United States v. Chandler Dunbar Co.. (209 U. S. 447), is an illustration; namely, that small islands "little more than rocks' rising slightly above the water level, unsurveyed and of no apparent value, pass to the riparian grantee along with the real bed of the stream. Both that case and the situation here, however, show that things considered of no value at one time may really be of very great value because of unforeseen events or discoveries; and therefore furnish a good reason for construing Government grants strictly in favor of the Sovereign.

My feeling is that the law applicable is so doubtful, that we are free to decide what position we shall take, rather on the grounds of policy than of strict law, unless, because of the relationship of the Government to the Indians, it is our duty to support their interests rather than the mere pecuniary interest of the Government.