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Chronicles of Oklahoma
Volume 2, No. 3
September, 1924
RED RIVER AND THE SPANISH BOUNDARY IN THE UNITED STATES SUPREME COURT.

Grant Foreman

Page 298

"The masses of virgin gold and silver that glitter in the veins of the rocks which underlay the Arkansas river and mingle with the minerals near certain other of its streams, and offer themselves to the hand of him who will gather, refine and convert them to use are common and wonderful." With these words and others of similar import testifying to his vague knowledge of the country west of the Mississippi, a member of Congress stood upon the floor of the house in March, 1804, and spoke in favor of a resolution desired by President Jefferson to appropriate money for exploring that vast empire known as the Louisiana Purchase lately acquired by the Republic.

If the country contiguous to the Mississippi was but little known, the boundaries of our great acquisition were only meaningless names. President Jefferson ordered out expeditions to explore the head waters of the great rivers in that empire and report on the country and the confines of his great purchase. He first gave his personal attention to the launching of the expedition of Lewis and Clark in 1804 and their success in exploring the Missouri and Columbia rivers was an achievement without parallel in our history. Lieutenant Zebelon Pike was sent in 1805 to examine the head waters of the Mississippi; and on his return he was ordered the next year to explore the head of Arkansas and Red rivers with particular attention to the latter. He penetrated the Rocky Mountains whence Arkansas River issues, but was prevented from exploring Red River by the Spaniards whose hostility interposed obstacles to our investigation of the southwestern limits of the Louisiana Purchase which left us in a state of ignorance of that region that was to be reflected in the events of more than one hundred years. When winter came on Pike built him a little stockade and went into camp. Here he was taken prisoner by the Spaniards in whose territory he was, carried to Santa Fe and then to Chihuahua; after taking most of his papers from him Pike was escorted by way of San Antonio to the United States; and this quest for knowledge of Red River came to naught.

In 1804 Jefferson had sent Sir William Dunbar and Dr. George Hunter in charge of an expedition that explored Red River as high as Black River, and the hot springs, now of Arkansas; after their return the President determined on an expedition to the headwaters of Red River and for this selected Mr. Thomas Freeman, Captain Sparks and others making a party of twenty-four; getting under way in the early part of 1806 in two keel boats, they ascended above Natchitoches and by devious bayous and lakes passed the Great Raft; nearly a month later at a point 635 miles above the mouth of Red River they were stopped by an overwhelming force of Spaniards who

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gave them the alternative of turning back or being fired upon. Reluctantly they descended the river and thus President Jefferson’s plan for exploring Red River had come to naught and his attempt to strengthen our claim to the Red River country had availed little. The Spaniards claimed the country contiguous to Red River and we were kept in ignorance concerning the character and extent of that river and the country it drained. And in that state we entered the negotiations that resulted in the treaty of February 22, 1819, establishing the boundary line between the United States and New Spain.

The boundary line as fixed in the treaty ran from the Gulf of Mexico up Sabine River and on a line running north to Red River; thence following the course of Red River up to the 100th degree of west longitude; thence up that meridian to Arkansas River and with that stream to its source and west to the Pacific Ocean. All according to a map made by John Melish in 1818.

The treaty having determined that Red River divided the domains of Spain and the United States, a boundary concerning which we knew nothing, another effort was made to explore that stream. Accordingly in 1819, while ratification of the treaty was pending, for it was not ratified until February 19, 1821, Major Stephen H. Long was directed by Secretary of War Calhoun to lead an expedition to explore the heads of Arkansas River and Red River and descend the latter stream. Having examined the country to the head of the Arkansas, Long proceeded to the south and descended a river which he supposed to be Red River; but finally at its mouth emerging upon Arkansas River, he discovered he had been descending Canadian River; and thus another effort to learn something of the elusive Red River country had failed and we were still in ignorance concerning that part of our country.

In 1824 Mexico achieved her independence from Spain and January 12, 1828, a treaty was made between the United States of America and the United Mexican States, by which the boundary limits established in 1819 were reaffirmed. And still the United States did not know where the upper part of Red River was or what it was like.

In 1837 Texas established her independence as a republic, and April 25, 1838, she made a treaty with the United States ratifying the boundary between the two countries and providing for a commission to survey and mark the boundary, but nothing was ever done under that treaty. March 1st, 1845, Congress provided for the admission of Texas as a state of the Union, with the territory rightfully belonging to the new state.

Forty years elapsed since the treaty with Spain of 1819, and no effort had been made to survey the boundary defined in that treaty. In 1852 Captain R. B. Marcy assisted by Captain George B. McClellan explored upper Red River and made an interesting report; theirs

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was the first successful effort to examine that region and tell something about it. It developed that there were two principal branches of Red River each nearly 200 miles in length, the northern one rising in the mountains near Santa Fe and the other having its sources in the Llano Estacada about 75 miles further south. The southern branch had been called by the Indians, Prairie Dog Town River and the other was called by the Spaniards, Rio Roxo or Red River. Between them was an extent of country nearly as large as the combined area of Delaware and Rhode Island. Which fork was Red River in the minds of the contracting parties to the treaty of 1819? If the north fork, this great tract of land belonged to Texas; if the south fork, it was part of the domain of the United States. The determination of this issue was not in the mind of Marcy nor was it then thought of; but Captain Marcy decided that the south fork was the principal stream and on his map he called it Red River.

In 1857 surveyors were directed by the government to run the 100th meridian which was to be the eastern boundary of the Texas Panhandle and the western boundary of the Choctaw and Chickasaw country. They located the meridian about 80 miles above the fork, which left over 2000 square miles between the meridian and the forks. Texas claimed the meridian should be much farther east and at once challanged the correctness of this result; and at the instigation of the senators from that state, Congress passed the act of June 5, 1858, authorizing the President in conjunction with the state of Texas to run and mark the boundary line.

The United States commissioners were directed to base their work on the meridian as located in 1857 and the Federal government and Texas had difficulty in agreeing on the datum upon which the survey should begin; under date of April 28, 1860, Governor Houston instructed the commissioners appointed by him to "insist upon the north fork as the main Rio Roxo or Red River, as the true boundary line as described in the treaty of 1819." Just before that date, to accentuate their pretensions, on February 8, 1860, the legislature of Texas passed an act creating the disputed territory between the forks into a county called Greer county, as a part of the state of Texas, and undertook to set up some form of civil government there. The commissioners of course could not agree. The Texas commissioners resolutely stood for the north fork; those of the United States for the other; and they made their separate reports accordingly.

During the Civil War and for many years thereafter the vexed question did not receive any attention from either government; but the situation continued to embarrass all concerned; disorder was followed by bloodshed and even death; questions of civil government and rights, title and other personal relations remained open to vex the people, who realized that a determination of those things was essential to their happiness and security.

Accordingly in 1882 Texas provided for another commission to

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survey the boundary line and see if an adjustment could be reached; but the United States did not cooperate in this effort for some time after that.

In 1883 there was organized in Texas the Day Land and Cattle Company. This company bought up land certificates issued by the state to the veterans of 1836 and for them in 1884 there was patented to the company 144,000 acres of land in Greer county. The company leased from Texas the next year 203,000 acres more. In June 1884, a detachment of the Ninth Cavalry under Lieutenant C. J. Crane was sent from Fort Sill to eject settlers found within what Texas called Greer county. He reported the presence of ten families and 60,000 head of cattle belonging to seven or eight firms, requiring the service of 100 men. About 40,000 head of the cattle were owned by the Francklyn Land and Cattle Company and much of the country was parcelled out among the owners of the cattle.

Crane served notice on the cattle men and settlers to leave by October first or be removed by force. July 1st, 1884, President Arthur issued a proclamation warning all persons against attempting to enter and occupy "what is known as the Oklahoma lands in the Indian Territory." The same month Governor Ireland protested to the Secretary of the Interior against the military order of removal given to the settlers in Greer county, and this was supplemented by a request from Senator Coke that the order be suspended pending the effort to pass a bill in Congress looking to the settlement of the dispute. In view of the hardship the removal would impose on the settlers as represented by Senator Coke, Secretary Teller requested the Secretary of War to suspend the threatened removal, which was done.

In 1885 Congress passed an act providing for the appointment by the President of commissioners who were to work with the Texas commissioners to attempt a solution of the dispute; the joint commissions assembled in February, 1886, and took testimony and listened to arguments which it was hoped would establish which fork of Red River was the main stream or was that stream contemplated by the Treaty of 1819. The result was the same as before—they could not agree. The Texas commissioners reported to Texas that the north fork was the stream meant in the treaty; the United States commissioners found in favor of the other. Texans and other settlers of Greer County then made the next move; they assembled in July, 1886, at Mobeetie, Wheeler County, Texas, and organized Greer county with Mangum as the county seat where the county commissioners at once began the erection of a jail to cost $11,000. The citizens then in the same year petitioned the Postoffice Department to establish the post offices of Mangum and Frazier which was done and the post offices under those names were located as in Greer County, Texas; but in December of that year, the Postoffice Department having discovered that they were in the disputed area, changed

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the designation on its records so as to show these postoffices in Indian Territory.

Texas was determined to stand resolutely by her pretentions and on December 30, 1887, President Cleveland issued a proclamation declaring the land lying between the forks of Red River to be subject to the jurisdiction of the United States as part of Indian Territory, and warned all persons whether claiming to act as officers of Texas or otherwise against selling or disposing of any land in the disputed area; and also warned everyone against purchasing such land. And here existed a situation probably without parallel in the history of the country.

This was followed by the Act of Congress of May 2, 1890, creating the Territory of Oklahoma. One provision of this act directed the Attorney General of the United States to bring a suit in the United States Supreme Court against Texas to determine which fork of Red River was the dividing line and the ownership of the section known as Greer County, and now comprising Greer, Jackson, Harmon and half of Beckham counties, Oklahoma. The suit was filed on October 27, 1890. The State of Texas appeared and to this remarkable proceeding demurred on the ground that the controversy was a political one not subject to judicial inquiry, and further that the government of the United States could not sue one of the states of the Union in the Supreme Court. The Court overruled the demurrer on both points, saying that if Texas’ contentions were sustained the United States would have to sue in a state court of Texas or the controversy would have to be settled by resort to arms, either of which alternative was not to be entertained.

In preparing to try the case to the Supreme Court a great amount of evidence was adduced in the form of depositions taken in many cities and towns in many states; the taking of this testimony developed an extensive bibliography of the southwest. Histories of that country, diplomatic correspondence, Mexican, Spanish and American archives, books of travel, reports of Spanish and American explorers, lives of hunters, trappers, and traders, military campaigns, recollections of old Indians and settlers, study of soil, vegetation, climate and habits of rivers—these and many other fields were combed for evidence the sum of which makes an exhaustive store-house of historical material.

To show that the Spaniards had regarded the north fork of Red River as the main channel and boundary between them and the French possessions, much testimony was taken concerning an old Spanish trail used by traders long before the Louisiana Purchase, going from Natchitoches to Santa Fe. Leaving the former old French town (acquired by the Spaniards in 1762) the trail went north to Red River near the site of the present town of Denison, Texas, thence following Red River up stream it crossed the south fork known as Prairie Dog Town River above its junction with the

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north fork, following up the latter to its source, and thus coursing the north side of the subsequently disputed area and thence to Santa Fe.

From old maps this trail was revealed, old cattle men, buffalo hunters and Indian fighters told about the deep ruts cut by the great clumsy wooden Mexican cart wheels, remains of which were occasionally encountered. Large trees had grown up in the trail, testifying to its great antiquity. Some old men were found to testify to having seen on this old trail in 1838, a Mexican caravan convoying to Chihuahua a quantity of goods shipped up Red River to the mouth of Kiamitia River. The trail was followed by the Texas Rangers and the 1st United States Cavalry in 1858, when they were fighting the Comanche Indians found south of the north fork, the Indians knowing themselves to be on forbidden territory—submitted as evidence of the long entertained belief that this country belonged to Texas.

A vast amount of evidence, both oral and documentary, was offereed by both sides to prove their respective contentions as to which fork of the river was the largest and preserved the characteristics of the main stream. One intelligent witness gave interesting testimony of the change in the topography of the country caused by the passing of the buffalo. It was established that the south fork was wide and shallow, frequently containing no water at all, and presenting only a flat sandy surface; the north fork was narrower, but deeper. In illustrating the difference in the appearance of the sand filled south fork at the time of the hearing and the days when the buffalo ranged the country, the witness said that the river was deeper than formerly. He related how the buffalo would eat off all the grass as they came down from the north in the winter in herds of hundreds of thousands generally from 25 to 40 miles wide; where they travelled there was not a blade of grass left and the prevailing north and south winds would pick up the denuded earth and sand and fill the river beds. The last buffalo herd was seen in Oklahoma in 1876, and since then the devastating herds no longer ate off the grass, and the turf that grew, held the dirt and sand which did not blow and fill the streams as formerly. And thus the passing of the buffalo effected a marked physical change in the topography of the country.

To establish their conflicting contentions the parties placed in the records documentary testimony of many contemporary witnesses. The journals of the explorers Lewis and Clark, of Major Zebulon Pike, Major Stephen H. Long, Major Amos Stoddard, Lieut. Wheelock on the famous Expedition of 1834, contributed many pages of interesting material, George Catlin’s volumes concerning the Indians with whom he lived eight years, Gregg’s Commerce of the Prairies, Kendall’s account of the Texan-Santa Fe Expedition, the books of Captain Marcy, these and others furnished interesting contemporary testimony; Washington Irving’s Astoria and Tour of the Prairies,

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Humbolt’s and Bancroft’s and other histories, documents from Spanish archives, diplomatic correspondence, official reports of military and other expeditions, American State Papers,—these and many other sources of information were drawn upon for valuable and interesting contributions. The whole making 1400 closely printed pages of record and dozens of old maps.

Much testimony was offered by the United States to show that the Indians had long been accustomed to occupy the disputed area—evidence that Spain had not claimed it. This was shown by evidence of hunters and cattle men who had encountered the Indians there; and by other evidence of tepee and village sites shown by the marks on the ground—circles of burnt off tepee poles, piles of crushed buffalo bones from which the Indians had extracted the marrow for their winter supply of butter substitute, arrow heads, pottery, grinding stones; ashes and embers of old fires and caches in which the Indians stored their grain; and stumps of trees cut in a way characteristic of the Indian—circling around the tree and leaving a pointed stump.

The Wichita Indians were an agricultural tribe who had in ancient times two villages, and fields in a canon in the North Fork of Red River. When their corn was ripe they gathered it and dried it thoroughly by placing it on a scaffold and exposing it to the sun. They would then sack it in rawhide sacks, and cache it; they would dig holes in the ground six or eight feet deep shaped like a cistern with a small opening at the top; putting wood in the hole they burned it until the wall was thoroughly baked and dry; placing their sacks of corn in the cache they would close the opening with sod or in some other manner so that it was impossible for any but the owners to find them. When the Civil War broke out these Indians cached their corn and fled to Kansas where they remained until 1867 on the place that afterward became known as Wichita. In the meantime other Indian tribes and white men knowing of the thrifty habits of the Wichita, searched in vain for the grain stored by the latter, who on their return to their old home after the war, found their corn in a good state of preservation. Hundreds of pages of testimony was given by Indians, cow men, hunters and Indian officials about the location of these caches and the home of the Wichita, all of which bore on the question whether Spain, Mexico or Texas had exercised ownership over the country in dispute.

Among the many interesting maps in the record were several sketched extemporaneously by Indian witnesses to illustrate the testimony given by them concerning the location of Indian villages, streams and other physical features. The Indian possessed unusual facility in delineating these things on paper and their maps were quite lucid and to the point. One Indian witness, Chaddle-Kaungky or Black Goose, a Kiowa, made a map on which he showed the location of the Wichita Mountains, north and south forks of Red

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River, Indian villages, traders stores, etc. He labeled Turkey Creek and then drew a picture of a turkey. By Owl Creek he drew an owl. At one place he indicated "Heap houses" at another, "Some store."

Of the many romances brought into the record that of Cynthia Ann Parker was typical of the times; she had been captured by the Kiowa Indians at her home on Navasota River in Texas in 1835 when she was a child about ten years old. She was raised by them, married one of the braves and became the mother of the celebrated chief Quanah Parker. After she was grown her people tried to get her to return to them; but she replied that her husband, children and all that she held dear were among the Indians and with them she would stay. However, she was taken from them by the soldiers in 1860 and removed to the home of her childhood; there she had to relearn the English language; and lived a few years, pining to the end for her Indian family and the freedom of the plains.

Evidence was offered by Texas concerning an expedition under Colonel Snively sent by the state against Mexican traders on the Santa Fe trail in 1840, as an act of reprisal against the Mexicans. After crossing the territory in dispute the Texans were arrested near where Fort Dodge, Kansas now is and disarmed by a military escort under Col. Philip St. George Cooke. It was charged by the Texans that this act took place on Texas territory but upon a military inquiry it was determined that it was east of the 100th meridian and therefore on territory of the United States. However the latter government later made an appropriation to compensate the Texans for the loss of their arms and this event was offered as evidence that the United States recognized the territory in question to belong to Texas.

A number of battles with the Indians famous in the annals of the southwest and important in the civilization of this country, were detailed by witnesses who took part in them. The movements of the Indians in their annual hunting migrations, following the buffalo as the herds advanced northward with the new grass in the spring and returning to the winter pasture in the south. Indian and Spanish names for Red River and its affluents and other streams; stories of early trading expeditions to Santa Fe and of the argonauts to California; early trading expeditions of Spaniards and Mexicans among the Indians north of Red River; the romance of the Chisholm trail and other trails over which millions of cattle were driven from the south to northern markets; the tragedies and incidents of crude army camps and expeditions—reference to all these found their way into the record under one theory or another as to their relevancy.

The case was decided by the Supreme Court on March 16, 1896 (162 U. S. Sup. Ct. Rep. 1). The Court held that a large part of the interesting record before it was immaterial to the issue involved and while 90 pages were consumed in a discussion of the evidence and expressing the opinion of the court, the determination of the question before it turned mainly on the application of the early map

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of Melish referred to in the treaty of 1819. The court reached the conclusion that reference to this map indicated the south fork of Red River as the main stream, though it had never been seen by the negotiators for the United States, and though it was not known that there were two principal branches of that river. The court determined that the south fork of Red River was the boundary line between Texas and Oklahoma, and that the disputed area between the forks was part of the domain of the United States within the Territory of Oklahoma.

And so it was determined that the south fork of Red River was the boundary line and Greer county became part of Oklahoma. The controversy was ended and forgotten and the uncertainties in the verbiage of the Spanish treaty ceased to have any interest or importance; when of a sudden the old treaty and its hidden meaning sprang up again to demand more attention than before.

Oil was found in northern Texas; great quantities of it. The trend of oil bearing sand extended to and under the lands contiguous to Red River and even under that stream. The state of Texas claiming this land as public property, made leases to operators whose producing wells were about to return handsome royalties to the state. The state of Oklahoma said, hands off, this land belongs to the state and will be leased by the school land commission. No, said the riparian owners, we own to the middle of the stream; keep off our land; we are going to drill it. Then came the United States claiming to be owner of a large part of the bed of the river and numerous islands therein, and as trustee of Indian allottees of land continguous to the stream and as such, riparian owners of the land under the stream. And there was a pretty mix-up.

They went to law about it; the state of Oklahoma filed in the United States Supreme Court a suit against the state of Texas. It was contended that the Spanish treaty of 1819 fixed the south bank of the river as the boundary, and Texas claimed that the middle of the river was meant. The United States intervened with the same contention as Oklahoma. On April 11, 1921, the Supreme Court decided that the decision of that court in the Greer County case fixed the boundary along the south bank of the river and that it was, therefore, unnecessary to consider whether the treaty of 1819 by proper construction fixed the boundary along the mid channel or the south bank. But that did not end the controversy, it was really just the beginning. There is a large expanse of flat land called the flood plain lying between the river proper and the bluffs to the south, that was covered by water during occasional floods, and on this area, was some of the most valuable oil producing land. Where was the south bank of the river? Was it the limits of that stream at times of low water, or the much more remote elevations that limited the river in flood time?

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After the suit was filed it developed that the state of Oklahoma was claiming title to the entire river bed from one bank to the other; that the state of Texas was claiming title to the southerly half; that the United States was disputing the claims of both states, and asserting full proprietorship of the southerly half and an interest (because of its relation to Indian allottees) in portions of the northerly half; that a portion of the bed, particularly of the southerly half, had been but recently discovered to be underlaid with strata bearing oil and gas, and to be of great value by reason thereof; that many persons were proceeding to drill for, extract, and appropriate these minerals with uncertain regard for the dispute over the title and for the true ownership; that possession of parts of the bed was being taken by intimidation and force; that in suits for injunction the courts of both states were assuming jurisdiction over the same area; that armed conflict between rival aspirants for the oil and gas had been but narrowly averted and still was imminent; that the militia of Texas had been called to support the orders of its courts, and an effort was being made to have the militia of Oklahoma called for a like purpose; and that these conflicting assertions of jurisdiction were not only likely to result in violence but to cause great waste of the oil and gas.

In this emergency the Supreme Court appointed a receiver of the disputed area for a distance of 43 miles up and down the river. He was given authority to control and direct all necessary oil and gas operations on the land pending the suit; he was also directed to ascertain and hold the net proceeds of the oil and gas for the owners ultimately to be determined by the court.

The state of Oklahoma claimed that Red River was a navigable stream and under the law applicable when the United States erected Oklahoma into a state, the title to the land under the river passed to the state. On this point the Supreme Court held that the river is not a navigable stream and therefore the title to the land under it did not repose in the state. Many other interesting contentions were considered and determined (256 U. S. Sup. Ct. Rep. 70). The United States and Oklahoma were united against Texas on certain points, but Oklahoma claimed that title to the river bed did not pass to riparian owners,—the United States claimed the contrary; many of the riparian owners on the north side of the stream being the Indian grantees of the United States.

The Court held that by the disposal of the lands to the Indians or white entrymen, the latter or their grantees as riparian owners were vested with title to the river bed to the middle of the stream; but another complication arose; since the survey of the land in 1874 and running of the meander lines or survey limits of the stream, floods had carried away portions of the bank. This changed the relation to the river of several surveyed tracts. Some that were washed away became part of the river bed, and others non-riparian before became riparian and therefore apparent owners of land formerly belonging

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to some one else. Oklahoma as the owner of certain school land tracts abbutting the river on the north, was also held to be a riparian owner of some of the river bed. On the Texas side, certain persons had made placer mining claims on the river bed and they claimed title to the oil and gas under the mining laws of the country. But the court held that this part of the river bed was not subject to location or acquisition under the mining laws.

The Supreme Court determined that the medial line was the Indian boundary, and that the line between the middle of the stream and the south bank belonged to the United States. But where was the south bank? The court held that for the purpose of fixing the boundary the south bank is the water-washed and relatively permanent elevation or acclivity, commonly called a cut bank, along the south side of the river, which separates the bed from the adjacent upland, whether valley or hill, and usually serves to confine the waters within the bed, and to preserve the course of the river.

Red River is an extraordinarily crooked stream with many sharp bends, turns and convoltions; so that the length of the river bounding Oklahoma is 539 miles where in a direct line the distance is but 321 miles. It developed that in times of floods, by the action known as avulsion the river would cut across a bend and make a new channel, and a tract of land formerly north of the river and therefore in Oklahoma would thereafter be south of the river, and vice versa.

The court decided that where intervening changes in the bank have occurred through the natural and gradual processes known as erosion and accretion, the boundary has followed the change; but where the stream left its former channel and made for itself a new one by avulsion, the boundary has not followed the change but has remained on and along what was the south bank before the change occurred.

The decision reached by the court naturally led to many interesting results; as in the case of the man who claimed land now on the south side of the river in which he supposed he had good title from Texas, but which the court found to be north of where the river bed was in 1819, and therefore now in Oklahoma, and vice versa.

The court held that several intervenors owning lands under patents or Indian allotments bordering on the north side of the river, were the owners of so much of the river bed as lies in front of their lands and north of the medial line of the river. And that the state of Oklahoma as the grantee of lands from the United States has the same riparian rights in the river bed that an individual might have.

Where tracts on the north side of the river, which were not riparian when surveyed, were patented or allotted after they became riparian, such disposal carried the title to the medial line of the river unless other tracts between them and that line had previously been

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disposed of. And where tracts on the north side which by erosion had come to be in the river bed after survey and before disposal, were patented or allotted as if they were upland, while the adjacent land behind them, which was then actually riparian, was as yet unsold and unallotted, such disposal carried the title to the medial line of the river, unless other tracts between them and that line had been disposed of theretofore. Certain islands were held to belong to the United States. Others formerly part of the vast valley land of Texas were separated from the land on that side by avulsion, and were held still to belong to Texas.

In the course of 105 years many physical changes have taken place in Red River and the determination on the ground of the location of the south bank of the river in 1819 and where changes by erosion and avulsion had taken place, involved the exploration of realms of knowledge little known to any but experts. To bring to view the indices of local phenomena of 100 years ago, and read the testimony of the book of ages developed a fascinating field of study; the habits and processes of rivers; movements of sand and sand dunes by water and wind; geologic, geographic, and physiographic characteristics of Red River; location of ancient covered terraces and sand dunes; disposition of silt and waste from overflows of the river and its affluents, and subsequent distribution by winds and from plant growth, destruction and decay; ecology the study of living and remains of ancient plant life with reference to its environment; the character and mechanical disposition, relative position, number of strata, thickness and color of earth taken from soil holes; study of excavated bones and fossils; of trees, logs and stumps—of their age, distribution and location.

These and many other witnesses were called to testify before the Supreme Court, and these fields of inquiry were explored and elucidated, made apposite and interesting in hundreds of pages of testimony by the greatest authorities of the country—writers of technical books, college professors, government experts; witnesses of the highest attainment in large numbers brought their erudition and nature’s own testimony to bear on the solution of the problem.

The decree of the Court directed that certain sections of the river be surveyed for the location of the boundary or south bank in conformity with its findings; and now, more than 100 years after the treaty of 1819, the surveyors acting under orders of the United States Supreme Court, are about to show us for the first time exactly where this elusive boundary line is.

Far from the least notable feature connected with this interesting litigation is the part taken by the United States Supreme Court. The function of this Court ordinarily is to examine the printed records of cases in lower courts brought to it on appeal and to review their actions; but in a few instances as in the case under discussion where the suit is between two states, it has original juris-

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diction to hear the case as a trial court. This litigation, now about to pass into the class of causes celebres, in its latest phase involved a record of nine printed volumes of over 5500 pages of testimony taken by a special commissioner under orders of the court. When completed this testimony was returned to the court which was obliged to read and consider it, besides thousands of pages of printed briefs and arguments and listen to days of oral arguments by the attorneys, in order to determine the issues involved. In passing on the various phases of the matter from time to time, as the issues developed and broadened, the court in four years rendered three formal opinions and three decrees, besides twenty-eight orders. The opinions prepared for the court by Mr. Justice Van Devanter, and Mr. Justice Pitney are notable for their lucid exposition of the varied and complicated matters touching the issues before the court; the reading of these recondite pages of nature’s history dimmed by age, and interpreting them with the cogency and clarity characterizing these opinions, is a monumental achievement requiring infinite patience, industry and the high degree of erudition for which that great court is so well known.

—Grant Foreman.

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