SPEAKERS CONTENTS INSERTS
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63–863
2000
CONSENT OF CONGRESS TO THE RED RIVER BOUNDARY COMPACT
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
ON
H. J. Res 72
OCTOBER 26, 1999
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Serial No. 77
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
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MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
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Subcommittee on Commercial and Administrative Law
GEORGE W. GEKAS, Pennsylvania, Chairman
LINDSEY O. GRAHAM, South Carolina
STEVE CHABOT, Ohio
ASA HUTCHINSON, Arkansas
SPENCER BACHUS, Alabama
MARY BONO, California
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JERROLD NADLER, New York
TAMMY BALDWIN, Wisconsin
MELVIN L. WATT, North Carolina
ANTHONY D. WEINER, New York
WILLIAM D. DELAHUNT, Massachusetts
RAYMOND V. SMIETANKA, Chief Counsel
SUSAN JENSEN-CONKLIN, Counsel
JAMES W. HARPER, Counsel
C O N T E N T S
HEARING DATE
October 26, 1999
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TEXT OF BILL
H. J. Res. 72
OPENING STATEMENT
Gekas, Hon. George W., a Representative in Congress from the State of Pennsylvania, and chairman, Subcommittee on Commercial and Administrative Law
WITNESSES
Braddock, David B., the Oklahoma House of Representatives, District 52, Altus, OK
Sandlin, Hon. Max, a Representative in Congress from the State of Texas
Sigsbey, Eric, Esq., General Counsel, Texas General Land Office, Austin, TX
Thornberry, Hon. Mac, a Representative in Congress from the State of Texas
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Braddock, David B., the Oklahoma House of Representatives, District 52, Altus, OK: Prepared statement
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Gekas, Hon. George W., a Representative in Congress from the State of Pennsylvania, and chairman, Subcommittee on Commercial and Administrative Law: Prepared statement
Sandlin, Hon. Max, a Representative in Congress from the State of Texas: Prepared statement
Sigsbey, Eric, Esq., General Counsel, Texas General Land Office, Austin, TX: Prepared statement
Thornberry, Hon. Mac, a Representative in Congress from the State of Texas: Prepared statement
APPENDIX
Material submitted for the record
CONSENT OF CONGRESS TO THE RED RIVER BOUNDARY COMPACT
TUESDAY, OCTOBER 26, 1999
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
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The subcommittee met, pursuant to call, at 2 p.m., in Room 2226, Rayburn House Office Building, Hon. George W. Gekas [chairman of the subcommittee] presiding.
Present: Representatives George W. Gekas, Lindsey O. Graham, Spencer Bachus, Mary Bono, David Vitter, Jerrold Nadler and Tammy Baldwin.
Staff present: Raymond V. Smietanka, Subcommittee Chief Counsel; Susan Jensen-Conklin, Subcommittee Counsel; James W. Harper, Subcommittee Counsel; Sarah T. Zaffina, Subcommittee Staff Assistant; and David Lachmann, Minority Professional Staff Member.
OPENING STATEMENT OF CHAIRMAN GEKAS
Mr. GEKAS. The hour of 2 o'clock having arrived, the committee will come to order. Pursuant to the rules of the House, we cannot proceed with this hearing or any hearing without two members appearing to constitute the required quorum. The custom of the Chair has been to at least strike the gavel at the appointed hour and then to recess until the arrival of the second member. Holding true to our pattern of behavior, we now recess, except that the gentleman from New York has arrived, constituting a quorum, and the committee will remain in order.
[The prepared statement of Mr. Gekas follows:]
PREPARED STATEMENT OF HON. GEORGE W. GEKAS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA, AND CHAIRMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW
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Today's hearing concerns one of the oldest boundaries in the United States, one that conjures up an image of American history and growth. The boundary is that presented by the Red River between Texas and Oklahoma.
While the Red River has marked the boundary of the two states only since Oklahoma's admission to the Union in 1907, it has been the northern border of Texas since Secretary of State John Quincy Adams negotiated our acquisition of Florida with Spain in 1819. The Louisiana Purchase of 1803 had given the United States possession of vast French territories beyond the Mississippi River which had previously belonged to Spain. The borders of that province were somewhat vague and it remained for the United States to settle them precisely with Spain which still was in possession of Mexico. The Transcontinental Treaty negotiated by Adams extended the western boundary of Louisiana all the way to the Pacific Ocean and its southern boundary was set in part along the Red River. Historians have hailed Adams' negotiations as one of the greatest feats of American diplomacy.
The precise demarcation of that line is difficult to ascertain because of the exigencies of the local topography which result in the Red River often running dry. The two states have been negotiating for some time to develop a solution that would more clearly define what exactly is the south bank of the Red River. The resulting Red River Boundary Compact has been approved by the legislatures of Texas and Oklahoma and is now brought before the Congress for its approval pursuant to the provisions of Article I, Section 10, clause 3 of the Constitution.
We look forward to listening to the testimony of the witnesses, including Members representing districts adjacent to the border and officials from Texas and Oklahoma.
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Mr. GEKAS. We welcome to the witness table the Members of Congress who are vitally interested in, and who represent the interests of their respective States in this border issue, which has become the subject of a compact under the constitutional provisions.
The first panel is comprised of, as I have indicated, the Members of Congress. Mac Thornberry is in his third term as the Representative from the 13th District of Texas. His family has been involved in ranching in Texas since 1888. He was a summa cum laude graduate with a BA in history from Texas Tech University and a graduate of the University of Texas law school. Before his election, he served as legislative counsel to Congressman Tom Loeffler, and chief of staff to Congressman Larry Combest, both from Texas. He served under President Reagan as Deputy Assistant Secretary of State for Legislative Affairs before returning to Texas to the cattle business, the practice of law and ultimately his election to Congress.
Congressman Max Sandlin is in his second term representing the 1st District of Texas, where he has been a lifelong resident. He received his undergraduate and law degree from Baylor University. In addition to practicing law, he worked as vice president of an oil and gas exploration firm, Howell and Sandlin, and president of East Texas Fuels, a gasoline distributorship. He served as county judge of Harrison County and was subsequently elected judge of the County Court at Law of Harrison County. Here in Washington, Congressman Sandlin serves as the Minority Whip-at-large in the Democratic leadership organization.
Their testimony, of course, is going to touch upon the very heart of the matter, the long-standing, unsettled boundary question between Texas and Oklahoma, which dates back to Lewis and Clark, and the Louisiana Purchase, and Adams, and, I guess, Monroe and Jackson and a whole gamut of American history greats. Naturally, we are at the present status because the legislatures of the respective States, Texas and Oklahoma, have arrived at an agreement which, pursuant to the Constitution, must be sanctified by the Congress.
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So the testimony that you will offer will be very welcome. It will become a matter of importance to the record because it will substantiate the action subsequently to be taken by this committee. Your written statements will become a part of the record automatically. We will begin with Representative Thornberry.
[H.J. Res. 72 follows:]
106TH CONGRESS
1ST SESSION
H. J. RES. 72
Granting the consent of the Congress to the Red River Boundary Compact.
IN THE HOUSE OF REPRESENTATIVES
OCTOBER 19, 1999
Mr. THORNBERRY (for himself, Mr. SANDLIN, and Mr. WATTS of Oklahoma) introduced the following joint resolution; which was referred to the Committee on the Judiciary
JOINT RESOLUTION
Granting the consent of the Congress to the Red River Boundary Compact.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. CONGRESSIONAL CONSENT.
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(a) IN GENERAL.—The consent of Congress is given to the Red River Compact entered into between the States of Texas and Oklahoma and the new boundary established by the compact.
(b) NEW COMPACT.—The compact referred to in subsection (a) sets the boundary between the States of Texas and Oklahoma as the vegetation line on the south bank of the Red River (except for the Texoma area where the boundary is established pursuant to procedures provided for in the compact) and is the compact—
(1) agreed to by the State of Texas in House Bill 1355 approved by the Governor of Texas on May 24, 1999; and
(2) agreed to by the State of Oklahoma in Senate Bill 175 approved by the Governor of Oklahoma on June 4, 1999.
(c) COMPACT.—The Acts referred to in subsection (b) are recognized by Congress as an interstate compact pursuant to section 10 of Article I of the United States Constitution.
(d) EFFECTIVE DATE.—This Act shall take effect on December 31, 1999.
Mr. THORNBERRY. Thank you.
Mr. GEKAS. Does the gentleman from New York have an opening statement?
Mr. NADLER. I do, but I will defer at this time.
Mr. GEKAS. Mr. Thornberry.
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STATEMENT OF HON. MAC THORNBERRY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. THORNBERRY. Thank you, Mr. Chairman, and I appreciate this subcommittee's help in resolving a problem which has lasted nearly 200 years. I might just mention that this resolution in front of the committee is cosponsored by all of the Members of Congress on both sides of the Texas-Oklahoma border and involve Republican and Democrat. The Compact was passed overwhelmingly by the State legislatures of both States, and certainly it is my hope that this subcommittee and later the full Congress can adopt it.
I think that this is rather interesting history. As you mentioned, Mr. Chairman, this goes back to the Louisiana Purchase, and shortly thereafter the United States and the King of Spain began negotiations on exactly where the border was between Texas, which was then a part of Spain, and the United States, and finally, in 1819 they resolved that matter with the treaty which was ratified by the U.S. Senate in 1821. Later, that treaty was ratified by the United States and Mexico, once Mexico broke away from Spain, and ratified later again by the Republic of Texas once the Republic of the Texas became its own independent country. It has also been the subject of at least two Supreme Court decisions because the original treaty of 1819 set a border which has been rather hard to discern and hard to enforce and has been the subject of controversy pretty much ever since.
A slight bit of history related to my own family. In the 1930s, Texas and Oklahoma had continuing disputes along this border, and at one point the border was closed. The Governor of Oklahoma sent in the Oklahoma National Guard to reopen it, and Texas thought it would be appropriate to counter that with four Texas Rangers and did send Texas Rangers there to man the Texas side of the border. It turns out Life Magazine was there and has this photograph of a big Texas Ranger in a big hat with his rifle on one side and the tank with the Governor of Oklahoma sitting on the other side of that border. It turns out the Texas Ranger on the Texas side was my wife's grandfather, who was head of the Texas Rangers at that time, and he has some amusing anecdotes related to that incident in his book.
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We are not quite to that point now, but we still have continuing difficulties on the border between Texas and Oklahoma, primarily related to law enforcement and taxation, and the difficulty in identifying where this border is has caused continuing problems. So a commission was created between the two States. They came to a solution which was essentially that the vegetation line would be the border, even as that might change. They say specifically in the Compact that ownership rights of the property will not be affected. It only affects the jurisdictional boundaries between the two States.
And so I think between the two States they have come to a solution which makes sense. It is practical, it is enforceable for the sheriffs and the county tax assessors on both sides, and I hope that Congress can adopt it.
Mr. GEKAS. We thank the gentleman.
[The statement of Mr. Thornberry follows:]
PREPARED STATEMENT OF HON. MAC THORNBERRY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. Chairman, I would like to thank you for the opportunity to speak today about House Joint Resolution 72, which grants consent of the Congress to the Red River Boundary Compact. It is a pleasure to be here today because it means that debate over the Texas-Oklahoma border, that has lingered for almost 200 years, is nearing resolution.
This boundary was created by the Louisiana Purchase in 1803. The United States and Spain created the boundary in the Treaty of Amity, Settlements and Limits. It was then adopted by the United States Senate and became effective February 22, 1821. As a result of this Treaty, the United States Supreme Court construed the boundary to be the ''gradient boundary line along the south bank'' in two decisions, the United States v. Texas (Greer County Case) in 1896 and Oklahoma v. Texas in 1923.
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The gradient boundary line is an artificial line that must be located and marked by a surveyor; however, it moves when the river moves. Therefore you cannot see it or mark it and it is thus a problem to use as a jurisdictional boundary. Lack of an identifiable boundary at a point in time is a significant problem for law enforcement, taxation, and other matters for the States as well as private property owners. Clearly, it is much better if an identifiable boundary is determined.
To settle the boundary issue, the Red River Boundary Commission was established and conducted a Texas-Oklahoma joint investigation of the appropriate method for establishing the boundary along the Red River so that the States would have a permanent identifiable state line. As a result, the States of Texas and Oklahoma have each passed legislation agreeing to use the vegetation line along the south bank as the boundary between the States, except for the area of Lake Texoma. The parties have agreed to retain the existing boundary and prepared a map of the boundary within the Texoma area. This will be memorialized in an agreement to be signed as soon as Congress approves the Compact. The Agreement has been approved by representatives of both States.
The vegetation line was selected because it meets three criteria adopted by the States as necessary for a new boundary. It is historical, practical and economical.
First, the line is historical in that it is substantially the same as the gradient boundary line resulting in very little, if any, land changing States. Neither State gains or loses substantial land.
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Secondly, the line is practical in that law enforcement officials, government officials and private citizens can locate the boundary on the ground without the necessity of a surveyor and a lawyer. Although the vegetation line may move, the States and Commission agree that the practical advantages of an easily visible boundary would be greatly preferable to the existing situation.
Third, it is economical because it is a natural monument and there are no costs to place the boundary on the ground and maintain it.
In addition, private property ownership will not be affected by the Compact. The Compact has a specific statement that titles and boundaries are not changed by its adoption. The only change to private property owners may be that a small amount of land may change from one jurisdiction to the other, but the ownership or boundaries of that land will not change.
This solution, arrived at by both the Texas and Oklahoma Commissions, approved by both Legislatures, and signed by both Governors finds a solution to a problem that has plagued residents of the Red River Valley for almost 200 years. By adopting an identifiable boundary that is substantially the same as the existing boundary, the states have come up with a solution that allows law enforcement, government officials, and private citizens to know what jurisdiction they are in and what laws to follow. I am pleased to see this reasonable and simple approach taken to resolve a difficult problem.
The legislation from the Texas Legislature, HB 1355 (as approved by the Governor of Texas on May 24, 1999) passed unanimously in both the House and Senate. In the Oklahoma Legislature, SB 175 (as approved by the Governor of Oklahoma on June 4, 1999) had a strong majority in the Senate of more than two to one, and more than nine to one in the House passed the final version. The legislation thus had overwhelming support in both States.
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Federal legislation is now needed under Article I, section 10, clause 3 of the United States Constitution. It provides that: ''No State shall without the consent of Congress***enter into any Agreement of Compact with another State, or with a foreign power. ***'' Congressional consent is required for such agreements and compacts in order to determine whether they work to the detriment of another state and to ensure that they do not conflict with federal law or federal interests.
Both States have worked very hard to come to the agreement before you today. I believe it is a solution that should have the full backing of Congress. Every Texas and Oklahoma Member of Congress adjacent to the boundary has supported this effort and cosponsored the legislation. I look forward to moving this bill forward and getting this issue settled once and for all. Again, I would like to thank the Chairman and Members for your consideration of House Joint Resolution 72 to grant consent to the Red River Boundary Compact.
Mr. GEKAS. We turn to Congressman Sandlin.
STATEMENT OF HON. MAX SANDLIN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. SANDLIN. Good afternoon, Chairman Gekas and Congressman Nadler, members of the subcommittee. The Texas Rangers have a saying, one right, one Ranger, and I think it is important the committee note it took only one Texas Ranger on a horse to repel the Governor of Oklahoma in a tank.
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It is a pleasure to be here with you this afternoon. It is my sincere desire that the Congress will act swiftly to grant consent to the Red River Boundary Compact and bringing certainty to the Texas-Oklahoma boundary line that was created almost 200 years ago, as has been mentioned, in the Louisiana Purchase.
The definition of the boundary along the Red River has a long history as set forth by the Congressman, my colleague. In 1821, the United States and Spain adopted the Treaty of Amity, Settlements and Limits to establish the boundary between the lands purchased by the United States as part of the Louisiana Purchase and the Spanish possessions there in North America. In 1896, the United States Supreme Court in a case of the United States v. Texas studied the language of this treaty and found the proper boundary to be the south bank along the Red River. Later, when oil was discovered under the river bed in 1923, a suit was commenced in the United States Supreme Court to determine title to the lands within the river bed. In its decision, the Court further defined the boundary as the gradient boundary line on the south bank as it existed when the treaty became effective.
Unfortunately, this definition of the Texas-Oklahoma boundary has created numerous jurisdictional problems in both States. The boundary is an artificial line in that it must be located by a survey, and that may move due to changes in the river, and if it is marked, the markers will be removed by the river over time and may not be on line if the river changes. The boundary is thus inappropriate for a jurisdictional line between the States.
The States of Texas and Oklahoma recognize that there are actual and potential disputes, controversies, criminal proceedings and litigation arising or that may arise out of the location of the boundary line between the States there along the Red River. An inability to identify the boundary at a point in time is a significant problem for law enforcement and law enforcement personnel. It is a problem for taxing authorities and citizens on both sides of the river. The interests of the party States are better served by establishing the boundary between the States through the use of a readily identifiable natural landmark than through the use of an artificial survey line.
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In order to address the problems created by an unidentifiable boundary, the Red River Boundary Compact mentioned by Congressman Thornberry sets the boundary between the States of Texas and Oklahoma as the vegetation line on the south bank of the Red River, except for the Texoma area where the boundary is established pursuant to procedures provided for in the Compact. The ability of the common citizen to identify the boundary without the assistance of a lawyer or a surveyor will help the judges in my district settle many cases that are held up over jurisdictional disputes.
In addition to providing a natural monument identifiable on the ground, the use of the vegetation line as the boundary marker maintains historical significance. Surveyors of the General Land Office and Bureau of Land Management have confirmed that the vegetation line is substantially the same as the gradient boundary line, the demarcation that has been used for years to define jurisdiction. Thus, by adopting the vegetation line as the boundary between the States, neither State would risk the loss of any substantial amount of property.
Finally, the terms of the Red River Boundary Compact will not affect private property ownership or boundaries. In fact, there is specifically language in the Compact that assures landowners that titles and boundaries are not changed by its adoption. The only change to private property owners may be that a small amount of land may change from one jurisdiction to the other. The ownership or the boundaries of that land will not change.
The Red River Boundary Compact referred to in House Joint Resolution 72 is the culmination of years of negotiations and discussions between the States of Texas and Oklahoma. The legislatures and Governors of both States have already approved the Compact with overwhelming support. Implementation of the Compact only awaits congressional consent, and I hope my colleagues will join me in supporting this common-sense solution to a long-standing problem in our States.
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Thank you.
[The statement of Mr. Sandlin follows:]
PREPARED STATEMENT OF HON. MAX SANDLIN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Good morning, Chairman Gekas, Congressman Nadler, Members of the Subcommittee. It is my pleasure to appear before the Commercial and Administrative Law Subcommittee this afternoon to discuss an issue of great importance to both Texas and Oklahoma. It is my sincere hope that the Congress will act swiftly to grant consent to the Red River Boundary Compact, bringing certainty to the Texas/Oklahoma boundary line created almost 200 years ago in the Louisiana Purchase.
The definition of the boundary along the Red River has a long history. In 1821, the United States and Spain adopted the Treaty of Amity, Settlements and Limits to establish the boundary between the lands purchased by the United States as part of the Louisiana Purchase and the Spanish possessions in North America. In 1896, the United States Supreme Court in the case of the United States vs. Texas studied the language of this treaty and found that the proper boundary described by it to be the south bank of the Red River. Later, when oil was discovered under the river bed in 1923, a suit was commenced in the United States Supreme Court to determine title to the lands within the river bed. In its decision, the Court further defined the boundary as the gradient boundary line on the south bank as it existed when the treaty became effective.
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Unfortunately, this definition of the Texas/Oklahoma boundary has created numerous jurisdictional problems for both states. The boundary is an artificial line in that it must be located by a survey, but may move due to changes in the river. If marked, markers will be removed by the river over time and may not be on the line if the river changes. The boundary is thus inappropriate for a jurisdictional line.
The states of Texas and Oklahoma recognize that there are actual and potential disputes, controversies, criminal proceedings and litigation arising, or that may arise, out of the location of the boundary line between the states along the Red River. An inability to identify the boundary at a point in time is a significant problem for law enforcement personnel, taxing authorities and citizens on both sides of the river. The interests of the party states are better served by establishing the boundary between the states through use of a readily natural landmark than through use of an artificial survey line.
In order to address the problems created by an unidentifiable boundary, the Red River Boundary Compact sets the boundary between the states of Texas and Oklahoma as the vegetation line on the south bank of the Red River (except for the Texoma area where the boundary is established pursuant to procedures provided for in the compact). The ability of the common citizen to identify the boundary without the assistance of a lawyer or surveyor will help the judges in my District settle many cases that are held up over jurisdictional disputes.
In addition to providing a natural monument identifiable on the ground, the use of the vegetation line as the boundary marker also maintains historical significance. Surveyors of the General Land Office and Bureau of Land Management have confirmed that the vegetation line is substantially the same as the gradient boundary line, the demarcation that has been used for years to define jurisdiction. Thus, by adopting the vegetation line as the boundary between the states, neither state would risk the loss of any substantial amount of property.
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Finally, the terms of the Red River Boundary Compact will not affect private property ownership or boundaries. In fact, there is specific language in the compact that assures landowners that titles and boundaries are not changed by its adoption. The only change to private property owners may be that a small amount of land may change from one jurisdiction to the other. The ownership or boundaries of that land will not change.
The Red River Boundary Compact referred to in House Joint Resolution 72 is the culmination of years of negotiations and discussion between the states of Texas and Oklahoma. The legislatures and governors of both states have already approved the compact with overwhelming support. Implementation of the compact only awaits congressional consent and I hope my colleagues will join me in supporting this commonsense solution to a longstanding problem. Thank you.
Mr. GEKAS. We thank our colleagues for the opening salvo in this issue between the two States. In the last few days we received a communication with respect to the Indian tribes that are concerned about this. I must pose the question to you two members, and to the next panel, as to how those issues were taken into consideration, if they were, at the time that the States adopted their agreement and came to Congress for verification and the Compact that would ensue. Are you satisfied that those concerns as they have expressed to us, and particularly with the role of the Bureau of Land Management—are you satisfied that they are well settled at this juncture?
Mr. THORNBERRY. Mr. Chairman, I am, and if I might take just a second to read from the Texas version of the Compact, although there is a similar statement in the Oklahoma version, it says, quote, this Compact does not change or affect in any manner the sovereignty rights of federally recognized Indian tribes over lands on either side of the boundary line established by this Compact. Tribunal sovereignty rights continue to be established and defined by controlling Federal law. It is explicitly in there. There is another section that Mr. Sandlin referred to which says private property ownership is not affected in any way by this law.
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So I think the clear intention all along was not to take away any rights that the Indian tribes have. They explicitly say it in there, and, frankly, I just think that there is no real cause for concern here.
Mr. SANDLIN. Mr. Chairman, in response I would concur with that and believe that we are satisfied in that regard, and basically this is just an act to set the boundary and settle jurisdictional disputes and certainly not an attempt to change ownership of any tribe or individual or entity in any way.
Mr. THORNBERRY. Mr. Chairman, I might only add, your next panel also has some good experts on this. There have been studies looking at this very issue that have concluded it has no effect, and they can go into those better than we can, but certainly from the plain language it seems pretty clear.
Mr. GEKAS. All right. I thank the members.
I now yield to the gentleman from New York.
Mr. NADLER. Thank you. Given the language that both of you just referred to, why are we hearing these concerns in the last couple of days, if you know?
Mr. THORNBERRY. My impression is that there is some uncertainty as to how those tribes' rights may be affected by this.
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Mr. NADLER. Do you mean uncertainty in the law, in the bill or in their perception?
Mr. THORNBERRY. Uncertainty in their perception, and as I have tried to see what the basis of that uncertainty is, I can't come up with anything, particularly in light of the clear language, in light of the studies that have looked at tribal law and tried to bring it forward. Perhaps the next panel can go through some of those details better than I can, but in trying to talk with some of them over the last 2 days, I found that maybe they didn't fully appreciate all of the provisions that were in the Compact, and I think that helps somewhat once they see them.
Mr. NADLER. May I ask one further question, and this is a more general question? I understand that—not, frankly, that it would affect my vote on this because it is up to the States—this Compact establishes the boundary as the vegetation line of the Red River except in that one area. How does that change the existing law? What was the boundary described as?
Mr. SANDLIN. The boundary goes along the river, and the problem has been the river moves.
Mr. NADLER. The vegetation line doesn't move?
Mr. SANDLIN. Not very much.
Mr. NADLER. Okay.
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Mr. THORNBERRY. Mr. Nadler, as Mr. Sandlin wrote, the two Supreme Court decisions have said the existing boundary is the gradient boundary line along the south bank. Now, again, you might want to ask this question of the next panel. My understanding is that you take kind of an average of where the water goes over a large number of years, and that is kind of where it is, but that is very difficult for a sheriff pursuing a criminal to sort out, and we have information that if you had a survey team go and mark it, it would take one survey team about 12 years and at the cost of several million dollars, and even then you are trying to figure out a way to put markers in a river bed that aren't going to stay there.
Mr. NADLER. Vegetation line is just a better description.
Mr. THORNBERRY. It is an easier description for regular folks to figure out where the boundary is. It is kind of a common-sense, practical solution.
Mr. NADLER. Thank you very much.
Mr. SANDLIN. You can see it on the ground. I have looked at pictures. It is amazing how the vegetation line does not move that much as the river moves. It does move, as you were indicating, somewhat, but it is something that is needed on the ground as a monumental-type reference.
Mr. NADLER. Thank you.
Mr. GEKAS. Yes. I have one more question, and again, the gentlemen from the respective States in the second panel will be able to answer some of this, too. But in their position paper, the tribes end by saying, while KCILUC, the committee, acknowledges that the boundary between Oklahoma and Texas is an issue that has been addressed, it also requests—that is a little different from a legal concern that it might affect the work of this committee—that both States acknowledge that the committee, the tribal committee, represents the interests of the three Nations and their citizens, and their rights are as important as the States' rights in the lands, water and other resources that are subject of this Compact.
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Do you believe that they are asking for a special resolution or some evidentiary documentation that the two States, in effect, are doing what you say is already acknowledged, that their rights are respected? If that were what they really require, that would happen outside the scope of this committee and would satisfy all parties. We wouldn't even have to acknowledge any further issue, it seems to me. I may be wrong, but that is the way I read this at the moment.
Mr. THORNBERRY. Mr. Chairman, if I may offer a thought, it may just be that when the representative of the General Land Office in Texas comes to testify in a few moments, if he can reassure the tribes of Texas' intention to respect their sovereign rights and to follow the applicable Federal law as the Compact requires, that may go a long way towards helping to allay these concerns. My impression is that if there is a small amount of land that may shift from Oklahoma to Texas, the tribes may not have a history of dealing with the State of Texas as they do with the State of Oklahoma, and just a reassurance that the government of the State of Texas will respect those rights, whatever they may be, may help as much as anything.
Mr. GEKAS. You may have touched upon a saving point here. The testimony that we will receive on that point in answer to the question that I posed to the next panel will become a part of the record. That may satisfy all parties concerned once it is in print and becomes a part of the record of the Compact.
Mr. THORNBERRY. I think you are right.
Mr. GEKAS. I have no further questions. We thank you very much for your contribution, and we excuse you with our thanks.
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And now I will yield again to the gentleman from New York for an opening statement, belated as it might be.
Mr. NADLER. Which will be brief. Thank you, Mr. Chairman.
Today we assemble to perform our constitutional duty to review and grant approval to compacts between consenting States. This Compact has the support of both State legislatures, and we will hear from—we just heard from a bipartisan delegation of members from the affected region in support of it. That is a powerful argument for approving it, and I want to commend the members for their diligent efforts on behalf of the interests of their respective States.
I would mention that, as we have just heard, we have recently heard from three Native American Nations who have expressed some concerns regarding statutory and treaty rights in the area. In fact, with the Federal Government added into the mix, there are now six sovereign entities with an interest in this matter, one Federal Government, two State governments, three Native American Nations, and I would hope that before the full committee marks up the bill, we can have everyone satisfied that all their legitimate concerns have been addressed in a reasonable fashion.
Those concerns may be perceptions only, or they may be real. We may elucidate that a little more in the next panel, but I would hope before the markup, that the full committee—that everybody will have had an opportunity to be heard and be satisfied.
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It is certainly the right of States to set their respective boundaries, but this should be done in a manner mindful of the need to be respectful of Native treaty rights and of the obligation of the Federal Government to manage their natural resources and of the obligation of the Federal Government to protect treaty rights of Native American Nations.
Mr. Chairman, I look forward to working with you and with the sponsors to resolve these issues, and I yield back the balance of my time.
Mr. GEKAS. The gentleman has anticipated the decision of the Chair to proceed with the markup with the general understanding, and one that will be made part of the record, that subsequent negotiations or consultations with respect to the Indian issues here will be negotiated and finalized between the time of this markup and the full committee and/or the floor. If, indeed, we come to such a concrete understanding about those concerns, we may be able to even skip the full committee deliberations and go directly to the floor. We will have all of that in mind.
So we will proceed with the markup today after hearing from the next panel, and I invite those individuals to come forward at this time.
Representative David Braddock is the Representative from the 52nd District in the Oklahoma House of Representatives, a native off Altus, Oklahoma. Altus, you say?
Mr. BRADDOCK. Altus.
Mr. GEKAS. Representative Braddock received his undergraduate and law degrees from the University of Oklahoma. He is serving his third term in the Oklahoma House and is, among other things, a member of the Red River Boundary Commission Committee. He was president of the Jackson County Bar Association, chairman of the board of directors of the Altus Chamber of Commerce, and serves on the board of directors of the First National Bank in Altus.
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Eric Sigsbey joins him at the panel, who was a member of the Texas General Law Office as general counsel and senior deputy commissioner earlier this month. That is, he became a member earlier this month. Prior to that he served on the legal staff of the Atlantic Richfield Company since 1991, where he most recently served as chief counsel for ARCO Permian in Midland, Texas. Prior to that he practiced law with two major Houston law firms. He obtained his undergraduate degree from the University of Houston at Clear Lake in 1984 and his law degree from the University of Houston Law Center in 1988. Prior to law school, Mr. Sigsbey spent 7 years conducting oil and gas title examination real estate work and 7 years in petrochemical operations and safety. Mr. Sigsbey is an expert in the area of oil and gas, and as such, is active in that area with the State bar of Texas and other organizations.
We welcome the gentlemen. We tell them in advance, as we do all panels, that their written statements will become a part of the record automatically. We will ask that they try to restrict their oral testimony to the customary 5 minutes that we allot the witnesses, and we will ask them to testify in the order in which they were introduced, with the gentleman from Oklahoma first.
Please proceed.
STATEMENT OF DAVID B. BRADDOCK, THE OKLAHOMA HOUSE OF REPRESENTATIVES, DISTRICT 52, ALTUS, OK
Mr. BRADDOCK. Thank you, Mr. Chairman and Congressman Nadler. I am certainly appreciative and thank you for the opportunity to appear before the subcommittee today.
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As you understood, it is an interesting issue. It is something that is really different. It is not something that you would run across every day. The agreement on a jurisdictional boundary between the States of Oklahoma and Texas, it is a truly milestone between our States, and we are really excited about that. Since before the State of Oklahoma became a State it was an issue, as we have heard, and it is truly something that I am proud of to have been a part of and worked on.
After my election in 1996, I found out that I was automatically a member of this commission, and I will be honest with you, I got to thinking about it, looked at it a little bit, and thought, well, how difficult could this be? I read the information, and then I realized, oh, my gosh, this is extremely difficult and extremely complicated. So I have spent a tremendous amount of time in the last 2 1/2 years working on this very issue. I deal a lot with property law, and I did in my private practice, and so this was something that was somewhat interesting to me.
You know, why is it important? It is really important because the river has been a no man's land. It has really been a difficult area. There is a boundary that can be found, and that is not a problem. The problem is to find the actual boundary at any point, you really almost have to go to court, and you have to present witnesses and testimony. You have to have attorneys with you. You have to go out and obtain an engineer and geologist sometimes to determine where this gradient boundary is, and it is ascertainable. It is just problematic in finding it, and it also moves, and that is another one of our big problems.
It is unusual as far as the boundary is concerned because it does move. Most people think of a boundary as being a fixed, identifiable point, a line, and this just moves, and it really makes it an interesting situation.
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What does the vegetative line along the south bank mean to us? Does it represent a perfect solution? No. It represents a workable solution. We looked at every possible line that you can think of from inserting poles in concrete into the river bed to trying to set out using the idea of a line with a GPS locator, et cetera, and this really represents what we have come up with as something that is workable for the average person. It is workable for law enforcement, and it is something that everyone can live with and work with, and we are proud and pleased to present this to your subcommittee today and ask you for hopefully its ultimate passage.
I will be glad to attempt to answer any questions in a second, whatever I can do.
Mr. GEKAS. Thank you.
[The statement of Mr. Braddock follows:]
PREPARED STATEMENT OF DAVID B. BRADDOCK, THE OKLAHOMA HOUSE OF REPRESENTATIVES, DISTRICT 52, ALTUS, OK
Introduction
Mr. Chairman, and members of the subcommittee.
It is my pleasure to have been invited to appear before the subcommittee today and my privilege to represent the State of Oklahoma in this phase of the Congressional legislative process.
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Purpose of Presentation
I appear before the subcommittee in order to provide a brief background regarding the process by which the States of Oklahoma and Texas have achieved a resolution of a troubling issue regarding the location of the border and political boundary between the two states. This issue has its genesis in some of the more important land acquisition transactions in United States history, including the Louisiana Purchase of 1803, the Treaty of Amity, Settlement and Limits of 1819, and treaties entered into between the United States government and a number of Native American tribes.
The two states believe that after approval by Congress and any required action within the Executive Branch of the federal government, the Red River Boundary Compact, as formally expressed in the legislative enactments of Oklahoma and Texas, a long standing difficulty will have been resolved.
Primary Issue Related to the Red River as the Method to Define a Political Boundary
The basic issue relates to the topographical or geological features of the Red River and the use of those features (or the terminology describing them) in the legal systems of the federal government and the two respective states. The goal of the Compact is to allow both states to determine with certainty the area over which each state may legally exercise its jurisdiction and to precisely identify its respective geographic boundary.
For most of the period relevant to the issues addressed by the Compact, the controversies over the Red River have depended for resolution upon a definition of the ''south bank'' of that watercourse. This does not appear to present any difficulty in theory, but the characteristics of the Red River can make even this simple definition problematic.
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Geographic Characteristics of the Red River
With respect to the border between Oklahoma and Texas, the Red River extends a distance of approximately five hundred seventeen (517) miles.(see footnote 1)
The Red River flows from west to east, but areas of the river especially in the region from the 100th meridian of West Longitude (the western border of Oklahoma) to the area where the river enters Lake Texoma are frequently dry and do not actually flow unless there has been rainfall.
In this vicinity, the area south of the middle of the river channel can consist largely of sand deposits (sometimes known as ''alluvial'' sand). The river carries this material from its origins eastward as it traverses the land.
Where there is not an active watercourse, the sand deposits may extend southward from the area where the river can flow until eventually the topography changes into a ''soil profile''. In these areas, it may be most difficult to determine an identifiable ''south bank''. The transition from a flat profile to a recognizable river bank may not be easily determined in these areas.
In other areas of the river, a ''cut bank''—a term used to describe the way in which deposited sands are eroded by action of the river—may or may not be discernible. In areas where a cut bank does exist, it may or may not coincide with the type of ''bank'' described in cases decided by the United States Supreme Court. In any event, not many people have the technical resources at their disposal to determine a legal definition of a ''bank'' in areas like this.
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In cases where one may be reasonably certain that they have located a cut bank which is also legally the ''south bank'' of the Red River, the river may rise, the bank is eroded and once again one must face the task of ''relocating'' the bank of the river after the flood has subsided.
Historical Overview of the Red River as the Political Boundary
For purposes of your consideration of House Joint Resolution No. 72, the Red River has existed as the political boundary between Oklahoma and Texas because it defined the northern boundary of the State of Texas and later the southern boundary of the State of Oklahoma. Technically, the Red River (and its south bank) could only have been the political boundary between the two states since November 16, 1907, the date upon which Oklahoma was admitted as the 46th state of the United States—Texas having been admitted in 1845.
Reference to the Red River to define the boundary between the two states has always created some uncertainty over the precise location of the political and geographic boundaries between Oklahoma and Texas. In some instances, the uncertainty has led to litigation which has reached the highest court in the land.
U.S. Supreme Court Cases and the Gradient Boundary Method
As you have studied the issues associated with the Red River Boundary dispute you may have heard of references to a number of United States Supreme Court cases regarding the topic. Without discussing the fact situations or the judicial holdings in these very complex cases, the United States Supreme Court eventually adopted a method known as the ''gradient boundary'' (a land surveying field technique) to establish the existence of the ''south bank'' of the Red River.
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The average person has enormous difficulty relying on this methodology and interpreting the judicial decisions which discuss it.
The two states were searching for a method that did not necessarily require the expertise of lawyers, surveyors, engineers and geologists. This is the primary reason the states agreed in the Compact provisions about the use of the ''vegetation line''. One can determine with relative ease the type of vegetation which is common to the south bank of the Red River. People who have lived in this area are very familiar with the actions of the Red River and with the impact that flooding can have on native vegetation. It is a familiar point of reference. It is discernible without any extraordinary tools or aids.
Border Dispute Resolution Process Established by Oklahoma and Texas
The two states have struggled with the border dispute for a number of years. Although there had been prior discussions about the Red River issue, Oklahoma first established a formal Red River Boundary Commission in 1991. The early efforts did not result in an agreement or anything resembling a compact.
In 1995, Oklahoma established a Red River Boundary Commission pursuant to Enrolled House Joint Resolution No. 1011. This measure re-created the Commission which had been established by the Legislature in 1991. The original Commission expired on June 30, 1994, without having made any formal recommendation regarding a method to resolve the difficulties surrounding the Red River as a political boundary.
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In 1996, pursuant to Enrolled House Bill No. 2213 supported by Oklahoma House Speaker Loyd Benson, Oklahoma made its Red River Boundary Commission a permanent statutory entity. This Commission worked vigorously and met with the Texas Red River Boundary Commission in 1996, 1997 and 1998. During this period, members of both Commissions made a number of personal visits to sites along the Red River to observe the topography of the river, the physical characteristics of the land and interface of the river with its banks.
In part, the difficulty in the legal system with defining the border is related to the way in which the watercourse or channel of the Red River affects and is affected by the banks of the river.
The Oklahoma Red River Boundary Commission consists of the Attorney General of the State of Oklahoma, a designee of the Governor of the State of Oklahoma, a representative of the Kiowa, Comanche and Apache tribal land use committee, and the members of the Oklahoma State Senate and the Oklahoma House of Representatives whose districts include the land through which the Red River traverses.
The permanent Oklahoma Red River Boundary Commission ultimately recommended a ''working draft'' of a Red River Boundary Compact to the Oklahoma Legislature in the spring of 1999 while the Oklahoma Legislature was still in session.
Originally contained in a proposed Conference Committee Substitute for Engrossed House Bill No. 1587 of the 1st Session of the 47th Oklahoma Legislature, but as finally enacted in the form of Enrolled Senate Bill No. 175 of that same session, the Oklahoma Compact was a product of a true representative democratic process during our legislative session. The bill was signed by Governor Frank Keating on June 4, 1999 and was effective immediately upon the Governor's signature.
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The State of Texas enacted its version of the Red River Boundary Compact pursuant to Governor George W. Bush's signature of Enrolled House Bill No. 1355 of the 76th Texas Legislature (1999).
The Red River Boundary Compact
The statutory citation for the Oklahoma Red River Boundary Compact is 74 O.S. Supp. 1999, §6105–6109. The text of the statutory provision containing the compact may be cited as 74 O.S. Supp. 1999, §6106. The Compact is divided into articles as follows:
Article I.
Purpose
Article II.
Establishment of Boundary
Article III.
Sovereignty
Article IV.
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Pending Litigation
Article V.
Public Records
Article VI.
Taxes
Article VII.
Property and Water Rights
Article VIII.
Effective Date
Article IX.
Enforcement
Article X.
Amendments
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The Oklahoma Compact is structured in a manner identical to the Texas Compact; however, there are some differences in the wording of the two laws.
Use of the ''Vegetation Line'' to Define the Border
The critical portion of the Compact is contained in Article II governing Establishment of the Boundary. In paragraphs 1 and 2 of subsection A of Article II, you will find a definition of ''vegetation'' and ''vegetation line''.
The definitions are important enough to reproduce in full:
1. ''Vegetation'' means, trees, shrubs, grasses, and other plant species that substantially cover the ground. Whether the vegetation substantially covers the ground is determined by reference to the density of the coverage of the ground by trees, shrubs, grasses, and other plant species in the area adjacent to the relevant portion of the riverbed; and
2. ''Vegetation line'' means the visually identifiable continuous line of vegetation that is adjacent to that portion of the riverbed kept practically bare of vegetation by the natural flow of the river and is continuous with the vegetation beyond the riverbed. Stray vegetation, patches of vegetation, or islands of vegetation within the riverbed that do not form such a line are not considered part of the vegetation line. Where the riverbed is entered by the inflow of another watercourse or is otherwise interrupted or disturbed by a man-made event, the line constituting the boundary is an artificial line formed by extending the vegetation line above and below the other watercourse or interrupted or disturbed area to connect and cross the watercourse or area.
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These two definitions are contained in the following portion of the Compact—the wording of this part of the Compact is identical in both states:
The permanent political boundary line between the states of Oklahoma and Texas along the Red River is the vegetation line along the south bank of the Red River . . .
The Need for a Practical Boundary
After repeated attempts by both states to develop a methodology by which the boundary could be described by a latitude and longitude system, metes and bounds description and other methods, the states were able to compromise and reach agreement about the use of the tangible and visible features of this unique watercourse as a way to define the boundary. While some more complex method may be more mathematically or geographically precise, those methods are defective because they are impractical for people who need to be able to determine their location without expensive surveying equipment, geographic position satellite units and similar types of technology.
The advantage that the two jurisdictions agree upon is that persons who live near the Red River or who own or may seek to own or develop property along the Red River and those charged with the enforcement of state law can use the vegetation line as a simple method to determine where a person, an object or land is located: Oklahoma or Texas.
Texoma Area and the Agreement Authorized by the Compact
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With one exception, the vegetation line will establish the boundary between the two states along the length of the Red River from the 100th meridian of west longitude (the western border of Oklahoma with Texas running in a north-south line) to the 94th meridian of west longitude (the eastern border of Oklahoma with Arkansas running in a north-south line).
There is one area of the border which will not be established by the vegetation line. This area is described in the Compact as the ''Texoma Area''. Lake Texoma, a project of the U.S. Army Corps of Engineers, was formed by capture of the waters of both the Red River and the Washita River. Within the body of Lake Texoma and for a short distance east of a structure known as the Denison Dam at the east end of Lake Texoma continuing east to a point at which Shawnee Creek flows into the Red River the two states have established a process by which a designee from each of the respective states can reach agreement about the location of the boundary in this area.
The two states are in the final stages of negotiation for this Texoma Area Boundary Agreement, which, when fully executed by both designees, will become part of the Compact itself.
The working draft of this Agreement uses points of latitude and longitude to establish an actual line within Lake Texoma which defines the boundary between the two states in that body of water and for a short distance east of the Denison Dam until the Red River exhibits its natural characteristics and the vegetation line again becomes the controlling method for establishing the boundary.
Effect of Approval
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If approved, the Compact states that it does not change:
1. The title of any person or entity, public or private, to any of the lands adjacent to the Red River;
2. The rights, including riparian rights, if any, of any person or entity, public or private, that exist as a result of the person's or entity's title to lands adjacent to the Red River; or
3. The boundaries of those lands.
The Compact also specifically provides that it does not change or in any manner affect the sovereign rights of federally recognized Indian tribes over tribal lands on either side of the boundary line established by the Compact.
The Compact Clause
The States of Oklahoma and Texas having enacted the statutory provisions which identify the vegetation line as the method for establishing the boundary and having agreed upon a process to establish the boundary in the Texoma Area, Oklahoma respectfully requests that the subcommittee make a favorable recommendation to the full Judiciary Committee for passage of House Joint Resolution No. 72 in compliance with Article I, Section 10, clause 3 of the Constitution of the United States of America—the ''Compact Clause''.
Closing
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I greatly appreciate the opportunity to have presented testimony to the subcommittee today. Thank you for your time and for your consideration of this matter. The States of Oklahoma and Texas believe that because of the geological and topographical characteristics of the Red River a perfect solution to the border issue may not ever be possible; however, with the enactment of the Compact in state statutory form and with federal approval pursuant to the Compact Clause, both states believe that future disputes can be kept to a minimum and that natural persons and business entities may be able to make more productive use of the areas around the Red River border area based upon a more legally certain and practically ascertainable method to identify the state having legal and political jurisdiction over a particular area.
On behalf of the people of my district and the people of the State of Oklahoma, I thank you sincerely for your consideration of this matter related to the sovereign powers of the State of Oklahoma.
Mr. GEKAS. We turn to Mr. Sigsbey.
STATEMENT OF ERIC SIGSBEY, ESQ., GENERAL COUNSEL, TEXAS GENERAL LAND OFFICE, AUSTIN, TX
Mr. SIGSBEY. Mr. Chairman, Congressman Nadler, it is a pleasure and an honor to appear before you this afternoon to represent Texas Land Commissioner David Dewhurst as you consider House Joint Resolution 72, which grants the consent of the Congress to the Red River Boundary Compact. The State of Texas by a unanimous vote of the Texas Legislature wholeheartedly supports the passage of the Red River Compact. Congratulations are also expressed to Congressmen Thornberry, Sandlin and Watts for their leadership in bringing this important and complex measure forward with a practical solution. Its passage will greatly simplify the identification of the jurisdictional boundary between the great States of Texas and Oklahoma along the Red River.
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There is no disagreement between Texas and Oklahoma that the boundary between the two States is the south bank of the Red River. This fact has been established by treaty and by the United States Supreme Court. However, determining where that boundary is from time to time has been a complex, technical and difficult task. This Compact will establish a practical method that will allow any property owner, law enforcement officer or recreational user of the river to easily identify where the political boundary actually lies along the south bank of the river between Texas and Oklahoma.
Texas and Oklahoma agree that the vegetation line on the southern bank of the Red River should be adopted as the political boundary. This will not change private ownership or boundaries, nor will it change or affect in any manner the sovereignty rights of federally recognized Indian tribes over the lands on either side of the boundary established by this Compact. Tribal sovereignty rights continue to be established and defined by controlling Federal law.
In 1995, the 74th Legislature passed House Concurrent Resolution 128, which created the Texas Red River Boundary Commission. The intent was for the commission to work with its counterpart in Oklahoma to make a joint investigation of the appropriate method for establishing the boundary between Texas and Oklahoma along the Red River. Governor George W. Bush signed the legislation, which gave him the authority to appoint a board comprised of private citizens.
Many meetings and hearings have been held all along the border to obtain citizen input and solicit ideas on how to fashion a workable agreement with Oklahoma. The vegetation line concept has been enthusiastically received by Texans.
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The Texas Red River Boundary Commission established three principal requirements for finding a solution to the boundary. They determined that the final solution should be, number one, historically accurate; number two, practical so that common citizens can identify the boundary without the help of a surveyor or a lawyer; and three, an economical method of establishing the boundary and determining where it lies. On all three accounts the use of the vegetation line met the objectives of the Texas commission.
Earlier this year House Bill 1355 was introduced and passed unanimously by the House and Senate of the 76th Texas Legislature. This legislation, the Red River Boundary Compact, was signed by Governor Bush on May 24th, 1999. The Oklahoma Legislature passed Senate Bill 175, the Oklahoma Compact, earlier this year. Governor Keating signed the measure on June 4, 1999.
There is one exception to the use of the vegetation line as the boundary on the south bank of the river. It is Lake Texoma, plus a 1/2-mile stretch of the river just below the dam that creates Lake Texoma. The Compact legislation adopted by each State clearly establishes the process for the Texoma boundary to be negotiated and made part of the Compact.
Mr. Chairman, the State of Texas looks forward to implementing this Compact and to greatly simplify the method for determining where the boundary between Texas and Oklahoma along the Red River actually exists. This Compact has tremendous support from the State, and we are pleased to join our friends from the north of the river in urging this committee's adoption of House Joint Resolution 72.
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Again, thank you for the opportunity to provide these remarks today.
Mr. GEKAS. We thank the gentleman.
[The statement of Mr. Sigsbey follows:]
PREPARED STATEMENT OF ERIC SIGSBEY, ESQ., GENERAL COUNSEL, TEXAS GENERAL LAND OFFICE, AUSTIN, TX
Mr. Chairman and Members, it is a pleasure and a honor to appear before you this afternoon to represent Texas Land Commissioner David Dewhurst as you consider House Joint Resolution 72, which grants the consent of the Congress to the Red River Boundary Compact. The State of Texas wholeheartedly supports the passage of this resolution, the bill having passed the Texas Legislature without a dissenting vote, and congratulates Congressmen Thornberry, Sandlin and Watts for their leadership in bringing this important measure forward. Its passage will greatly simplify the identification of the boundary between the great states of Texas and Oklahoma along the Red River.
There is no disagreement between Texas and Oklahoma that the boundary between the two states is the south bank of the Red River. This fact has been established by treaty and the United States Supreme Court. What we will accomplish through the adoption of this compact is a method to easily identify where the political boundary actually lies along the south bank of the river. After several years of work by the Texas Red River Boundary Commission and its counterpart in Oklahoma, a practical methodology of identifying the boundary has been chosen that will allow any property owner, law enforcement personnel or recreational user of the river to clearly determine where the line is that separates the two states along the Red River.
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Texas and Oklahoma agree that the vegetation line on the southern bank of the Red River should be adopted as the boundary. This will not change private property ownership or boundaries.
Let me briefly explain how Texas came to the point of endorsing the vegetation line as a solution to the decades old problem of determining just where is the official Red River boundary between Texas and Oklahoma.
In 1995, the 74th Texas Legislature passed House Concurrent Resolution 128, which created the Texas Red River Boundary Commission. The intent was for the commission to work with its counterpart in Oklahoma to make a joint investigation of the appropriate method for establishing the boundary between Texas and Oklahoma along the Red River such that the states would have a permanent identifiable state line. Governor George W. Bush signed the legislation, which gave him the authority to appoint a board comprised of private citizens. This commission has now worked for four years to develop, draft and negotiate the compact and ensure that Texans were allowed considerable opportunities for input into the process. Countless meetings and hearings have been held all along the border to obtain citizen input and solicit ideas on how to fashion a workable agreement with Oklahoma. The vegetation line concept has been enthusiastically received by Texans.
Earlier this year, House Bill 1355 was introduced and passed unanimously by the House and Senate of the 76th Texas Legislature. This legislation, the Red River Boundary Compact, was signed by Governor Bush on May 24, 1999. The compact is based on the establishment of certain principles and objectives of the Texas commission, and, of course, through negotiations with Oklahoma. The Oklahoma Legislature passed Senate Bill 175, the Oklahoma Compact, earlier this year. Governor Keating signed the measure on June 4, 1999.
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The current legal boundary between Texas and Oklahoma is the gradient boundary line along the south bank of the Red River. Because of the unique properties of the Red River, the challenge of the Texas and Oklahoma boundary is one of identification and not one of movement. All riparian boundaries move to some extent and rivers are often used for boundaries, such as the Red River. Movements of the boundary due to changes in the river do not cause problems, but the lack of ability to identify the boundary at a point in time is a significant problem for property owners, law enforcement personnel, taxing authorities and citizens on both sides of the river. If the boundary can be identified, movement of the river is not a problem. But identification is clearly a problem along the Red River.
The Texas Red River Boundary Commission established three principals as requirements for finding a solution to the boundary issue. They determined that the final solution should: be historically accurate; be practical so that common citizens can identify the boundary without the help of a surveyor or lawyer; and, be an economical method of establishing the boundary and determining where it lies. On all three accounts, the use of the vegetation line met the objectives of Texas commission.
In general terms, the vegetation line means the visually identifiable continuous line of vegetation that is adjacent to the riverbed. In practical terms, an individual should be able to face the south bank of the river and identify the vegetation line. It would be almost impossible for all but a few skilled surveyors to identify the gradient boundary line.
The Compact establishes the boundary between Texas and Oklahoma along the Red River as the vegetation line on the south bank of the river, with one exception. In the Lake Texoma area the two states have agreed to use points of longitude and latitude through the lake that straddles the state line, plus a one-half mile stretch of river just below the dam that creates Lake Texoma.
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Lake Texoma is a Corp of Engineers project. Since the original river bed has been covered by water through the creation of Lake Texoma, using the vegetation line across this specific portion of the boundary would not be practical. The two states have agreed on this point. As a result, they have developed a separate agreement on how to handle the unique aspects of the Lake Texoma area to ensure that man-made changes to the natural channel of the river are addressed. The Compact legislation adopted by each state clearly establishes the process for the Texoma area boundary to be negotiated and made a part of the Compact.
Mr. Chairman, the State of Texas looks forward to implementing this Compact and thereby simplifying the method of determining where the boundary between Texas and Oklahoma along the Red River actually exists. This Compact has tremendous support from the state and we are pleased to join our friends from north of the river in urging this committee's adoption of House Joint Resolution 72.
Again, thank you for the opportunity to provide these remarks today.
Mr. GEKAS. Let the record indicate that the gentleman from South Carolina, Mr. Graham, has joined the committee.
Mr. Graham, I can attest, is an expert on boundaries because we yielded the Mason-Dixon boundary to him a couple of months ago. At my invitation he crossed it without incident, and we are glad to see him now. We ask him to stay put until we conduct our markup.
In the meantime, the question recurs on the interest as outlined in the letter issued to us by the tribal interests in your respective States. I would like to hear your commentary for the record, and very importantly for the record, so that we can properly deal with it after this markup and before the eventuality of this legislation coming to the floor of the House of Representatives. But before I yield to you for the answer to those questions, I recognize the lady from California, Mrs. Bono, who now joins the committee for the final stages of this deliberation. You may proceed as you wish.
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Mr. BRADDOCK. Thank you, Mr. Chairman, members. I believe one of the important things to understand is the Kiowa, Comanche and Apache tribes, they had a representative on this commission, and as further explanation to the committee, the Kiowa, Comanche and Apache tribes typically do a lot of work together. They enter into a lot of agreements together, business-type arrangements together, so that is not unusual at all for them to have one person representing them per se. I wanted to make sure you understood that. That is standard business practice for the way they handle their affairs.
It was very important to the State of Oklahoma to make sure that the Native American tribes were protected in this agreement. We obviously have a long history of dealing with the Native American tribes in our State. They are a very important part of our State, and it was always my understanding as a commission member, from the time that I was elected in 1996, that our intent was that we were not going to affect in any way tribal sovereignty rights at all in dealing with their rights, their land, their ownership, their mineral interests in any way, shape or form. Those are issues that are solely left to the Federal Government, between the Federal Government and the Native American tribes.
Let me reflect for you article 3 which deals with sovereignty issues in our Compact. It actually goes forth and states, this Compact does not change or affect in any manner the sovereignty rights of federally recognized Indian tribes over tribal lands on either side of the boundary line established by this Compact. Tribal sovereignty rights continue to be established and defined by controlling Federal law.
We wanted to make sure that there is no question that the only entity that can deal and potentially affect or change tribal sovereignty rights would be the Federal Government. We do not have that ability, and we are not trying to establish that ability in any way, shape or form.
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So I would hope—you know, Mr. Chairman, you mentioned before a concern about respecting the rights. I wanted to tell you that I believe—I feel like the State of Texas joins with us, the State of Oklahoma. We acknowledge that the tribal rights are extremely important, and we certainly want to do everything we can to recognize those, and we have attempted to make sure that we do not in any way adversely affect them.
Mr. GEKAS. Are you saying that the Compact recites these concerns?
Mr. BRADDOCK. Yes.
Mr. GEKAS. In the body of the Compact, in the agreement you have reached which you now refer to us as the Compact, they are addressed, according to what you are telling me?
Mr. SIGSBEY. Both legislatures passed similar provisions in their legislation, in their bills, and what I have said in my oral statement is a quote from the Texas bill.
Mr. GEKAS. And you concluded, as the Chair is beginning to conclude, that even if somehow this Compact can be interpreted to harm, as the way the tribes would look at it, it would still be subject to existing Federal law; that whatever we approve as the ultimate Compact does not supersede existing Federal law that protects the tribes in their sovereignty. Is that the way you come to a conclusion on that?
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Mr. BRADDOCK. That is correct, Mr. Chairman, and I believe both Compacts, the Texas and Oklahoma, have the exact same language. Tribal sovereignty rights continue to be established and defined by controlling Federal law.
Mr. SIGSBEY. I don't believe it was ever the intent, and I certainly believe that the provision was expressly put in there for that purpose, to avoid any implication that this Compact could have any impact on Native American lands. Those are Federal lands, under the BIA and the BLM, and we have the utmost respect for the tribal authorities and the Federal authorities over those lands. We understand the trust arrangement, and we have no intention of interfering with that relationship at all.
Mr. GEKAS. The Chair yields back the balance of his nontime and yields to the gentleman from New York.
Mr. NADLER. Thank you. I have two questions. First, for Representative Braddock, you said that it is a normal course of doing business for the three tribes to be represented by one person. Were they consulted on this? Did they agree to that in respect to this?
Mr. BRADDOCK. As far as I know, I have never heard an objection to that at all. Just because they had one representative didn't mean there was just one person. There may have been five or six parties representing different tribes there. They had one representative on the commission that was a voting member. So my understanding was that was agreed upon and not ever a point of contention.
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Mr. NADLER. Okay. Thank you.
Let me ask whoever wants to handle it, maybe Mr. Sigsbey, the letter we have or the communication we have from the Kiowa, Comanche and Apache Intertribal Land Use Committee reads in part as follows. It does say that by its express terms, the Compact does not change in any way the sovereignty of the tribes or the ownerships of their land and resources. Then it says, since the act of June 12, 1926, oil and gas revenues from these lands have gone in part to the tribes. Any definition of the Texas boundary might increase or decrease the public lands and the oil and gas revenues depending upon the movement of the new Texas boundary, either toward or away from the medial line of the Red River, see attached map. And then it goes on and says, the Compact may also change the boundaries of public lands now held by the Bureau of Land Management. As the Oklahoma Compact acknowledges, it does not interfere with private land or personal entity, public or private land adjacent to the Red River, unlike the Texas Compact, which acknowledges that the Compact does not interfere with or otherwise affect private property rights or title to property.
The fact that the State of Texas does not recognize public lands poses problems with the public lands now held by BLM. If the proposed boundary line affects such lands, will the BLM lose this land to the State of Texas? The KCA, that is the intertribal committee, derives benefits from the public lands held by the Bureau of Land Management. The fact that the Texas Compact does not recognize public lands may adversely affect the KCA. Despite the fact that the public lands were created by Congress, if Congress ratifies the Red River Compact, it may directly and indirectly ratify the taking of such public lands in accordance with Texas law. This would result in a loss of royalties to the KCA from the public lands held by the BLM as well as the loss of lands identified in Oklahoma. The loss of royalties to the KCA as a result of Congress ratifying this Compact raises the issue of whether Congress would be fulfilling its trust obligation to the tribes.
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Can you comment on all that?
Mr. SIGSBEY. With all due respect, I do believe that is a misconception about Texas law. As you all know, this goes back to a long history. Texas came into this Union differently than a lot of other States. Texas gave up a number of lands to the Federal Government, but it retained sovereignty over its own nonprivately-owned lands. Now, there are Federal lands within Texas, but those are acquired lands that have been acquired by the Federal Government. We have a number of parks and national forests and what have you.
Texas—and the term, ''public lands'' is in a sense a term of art, I believe, as it is being used in the tribal community, certainly by the BLM. To state that Texas doesn't recognize public lands is, quite frankly, inaccurate. Texas clearly recognizes——
Mr. NADLER. Let me just ask this without going into a whole history, which is very interesting in a history seminar, but not right on point here. Land that is now owned in Oklahoma by the Bureau of Land Management, if such land, any such land, any acre of such land, should now be construed as on the other side of the boundary in Texas, will it still belong to the Bureau of Land Management?
Mr. BRADDOCK. Sure.
Mr. SIGSBEY. Yes, sir.
Mr. NADLER. Under this Compact?
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Mr. BRADDOCK. Yes, sir.
Mr. SIGSBEY. I don't think the provision that we have in there could be any more clear from a legal standpoint that this Compact does not change the jurisdictional authority of the BLM or the BIA or any other tribe.
Mr. NADLER. And the royalties the tribes now derive from any lands that might switch sides of the border, whether now under the BLM or not, would not be affected?
Mr. SIGSBEY. No, sir.
Mr. NADLER. Okay. I appreciate your answer.
Let me simply say, as I said in my belated opening statement, these are concerns that have been raised. They may very well be perceptual concerns, and I am going to vote for this, to send this Compact to the full committee today. I certainly hope that between now and whenever the markup is scheduled at the full committee that people from Texas and Oklahoma and your lawyers and so forth will talk to the people from the intertribal committee and will allay all such concerns; and if there are any amendments necessary, that they will be offered; and if it is simply a matter of perception, that those perceptions will be satisfied so we don't have a major issue in front of us at the committee, and we can deal with this legislation with dispatch.
Mr. GEKAS. The Chair thanks the gentleman.
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Let the record indicate that the lady from Wisconsin, Ms. Baldwin, has joined the committee, as well as the gentleman from Alabama, Mr. Bachus, and the gentleman from Louisiana, Mr. Vitter. Their presence, and those noted before, constitutes a reporting quorum. For those purposes then, we adjourn the hearing.
[Whereupon, at 2:40 p.m., the subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
63863a.eps
63863b.eps
KIOWA, COMANCHE, AND APACHE INTERTRIBAL LAND USE COMMITTEE
POSITION RE: OKLAHOMA-TEXAS RED RIVER BOUNDARY COMPACT
The Red River Compact was passed by the State of Oklahoma on June 4, 1999, and the State of Texas on May 24, 1999. The Compact proposes to establish the vegetation line as the boundary line between the States of Oklahoma and Texas along the Red River, except as to the Lake Texoma area.
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The Kiowa, Comanche, and Apache Intertribal Land Use Committee (''KCAILUC'') have concerns with the procedure in which the compact was created and even greater concerns with the effect the compact will have on each Tribe citizens, Tribal Nations, and their resources and other treaty rights. The Red River Commission is comprised of seventeen (17) members, and KCAILUC was allowed one representative on the Commission for the three sovereign nations, and their citizens of those nations. Each State had a number of representatives on the Commission, while the Kiowas, Comanches, and Apaches had one representative for all three nations. Because of this underrepresentation on the commission many of their concerns may have been unheard. KCAILUC has a responsibility to protect their sovereign rights and interest in lands that are affected by the proposed Compact.
The KCAILUC has an immediate concern about the proposed boundary between Oklahoma and Texas along the Red River. There is a history of case law which defines the boundary as the south bank of the Red River argued on April 20, 1925, and decided on May 11, 1925, Supreme Court Dec. OX-vs-Tex. The Act of June 12, 1926, created a trust fund, for the benefit of the enrolled members of the Kiowa, Comanche, and Apache Tribes and their unallotted children, from monies derived on public lands from oil and gas deposits in the south half of the Red River.
The Red River Compact if approved by Congress will set a permanent boundary between Oklahoma and Texas. By its express terms, the Compact does not change in any way the sovereignty of Indian Tribes, or, the ownership of any tribal lands and their resources with the rights to implement and enforce their own jurisdictional powers, and the right to regulate authority.
Since the Act of June 12, 1926, oil and gas revenues from these lands have gone, in part, to the tribes. Any definition of the Texas boundary might increase or decrease the public lands (and the oil and gas revenues) depending upon the movement of the new Texas boundary either toward or away from the medial line of the Red River. See attached map.
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As a result of the Act of 1926, the KCA have a beneficial interest of behalf of their members in 63 1/2% of the royalties derived from the oil and gas deposits from the medial line of the main channel to the south bank of the Red River, from the mouth of the North Fork of said River thence down said River to the 98th Meridian. This interest was conferred upon the KCA by an act of Congress in furtherance of their trust relationship.
The compact may also change the boundaries of public lands now held by Bureau of Land Management (''BLM''). As the Oklahoma Compact, Art.I(B) acknowledges that it does not interfere with the title of any person or entity, public or private, to land adjacent to the Red River; unlike, the Texas Compact, Art.I(b), acknowledges that the Compact does not interfere with or otherwise affect private property rights or title to property. The fact that the State of Texas does not recognize public lands poses problems with the public lands now held by BLM. If the proposed boundary line affects such lands, will the BLM lose this land to the State of Texas. The KCA derives benefits from the public lands held by the BLM, the fact that the Texas Compact does not recognize public lands may adversely impact the KCA. Despite the fact that the public lands were created by Congress, if Congress ratifies the Red River Compact, it may directly and indirectly ratify the taking of such public lands in accordance with Texas law. This would result in a loss of royalties to the KCA from the public lands held by BLM as well as the loss of lands identified in Oklahoma. The loss of royalties to the KCA as a result of Congress ratifying this Compact raises the issue of whether Congress would be fulfilling its trust obligation to the tribes. In addition to the tribe's concerns and Congress' trust obligations, BLM should be working to protect the public lands they currently hold in trust for the three tribes (KCA).
A possible solution to protect the tribes' interest would be to transfer to the public lands to the tribes, or sever mineral and surface rights to the lands at issue. A preference would be to transfer the property to the tribes as they are desirous of gaining title to such property in which they already have and interest and notwithstanding the fact that it was part of their former reservation and continues to adjoin former reservation land which they presently occupy. It seems they would be more rightfully entitled to claim such property than either Texas or Oklahoma.
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While both the Oklahoma and Texas versions of the Compact, exempt tribal lands, neither Compact defines tribal lands. A definition of tribal lands is found at 25 C.F.R. 151.2.
The proposed boundary line appears to be as uncertain as the boundary has been in the past, to both state of Oklahoma and Texas. As the vegetation line changes so does the boundary. There are already areas in which the vegetation line has been altered by human acts, likewise it may be altered in the future by human acts, such as planting vegetation, fires or other acts that may destroying the vegetation line. This solution does not appear to be any more feasible than the methods used in the past,
While KCAILUC acknowledges that the boundary between Oklahoma and Texas is an issue that has been addressed, it also requests that both states acknowledges that KCAILUC represents the interest of the three nations and their citizens and their rights are as important as the states' rights in the lands, water, and other resources that are subject of this compact. Therefore, any effects this compact has on the tribes must be addressed in the present and not after Congress ratifies the compact, as that will almost certainly put the States and the Indian Nations into lengthy and expensive legal battles.
The KCAILUC receives benefits from property that will be affected by the boundary compacts and therefore, is requesting your support and efforts in protecting its interest.
63863c.eps
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(Footnote 1 return)
The Western Boundary of the Red River in Oklahoma is located at 100 degrees, 44 minutes 24 seconds West Longitude (3669.7 feet west of the 100 meridian), 36 degrees 30 minutes north latitude. The Eastern Boundary of the Red River in Oklahoma is located at 94 degrees, 29 minutes 8.9 seconds West Longitude and 33 degrees, 38 minutes 17.7 seconds North Latitude.