Mr. DYAR. Yes; because in every case, except two, where lands were ceded by the Indians that language was used, and nearly all of the lands or practically all of the lands constituting the original Territory of Oklahoma, being the western half, were opened to settlement under special acts, nine of them, I believe, and in every one of them that express language was repeated. It was provided in the act creating the Territory that

"Whenever any other lands within the Territory of Oklahoma, now occupied by any Indian tribe, shall by operation of law or proclamation of the President of the United States be open to settlement, they shall be disposed of to actual settlers only under the provisions of the homestead law."

Mr. BURTNESS. That is a provision of the act of March 3, 1891?

Mr. DYAR. Yes, sir.

Mr. BURTNESS. Is that act construed in the decision you have just cited?
Mr. DYAR. No; it is not.

The CHAIRMAN. Is there any decision construing the act which Mr. Burtness mentions?

Mr. DYAR. Well, I do not know about the general statement, but that was something for the future. That was something which was looking forward and announcing a general policy for the Territory, and when they came to do the actual thing they repeated that declaration in every act confirming an agreement with the Indians for the cession of their lands except two; in those cases they went on to say, "and the mineral laws of the United States are extended to the lands hereby ceded." They would not have used that language if they had understood that it applied to the lands generally; so it seems to me absolutely clear.

Mr. BURTNESS. Just so it is in the record at this time, I find that the language of the act of March 3, 1891, is that

"The land shall be disposed of to actual settlers only, under the provisions of the homestead and town site laws (except section 2301 of the Revised Statutes of the United States, which shall not apply)."

Mr. DYAR, I did not recollect that the town site laws were mentioned in that act, but most of the special acts have that provision. However, it is an actual fact that after these declarations that the lands shall be disposed of to actual settlers only there was a subsequent provision in every one of the laws that the town site laws should be in operation, so that there were just two kinds of laws by which lands could be acquired in Oklahoma-the homestead laws and the town site laws. You will find it is unquestionably true that the general policy applied in every case but to those two excepted areas; that that policy was confirmed by the decisions of the Land Office, and that lands in Oklahoma were not open to mineral entry.

Mr. RAKER. Was there not also a provision to this effect:

"That inasmuch as there is a controversy between the United States and the State of Texas as to the ownership of what is known as Greer County, it is hereby expressly provided that this act shall not be construed to apply to said Greer County until the title to the same has been adjudicated and determined to be in the United States."

Mr. DYAR. Yes; and it was adjudicated in favor of the United States, and then Congress passed an act opening to settlement the land in Greer County. The CHAIRMAN. Is any of this land in Greer County?

Mr. DYAR. No; we are away down below.

The CHAIRMAN. Is any of it within the territory or counties covered by these other Land Department decisions? :

Mr. DYAR. Yes. You see, the Kiowa and Comanche Reservations extended along the Red River from the mouth of the North Fork, which is right at the

lower end of Greer County-Greer County is separated from the rest of the State by the North Fork-from the mouth of the North Fork to the ninetyeighth meridian, which is below where we are. That was set aside as an Indian reservation, and continued to be a reservation until June 6, 1900. Then the Indians agreed to cede it, and Congress passed an act confirming the cession. Now, we are always getting into new features, and I suppose there is nothing but to go through with them, and I will have to refer to my brief. Mr. MCCLINTIC. May I interrupt for just a minute?

The CHAIRMAN. Yes.

Mr. MCCLINTIC. I understood the representative of the Department of Justice to say something about mineral rights being referred to in the act which ceded the 480,000 acres of land. I have the act here, but I do not find any reference to mineral rights, placer-mining rights, or any other kind of mineral rights. I think the act ought to be put in the record, because the act will be the best evidence in this case.

The CHAIRMAN. Is that known as the Big Pasture?

Mr. MCCLINTIC. The title of the act is: "An act to open for settlement 505,000 acres of land in the Kiowa, Comanche, and Apache Indian Reservations, in Oklahoma Territory."

Mr. VAILE. And there is no exception of mineral rights?

Mr. MCCLINTIC. None at all and no reference to mineral rights.

Mr. VAILE. And it has been the contention of lawyers in Oklahoma that therefore that land passed under the operation of the general public land statutes of the United States, including the mining statutes.

Mr. MCCLINTIC. To my own personal knowledge-I live in that section of the country-mineral rights have been filed on those homestead claims, and in many instances patents were held up for a good many years until that question was disposed of. I have in mind at the present time a Mr. Hibbard, in my own town, who is now the Republican postmaster, and one of the first acts performed by me after coming to Congress, many years after that section of the country was disposed of, was to get him a patent. In other words, it had been held up many years by miners filing under the placer mining law and the other mining laws.

The CHAIRMAN. And you won out for the miner?

Mr. MCCLINTIC. Yes; I finally won out.

The CHAIRMAN. At what date did you win out?

Mr. MCCLINTIC. I have been here eight years.

The CHAIRMAN. What date was that up in the department?

Mr. MCCLINTIc. I can not give it offhand, but I merely give the man's name.
The CHAIRMAN. How long ago did you say it was?

Mr. MCCLINTIC. Approximately eight years ago.
Mr. VAILE. What was the decision, if you know?

Mr. MCCLINTIC. The decision was finally made by the Commissioner of the Land Office that, inasmuch as the miner had not prosecuted his claim, had not performed the assessment work, and had practically abandoned it, it was then subject to be patented.

Mr. VAILE. Did they then decide that the land in Oklahoma was not open to mineral location?

Mr. MCCLINTIC. Oh, no. The land in that section of the country had been open to mineral location.

Mr. DYAR. Where was that?

Mr. MCCLINTIC. In the Wichita Mountains.

Mr. VAILE. That was not the Big Pasture land; I want to get that clear.

Mr. DYAR. No; that was in one of these regions to which the mining laws were expressly extended by Congress.

Mr. VAILE. Not expressly extended.
Mr. DYAR. Yes; expressly extended.

Mr. MCCLINTIC. I am not clear about that, but that may be true. However, I do not find any reference to the mining laws in this act.

Mr. DYAR. Let me make this clear: That is all in my brief, and maybe we would have gotten at it quicker if I had referred to it in the first place. Here is a quotation from the act which accepts the cession of the Wichita and affiliated bands, and it is the act of March 2, 1895. I state it this way:

"By the agreement of cession, as ratified, the lands were to be disposed of 'under the general provisions of the homestead and town site laws.' But by a separate provision of the act itself (p. 899) it was declared that the laws relating to the mineral lands of the United States are hereby extended over the lands ceded by the foregoing agreement.''

Mr. BURTNESS. This refers to the so-called Wichita Mountains?

Mr. DYAR. Yes; the Wichita Mountain land, and I do not dispute that the mineral laws applied there. Congress, contrary to its dealings with other lands of the State, and knowing that it had excluded the mineral laws from the other lands of the State, in this cession expressly extended the mineral laws to the Wichita Mountains, and the reason was this: There had been some gold discovered in the Wichita Mountains, and they wanted to apply the mineral laws to the gold.

Mr. VAILE. It seems to me we are getting the thing the other way around. In other words, we should not have to show that these mineral laws were expressly extended to these lands, but we should have to show that these lands were expressly excluded from the operation of the mineral laws.

Mr. DYAR. No. We have shown absolutely that they are excluded from all parts of the State except those two parts to which they were expressly extended, and Congress so directed by saying that when the lands were open to settlement "they shall be disposed of to actual settlers only under the provisions of the homestead law." It was so decided by every decision of the Land Office whenever an application was made to them for a patent for mineral claims in Oklahoma outside of the two excepted areas.

Mr. VAILE. Except for the provision of law that these lands were to be opened to settlement under town site or homestead laws, was there any provision of law or any decision of the department excluding these lands from mineral entry until after the placer locations had, in fact, been made?

Mr. DYAR. Well, you could not get any decision until somebody was claiming something under the law.

Mr. VAILE. Precisely. In other words, the men had made their, locations under the operation of the general law, the act of May 10, 1872, which provides that

"All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States."

Mr. DYAR. Now, Mr. Vaile, I said to you the other day that if that language is to be taken in its literal application a man can go right out here to-day and make a valid mineral claim in front of the Capitol of the United States; that

language applies to that land as much as it does to land in Colorado or any other State.

Mr. RAKER. The Supreme Court in this case holds that you can not do that.

Mr. DYAR. Yes. I used that argument before the Supreme Court, and they put it in the decision.

Mr. BURTNESS. I can not quite understand why in this hearing we should continue to raise contentions against the decisions of the Supreme Court of the United States. I do feel this, that these other questions may be of some moment and that it is necessary for us to determine in our own minds whether, in spite of these decisions, these individuals did act in good faith; but what is the use of arguing over what the law is when the law is settled.

Mr. VAILE. I am not making any such attempt; I am trying to avoid raising questions which are in conflict with the statutes of the United States.

Mr. BURTNESS. But the Supreme Court of the United States has determined what those statutes mean, and it is for us to determine whether, in spite of these decisions and in view of the rest of the statutes, these people did act or can be said to have acted in good faith, regardless of the decisions.

The CHAIRMAN. What I am trying to get at is whether prior to 1919 the Land Department specifically decided that the lands in Oklahoma are not open to mineral entry, and I would like to know whether the Land Department has construed the statute which you have cited, which reads as follows:

"Whenever any other lands within the Territory of Oklahoma, now occupied by any Indian tribe, shall by operation of law or proclamation of the President of the United States be open to settlement, they shall be disposed of to actual settlers only under the provisions of the homestead law."

I would like to know whether, prior to 1909, that statute had been construed by the land office; and if so, I would like you to refer me to the Land Department decisions.

Mr. DYAR. Well, of course, I would have to hunt for them again, but I can say this, that they had a better ground to go on, because when a man laid his application upon one of these tracts of land ceded by the Indians and ratified by the United States with the specific declaration that the particular lands then ceded should be disposed of to actual settlers only under the homestead laws, they did not need to go back to the original declaration, but I am very sure they did.

Mr. RAKER. Is the land north of this-the Kiowa, Commanche, and Apache land-land which adjoins this?

Mr. DYAR. Yes.

Mr. RAKER. That is the big pasture?

Mr. DYAR. Yes.

Mr. RAKER. Here is a decision covering that point. It was decided in Thirtyfifth Land Decisions, page 420, and this is the syllabus:

"Lands within the Kiowa, Comanche, and Apache pasture reserve, open to settlement

The CHAIRMAN (interposing). That refers to a particular tract of land. Mr. RAKER. That is land that adjoins all of the land involved on the north. That is right, Mr. Dyar, is it not?

Mr. DYAR. That is right.

Mr. RAKER (reading): "Lands within the Kiowa, Comanche, and Apache pasture reservė, opened to settlement and sale under the provisions of the act of June 5, 1906"→→

That is the act which Mr. McClintic presented and is the act that Mr. Dyar presented

46

are not subject to entry under the mining laws."

That case was decided by Secretary Hitchcock February 7, 1907.

Mr. DRIVER. And this act was approved June 5, 1906.

Mr. RAKER. Yes. Now, the President opened that land under order and proclamation dated September 19, 1906, the proclamation being printed in Thirty-fifth Land Decisions, page 238. The Interior Department held that it should be open for settlement only, and then the Supreme Court ruled that a man is not entitled to a mining claim because the land is not subject to mineral entry.

The CHAIRMAN. Mr. Dyar, is there any reasonable ground for any of these claimants to doubt that the land in question was within the Kiowa and Comanche area referred to in the decision read by Judge Raker?

Mr. DYAR. I can not see any, but they can probably find some.

The CHAIRMAN. Well, did they contend that?

Mr. ROOTE. Yes.

Mr. DYAR. There is something here that has not been referred to at all. The CHAIRMAN. Just a moment. Do you know whether they contend that they did not know that that was within the Kiowa and Comanche tract?

Mr. DYAR. No; but I think they contended it was, and that the mineral laws had been extended. I believe that is your contention.

Mr. ROOTE. No, sir.

Mr. DYAR. Well, then, it looks as though we have gotten into a mixup and that we will have to go a little further.

Mr. RAKER. I understood Mr. McClintic to say that this land runs on the river to the north of the land involved.

Mr. MCCLINTIC. It does.

Mr. RAKER. From the east to the west of the river.

Mr. MCCLINTIC. Yes. It is my understanding that the land immediately north of that is what was formerly known as the big pasture and a part of that ceded reservation.

Mr. DRIVER. And that land is involved in the act of June 5, 1906.

Mr. MCCLINTIC. The land in the bed of the river was not originally in the big pasture.

Mr. DRIVER. I mean the land contiguous to that; the shore line.

Mr. MCCLINTIC. Yes; the shore line was in the big pasture.

Mr. DYAR. That is right.

Mr. DRIVER. And as a riparian proposition it is a part of the same tract.

Mr. MCCLINTIC. Well, it would not be because the land was surveyed and a certain number of acres was set apart for homestead entry.

Mr. DRIVER. You understand that as a matter of law all accretions attach to the land unless expressly excepted.

Mr. MCCLINTIC. If it had not been declared prior to that date that the river was navigable, of course the riparian rights would attach.

Mr. DRIVER. And would pass under a conveyance to the shore line unless expressly excepted.

Mr. MCCLINTIC. Yes.

Mr. DYAR. As I say, I suppose we ought to get the whole thing while we are about it. The Kiowa and Comanche Reservation, as I said, reached from the mouth of the north fork to the ninety-eighth meridian, some 70 miles.

The CHAIRMAN. Covering all this land?