# Petition for Writ of Certiorari — Idaho v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 262

## Text

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.

il

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

iv

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

Vv

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

vi

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

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

2

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

3

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

4

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.

5

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

6

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

7

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

8

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

9

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).

10

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.

11

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.

12
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). /

13

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

14

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

15

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.

| |

16

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

17

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

18

(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

19

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.

20

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

21

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

22

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

23

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.

24

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.

25

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

26

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

27

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.

28

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

29

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.

30
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

V.
STATE OF IDAHO,

Defendant-counter-claimant,
Appellant-Cross-Appellee,

V.
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

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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

© The Tribe’s chief insisted on carefully defining the new
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
~3

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. ‘

NN

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
Z.

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 w

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1726%3A02. Public record. Not legal advice.