Petition for Writ of Certiorari — Idaho v. United States

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FILE D.

00 189 vu 25 200

No.

OFFICE Qf THE CLERK ™

In The

Supreme Court of the United States

STATE OF IDAHO,

Petitioner,

UNITED STATES OF AMERICA

and COEUR D’ALENE TRIBE,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

ALAN G. LANCE

Attorney General

CuiveE J. STRONG

Deputy Attorney General

Chief, Natural Resources Division

STEVEN W. STRACK *

Deputy Attorney General

Office of the Attorney General

State of Idaho

700 W. Jefferson Street, Rm. 210

P.O. Box 83720

Boise, Idaho 83720-0010

(208) 334-2400

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

In United States v. Alaska, 521 U.S. 1 (1997), this Court

held, in the context of a statehood act, that congressional

ratification of an executive order reservation known to

include submerged lands may imply an affirmative intent

to defeat state title to the submerged lands. This petition

presents the related question of whether a defeat of state

title to submerged lands is implied when Congress, in a

pre-statehood act, authorizes cession negotiations with an

Indian tribe for the purpose of removing submerged

lands from the executive order reservation they occupy.

TABLE OF CONTENTS

Page

OGuenstion Presented... ...4ssss0c0s0s0n00s eee i

Table of Awthorities . « . 065.205.5555 s0ce eee iv

Opinions GetOw . .00 6. hececs vets seas esas nee eee 1

FUPIRGICIOR. . oo c's cet een dushasue as 3.4eeee eee 1

Constitutional and Statutory Provisions Involved... 1

RUAGTORE ooo eae ise nnceuns tun eee s ge Oe ee 2

Reasons for Granting the Petition.................. 12

1. BRCKBCOURG. 00.045 cckwayeeewenh eee 12

2. The court of appeals’ decision presents irrecon-

cilable conflicts with decisions of the Idaho

Te ae ee re 14

3. The court of appeals’ decision presents irreconcil-

able conflicts with decisions of this Court ...... 16

4. The court of appeals’ decision conflicts with this

Court's decisions holding that Congress must

affirmatively intend to defeat state title to sub-

merged lands within federal reservations ....... 19

5. The court of appeals’ decision conflicts with

this Court’s decisions holding that a defeat of

state title to submerged lands within a reserva-

tion should not be inferred unless continued

federal ownership after statehood is necessary

to achieve the purposes of the reservation ... 22

6. The court of appeals’ decision ignores the fact that

Congress purposefully deferred its ratification of

the Reservation until after statehood ........... 26

| amet inet fire, Temily er eae 30

iil

TABLE OF CONTENTS - Continued

Page

ADDONGIN B ....... sec c ccs e neces eerencvcccess App. 31

Appendix C ......ccccssssccccncsscccccsccccens App. 87

ADDONGIX D...... ccc e ccs s cece eee ee cess secees App. 99

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Amoco Production Co. v. Village of Gambell, 480 U.S.

8: Se ry re ee oes eet ere 21

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261

oy Sr ee re eer eres ern Pena e eamn 11, 12

Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367

PE x GAN R VES inca kbadek eu esns VeNeeee ts ee baeae cl 12

Montana v. United States, 450 U.S. 544 (1981).... 13, 23, 26

Moore v. United States, 157 F.2d 760 (1946), cert.

es ee Se ee CR ek vk eke bd wa deaaeerecunne 17

Muckleshoot Indian Tribe v. Trans-Canada Enter-

prises, 713 F.2d 455 (9th Cir. 1983), cert. denied,

ee ee ee ME ic occa ce tes a Rew ia mawewens 17

Mumford v. Wardwell, 73 U.S. (6 Wall.) 423 (1867) .... 12

Oregon ex rel. State Land Bd. v._Corvallis Sand &

a ee ie Bk ek Ot. oy 2 enn aa; ‘3a

Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845)........ 12

Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d

1251 (9th Cir. 1983), cert. denied, 465 U.S. 1049

ESS CG caches ak REE TUR MLO ON Dey eae an Serko 17

Snivery 0. Doeiby, 152 UWS. 1 (BPE)... oes eveccenccks 16

Sioux Tribe of Indians v. United States, 316 U.S. 317

UES Soci kes dhe a kobe Raa Oe OR aka ee ees 28

Skokomish Indian Tribe v. France, 320 F.2d 205 (9th

Cir. 1963), cert. denied, 376 U.S. 943 (1964) ........ 17

United States and Coeur d’Alene Tribe v. Idaho, 95

B. Supp. 20 1096 (D. iano 1996)... 2... ccc versa 1

TABLE OF AUTHORITIES - Continued

Page

United States v. Alaska, 423 F.2d 764 (9th Cir.), cert.

Seiad Mb T7-D. SEs Leet ss xen ceed xeekeseyandans 17

United States v. Alaska, 521 U.S. 1 (1997) ........ passim

United States v. Aranson, 696 F.2d 654 (9th Cir.

1983), cert. denied, 464 U.S. 982 (1983)............. 17

United States v. Holt State Bank, 270 U.S. 49 (1926) .... 13

United States v. Idaho, 210 F.3d 1067 (9th Cir. 2000) ..... 1

United States v. Louisiana, 363 U.S. 1 (1960).......... 12

Utah Div. of State Lands v. United States, 482 U.S.

Re errr eg rrr see 13, 14, 20, 23

STaTE CASES

Bowman v. McGoldrick Lumber Co., 219 P. 1063

ba TUR sc kvs ks havesnarndenescusdanaeuedeeess 15

Erickson v. State of Idaho, 970 P.2d 1 (Idaho 1998)....15

Kootenai Environmental Alliance, Inc. v. Panhandle

Yacht Club, Inc., 671 P.2d 1085 (Idaho 1983) ....14, 15

Shephard v. Coeur d’Alene Lumber Co., 101 P. 591

CR BOD. x vn vc chp ond wecee ceseenees teeeayenasess 3

West v. Smith, 511 P.2d 1326 (Idaho 1973) ........ 15, 16

FEDERAL STATUTES

ee eet is a 1

ne ade CARR RE EAR efile Wotan ateetar cin rece Ne)" 11

ae Oe Re soe iasy pases eee 11

ON ap ce uk sasen sans aes 11

TABLE OF AUTHORITIES - Continued

Page

Act of May 15, 16606, 24 Stat. 29 ........e0esne0n 5, 27

Act of March 2, 1889, 25 Stat. 980 ...... 2, 9, 19, 26, 28

Act Gf Mase 3, 2091, 26 Stat. SSP oc ceccscccsesvcccss 2

Alaska Statehood Act, Pub. L. 85-508, 72 Stat. 347 .. passim

Idaho Admission Bill, Act of July 3, 1890, 26 Stat.

(TE RRR etal Scene Great a ne OES aie ets an nny ene! 10

STATE STATUTES

ED Ce I ID Fic aks cnsctweseesccaase 3

been Comme © GPAS0E (EGGS) . wesc ccs ccccnvnnceces 3

pees Ce SBF CE9GS).... oo vce cc cccccevnssccass 3

ge Be a ae Se ere rrr res ree 10

MISCELLANEOUS

1 Charles J. Kappler, Indian Affairs: Laws and

i fia es ca ee teak 4 pa en dead chk nm 4

Be Re, Be, Bere CERIO ccs sccieestonessavs 10

Executive Order of November 8, 1873.............. 4,9

H.R. Rep. No. 1109, 51st Cong., 1st Sess. (1890)

ST CMERTEMRER EWES EN SOR 6 OFRE AMOR EC KER ELAR AL EO 9, 28, 29

H.R. Rep. No. 2988, 51st Cong., 1st Sess. (1890)..... 10

S. Ex. Doc. No. 76, 50th Cong., 1st Sess. (1888) ...7, 25

S. Misc. Doc. No. 36, 50th Cong., 1st Sess. (1888) ..7, 25

CONSTITUTIONAL PROVISIONS

Ce OO Sv weca ces ceadedscadacwlen 1

PETITION FOR A WRIT OF CERTIORARI

The State of Idaho petitions for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The decision of the Ninth Circuit Court of Appeals

(App. 1-30) is reported at 210 F.3d 1067 (9th Cir. 2000).

The decision of the district court (App. 31-86) is reported

at 95 F. Supp. 2d 1094 (D. Idaho 1998).

JURISDICTION

The court of appeals entered its judgment on May 2,

2000. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article 4, Section 3, Clause 2 of the United States Consti-

tution provides in relevant part as follows:

The congress shall have power to dispose of and

make all needful rules and regulations respect-

ing the territory or other property belonging to

the United States; and nothing in this Constitu-

tion shall be so construed as to prejudice any

claims of the United States, or of any particular

state.

The 1889 Indian Department Appropriations Act pro-

vides in relevant part as follows:

That the Secretary of the Interior be, and he is

hereby, authorized and directed to negotiate

with the Coeur d’Alene tribe of Indians for the

purchase and release by said tribe of such por-

tions of its reservation not agricultural and valu-

able chiefly for minerals and timber as such

tribe shall consent to sell, on such terms and

conditions as shall be considered just and equi-

table between the United States and said tribe of

Indians, which purchase shall not be complete

until ratified by Congress and for the purpose of

such negotiation, the sum of two thousand dol-

lars, or so much thereof as may be necessary, is

hereby appropriated; the action of the Secretary

of the Interior hereunder to be reported to Con-

gress at the earliest practicable time.

Act of March 2, 1889, 25 Stat. 980, 1002.

Also relevant to the court of appeals’ decision were

those portions of the 1891 Indian Department Appropria-

tions Act that ratified two cession agreements with the

Coeur d’Alene Tribe. Act of March 3, 1891, 26 Stat. 989,

1027. The relevant provisions in the 1891 Act are repro-

duced in the attached appendix at App. 87-98.

STATEMENT

On March 3, 1889, Congress appropriated funds to

negotiate an agreement with the Coeur d’Alene Tribe for

the cession of a portion of the reservation they occupied,

which had been set aside sixteen years earlier by execu-

tive order. On May 2, 2000, the United States Court of

Appeals for the Ninth Circuit found that in doing so,

Congress had impliedly defeated the future State of

Idaho’s title to submerged lands within the Coeur

d’Alene Indian Reservation.

The court of appeals’ decision upsets a century of

State ownership. For over 100 years, Idaho has safe-

guarded Coeur d’Alene Lake and the St. Joe River as vital

public resources, guaranteeing every citizen access for

diverse uses such as commerce, fishing, swimming and

boating. The State has been an active manager of these

important resources. Since statehood, it has protected the

public’s interest in the open use of Coeur d’Alene Lake.

See Shephard v. Coeur d’Alene Lumber Co., 101 P. 591, 592

(Idaho 1909) (declaring that Coeur d’Alene Lake “is a

public highway”). With federal cooperation, it has set

apart lands and waters adjacent to the St. Joe River as a

public park. 1911 Idaho Sess. Laws 334. In 1927, the State

appropriated the water in Coeur d’Alene Lake “in trust

for the people of the state of Idaho,” in order to preserve

the water “for scenic beauty, health, recreation, transpor-

tation and commercial purposes .... ” Idaho Code

§ 67-4304 (1995). At the same time, the State declared the

submerged lands under the Lake “to be devoted to a

public use in connection with the preservation of said

[lake] in [its] present condition as a health resort and

recreation place for the inhabitants of the state... . ”

Idaho Code § 67-4305 (1995).

The unique role that Coeur d’Alene Lake has played

in the history of Idaho is jeopardized by the recent deci-

sion of the Ninth Circuit Court of Appeals. The decision

of the court of appeals, as well as that of the district

court, both rely heavily on a recital of historical facts,

starting with President Andrew Johnson’s 1867 executive

order that withdrew a small reservation for the use of the

Coeur d’Alene Tribe. The 1867 Reservation was centered

around the agricultural land of the Hangman Valley,

about 20 miles south of Coeur d’Alene Lake. App. 32.

Although its boundaries were never surveyed, it did not

include any significant portion of the navigable waters at

issue here. App. 32-33. The 1867 Reservation was never

formally accepted by the Tribe, and, in 1873, representa-

tives of the United States and the Tribe held negotiations

and agreed to establish a larger reservation of 598,000

acres. App. 33. The agreed-upon boundaries included

almost all of Coeur d’Alene Lake, along with the lower

portions of the Coeur d’Alene River and the St. Joe River,

and the upper portion of the Spokane River. App. 33. The

inclusion of the Lake was, in part, a response to tribal

demands based on fishing needs, App. 56-57, a need the

Tribe itself described as temporary pending its transfor-

mation to an agricultural economy.!

Following the conclusion of the negotiations, Presi-

dent Ulysses S. Grant withdrew the agreed-upon reserva-

tion from the public domain. App. 34-35; map, App. 99.2

The executive order was intended as a temporary with-

drawal of lands from sale until such time as Congress

established a permanent reservation. App. 35.3 For var-

ious reasons, however, the bill to ratify the 1873 Agree-

ment was withdrawn from consideration, and so the

executive order withdrawal remained in place. It was not

1 In an 1872 petition to the Commissioner of Indian Affairs,

the Tribe affirmed its commitment to an agricultural economy,

but admitted that “we are not yet quite up to living on farming,”

and stated that “for a while yet we need have some hunting and

fishing.” App. 51 (quoting petition of November 18, 1872).

2 The map in the appendix was prepared specifically for

inclusion in this brief, and was not part of the record below.

3 On its face, the 1873 executive order states: “It is hereby

ordered that the following tract of country in the Territory of

Idaho be, and the same is hereby, withdrawn from sale and set

apart as a reservation for the Coeur d’Alene Indians .... ”

Executive Order of November 8, 1873, 1 Charles J. Kappler,

Indian Affairs: Laws and Treaties 837 (1904). The letter from the

Commissioner of Indian Affairs that requested the executive

order proposed setting apart the reservation “[i]n order that the

tract may be protected from trespass by white persons pending

the action of Congress upon [the 1873] agreement ....” App. 57.

until 1886 that Congress authorized new negotiations

with the Tribe. Act of May 15, 1886, 24 Stat. 29, 44. The

authorized negotiations occurred in 1887, resulting in a

proposed agreement that would have confirmed the 1873

boundaries and extinguished all claims of aboriginal title

outside those boundaries. The agreement was sent to

Congress for ratification (hereinafter the “1887 Agree-

ment”). App. 68.

Subsequent events, however, highlighted the inclu-

sion of the Lake within the exterior boundaries of the

Reservation, and spurred Congress to suspend its review

of the 1887 Agreement. In 1880, steamboats started using

the Lake to transport men and goods between the city of

Coeur d’Alene and a landing on the Coeur d’Alene River

that served mining camps in the Silver Valley. App. 69. A

portion of the transported goods consisted of liquor. App.

69. When this liquor trade was discovered in 1886, the

Department of Interior moved quickly to quash the trans-

portation of liquor across the Lake, citing statutes prohib-

iting the introduction of liquor into “Indian country.”

App. 69. Around this same time, the Army began ejecting

non-Indians using the lake for camping and fishing. App.

70.

Word of these actions apparently got back to Con-

gress, for in 1888 the Senate passed the following resolu-

tion:

Whereas it is alleged that the present area of

the Coeur D’Alene Indian Reservation, in the

Territory of Idaho, embraces 480,000 acres of

land; that there are, according to the statistics in

the Indian Bureau, only about 476 Indians in the

tribe now occupying such reservation, or more

than 1,000 acres to each man, woman, and child;

that Lake Coeur D’Alene, all the navigable

waters of Coeur D’Alene River, and about 20

miles of the navigable part of Saint Joseph River,

and part of Saint Mary’s, a navigable tributary

of the Saint Joseph, are embraced within this

reservation, except a shore-line of about 3!/2

miles at the north end of the lake, it being

alleged that this lake and its rivers tributary

constitute the most important highways of com-

merce in the Territory of Idaho, and are in fact

the only navigable waters, except Snake River,

now used for steam-boat navigation in the Terri-

tory; that all boats now entering such waters are

subject to the laws governing the Indian country

and all persons going on such lake or waters

within the reservation lines are trespassers; and

Whereas it is further alleged that the

Indians now on such reservation are located in

the extreme southwest corner of the same

around De Smedt Mission, near the town of

Farmington, in Washington Territory, where the

land is good for agriculture; and it being further

alleged that all that part of such reservation

lying between Lake Coeur D’Alene and Coeur

D’Alene River and that part between the Coeur

D’Alene River and Saint Joseph River is a terri-

tory rich in the precious metals and at the same

time being of no real use or benefit to the

Indians: Therefore,

Resolved, That the Secretary of the Interior

be, and he is hereby, directed to inform the

Senate as to the extent of the present area and

boundaries of the Coeur D’Alene Indian Reser-

vation in the Territory of Idaho; whether such

area includes any portion, and if so, about how

much of the navigable waters of Lake Coeur

D’Alene, and of Coeur d’Alene and St. Joseph

Rivers; about what proportion of said reserva-

tion is agricultural, grazing and mineral land

respectively; also the number of Indians occupy-

ing such reservation; also on what portion of

such reservation the Indians now thereon are

located; also whether, in the opinion of the Sec-

retary, it is advisable to throw any portion of

such reservation open to occupation and settle-

ment under the mineral laws of the United

States, and, if so, precisely what portion; and

also whether it is advisable to release any of the

navigable waters aforesaid from the limits of

such reservation.

S. Misc. Doc. No. 36, 50th Cong., 1st Sess. (1888).

Several weeks later the Secretary of Interior

responded by forwarding a report prepared by the Com-

missioner of Indian Affairs. The Commissioner’s report

concluded that “the reservation appears to embrace all

the navigable waters of Lake Coeur d’Alene, except a

very small fragment cut off by the north boundary of the

reservation which runs ‘in a direct line’ from the Coeur

d’Alene Mission to the head of the Spokane River.” S. Ex.

Doc. No. 76, 50th Cong., 1st Sess. 3 (1888). The Commis-

sioner then turned to the question of “whether it is desir-

able to release any of the navigable waters mentioned in

the resolution from the limits of said reservation.” Id. at 4.

The Commissioner began by stating: “In approaching this

question [of release of navigable waters], I deem it proper

to refer briefly to the character and condition of the

Indians occupying the reservation and the situation of

affairs as existing amongst them.” Id. at 5. He then went

on to describe what was viewed by federal officials as a

remarkable transformation in the Tribe’s economy. He

noted that members of the Tribe “cultivate the soil exten-

sively, live in comfortable houses, dress like the whites,

wear short hair, and in all other respects live and dress as

white people do... . They own large bands of cattle and

horses and an abundance of hogs and poultry.” Id. at 5.

The Commissioner concluded that “[t]here are few

Indians in the entire country, if we except the five civi-

lized tribes, who are as far advanced ....” Id. The

Commissioner also noted that members of the Tribe did

not reside by the Lake, stating his belief that “all, or

nearly all” of the tribal members lived on farmlands in

the Hangman’s Creek area “lying south of the Lake Coeur

d’Alene and St. Joseph River.” Id. at 4. After reciting all

the above facts relating to the Tribe’s needs, the Commis-

sioner concluded that:

[M]y own opinion is that the reservation might

be materially diminished without detriment to

the Indians, and that changes could be made in

the boundaries for the release of some or all of

the navigable waters therefrom, which would be

of very great benefit to the public; but this

should be done, if done at all, with the full and

free consent of the Indians, and they should, of

course, receive proper compensation for any

land so taken. :

Just what portion of the reservation and naviga-

ble waters should be segregated from the reser-

vation, I am unable to say. That, I think, should

be determined by negotiations with the Indians.

In conclusion I will state that in my opinion

these Indians have all the original Indian rights

in the soil they occupy. They claimed the coun-

- try long before the lines of the reservation were

defined by the executive order of 1873, and the

present reservation embraces only a portion of

the lands to which they laid claim. I think that

when the present agreement [i.e., the 1887

Agreement] shall have been ratified it will be an

easy matter to negotiate with them for the ces-

sion of such portions of their reservation as they

do not need, including all or a portion of the

navigable waters, upon fair and very reasonable

terms.

Id. at 6-7.

Although the Commissioner of Indian Affairs recom-

mended ratification of the 1887 Agreement prior to any

new negotiations, Congress refused to do so, apparently

because of the concern that such ratification would have

confirmed the inclusion of the Lake within the Reserva-

tion.4 Instead, Congress directed further negotiations

with the Tribe for a cession of a portion of the Reserva-

tion. Act of March 2, 1889, 25 Stat. at 1002. As the court of

appeals found, “the main purpose of the new negotia-

tions was to regain from the Tribe.whatever submerged

lands it was willing to sell.” App. 22, n.14.

The authorized negotiations were completed on Sep-

tember 9, 1889. 26 Stat. at 1030. The Tribe agreed to cede

the northern portion of the Reservation. App. 7. The

boundaries of the diminished Reservation bisected the

Lake, with the southern third of the Lake remaining

within the boundaries of the Reservation, while the

4 The House Committee on Indian Affairs reported that the

1887 Agreement was “not ratified for sundry reasons, among

which was a desire on the part of the United States to acquire an

additional area, to wit, a certain valuable portion of the

reservation specifically dedicated to the exclusive use of said

Indians under an Executive order of 1873 . . . [that] contains a

magnificent sheet of water, the Coeur d’Alene Lake, and its

chief tributary, to wit, the Coeur d’Alene River, over the waters

of which steamers now ply daily.” H.R. Rep. No. 1109, 51st

Cong., Ist Sess. 4 (1890).

northern two-thirds of the Lake, along with the surround-

ing uplands, were excluded from the Reservation. App. 7;

map, App. 99.

The 1889 Agreement, along with the still-unratified

1887 Agreement, were transmitted to Congress for rat-

ification on December 18, 1889. H.R. Rep. No. 2988, 51st

Cong., Ist Sess. 26 (1890). The Agreements were bundled

as a package for consideration, partly because the Tribe

had insisted on the inclusion of a provision stating that

the 1889 Agreement would not be binding on either party

until ratification of the 1887 Agreement. App. 8.

Although the Senate passed a bill ratifying the 1887

and 1889 Agreements on June 7, 1890, 21 Cong. Rec.

5769-70, the House did not hoid a vote on the bill that

year, and the Agreements were not ratified until passage

of the Indian Department’s 1891 annual appropriation bill

on March 3, 1891. 26 Stat. at 1027, App. 87-98. In the

interim, Congress had admitted Idaho as the 43rd State.

Idaho Admission Bill, Act of July 3, 1890, 26 Stat. 215.5

As noted above, following its admission, Idaho exer-

cised unfettered jurisdiction and rights of ownership over

the submerged lands within the Reservation without

challenge from the federal government. In 1991, however,

the Coeur d’Alene Tribe brought a quiet title action

against the State of Idaho in federal district court. The

Tribe claimed ownership of submerged lands within both

the current and former boundaries of the Coeur d’Alene

> The Idaho State Constitution contains a provision

disclaiming title to lands “owned or held by any Indians or

Indian tribes.” Idaho Const. art. 21, § 19. Although the district

court cited this provision as supporting its decision, App. 81-82,

the court of appeals, in reaching its conclusions, expressly

disclaimed any reliance on this provision. App. 24.

Reservation. The Tribe’s original claims against the State

were dismissed as a violation of the State’s sovereign

immunity, an action later upheld by this Court in Idaho v.

Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997). Following

the initial dismissal of the Tribe’s claims, the United

States brought a quiet title action on the Tribe’s behalf, in

which the Tribe intervened. The United States invoked

federal court jurisdiction under 28 U.S.C. §§ 1331, 1345,

and 2202. The United States’ action claimed title only to

submerged lands within the current boundaries of the

Coeur d’Alene Reservation, excluding submerged lands

within Heyburn State Park, which lies within the Reser-

vation boundaries. Following a two week trial, the fed-

eral district court for the District of Idaho issued a

decision recognizing federal and tribal title to submerged

lands within the current boundaries of the Coeur d’Alene

Reservation, namely the lower third of Coeur d’Alene

Lake and the lower reach of the St. Joe River. App. 31-86.

The State appealed.® The court of appeals affirmed the

district court’s decision. App. 1-30.

The State seeks review of the court of appeals’ deci-

sion and the restoration of the public’s ownership of

Coeur d’Alene Lake and the St. Joe River.

6 The Tribe also filed a cross-appeal relating to the district

court’s refusal to hear the Tribe’s claims to submerged lands

within Heyburn State Park, which were excluded from the

United States’ complaint. The court of appeals denied the cross-

petition, and the State does not, in this petition, raise any issues

relating to ownership of submerged lands within Heyburn State

Park.

REASONS FOR GRANTING THE PETITION

1. Background.

As discussed in detail below, the court of appeals’

decision presents irreconcilable conflicts with the deci-

sions of both this Court and the Idaho Supreme Court.

The depth of these conflicts is best appreciated against

the background of this Court’s prior submerged lands

decisions. This Court has repeatedly affirmed that each

State’s ownership and control of the beds and banks of

navigable waters is “an inseparable attribute of the equal

sovereignty guaranteed to it upon admission [to the

Union].” United States v. Louisiana, 363 U.S. 1, 16 (1960).

Submerged lands possess a “perceived public character

. .. Which underlies and informs the principle that these

lands are tied in a unique way to sovereignty.” Idaho v.

Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 286 (1997).

Ownership of submerged lands is guaranteed to each

individual State “by the Constitution itself.” Oregon ex rel.

State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363,

374 (1977).7 Before the assumption of statehood, however,

7 The constitutional guarantee of state title to submerged

lands arises under the principle that each state is admitted to

the Union on an equal footing with the thirteen original states,

so that all States “have the same rights, sovereignty and

jurisdiction . . . as the original states possess within their

respective borders.” Mumford v. Wardwell, 73 U.S. (6 Wall.) 423,

436 (1867). The original thirteen states own the lands underlying

navigable waters within their boundaries as the sovereign

successors to the English crown. Martin v. Waddell’s Lessee, 41

U.S. (16 Pet.) 367, 410 (1842). Thus, under the equal footing

doctrine, all subsequently admitted states hold the same

sovereign title to the lands underlying navigable waters within

their respective boundaries. Pollard v. Hagan, 44 U.S. (3 How.)

212, 223 (1845). /

Congress, having the entire dominion and sovereignty

over the territory, may convey specific submerged lands

to third parties, or reserve perpetual federal ownership of

specific submerged lands. Utah Div. of State Lands v.

United States, 482 U.S. 193, 197 (1987); United States v.

Alaska, 521 U.S. 1, 33-34 (1997). When Congress does so, it

necessarily defeats the title of the future State to those

same submerged lands. Congress’ authority to defeat

state title to submerged lands can only be exercised up to

the point of statehood. Afterward, state title to sub-

merged lands is absolute. Oregon ex rel. State Land Bd. v.

Corvallis Sand & Gravel Co., 429 U.S. at 374. |

While Congress has the authority, during the terri-

torial period, to defeat state title to submerged lands,

congressional policy is to hold submerged lands “for the

ultimate benefit of future States.” Utah Div. of State Lands,

482 U.S. at 197, quoting United States v. Holt State Bank,

270 U.S. 49, 55 (1926). Congress’ policy of retaining sub-

merged lands in trust for future States creates a “strong

presumption against conveyance by the United States.”

Montana v. United States, 450 U.S. 544, 552 (1981). Because

of this presumption, the Court will not infer an intent to

defeat state title to submerged lands “unless the intention

was definitely declared or otherwise made very plain.”

United States v. Holt State Bank, 270 U.S. at 55.

When submerged lands are located within the exte-

rior boundaries of a federal reservation, the Court has an

even higher threshold for inferring intent to defeat state

title, since “[t]he land remains in federal control, and

therefore may still be held for the ultimate benefit of

future States.” Utah Div. of State Lands, 482 U.S. at 202.

Thus, a court may not “infer an intent to defeat a State’s

equal footing entitlement from the mere act of reservation

itself.” Id. Instead, the United States is required to estab-

lish (1) that there was a clear intent to include the sub-

merged lands within the reservation, and (2) that

“Congress affirmatively intended to defeat the future

State’s title to such land.” Id.

Recently, the Court expanded its analysis to address

reservations originally established by executive order. In

such cases, the first prong of the test, intent to include

submerged lands within the reservation, may be fulfilled

by executive action. United States v. Alaska, 521 U.S. at

45-46. The second part of the test is fulfilled where Con-

gress, after being put on notice that the executive reserva-

tion includes submerged lands, ratifies such inclusion. Id.

at 44-45. An intent to ratify the reservation is found

where Congress “explicitly recogniz[es], at the point

of . . . statehood, an Executive reservation that clearly

included submerged lands,” id. at 44, or where Congress

“acknowledged” continuing federal ownership of the res-

ervation in the statehood act. Id. at 45. Congress must

speak in plain language that “reflects Congress’ intent to

ratify the inclusion of submerged lands within the

Reserve and to defeat the State’s title to those lands.” Id.

at 46.

2. The court of appeals’ decision presents irreconcil-

able conflicts with decisions of the Idaho Supreme

Court.

The Idaho Supreme Court has repeatedly applied the

above principles to affirm the State’s title to the sub-

merged lands of Coeur d’Alene Lake. In Kootenai Environ-

mental Alliance, Inc. v. Panhandle Yacht Club, Inc., 671 P.2d

1085 (Idaho 1983), the court addressed a dispute over a

grant, by the Idaho Department of Lands, of a lease of

submerged lands for private docking facilities on Coeur

a enti Oe

d’Alene Lake. In affirming the lease, the court confirmed

that the “State of Idaho holds title to the beds of all

navigable bodies of water below the natural high water

mark for the use and benefit of the public.” Id. at 1088. In

Erickson v. State of Idaho, 970 P.2d 1 (Idaho 1998), the court

reviewed a district court decision establishing the ordi-

nary high water mark (OHWM) of Coeur d’Alene Lake.

In doing so, it stated that “[i]t is well established that the

State owns in trust for the public title to the bed of

navigable water below the OHWM as it existed at the

time the State was admitted into the Union.” Id. at 3. In

Bowman v. McGoldrick Lumber Co., 219 P. 1063 (Idaho

1923), the court, in determining the rights of a littoral

landowner, expressly recognized state title to the bed of

Coeur d’Alene Lake. Id. at 1065.

Although the above decisions addressed situations

arising outside the Coeur d’Alene Reservation, they

affirmed state title to Coeur d’Alene Lake generally, mak-

ing no distinction between Reservation and non-Reserva-

tion lands. The Idaho Supreme Court has also explicitly

affirmed state title to submerged lands within the Reser-

vation. West v. Smith, 511 P.2d 1326 (Idaho 1973), was an

action by a littoral land owner to compel removal of a

houseboat moored to pilings driven into the bed of Coeur

d’Alene Lake. The littoral property was located within

the exterior boundaries of the Coeur d’Alene Reservation,

as was the lakebed.® The Idaho Supreme Court adopted

8 The legal description of the littoral property was

Government Lot 3, Section 2, Township 47 North, Range 4 W,

Boise Meridian. West, 511 P.2d at 1328. The land was described

as “abut([ting] the westerly shore of Lake Coeur d’Alene.” Id.

The described land lies within the exterior boundaries of the

Reservation, and the adjacent lakebed lies plainly within that

portion of the lakebed that was adjudicated in the decisions that

are the subject of this petition.

| |

the district court’s finding that the “houseboat and the

pilings to which it is moored are located below the natu-

ral high water mark of the lake on lands belonging to the

State of Idaho.” Id. at 1329. In adopting the district court’s

finding, the court reiterated that “[t]he State of Idaho

holds title to the beds of all navigable bodies of water

below the natural high water mark for the use and benefit

of the whole people.” Id. at 1330. As authority, the court

cited the equal footing language in the Idaho Admission

Bill and this Court’s decision in Shively v. Bowlby, 152 U.S.

1 (1894). Id. at 1330 n.1. The court also affirmed that

“[s]ubject to regulation by the State, the public is entitled

to use the waters of Lake Coeur d’Alene for navigational

and recreational purposes.” Id. at 1331.

It is impossible to reconcile the court of appeals’

decision, which recognizes federal and tribal ownership

of the lower third of Coeur d’Alene Lake, with the West

decision, which expressly recognized State ownership

and regulation of that same portion of the Lake. The court

of appeals’ decision also conflicts with the State’s exer-

cise, over the last 100 years, of legislative and judicial

jurisdiction over Coeur d’Alene Lake and the St. Joe

River, based on the assumption of State ownership. The

Court should grant the petition for certiorari and resolve

this conflict.

3. The court of appeals’ decision presents irreconcil-

able conflicts with decisions of this Court.

In addition to the demonstrated conflicts with the

decisions of the Idaho Supreme Court, the court of

appeals’ decision conflicts directly with this Court’s deci-

sion in United States v. Alaska, 521 U.S. 1 (1997). The

Alaska decision established an analysis for determining

eat ana

whether Congress intended to defeat state title to sub-

merged lands previously reserved by executive order.

While conflicts between this Court and a circuit court of

appeals are not normally fertile ground for review on

certiorari, there are unique circumstances to this case

which mandate such review. First, States within the Ninth

Circuit are, by virtue of their large number of reserva-

tions and their later admission to the Union, placed in the

particular circumstance of having to assert and defend

claims to submerged lands within federal reservations. A

large number of these reservations were created by exec-

utive orders issued during the territorial period. Thus,

due to geographic and historical circumstances, chal-

lenges to state title to submerged lands within executive

order reservations have, to date, been peculiar to the

States within the Ninth Circuit. See, e.g., Puyallup Indian

Tribe v. Port of Tacoma, 717 F.2d 1251 (9th Cir. 1983), cert.

denied, 465 U.S. 1049 (1984) (addressing submerged lands

within executive order addition to treaty reservation);

Muckleshoot Indian Tribe v. Trans-Canada Enterprises, 713

F.2d 455-(9th Cir. 1983), cert. denied, 466 U.S. 1049 (1984)

(addressing submerged lands within executive order

expansion of treaty reservation); United States v. Aranson,

696 F.2d 654 (9th Cir. 1983), cert. denied, 464 U.S. 982

(1983) (addressing submerged lands within executive

order addition to statutory reservation); United States v.

Alaska, 423 F.2d 764 (9th Cir.), cert. denied, 400 U.S. 967

(1970) (addressing submerged lands within wildlife ref-

uge created by executive order); Skokomish Indian Tribe v.

France, 320 F.2d 205 (9th Cir. 1963), cert. denied, 376 U.S.

943 (1964) (addressing submerged lands within executive

order reservation); Moore v. United States, 157 F.2d 760

(1946), cert. denied, 330 U.S. 827 (1947) (addressing sub-

merged lands within executive order reservation). Out-

side of the Ninth Circuit, state title to submerged lands

within executive order reservations apparently has not

been challenged. Thus, conflicts with other circuits may

never appear, and an issue critical to the sovereignty of

many western States may escape review.

Another unique circumstance is that the primary con-

flict alleged herein is between the decision below and a

decision issued by this Court while exercising its original

jurisdiction, United States v. Alaska, 521 U.S. 1 (1997). In

many ways, the situation is analogous to a conflict

between circuits. When exercising its original jurisdic-

tion, the Supreme Court is in much the same posture as a

circuit court of appeals, since its review is only one step

removed from the fact-finding of the special master typ-

ically appointed to hear original jurisdiction cases. Thus,

decisions in original jurisdiction cases tend to be more

dependent on factual findings than is typical of decisions

heard on certiorari, which have been distilled through an

additional layer of appellate review before being heard

by the Supreme Court. By nature, original jurisdiction

decisions are not intended to provide national guidance

or establish rules of general applicability.

The concept that original jurisdiction decisions tend

to be fact-specific and of narrow applicability is certainly

demonstrated by the Alaska decision, which was based on

circumstances and provisions unique to the Alaska State-

hood Act. Without careful attention to its details,

attempts to apply the Alaska decision to other circum-

stances may result in the misconception that the Court

lowered the thresholds that must be met to infer congres-

sional intent to defeat state title to submerged lands.

Indeed, when extended to circumstances outside the

unique context of the Alaska Statehood Act, as happened

here, much of the language of the Alaska decision can be

readily misapplied. As described in further detail below,

the court of appeals’ misapplication of the holdings in

Alaska creates a series of conflicts that should be resolved

through the granting of the petition for certiorari.

4. The court of appeals’ decision conflicts with this

Court’s decisions holding that Congress must affir-

matively intend to defeat state title to submerged

lands within federal reservations.

The court of appeals focused on one particular fact to

Support its holding: the fact that after being informed

that the Coeur d’Alene Reservation included navigable

waters, Congress authorized negotiations to secure the

release of some or all of the waters from the Reservation.

The court of appeals concluded that:

Congress’ course of conduct in ascertaining in

1888 that the Executive construed the reserva-

tion to include submerged lands and then

authorizing negotiations in 1889 to purchase

and thereby recover whatever portion of those

lands the Tribe was willing to sell demonstrates

its acknowledgement that beneficial ownership

of the lands had passed to the Tribe.

Although Congress had the opportunity and the

power to repudiate the executive reservation,

and the 1887 agreement, it did not do so.

Instead, in 1889 it took affirmative action, choos-

ing to authorize negotiations — with few limita-

tions aside from an instruction to acquire non-

agricultural lands — “for the purchase and release

by said tribe of such portions of its reserva-

tion . . . as such tribe shall consent to sell”

(emphasis added). Act of March 2, 1889, 25 Stat.

980, 1002. The express reference to the reserva-

tion as the Tribe’s reservation, explicit recognition

that the choice to sell was the Tribe’s, and refer-

ence to tribal release of portions of its reservation

all manifest an awareness and acceptance by

Congress of the boundaries of the 1873 reserva-

tion — boundaries that included submerged

lands.

App. 21-22 (footnote excluded).

The court of appeals’ conclusions conflict with this

Court’s decision in Alaska in a number of ways. First, it

ignores this Court’s requirement that Congress must act

affirmatively to defeat state title to submerged lands.

Utah Div. of State Lands v. United States, 482 U.S. 193, 202

(1987) (United States must “establish that Congress affir-

matively intended to defeat the future State’s title to

[submerged] land”); Alaska, 521 U.S. at 41 (adopting Utah

standard). An affirmative intent to defeat state title to

submerged lands within federal reservations requires that

Congress make plain its intent that federal ownership

would continue after statehood. In Alaska, this Court was

careful to find that in regards to both reservations at

issue, Congress clearly contemplated that its action

would defeat state title and result in continued federal

ownership after statehood. See 521 U.S. at 42 (“Section

11(b) [of the Statehood Act] thus reflects a clear congres-

sional statement that the United States owned and would

continue to own submerged lands included within the

Reserve”); id. at 57 (“In § 6(e) of the Statehood Act,

Congress clearly contemplated continued federal owner-

ship of certain submerged lands... . ”).

In Alaska, Congress’ intent to retain title to sub-

merged lands after statehood was explicit, because the

retention of submerged lands occurred in the context of a

statehood act, and more specifically, the Alaska Statehood

Sgt eae ES TRA x

Act, which is unique in that one of its primary purposes

was to allocate ownership of public lands between the

state and federal governments. See Alaska, 521 US. at

1916 (noting that § 6(e) of Alaska Statehood Act trans-

ferred certain lands to Alaska and retained certain lands

in federal ownership); Amoco Production Co. v. Village of

Gambell, 480 U.S. 531, 549-50 (1987) (discussing the

“allocation” of public lands in the Alaska Statehood Act

and follow-up statutes). The Act’s express allocation of

reserved lands that clearly included navigable waters

allowed this Court to conclude that “Congress clearly

contemplated continued federal ownership of certain

submerged lands ....” Alaska, 521 U.S. at 57.

The court of appeals, however, failed to recognize

that the retention of federal ownership of submerged

lands in a pre-statehood act does not necessarily imply an

intent for such ownership to continue after statehood. In

contrast to the Alaska Statehood Act, the act at issue here

was not intended to allocate public lands between federal

and state ownership. Rather, it simply directed negotia-

tions to modify the Reservation boundaries prior to con-

gressional approval of the pending agreement. While

Congress was clearly motivated by a desire to secure the

immediate release of at least some of the Lake from its

status as “Indian country,” there is nothing in the legisla-

tive history to suggest that it affirmatively intended that

the remainder of the Lake would not later pass into State

ownership. Indeed, the court of appeals made no finding

that Congress “clearly contemplated” continued federal

ownership of submerged lands after statehood, nor could

it. The court of appeals simply ignored this Court’s

requirement that Congress must specifically contemplate

the defeat of state title. Defeats of state title cannot be

inadvertent. The petition for a writ of certiorari should be

granted to resolve this conflict.

5. The court of appeals’ decision conflicts with this

Court’s decisions holding that a defeat of state title

to submerged lands within a reservation should not

be inferred unless continued federal ownership

after statehood is necessary to achieve the purposes

of the reservation.

in determining whether Congress intended to defeat

state title to submerged lands within the Coeur d’Alene

Reservation, the court of appeals expressly declined to

examine the purpose of the reservation as understood by

Congress. The court stated:

The State’s argument that the district court

should have determined the purpose of the res-

ervation as understood by Congress (rather than

the Executive), and as so understood in 1889

(rather than 1873) lacks support in the case

law. .. . What mattered was that Congress rec-

ognized that the executive reservation included

submerged lands, not that it knew or acknowl-

edged the executive purpose in reserving them.

App. 18.

The court of appeals’ holding was a radical departure

from this Court’s approach in the Alaska decision, where

the Court stressed the need to examine the purpose of the

reservation as an indication of whether Congress con-

cluded that defeat of state title was necessary to meet

federal objectives. In Alaska, the Court found that that the

purpose of the petroleum reserve was to retain federal

ownership of all “oil and gas deposits within the

Reserve's boundaries,” 521 U.S. at 39, and that “transfer

of submerged lands at statehood - and the loss of owner-

ship rights to the oil deposits beneath those lands -

<6 A, cma

would have thwarted that purpose.” Id. at 43. Addressing

the wildlife range, the Court found that “waters within

the boundaries of the Range were an essential part of the

habitats of the species the Range was designed to protect,

and that retention of lands underlying those waters was

critical to the Government’s goal of preserving these

aquatic habitats.” Id. at 52. The Court also distinguished

prior decisions, such as that in Utah Div. of State Lands,

finding that in Utah continued federal ownership of Utah

Lake after statehood was not necessary for fulfillment of

the federal goal of developing a reservoir. Id. at 38. Like-

wise, the Court noted that “[i]n Montana [v. United States},

we reasoned that a conveyance of a beneficial interest in

submerged lands beneath a river on the Crow Reserva-

tion would not have been necessary to achieve the Gov-

ernment’s purpose in creating the reservation, because

fishing was not important to the Crow Tribe’s way of

life.” Id. at 52.

Clearly, the Alaska Court examined the purpose of the

reserves at issue as a method of determining congressional

intent. 521 U.S. at 42-43 (discussing purposes of oil

reserve as aid to interpretation of § 11(b) of the Statehood

Act); id. at 56-57 (noting that the operative provision in

§ 6(e) of Statehood Act stated an express purpose of

reserving lands for the “protection of wildlife”). Indeed,

it could not be otherwise. Since the defeat of state title is

an issue determined by congressional intent, the review-

ing court must examine the objectives of the reservation

as understood and defined by Congress. Thus, the anal-

ysis adopted in Alaska hinged on determining the objec-

tive of the reservation and finding that “defeating state

title to submerged lands was necessary to achieve the

United States’ objective ....” Id. at 42.

Here, however, the court of appeals declined to

determine Congress’ understanding of the Reservation’s

purposes. Rather, it relied solely on the purposes of the

Reservation as understood by the government agents

whose actions precipitated the 1873 executive order. App.

17-19.9 The court of appeals’ approach cannot be recon-

ciled with the Alaska decision. It is folly to assume that

Congress, in approving a reservation, automatically

adopts as its own the objectives of the executive, espe-

cially when the executive order establishing the reserva-

tion occurred many years before, and where, as here, the

executive order was intended to be only temporary in

nature. App. 35. It is especially folly in this instance,

because Congress did not, prior to statehood, approve the

Reservation as established by the prior Executive order.

Instead, it purposefully withheld such approval, and

directed the modification of the Reservation boundaries

to exclude at least some of the submerged lands.

Congress’ directive to modify the Reservation was

plainly due to the fact that the original objectives which

led to the inclusion of submerged lands were no longer

valid. Both Congress and the Commissioner of Indian

Affairs found that the living conditions of the Coeur

9° Notably, both the court of appeals and the district court

looked only to the purpose of the reservation as understood “by

the government’s negotiators and agents,” App. 19, not the

purpose as understood by the persons actually involved in the

decision to set aside the Reservation such as the President, the

Secretary of the Interior, and the Commissioner of Indian

Affairs. Indeed, the district court expressly rejected any need to

determine the knowledge or understanding of the three primary

decision-makers. App. 58, n.13. The result was that the court’s

determination of the purpose of the Reservation was even

further removed from the objective of determining

congressional intent.

d’Alene Tribe in 1889 had changed, as demonstrated in

the 1888 Senate Resolution, which pointedly noted “the

Indians now on such reservation are located in the

extreme southwest corner of the same around De Smedt

Mission, near the town of Farmington, in Washington

Territory, where the land is good for agriculture... . ”

S. Misc. Doc. No. 36, 50th Cong., 1st Sess. (1888). In his

response to the resolution, the Commissioner of Indian

Affairs stated that in addressing the question of owner-

ship of the Lake, “it [is] proper to refer briefly to the

character and condition of the Indians occupying the

reservation and the situation of affairs as existing

amongst them.” S. Ex. Doc. No. 76, 50th Cong., Ist Sess. 5

(1888). He then went on to describe the Tribe’s agri-

cultural successes. Id. After reviewing the Tribe’s needs,

the Commissioner concluded that “my own opinion is

that the reservation might be materially diminished with-

out detriment to the Indians, and that changes could be

made in the boundaries for the release of some or all of

the navigable waters therefrom, which would be of very

great benefit to the public... .” Id. at 6.

Obviously, in the views of both Congress and the

Commissioner of Indian Affairs, the Tribe’s needs had

changed since the Reservation’s establishment in 1873,

and such views were a critical factor in Congress’ deci-

sion to negotiate modifications in the boundaries of the

Reservation. It was anticipated that the primary purpose

of the diminished reservation would be to provide for the

Tribe’s needs as an agricultural people. It was not hap-

penstance that the sole directive in the 1889 Act authoriz-

ing new negotiations was that the executive branch seek

“the purchase and release by said tribe of such portions

of its reservation not agricultural and valuable chiefly for

minerals and timber ....” Act of March 2, 1889, 25 Stat.

980 at 1002.

Congress’ contemplation that the primary purpose of

the diminished reservation would be to provide an agri-

cultural land base for the Tribe was certainly a relevant

factor to be considered. See Montana v. United States, 450

U.S. 544, 556 (1981) (finding that Congress had no need to

depart from the policy of retaining submerged lands

within Indian reservation for future States where fishing

“was not important to [the tribe’s] diet or way of life”).

The obvious inference to be made from Congress’ con-

templation of the purposes of the Coeur d’Alene Reserva-

tion is that Congress did not, by authorizing negotiations

with the Tribe, contemplate the need to defeat future state

title to submerged lands to supply the needs of the Tribe.

By ignoring this critical evidence of congressional intent,

the court of appeals ignored the directive of this Court

that the purpose of the reservation is a critical factor in

determining whether Congress intended federal owner-

ship of submerged lands to continue after statehood.

Alaska, 521 U.S. at 39. The Court should grant certiorari to

resolve this conflict.

6. The court of appeals’ decision ignores the fact that

Congress purposefully deferred its ratification of

the Reservation until after statehood.

The court of appeals concluded that “[flormal rat-

ification, prior to statehood, of the 1887 and 1889 agree-

ments is not necessary for a finding of congressional

intent to defeat state title.” App. 20. Whatever truth this

may have as a general statement, it ignores congressional

intent relating specifically to the Coeur d’Alene Reserva-

tion. Congress itself had indicated, in express and specific

7 see eee

language, that the boundaries of the Coeur d’Alene Res-

ervation would not be deemed as ratified or approved by

Congress until Congress took specific and express action

to do so.

The saga of congressional ratification began with the

1886 Act authorizing negotiations to extinguish the

Tribe’s claims of aboriginal title outside the 1873 Reserva-

tion. The authorization act provided that “no agreement

made shall take effect until ratified by Congress.” Act of

May 15, 1886, 24 Stat. 29 at 44. Thus, the process began

with Congress clearly reserving to itself the right to

review the executive branch’s actions and to hold those

actions in abeyance until formally ratified.10

Congress’ caution was well warranted. Article 5 of

the 1887 Agreement provided that

In consideration of the foregoing cession and

agreements, it is agreed that the Coeur d’Alene

Reservation shall be held forever as Indian land

and as homes for the Coeur d’Alene Indians

... and no part of said reservation shall ever be

sold, occupied, open to white settlement, or oth-

erwise disposed of without the consent of the

Indians residing on said reservation.”

App. 89. Congressional ratification of this provision

would have represented a significant change in the status

of the Reservation, since at the time “the rights and

interests which the Indians enjoyed in executive order

reservations were different from and less than their rights

10 In accordance with Congress’ directions, the negotiators

of the 1887 Agreement included a provision mirroring the

language in the authorization act. Article 14 of the 1887

Agreement stated that: “This agreement shall not be binding

upon either party until ratified by Congress.” App. 92.

and interests in treaty or statute reservations. Sioux Tribe

of Indians v. United States, 316 U.S. 317, 327 (1942).

Armed with the knowledge that its ratification would

permanently alter and strengthen the Tribe’s title to lands

within the Reservation, Congress, upon being informed

by the Commissioner of Indian Affairs that the Reserva-

tion included navigable waters, expressly withheld its

ratification of the 1887 Agreement until the issue could be

resolved to the satisfaction of Congress. The House Com-

mittee on Indian Affairs reported that:

The 1887 Agreement was presented to the

Fiftieth Congress, but not ratified for sundry

reasons, among which was a desire on the part

of the United States to acquire an additional

area, to wit, a certain valuable portion of the

reservation specifically dedicated to the exclu-

sive use of said Indians under an Executive

order of 1873 .. . [that] contains a magnificent

sheet of water, the Coeur d’Alene Lake, and its

chief tributary, to wit, the Coeur d’Alene River,

over the waters of which steamers now ply daily

H.R. Rep. No. 1109, 51st Cong., 1st Sess. 4 (1890).

In lieu of ratification, Congress directed further ces-

sion negotiations with the Tribe. The object of these nego-

tiations “was to regain from the Tribe whatever

submerged lands it was willing to sell.” App. 22, n.14.

Once again, Congress directed that any agreement

reached with the Tribe would be of no effect until ratified

by Congress. The 1889 Act authorizing negotiations for

the cession of a portion of the 1873 Reservation provided

that the “purchase shall not be complete until ratified by

Congress.” Act of March 2, 1889, 25 Stat. at 1002. This

language is also reflected in Article 4 of the 1889 Agree-

ment, which provides that:

scsienbviaddetuatiaienieataanaaidll

It is further agreed and understood that this

agreement shall not be binding on either party

until the former agreement now existing between

the United States by the duly-appointed

commissioners and the said Coeur d’Alene tribe

of Indians, bearing date March twenty-sixth,

eighteen hundred and eighty-seven, shall be

duly ratified by Congress; and in the event of

the ratification of the aforesaid agreement of

March twenty-sixth, eighteen hundred and

eighty-seven, then this agreement to be and

remain in full force and effect but not binding

on either party until ratified by Congress.

App. 95.

Congress itself defined the circumstances under

which it would ratify and approve the boundaries of the

Coeur d’Alene Reservation, while clearly signaling that

its authorization of negotiations should not be deemed as

approval of the Reservation. Indeed, the House Commit-

tee on Indian Affairs reported that Congress refused to

ratify the 1887 Agreement for the very reason that its

boundaries embraced navigable waters. H.R. Rep. No.

1109, 51st Cong., 1st Sess. 4 (1890). Yet, the court of

appeals interpreted the 1889 authorization act as ratifying

the 1873 boundaries so as to include the same navigable

waters that were the reason for the express withholding

of ratification. Such an interpretation cannot be squared

with the objectives underlying the 1889 act, and conflicts

with this Court’s repeated directive that Congress must

act “affirmatively” to defeat state title to submerged

lands. The petition for certiorari should be granted to

resolve this conflict.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

ALAN G. LANCE

Attorney General

CLive J. STRONG

Deputy Attorney General

Chief, Natural Resources

Division ~

STEVEN W. STRACK

Deputy Attorney General

July 2000 > -

» Le ea et agg

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Unitep States oF America, In re

Suit to quiet title to that

portion of the bed and banks

of Coeur d’Alene Lake and the

St. Joe River lying within the

exterior boundaries of the 1873

Coeur d’Alene Reservation,

Plaintiff-counter-

defendant, Appellee

STATE OF IDAHO,

Defendant-counter-claimant,

Appellant-Cross-Appellee,

Coeur D’ALENE TRIBE OF IDAHO,

Plaintiff-intervenor,

Appellee-Cross-Appellant

Appeals from the United States District Court

for the District of Idaho

Edward J. Lodge, District Judge, Presiding

Argued and Submitted

December 9, 1999 - Seattle, Washington

Filed May 2, 2000

)

Nos. 98-35831

98-35847

D.C. No.

CV-94-00328-EIL

OPINION

App. 2

Before: Thomas M. Reavley,! Stephen Reinhardt,

and M. Margaret McKeown, Circuit Judges.

COUNSEL

Steven W. Strack, Deputy Attorney Gereral, Natural

Resources Division, Boise, Idaho, for defendant-counter-

claimant, appellant-cross-appellee State of Idaho.

Hank Meshorer, United States Department of Justice,

Environmental and Natural Resources Division, Washing-

ton, D.C., for plaintiff-counter-defendant, appellee

United States of America.

Raymond C. Givens, Brian J. Cleary, Givens, Funke &

Work, Coeur d’Alene, Idaho, for plaintiff-intervenor,

appellee-cross-appellant Coeur d’Alene Tribe of Idaho.

OPINION

McKEOWN, Circuit Judge:

At issue in this case is the ownership of submerged

lands lying within the present-day boundaries of the

Coeur d’Alene Indian Reservation, which was originally

set aside by executive order in 1873. After a nine-day trial

involving multiple expert and lay witnesses, extensive

written reports, scientific studies, and historical docu-

ments, the district court issued a lengthy and meticulous

1 The Honorable Thomas M. Reavley, Senior United States

Circuit Judge for the United States Court of Appeals, Fifth

Circuit, sitting by designation.

App. 3

decision in which it concluded that the United States

retained these submerged lands for the benefit of the

Coeur d’Alene Indian Tribe (the “Tribe”). The court thus

entered an order quieting title to the beds and banks of

the Coeur d’Alene Lake (the “Lake”) and the St. Joe

River? (collectively, the “submerged lands”) in favor of

the United States, as trustee, and the Tribe, as the bene-

ficially interested party of the trusteeship. The State of

Idaho (the “State”) appeals that order along with related

orders giving the Tribe exclusive right to these sub-

merged lands. We affirm the judgment of the district

court. Congress’s course of conduct in the late 1880s — in

the years immediately preceding Idaho’s statehood in

1890 — demonstrates that it intended to defeat the State’s

title to submerged lands within the 1873 reservation.

The Tribe cross-appeals the district court’s refusal to

adjudicate the ownership of other submerged lands

located within what is now Heyburn State Park (the

“Park”). These lands were part of the Tribe’s reservation

until 1911, when the United States conveyed them to

Idaho to establish a park. We affirm the court’s decision

with respect to the Park because the complaint, read as a

whole, excludes lands within the Park and the United

States expressly disclaimed any intent to quiet title to

such lands.

2 Referred to in certain historical documents as the St.

Joseph River.

App. 4

BACKGROUND

The district court’s extensive Memorandum Decision

and Order lays out the general historical backdrop to this

case as well as extensive findings of fact. The State has

not challenged the district court’s factual findings, nor

has it challenged the court’s conclusion that executive

actions reflect a clear intent to include the submerged

lands within the 1873 reservation.* We thus discuss the

factual background only as it relates to the main issue in

this case, namely, whether Congress intended to defeat

the State’s title to these submerged lands.

In 1867, more than thirty years before Idaho became a

state, a reservation embracing at best a small portion of

the Lake was established by executive order. The Tribe

was not even aware of this order until after it sent a

petition in 1871 to the Commissioner of Indian Affairs

(the “Commissioner”) requesting a charter for a reserva-

tion. Thereafter, the Tribe refused to settle within the

confines of the 1867 reservation because it did not include

the Tribe’s mission or waterways. After learning of the

1867 executive order, the Tribe sent a second petition, in

1872, to the Commissioner, requesting inclusion of the

mission and the St. Joe and Coeur d’Alene river valleys.

The Tribe’s request was based in part on its continuing

dependence on water resources; as it noted in its petition,

“for a while yet we need have some hunting and fishing.”

3 For purposes of this appeal, the State concedes that the

1873 executive order was intended to reserve title to the

submerged lands for the benefit of the Tribe.

App. 5

) Congress responded in 1873 by authorizing a com-

: mission to negotiate with the Tribe for settlement on a

) reservation. After negotiations, the Tribe agreed to settle

within an area considerably larger than the 1867 reserva-

- tion. The new boundaries included the Coeur d’Alene

and St. Joe Rivers as well as the vast majority of the Lake

(the “1873 reservation”). An executive order, dated

November 8, 1873,4 set aside this area for the Tribe pend-

ing ratification of the 1873 agreement, which was contin-

gent on congressional approval, but such approval never

came. All subsequent executive and congressional action

taken with regard to the reservation nonetheless operated

from the understanding that its boundaries were as stated

in the 1873 agreement and executive order5

4 Executive Orders Relating to Indian Reservations, From

May 14, 1855 to July 1, 1912, Washington, D.C., Government

Printing Office (1912) at 72.

° For instance, an 1883 government Survey located the

reservation’s northern boundary across the Lake, consistent

with the 1873 agreement and executive order; the Executive

dealt with both commercial and recreational use of the Lake by

non-Indians on the assumption that the laws governing Indian

territory governed; Congress spoke of the 1873 reservation as

“set apart for the use of the Coeur d’Alene Indians by executive

order” and described its borders in an 1888 act granting a

railroad a conditional right-of-way through the reservation, Act

of May 18, 1888, 25 Stat. 160; Congress referenced the 1873

boundaries in its 1886 authorization of negotiations “for the

cession of their lands outside the limits of the present Coeur

d’Alene reservation,” Act of May 15, 1886, 24 Stat. 29, 44; and

Congress again referenced the 1873 boundaries in its 1889

authorization of negotiations “for the purchase and release by

said tribe of such portions of its reservation not agricultural and

valuable chiefly for minerals and timber as such tribe shall

consent to sell... .” Act of March 2, 1889, 25 Stat. 980, 1002.

App. 6

In 1885, spurred by concerns due to increasing white

settlement pressure, the Tribe again contacted the Com-

missioner, requesting confirmation of the 1873 reserva-

tion and compensation for lands outside that reservation

but within the Tribe’s aboriginal territory. Congress

responded in 1886 by authorizing negotiations with the

Tribe “for the cession of their lands outside the limits of

the present Coeur d’Alene reservation.” Act of May 15,

1886, 24 Stat. 29, 44. Negotiations were undertaken in

1887, and the Tribe agreed to cede its aboriginal title “to

all lands in said Territories and elsewhere, except the

portion of land within the boundaries of their present

reservation in the Territory of Idaho, known as the Coeur

d’Alene Reservation” (the “1887 agreement”). Act of

March 3, 1891, 26 Stat. 989, 1027 (reciting 1887 agree-

ment). This agreement, like the 1873 sgreement, required

ratification.

While the 1887 agreement was pending before Con-

gress, pressure to open up at least part of the reservation

to the public (particularly the Lake), prompted the Senate

to pass a resolution in 1888 inquiring of the Secretary of

the Interior about the boundaries of the Tribe’s reserva-

tion and “whether such area includes any portion, and if

so, about how much of the navigable waters of Lake

Coeur d’Alene, and of Coeur d’Alene and St. Joseph

Rivers.” S. Res. Mis. Doc. No. 36, 50th Cong. (1888). The

Senate also sought advice about “whether it is advisable

to release any of the navigable waters aforesaid from the

limits of such reservation.” Id. Two weeks later, the Secre-

tary replied, stating that the 1873 reservation included

the submerged lands at issue and attaching a report by

the Commissioner; this report informed Congress that

App. 7

“the reservation appears to embrace all the navigable

waters of Lake Coeur d’Alene, except a very small frag-

ment cut off by the north boundary of the reservation”

and that portions of the Coeur d’Alene and St. Joseph

Rivers flowed through the reservation. Letter from the

Secretary of the Interior, S. Ex. Doc. No. 76 at 3, 50th

Cong. (1888). The Commissioner opined that “changes

could be made in the boundaries for the release of some

or all of the navigable waters” and that it would be “an

easy matter” to negotiate a cession of the reservation,

“including all or a portion of the navigable waters,” once

the 1887 agreement had been ratified. Id. at 2.

After receiving this response, Congress authorized a

third round of negotiations, this time “for the purchase

and release by said tribe of such portions of its reserva-

tion not agricultural and valuable chiefly for minerals

and timber as such tribe shall consent to sell... .” Act of

March 2, 1889, 25 Stat. 980, 1002. Following negotiations,

the Tribe agreed to cede the approximate northern third

of its 1873 reservation to the United States; this area

included roughly the northern two-thirds of the Lake (the

“1889 agreement”).6 Act of March 3, 1891, 26 Stat. 989,

1030 (reciting 1889 agreement). The 1889 agreement, like

proposed boundaries, rejecting the suggestion that the “lake

belongs to [the Tribe] as well as to the whites.” Message from

the President of the United States, S. Ex. Doc. No. 14, 51st Cong.

(1889), at 9. A government negotiator then explained the

proposed boundaries as follows: “[I]f we buy this land you still

have the St. Joseph River and the lower part of the lake and all

the meadow and agricultural land along the St. Joseph River.”

Id.

App. 8

the 1873 and 1887 agreements, required ratification, and,

as a condition, the Tribe insisted that the 1887 agreement

be ratified. The map submitted to Congress along with

the written terms of the agreement showed the boundary

of the reservation as bisecting the Lake from west to east

at its southern third.

Congress formally ratified both the 1887 and 1889

agreements, but not until 1891, Act of March 3, 1891, 26

Stat. 989, nine months after Idaho’s admission to the

Union. Idaho Admission Bill, Act of July 3, 1890, 26 Stat.

215. This statehood act also “accepted, ratified, and con-

firmed” the Idaho constitution, id. § 1, which disclaims

the State’s “right and title to. . . all lands lying within

said limits owned or held by any Indians or Indian

tribes.” IDAHO Const. art. XXI, § 19.

Prior to Idaho’s admission, the House introduced and

the Senate passed separate but identical bills” ratifying

the 1887 and 1889 agreements, but due to uncertainty in

the House over whether the bills were the same, the

House tabled the Senate bill pending investigation of this

question, 21 Conc. Rec. 5905 (1890), which was ultimately

resolved in the affirmative, H.R. Rep. No. 2988, 51st

Cong., at 1 (1890). Two House reports, which recom-

mended passage of the bill, see id. and H.R. Rep. No. 1109,

51st Cong., at 5 (1890),8 and which indicate recognition of

the submerged lands as part of the Tribe’s reservation at

7 H.R. 7703, 51st Cong. (1890); S. 2828, 51st Cong. (1890), 21

Conc. Rec. 5769 (1890).

8 H.R. Rep. No. 2988 contains a reprint of H.R. Rep. No. 1109.

App. 9

the time of statehood, further explained that the 1887

agreement had not been ratified when first presented

for sundry reasons, among which was a desire

on the part of the United States to acquire an

additional area, to wit, a certain valuable por-

tion of the reservation specifically dedicated to

the exclusive use of said Indians under an Exec-

utive order of 1873 . . . [that] contains a magnifi-

cent sheet of water, the Coeur d’Alene Lake, and

its chief tributary, to wit, the Coeur d’Alene

River, over the waters of which steamers now

ply daily. . . . It also controls the outlet of said

lake, to wit, the Spokane River.

H.R. Rep. No. 1109, at 4, reprinted in H.R. Rep. No. 2988, at

Today, the boundaries of the reservation remain as

established in the 1887 and 1889 agreements, with two

exceptions: 1) the Harrison cession (negotiated by agree-

ment in 1894), a strip of land running from the mouth of

the Coeur d’Alene River to the reservation’s eastern

boundary and including a defined chunk of the Lake; and

2) the Park, an area transferred to Idaho by Congress in

1911 and embracing three smaller lakes adjacent to the

southern end of the Lake.

The United States, seeking to quiet title to submerged

lands within the present-day reservation, initiated this

action in its own capacity and as trustee for the Tribe. The

district court granted the Tribe’s motion to intervene,

subject to the limitation that the suit would encompass

only those submerged lands put at issue by the parties’

pleadings. The court declined the Tribe’s request that it

App. 10

adjudicate the ownership of submerged lands within the

Park.

Following trial, the district court ruled in favor of the

United States and the Tribe on the quiet title action. The

court found that the submerged lands lay within the

boundaries of the present-day reservation, that in 1873

the Tribe depended on the Lake and associated rivers for

a significant portion of its fishing needs, and that in 1873

the federal government was aware of this dependence.

The court then concluded that the Executive intended to

reserve submerged lands within the 1873 reservation for

- the benefit of the Tribe. The State has challenged neither

_ these factual findings nor the court’s legal conclusion on

executive intent.

The court also found that Congress was on notice,

prior to Idaho statehood, that the Executive had reserved

the submerged lands within the 1873 reservation for the

benefit of the Tribe; that the “northern boundary line of

the diminished reservation was drawn [in the 1889 agree-

ment] so as to bisect the Lake”; and that the minutes of

the 1889 negotiations showed that this placement was

“for the purpose of establishing the Tribe’s right to the

Lake and rivers.” Looking at events between 1873, after

the executive order established the reservation within

which the Tribe had agreed to settle, and 1890, the year

Idaho entered the Union, the court concluded that Con-

gress ratified the 1873 executive reservation of sub-

merged lands. The court explained that “[b]y explicitly

recognizing, prior to Idaho’s statehood, an Executive res-

ervation that included submerged lands, Congress dem-

onstrated a clear intent to defeat the State’s equal footing

App. 11

title.” It is this conclusion that the State challenges on

appeal.

ANALYSIS

We review de novo the district court's interpretation

of treaties, statutes, and executive orders. See Confederated

Tribes of Chehalis Indiar. Reservation v. Washington, 96 F.3d

334, 340 (9th Cir. 1996); United States v. Washington, 157

F.3d 630, 642 (9th Cir. 1998) (meaning of treaty language

is question of law, reviewed de novo). Findings of histori-

cal fact, including the district court’s findings regarding

treaty negotiators’ intentions, are reviewed for clear error.

See United States v. Washington, 157 F.3d at 642. Because

the State does not appear to have challenged any of the

court’s underlying factual findings, we accept the facts as

given and note that they are amply supported by the

record.

Juxtaposed in this case are two principles, both of

which must be accorded due weight: the canon of con-

struction favoring Indians and the presumption under the

Equal Footing Doctrine that a State gains title to sub-

merged lands within its borders upon admission to the

Union. See Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d

1251, 1257 (9th Cir. 1983) (stating that, “when faced with

a claim [to submerged lands] by an Indian tribe... , we

must accord appropriate weight to both the principle of

construction favoring Indians and the presumption that

the United States will-not ordinarily convey title” to such

lands).

The Supreme Court's trilogy of decisions in United

States v. Alaska, 521 U.S. 1 (1997), Utah Division of State

App: 12

Lands v. United States, 482 U.S. 193 (1987), and Montana v.

United States, 450 U.S. 544 (1981), provides the framework

for analyzing whether a state’s presumptive title to sub-

merged lands within its borders has been defeated. In

Alaska, the Supreme Court reaffirmed the two-prong test

set forth in Montana and Utah for determining whether a

state’s presumptive equal footing title to submerged

lands within its borders has been defeated. As framed by

the Supreme Court, the question before us is “whether

the United States intended to include submerged lands

within the [reservation] and to defeat [Idaho’s] title to

those lands.” See Alaska, 521 U.S. at 36.

Although executive action has now been held suffi-

cient to establish the first prong, the second prong

requires a showing of congressional intent. See Alaska, 521

U.S. at 40-41, 44. Nothing in Alaska requires that congres-

sional action take the form of explicit congressional rat-

ification of an agreement reserving or conveying title to

particular submerged lands. Rather, the Supreme Court

has framed the question as whether Congress intended to

defeat the state’s title to the lands at issue, see id. at 36;

Utah, 482 U.S. at 202; notably, the Supreme Court has not

required that the requisite intent be established in any

specific, formulaic way, focusing instead on whether the

congressional action at issue showed an affirmative intent

to defeat state title, that is, whether the “intention was

definitely declared or otherwise made very plain.” United

States v. Holt State Bank, 270 U.S. 49, 55 (1926). As the

Court in Alaska pointed out in rejecting the state’s argu-

ment to the contrary:

——_ ee

ee eer rrr rr"

Eee eee

App. 13

[T]here would have been no barrier to Congress

retaining a petroleum reserve, including sub-

merged lands, at the point of Alaska’s state-

hood, provided it satisfied Utah[’s] .

requirements of demonstrating a clear intent to

include submerged lands within the Reserve’s

scope and a clear intent to defeat Alaska’s title.

It follows that Congress could achieve the same

result by explicitly recognizing, at the point of

Alaska’s statehood, an executive reservation

that clearly included submerged lands.

Alaska, 521 U.S. at 44. ©

Given the State’s concession, for purposes of this

appeal, that the 1873 executive order was intended to

convey or reserve title to submerged lands, we focus on

the second prong — whether Congress demonstrated an

intent to defeat the State’s title to the submerged lands.

We conclude that Congress’s actions prior to statehood

clearly indicate its acknowledgment, express recognition,

and acceptance of the executive reservation, thereby

establishing its intent to defeat the State’s title. Accord-

ingly, we affirm the district court’s ruling quieting title to

submerged lands within the present-day Coeur d’Alene

Reservation for the benefit of the Tribe. In light of our

decision, we need not reach the Tribe’s alternative argu-

ments for affirmance.

I. The State’s Appeal - Submerged Lands

Relying on the events leading up to and surrounding

the 1889 negotiations, the district court held that Con-

gress demonstrated a clear intent to defeat the State’s

equal footing title. In particular, the court found that

App. 14

Congress was on notice that the executive reservation

included submerged lands and that its 1889 authorization

of negotiations with the Tribe for a cession of tribal

property constituted recognition and validation of the

executive reservation. Idaho argues that none of the

events leading up to its statehood in 1890 constitute

affirmative ratification of the executive intent to convey

or reserve the submerged lands and thus cannot show

congressional intent to defeat state title to these lands.

In any submerged lands/equal footing case, a court

must_begin with a strong presumption against defeat of a

state’s title. See Alaska, 521 U.S. at 34. The Supreme Court

has emphasized, however, that the question of whether

title to submerged lands rests with a state is “ultimately a

matter of federal intent.” Id. at 36.

In Alaska itself, the Court held that the United States

reserved title to the submerged lands within a petroleum

reserve created by executive order 35 years prior to

Alaska’s statehood, see id. at 32-46, and to submerged

lands within a wildlife refuge set aside by agency action

(via an application and regulations) prior to statehood

but not approved until after statehood, see id. at 46-61. In

finding that the United States intended to include sub-

merged lands within these reserved areas and to defeat

state title to the lands, the Court emphasized that: 1) the

reserves’ boundaries were drawn so as necessarily to

include the submerged lands, see id. at 36, 51; 2) the

purpose of the reserves would have been defeated had

the lands not been included, see id. at 39, 51-52; and 3)

Congress included language in the Alaska Statehood Act

indicating that it retained Enclave Clause authority to the

petroleum reserve, see id. at 41-42, and title to lands

App. 15

withdrawn or otherwise set aside as refuges for the pro-

tection of wildlife, see id. at 55-56.

In this case, several similar factors counsel the same

result.? First, in both 1873 and 1889, the boundaries of the

reservation were drawn so as necessarily to include sub-

merged lands. Second, the purpose of the reservation

would have been defeated had it not included these

lands. Third — and this is the crux of the case — the series

of congressional actions taken in the late 1880s (ascertain-

ing that the Executive construed the reservation to

include submerged lands and authorizing negotiations to

recover whatever portion of the lands the Tribe was will-

ing to sell) shows that Congress acknowledged that bene-

ficial ownership of the lands had already passed to the

9 We recognize that, in Alaska, the Supreme Court discussed

the first two factors identified here - namely, the purpose of the

reserves and the fact that their boundaries were drawn so as

necessarily to include submerged lands - mainly with respect to

whether the United States intended to include the submerged

lands within the reserves. These factors likewise support a

finding of executive intent to include in this case, as the State

concedes for purposes of appeal. We also discuss these factors

with respect to the “intent to defeat” prong for two reasons.

First, the State argued that Alaska involved a “unique

combination of necessity, purpose, and explicit statutory

language” and also argued that the district court short-circuited

the “purpose” analysis by “failing to determine Congress’ [s]

understanding of the purpose of the Reservation at the time of

the alleged ratification of the 1873 Executive order.” Second,

under the circumstances of this case, Congress’s knowledge of

the scope of the executive reservation - in particular, the

boundaries of the reservation and the fact that they included

submerged lands — is crucial. Accordingly, it is helpful to outline

precisely what information Congress had before it.

_—

App. 16

Tribe. Congress’s post-statehood actions also reflect rec-

ognition and confirmation of the passage of submerged

lands to the Tribe. Both before and after statehood, Con-

gress affirmatively treated the submerged lands as

reserved for the Tribe.

We begin with the manner in which the boundaries

of the reservation were determined. The reservation,

which physically encompassed the submerged lands at

issue, was created by a pre-statehood, 1873 executive

order that drew the boundaries so as necessarily to

include submerged lands. Crucial to the Tribe’s accep-

tance of the 1873 reservation, as the district court found

and the State does not dispute, was the inclusion of

submerged lands. In addition, and significantly, when the

1873 boundaries were renegotiated in 1889, the “northern

boundary line of the diminished reservation was drawn

so as to bisect the Lake” specifically “for the purpose of

establishing the Tribe’s right to the Lake and rivers.” The

State likewise does not dispute this factual finding.

Both the-Tribe and the agents sent out at the behest of

Congress in 1889 understood the reservation to encom-

pass submerged lands. As noted, the reservation’s bound-

aries were redrawn by the 1889 agreement to split the

lake - a fact recognized in the legal descriptions of the

cession, the verbal explanation given to the Tribe,!° and

the maps submitted to Congress. As we recognized in

10 After the Tribe specifically rejected the suggestion that

the “lake belongs to [it] as well as to the whites,” a government

negotiator told the Tribe that it “would still have the St. Joseph

River and the lower part of the lake... .”

ijcheutinate staie iadae ah

ae ee ee ae a RE ee

App. 17

another case in which we upheld tribal claims to sub-

merged lands under the half of a lake within the borders

of a reservation, “[i]Jt would have been pointless, and

quite likely deceptive, to have the northern boundary of

the reservation bisect Flathead Lake unless it was

intended to convey title to the southern half of that lake

to the Indians.” Confederated Salish & Kootenai Tribes v.

Namen, 665 F.2d 951, 962 (9th Cir. 1982) (further noting

that “the most natural and intelligible way of under-

standing the boundary description is to infer an intent to

convey the southern lake bed” and adopting this inter-

pretation “in view of the Supreme Court’s very frequent

admoniticns that doubtful language in Indian treaties

must be construed in favor of the Indians and given the

sense the Indians would have understood it to convey”).

This observation is equally pertinent here, where the

natural reading of all available documentation points to a

purposeful division of the Lake.

Considering together the district court’s undisputed

factual findings, the canon favoring Indians, and the fact

that both the 1873 and 1889 agreements drew boundary

lines across the lake - an unusual practice, as the district

court pointed out — the executive reservation and subse-

quent renegotiation could only have been meant and

understood to convey title to submerged lands within the

reservation’s borders.

This conclusion finds further support in the fact that

the purpose of the reservation would have been defeated

had it not included submerged lands. As the district court

found, and as the State does not challenge, the Tribe was

dependent on its fisheries in 1873. The Tribe successfully

insisted, both in 1873 and 1889, upon a reservation drawn

App. 18

to include submerged lands. In 1873, the reservation was

expanded from its 1867 borders because the Tribe refused

to settle on lands that did not encompass the Lake and its

associated waterways. In 1889, the borders of the reserva-

tion were contracted and redrawn — but redrawn so as to

ensure that the Tribe still had beneficial ownership of the

southern third of the Lake as well as the portion of the St.

Joe River within the 1873 reservation.

The State’s argument that the district court should

have determined the purpose of the reservation as under-

stood by Congress (rather than the Executive), and as so

understood in 1889 (rather than 1873) lacks support in the

case law. In Alaska, where the Supreme Court relied

heavily on the purpose of the reserves at issue, the Court

did not require either that Congress itself apprehend the

purpose or that the purpose be extant at the time of

congressional action. See Alaska, 521 U.S. at 39, 51-52. The

Court examined the purpose of the petroleum reserve, for

instance, with regard to the government’s goal in 1923,

when the Executive reserved the lands, rather than by

reference to 35 years later when Congress- passed the

statehood act referencing its authority over the reserve.

See id. at 39, 41-42. What mattered was that Congress

recognized that the executive reservation included sub-

merged lands, not that it knew or acknowledged the

executive purpose in reserving them.!! See id. at 44

11 Even cases specifically addressing tribal claims of right

to submerged lands do not require that Congress apprehend the

purpose of the reservation at the time it takes action recognizing

the executive reservation. Rather, they focus on what the

“United States” or the “government” knew as of the initial

reservation. See, e.g., United States v. Aam, 887 F.2d 190, 195, 197

App. 19

(providing for a showing that title to submerged lands

does not pass to a state where Congress “explicitly recog-

niz[ed], at the point of . . . statehood, an executive reser-

vation that clearly included submerged lands”). Thus, it

is irrelevant that Congress may have believed the Tribe to

have wholly or mainly converted to an agricultural life-

style by 1889. Here there is no dispute that the govern-

ment’s negotiators and agents were aware of the Tribe’s

dependence on fishing in 1873. Indeed, even Congress

was specifically on notice of this dependence as a result

of the Tribe’s second, 1872 petition. What matters, how-

ever, is Congress’s awareness that the 1873 reservation

included submerged lands, an issue about which there

can be no doubt given the response to the 1888 resolution.

Turning now to the actions Congress took with

respect to the reservation in the late 1880s, we conclude

that this series of actions demonstrates acknowledgment,

(9th Cir. 1990) (stating that “where courts have reviewed tribal

claims of beneficial title to land under navigable waters, the

inquiry focused on the circumstances surrounding the creation

of the reservation” and noting “insufficient proof that the

United States [by its officials or agents] perceived that the tribe

depended on those particular tidelands”); Muckleshoot Indian

Tribe v. Trans-Canada Enterprises, Ltd., 713 F.2d 455, 458 (9th Cir.

1983) (stating that “the United States was clearly aware that the

focus of the Muckleshoot’s world was on the rivers along which

they lived”; that “[t]he Government knew, at least by the date of

the 1874 Executive Order expanding the Muckleshoot

Reservation, that the Indians depended on watercourses”; and

that “[t]he Government’s Indian agents understood that [t]he

capture of fish was an essential source of [the Indians’] food

supply”) (internal quotations omitted); Puyallup Indian Tribe,

717 F.2d at 1258 (noting “the Government’s awareness of the

importance of the water resource to the Tribe”).

App. 20

recognition, and acceptance of the boundaries of the 1873

reservation, which Congress knew the Executive had con-

strued to include submerged lands, thereby showing the

requisite intent to defeat state title.

Formal ratification, prior to statehood, of the 1887

and 1889 agreements is not necessary for a finding of

congressional intent to defeat state title.12 Neither the

12 Nor is inclusion of language in a statehood act — here the

Idaho Admission Bill - specifying congressional intent to defeat

state title necessary to a finding that Congress did, in fact,

intend to defeat a state’s title to particular submerged lands. In

Alaska, the Supreme Court looked to the Alaska Statehood Act

as a source of congressional intent in concluding that Congress

intended to defeat Alaska’s title to the petroleum reserve and

wildlife refuge. See Alaska, 521 U.S. at 41-42, 55-56. Statehood

acts, however, do not — and have never been held to — serve as

exclusive sources of congressional intent with respect to the

question of congressional intent to defeat state title.

We also note that there is significantly more evidence of

congressional intent with regard to the submerged lands in this

case than with regard to the wildlife refuge in Alaska. The

Supreme Court found clear intent to defeat Alaska’s title to the

submerged lands within this wildlife refuge as a result of a

fairly general provision of the Alaska Statehood Act. Under that

provision, the United States retained “lands withdrawn or

otherwise set apart as refuges or reservations for the protection

of wildlife.” Id. at 47, 55. Not only had the refuge in Alaska not

yet been approved at the time of statehood — an administrative

application for withdrawal of the lands in the proposed refuge

was still pending when Congress passed the statehood act and

when Alaska subsequently entered the Union — but Congress

took no action either prior to or at statehood specifically with

regard to the refuge at issue. By contrast, in this case, before

statehood, Congress was often and actively involved in

deciding the fate of the submerged lands within the Tribe’s

reservation. ‘

App. 21

Supreme Court nor any of our cases require such a show-

ing. Rather, the test is whether Congress clearly intended

to defeat the State’s title to submerged lands. Here, Con-

gress’s course of conduct in ascertaining in 1888 that the

Executive construed the reservation to include sub-

merged lands and then authorizing negotiations in 1889

to purchase and thereby recover whatever portion of

those lands the Tribe was willing to sell demonstrates its

acknowledgment that beneficial ownership of the lands

had passed to the Tribe.

As the district court found, when Congress autho-

rized these negotiations, it was clearly on notice that the

1873 executive reservation included submerged lands

within its confines.13 Congress also had the unratified

1887 agreement before it, an agreement that referenced

the Tribe’s “present [1873] reservation in the Territory of

Idaho, known as the Coeur d’Alene Reservation” and that

secured the cession, pursuant to Congress’s 1886 authori-

zation, of aboriginal lands “outside the limits of the pre- -

sent [1873] Coeur d’Alene reservation.”

Although Congress had the Opportunity and the

power to repudiate the executive reservation and the

1887 agreement, it did not do so. Instead, in 1889 it took

affirmative action, choosing to authorize negotiations —

13 Similarly, Congress’s 1888 passage of an act granting a

railroad a right-of-way through the reservation, identified as

“set apart for the use of the Coeur d’Alene Indians by executive

order, commonly known as the Coeur d’Alene Reservation,”

and conditioned on the Tribe’s consent, also supports

congressional recognition of the 1873 reservation, which

Congress by this point knew included submerged lands.

App. 22

with few limitations aside from an instruction to acquire

non-agricultural lands!4 — “for the purchase and release by

said tribe of such portions of its reservation . . . as such

tribe shall consent to sell” (emphasis added). Act of March

~2, 1889, 25 Stat. 980, 1002. The express reference to the

reservation as the Tribe's reservation, explicit recognition

that the choice to sell was the Tribe’s, and reference to

tribal release of portions of its reservation all manifest an

awareness and acceptance by Congress of the boundaries

of the 1873 reservation — boundaries that included sub-

merged lands. This series of events indicates that Con-

gress accepted the Secretary’s advice to leave any cession

up to negotiations. Indeed, the fact that Congress decided

to make its authorization open-ended reinforces the dis-

trict court’s conclusion that Congress recognized and

accepted the Tribe’s beneficial ownership of all lands -

including submerged lands - within the 1873 reservation;

it also shows Congress’s recognition of the uncertainty of

14 The events surrounding the authorization clearly show

that the main purpose of the new negotiations was to regain

from the Tribe whatever submerged lands it was willing to sell.

The State itself notes that “as the district court recognized, the

1889... Act was an authorization ‘to negotiate with the Tribe of

a release of the submerged lands’ ” (quoting district court

decision). Relevant events include the 1888 resolution; the

response to that resolution; the events leading up to the

resolution, such as the pressure, brought to Congress’s

attention, to open up the Lake; the negotiations themselves,

which focused heavily on boundaries as they affected

submerged lands; and a subsequent report from the Department

of the Interior, which noted that little agricultural land had been

acquired. See Message from the President, S. Ex. Doc. No. 14, at

App. 23

regaining any land at all, and its particular desire to

recover whatever submerged lands it could.

In short, Congress “otherwise made very plain,” Holt

State Bank, 270 U.S. at 55, its intention regarding the

submerged lands. With the 1887 agreement and the

response to the 1888 resolution before it, Congress, fuily

aware of the boundaries of the 1873 reservation and the

extent of the submerged lands that were within it, sought

to modify the boundaries described in the agreement —

and it sought to do so via purchase rather than the

simpler expedient of rejecting the executive reservation.

Although Congress may have been unhappy to learn that

the executive reservation included submerged lands, its

actions show recognition and acceptance of the passage

of beneficial ownership to the Tribe, for it sought to regain

as much submerged land as possible. The affirmative

course of action on which Congress embarked in 1889 —

open-ended negotiations to purchase whatever non-agri-

cultural land, particularly submerged lands, the Tribe

was willing to cede — presupposes that beneficial owner-

ship of all land within the 1873 reservation, including

submerged lands, had already passed to the Tribe.

To the extent that the State argues that reversal is

necessary because the district court erred in relying on

the disclaimer clause in the Idaho constitution,15 we reject

this challenge. We do not read the district court’s brief

~15 This clause, found in article XXI, § 19, of the Idaho

constitution, reads: “.... And the people of Idaho do agree and

declare that we forever disclaim all right and title . . . to all lands

lying within said limits owned or held by any Indians or Indian

tribes[.]”

App. 24

discussion of this clause as integral to its ruling. Nor, for

that matter, do we believe reliance on the clause is neces-

sary to affirm the judgment quieting title to submerged

lands within the present-day reservation. To the extent

_ the clause is considered at all, however, it weighs in favor

of the conclusion we have reached, for it disclaims title to

land “held by” Indians. The lands in question were held

by the Tribe, and Congress affirmed this provision when

it ratified the Idaho constitution.!©

We also note that although Congress has never

undertaken by general laws to dispose of submerged

lands, this case involves much more than a simple dis-

claimer clause or a general reference in the Idaho Admis-

sion Bill to accepting, ratifying, or confirming the Idaho

constitution. Congress was heavily involved in deciding

the fate of the submerged lands set aside for the Tribe’s

16 That such a disclaimer clause may be declaratory,

conferring no new right or power on the United States, is

immaterial. The substance of a declaratory clause is not

meaningless, even if the clause itself is unnecessary in that it

merely recognizes a preexisting interest. See United States v.

Gardner, 107 F.3d 1314, 1320 (9th Cir. 1997) (finding

constitutional clause disclaiming title to unappropriated public

lands and explaining that although the U.S. “did not need the

disclaimer clause to gain title to the public lands in Nevada,”

such a declaratory clause of a preexisting U.S. right to

administer its property is valid).

We also reject as inapplicable to this case the State’s

argument that Congress cannot require states to disclaim rights

of sovereignty as the price of admission to the Union. Congress

did not do so here. All Congress did was to acknowledge and

ratify, through its course of conduct, the executive reservation

of certain submerged lands for the benefit of the Tribe.

App. 25

benefit by executive order. Congress treated the sub-

merged lands as beneficially owned by the Tribe — to the

point of authorizing negotiations for cession of whatever

portion of the Tribe’s submerged lands it was willing to

sell. The State’s citation to Alaska v. Ahtna, Inc., 891 F.2d

1401 (9th Cir. 1989), is not instructive. There a provision

in the Alaska constitution disclaiming all right and title to

property that “may be held” by or in trust for natives

stood alone, with no prior or specific congressional action

referencing the submerged lands at issue, see id. at

1405-06; in addition, the executive conveyance in Ahtna

did not occur until well after Alaska’s statehood. See id. at

1403.

Finally, we note that in addition to the series of

congressional actions prior to Idaho’s statehood, Con-

gress’s post-statehood actions also reflect recognition and

confirmation that submerged lands had passed to the

Tribe prior to Idaho’s statehood. Although these post-

Statehood events are not in themselves demonstrative of

pre-statehood intent, nor are they central to our decision,

neither can they be wholly ignored.17

‘7 Although the State suggests that post-statehood events

may not be considered in assessing congressional intent, we are

aware of no rule forbidding consideration of such events.

Indeed, the case law may suggest the contrary. See Alaska Pacific

Fisheries v. United States, 248 U.S. 78, 89-90 (1918) (finding

support for conclusion that Congress intended to include

submerged lands within reservation in subsequent conduct

whereby reservation was treated as including submerged

lands). Cf. Aam, 887 F.2d at 194 (district court did not abuse its

discretion in finding that matters occurring after Washington’s

admission in 1889 were too remote to be probative of the intent

of the parties to an 1855 treaty or of the Secretary’s intent upon

App. 26

Among these events, the most notable is the 1894

Harrison cession, which was ratified just five years after

the. 1889 authorization to negotiate. The United States

negotiated with the Tribe for the cession of a narrow strip

of land extending from the Lake to the eastern boundary

of the reservation. During the negotiations, the parties

referred to the 1889 agreement as having created a

boundary line in relation to the Lake, and they explicitly

included a corner of the Lake in the cession. A cession

that included a portion of the lake bed would not have

been necessary absent a contemporary understanding

that the Tribe had beneficial ownership of the bed. More-

over, as was the case with the 1889 agreement, the map

submitted to Congress depicted the cession as including

part of the bed, literally creating a right angle in the

water. This post-statehood acknowledgment of tribal

ownership of the lake bed is further confirmation, or

reaffirmation, of the status of the submerged lands within

the reservation. It is tantamount to a memorialization. of

prior events, especially given that nothing occurred

between statehood and the negotiations for the Harrison

cession that altered the ownership situation. Just as Con-

gress would not have negotiated with the Tribe for land

the Tribe did not own, so too the United States, on behalf

of the Tribe, would not have ceded to the State land that

the State already owned.

enlargement of the reservation in 1864). Notably, Aam does not

set forth any general rule barring post-statehood evidence, and

it is also readily distinguishable, for the substantial time gap -

40 years = motivating the Aam decision is not present here.

de A al to hats

App. 27

The same can be said for the course of events leading

to the creation of the Park. In 1908, Congress withdrew

from allotment, for use as a park, a portion of the reserva-

tion embracing three smaller lakes adjacent to the south-

ern end of the Lake, and in 1911 it formally transferred

this area to the State. There would have been no need for

the United States to withdraw the lands comprising the

Park from the reservation and no need for the United

States to convey these lands by patent to the State if the

State already owned them. We thus have another signifi-

cant example of the contemporary understanding of all

parties concerned with regard to the Tribe’s beneficial

ownership of submerged lands within its reservation.

II. The Tribe’s Cross-Appeal - Heyburn State Park

The cross-appeal raises the question of whether the

district court erred in refusing to decide ownership of

submerged lands within the Park. We must decide

whether the parties’ pleadings!8 — specifically, the United

States’ complaint and the State’s counterclaim — put at

issue submerged lands within the Park. Resolution of this

question requires a careful and commonsense reading of

the pleadings. We reject the cross-appeal because the

'8 In construing the parties’ pleadings, we bear in mind

that the current Physical situation in and around the Park

differs from the situation that existed in 1873, at the time of the

executive reservation, and in 1908 and 1911, the years,

respectively, that the Park was authorized and conveyed to the

State. Due to the construction of a dam, three small lakes have

combined with the Lake into one large body of water. We read

the United States’ complaint in light of the physical situation as

it existed prior to the construction of the dam.

App. 28

complaint, read as a whole, does not include lands within

the Park and the United States disavowed any intent to

quiet title to submerged lands within the Park. Further,

the relief the State seeks in its counterclaim largely

mimics the United States’ prayer for relief, and the State

has likewise disclaimed any intent to litigate issues

beyond those raised in the United States’ complaint.

Accordingly, we conclude that the district court properly

declined to adjudicate the ownership of these submerged

lands.

Neither the complaint nor the counterclaim put sub-

merged lands within the Park at issue. The complaint,

taken as a whole, is most naturally read to exclude these

lands. First, it specifically identifies the lands that com-

prise the Park as having been “withdr[awn] from allot-

ment” and “reserved” by the United States. It then

juxtaposes these lands, along with other lands that the

Tribe ceded to the United States, with lands identified as

“still remaining within the Coeur d’Alene 1873 Reserva-

tion.” The implication is that the United States sought to

exclude any lands within the Park from the ambit of the

-complaint. In addition, the complaint’s prayer for relief

repeatedly makes reference to the “approximate southern

one-third of Coeur d’Alene Lake as well as those portions

of the beds and banks of the St. Joe River located within

the 1873 Coeur d’Alene Indian Reservation.” That the

complaint references a specific part of the Lake and the

St. Joe River while mentioning none of the three lakes

that were the subject of the conveyance to the State

strongly suggests that the United States sought to exclude

the Park from this quiet title action.

App. 29

Our reading of the complaint is supported by the

conduct of the United States throughout this litigation.

Significantly, the United States has pursued this action,

both in the district court and on appeal, only as to sub-

merged lands within the present-day boundaries of the

reservation. Indeed, at the district court level, the United

States expressly disavowed any claim to submerged lands

within the Park. Under these circumstances, we will not

read the more general language in the complaint’s cap-

tion and preliminary statement, which refer to portions of

the Lake and St. Joe River within the exterior boundaries

of the 1873 reservation, as extending to submerged lands

within the Park.

We also reject the Tribe’s argument that the State

itself put submerged lands within the Park at issue via a

counterclaim in which it asserted that it was “entitled to a

judgment... quieting its title to the beds and banks of

those portions of Lake Coeur d’Alene and the St. Joe

River located within Heyburn State Park.’”19 Although the

counterclaim incorporates the allegations in an affirma-

tive defense claiming title to “all lands within” the Park,

the State’s prayer for relief largely mimics the United

States’ prayer, which is far narrower than the affirmative

defense. In its prayer for relief, the State seeks to quiet

title to “those portions of Lake Coeur d’Alene and the St.

Joe River within the present boundaries of the Coeur

'? The State’s answer included two sections referencing the

Park: 1) an affirmative defense in which the State claimed title to

“all lands within Heyburn State Park as a result of ... federal

actions” authorizing the Park and conveying its lands to the

State by patent; and 2) the above-quoted counterclaim. Only the

counterclaim is at issue.

App. 30

d’Alene Reservation and Heyburn State Park.” Notably,

and in contrast to its affirmative defense, the State does

not name in its prayer for relief any of the three lakes

originally embraced by the Park, and it has consistently

disclaimed any attempt to litigate any issue beyond that

raised in the United States’ complaint.

Because the United States disavowed any claim to

submerged lands within the Park, the State disavowed

intent to litigate any issue beyond that raised by the

United States, and a fair reading of the relief requested in

both the complaint and counterclaim does not, under the

circumstances, encompass lands within the Park, the dis-

trict court properly declined to adjudicate the ownership

of submerged lands within the Park.

AFFIRMED.

Mist Sicha t hAB DOE SG Stilo Alte bes PE Mite 2B tigi

App. 31

IN THE UNITED STATES DISTRICT COUR

FOR THE DISTRICT OF IDAHO

In re suit to quiet title to that

portion of the bed

and banks of the Coeur

D’Alene Lake and St. Joe River

lying within the exterior

boundaries of the-1873 Coeur

D’Alene Reservation

UNITED STATES OF

AMERICA,

Plaintiff-Counterdefendant,

and

COEUR D’ALENE TRIBE,

Plaintiff in Intervention

Counterdefendant in

Intervention,

VS.

STATE OF IDAHO,

)

Defendant.

I. Introduction

Case No.

CV 94-328-N-EJL

MEMORANDUM

DECISION AND

ORDER

(Jul. 28, 1998)

This case involves a dispute over the ownership of

the bed and banks of Coeur d’Alene Lake and the St. Joe

River (the “submerged lands”) lying within the exterior

boundaries of the present-day Coeur d’Alene Indian Res-

ervation. The United States of America acting in its own

capacity and as trustee for the Coeur d’Alene Tribe of

Idaho (the “Tribe”) initiated the current action against the

App. 32

State of Idaho seeking to quiet title to the submerged

lands for the benefit of the Tribe and its members. In

addition to its title claim, the United States prays for a

declaratory judgment to establish the Tribe’s exclusive

use, occupancy and right to the quiet enjoyment of the

submerged lands. Finally, the United States seeks a per-

manent injunction prohibiting the State from asserting

any right, title or other interest to such lands.

By leave of the Court, the Tribe intervened to assert

independently its beneficial interest in the submerged

lands based on the theory of “recognized title” and, alter-

natively, to claim ownership to the same lands pursuant

to unextinguished “aboriginal or Indian title.” The State

answered and counterclaimed, requesting that the title of

the submerged lands be quieted in favor of Idaho. The

matter was then tried before the Court without a jury. The

Court’s decision is set forth below and constitutes its

findings of fact and conclusions of law.

II. Historical Background

The Tribe once inhabited more than 3.5 million acres

in what is now northern Idaho and northeastern Wash-

ington. On June 14, 1867, President Andrew Johnson

established by Executive Order a reservation for the

Tribe. The 1867 reservation consisted for the most part of

an area known as Hangman Valley,! lying to the south-

west of Coeur d’Alene Lake (the “Lake”). The parties

1 The area known as Hangman Valley also is referred to in

various exhibits as Hangman Creek Valley or Latah Valley or

Paradise Valley or Palouse Valley.

App. 33

dispute whether the 1867 reservation included any por-

tion of the submerged lands within its exterior bound-

aries but, at most, the reservation embraced only a small

sliver of the Lake. The precise boundaries of the 1867

reservation never were established by survey, and the

Tribe never formally accepted the reservation as its own.

On July 1, 1873, the Commissioner of Indian Affairs

directed a three member Commission to visit non-treaty

tribes in Idaho, including the Coeur d’Alenes, for the

purpose of inducing the tribes “to abandon their roaming

habits and consent to confine themselves within the

limits of such reservation or reservations as may be des-

ignated for their occupancy.” Ex. 309 at 1; Ex. 234 at 17,

385. As the result of negotiations between the Commis-

sion and the Tribe, an agreement was reached which

entitled the Tribe to a reservation of approximately

598,000 acres and compensation for the relinquishment of

all claims to the remainder of its aboriginal lands.

The reservation boundaries established by the 1873

agreement embraced the Hangman Valley, the Coeur

d’Alene River (from its mouth to the Coeur d’Alene Mis-

sion of the Sacred Heart?), the St. Joe River (from its

mouth to the present site of St. Maries), and all but a

small portion of the Lake. As such, the 1873 reservation

included within its boundaries not only the area set aside

by the 1867 Executive Order but also the Lake and other

waterways as well as additional tracts of land. The 1873

2 The Coeur d’Alene Mission of the Sacred Heart is

popularly known today as the Cataldo Mission. Historically, it

also has been called the Sacred Heart Mission or the Old Coeur

d’Alene Mission.

App. 34

agreement, however, required approval by Congress

before it became binding on the parties.

In a letter dated November 4, 1873, the Commis-

sioner of Indian Affairs advised the Secretary of Interior

of the 1873 agreement and recommended that “pending

the action of Congress upon said agreement . . . the

President . . . issue an Executive Order setting apart the

same for the use of said Indians.” Ex. 3240. On November

8, 1873, President Ulysses S. Grant established by Execu-

tive Order a reservation for the Tribe that mirrored

exactly the legal boundaries delineated in the 1873 agree-

ment:

It is hereby ordered that the following tract of

country in the Territory of Idaho be, and the

same is hereby, withdrawn from sale and set

apart as a reservation for the Coeur d’Alene

Indians in said Territory, viz:

Beginning at a point on the top-of the dividing

ridge between Pine and Latah (Hangmans)

Creeks, directly south of a point on said last-

named creek 6 miles above the point where the

trail from Lewiston to Spokane Bridge crosses

said creek; thence in a northeasterly direction in

a direct line to the Coeur d’Alene Mission on the

Coeur d’Alene River (but not to include the

lands of said mission); thence in a westerly

direction in a direct line to the point where the

Spokane River heads in or leaves the Coeur -

d’Alene Lakes; thence down along the center of

the channel of said Spokane River to the divid-

ing line between the Territories of Idaho and

Washington as established by the act of Con-

gress organizing a Territorial government for

the Territory of Idaho; thence south along said

App. 35

dividing line to the top of the dividing ridge

between Pine and Latah (or Hangmans) Creeks;

thence along the top of said ridge to the place of

beginning.

Ex. 275 at 72. Although a purpose of the Executive Order

was to temporarily set aside the reservation “pending the

action of Congress,” the 1873 agreement never was rat-

ified by Congress.

The United States conducted a survey of the reserva-

tion in 1883. Once the boundaries had been established,

Congress sought to extinguish the Tribe’s aboriginal title

to lands outside the reservation. In 1886, Congress autho-

rized the Secretary of the Interior to negotiate with the

Tribe “for the cession of their lands outside the limits of

the present Coeur d’Alene reservation.” Ex. 649. In 1887,

the Tribe and representatives of the United States reached

an agreement in which the Tribe ceded

all right, title, and claim which they now have,

or ever had, to all lands in said Territories and

elsewhere, except the portion of land within the

boundaries of their present reservation in the

Territory of Idaho, known as the Coeur d’Alene

Reservation.

Ex. 215 at 68. The 1887 agreement provided that it “shall

not be binding on either party until ratified by Congress.”

Id. at 69.

Before it had ratified the 1887 agreement, Congress

authorized the Secretary of the Interior “to negotiate with

the Coeur d’Alene tribe of Indians for the purchase and

release by said tribe of such portions of its reservation not

agricultural and valuable chiefly for minerals and timber

as such tribe shall consent to sell.” Ex. 2288 at 1002. The

App. 36

resulting negotiations lead [sic] to an agreement in 1889,

in which the Tribe ceded the approximate northern third

of the 1873 reservation to the United States. The portion

of the reservation subject to the 1889 cession included

within its boundaries the approximate northern two-

thirds of the Lake. The 1889 agreement provided that it

was “not binding on either party until ratified by Con-

gress.” Ex. 215 at 14.

Prior to congressional ratification of the 1887 and

1889 agreements, Idaho was admitted into the Union. As

part of that process, Congress enacted the Idaho State-

hood Act, which “accepted, ratified, and confirmed” the

“Idaho State Constitution. Ex. 221 at 215. The state consti-

tution contains a section disclaiming the State’s “right

and title to the unappropriated public lands” and lands

“owned or held by any Indians or Indian tribes.” Ex. 2294

at 415. Shortly after Idaho secured statehood, Congress,

on March 3, 1891, ratified the 1887 and 1889 agreements.

With two exceptions, the boundaries of the Coeur

d’Alene Reservation remain the same today as estab-

lished by the congressional ratification of the 1887 and

1889 agreements. In 1894, the Tribe agreed to cede to the

United States a one-mile wide strip of the reservation,

running from the mouth of the Coeur d’Alene River to

the reservation’s eastern boundary (the “Harrison ces-

sion”). And in 1908, Congress authorized the conveyance

to the State of Idaho of land surrounding three small

lakes, adjacent to the southern extreme of the Lake. Fol-

lowing its transfer by patent to the State of Idaho in 1911,

this area became a public park (“Heyburn State Park”).

De WN ced ce Pee le

ae ee ae we Se Or

App. 37

III. Legal Framework

The United States and the Tribe (collectively, “the

Plaintiffs”) allege that the Executive Order of 1873 setting

apart the reservation also reserved for the benefit of the

Tribe the bed and banks of the Lake and other navigable

waterways lying within the outer boundaries of the reser-

vation. According to the Plaintiffs, Congress intended to

retain, for the benefit of the Tribe, title to the submerged

lands included within the reservation created by the 1887

and 1889 agreements.? In contrast, the State maintains

that under the “equal footing” doctrine title to all sub-

merged lands within the exterior boundaries of the 1873

reservation passed to the State of Idaho on July 3, 1890,

when Idaho was admitted into the Union.

The United States Supreme Court recently articulated

the legal principles relevant to resolving a dispute over

the ownership of submerged lands. In United States v.

Alaska, 117 S. Ct. 1888 (1997), the Supreme Court empha-

sized the critical connection between the ownership of

submerged lands and a State’s sovereignty: “Ownership

of submerged lands - which carries with it the power to

control navigation, fishing, and other public uses of water

— is an essential attribute of sovereignty.” Id. at 1892; see

also Idaho v. Coeur d'Alene Tribe of Idaho, 117 S. Ct. 2028,

2041-42 (1997). For this reason, and in order to maintain

an “equal footing” with the original 13 colonies, a State is

presumed upon admission to the Union to “succeed to

° The United States’ claims are specifically limited to the

submerged lands included within the exterior boundaries of the

present-day Coeur d’Alene Reservation. The Court by prior

order denied the Tribe’s request to broaden the quiet title action.

App. 38

the United States’ title to the beds of navigable waters

within [its] boundaries.” Alaska, 117 S. Ct. at 1892.

Accordingly, “ ‘[a] court deciding a question of title to the

bed of navigable water must . . . begin with a strong

presumption’ against defeat of a State’s title.” Id. at 1906

(quoting Montana v. United States, 450 U.S. 544, 552

(1981)).

Under the Constitution, however, the Federal Gov-

ernment can defeat a future State’s title to land underly-

ing navigable waters. The Property Clause, Art. IV, § 3, cl.

2, provides Congress with the power to dispose of sub-

merged lands in pre-statehood territories by “granting

submerged lands to private parties” or by reserving “sub-

merged lands under federal control.” Id. The congres-

sional exercise of this power will not offend the

Constitution so long as the conveyance or reservation is

for “an appropriate public purpose.” Id. at 1909. In this

case, there is no doubt that the United States’ alleged

retention of the submerged lands for the benefit of the

Tribe would serve an appropriate public purpose. See id.

at 1907. The issue instead is whether the Federal Govern-

ment in fact acted to reserve the disputed submerged

lands.

In this regard, the question of “[wJhether title to

submerged lands rests with a State . . . is ultimately a

matter of federal intent.” Id. In the least difficult case, the

Federal Government’s intent to defeat the future State’s

title is made clear by “an express reference to the bed

beneath the waters . . . in the grants establishing the

reservation.” United States v. Aranson, 696 F.2d 654, 664

(9th Cir.) (citing Montana, 450 U.S. at 552), cert. denied, 464

U.S. 982 (1983). When the pertinent documents do not

Sal gi tt il

Oe ae eR te te Oe ene TSE) URI Me tee prc Serene

nee Nt eh abe Eae eB ERS OM A RE at as

NEA Lats

App. 39

make express reference to the bed and banks, a convey-

ance or reservation may be implied but a court “will not

infer an intent to defeat a future State’s title to inland

submerged lands ‘unless the intention was definitely

declared or otherwise made very plain.’ ” Alaska, 117

S. Ct. at 1906 (quoting-United States v. Holt State Bank, 270

U.S. 49, 55 (1926)). Thus, the intent of the Federal Govern-

ment to retain submerged lands may be demonstrated by

an express statement or may be inferred from relevant

evidence.

In a case such as this one, where it is alleged that the

submerged lands were included within an Executive res-

ervation, the inquiry as to federal intent involves three

distinct questions. First, whether the actions of the Execu-

tive reflected a clear intent to include submerged lands

within the reservation. See id. at 1907-09. Second, whether

Congress authorized the Executive retention of the sub-

merged lands or ratified the same. See id. at 1910-11.

Third, and finally, whether Congress intended to defeat

the future State’s title to those lands. See id. at 19 9-10.

Evidence that bears directly on the resolution of these

three questions includes (1) the language of the relevant

documents, (2) the location of the reservation boundaries

in relation to the submerged lands, and (3) the purpose of

the reservation. See, e.g., id. at 1908. In contrast, evidence

consisting solely of “the ‘mere fact that the bed of a

navigable water lies within the boundaries’ ” of a reser-

vation will not overcome the presumption against defeat

of a State’s title. Id. at 1907 (quoting Montana, 450 U.S. at

554). \

Special evidentiary considerations apply when it is

alleged that an Executive reservation implements an

App. 40

agreement between the United States and a tribe. Speci-

fically, Ninth Circuit cases have formulated a three-part

test that bears on the first inquiry under Alaska as to

whether the Executive intended to include submerged

lands within the reservation. In an effort to give effect to

the “principle of construction resolving any ambiguities

in agreements with the United States in favor of the

Indian tribes,” Ninth Circuit decisions have allowed a

plaintiff to establish federal intent on this issue by show-

ing (1) the reservation included “within its boundaries a

navigable water,” (2) the tribe depended on the water-

course for 4 significant portion of the tribe’s needs; and

(3) the “Government was plainly aware of the vital

importance of the submerged lands and the water

resource to the tribe at the time of the [reservation].”4

Muckleshoot Indian Tribe v. Trans-Canada Enter., Ltd., 713

F.2d 455, 457 (9th Cir. 1983) (quoting Puyallup Indian Tribe

v. Port of Tacoma, 717 F.2d 1251, 1258 (9th Cir.1983), cert.

denied, 465 U.S. 1049 (1984)), cert. denied, 465 U.S. 1049

(1984); see also United States v. Aam, 887 F.2d 190, 194,

196-97 (9th Cir. 1989). But see United States v. Pend Oreille

Pub. Util. Dist. No. 1, 926 F.2d 1502, 1510-11 (9th Cir.)

(holding that tribal dependence upon a river and the

United States’ awareness of dependence is not enough to

establish federal intent to retain submerged lands for

benefit of tribe), cert. denied, 502 U.S. 956 (1991).

4 The Ninth Circuit has noted more than once that by

articulating the three-part test it did not “mean to imply that

only where these conditions are met is a conclusion that the

United States granted the bed of a navigable water to an Indian

tribe justified.” Muckleshoot Indian Tribe, 713 F.2d at 458 n.2.

De eG

-, | SEE

App. 41

Even if successful in satisfying the three-part test,

and therefore demonstrating the Executive intent to

reserve submerged lands, the plaintiff also must show

that Congress authorized or ratified the Executive reser-

vation and that Congress intended to defeat the future

State’s title to the submerged lands. See Alaska, 117 S. Ct.

at 1909-11; Utah Div. of State Lands-v. United States, 482.

U.S. 193, 202 (1987). The necessity of establishing con-

gressional awareness and approval of an Executive deci-

sion to reserve submerged lands rests on the relationship

between the “equal footing” doctrine and the allocation

of federal power under the Constitution. The power of

the Federal Government to defeat a future State’s equal

footing title resides ultimately with Congress.5 See, €.g.,

Alaska, 117 S. Ct. at 1906, 1910-11 (stating that pursuant to

the Property Clause Congress can reserve submerged

lands under federal control); Utah Div. of State Lands, 482

U.S. at 200-01 (explaining that the power to defeat a

future State’s title to submerged lands arises out of Con-

gress’ power under the Property Clause).

2 en

> In the Muckleshoot and Puyallup cases the Ninth Circuit

panels assumed that once the plaintiff demonstrated an

Executive intent to include submerged lands within the

reservation the ownership issue had been resolved. See

Muckleshoot Indian Tribe, 713 F.2d at 457-458; Puyallup Indian

Tribe, 717 F.2d at 1260-61 & n.10. Subsequent Supreme Court

cases have shown this to be an erroneous assumption. See, e.g.,

Alaska, 117 S. Ct--at 1906, 1910-11; Utah Div. of State Lands, 482

U.S. at 200-02.

App. 42

IV. Findings of Fact and Conclusion of Law

During a trial lasting nine days, the parties to this

action presented evidence on the pertinent legal issues in

the form of expert and lay testimony, written reports,

scientific studies and historical documents. Having heard

and/or reviewed all of the evidence, the Court sets forth

its findings of fact and conclusions of law.

A. Executive Actions Reflect a Clear Intent to

Include the Submerged Lands Within the 1873

Reservation.

Applying the three-part test developed by the Ninth

Circuit in Puyallup Indian Tribe, 717 F.2d at 1258, to the

trial evidence, the Court finds that the first question

under Alaska — whether the Executive intended to reserve

the submerged lands - must be answered in the affirma-

tive.

1. The reservation includes within its bound-

aries land under navigable waters.

The parties agree that the disputed submerged lands

lie within the exterior boundaries of the present-day

Coeur d’Alene Reservation. Similarly, the State does not

contest the fact that the Lake and associated waterways

are navigable bodies of water. After considering the evi-

dence presented at trial, the Court finds that the Lake and

the relevant portions of the Coeur d’Alene, St. Joe and

Spokane Rivers were at all times navigable watercourses

and that the Coeur d’Alene Reservation includes within

its boundaries the disputed submerged lands. Test. of

App. 43

Hart, Tr. at 282-89; Test. of Fahey, Tr. at 1027-30, 1034; Ex.

209 at 47; Ex. 1319 at 1-4; Ex. 2310; Ex. 2313.

2. The Tribe depended on the Lake and associ-

ated waterways for a significant portion of

the Tribe’s needs.

The Coeur d’Alene Indians have occupied the area

adjacent to the Lake and the Coeur d’Alene, St. Joe and

Spokane Rivers since time immemorial. The Tribe tradi-

tionally survived by fishing, hunting and gathering. For

the reasons set forth below, the Court finds the Lake and

associated waterways were essential to the Tribe’s tradi-

tional lifestyle.

Historically, the Coeur d’Alene Indians lived in a

number of villages located around the Lake and along the

rivers. The Tribe consumed resident trout and whitefish

year-round.®

The resident fishery was a main staple of the Tribe’s

diet. Among other methods of fishing, the Coeur

d’Alenes constructed fish traps and weirs which were

anchored in the bed and banks of the watercourses. In

some cases these structures were extensive, spanning the

width of a river. Surplus fish were sometimes dried for

and other anadromous fish from migrating upstream into the

Coeur d’Alene drainage system. However, a salmon run did

reach upper Hangman Creek. Tribal members also sometimes

harvested salmon outside the Tribe’s aboriginal territory. But

the total contribution to the Tribe’s diet was minimal; it is

estimated the Coeur d’Alenes obtained less than 5 percent of

their total caloric intake from salmon. Ex. 1435 at 18.

App. 44

later use or traded to other tribes. Occasionally, tribal

members also harvested crayfish and freshwater mussels.

Test. of Hart, Tr. at 43-73; Hart Report (Ex. 1437) at 5-28;

Test. of Sprague, Tr. at 745-763, 765-69, 785; Sprague

Report (Ex. 2404) at 31-33; Ex. 33 at 132-33, 148; Ex. 64 at

7; Ex. 115 at 38-41; Ex. 132 at 17-18; Ex. 133 at 37-38; Ex.

137 at 175-76; Ex. 139 at 10; Ex. 145 at 130-33; Ex. 171 at

38-40, 55, 88, 94-95, 105-07; Ex. 2030 at 104-16; Ex. 2272.

The Lake and associated rivers were commonly used

to facilitate hunting activities. During communal hunts,

deer were driven into a waterway and large numbers,

sometimes hundreds, were killed by tribal members wait-

ing in ambush. The Coeur d’Alenes also depended on the

waterways to hunt small game, such as beaver, as well as

migratory waterfowl. Test. of Hart, Tr. at 72-75; Hart

Report (Ex. 1437) at 28-30; Test. of Sprague, Tr. at 769-75;

Sprague Report (Ex. 2404) at 35-36; Ex. 105 at 27; Ex. 133

at 38-39; Ex. 171 at 101-03; Ex. 2271; Ex. 2271.

The Tribe gathered several plants growing in the

marshes and wetlands of the Coeur d’Alene waterways.

Most important among these was the water potato, a

plant that was gathered annually by tribal members from

the shallow waters of the Lake and rivers. The Coeur

d’Alenes also collected rushes and tule from alongside

the waterways for use in the construction of baskets, mats

and the Tribe’s lodges. Test. of Hart, Tr. at 80-81; Hart

Report (Ex. 1437) at 33-36; Test. of Sprague, Tr. at 777, 790;

Sprague Report (Ex. 2404) at 33-34.

The watercourses provided the primary highways for

travel, trade and communication. Canoes were prevalent

and constructed in several distinct styles. Travel was

App. 45

measured in the days it took a canoe to get from point to

point. Canoes also facilitated the Tribe’s fishing and hunt-

ing activities. Test. of Hart, Tr. at 76-77; Hart Report (Ex.

1437) at 30-33; Test. of Sprague, Tr. at 780-85; Sprague

Supplemental Report (Ex. 2405) at 3-6.

The Lake and rivers played an integral part in the

Tribe’s cultural activities. The waterways were tied to the

Tribe’s recreational pursuits, religious ceremonies and

burial practices. In this respect, the Lake and rivers

served not only as the means by which the Tribe ensured

its corporeal survival, but also as the source of the Tribe’s

spiritual and cultural identity. Test. of Hart, Tr. at 81-87:

Hart Report (Ex. 1437) at 34, 36-43; Test. of Sprague, Tr. at

786-89, 797-800; Sprague Report (Ex. 2404) at 48-50: Ex.

112 at 88-94.

The Tribe augmented its year-round dependence on

the water resource by engaging in seasonal subsistence

activities. In summer, the Coeur d’Alenes harvested

camas, a plant yielding a fleshy bulb. Hangman Valley

was the site of extensive camas fields and therefore an

important area within the Tribe’s aboriginal territory.

Tribal members also harvested berries throughout the

summer as they ripened at successive elevations. Test. of

Sprague, Tr. at 776-78; Sprague Report (Ex. 2404) at 33;

Ex. 133 at 21; Ex. 171 at 88-93

With the advent of the horse, some tribal member

traveled to the Plains during the late fall to Participate in

an annual buffalo hunt. In this regard, the acquisition of

the horse reduced somewhat the Tribe’s reliance on fish-

ing and small game hunting. Cox Report (Ex. 1437) at 11;

Ex. 33 at 142-46; Ex. 171 at 151-52. However, the majority

App. 46

of Coeur d’Alenes continued to live along the waterways

and engage in a traditional subsistence lifestyle. The pas-

toral influence arising from the introduction of the horse

and buffalo hunt most significantly affected the villages

located near the Spokane (Rathdrum) Prairie, but even at

these sites tribal members continued to depend on the

water resource.” Test. of Hart, Tr. at 87-89; Test. of

Sprague, Tr. at 779-80, 804-07; Test. of Cox, Tr. at 1537-40,

1574-75; Cox Report (Ex. 1437) at 12, 14-17, 27-28; Power

Report (Ex. 2325) at 3-4; Ex. 26 at 10, 189-90; Ex. 33 at

145-46; Ex. 137 at 175-76; Ex. 232 at 710-11.

By the 1840’s, the Coeur d’Alenes had begun to culti-

vate small garden plots, rarely exceeding an acre or two.

The primary crops were potatoes and wheat. While the

Tribe’s agricultural endeavors augmented its traditional

lifestyle, it did not supplant the Tribe’s dependence on

the waterways for a steady source of fish, fowl and

plants. The limited quantities and seasonal availability of

garden produce served at most as a supplement to the

continuous and stable source of food and fibre provided

by the water resource. Test. of Hart, Tr. at 145-46; Test. of

Sprague, Tr. at 793, 833; Sprague Supplemental Report

(Ex. 2405) at 3; Test. of Power, Tr. at 1489-92; Test. of Cox,

Tr. at 1541-46, 1576-79; Cox Report (Ex. 1437) at 19-20, 23,

25; Ex. 101 at 158-61, 204; Ex. 2275 at 30; Ex. 2358 at 68, 73.

7 The State contends that following the acquisition of the

horse many tribal members relocated from stream side villages

to open, grassy areas, adopted pastoralism, and abandoned the

Tribe’s traditional subsistence lifestyle. The weight of the

evidence demonstrates, however, that the majority of Coeur

d’Alenes continued to live along the waterways and depend on

the water resource for food, fibre and transportation.

Benth “

App. 47

To summarize, the majority of the Tribe’s population

lived in villages located next to the Lake and rivers. The

Tribe’s proximity to the watercourses was no coincidence;

the Lake and rivers provided resources that were essen-

tial to the Coeur d’Alenes’ survival. The Tribe depended

on the waterways for a year-round source of fish, small

mammals, waterfowl and plant materials. The Tribe also

depended on the waterways to facilitate the harvest of

large mammals and to serve as a means of efficient trans-

portation. Finally, the Tribe’s spiritual, religious and

social life centered around the Lake and rivers.

The Court’s findings are based in part on the expert

testimony of Mr. Richard Hart, Dr. Roderick Sprague, Dr.

Thomas Power and Dr. Thomas R. Cox.8

The opinions of these witnesses were well within

their respective areas of expertise, supported by the doc-

umentary evidence and were not diminished on cross-

examination. In addition, the Court's findings are sup-

ported by the various scientific studies and oral histories

submitted by the parties. Archaeological, ethnographic

and linguistic studies, as well as tribal traditions and

histories, confirm that the Coeur d’Alenes located the

majority of their villages along the Lake and rivers, and

relied on the water resource to ensure their survival.

8 The State introduced the expert testimony and report (Ex.

3235) of Dr. Kent D. Richards to show that the Tribe was not

dependent on the Lake and rivers. However, Dr. Richards’

opinions on this issue were significantly undermined on cross-

examination and, in any event, the great weight of the evidence

is to the contrary.

App. 48

Based on the above findings, the Court concludes

that the Tribe depended on the Lake and associated rivers

for a significant portion of its needs. Cf. Aam, 887 F.2d at

196-97. The waterways were essential to the Tribe’s liveli-

hood, providing a reliable year-round source of food and

fibre. See Alaska Pacific Fisheries v. United States, 248 U.S.

78, 89 (1918); Puyallup Indian Tribe, 717 F.2d at 1259; cf.

Skokomish Indian Tribe v. France, 320 F.2d 205, 210-12 (9th

Cir. 1963), cert. denied, 376 U.S. 943 (1964). Furthermore,

the Coeur d’Alenes “depended on watercourses, not only

for food and materials, but also in their manner of self-

identification, language and religious practices.” Muck-

leshoot Indian Tribe, 713 F.2d at 458.

3. At the time of the 1873 Executive reserva-

tion, the Federal Government was plainly

aware of the vital importance of the sub-

merged lands and the water resource to the

Tribe.

At the time of the 1873 Executive reservation, the

Federal Government was plainly aware of the Tribe’s

dependence on the Lake and rivers. As discussed in

detail below, the evidence shows that in 1873 the majority

of tribal members continued to rely on the water resource

for a significant portion of their needs. Moreover, events

immediately preceding and following the 1873 agreement

demonstrate that government officials were made aware

of the Tribe’s reliance on the waterways. The fact that the

boundaries of the reservation, as determined by the 1873

agreement and endorsed by the Executive Order, were

drawn to include the Lake and rivers leads the Court to

conclude that a purpose of the 1873 Executive reservation

App. 49

was to retain the submerged lands for the benefit of the

Tribe.

(a) The Tribe continued to be dependent

on the water resource in 1873.

Non-Indian contact with the Tribe increased through

the early and middle 1800's. Of particular importance to

the Coeur d’Alenes was the arrival of Jesuit missionaries

in 1842. During the next fifty years, the Jesuits exerted

considerable influence over the Tribe’s cultural develop-

ment, often acting as advisors to the Tribe in its dealings

with the Federal Government. In numerous and detailed

recorded accounts, the Jesuit priests described the Tribe’s

traditional reliance on the Lake and rivers. Test. of Hart,

Tr. at 92-110; Hart Report (Ex. 1437) at 52-68, 91-93; Test.

of Sprague, Tr. at 747-48; Sprague Report (Ex. 2404) at

52-54.

In 1846, the Jesuits established the Mission of the

Sacred Heart on the Coeur d’Alene River and with the

help of tribal members began farming. Eventually, the

Mission’s farm totaled 200 acres. The agricultural produc-

tion from the Mission farm, however, did not play a

significant role in the Coeur d’Alenes’ diet. Test. of Hart,

Tr. at 164, 518-19, 1615-16; Hart Report (Ex. 1437) at 99;

Test. of Sprague, Tr. at 804-06; Ex. 60 at 61-64; Ex. 1147 at

1-2; Ex. 2221 at 159; Ex. 2265 at 997; Ex. 2358 at 78-86.

While many of the federal officials that interacted with

the Coeur d’Alenes during the 1850’s and early 1860’s

commented on the Tribe’s agricultural efforts, they also

noted the Tribe’s use of the Lake and rivers. Hart Report

(Ex. 1437) at 69-73, 87-91, 96-98; Ex. 100 at 84; Ex. 168 at

App. 50

135, 147-48; Ex. 208 at 372; Ex. 2222 at 366-68; Ex. 2338 at

30, 42, 49; Ex. 2409; Ex. 3029 at 36-40; Ex. 3033.

After completion of the Mullan Road in 1862, the

Mission experienced an influx of emigrants, miners and

other travelers. This proved to be the beginning of a

gradual invasion of the Tribe’s aboriginal territory. In

1867, apprehension over the effect of the Tribe’s aborigi-

nal title on non-Indian ownership claims prompted the

President to establish a reservation for the Coeur

d’Alenes. The 1867 reservation consisted for the most

part of the area known as Hangman Valley and included

only a small sliver of the Lake. Test. of Hart, Tr. at 132-33,.

146-61; Hart Report (Ex. 1437) at 94-101, 102-07; Ex. 118 at

24-25; Ex. 227 at 192; Ex. 228 at 417-18; Ex. 239.

Apparently unaware of the 1867 Executive reserva-

tion, the Tribe in November of 1871 sent a petition to the

Commissioner of Indian Affairs requesting a “charter to

possess 20 or 25 miles square of land exclusively for us.”

Ex. 3066. The petition describes the relevant tract of land

as “[t]hat-basin on both sides of Hang-man-creek called:

Paradise Valley.” Id. This description corresponds to the

area known as Hangman Valley.

In late 1871 or early 1872, the Coeur d’Alenes became

aware of the 1867 reservation and expressed their dissat-

isfaction with its boundaries. Ex. 307; Ex. 234 at 392. On

November 18, 1872, tribal leaders sent a second petition

to the Commissioner of Indian Affairs stating in part as

follows:

In our first petition we made no mention of

our church nor of the two valleys of S. Joseph

App. 51

and Coeur d’Alene rivers, because in our igno-

rance we thought it a matter of course. . _

As to the two valleys, we did not think to

ask for them, though they have been from old

the habitual residence of most of us; because

being every spring under water, we thought no

white man could ever settle there in fact there is

none as yet: the few spots which usually escape

being inundated, we have them fenced in and

cultivated. What we are unanimous in asking,

besides the 20 square miles already spoken of,

are the two valleys, the S. Josephs, from the

junction of S. and N. forks, and the Coeur

d’Alene from the Mission inclusively. It would

appear too much, and it would be so if all or

most of it were fit for farming but the far great-

est part of it is either rocky or too dry, too cold

or swampy; besides we are not as yet quite up to

living on farming: with the work of God we

took labor too, we began tilling the ground and

we like it: though perhaps slowly we are contin-

ually progressing; but our aided industry is not

as yet up to the white man’s. We think it hard to

leave at once old habits to embrace new ones:

for a while yet we need have some hunting and

fishing.

Ex. 300.9 The second petition makes three points relevant

to the Court’s present inquiry. First, the Tribe never enter-

tained the possibility of withdrawing to a reservation that

did not include the river valleys. Second, the Tribe con-

sidered the area adjacent to the waterways its home.

9 After considering all the evidence, the Court finds that

the second petition was received by the Department of Interior

on March 7, 1873. Ex. 2351; Test. of Richards, Tr. at 1427-33.

App. 52

Third, and most important, in 1872 the Tribe continued to

rely on the water resource for a significant portion of its

needs. Id.

While the second petition makes clear the Tribe’s

continuous reliance on the Lake and rivers, other sources

reporting on the Tribe’s economic status during the late

1860’s and early 1870's offer conflicting assessments. Sev-

eral reports emphasize the Tribe’s commitment to farm-

ing, Ex. 233 at 726; Ex. 303; Ex. 3239; Ex. 3245, while other

accounts note the Tribe’s continued reliance on fishing,

Ex. 305; Ex. 232. Most important among the latter is a

letter from David P. Thompson to the Commissioner of

the General Land Office, dated May 6, 1873, urging that

the 1867 reservation be enlarged to include the water-

ways because “[s]hould the fisheries be excluded there

will in my opinion be trouble with these indians but

should they be included and also the mission which

should also be in the Reservation there will be no trou-

ble.”19 Ex. 305. Also significant is the 1871 Agent report

by W.P. Winas, observing that: “The Coeur d’Alenes res-

ide on Spokane Prairie, and their number living in this

Territory is about one hundred and fifty. They farm on a

small scale, but subsist principally by hunting and fish-

ing.”11 Ex. 232 at 711.

10 In his letter, Thompson states that his information comes

from Rev. Father Cataldo, who he “knows .. . represents the

views of the Indians.” Ex. 305. Thompson’s letter eventually

was forwarded to the Commissioner of Indian Affairs. Ex. 306.

11 Significantly, tribal members living on the Spokane

Prairie were from that portion of the Tribe most willing to adopt

an agrarian based lifestyle. See, e.g. Test. of Sprague, Tr. at

804-06; Test. of Cox, Tr. at 1537-40, 1574-75; Cox Report (Ex.

1437) at 12, 14-17, 27-28.

App. 53

Having considered all the evidence, the Court finds

that at the time of the Executive reservation in 1873 the

Tribe continued to be dependent on the Lake and rivers.

Reports describing the Tribe’s agricultural successes are

in conflict with other official assessments, are not neces-

sarily based on personal knowledge, and may be tainted

by cultural and personal bias. Depictions of agricultural

activity most likely are based on the Tribe’s maintenance

of garden plots, horses and, in some cases, cattle. Esti-

mates of farmed acreage and agricultural output demon-

strate that in the early 1870’s the Coeur d’Alenes were not

engaged in systematic farming practices. Test of Hart, Tr.

at 524-25, 539-43, 1609-15, 1620-23; Test. of Sprague, Tr. at

830-33; Test. of Power, Tr. at 1480-92, 1496-1500; Power

Report (Ex. 2325) at 4-8; Test. of Cox, Tr. at 1556-57; Cox

Report (Ex. 1437) at 25; Ex. 232 at 711; Ex. 2340; Ex. 3034.

In this regard the Court rejects the State’s contention

that the “Big Move” to the Hangman Valley area occurred

in the late 1860’s and early 1870's, and that by 1873 the

Tribe had converted to an agrarian based society, no

longer dependent on the Lake and rivers. All competent

evidence shows that the Tribe’s “Big Move” to Hangman

Valley started sometime after 1873 and that the Tribe’s

sole reliance on systematic agricultural practices did not

become a reality until much later. E.g., Test of Hart, Tr. at

88-89, 1627-28; Ex. 60 at 61-69; Ex. 206 at 42, 44; Ex. 240 at

250; Ex. 243 at 212; 214; Ex. 245 at 205-06; Ex. 1147 at 1-21.

Other evidence indicates that in 1873 the Tribe con-

tinued to depend on the water resource for a significant

portion of its needs. Ex. 305; Ex. 232 at 711. Most impor-

tant, the second petition provides the Tribe’s own assess-

ment of its ability to live without the resources provided

App. 54

by the Lake and rivers. In no uncertain terms, the Coeur

d’Alenes made it be known that their continued reliance

on the waterways was necessary to ensure their survival.

Ex. 300.

Based on all the above, the Court concludes that in

1873 the Lake and rivers were an essential part of the

“basket of resources” necessary to sustain the Tribe’s

livelihood. While tribal members also engaged in garden-

ing, gathering and hunting, the waterways provided a

reliable, year-round source of food, fibre and transporta-

tion without which the Tribe could not have survived.

Alaska Pacific Fisheries, 248 U.S. at 89; Puyallup Indian

Tribe, 717 F.2d at 1259; Muckleshoot Indian Tribe, 713 F.2d at

458; cf. Aam, 887 F.2d at 196-97; Skokomish Indian Tribe, 320

F.2d at 209.

(b) The Federal Government was plainly

aware of the Tribe’s dependence on the

Lake and rivers at the time of the Exec-

utive reservation in 1873.

On July 1, 1873, the Commissioner of Indian Affairs

directed a three member Commission to visit non-treaty

tribes in Idaho, including the Coeur d’Alenes, for the

purpose of inducing the tribes “to abandon their roaming

habits and consent to confine themselves within the

limits of such reservation or reservations as may be des-

ignated for their occupancy.” Ex. 309 at 1; Ex. 234 at 17,

385. The Commission members included J.P.C. Shanks,

“hairman of the House Committee on Indian Affairs,

Thomas Bennett, Territorial Governor of Idaho, and John

App. 55

Monteith, Agent to the Nez Perce Indians. The Commis-

sion arrived at the Lake on July 23, 1873, spent two days

examining the boundaries of the Proposed reservation,

and met in council with the Tribe on July 25, 26 and 27.

An agreement was signed on July 28, 1873. Ex. 315; Ex.

645.

The agreement called for setting aside a significantly

larger portion of the Tribe’s aboriginal territory than had

been reserved by the 1867 Executive Order. Besides

Hangman Valley, the boundaries of the proposed reserva-

tion enclosed all but a small portion of the Lake, the

Coeur d’Alene River, from its mouth to the Sacred Heart

Mission, the St. Joe River, from its mouth to the present-

day site of St. Maries, and a tract of land lying to the

south of the Spokane River. The Precise boundaries of the

expanded reservation were identified by reference to a

legal description. Under the agreement, the eastern

boundary of the reservation was to head north “in a

direct line, to the Coeur d’Alene Mission, on the Coeur

d’Alene river (but not to include the lands of said Mis-

sion),” with the northern boundary heading “thence in a

Westerly direction, in a direct line, to the point where the

Spokane River heads in or leaves the Coeur d’Alene lake;

thence down along the center of the channel of said

Spokane River to the dividing line between the Territories

of Idaho, and Washington.” In addition to expanding the

boundaries of the reservation to include the Lake and

rivers, the agreement also guaranteed “that the water

running into said reservation shal] not be turned from

their natural channel where they enter said reservation.”

In exchange for this enlarged reservation, and other com-

pensation, the Tribe agreed to relinquish all claims to the

App. 56

remainder of its aboriginal lands. The agreement pro-

vided that it was not binding on the parties until ratified

by Congress. Ex. 645.

In a letter to the Commissioner of Indian Affairs,

dated August 6, 1873, Agent Monteith listed four reasons

for enlarging the boundaries of the 1867 reservation: first,

an adjustment in the southwest boundary would include

“several Indian farms” and exclude “four places belong-

ing to white settlers;” second, running the eastern bound-

ary north to the Mission “will leave some good farming

land in the Upper Latah and will take in several farms

around the new Mission on the Coeur d’Alene river;”

third, “by running down the Spokane [the Tribe] can put

the mills at the upper falls at much less expense than

building a steam mill;” and fourth, “[b]y following the

Washington and Idaho line to the dividing ridge between

the Latah and Pine Creek it will include all Indian farms

in Idaho and leave out all white settlements.” Ex. 315.

Although three of the four reasons for expanding the

reservation focus on the location of agricultural lands,

other than the specific areas identified by Monteith, the

majority of the expanded reservation was not suitable for

farming.!2 Ex. 300; Ex. 305; Ex. 2316(B).

In response to public criticism, Governor Bennett also

sought to justify the Commission’s decision to agree to an

enlarged reservation. In a letter to the Idaho Signal, dated

October 4, 1873, Governor Bennett stated: “We found that

the Indians demanded an extension of their reservation so

12 Much of the land added by the 1873 agreement was later

characterized by the Federal Government as not suitable for

agriculture. Ex. 213 at 4, attach; Ex. 215 at 2, 4.

App. 57

as to include the Catholic Mission and fishing and mill

privileges on the Spokane River.” Ex. 704 (emphasis in

original).

On November 4, 1873, the Commissioner of Indian

Affairs sent a letter to the Secretary of Interior that

described the boundaries of the proposed reservation and

then stated:

In order that the tract thus described may be

protected from trespass by white persons pend-

ing the action of Congress upon said agreement,

I have the honor to recommend that the Presi-

dent be requested to issue an Executive Order

setting apart the same for the use of said

Indians.

Ex. 3240. Incorporating the legal description from the

1873 agreement, President Ulysses S. Grant, on Novem-

ber 8, 1873, “ordered that . . . the same is hereby with-

drawn from sale and set apart as a reservation for the

Coeur d’Alene Indians.” Ex. 275 at 72.

In 1883, the Federal Government surveyed the

boundaries of the 1873 reservation. Consistent with the

description of the boundaries set forth in the 1873 agree-

ment and adopted by the Executive Order, the instruc-

tions to the surveyor directed him to run the northern

boundary across the Lake from the Sacred Heart Mission

to the head of the Spokane River. By locating the northern

boundary across the Lake, a portion of the Lake’s north

end was excluded from the reservation. Surveying a

boundary across a navigable waterway was contrary to

the usual practice of meandering a survey line along the

mean high water mark. The 1883 survey fixed the reser-

vation’s total area at 598,499.85 acres, a calculation that

App. 58

included submerged lands under the Lake and rivers

within the boundaries of the reservation. Test. of Willett,

Tr. at 887-99; Hart Report (Ex. 1437) at 354-62; Ex. 213; Ex.

699. |

Based on the foregoing, the Court concludes that in

1873 the Federal Government was plainly aware of the

Tribe’s dependence on the Lake and rivers. As recounted

above, from first contact with the Coeur d’Alenes, gov-

ernment officials noted the Tribe’s reliance on the water

resource. Any uncertainty concerning the extent of the

Tribe’s dependence on the Lake and rivers in 1873 was

dispelled by the Tribe’s request in the second petition for

inclusion of the waterways in an expanded reservation.

Most important, during the 1873 negotiations the Coeur

d’Alenes reiterated their demand that the 1867 reserva-

tion be enlarged to include the Tribe’s traditional fishing

grounds. According to Governor Bennett, the expanded

boundaries fixed by the 1873 agreement reflected the

United States’ realization that the Coeur d’Alenes

required a reservation that included the Tribe’s fishery.

Thus, at the time of the 1873 reservation the “Govern-

ment’s Indian agents understood that ‘the capture of fish

was an essential source of the Indians’ food supply.’ ”}%

13 Contrary to the State’s argument, the Plaintiffs are not

required to show that the President, Secretary of Interior or

Commissioner of Indian Affairs actually knew of the Tribe’s

dependence on the waterways. It is necessary only to show that

the government’s agents involved in the events giving rise to

the reservation or grant of the submerged lands were plainly

aware of the Tribe’s dependence. See Muckleshoot Indian Tribe,

713 F.2d at 457-58; Puyallup Indian Tribe, 717 F.2d at 1259-61

—— ee

App. 59

Muckleshoot Indian Tribe, 713 F.2d at 458; see also Puyallup

Indian Tribe, 717 F.2d at 1259-61.

The Plaintiffs have established each component of the

three-part test developed by the Ninth Circuit in Puyallup

Indian Tribe, 717 F.2d at 1258. The Parties agree, and the

Court finds, that the disputed submerged lands lie

beneath navigable waters and within the exterior bound-

aries of the present-day Coeur d’Alene Reservation. The

great weight of the evidence demonstrates that in 1873

the Tribe depended on the water resource for a significant

portion of its needs. Finally, the evidence shows that the

Federal Government was plainly aware of the Tribe’s

dependence at the time of the Executive reservation. See

Puyallup Indian Tribe, 717 F.2d at 1259-61; Muckleshoot

Indian Tribe, 713 F.2d at 456-58; cf. Aam, 887 F.2d at 196-97;

Aranson, 696 F.2d at 666; Skokomish Indian Tribe, 320 F.2d at

210-12. By satisfying the Puyallup test, the Plaintiffs have

successfully demonstrated that the Executive intended to

reserve for the benefit of the Tribe the submerged lands

within the 1873 reservation. See Puyallup Indian Tribe, 717

F.2d at 1258-61; Muckleshoot Indian Tribe, 713 F.2d at

457-58.

exigency supports the conclusion that

the Federal Government intended to

include the submerged lands within

the 1873 reservation.

At least one Ninth Circuit case holds that in addition

to satisfying the Puyallup test a plaintiff must present

App. 60

“compelling evidence” to show a “public exigency” justi-

fied the Federal Government's retention of submerged

lands for the benefit of a tribe. Pend Oreille Pub. Util. Dist.

No. 1, 926 F.2d at 1510-11. The United States Supreme

Court, however, recently explained that a plaintiff has no

such burden. In Alaska, the Supreme Court expressly

rejected the notion that to succeed on a quiet title action a

plaintiff must prove that a “public exigency” supported

the reservation of submerged lands. 117 S. Ct. at 1909,

1915.

But even if controlling law required the Plaintiffs to

show a “public exigency” existed at the time of the 1873

reservation, there is sufficient evidence to support a find-

ing on this issue. Both the Supreme Court and the Ni

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