Opposition Brief — Idaho v. United States

INTHE }

Supreme Court of the United States

STATE OF IDAHO,

Petitioner,

Vv.

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

BRIEF IN OPPOSITION OF RESPONDENT

COEUR D’ALENE TRIBE

RAYMOND C. GIVENS *

BRIAN J. CLEARY

GIVENS, FUNKE & WORK

424 Sherman Avenue, Suite 308

Post Office Box 969

Coeur d’ Alene, Idaho 83814

(208) 667-5486

JOSEPH D. KEARNEY

Post Office Box 1709

Milwaukee, Wisconsin 53201

* Counsel of Record -

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

TABLE OF CONTENTS

REASONS FOR DENYING THE PETITION............... 1

I. THE COURT OF APPEALS CORRECTLY

DECIDED THE CASE UNDER THIS

COURT’S CONTROLLING PRECEDENTS

OF MONTANA, UTAH, AND ALASKA ............ l

A. The Court Of Appeals Properly Deter-

mined That Congress Intended To Defeat

State Title To The Submerged Lands By

Recognizing And Acknowledging The

Coeur d’Alene Reservation Which It Knew

Included Submerged Lands...................:e00008 1

B. The Idaho Admission Bill Is An Additional -

Recognition And Acknowledgment Of The

Coeur d’Alene Reservation By Congress

At The Point Of Statehood And After It

Knew The Reservation Included The Sub-

CRUG BARES cinicisttetienticictiininnntuinnn 7

C. Post-Statehood Events Demonstrate That

Congress Intended That State Title To The

Submerged Lands Be Defeated And Tribal

Ownership Continue After Statehood. ........ 9

D. Congress’s Intent To Defeat Future State

Title Cannot Be Disproved By Its Deferral

Of Approval Of Agreements With The

Coeur d’Alene Tribe Until After State-

Il. THERE JIS NO CONFLICT WITH

DECISIONS OF THE IDAHO SUPREME

COURT OR AMONG THE CIRCUITS ........... 14

ii

TABLE OF CONTENTS—Continued

\

Page

Ill. OTHER ARGUMENTS OF PETITIONER

AND ITS AMICI COUNTIES DO NOT

WWARIRAIN S RS UY ascinicctctiniintnnticdicpbaptooaadions 16

[IE RR ARUN <isconspoasinssnnemnsdianansepebeiiiaiataaanaiaaamae 21

APPENDIX

ili

TABLE OF AUTHORITIES

FEDERAL CASES Page

Alaska Pacific Fisheries v. United States, 248

acini henia codecs scsbdgiabinadsasinunest 9,11, 16

Cass County v. Leech Lake Band of Chippewa

Indians, 524 U.S. 103 (1998)..........cccccccccccsssseeee 7

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1

ig NESE LES EAE SALTER CELE 17

Choctaw Nation v. Oklahoma, 397 U.S. 620

Un isitlsdadsssbiilinbbsiabuacniswalaibmtniosecswsdatiebunesovers 16

Confederated Salish and Kootenai Tribes v.

Namen, 665 F.2d 951, cert. denied, 459 U.S.

ETE EE ee 19

Donovan-Hopka-Ninneman Co. v. Hope Lumber

Mfg. Co., 194 F. 643 (9th Cir. 1912) wo... 17

Guidry v. Sheet Metal Workers Nat. Pension

PONE, GIS U.S. S65 CIGFO) occicsccccesssccscessseossceses 20

Holden v. Joy, 17 Wall. 211 (1872) .....ccceeeeeeeeeeee 6

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

UIT TN iaiitbia audnabcssiiehsuboniuebsonvesievesaeesessonesecscsenis 17

Marbury v. Madison, 5 U.S. (1 Cranch) 137

a ns easapannesanandanecenveecees 16

Montana v. United States, 450 U.S. 544 (1981).... 1, 16

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

cert. denied, 330 U.S. 827 (1947) ........c.cceeeeeseeee 19

Muckleshoot Indian Tribe v. Trans-Canada

Enterprises, 713 F.2d 455 (9th Cir. 1983),

cert. denied, 466 U.S. 1049 (1984) 0.0.0.0... 19

Puyallup Indian Tribe v. Port of Tacoma, 717

F.2d 1251 (9th Cir. 1983), cert. denied, 465

EER aE EEE a So 19

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

(9th Cir. 1963). cert. denied, 376 U.S. 943

South Dakota v. Bourland, 508 U.S. 679 (1993)... 16

iV

TABLE OF AUTHORITIES—Continued

Page

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

cert. denied, 400 U.S. 967 (1970)...............000000 19

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)........... 19

United States v. Cherokee Nation of Oklahoma,

eC, FE CS iiistiiiinepsctniicnihithtamniidapicacies 16, 20

United States v. Holt State Bank, 270 U.S. 49

UD ciiccicassinsnnscasineicclet scanned seit aa 6, 16

United States v. Ladley, 4 F. Supp. 580 (D.

GE FED sacicntaisssennindchacchrosaiciahstbiascaniiiianalealhit 17

United States v. Texas, 143 U.S. 621 (1892)......... 18

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

Paty. We COE TP dictieidiiniicnesnicehsscnenespcibaiiaiuasaaueihe 1, 2, 16, 20

STATE CASES

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

SAI TC IP nsisicnsiscsnitasisisicrsessinaiiesnickcitndenbinapidlatcninatantids 14

Callahan v. Price, 26 Idaho 745, 146 P. 732

Wr ai i ehensciaicleiedcsiciniesetioiineudlasensnitaeiinulbindntasaciialailbitiains 18

Erickson v. State, 970 P.2d 1 (Idaho 1998)............ 14

Johnson v. Johnson, 14 Idaho 561, 95 P. 499

PORTE icnictiseiscelinhiebti bacteria ndallatehlebiuinaua ies 17

Kootenai Environmental Alliance, Inc. v.

Panhandle Yacht Club, Inc., 671 P.2d 1085

SIE SAPUD muiiciasesichichidiniiansubinteiicieiaidibiiiapieaneiaiannanenie 14, 15

Lattig v. Scott, 17 Idaho 506, 107 P. 47 (1910),

rev'd on other grounds, 227 U.S. 229 (1913)... 17

West v. Smith, 5i1 P. 2d 1326 (Idaho 1973).......... 15

Vv

TABLE OF AUTHORITIES—Continued

FEDERAL CONSTITUTION AND Page

STATUTES ~

ie ctl Oe hii whesicenaptacnichineinepiitventnabenes 12

Act of Apr. 10, 1869, 16 Stat. 13 ...........c.cecrcscccsees 12

POLE PE, Bae ART hs, FF BOOB Be iccsistinsaninnrecesscoees 12

Act of Fame 1, FBZ, UT Sth, 284. .csccnsscccsnsesevesseose 12

Act of Apr. 29, 1874, 18 Stat. 36...........c.cccccscsseess 12

Act of June 22, 1874, 18 Stat. 146.0... eee 12

Act of Dec. 15, 1874, 18 Stat. 291 ............cccsssseees 12

Act Of Aug. 15, 1676, 19: Beet. 176 ...0.cccsececrccscerese 12

Act OF Fab. ZG, 1677, 19 Di, ZO cccsvsesveserssscccsacess 12

Fact OE DEE. 2, TUS, Zo US DO cccsccssvessesisnceonssece 12

Act of May 15, 1886, 24 Stat. 29... sesseneees 13

Act of May 15, 1886, 24 Stat. 44 ee eeeeeees 13

Act of Feb. 8, 1887, 24 Stat. 388 .0..... te eeeseeseeees 13

Act of May 1, 1888, 25 Stat. 113... eeeeeees 13

Act of May 30, 1888, 25 Stat. 160.0... eeseeeees 5

PIE OE BRE, 3 TR, Bo Bile FFT cetsccsesccrsscnonessines 12

Act of March 2, 1889, 25 Stat. 980.0... eeeseees 5

Act of July 3, 1890, 26 Stat. 215 ch. 656............... 9,11

Act of Aug. 19, 1890, 26 Stat. 336 ..........cessseseees 13

Act of Sept. 25, 1890, 26 Stat. 468 0.0... eeeeeseees 13

Act of Mar. 3, 1891, 26 Stat. 989................cccseee 8, 10, 13

PEST Fak, F, FOR e BF ee BA vis cissivvessicseresscctere 13

Act of Aug. 15, 1894, 28 Stat. 286 ..........cesssseeees 13

Act of Aug. 15, 1894, 28 Stat. 306 «0.0.00... eeesseeee 13

Act of Mar. 2, 1895, 28 Stat. 876...............ccscesssees 13

Act of Mar. 2, 1895, 28 Stat. 894.00... eseeeeeee 13

Act of June 10, 1896, 29 Stat. 321 .............cccsccsssees 13

Act of Feb. 23, 1897, 30 Stat. 62 ..........cscccccssscesees 13

Act of June 6, 1900, 31 Stat. 672..........ccsceccccocscses 13

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

vi

TABLE OF AUTHORITIES—Continued

STATE CONSTITUTION Page

Idaho Const... S00: Baais i 0 witetsccinsaiadanmitateiamahaenn 8, 11

MISCELLANEOUS

In re the Application for License of the

Washington Water Power Company, Project

No. 2545, Federal Power Commission

(F.ER.C. ) .onccssistigitiliecstiiibalesesaaiicatiaiglensinntoniiab laden 18

S. Res. Mis. Doc. No. 36, 50th Cong. (1888)........ 4

S. Ex. Doc. No. 76, 50th Cong., Ist Sess. 3

( 1 SBS) .........n+s0sensbaniiisligaiseneanasas saan iaemabias 4

S. Ex. Doc. No. 14, 51st Cong., Ist Sess. (1889)... 9

Cohen, Handbook of Federal Indian Law 107

(1983 edd.)...ccoxsnnsidinniicesiansrtaaniaiiaaiiaaiianinsibeiae 12

Respondent Coeur d’Alene Tribe (“Tribe”) submits this

brief in opposition to the State of Idaho’s petition for a writ of

certiorari. Under Rules -15.3 and 24.2, the Tribe is not

required to set forth threshold matters and thus can proceed

directly to demonstrating why the petition should be denied.

REASONS FOR DENYING THE PETITION

I. THE COURT OF APPEALS CORRECTLY

DECIDED THE CASE UNDER THIS COURT’S

CONTROLLING PRECEDENTS OF MONTANA,

UTAH, AND ALASKA.

The primary basis for Idaho’s petition is its insistence,

stated several different ways, that the court of appeals’

decision conflicts with decisions of this Court. See Pet. 16-

26. This assertion is incorrect. As set forth in this section,

the decision below squarely applies this Court’s precedents to

the particular facts of this case.

A. The Court Of Appeals Properly Determined

That Congress Intended To Defeat State Title

To The Submerged Lands By Recognizing And

Acknowledging The Coeur d’Alene Reservation

Which It Knew Included Submerged Lands.

The court of appeals correctly decided this case under this

Court’s controlling precedents of Montana v. United States,

450 U.S. 544 (1981), Utah Div. of State Lands v. United

States, 482 U.S. 193 (1987), and United States v. Alaska, 521

U.S. 1 (1997). The court of appeals recognized that under

this “trilogy of decisions, [which] provides the framework for

analyzing whether a state’s presumptive title to submerged

lands within its borders has been defeated,” there is a “two-

prong test” (first set forth in Utah). Pet. App. 11-12.

Specifically, the court stated, “the question before us is

‘whether the United States intended to include submerged

Fe eee oe ee Te RE

2

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

those lands.’” Pet. App. 12 (quoting Alaska, 521 U.S. at 36).

The court of appeals was required to address only one

aspect of this test. Idaho did not dispute the first prong,

which asks whether the federal government intended to

include the submerged lands at issue within the Tribe’s

reservation. In the words of the court of appeals, “([f]or

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.” Pet. App. 4 n. 3; see also

Pet. App. 10, 11, 13, 15 n. 9, 16, 17 (similarly noting and

relying on Idaho’s concession of this point). The court of

appeals therefore “focus[ed] on the second prong—whether

Congress demonstrated an intent to defeat the State’s title to

the submerged lands.” Pet. App. 13.

The court of appeals carefully followed the guidelines of

Alaska in answering this question in the affirmative. Alaska

held that this second prong of the Utah test—intent to defeat a

future state’s title—-was satisfied when Congress knew that

“the President had construed his reservation authority to

extend to submerged lands and had exercised that authority to

set aside uplands and submerged lands” in the reservation,

and Congress “explicitly recognize[d]” the reservation after it

knew the reservation included the submerged lands. Alaska,

521 U.S. at 44, 45. As the court of appeals indicated, the

following is the critical portion of this most recent precedent

from this Court:

“[T]here would have been no barrier to Congress

retaining a petroleum reserve, including submerged

lands, at the point of Alaska’s statehood, 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. Jt fallows that Congress could achieve the same

result by explicitly recognizing, at the point of Alaska’s

3

statehood, an executive reservation that clearly included

submerged lands.”

Pet. App. 13 (quoting Alaska, 521 U.S. at 44) (emphasis

added). It is this language in Alaska that supplied the court of

appeals with the standard it applied to the facts of this case.

See Pet. App. 13-23. Contrary to petitioner’s suggestions, it

is on the basis of this specific guidance from this Court that

the court of appeals was required to assess whether Congress

met the requirement of “‘act[ing] affirmatively to defeat state

title to submerged lands.” Pet. 19-22 (quoted material at 20).!

Both the court of appeals and district court carefully

applied Alaska’s approach in concluding that Congress had

intended to defeat the future state’s title. See Pet. App. 19-25

(court of appeals), 68-82 (district court). The court of appeals

first noted that this second prong of intent to defeat title had

been satisfied in Alaska where Congress had fashioned its

actions in the Alaska Statehood Act around its recognition

that “a petroleum reserve [had been] created by executive

order 35 years prior to Alaska’s statehood.” Pet. App. 14

(citing Alaska, 521 U.S. at 32-46). This type of congressional

action was sufficient, according to this Court, to preserve

federal title to the reserve and to defeat the future state’s

' This aspect of Alaska also is a complete response to petitioner’s

separate argument that the court of appeals erred when it “expressly

declined to examine the purpose of the reservation as understcod by

Congress.” Pet. 22-26 (quoted material at 22). Congress’s intent to defeat

a future state’s title can be established, as Alaska demonstrates, by its

ratification of the Executive’s previous reservation of submerged lands.

See Alaska, 521 U.S. at 43-45, 52-57. Further, inclusion of the submerged

lands in the Reservation was necessary to accomplishing the United

States’ purposes here because it was part of the consideration demanded

by the Tribe in exchange for acceding to the United States’ other goals.

Pet. App. 15, 17, 61, 65, 74-76. Finally, both the court of appeals, Pet.

App. 18 n.11, and the district court, Pet. App. 81 n.25, correctly analyzed

why such congressional re-examination of the “purpose of the

reservation,” Pet. 22, is not necessary.

4

claim. The court of appeals here then explained that, “[iJn

this case, several similar factors counsel the same result.”

Pet. App. 15. In particular, the court pointed to “the series of

congressional actions taken in the late 1880s[,] ascertaining

that the Executive construed the [1873 Coeur d’Alene]

reservation to include submerged lands and authorizing

negotiations to recover whatever portion of the lands the

Tribe was willing to sell.” Jd. This series of actions “shows

that Congress acknowledged that beneficial ownership of the

lands had already passed to the Tribe.” Pet. App. 15-16. As

the court of appeals succinctly stated in rejecting one of

Idaho’s contentions on this point, “what matters [under the

foregoing block quotation from Alaska] . . . is Congress’

awareness that the 1873 Reservation included submerged

lands, an issue about which there can be no doubt given the

response to the 1888 resolution.” Pet. App. 19.

* This 1888 resolution was described by the court of appeals as

follows: “[T]he Senate ... pass[ed] a resolution in 1888 inquiring of the

Secretary of the Interior about the boundaries of the Tribe’s reservation

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.’ /d.

Two weeks later, the Secretary replied, stating that the 1873 reservation

included the submerged lands at issue and attaching a report by the

Commissioner [of Indian Affairs]; this report informed Congress 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’ 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, 50th Cong., Ist Sess. 3 (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. /d. at 2.”

Pet. App. 6-7 (emphasis added).

5

_ The court of appeals went on to determine that Congress

recognized and acknowledged the Coeur d’ Alene Reservation

in two pre-statehood statutes passed after Congress knew that

the Reservation included the submerged lands at issue here.

The first such pre-statehood statute was the 1888 railroad

right-of-way statute. Act of May 30, 1888, 25 Stat. 160. This

was a grant of a right-of-way through the Reservation,

conditioned on Tribal approval and payment to the Tribe by

the railroad. See id.; Pet. App. 21 n.13. The second such pre-

statehood statute was the 1889 statutory authorization to enter

into negotiations for a possible cession by the Tribe to the

United States of additional portions of their Reservation. Act

of March 2, 1889, 25 Stat. 980, 1002. The court of appeals

explained as follows:

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—

with few limitations aside from an instruction to acquire

non-agricultural lands—“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 submerged lands. This series

of events indicates that Congress accepted the Secre-

tary’s advice to leave any cession up to negotiations.

Indeed, the fact that Congress decided to make its

authorization open-ended reinforces the district 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

6

regaining any land at all, and its particular desire to

recover whatever submerged lands it could:

Pet. App. 21-23 (emphasis in original, footnote omitted).

What is particularly striking about the 1889 negotiation

authorization statute is that it was not merely a general

congressional recognition of the Reservation.’ Rather, as the

court of appeals noted, “[t]he events surrounding the [1889

negotiation] authorization [statute] clearly show that the main

purpose of the new negotiations was to regain from the Tribe

whatever submerged lands it was willing to sell.” Pet. App.

22 n.14 (emphasis added).

In short, the court of appeals properly determined that

Congress recognized and acknowledged the Coeur d’Alene

Reservation after it knew the Reservation included the

submerged lands. On the basis of this analysis, the court

concluded that Congress “‘otherwise [than by a definite

declaration] made very plain’ its intention regarding the

submerged lands” in a manner sufficient under this Court’s

precedents to defeat a future state’s title. Pet. App. 23

(quoting United States v. Holt State Bank, 270 U.S. 49, 55

(1926)) (internal citation omitted); see also Pet. App. 12

(quoting full phrase from Holt State Bank). in this regard, it

is important to recall that “[{nJothing in Alaska requires that

congressional action take the form of explicit congressional

ratification of an agreement reserving or conveying title to

particular submerged lands.” Pet. App. 12. It rather is

enough that “[wJith the 1887 agreement and the response to

the 1888 resolution before it, Congress, fully 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

* The railroad right-of-way act in this case was a general congressional

recognition, just as the appropriation statutes were general recognitions of

the Cherokee Reservation in Holden v. Joy, 17 Wall. 211 (1872), cited

with approval in Alaska, 52t U.S. at 45.

7 |

via purchase rather than the simpler expedient of rejecting the

executive reservation.” Pet. App. 23. These congressional

“actions show recognition and acceptance of the passage of

beneficial ownership to the Tribe, for [Congress] sought to

regain as much submerged land as possible.” /d. Indeed, all

this is more than enough: As the court of appeals noted,

“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,” where this Court also

held that Congress intended to defeat a future state’s title.

Pet. App. 20 n. 12.

B. The Idaho Admission Bill Is An Additional

Recognition And Acknowledgment Of The

Coeur d’Alene Reservation By Congress At

The Point Of Statehood And After It Knew The

Reservation Included The Submerged Lands.

The court of appeals ended its inquiry after it determined

that Congress had intended to defeat state title to the

submerged lands because Congress had recognized and

acknowledged the Reservation in the 1888 and 1889 statutes.

The court found that it was not necessary to “rel[y] on the

disclaimer clause in the Idaho Constitution” as a third

congressional recognition and acknowledgment. Pet. App.

23. The court noted that “t{o] 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.” Pet. App. 24.

* The court of appeals also found it unnecessary to address the Tribe’s

ownership of the submerged lands under several other theories. See Pet.

App. 13. In the event that this Court reversed the court of appeals, it

presumably would remand so that that court could address these

arguments in the first instance. See Cass County v. Leech Lake Band of

Chippewa Indians, 524 U.S. 103, 115 n.5 (1998).

8

The provisions of the Idaho Constitution, ratified by

Congress in the Idaho Admission Bill, are similar to those in

the Alaska Statehood Act in that both provide for federal

ownership and jurisdiction over certain lands. To take the

instant case first, the petitioner, in its Constitution, disclaimed

ownership of “all right and title . . . to all lands . . . held by

any Indians or Indian tribes.” Idaho Const., art. XXI, § 19,

quoted in Pet. App. 23 n.15. This document also provided

that “until the title thereto shall have been extinguished by the

United States, [all lands held by any Indians or Indian tribes]

shall be subject to disposition by the United States,” and that

“said Indian lands shall remain under the absolute jurisdiction

and control of the Congress of the United States.” Idaho

Const., art. XXI & § 19 (emphasis added). This specific

disclaimer of “Indian land” is particularly important because

Article 5 of the 1887 Agreement with the Tribe (as well as the

later ratification statute, Act of Mar. 3, 1891, 26 Stat. 989,

1086, Pet. App. 89) specifically denominated the Reservation

“Indian lands.” In these circumstances, Idaho specifically

disclaimed ownership and jurisdiction over the Reservation,

which everyone knew included the submerged lands. -These

state constitutional disclaimers were then “accepted, ratified

and confirmed” by Congress in the Idaho Admission Bill.

Act of July 3, 1890, 26 Stat. 215 ch. 656. This is a clear

expression of Congress’s intent to defeat state title to the

submerged lands—indeed, Congress’s acceptance, ratification

and confirmation of Idaho’s disclaimer of ownership and

acceptance of federal regulation are essentially the same as

the provisions in the Alaska Statehood Act that were relied

upon in Alaska as to both the oil reserve and the wildlife

refuge at issue there.” To the extent there is a difference, it is

> In Alaska the recognition of federal ownership and regulatory control

over the reservations was contained in the Alaska Statehood Act, Pub. L.

85-508, 72 Stat. 347.

Another similarity to the wildlife refuge in Alaska is that prior to

statehood Congress was provided with a map that clearly showed the

9

that, in a sense, this case is even stronger than Alaska because

here it is the petitioner itself that did the disclaiming, and

Congress “accepted, ratified and confirmed” that disclaimer.

26 Stat. 215 ch. 656. This is also an entire response to

petitioner’s argument that “[a]n 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.” Pet. 20. As set

forth above, Congress did make plain this intent.

In short, Congress’s ratification of the Idaho Constitution

in the Idaho Admission Bill constitutes a third recognition

and acknowledgment of federal/tribal ownership and federal

control that could properly have been relied upon by the court

of appeals as an additional means of determining that

Congress had intended to defeat state title.

C. Post-Statehood Events Demonstrate That

Congress Intended That State Title To The

Submerged Lands Be Defeated And Tribal

Ownership Continue After Statehood.

The Court of Appeals noted that several post-statehood

events also “reflect [Congress’s] recognition and confir-

mation that submerged lands had passed to the Tribe prior to

Idaho’s statehood.” Pet. App. 25-27 (quoted material at 25);

see also Pet. App. 25 n.17 (citing Alaska Pacific Fisheries v.

United States, 248 U.S. 78, 89-90 (1918), to refute Idaho’s

argument that consideration of post-statehood events is

forbidden in judicial effort to determine Congress’s pre-

statehood intent). Specifically, the court of appeals reviewed

the post-statehood cession of the so-called Harrison Strip in

1894. This cession included a “portion of the lake,” which

submerged lands in the reservation. See Alaska, 521 U.S. at 56. In this -

case the map provided to Congress showed the reservation boundary

specifically crossing the lake. S. Ex. Doc. No. 14, 51st Cong., Ist Sess.

(1889); see infra Appendix to this Opposition.

10

“would not have been necessary absent a contemporary

understanding that the Tribe had beneficial ownership of the

bed.” Pet. App. 26. This Harrison Cession thus is a “post-

statehood acknowledgment of tribal ownership of the lake

bed” and a “memorialization of prior events.” /d.

Congress’s pre-statehood intent to defeat state title to the

submerged lands is reflected in another post-statehood event

as well. In the same statute that ratified the 1887 and 1889

Agreements with the Tribe, Congress directed that a patent to

certain submerged lands be given to one Frederick Post. Act

of March 3, 1891, 26 Stat 989, 1027 (Pet. App. 87, 97).

Specifically, chapter 22 of the statute approving the 1887 and

1889 Coeur d’Alene Agreements directed that “the Secretary

of the Interior shall cause to be surveyed for and patented to

Frederick Post . . . . such portion of said [Coeur d’ Alene]

reservation as is recited in the agreement in word and figures

as follows. ... includ[ing] all three of the river channels and

islands, with enough land on the north and south shores for

water power and improvements.” /d. (Pet. App. 97-98)

(emphasis added). - This is further indication that Congress

intended that tribal ownership of the submerged lands

continue after statehood and state title to the submerged lands

be defeated. If the submerged lands had passed to petitioner

at statehood in 1890, Congress could not have directed in the

1891 statute that the “three river channels” be conveyed to

Frederick Post. /d.

In short, these post-statehood events demonstrate that

Congress intended that state title to the submerged lands be

defeated and tribal ownership continue after statehood.°

° As the foregoing sections demonstrate, before a court could conclude

that Congress did not intend to defeat a future state’s title here (as

petitioner urges), much more would have to be considered than the one

Statute identified by petitioner’s Question Presented (viz., the 1889

negotiation statute). See Pet i. That statute, as the court of appeals

demonstrated, adequately discloses under this Court’s precedents that

11

D. Congress’s Intent To Defeat Future State Title

Cannot Be Disproved By Its Deferral Of

Approval Of Agreements With The Coeur

d’Alene Tribe Until After Statehood.

Unable to demonstrate a conflict with this Court’s

controlling precedents, the petitioner ultimately makes a case-

specific argument that “[t]he court of appeals’ decision

ignores the fact that Congress purposefully deferred its

ratification of the Reservation until after statehood.” Pet. 26-

29 (quoted material at 26). The petitioner’s only support for

Congress did intend to defeat a future state’s title here and thus that title to

the submerged lands in question never passed to Idaho. Before reaching

the contrary conclusian, on the other hand, on the ultimate question of

whether Idaho received title to the lands at the time of statehood, one

would have to confront not only the 1889 statute, but other statutes that, in

respondent’s view, are also sufficient under this Court’s precedents to

affirm the judgment of the court of appeals. Specifically, Congress’s pre-

statehood enactment of the railroad right-of-way statute (see supra p. 5)

and its statute, contemporaneous with statehood, that “accepted, ratified

and confirmed” the Idaho Constitution’s eternal (“forever”) “disclaim{er]

{of} all right and title . . . to all lands . . . owned or held by any Indians or

Indian tribes” and that constitution’s acknowledgment that “said Indian

lands shall remain under the absolute jurisdiction and control of the

Congress of the United States” (see supra p. 8 (quoting Act of July 3,

1890, 26 Stat. 215, and Idaho Const. Art. XXI, § 19)), are themselves

sufficient under this Court’s decision in Alaska to demonstrate Congress’s

intent to defeat a future state’s title. See supra pp. 2-3 (block quotation of

Alaska, 521 U.S. at 44). Further, Congress’s after-statehood statute

conveying to Frederick Post part of the reservation that had been yielded

back to the government also reflects Congress’s pre-statehood intent—a

concept that the court of appeals, in discussing the post-statehood

Harrison Cession, recognized was appropriate under this Court’s decision

in Alaska Pacific Fisheries v. United States, 248 U.S. at 89-90. See supra

pp. 9-10. In these circumstances, petitioner not only has failed to

demonstrate that the court of appeals’ ruling conflicts with this Court’s

precedents (as Parts I.A through I.C of this opposition demonstrate that it

does it not), but also has inadequately set forth the full range of

considerations that would have to underlie any conclusion that the court of

appeals’ ruling should be outright reversed. See also supra p. 7 n. 4.

12

this proposition is Congress’s requirement that the 1887 and

1889 Agreements with the Tribe would not be in effect until

ratified by Congress. Contrary to petitioner’s implication

throughout this argument, the requirement of congressional

ratification was nothing unique to the Coeur d’Alene.

Agreements.

It was standard practice for Congress to require that

agreements with Indian tribes be returned to Congress for

ratification. Senate ratification of any treaties with Indian

tribes had always been required. See U.S. Const. art. 2, § 2,

cl. 2. In 1871, because Congress discontinued the use of

treaties with Indian tribes, it instead required that agreements

be ratified by both the House and Senate. See Cohen,

Handbook of Federal Indian Law 107 (1982 ed.). Thereafter,

agreements negotiated with Indian tribes pursuant to

congressional authorization routinely required congressional

ratification. The 1886 congressional authorization, for

example, was for negotiations with not only the Coeur

d’Alene Tribe but also numerous other tribes in the Dakota,

Montana, Idaho, and Washington territories. Act of May 15,

1886, 24 Stat. 44. Congressional approval was required of all

the resulting agreements. See id. (“no agreement made shall

take effect until ratified by Congress”). So too did Congress

require congressional approval of other agreements that it

authorized be negotiated. The requirements of congressional

” Agreement with Ute Indians, Colorado, Sept. 13, 1873, Act of Apr.

23, 1872, 17 Stat. 55 (authorized), Act of Apr. 29, 1874, 18 Stat. 36

(ratified); Agreement with Eastern Band of Shoshone Indians, Sept. 26,

1872, Act of June 1, 1872, 17 Stat. 214 (authorized), Acts of June 22,

1874, Dec. 15, 1874, 18 Stat. 146 at 166, 18 Stat. 291 (ratified);

Agreement with Sioux, N. Arapahoe and Cheyenne Indians, Sept. 26,

1876, Acts of Aug. 15, 1876, Apr. 10, 1869, 19 Stat. 176 at 197, 16 Stat.

13 at 40 (Sec. 4 & 5) (authorized), Act of Feb. 28, 1877, 19 Stat. 254

(ratified); Agreement with Muscogee (or Creek) Nation of Indians, Jan.

19, 1889, Act of Mar. 3, 1885, 23 Stat. 362 at 384 (authorized), Act of

Mar. 1, 1889, 25 Stat. 757 (ratified); Agreement with Indians at Fort

: 13

ratification in the 1886 and 1889 negotiation authorization

Statutes had absolutely nothing to do specifically with the

submerged lands. It was simply the normal practice of the

day replacing the requirement of Senate treaty ratification.

In short, no aspect of this general requirement that all

agreements with Indian tribes be returned to Congress for

approval can be used to cast doubt on the court of appeals’

conclusion that congressional intent to defeat future state title

Berthold Agency, Dec. 14, 1886, Act of May 15, 1886, 24 Stat. 29 at 44

(authorized), Act of Mar. 3, 1891, 26 Stat. 989 at 1032 (ratified);

Agreement with Spokane Indians, Mar. 18, 1887, Act of May 15, 1886,

24 Stat. 29 at 44 (authorized), Act of Jul. 3, 1892, 27 Stat. 120 at 139

(ratified); Agreement with Gros Ventre, Piegon, Blood, Blackfeet and

River Crow Indians, Montana, Dec. 28, 1886, Act of May 15, 1886, 24

Stat. 29 at 44 (authorized), Act of May 1, 1888, 25 Stat. 113 (ratified);

Agreement with Nez Perce Indians, Idaho, May 1, 1893, Act of Feb. 8,

1887, 24 Stat. 388 at 389 (authorized), Act of Aug. 15, 1894, 28 Stat. 306

at 331 (ratified); Agreement with Cheyenne and Arapahoe Tribes of

Indians, Oct. 1890, Act of Aug. 19, 1890, 26 Stat. 336 at 343 (authorized),

Act of Mar. 3, 1891, 26 Stat. 989 at 1022 (ratified); Agreement with Crow

Indians, Montana, Dec. 8, 1890, Act of Sept. 25, 1890, 26 Stat. 468

(authorized), Act of Mar. 3, 1891, 26 Stat. 989 at 1039 (ratified);

Agreement with Yankton Sioux, Dec. 31, 1892, Act of Jul. 13, 1892, 27

Stat. 120 at 137 (authorized), Act of Aug. 15, 1894, 28 Stat. 306 at 314

(ratified); Agreement with Alsea & Other Indians on Siletz Reservation in

Oregon, Oct. 31, 1892, Jul. 13, 1892, 27 Stat. 120 at 138 (authorized), Act

-of Aug. 15, 1894, 28 Stat. 306 at 326 (ratified); Agreement with Shoshone

and Arapahoe Tribes of Indians, Wyoming, Apr. 21, 1896, Act of Aug.

15, 1894, 28 Stat. 286 at 306 (authorized), Act of Feb. 23, 1897, 30 Stat.

62 at 93 (ratified); Agreement with Indians of Fort Belknap Indian

Reservation, Montana, Oct. 9, 1895, Act of Mar. 2, 1895, 28 Stat. 876 at

900 (authorized), Act of June 10, 1896, 29 Stat. 321 at 353 (ratified);

Agreement with Indians of Blackfeet Indian Reservation, Montana, Sept.

26, 1895, Act of Mar. 2, 1895, 28 Stat. 876 at 900 (authorized), Act of

Jun. 10, 1896, 29 Stat. 321 at 357 (ratified); Agreement with Indians of

San Carlos Indian Reservation, Arizona, Feb. 25, 1896, Act of Mar. 2,

1895, 28 Stat. 894 (authorized), Act of Jun. 10, 1896, 29 Stat. 321 at 360

(ratified); Agreement with Shoshone and Bannock Indians of the Fort Hall

Reservation, Idaho, Feb. 5, 1898, Jun. 10, 1896, 29 Stat. 341 (authorized),

Jun. 6, 1900, 31 Stat. 672 (ratified).

14

to the submerged lands at issue here is disclosed by proper

application of the specific test set forth in Alaska for

determining such intent.

Il. THERE IS NO CONFLICT WITH DECISIONS

OF THE IDAHO SUPREME COURT OR

AMONG THE CIRCUITS.

Petitioner asserts two additional bases for review of the

court of appeals’ decision. Neither has merit.

First, petitioner is simply incorrect in asserting that “[t}he

court of appeals’ decision presents irreconcilable conflicts

with decisions of the Idaho Supreme Court.” Pet. 14-16

(quoted material at-14). None of the four cases, decided over

a span of 75 years, upon which petitioner relies to make out a>

conflict addresses ownership claims of the United States or

the Tribe to Lake Coeur d’ Alene.

Petitioner itself concedes that three of the cases “addressed

Situations arising outside the Coeur d’Alene reservation.”

Pet. 15. To take them in the order presented by petitioner,

Kootenai Environmental Alliance, Inc. v. Panhandle Yacht

Club, Inc., 671 P.2d 1085 (Idaho 1983), was a challenge by

an environmental group on public trust doctrine grounds to

petitioner’s issuance of a marina permit on Lake Coeur

d’Alene; Erickson v. State, 970 P.2d 1 (Idaho 1998), was an

unsuccessful challenge to state ownership of submerged lands

claimed to be upland prior to the water level’s being raised by

a hydroelectric dam built on the three river channels

previously conveyed by Congress to Frederick Post (see

supra p. 10 for a description of that conveyance); and

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

1923), was a dispute between a littoral property owner and a

lumber company that was storing logs on Lake Coeur

d’Alene abutting the property. No claim of federal or tribal

lake ownership was involved in any of these cases.

15

The same is true of petitioner’s fourth and final case, West

v. Smith, 511 P. 2d 1326 (Idaho 1973), which was a dispute

between the owner of a houseboat moored on Lake Coeur

d’Alene and the littoral property owner regarding the right to

moor the houseboat. While petitioner attempts to

demonstrate that at least this case involves land also in

dispute in the instant litigation (see Pet. 15-16 & n.8),

petitioner cannot escape the fact that federal or tribal lake

Ownership was no more an issue in West than it was in the

other three cases discussed above.

To the extent these cases say anything relevant to this case,

it is only that they set forth unremarkable dicta to the effect

that ordinarily “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.’” Pet. 15 (quoting

Kootenai Environmental Alliance, 671 P.2d at 1088). But no

one in this litigation has ever doubted that proposition. This

entire case has rather been about whether that ordinary rule

does not apply because of the federal government’s actions in

the nineteenth century in ceding title to particular submerged

lands to the Tribe before Idaho became a state."

Second, petitioner also argues that this case should be

reviewed even though there is no conflict between the circuits

because “[o]utside the Ninth Circuit, state title to submerged

lands within executive order reservations apparently has not

been challenged.” Pet. 17-18 (quoted material at 18). Peti-

tioner suggests that the issue in this case is therefore “peculiar

to States within the Ninth Circuit” and that these “unique

circumstances [of] this case” accordingly support dispensing

with the Court’s ordinary principles governing grants of

certiorari. Pet. 17.

- ® That these cases say nothing to recommend petitioner’s claim of

ownership to the submerged lands over the Tribe’s claim is presumably

why petitioner elected to cite none of these cases to the court of appeals.

16

This argument rests on a fallacy. The issue in this case is

Congress’s intent to defeat state title to the submerged lands.

It has nothing to do with whether the reservation was initially

created by executive order (as it was here), by agreement

between the Tribe and the executive branch, or by some other

means. It is thus no surprise that, contrary to petitioner’s

suggestion, cases addressing aspects of the issue presented in

this case—Congress’s intent-have come to this Court from

state courts and several circuits. Holt State Bank came from

the Minnesota Supreme Court, South Dakota v. Bourland

from the Eighth Circuit, Alaska Pacific Fisheries and

Montana from the Ninth Circuit, and Choctaw, Utah, and

Cherokee from the Tenth Circuit.” There is thus no basis for

crediting the petitioner’s argument that “conflicts with other

circuits may never appear.” Pet. 18.

Il. OTHER ARGUMENTS OF PETITIONER AND

ITS AMICI COUNTIES DO NOT WARRANT

REVIEW.

Petitioner and its amici, Benewah and Kootenai Counties,

make several other arguments in support of the petition.

None is sufficient to warrant this Court’s review.

First, petitioner suggests that Alaska provides no guidance

in this case because “original jurisdiction decisions are not

intended to provide national guidance or establish rules of

general applicability.” Pet. 18. No citation is offered to

support remarkable suggestion. Petitioner is simply wrong.

Original jurisdiction cases have established numerous rules of

general applicability. It was in Marbury v. Madison, 5 US.

(1 Cranch) 137 (1803), that this Court established the

® See United States v. Holt State Bank, 270 U.S. 49 (1926); South

Dakota v. Bourland, 508 U.S. 679 (1993); Alaska Pacific Fisheries v.

United States, 248 U.S. 78 (1918); Montana v. United States, 450 U.S.

544 (1981); Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970); Utah

Div. of State Lands v. United States, 482 U.S. 193 (1987); United States v.

Cherokee Nation of Oklahoma, 480 U.S. 700 (1987).

17 \

fundamental principle of American jurisprudence that the

courts of the United States can review and void statutes that

are inconsistent with the United States Constitution. It was in

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831), that

the Court established the fundamental principle that Indian

tribes are “domestic dependent nations” in a trust relation-

ship with the United States. /d. at 17. It is unnecessary to list

any of the many other examples of original jurisdiction cases

that, like Alaska here, establish rules of general application

and are properly looked to for national guidance.

Second, petitioner and its amici argue as a general theme

that the petition should be granted and the court of appeals’

decision reversed because the case involves submerged lands

which are tied to the State’s history, sovereignty, and public-

trust doctrine. See Pet. 2-3, 12, 14-16; Amicus Br. 3-5, 8-10.

Of course, in making these arguments, petitioner and its amici

take no account of this Court’s more balanced observation

that, “[a]s the Tribe views the case, the lands are just as

necessary, perhaps even more so, to its own dignity and

ancient right.” Idaho v. Coeur d’Alene Tribe, 521 U.S. 261,

287 (1997). In any event, petitioner specifically argues that

the court of appeals’ decision “upsets a century of State

ownership.” Pet. 2. In reality, the petitioner did not even

claim ownership of any submerged lands for the first 25 years

of statehood. As the federal district court in the state

summarized in another case 67 years ago, at the time of

statehood submerged lands under both navigable and non-

navigable waters were owned by riparian landowners, not the

petitioner: “Under the law of Idaho at the time of statehood,

and when the patents were issued to the allottees, the riparian

Owner upon a stream, both navigable and non-navigable,

takes title to the bed of the stream... .” United States v.

Ladley, 4 F. Supp. 580, 582 (D. Idaho 1933); accord Johnson

v. Johnson, 14 Idaho 561, 95 P. 499 (1908); Lattig v. Scott, 17

Idaho 506, 107 P. 47 (1910), reversed on other grounds, 227

U.S. 229 (1913); Donovan-Hopka-Ninneman Co. v. Hope

18

Lumber Mfg. Co., 194 F. 643, 649 (9th Cir. 1912) (applying

rule to submerged lands underlying navigable lakes); but cf.

Callahan v. Price, 26 Idaho 745, 146 P. 732 (1915)

(overruling prior cases holding riparian or littoral landowners

held title to mid-stream or lake). Furthermore, Idaho did not

begin regulating encroachments on lakes in Idaho until 1974,

one year after the Tribe first sought a determination of tribal

ownership of Lake Coeur d’Alene. /n re the Application for

License of the Washington Water Power Company, Project

No. 2545, Federal Power Commission (F.E.R.C.) (granting

the Tribe intervention Sept. 14, 1973). Contrary to

petitioner’s assertion, submerged land ownership and

regulation have no special place in Idaho history. Far from

upsetting “a century of State ownership” (Pet. 2), the court of

appeals has only quieted title which has been disputed for

years.

Amici go so far as to suggest that the petition should be

grant@éd because it is appropriate for the Supreme Court to

decide this, and apparently every, submerged lands case,

simply given the implications for state sovereignty.'” Amicus

Br. 4-5. Amici’s suggestion is unpersuasive. The case upon

which amici rely for the proposition that it “best comports

‘with the dignity of a state, that a case in which it was a party

should be determined in the highest, rather than a

subordinate, judicial tribunal of the Nation,’” Amicus Br. 2,

4-5 (quoting United States v. Texas, 143 U.S. 621, 643

(1892)), does not in any sense purport to govern the Court’s

discretionary determination whether to grant or deny

'° Petitioner essentially shares this view with amici, for the question

presented by petitioner is so narrow and specific to this litigation that it is

inconceivable that a ruling from this Court would create a precedent that

lent itself to anything approaching wide application. See Pet. i (stating

that the question presented is “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”).

19

certiorari in this case. In the quoted material, as the Court -

took pains to make clear, this Court was merely explaining, in

an original jurisdiction case, why Congress had decided,

“under [then] existing statutes,” to provide “exclusive

jurisdiction” to the Supreme Court “of a suit by the United

States against a State.” Texas, 143 U.S. at 643 (emphasis

added). By revising these jurisdictional statutes since the late

nineteenth century, and thereby permitting suits such as the

instant one to go forward in federal district court and subject

to ordinary rules concerning appellate review by federal

courts of appeals and this Court, Congress has made clear that

it has reconsidered whether mandatory scrutiny by this Court

is necessary to preserve “the dignity of a state.” The Court

has viewed the matter similarly: it frequently has denied

certiorari in other submerged lands cases, both where claims

of ownership as against the state were rejected by lower

courts and where such claims were upheld.'!

Finally, amici also express concern that the Tribe is

regulating non-Indian use of the lake and river, implying that

non-Indian use might be prohibited. Of course the Tribe is

regulating use of the lake. Concern would be proper only if

"! See, e.g., Moore v. United States, 157 F.2d 760 (1946), cert. denied,

330 U.S. 827 (1947) (upholding tribal ownership of submerged lands);

Skokomish Indian Tribe v. France, 320 F.2d 205 (9th Cir. 1963). cert.

denied, 376 U.S. 943 (1964) (rejecting tribal ownership of submerged

lands); United States v. Alaska, 423 F.2d 764 (9th Cir.), cert. denied, 400

U.S. 967 (1970) (upholding federal ownership of submerged lands);

Confederated Salish and Kootenai Tribes v. Namen, 665 F.2d 951, cert.

denied, 459 U.S. 977 (1982) (upholding tribal ownership of submerged

lands); United States v. Aranson, 696 F.2d 654 (9th Cir. 1983), cert.

denied, 464 U.S. 982 (1983) (rejecting tribal ownership of submerged

lands but remanding to determine aboriginal title); Puyallup Indian Tribe

v. Port of Tacoma, 717 F.2d 1251 (9th Cir. 1983), cert. denied, 465 U.S.

1049 (1984) (upholding tribal ownership of submerged lands);

Muckleshoot Indian Tribe v. Trans-Canada Enterprises, 713 F.2d 455

(9th Cir. 1983), cert. denied, 466 U.S. 1049 (1984) (upholding tribal

ownership of submerged lands).

20

the Tribe were not regulating such use. Even though this is

an issue which was not raised below, it is appropriate to note

that non-Indians are allowed to -boat, fish, and maintain

encroachments on these waters pursuant to reasonable

regulations. Coeur d’Alene Tribe Code, ch. 20, 43, 44. More

fundamentally, the doctrine of navigational servitude

guarantees non-Indian use of waters in Indian reservations.

This Court has already reached that conclusion:

If the States themselves are subject to this servitude, we

cannot conclude that [an Indian tribe]—though granted a

degree of sovereignty over tribal lands—gained an

exemption from the servitude simply because it received

title to the riverbed interests. . . .

[T]he tribal interests at issue here simply do not

include the right to be free from the navigational

servitude.

United States v. Cherokee Nation of Oklahoma, 480 U.S. 700,

707-08 (1987). The Tribe is properly regulating the lake and

allowing all to use it as required by navigational servitude. 7

'2 Amici’s other arguments in defiance of this Court’s precedents also

do not support review. First, as for the claim that there is no “public

exigency” or “international duty” justifying the defeat of state title to

submerged lands (Amicus Br. 7-8), this Court made clear in Alaska that

the “public exigency” and “international duty” language of earlier cases

was Only “congressional policy, not a constitutional obligation.” Alaska,

521 U.S. at 40 (citing Utah, 482 U.S. at 197). Second, amici suggest that

at the time in question Congress had a general policy calling for an end of

tribal cwnershi» of land. See Amicus Br. 2-3, 5-7. Even leaving aside

amici’s incompiete and therefore incorrect characterization of Congress’s

general policy, there can be no suggestion that such a policy or even the

General Allotment (Dawes) Act of February 8, 1887, 24 Stat. 388, to

which amici point as evidence of this policy, can control over the specific

(including statutory) evidence of congressional intent that the court of

appeals here explained was controlling under the Utah-Alaska test. Cf.

Guidry v. Sheet Metal Workers Nat. Pension Fund, 493 U.S. 365, 376

(1990) (“specific statute will not be controlled or nullified by a general

21

In short, none of these additional arguments of petitioner or

its amici forms a basis for granting review.

CONCLUSION

For the reasons stated, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

RAYMOND C, GIVENS *

BRIAN J. CLEARY

GIVENS, FUNKE & WORK

424 Sherman Avenue, Suite 308

Post Office Box 969

Coeur d’ Alene, Idaho 83814

(208) 667-5486

’ JOSEPH D. KEARNEY

Post Office Box 1709

Milwaukee, Wisconsin 53201

* Counsel of Record

one”). Finally, as for amici’s argument based on the public trust doctrine,

it is sufficient to note that amici do not claim that the doctrine has ever

operated in this context to provide any guidance to whether Congress

intended to defeat a future state’s title. In other words, amici can make

their public trust doctrine argument only by their ignoring the controlling

test of Utah and Alaska. See Amicus Br. 8-10 (Part III.D).