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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.

Hon. M. P. KINKAID,

WASHINGTON, D. C., August 26, 1919.

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 the Mexican minister, Formento, dated January 23, 1912, quotes from the opinion of Emilio Valazco, which states:

66

'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 composed 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 niatters 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,

and he cites in support of that contention the Rio Grande treaty entered into in 1906.

Mr. ROSE. He doesn't desire us to enter into a treaty immediately. He asked the committee to hold this up till they do enter into a treaty. It may be 50 years from now. He puts it into the hands of Mexico. They may never enter into the treaty.

Mr. HAYDEN. In reading the letter from the Secretary of State I notice that he cites the Rio Grande case wherein it was proposed to divert waters from the Rio Grande in the United States. In that case he conceded, as he now concedes in the case of the Colorado River, there is no doubt of the right of the United States to divert the water. Secretary Lansing states that in the case of the Rio Grande, Congress enacted legislation to authorize the construction of the Elephant Butte dam above El Paso. The legislation to which he refers is the passage of the reclamation act, approved June 17, 1902. It was not until May 21, 1906, that a convention was concluded between the United States and Mexico which apportioned the waters of the Rio Grande between the United States and Mexico. So according to the Secretary's own statement there is no reason why legislation should not first be enacted to authorize the diversion of the waters of the Colorado River and negotiations conducted afterwards as in the Rio Grande case. There is no doubt in either case that the United States has the right to construct such irrigation works regardless of any diplomatic negotiations. It therefore seems to me the Secretary is inconsistent when he recommends that negotiations with Mexico should precede legislation by Congress.

Mr. BARBOUR. If you are to have nogtiations with Mexico you would arrive at negotiations much quicker by going ahead now than waiting for the negotiations.

Mr. YAGER. Mr. Chairman, I would like to state that Senator Thomas in a two days' speech before the Senate discussed the Rio Grande treaty most fully. That is a speech of March 23 and 24, 1914, where he took up and answered this treaty dealing with the waters of the Rio Grande, the very treaty that Mr. Lansing bases his position on here. And Senator Thomas's words are most applicable to our situation.

Mr. HAYDEN. Has Senator Thomas's speech been printed in this record?

Mr. YAGER. I don't think it has. This is what he says regarding that treaty on page 4 of his speech:

Now, Mr. President, that treaty upon its face

Speaking of the Rio Grande treaty

is an ordinary engagement between two sovereign Governments, one of which engages to settle certain controverted local waters between them by furnishing and delivering at its own expense for all time 60,000 acre-feet of local water to the other. It is, in fact, the consummation, Mr. President, of a sordid, shameful, and successful intrigue conducted in the interest 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.

And, going on, he states on page 54 of the same recorded speech: 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 proportions to the ends finally accomplished in its name.

That is the very situation we are in regarding the waters of the Colorado. The waters of the Colorado River are inherently ours, and why should we American citizens be deprived of the use of these waters, to the detriment of the development of our lands, while Mexican lands are being developed by these waters? I can't help but feel the position of the State Department is not tenable and is against the interests of the American Government and American citizens, and I desire as a representative of that section of the country to present that situation to your committee.

Mr. HAYDEN. The Secretary of State says that considerations of equity and comity should govern the distribution of the waters of the Colorado River, based upon the same consideration which governed the equitable distribution of the waters of the Rio Grande.

Mr. BARBOUR. Does he indicate right there whether there is any agreement being considered at this time?

Mr. HAYDEN. Secretary Lansing states at the end of his letter:

The Government of the United States proposed in 1912 to the Government of Mexico that a convention be concluded providing for the appointment of a commission to study, agree upon, and report the basis of distribution and appropriation of the waters of the Colorado River, the findings of the commission, if and when approved by the two Governments, to be embodied in a treaty. After an exchange of several draft conventions a form of convention seems to have been practically agreed upon in May, 1913, but, apparently, because of the strained relations which have been existing between the Government of the United States and the so-called Huerta administration in Mexico the convention was never signed, and the matter has been since in abeyance.

Mr. BARBOUR. What could be the considerations in equity and comity between the nations that would ask us to do that?

Mr. SMITH. There might be some consideration of comity, but not of equity. Comity, as I understand it, would be promoting the friendly relations between the two nations. Equity would imply that they had some right to the water.

Mr. HAYDEN. The Secretary states that "although the provisions of the bill in question are not clear upon the point as to whether the works, for the construction of which the bill provides, would result in the use of practically the entire flow of the Colorado River at a point a little north of the boundary line between the United States and Mexico, information coming to me from other sources appears to indicate that such would be the case during certain seasons of the year." It is a fact that there is under cultivation, according to the testimony before this committee, approximately 100,000 acres of land in Lower California, and if, as the Secretary of State has said, the entire flow of the Colorado River, during certain seasons of the year, would be diverted to lands in the United States, the Mexican lands would be deprived of water. In your opinion, is there any equitable consideration existing between the two Governments which would make it advisable to have an understanding as to the division of water for lands in both countries which require the use of it in order to continue to produce crops?

Mr. YAGER. If I may answer that in the event of a shortage of water it simmers down to a question of whether we are going to allow American lands on this side of the border to be deprived of water? or are we going to give our water to Mexican people to satisfy them, to cultivate their lands and let our people's go bare?

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