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here. They are more familiar with it. Mr. Smith has given a great deal of thought to this matter; in fact, he has got a bill here that he is entitled to have reported: Mr. BARBOUR. I suggest that Mr. Smith be the chairman of the subcommittee. Mr. WELLING. What' are you going to do about submitting the Hayden print for report from the department? Mr. BARBOUR. We will submit both of them. Mr. WELLING. I ask that that be done, Mr. Chairman. The CHAIRMAN. Let us understand specifically, which one do you want to submit? Mr. WELLING. The Hayden bill. Mr. TAYLOR. And call attention to the Kettner bill. The CHAIRMAN. Then the subcommittee is appointed as suggested, Mr. Barbour, Mr. Hayden, and Mr. Smith, and we will now adjourn. Report of the Secretary of the Interior, see appendix, Exhibit B. Report of the Secretary of State bearing on treaty provisions in force between the United States and Mexico upon the provisions of Kettner bill, see appendix, Exhibit C. Report of the Secretary of the Treasury on H. R. 9421 (Mr. Hayden), see appendix, Exhibit D.
House of REPRESENTATIVES, SUBCOMMITTEE OF COMMITTEE ON IRRIGATION OF ARID LANDs, Wednesday, October 29, 1919.
The committee met at 2 o'clock p. m., being a subcommittee of the Committee on Irrigation of Arid Lands, having under consideration H. R. 6044, known as the all-American canal for the Imperial and Coachella Valleys, Calif., consisting of Mr. Barbour, Mr. Hayden, and Mr. Smith, all of whom were present, Mr. Barbour presiding.
Mr. BARBOUR. Gentlemen, we have had referred to us H. R. 6044 by Mr. Kettner, and we have met for the purpose of hearing further testimony from Mr. Thomas C. Yager, representing the Coachella Valley, and Mr. Mark Rose, representing the Imperial Valley, Calif. Mr. Yager, the subcommittee will now be pleased to hear from you.
STATEMENT OF THOMAS C. YAGER, REPRESENTATIVE OF THE C0ACHELLA WALLEY, MORE PARTICULARLY THE COACHELLA WALLEY WATER DISTRICT, COACHELLA, CALIF.
Mr. YAGER. Recently you may have heard a great many statements being made in regard to the position taken by the different departments of our Government and how their position is affecting the passage of our bill; so I have asked permission to discuss before your committee some of those positions and present some facts as we know them, and in the outset I want to state that it is not a desire on my part to criticize or be discourteous to any of the departments in any of my statements. However, if the facts which I present are disparaging to their interests they are facts that are created not by us but by the departments.
Since the hearings before this committee in the whole, there has been received a letter from the State Department opposing this legislation. I will state that the State Department has set out in its letter that there is no legal or treaty obligations upon the part of the United States that compels the United States to furnish waters of the Colorado River to Mexico. In other words, there is no legal or treaty obligations depriving American citizens from diverting those waters upon American land. But the State Department in addition to that goes beyond that statement and suggests this wording: “I may say that it would seem to me that consideration of equity and comity would require that the bill should be so amended as to provide that the work contemplated thereby should not be constructed until the conclusion of an agreement between the Government of the United States and Mexico for the equitable distribution of the waters of the Colorado River."
I have stated that there is no legal or treaty obligations upon the United States that requires any distribution of the waters of the Colorado River with Mexico, and that is stated in Mr. Lansing's letter. Now, when we analyze Mr. Lansing's position and know conditions existing in Imperial and Coachella Valleys, I feel that he is not only opposing the interests of the people of the Imperial and Coachella Valleys, who are trying to develop the arid land of that district and create a valuation there that the people of this Government should be proud of, but he is opposing the interests of every citizen of the United States when we talk of depriving those citizens of something that is inherently ours. The waters of the Colorado River rise entirely within the United States and are inherently the property of the citizens of the United States.
I will state that the Imperial irrigation district, that has been most ably represented before this committee by Mr. Swing, has been bled by those interests south of the line. I refer to the Mexican corporations composed of American citizens, who have gone into Mexico for the purpose of exploiting Lower California and have developed their property in Mexico by waters of the Colorado River, and that most of this development has been paid for by farmers and at the expense of the land on this side of the national boundary line. It is this situation that I want to discuss in connection with the letter of Mr. Lansing.
Every mule, every man, all property that is taken into Mexico for the purpose of putting in protection works, not only for land on this side of the line but for protection of the land on that side of the line, has been taxed by the Mexican Government. They taxed the rails to the extent of $25,000 that were laid on the levee in Mexico by the Imperial irrigation district for protection work; they tax all gravel, rock, and sand put there for building up protection work.
Mr. SMITH. Was that protection work for the benefit of the Imperial Valley people exclusively?
Mr. YAGER. Not at all, Mr. Smith. It was protection work for all of that territory in Mexico south of the line as well as for the Imperial irrigation district, and, as you can see from the map, any water that would break out there for any reason would first flood over Mexican lands, also the town of Mexicali, which is in Mexico.
Mr. Smith. So they make you pay for the privilege of protecting their own property?
Mr. YAGER. The Imperial irrigation district has paid for that. They have paid $5 a head for a mule to go over there, per month,
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and $3 a head for a man to go over there to do that work for the protection of their own property, as has been shown by delegates from Imperial. Mr. BARBour. That was per month? Mr. YAGER. Yes, sir. Mr. BARBOUR. Did they contribute to that expense? Mr. YAGER. They have been asked to contribute to that expense, but they refused. That deplorable condition has been presented to the State Department, and Mr. Baker, speaking for the State Department, said this: If you want us to make representations to Mexico City, I will do so. It is reasonable and it is right, what you ask, and I would make representations in the matter to any other nation in the world with confidence of their being granted, but I will tell you in advance that our mere expression to Mexico of the fact that this Government is interested in the proposition and asking that it be granted as a favor would insure it being denied. Mr. BARBOUR. What are you reading from there? Mr. YAGER. That is a statement made to Mr. Swing, who went to the State Department for the purpose of having that very condition corrected. Mr. BARBour, Are you reading from Mr. Swing's testimony? Mr. YAGER. Yes, sir. Mr. BARBOUR. Did he give that as testimony or make that statement? Mr. YAGER. That was the statement made to him when he went before the State Department. Mr. BARBOUR. What page is that? Mr. YAGER. Page 118 of the hearings before the Committee on Irrigation of Arid Lands. So that is the position of our State Department in regard to correcting that deplorable condition of the Imperial irrigation district. That condition is still existing with nothing being done by that department to relieve the people of Imperial Valley, who are being bled by the Mexican interests for the upbuilding of their lands in Mexico. And it is these same interests who are attempting to block, legislation which will permit the development of more land within the United States. Now, we come back to the letter of the State Department. When we attempt to get legislation that will allow the Imperial Valley to sever its partnership and get out of those conditions and permit the further development of land within the United States by building an all-American canal the State Department says that this legislation should be delayed until we enter into a treaty with Mexico regarding an equitable distribution of the waters of the Colorado River, which waters belong inherently to the United States. Mr. BARBOUR. Is that letter printed in the hearings? Mr. YAGER. That letter has been filed with the hearings, but is not printed. Mr. HAYDEN. I have the original letter here and would suggest the entire article be printed in the hearings. Mr. YAGER. Yes, sir; and with your permission I will read my answer to that letter. Mr. BARBOUR. You may do so.
WASHINGTON, D. C., August 26, 1919. Hon. M. P. KINKAID, Chairman of the Committee on Irrigation of Arid Lands, House of Representatives, Washington, D. C. SIR: In response to your honorable committee's letter directed to the State Department, in which letter you ask to be advised as to the treaty or legal rights of the United States regarding the waters of the Colorado River. You have received the communication from the State Department dated August 20, 1919, signed by the Hon. Robert Lansing. I believe it to be clear and undisputed that there are no legal or treaty obligations upon the United States prohibiting the appropriation and diversion of the waters of the Colorado River upon the lands of the United States for irrigation purposes. But this communication goes beyond this point, and Mr. Lansing states: “I may say that it would seem to me that consideration of equity and comity would require that the bill should be so amended as to provide that the works contemplated thereby should not be constructed until the conclusion of an agreement between the governments of the United States and Mexico for the equitable distribution of the waters of the Colorado River.” It is to this portion of the letter that I wish to respectfully direct my comment. This committee will bear in mind that practically the only waters of the Colorado River used in Mexico are those used by American capitalists who have formed corporations under the Mexican laws, and are developing large tracts of land at the expense of the farmers of the United States; that these capitalists have so manipulated it that these farmers of the United States and the lands of the United States are bonded for and have built the Mexican canals and are furnishing these Mexican lands with water, and that this water is diverted out of the Colorado River within the United States. Here permit me to quote the words of Chief Justice Marshall in the Schooner-McFadden case (7 Cranch, p. 136): “The jurisdiction of the Nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitations not imposed by itself. Any restrictions upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction and an investment of that sovereignty to the extent in that power which could impose such restriction. “All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source.” Also from the opinion of Attorney General Judson Harmon (21 Official Opinions, 274) : “The rules, principles, and precedents of international law impose no duty or obligation upon the United States of denying to its inhabitants the use of the water of that part of the Rio Grande lying entirely within the United States, although such use results in reducing the volume of water in the river below the point where it ceases to be entirely within the United States. “The fact that there is not enough water in the Rio Grande for the use of inhabitants of both countries for irrigation purposes does not give Mexico the right to subject the United States to the burden of arresting its development and denying to its inhabitants the use of a provision which nature has supplied entirely within its own territory. The recognition of such a right is entirely inconsistent with the sovereignty of the United States over its national domain.” The Secretary of State has clearly set forth in his letter that there is no legal obligation imposed upon the United States which prohibits a diversion of the waters of the Colorado River for irrigation purposes. Wherein, then, does equity and comity compel American citizens to concede rights to Mexico depriving American farmers and American lands of the water of the Colorado River? Is it against the sound principles of equity for American farmers and American lands to build their own canal on their own territory and use their own water in the development of their own lands? Why should we ask Mexico if we can do this? Did the citizens of Utah or of Colorado or of Arizona ask Mexico if they could use the water of the Colorado River, or did they delay the construction of their diversion works until they entered into a treaty with Mexico regarding the “equitable distribution of the waters of the Colorado River”? Or did the United States Government, prior to the expenditure of millions of dollars of Government funds for reclamation work on the Colorado River, treat with Mexico regarding these waters? No. Then, why should our Government compel the farmers of the Imperial and Coachella Valleys, Califor
nia, to treat with Mexico regarding these waters? “He who comes into equity must come with clean hands.” Mexico has conceded she has no right to these waters, and it seems that it is certain Americans alone that insist that she has.
Engineer De la Garza, in his report to lhe Mexican minister, Formento, dated January 23, 1912, quotes from the opinion of Emilio Valazco, which states:
“ The Republic (of Mexico), however, can not prevent the waters from being taken in American territory, but has a perfect right to prevent the waters taken in American territory from being carried across the Mexican territory, etc.'
I respectfully submit to your committee that the case of the Rio Grande cited by the honorable Secretary of State is materially different from the case in question. The waters of the Rio Grande were actually diverted from the river on Mexican territory and used by the Mexican people in the development of the Mexican land for a period of some 300 years. In the case of the Colorado River there are no waters diverted from the river on Mexican territory, and there are very few, if any Mexican farmers using Colorado River water, but Mexican corporations coniposed of American citizens. And even in the Rio Grande case, Senator Thomas, in the speech delivered before the United States Senate on the 23d and 24th of March, 1914, most emphatically and justly criticized in no uncertain terms the entering into by the United States of such a treaty, disregarding the inherent rights and the sovereignty vested in the American people.
Senator Thomas was speaking of the treaty of May 21, 1906, the very treaty to which Mr. Lansing refers. Let me quote you his words:
“Now, Mr. President, that treaty upon its face is an ordinary engagement between two sovereign powers, one of which engages to settle certain controverted local matters between them by furnishing and delivering at its own expense for all time 60,000 acre-feet of water to the other. It is, in fact, the consummation, Mr. President, of a sordid, shameful, and successful intrigue, conducted in the interests of private parties, impelled by greed and gain, based upon the existence of no legal, equitable, or moral claim whatever on the part of the Mexican Government or any of its citizens against this Government or any of its citizens."
"Mr. President, I do not hesitate to brand this treaty scheme as a huge speculative enterprise conceived by greed and fostered by governmental agencies; a scheme the needs of which are out of all proportion to the ends finally accomplished in its name.”
Are the farmers of Imperial and Coachella Valleys to have this same monstrosity imposed upon them?
What American citizen proposed that the Government of the United States adopt a liberal policy toward Mexico that would permit such dealings?
I wish to state that it was the same treaty referred to that provided in itself that this policy should not be considered as a precedent to be followed in future dealings with American waters and this treaty was ratified by Mexico, conceding such a policy should not be considered as a precedent.
Can this Government, upon theory of equity and comity, use the waters of the Colorado River for reclamation purposes and deny that same right to American citizens?
Gentlemen of this committee, we come to you most sincerely pleading the protection of our legal rights, and our equitable and just rights, in our effort to develop the arid lands of the United States, and for the immediate protection of the lives and property of 60,000 American citizens. Wherein does equity compel us to disregard the just rights of these citizens and develop the lands of a few capitalists who have gone beyond the protection of the United States and into a foreign country to exploit that territory, who are willing to have sacrificed the inherent rights of American citizens and American lands for their own aggrandizement, under the guise of equity and comity ?
The representatives of the Imperial and Coachella Valleys have endeavored to justly and accurately present to your committee the situation, and in answer to this letter earnestly contend that " charity begins at home.” Respectfully submitted.
Thos. C. YAGER. As I said, Mr. Lansing's position is that equity and comity alone under those conditions requires that we enter into a treaty regarding the equitable distribution of the waters of the Colorado River,