Mr. DYAR. Including this land, both above it and below it. Now, on June 6, 1900, Congress passed an act amending and ratifying a cession of that reservation, and this is the language:

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Subject to the allotment of land, in severalty to the individual members of the Comanche, Kiowa, and Apache Tribes of Indians in the Indian Territory, as hereinafter provided for, and subject to the setting apart as grazing lands for said Indians, four hundred and eighty thousand acres of land, as hereinafter provided for and subject to the conditions hereinafter imposed, and for the considerations hereinafter mentioned, the said Comanche, Kiowa, and Apache Indians hereby cede, convey, transfer, relinquish, and surrender forever and absolutely, without any reservation whatever, express or implied, all their claim, title, and interest of every kind and character in and to the lands embraced."

Subject to the allotments, subject to the setting aside of this reservation. The CHAIRMAN. What point do you want to make by emphasizing that particular language?

Mr. DYAR. That act in a subsequent provision provided

“That the lands acquired by this agreement shall be opened to settlement by proclamation of the President within six months after allotments are made and be disposed of under the general provisions of the homestead and town site laws of the United States."

Then it went on and afterwards came this:

"That should any of said land allotted to said Indians or opened to settlement under this act contain valuable mineral deposits, such mineral deposits shall be open 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."

Now, that general legislation was that that whole tract embraced the land lying north of this

The CHAIRMAN (interposing). It does not embrace the river, though, this land north? I thought that the decision which Judge Raker read covered lands contained within the area embraced in this controversy.

Mr. DYAR. No.

Mr. RAKER. No; I read that solely to show that the bed of the river, the north bank, and the territory north was the land referred to in here, and that nothing referred to the character of the land south.

Mr. DYAR. Now, this was one of the tracts, the ceded Indian tract, the very tract of which we are talking, which, in a general way, had the mineral statutes extended to it expressly. Now, if there had been no exception and if the act had just generally provided that the mineral laws should extend to it, this would have been like the Wichita Mountains, and these lands immediately north and to the middle, perhaps, would have been opened to mineral location.

The CHAIRMAN. What I want to know is this: Is there any decision covering the lands in controversy prior to 1919?

Mr. DYAR. Judge Raker has just read you one, a decision of the Commissioner of the General Land Office holding that this big pasture land was not covered. I was just coming to that.

The CHAIRMAN. I want to clear that up.

Mr. DYAR. That was never open to mineral entry and the reason is because this cession was “subject to the setting aside," and this land was subsequently set aside from the operation of the mineral laws and from other laws.

The CHAIRMAN. Is this river bed in the big pasture?

Mr. DYAR. Just half of it. The boundary of the Kiowa and Comanche Reservation, from the mouth of the North Fork to the ninety-eighth meridian, was expressly along the middle of the main channel of the river; that was the limit of the Indian lands. No, after those lands were ceded by the language I have just read, the Secretary of the Interior was directed to set aside 480,000 acres; he did it in three tracts and the big pasture is one of them, and when he constituted the big pasture he again expressly laid this south boundary along the mid-channel of Red River. Now, when these lands were sold and allotted the purchasers of the allottees took title to the middle of the river only, because that was the end and limit of the Indian lands. Now, I am going to repeat that every case in which a mineral claimant sought to obtain a patent, outside of the two areas involved, was turned down absolutely because the lands were not subject to mineral entry and long prior to these locations on Red River.

Mr. RAKER. Was or was not this fact involved, that the homesteaders had to pay $5 an acre, which finally went to the Indians, as distinguished from the fact that if it was mineral land they could file on it without paying anything?

Mr. DYAR. That was not exactly involved in the decision, but it was this way: This big pasture land was always Indian land; it had been ceded in general terms by this act in 1900, subject to its being set aside, and the Secretary did set it aside, so that that preserved it as Indian land altogether, and that big pasture was never ceded to the United States after it was once constituted; it never was and has not been to this day ceded to the United States; so, as a matter of fact, those lands always remained Indian lands; they never became lands of the United States or public lands at all. The act of 1906, by which the big pasture was broken up, did not take over the Indian title into the United States; it simply declared that the lands should be sold for the benefit of the Indians under the homestead laws, and $5 an acre going to the Indians. The court in this case held that those lands always remained Indian lands, they were sold as Indian lands, and the boundary in the middle of the river limited those purchasers because that was the limit of the Indian lands, and it did not give them any chance to extend their claims clear across the river.

Mr. RAKER. And the land to the medial line of the river, it has been determined by the Supreme Court, belongs to Oklahoma.

Mr. DYAR. No; that Oklahoma includes clear to the south bank; that the north shore riparian claimants, including Indian allottees and purchasers of the Indian big pasture lands, took, by riparian rights, to the middle of the main channel, and that the United States owns the rest to the south bank. Mr. RAKER. Therefore, from the middle of the river to the south bank, as decided by the Supreme Court, it is public land?

Mr. DYAR. Not in a technical sense.

Mr. RAKER. But it is land belonging to the United States?

Mr. DYAR. Yes, sir.

Mr. RAKER. And it has the right to dispose of it as it sees fit, but it has never disposed of it in any way.

Mr. DYAR. And never authorized the disposal of it in any way.

The CHAIRMAN. Is any of the land along the north shore privately owned? Mr. MCCLINTIC. No, sir.

Mr. DYAR. This was allotted to Indians or is owned by private purchasers. The State of Oklahoma owns a few school sections along this north bank.

The CHAIRMAN. Are there any placer claims between the medial line and the north shore?

Mr. DYAR. Yes; it is plastered all over, and I want to say this: There are a whole lot of placer mining claims that are on top of these gentlemen; they are not mentioned here and were never mentioned in the case, and if you pass this legislation you will find new Richmonds in the field in groups and dozens, perhaps, claiming the same land that these people are claiming.

The CHAIRMAN. Are there placer claims upon riparian lands?

Mr. DYAR. Yes, sir. The people did not know the law very well, and when they saw some rushing in they all rushed and jumped wherever they could, and if they found any land not covered by a previous placer claim, they took it. The CHAIRMAN. As a matter of law could we in any way disturb the vested rights of the riparian owners?

Mr. DYAR. NO; I think that is entirely beyond your power, the court having held that they have vested rights. Of course, those placer claims lying upon land north of the middle are absolutely void, because that was land belonging to somebody else at the time; it was not public land and was not land of the United States.

Mr. DRIVER. So that we can not adjust that in any way; all we can adjust is that south of the medial line.

Mr. DYAR. That is undoubtedly true.

Mr. RAKER. Maybe I did not make my other question quite clear. I asked if it was public land, and you said no; you made a distinction and said it was not public land in the sense that it was open to entry.

Mr. DYAR. Yes, sir.

Mr. RAKER. But your contention now is that all land lying south of the center of the river and to the south bank, as determined by the Supreme Court, is land belonging to the United States, and is land that is now subject to disposition in any way the Government may see fit, through its Congress?

Mr. DYAR. That is right, and that is so.

Mr. BURTNESS. Is there any dispute about that, in view of the decision of the Supreme Court?

Mr. DYAR. No.

Mr. BURTNESS. Is that conceded by everyone?

Mr. DYAR. It must be.

Mr. RAKER. And the question is to determine what disposition to make of that land and its proceeds?

Mr. DYAR. That is right; yes.

Mr. MCCLINTIC. If Congress does not pass any law authorizing any branch of the Government to dispose of that land, would the Secretary of the Interior have the right to lease it?

Mr. DYAR. I doubt it; that might be decided, but I do not think so.

Mr. MCCLINTIC. In other words, if Congress does not pass some kind of a law, the land will have to remain idle and under the jurisdiction of the receiver, according to the court?

Mr. DYAR. Not necessarily. Early last spring, when we thought we might possibly get a final decision from the Supreme Court before the end of the last term, I called up Assistant Secretary Finney and said to him it was just possible we might have a decision which would enable us to draw decrees dismissing the receiver from these lands, and said, "Are you prepared to take charge of them and operate these wells?" He said, "I do not know that we have any authority." I said, "Forget that. You have general authority over the public domain, whether technically public land or not, and I think you ought to be

prepared, in order not to delay the discharge of this receiver, to take charge of those lands, and operate the wells until Congress can provide for the disposition of the lands or you decide you can do it otherwise." Following that conversation he sent a member of the Bureau of Mines, a practical oil man, down there, and he looked the situation over; he laid out his plans and was ready to take charge and operate the land as soon as the receiver was discharged, but which did not happen. So I think we need not be fearful that nobody is going to be ready to take those lands, because the Secretary of the Interior, under his general authority, would have power to do that.

The CHAIRMAN. You expressed a doubt as to whether the Secretary could lease the lands. Are you undertaking to pass upon or interpret the oil leasing act?

Mr. DYAR. No. But you remember the court said that neither the mining laws nor any of the general laws of the United States applied to this land. The CHAIRMAN. Was the oil leasing act specifically before the court? Mr. DYAR. Yes; although it did not expressly discuss it. I have a heading in our brief discussing the question of the applicability of the leasing act and contended that it did not apply, but the court did not specifically say that; it simply said, indeed, none of the general laws. The exact language of the opinion is:

"We conclude that this part of the river bed never was subject to location or acquisition under the mining laws, nor, indeed, to acquisition under any of the land laws."

The CHAIRMAN. It occurred to me from that language that the question was still open as to the applicability of the oil leasing act.

Mr. DYAR. I think it might possibly be argued before the Secretary that he had jurisdiction. Of course, I would not have any occasion to oppose it, but I think I could put up an argument to the contrary.

The CHAIRMAN. Is it your opinion that the effect of that decision is to eliminate the application of the oil leasing act to these lands?

Mr. DYAR. It is hard to say; it did not expressly refer to it, and whether it meant to eliminate the oil leasing act I do not know.

The CHAIRMAN. At any rate, the matter was not definite?

Mr. DYAR. No; it was discussed in the brief and it was claimed that the oil leasing act did not apply.

Mr. RAKER. With reference to this grant of 400,000 acres-was that the number, Mr. McClintic?

Mr. MCCLINTIC. Four hundred and eighty thousand acres.

Mr. RAKER. I just want to ask this question: Have you looked over that grant to determine what the south boundary of the grant is?

Mr. DYAR. Yes.

Mr. RAKER. What is the language of it?

Mr. DYAR. I can not give you that, but it was done in this way: The Secretary directed the Land Office to locate 480,000 acres, or 505,000 acres, and it located this tract of 480,000. A report was made by an agent of the office and he recommended that and described this tract; he described the south boundary of it as following along the mid-channel of Red River.

Mr. RAKER. It did not say the south boundary line between Oklahoma and Texas?

Mr. DYAR. No.

Mr. LARSEN. Do you understand the mid-channel and medial l'ne to be one and the same thing?

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Mr. DYAR. Yes, sir. Let us go a little further. Now, when the treaty of 1867 was made creating the Kiowa and Comanche Reservations, it may be that the negotiators of that agreement never thought anything about where the north boundary of Texas was; they may possibly have assumed, having no occasion to think anything about it, that it was in the middle of the river-I do not know—but at any rate the negotiators of that treaty fixed the boundary along the middle of the main channel, and the true boundary of Texas under the treaty was along the south bank. Before the Supreme Court I made this argument, but the court ignored it, that we must assume Congress and the treaty-making power know what they are doing.

The CHAIRMAN. That is correct about Congress.

Mr. DYAR. Well, we are willing to make that assumption. And I argued that they consciously did those things. Now, it has been the policy of the United States, in every case where there is a chance to apply it, to separate Indian tribes from white people, where lands are open to settlement, by some physical barrier, in order to keep them apart, if possible. That is not always possible, but a range of mountains or a river will form the boundary of an Indian reservation, the idea being to keep them apart from the white people. Now, then, when they created the Indian Territory, when they set it aside and established a policy of removing the eastern Indians and the Indians to the northward and concentrate them all there, they wanted to make a safe place, and they wanted to prevent incursions from one side to the other and conflicts between the white people and the Indians. Therefore, having put the boundary between Spain and the United States along the south bank; this being a river a mile wide in most places, they put the boundary of the Indian reservation in the middle and left a neutral strip between them, in order to keep them apart, subject to the sole and exclusive jurisdiction of the United States.

Mr. RAKER. Where do you get that?

Mr. DYAR. That is a reasonable assumption, is it not, and that was the effect of what was done, and that land was reserved from disposition of any kind whatever from the beginning. Just think a moment. Suppose this oil had been discovered 50 years ago. Did Congress intend to invite a rush of prospectors in there right on the border of an Indian reservation? No; Congress did not intend that, and that was one of the measures taken to reserve that land from disposition at all.

Mr. RAKER. You are clearing up everything ideally as far as I am concerned. Has the question been determined, so far as you are concerned, that this Indian territory was not ceded from the medial line of the river to the south bank?

Mr. DYAR. Yes.

Mr. RAKER. And you think that is fully determined?

Mr. DYAR. Yes; that is the basis of the decision limiting the rights of the north shore riprarian owners; they said they bought the Indian lands, and they took the riprarian rights as far as the Indian lands extended, and that was to the middle of the river.

Mr. RAKER. And the Indian tribes could not claim that strip of land?

Mr. DYAR. They could not claim anything south of the middle of the river; no. Mr. MCCLINTIC. If I understand you correctly, when that reservation was laid out for the Indians, the south boundary was given as the center of the river.

Mr. DYAR. Yes; and that appears by the treaty of 1867.