# Opposition Brief — Idaho v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 262

## Text

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 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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1726%3A03. Public record. Not legal advice.