TOM HENDERSON PULLS HIS PICKUP TRUCK off texas Highway 79 north of Byers, a small North Texas town near the Red River. He parks alongside a grassy bluff south of the long bridge over the river by a green sign that reads “State Line.” Since the south bank of the Red is supposedly the border between Texas and Oklahoma, you’d expect to see sandbars and muddy waters just ahead. But thanks to the forces of nature—aided by years of court rulings and lawsuits—the border is now half a mile south of the river in tall grass and woods. “I always liked that movie Red River, where John Wayne steps out of the river and says he’s in Texas,” says Henderson, whose family has farmed along the Red for a hundred years. “But he wouldn’t be in Texas now.”
Henderson is one of many landowners caught up in the politics of where to draw the line between Texas and Oklahoma. He’s also one of six people appointed in the summer of 1995 by Governor George W. Bush to a state commission charged with finally determining a permanent workable location of the boundary, which has been in dispute ever since the 1821 Treaty of Amity, Settlements and Limits set the Red River’s south bank as the divider between U.S. lands acquired from France in the Louisiana Purchase and Spanish possessions in North America. If the Texas commission and a similar one in Oklahoma can reach an agreement, they’ll send a proposal to their respective legislatures early this year. For Texas, the clock is ticking, because the 1997 legislative session is the only opportunity to settle the issue before its commission’s term expires in 1998. And while both states hope to reach a compromise that won’t result in gains or losses of land, millions of dollars in livestock grazing rights, hunting and fishing licenses, and property taxes are at stake—though exactly how many millions is an open question. “No one can identify where the boundary is, so it’s a hard thing to quantify,” says Marshall land lawyer Bill Abney, the chairman of the Texas commission.
Indeed, the long-held notion that the Red River is the legal border between Texas and Oklahoma is more perception than reality. The official border is actually the “gradient boundary line,” the mean water level at the southern edge (except when the process of avulsion cuts new channels around land; in those instances, the border is the abandoned channel). Surveyors determined the line in 1923, after the U.S. Supreme Court ruled that it was the proper method of locating the south bank. Yet today the gradient boundary is nowhere near the actual river, because over time the Red has shifted its banks with erosion and silting and jumped its banks during floods. Land on one side of the river has often ended up on the other side; pockets of Oklahoma exist in many places south of the river, and pockets of Texas exist north of it. The boundary is also unclear where the western part of the Red separates into braided streams in wide washes without clear-cut banks.
All this has caused predictable confusion. “The tax collector often doesn’t know which state the land is in,” Abney says. “There are some instances in which land is not being taxed and others in which Texas and Oklahoma are both trying to tax it.” Law enforcement has encountered problems too; several years ago, rumor has it, a man committed suicide in the river bottom and authorities spent hours trying to figure out who had jurisdiction over the body. Henderson says he has had little recourse when deer hunters in the public lands behind his property have trampled his fences and killed two of his cows, even carving the hindquarters off one. Although his land is in Texas, the land behind his back fence is part of Oklahoma. “So do I call the game wardens in Oklahoma, who have to travel thirty miles and find a bridge to cross to get here?” he asks. “It’s just not feasible for them to do it.”
Hammering out a border agreement to address such problems, though, hasn’t been easy. In 1991 state boundary commissions met and failed to come to terms. Abney and the chairman of Oklahoma’s commission, State Senator Bob Kerr of Altus, agree that the solution must be “historical, practical, and economical,” yet neither side wants to give up too much control. One possible solution—like using the middle of the river as the boundary, the way most boundary streams in the U.S. are divided—isn’t acceptable to Oklahoma because it would lose power over the southern half of the river as well as the area from the midline of the stream to the gradient boundary line on the south bank. An Oklahoma commission member has proposed using high-resolution satellite imaging to determine the geologic cutbank in the bedrock that outlines the south bank, but Texas objected because that would push the boundary south of the south bank. Using the edge of the water as the boundary isn’t acceptable either, because the river is often dry in spots. Last September, Texas commissioners embraced the vegetation line: It’s close to the gradient line, easily identifiable, and moves with the river. But their Oklahoma counterparts balked, arguing that the vegetation line could shift with time as plants along the river died or grew in different places.
One thing the two sides have agreed on is that whatever their decision, it won’t affect private property ownership in either state or resolve feuds over property rights. “We’re trying to determine a legal boundary, not determine land ownership,” Kerr says. “You’d have to settle ten thousand boundary suits,” Abney says, “and the cost would be astronomical.” So the boundary commission’s work won’t help people like Henderson, who lost 110 acres of prime pastureland in a 1984 dispute. Initially his complaint was with his neighbors across the river, who contested his ownership of the land, but then the federal government stepped in, informing the parties that the U.S. Bureau of Land Management has a 116-mile-long pasture reserve along the Red River bottom lands. The feds claimed that the acres did not belong to either Henderson or his neighbors across the river but were under federal jurisdiction, and a federal judge agreed. The worst part was that Henderson had borrowed money from the federal Farmers Home Administration to buy the acreage, so he still has to make payments on property he no longer owns. “It’s like if you bought a stolen car with money you borrowed from the bank—the bank still wants the money,” he says.
But even if Henderson can’t get the property back, he still wants the question of jurisdiction resolved. “We need some stability along the river,” he says. “We don’t want this to be a no-man’s-land.”