Opposition Brief — Idaho v. United States

) | NOY & 9000

No. 00-189 | i

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In the Supreme Court of the United States

STATE OF IDAHO, PETITIONER

VU.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

LoIs J. SCHIFFER

Assistant Attorney General

JAMES C. KILBOURNE

KATHERINE J. BARTON

Attorneys

Department of Justice

° Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

The United States created the Coeur d’Alene Indian

Reservation through an Executive Order that included

a portion of the bed of Coeur d’Alene Lake and the St.

Joe River as part of the Reservation. The district court

found that, at the time of Idaho’s admission to the

Union, Congress clearly manifested its intent, through

legislation and other actions, that the Reservation

included submerged lands. The question presented is

whether the court of appeals erred in affirming the

district court’s conclusion that Congress’s actions es-

tablished its intent, when Idaho was admitted to the

Union, to defeat the State’s title to those submerged

lands.

(I)

TABLE OF CONTENTS

Page

PID IP sincecisihicischsiderntinsinininisbiouebctbdinledh ccs KcbiesscDMGtie cos. 1

I scseseniiccibeissiiendedabinitessbacsbGuiahinbessacrainicditidiaaae od. 1

IU Silda nbiniesnincicree aches Lonihtbidnptambiies okkgnceie Jes 1

MII sitbnteoecatshinndcicmnsanniacclviominiiobetinieecic alice 3 14

INTE Sodcieiaterclssditsiaiasbvcitmesasibiaitbcindnccea ee ak 23

TABLE OF AUTHORITIES

Cases:

Alaska Pac. Fisheries v. United States, 248 U.S.

cts tc Es IS NUE 21

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

I idiecilhnhaheniicciahccii aaa 17

Choctaw Nation v. Oklahoma 397 U.S. 620 i 18-19

Erickson v. State, 970 P.2d 1 (Idaho EE 17

Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997) ........ 9,10

Kootenai Envt'l Alliance, Inc. v. Panhandle Yacht

Club, Inc., 671 P.2d 1085 (Idaho 1983) vecccccccccscccccsescosesee.. 17

Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803) ....... 9]

Montana v. United States, 450 U.S. 544 Re 2

United States v. Alaska, 521 U.S. 1 (1997) cesses... 211.12.

15, 20, 21

United States v. California, 332 U.S. 19 On 19

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

PIE Si ieietehabensshcishinisesehecseiinihkadindscanaeen 2, 14, 19, 20

United States v. Idaho, No. CV 94-328-N-EJL

MONIT, WU OD i sasnnssconssensanuinnnnasanerepectecensencc 11

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

STUNT llth leteiesciiinnoesibnansacbcashsercaishenntsindeneaesaesince. 2,18

West v. Smith, 511 P.2d 1326 (Idaho 1978) ceesssssssssssese 17, 18

Constitutions, statutes and rule:

U.S. Const.:

Art. I'V, § 3, Cl. 2 (Property Clause) ....ccccccccscscssssesccossecosss. 2

NINE Calirheitchlsts ahiadcnhnieicanietisnnctdsieneriaseiinseasiscss: 10

(III)

IV

Constitution, statutes and rule—Continued: Page

Sete Cet Th FALE DO ei ceasisescniaeiseensinintitiaderetdasiaaiianitinatiina 22

Act of May 30, 1888, ch. 336, 25 Stat. 160 oe eseeeeeees 7

Act of Mar. 2, 1889, ch. 412, 25 Stat. 1002... 8, 14, 20, 22

Act of July 3, 1890, ch. 656, 26 Stat. 215 0... sssessesssssees 9

Act of Mar. 3, 1891, ch. 543, 26 Stat. 989 oo... ceseeteeees 9

a, Be IR csciccieseidoiitelcariantdaitacinsicibaderiet aa Nae 9

Ba, GA Th BD secvinnciconiienesivietinsanicennsnvalipcsinciconnananinentionniantedstsiattivnts 16

Miscellaneous:

21 Cong. Rec. (1890):

Bs TESA erceivovnhciccesnissinieieicaeiiehhaaihietoninasatiinadinnbiaciaasii 9

Sa, PIES OOD icnsnsnnseninintasnsinnsnaiinisiansnjnliaiaewieiiinietosanienbinnnnistuaite 9

H.R. 7703, 51st Cong., Ist Sess. (1890) 0... csessscsesesseeeseees 9

H.R. Rep. No. 1109, 51st Cong., Ist Sess. (1890) «0.0... 9

S. 2828, 5ist Cong., Ist Sess. (1890) ..........cocccscrccersesesessseeces 9

Jn the Supreme Court of the Gnited States

No. 00-189

STATE OF IDAHO, PETITIONER

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-30) is

reported at 210 F.3d 1067. The opinion of the district

court (Pet. App. 31-86) is reported at 95 F. Supp. 2d

1094.

JURISDICTION

The judgment of the court of appeals was entered on

May 2, 2000. The petition for a writ of certiorari was

filed on July 25, 2000. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

The United States brought this action to quiet title to

submerged lands for the beneficial use of the Coeur

d’Alene Indian Tribe. The disputed lands are located in

(1)

2

northern Idaho within the exterior boundaries of the

Coeur d’Alene Indian Reservation and consist of ap-

proximately the southern third of Coeur d’Alene Lake

and a portion of the St. Joe River. The United States

District Court for the District of Idaho held that the

United States owns those lands for the benefit of the

Tribe, Pet. App. 31-86, and the court of appeals unani-

mously affirmed the district court’s judgment, zd. at 1-

30.

1. Under the Property Clause of the United States

Constitution, Congress has plenary power “to make all

needful Rules and Regulations respecting the Territory

or other Property belonging to the United States.”

U.S. Const. Art. IV, § 3, Cl. 2. Congress’s power ex-

tends to submerged lands beneath navigable waters,

which have long been viewed as having special sover-

eign attributes. See United States v. Alaska, 521 U.S.

1, 33-34 (1997); Utah Div. of State Lands v. United

States, 482 U.S. 193, 195 (1987). “As a general principle,

the Federal Government holds such lands in trust for

future States, to be granted to such States when they

enter the Union and assume sovereignty on an ‘equal

footing’ with the established States.” Montana v.

United States, 450 U.S. 544, 551 (1981). The United

States may, however, deprive a future State of title to

submerged lands by reserving those lands for an

appropriate public purpose or by granting them to

private parties. See Alaska, 521 U.S. at 33-34.

Nevertheless, “disposals by the United States during

the territorial period are not lightly to be inferred, and

should not be regarded as intended unless the intention

was definitely declared or otherwise made very plain.”

United States v. Holt State Bank, 270 US. 49, 55 (1926).

2. The district court made extensive findings re-

specting the lands at issue here. See Pet. App. 31-86.

As that court explained, the Coeur d’Alene Tribe once

inhabited more than 3.5 million acres in northern Idaho

and northeastern Washington, including the lands

adjacent to Coeur d’Alene Lake and two associated

waterways, the St. Joe River and the Spokane River.

Id. at 32, 43. The Tribe depended on those water bodies

for food, trade, travel, and cultural practices. Jd. at 43-

48. Tribal members ate trout and whitefish year-round,

collected mussels and clams, traded dried fish, relied on

the lake and associated rivers to facilitate hunting,

gathered plants growing in the wetlands and marshes

of these waterways, and used the watercourses as

primary highways for travel, trade, and communication.

Id. at 44. The lake and rivers were tied to the Tribe’s

“recreational pursuits, religious ceremonies and burial

practices.” Jd. at 45. By the mid-1800s, through the

influence of missionaries, the Tribe’s members had be-

gun to establish small garden plots, but they continued

to depend on the lake and rivers for fish, waterfowl, and

plants. Id. at 46, 49.

The arrival of non-Indian settlers in the region led to

conflicts. See Pet. App. 49-50. On June 14, 1867, Presi-

dent Andrew Johnson issued an Executive Order estab-

lishing a reservation for the Tribe lying southwest of

Coeur d’Alene Lake and including only a sliver of the

lake. Id. at 32-33, 50. The Tribe initially was unaware

of the federal government’s unilateral action. When the

Tribe learned that the United States had created a

reservation, the Tribe expressed dissatisfaction with

the boundaries and refused to accept it. Jd. at 50. In

1871 and 1872, the Tribe sent petitions to the Commis-

sioner of Indian Affairs describing certain areas that

the Tribe considered essential for a reservation. In the

1872 petition, the Tribe made clear that it requested, in

addition to 20 square miles identified in the 1871

4

petition, “two valleys, the S. Josephs (today called the

St. Joe), from the junction of S. and N. forks, and the

Coeur d’Alene from the Mission inclusively.” Jd. at 50-

51. The Tribe explained that the valleys “have been

from old the habitual residence of most of us” and that,

although the Tribe was gaining experience at farming,

“(we think it hard to leave at once old habits to

embrace new ones: for a while yet we need have some

hunting and fishing.” Jd. at 51. A government Indian

agent noted, in his 1871 report, that the Tribe’s mem-

bers “subsist principally by hunting and fishing.” Jd. at

52. Similarly, a government official warned two years

later that “there will in my opinion be trouble” if the

Tribe were excluded from their traditional fisheries. -

Ibid.

In 1873, the Commissioner of Indian Affairs directed

a commission to visit non-treaty Tribes in Idaho, includ-

ing the Coeur d’Alene Tribe, to induce them “to aban-

don their roaming habits and consent to confine them-

selves within the limits of such reservation or reserva-

tions as may be designated for their occupancy.” Pet.

App. 33, 54. That year, the commission reached an

agreement with the Coeur d’Alene Tribe that called for

a reservation of approximately 598,000 acres and

provided for compensation for the relinquishment of all

claims to the remainder of the Tribe’s aboriginal lands.

Id. at 33. The reservation included, in addition to the

area set aside by the 1867 Executive Order, an ex-

panded upland area, the St. Joe and Coeur d’Alene

Rivers, and all but a small portion of Coeur d’Alene

Lake. Jd. at 33-35, 55-56. The agreement also guaran-

teed “that the water[s] running into said reservation

shall not be turned from their natural channel where

they enter said reservation.” Jd. at 55. The agreement

required congressional approval to become binding on

the parties. Jd. at 33-34, 56. The Commissioner of

Indian Affairs recommended that the President set

apart the Reservation by Executive Order pending con-

gressional action. Jd. at 34, 57. On November 8, 18738,

President Ulysses S. Grant established, by Executive

Order, the Coeur d’Alene Indian Reservation with

boundaries identical to those in the agreement. J/bid.

In 1883, the federal government surveyed the

boundaries of the Reservation. Pet. App. 35, 57. The

government instructed the surveyor to run the north-

ern boundary across Coeur d’Alene Lake, excluding a

portion of the lake’s northern end from the Reserva-

tion. Jd. at 57. Surveying a boundary across a naviga-

ble waterway “was contrary to the usual practice of

meandering a survey line along the mean high water

mark.” Jbid. According to the survey, the Reservation

encompassed a total area of 598,499.85 acres, “a calcula-

tion that included submerged lands under the Lake and

rivers within the boundaries of the reservation.” Jd. at

57-58.

In 1885, the Tribe submitted a petition to the federal

government requesting confirmation of the Reservation

and payment for the lands not reserved to them. Pet.

App. 68. In response, Congress authorized the Secre-

tary of the Interior to negotiate with the Tribe “for the

cession of their lands outside the limits of the present

Coeur d’Alene reservation.” Jd. at 35,68. As a result of

those negotiations, the Tribe agreed in 1887 to cede its

aboriginal lands “except the portion of land within the

boundaries of their present reservation in the Territory

of Idaho, known as the Coeur d’Alene Reservation.”

Ibid. The federal government promised, in exchange,

that the Coeur d’Alene Reservation “shall be held for-

ever as Indian land and as homes of the Coeur d’Alene

Indians.” Jd. at 68-69. The 1887 agreement specified

6

that it was not binding on either party until ratified by

Congress. /d. at 35, 69. |

Meanwhile, the influx of non-Indians continued to

encroach on tribal lands, including the associated water-

ways. Pet. App. 69. The government allowed steam-

boats to use Coeur d’Alene Lake, but the government |

treated the portions of the lake lying within the Res- |

ervation as Indian country and subjected the steam-

boats to the Trade and Intercourse Act, which prohib-

ited introduction of liquor into Indian country. Jd. at 69

& n.17. Non-Indians who were discovered making

recreational use of the lake and rivers within the

reservation boundaries were ejected as trespassers. Id.

at 70. Consequently, pressure grew to make a portion

of the lake and adjacent rivers available to non-Indian

use. Ibid.

On January 25, 1888, the Senate passed a resolution

observing that the Reservation is alleged to include

“Lake Coeur d’Alene, all the navigable waters of Coeur

d’Alene River, and about 20 miles of the navigable part

of St. Joseph River, and part of St. Mary’s, a navigable

tributary of the Saint Joseph,” except for about 3.5

miles of shoreline at the north end of the lake. Pet.

App. 71. The resolution directed the Secretary of the

Interior to “inform the Senate as to the extent of the

present area and boundaries of the Coeur d’Alene

Indian Reservation,” including whether it included the

navigable waters named in the resolution, and whether

it would be advisable to release lands valuable for

mineral entry as well as “any of the navigable waters

aforesaid” from the limit of the reservation. Jd. at 72.

On February 7, 1888, the Commissioner of Indian

Affairs responded on behalf of the Secretary of the

Interior, reporting to Congress that “the reservation

appears to embrace all the navigable waters of Lake

7

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 Spokane River.” Pet. App. 72. The Commis-

sioner recommended “that changes could be made in

the boundaries for the release of some or all of the

navigable waters” of the Reservation without detri-

ment to the Indians. Jd. at 73. The Commissioner

anticipated that, if the 1887 agreement with the Tribe

was ratified, it would not be difficult to negotiate with

the Tribe “for the cession 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.” bid. The Commissioner attached

to the report a map of the Reservation as established

by the 1873 Executive Order that showed the lake and

rivers in relation to the reservation boundaries and

described the reservation as including 598,499.85 acres,

thus necessarily including the submerged lands. Jbid.

Also in 1888, Congress enacted a statute provisionally

granting the Idaho and Washington Railroad Company

a right of way through the Coeur d’Alene Reservation

that extended 75 feet into the lake and required the

consent of and payment of compensation to the Tribe to

make the right of way effective. Act of May 30, 1888,

ch. 336, 25 Stat. 160. See Pet. App. 21 n.13.

During that same year, Congress debated whether to

ratify the 1887 agreement, but postponed a final deci-

sion out of a desire “to acquire” an additional area of the

Reservation. Pet. App. 74. The reservation lands of

interest included, among other things, “a magnificent

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

tributary, to wit, the Coeur d’Alene River.” bid. Con-

gress accordingly initiated steps to obtain, by purchase,

“the northern end of [the 1873] reservation.” bid. On

8

March 2, 1889, Congress passed the annual Indian Ap-

propriations Act, which included a provision authoriz-

ing the Secretary of the Interior

to negotiate with the Coeur @’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.

Ibid. (quoting Act of Mar. 2, 1889, ch. 412, 25 Stat.

1002).

In negotiations conducted pursuant to this congres-

sional authorization, the government’s chief spokes-

person, General Simpson, initially told tribal leader

Chief Seltice that “the Lake belongs to you as well as to

the whites—to all, every one who wants to travel on it.”

Pet. App. 75. Chief Seltice objected to “(General Simp-

son’s] idea about the boundary.” Jbid. General Simp-

son then suggested a revised boundary line that ran

east from the Idaho-Washington territorial boundary to

the western shore of the lake, ran south along the lake

to a point about two-thirds from the northern end of the

lake, and then cut directly east across the lake. Ibid.

General Simpson explained that the government would

purchase the northern end of the 1873 Reservation and

leave the Tribe the “St. Joseph River and the lower

part of the lake and all the meadow and agricultural

land along the St. Joseph River.” Jbid. That under-

standing became the basis for a final agreement that

was signed on September 9, 1889. Jd. at 75-76. The

Secretary of the Interior reported to the House of Rep-

resentatives that, under the 1889 agreement, the Tribe

would sell lands that “embrac[ed] by far the greater

portion of the navigable waters of the reservation.” Id.

at 76.

9

In March 1890, the House Committee on Indian

Affairs reported a bill (H.R. 77038, 51st Cong., 1st Sess.)

to approve the agreements with the Coeur d’Alene

Tribe, see 21 Cong. Rec. 2775 (1890); H.R. Rep. No.

1109, 51st Cong., Ist Sess., and a parallel bill (S. 2828,

51st Cong., lst Sess.) passed the Senate on June 7, 1890,

see 21 Cong. Rec. 5769-5770 (1890). Shortly thereafter, -

on July 3, 1890, Congress admitted Idaho to the Union.

Pet. App. 76; Act of July 3, 1890, ch. 656, 26 Stat. 215.

The Idaho Statehood Act admitted Idaho “on an equal

footing with the original States.” Jbid. In the

Statehood Act, Congress “accepted, ratified, and

confirmed” the constitution of Idaho, which had been

approved by Idaho voters in November 1889. Jbid. The

constitution contained a clause that specifically re-

nounced the State’s “right and title to the unappropri-

ated public lands” and lands “owned or held by any

Indians or Indian tribes,” and it recognized that “said

Indian lands shall remain under the absolute jurisdic-

tion and control of the congress of the United States.”

Pet. App. 76-77, 82. Later in that same Session, Con-

gress ratified the 1887 and 1889 agreements with the

Coeur d’Alene Tribe. Jd. at 77; see Act of Mar. 3, 1891,

ch. 548, 26 Stat. 989, 1027-1032."

1 Congress later approved the removal from the Tribe’s Res-

ervation of two additional areas containing navigable waters. In

1894, Congress ratified the Harrison cession, which encompassed a

one-mile strip of land that included a corner of Coeur d’Alene

Lake. Pet. App. 26. In 1908, Congress withdrew a portion of the

Reservation encompassing three smaller lakes and, in 1911, for-

mally conveyed those lands by patent te the State. Jd. at 27. Since

that time, approximately 80% of the Reservation passed out of

Indian ownership, and today the Tribe or tribal members own

approximately 69,000 acres of the reservation. See Jdaho v. Coeur

d’Alene Tribe, 521 U.S. 261, 264 (1997).

10

3. The United States, acting in its sovereign capac-

ity and as trustee for the Tribe, initiated this action

against the State of Idaho seeking to quiet title to the

submerged lands within the exterior boundaries of the

Tribe’s reservation for the benefit of the Tribe and its

members. See Jdaho v. Coeur d’Alene Tribe, 521 U.S.

261, 266 (1997).° In addition to its title claim, the

United States sought a declaratory judgment to

establish the Tribe’s right te exclusive use, occupancy,

and quiet enjoyment of the submerged lands. The

United States also sought a permanent injunction

prohibiting the State from asserting any right, title or

other interest to such lands. Pet. App. 31-32. The

Tribe intervened, asserting its interests based on alter-

native legal theories, which are not at issue in the

petition for writ of certiorari. Jd. at 32. The State of

Idaho counterclaimed, requesting that title to the sub-

merged lands be quieted in favor of Idaho. bid.

Based on the historic facts set out above, the district

court concluded that the United States had “overcome

the strong presumption of State ownership” and dem-

onstrated that the United States retained the sub-

merged lands for the benefit of the Tribe. Pet. App. 83.

In summarizing its conclusions, the court explained that

“the trial evidence demonstrates that the Federal

Government clearly intended to include the submerged

lands within the 1873 reservation.” Jbid. The court also

found that Congress was “on notice that submerged

lands had been included in the 1873 reservation” and

that Congress’s direction to the Secretary of the

2 The Coeur d’Alene Tribe previously brought suit against

Idaho seeking to quiet title to the whole of Coeur d’Alene Lake.

See Idaho, 521 U.S. at 264-265. This Court concluded that the

Eleventh Amendment barred the Tribe’s claim. See id. at 281-288.

11

Interior to negotiate with the Tribe for the release of

the submerged lands “reflected Congress’s intent to

ratify the inclusion of submerged lands within the

reservation and to defeat the State’s title to those

lands.” bid.

In light of those facts, the district court concluded

that Congress’s approval of the Idaho Statehood Act,

including the disclaimer clause of the Idaho Constitu-

tion, “confirmed that the Federal Government retained

title to the submerged lands for the benefit of the

Tribe.” Pet. App. 84. The court entered an order quiet-

ing title to the bed and banks of the Coeur d’Alene

Lake and the St. Joe River lying within the current

boundaries of the Coeur d’Alene Indian Reservation.

Id. at 85-86. The district court permanently enjoined

the State of Idaho from asserting any right, title or

other interest in the submerged lands at issue. J/bid.

The court did not address the Tribe’s alternate legal

theories. Jd. at 84n.27. The court also denied the State

of Idaho’s counterclaim. Jd. at 86.°

4. Idaho appealed, and the court of appeals affirmed

the district court’s judgment. Pet. App. 1-30. The

court of appeals explicitly applied the two-pronged test

set forth by this Court in United States v. Alaska,

supra, for determining whether the State was entitled

to the submerged lands at issue. That court stated:

3 The district court denied Idaho’s motion for stay and. injunc-

tion pending appeal. See United States v. Idaho, No. CV 94- 328-N-

EJL (D. Idaho Oct. 19, 1998). The court rejected the State’s asser-

tion that management of the lower part of the lake by the United

States or the Tribe would adversely affect the State and the public

interest. Rather, the court concluded that “the record reflects that

currently the Tribe intends to honor all permits, licenses or uses

issued or authorized by the State or its political subdivisions.”

Slip. op. 4.

12

“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.’” Pet. App. 12 (quoting

Alaska, 521 U.S. at 36). See also id. at 13-27.

Because Idaho conceded on appeal that the United

States intended to include the submerged lands in the

Reservation established by the 1873 Executive Order,

the court focused on the second prong of the test. Pet.

App. 13. Citing Alaska, the court stated that the

second prong required an affirmative showing of con-

gressional (rather than executive) intent to deprive

Idaho of title to the lands in question and that such

intention must be “definitely declared or otherwise

made very plain.” Jd. at 12. In accordance with this

Court’s decision in Alaska, the court of appeals

considered several factors that bore on Congress’s

understanding of the status of submerged lands within

the Coeur d’Alene Reservation and on Congress’s

corresponding actions at the time of Idaho’s admission

to the Union. Jd. at 15 & n.9.

First, the court of appeals recognized that the

boundaries of the Reservation, as defined by both the

1873 Executive Order and the 1889 agreement, were

drawn across the lake, with the 1889 agreement sub-

stantially curtailing the included acreage. Pet. App. 16.

The practice of drawing the boundary across the lake,

rather than along the shoreline, manifested the under-

standing that the submerged lands within the reserva-

tion boundary are part of the reservation. Jd. at 16-17.

The Tribe had insisted on including those submerged

lands as part of the 1873 Reservation, and the govern-

ment had redrawn the boundary in 1889 to “establish[]

the Tribe’s right to the Lake and rivers,” a fact that

was reflected in the maps submitted to Congress. Id. at

wee

13

16. The court of appeals accordingly concluded that

Congress was clearly on notice and must ha’e under-

stood that the 1873 Executive Order creating the

Reservation and the 1889 agreement diminishing its

size necessarily deprived a future State of title to sub-

merged lands remaining within the Reservation. Jd. at

17.

Second, the court of appeals observed that the

United States had created the Coeur d’Alene Reser-

vation to provide a means for tribal subsistence and

that “the purpose of the reservation would have been

defeated had it not included submerged lands.” Pet.

App. 17. The historical record showed that Congress

had authorized the United States to negotiate a reser-

vation for the Tribe, and the Tribe agreed to the 1873

Reservation, because the Tribe was dependent on the

lake’s fisheries. Jd. at 18. The Tribe refused to settle

on lands that did not include the lake and associated

waterways. Jbid. Similarly, the court found that, when

Congress directed the United States to renegotiate the

Reservation boundaries, the United States reached

agreement by ensuring that the Tribe retained benefi-

cial ownership of the southern third of the lake and a

portion of the St. Joe River. Jbid. In this case, as in

Alaska, the fact that the United States had a distinct

purpose for including submerged lands within the

Reservation bears on the question of congressional

intent, because Congress’s retention of the submerged

lands is necessary to fufill that purpose. See ibid.

Third, the court of appeals explained that Congress

took a series of actions that “demonstrates acknowledg-

ment, recognition, and acceptance of the boundaries of

the 1873 reservation, which Congress knew the

Executive had construed to include submerged lands,

thereby showing the requisite intent to defeat state

14

_ title.” Pet. App. 19-20. Congress’s action in authorizing

the 1889 negotiations to recover lands held by the Tribe

manifested Congress’s intent to honor the 1873 agree-

ment and Executive Order. /d. at 21. “Although Con-

gress had the opportunity and the power to repudiate

the executive reservation and the 1887 agreement, it

did not do so.” Instead, Congress authorized negotia-

tions “for the purchase and release by said tribe of such

portions of its reservation . . . as such tribe shall

consent to sell.” Id. at 22 (emphasis and ellipses

supplied by the court) (quoting Act of Mar. 2, 1889, ch.

412, 25 Stat. 1002). The court concluded that Con-

gress’s affirmative act of directing open-ended negotia-

tions to purchase whatever non-agricultural land,

particularly submerged lands, the Tribe was willing to

cede “presupposes that beneficial ownership of all land

within the 1873 reservation, including submerged lands,

had already passed to the Tribe.” Jd. at 23. Thus, the

court concluded that Congress had “made very plain”

its understanding and intent that the future State of

Idaho would not have title to those reservation lands.

Ibid. (quoting Holt State Bank, 270 U.S. at 555).

Congress’s ratification of Idaho’s constitution, by which

Idaho disclaimed lands “held by” Indian Tribes,

provided further support for the court’s conclusion.

Finally, the court concluded that Congress’s approval of

Idaho’s disclaimer, coupled with Congress’s actions

recognizing the Tribe’s title to the submerged lands at

issue here, established that Congress intended to defeat

the State’s title to those lands. Jd. at 24-25.

ARGUMENT

The court of appeals correctly affirmed the district

court’s judgment that a portion of the bed of Coeur

d’Alene Lake and the St. Joe River are part of the

15

Coeur d’Alene Indian Reservation. The lower courts

properly identified and applied familiar legal principles

that this Court recently reaffirmed in United States v.

Alaska, 521 U.S. 1 (1997). This case does not involve

any novel or undecided legal question, and it does not

give rise to any conflict with any decision of this Court,

another court of appeals, or the Idaho Supreme Court.

Rather, the court of appeals’ affirmance correctly re-

solved a fact-specific dispute over the application of

settled law to a particular tract of land. The petition for

a writ of certiorari accordingly should be denied.

1. As the court of appeals recognized, this Court has

unequivocally established the legal principles that con-

trol this case. “In Alaska, the Supreme Court reaf-

firmed 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.” Pet. App. 12. The court of

appeals properly examined “‘whether the United

States intended to include submerged lands within the

[Reservation] and to defeat [Idaho’s] title to those

lands.’” Ibid. (quoting Alaska, 521 U.S. at 36). Idaho

conceded below that “the 1873 executive order was

intended to convey or reserve title to submerged

lands.” Jd. at 13. Hence, the only issue before the court

of appeals was whether “Congress’s actions prior to

statehood clearly indicate its acknowledgment, express

recognition, and acceptance of the executive reser-

vation, thereby establishing its intent to defeat the

State’s title.” Ibid. The court of appeals concluded,

based on a careful examination of the historical record,

that Congress intended to deprive Idaho of title to a

portion of the lake and river beds. Jd. at 13-27.

Idaho argues that “the court of appeals’ misapplica-

tion of the holdings in Alaska creates a series of con-

16

flicts that should be resolved through the granting of

the petition for certiorari.” Pet. 19. Idaho is mistaken.

As a preliminary matter, Idaho is wrong in its view that

this Court should review a court of appeals’ supposed

“misapplication” of settled law to the facts of a particu-

lar case. This Court does not grant review merely to

examine the asserted “misapplication of a properly

stated rule of law.” Sup. Ct. R. 10. Furthermore, what

Idaho describes as “conflicts” (Pet. 19) are merely

Idaho’s disagreements with the lower courts’ factbound

conclusions respecting the historical record in this case.

At bettom, Idaho simply invites this Court to assume

the court of appeals’ role and engage in error review.

There is no reason for the Court to do so. The

unanimous court of appeals affirmed the district court’s

“lengthy and meticulous decision” (Pet. App. 2-3) on a

fact-dependent issue that affects a single tract of land

within a particular judicial district, and Idaho did not

request rehearing or rehearing en banc on any issue in

the case. Idaho’s arguments in support of its petition

are unpersuasive.

2. Idaho first contends (Pet. 14-16) that the decision

of the court of appeals conflicts with decisions of the

Idaho Supreme Court, This contention is without

merit. None of the cases that Idaho cites addressed the

question presented below: whether the United States,

on behalf of the Tribe, retained submerged lands within

the Coeur d’Alene Indian Reservation at the time it

admitted Idaho to the Union—or, put another way,

whether Congress intended to defeat the State’s pre-

sumptive title to those lands. Indeed, none of those

cases addressed any federal question at all, much less

any question of ownership of the submerged lands

within the Tribe’s Reservation.

17

The cases that Idaho identifies involved the rights of

private landowners near or adjacent to Coeur d’Alene

Lake. Three of the four cases, by petitioner’s own

admission, addressed property or portions of the lake

outside the boundaries of the Tribe’s Reservation. See

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

Envt'l Alliance, Inc. v. Panhandle Yacht Club, Inc.,

671 P.2d 1085 (Idaho 1983); Bowman v. McGoldrick

Lumber Co., 219 P. 1063 (Idaho 1923). The fourth case

cited by petitioner, West v. Smith, 511 P.2d 1326 (Idaho

1973), did address the rights of an owner of property

within the exterior boundaries of the Reservation. In

that case, however, the Idaho Supreme Court specifi-

cally stated that the question of who held title was

immaterial to its decision, see id. at 1330, 1331, and that

it was not ruling on questions concerning rights

associated with the lake bed, see id. at 1334.

Moreover, to the extent that those cases addressed

the question of state ownership of the lake bed, they did

so only in the context of determining whether individ-

ual riparian landowners had specified rights with

respect to the lake by virtue of their riparian ownership

or, in the case of Kootenai Environmental Alliance, the

extent of the State’s authority to grant a lease under

the public trust doctrine.‘ The decisions did not

* Erickson reviewed the trial court’s determination of the

lake’s high water mark in order to determine whether title to

certain lands could be quieted to owners of land adjacent to the

lake. 970 P.2d at 2. Kootenai Environmental Alliance examined

whether the public trust doctrine precluded the State from grant-

ing a lease to a private club for certain docking facilities. See 671

P.2d at 1087. Bowman examined whether the owner of property

that did not extend to the high water mark of the lake had riparian

righis to the lake. 219 P. at 1064. West addressed whether a

houseboat moored to the lakebed could maintain a catwalk

18

consider the United States’ or the Tribe’s claims of title

to the submerged lands themselves in the southern one-

third of the lake. The state supreme court cases

accordingly do not give rise to a conflict with the court

of appeals’ decision in this case.

3. Idaho next contends (Pet. 16-19) that the decision

of the court of appeals “presents irreconcilable conflicts

with decisions of this Court.” The only decision of this

Court that Idaho cites, however, is Alaska, and the

court of appeals and the district court each explicitly—

and correctly—applied that decision to resolve this

case. See Pet. App. 11-12; id. at 37-38. Moreover, Idaho

acknowledges that the “conflict” it posits would not

“normally” provide “fertile ground for review on

certiorari.” Pet. 17. Idaho nevertheless urges this

Court to depart from its normal practice because sub-

merged lands disputes arise most frequently in the

Ninth Circuit (ibid.) and because this Court’s decision

in Alaska, which arose out of the Court’s original

jurisdiction, was “not intended to provide national

guidance or establish rules of general applicability”

(Pet. 18). Idaho is wrong in both respects.

First, submerged lands disputes like the one involved

here are not limited to the Ninth Circuit. Disputes over

the federal government’s pre-statehood reservation or

conveyance of submerged lands may arise in any

judicial district in which the federal government held

lands in territorial status. See, e.g., Utah Div. of State

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

to the Tenth Circuit in a case involving an executive

designation of a reservoir site located in what is now

the State of Utah); Choctaw Nation v. Oklahoma, 397

attached to the shore, adjacent to the plaintiff’s property, that

interfered with the piaintiff’s access to the lake. 511 P.2d at 1328.

19

U.S. 620 (1970) (certiorari to the Tenth Circuit in a case

involving an Indian reservation created by treaty and

patents and located in what is now the State of

Oklahoma); United States v. Holt State Bank, 270 U.S.

49 (certiorari to the Eighth Circuit in a case involving

an Indian reservation created by treaty and located in

what is now the State of Minnesota).°

Second, there is no basis for Idaho’s suggestion that

cases brought under this Court’s original jurisdiction—

which have included landmark decisions ranging from

Marbury v. Madison, 5 U.S. (1 Cranch.) 187 (1803), to

United States v. California, 332 U.S. 19 (1947)—fail “to

provide national guidance or establish rules of general

applicability.” Pet. 18. The Court’s decisions in original

actions have equal dignity with decisions rendered on

certiorari or appeal. Indeed, the Court’s decision in

Alaska reaffirmed generally applicable legal principles

that had previously been set out in Utah, Montana, and

Holt State Bank, and that control this case. As we have

noted, Idaho simply objects to what it views as “the

court of appeals’ misapplication” of those principles.

Pet. 19. Idaho’s objections are not only fact-based chal-

lenges respecting settled principles, but they are also

mistaken on the merits.

a. Idaho contends that the court of appeals mis-

applied Alaska because that court did not require a

showing that Congress “affirmatively intend[ed] to

defeat state title.” Pet. 19-22. Idaho is wrong. The

court of appeals applied Alaska’s explicit test, which

° Idaho also argues that disputes over submerged lands in

“executive order” reservations occur most frequently in the Ninth

Circuit. Pet. 17-18. But the Court’s decisions in Alaska, Utah, and

Montana do not suggest that a different legal standard would

apply to those reservations. Hence, there is no reason to create a

special certiorari rule for Executive Order reservations.

20

inquires “whether the United States intended to

include submerged lands within the [reservation] and to

defeat [the State’s] title to those lands.” Compare

Alaska, 521 U.S. at 36, with Pet. App. 12 (the congres-

sional action must manifest “an affirmative intent to

defeat state title”). As the court of appeals correctly

explained, “the test is whether Congress clearly in-

tended to defeat the State’s title to submerged lands.”

Id. at 21. The facts in this case, as found by the district

court, satisfy that standard. See id. at 21-25. As the

court of appeals explained, “Congress was heavily

involved in deciding the fate of the submerged lands set

aside for the Tribe’s benefit by executive order. Con-

gress treated the submerged lands as beneficially

owned by the Tribe—to the point of authorizing nego-

tiations for cession of whatever portion of the Tribe’s

submerged lands it was willing to sell.” Jd. at 24-25.

Congress, through its various legislative actions, includ-

ing its approval at statehood of Idaho’s constitutional

disclaimer of Indian lands, made its intentions “very

plain.” Alaska, 521 U.S. at 34 (quoting Holt State

Bank, 270 U.S. at 55).°

6 Idaho suggests that Congress directed negotiations in 1889

aimed at purchasing submerged lands that the Tribe held under

the 1873 Executive Order because it wanted “to secure the imme-

diate release of at least some of the Lake from its status as ‘Indian

country’” before turning the whole lake over to the State in 1890.

Pet. 21. That theory makes no sense. If Congress believed that

the Tribe had no right to the lake bed, it would not have authorized

negotiations aimed at acquiring whatever portion of those lands as

the Tribe “shall consent to sell.” Act of Mar. 2, 1889, ch. 412, 25

Stat. 1002. Indeed, Idaho’s theory suggests that Congress was en-

gaged in blatant trickery. Under Idaho’s view, Congress pur-

ported to authorize negotiations for the purchase of those sub-

merged lands that the Tribe would sell, but Congress intended to

transfer to the State, without payment to the Tribe, whatever

21

b. Idaho next contends (Pet. 22-26) that the court of

appeals misapplied this Court’s teachings with respect

to the relevance of the purpose of a reservation in

determining congressional intent. Idaho is plainly

mistaken. This Court’s decisions recognize that “the

purpose of a conveyance or reservation is a critical

factor in determining federal intent.” Alaska, 521 U.S.

at 39. The Court specifically cited, as an example, its

ruling in Alaska Pacific Fisheries v. United States, 248

U.S. 78, 87-89 (1918), that a “reservation of [a] ‘body of

lands’ in southeastern Alaska for Metlakahtla Indians

included adjacent waters and submerged lands, because

fishing was necessary for Indians’ subsistence.”

Alaska, 521 U.S. at 39. The court of appeals directly

applied the Alaska decision to the facts presented by

the Coeur d’Alene Reservation. See Pet. App. 14-15

(discussing the relevance of a reservation’s purpose).

The court of appeals noted that, “[a]s the district court

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

was dependent on its fisheries in 1873.” Jd. at 17.

Furthermore, the Tribe’s continued insistence on bene-

ficial ownership of a portion of the lake and river in

1889 manifests the Tribe’s continued reliance on those

water resources and submerged lands at the time of

Idaho’s admission to the Union in 1890. See id. at 18,

73, 75. If Congress had believed that the Tribe no

dJonger needed those resources at the time of Idaho’s

admission, Congress would have sought to acquire the

lands the Tribe decided to retain. There is no basis for inferring

that Congress had that intention. Rather, the historical record

shows that Congress understood the 1873 Executive Order to have

reserved most of the lake bed for the benefit of the Tribe and that

the future State of Idaho would be entitled to only those portions

that Congress reacquired through negotiations with the Tribe.

See Pet. App. 21-23.

|

22

entire lake and river bed, rather than only “such por-

tions of [the Tribe’s] reservation not agricultural and

valuable chiefly for minerals and timber as such tribe

shall consent to sell.” Act of Mar. 2, 1889, ch. 412, 25

Stat. 1002 (emphasis added). Cf. Pet. 25-26 (quoting the

Act of March 2, 1889, but omitting the emphasized

phrase).

ce. Finally, Idaho contends that “(t]he court of ap-

peals’ decision ignores the fact that Congress purpose-

fully deferred its ratification of the Reservation until

after statehood.” Pet. 26-29. Idaho’s factbound chal-

lenge is both wrong and inconsequential. The court of

appeals did address that issue. The court recognized

that, following Idaho’s admission—and Congress’s

ratification of Idaho’s disclaimer of all lands “owned or

held by any Indians or Indian tribes,” Idaho Const. Art.

XXI, § 19—Congress ratified both the 1887 and 1889

agreements. Pet. App. 8. The court of appeals properly

accepted the obvious import of Congress’s actions:

Congress intended to admit Idaho to the Union while

at the same time honoring the United States’ agree-

ments with the Coeur_d’Alene Tribe. Jd. at 23. Con-

gress could do so only by retaining title to the su-

merged lands at issue here for the benefit of the Tribe.

Id. at 81. If Congress had intended to deprive the Tribe

of ownership of the residual portion of the lake

bed—and deny the Tribe the benefit of the bargain the

parties had made—Congress would have refused to

honor those agreements or would have modified them

to exclude the lake and river bed. Instead, Congress

ratified the 1887 and 1889 agreements without any

modification of the final reservation boundaries set out

in the later agreement, and thereby confirmed what its

pre-statehood actions made clear: The United States

23

retained a portion of the bed of Coeur d’Alene Lake and

the St. Joe River for the benefit of the Tribe.’

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

Lois J. SCHIFFER

Assistant Attorney General

JAMES C. KILBOURNE

KATHERINE J. BARTON

Attorneys

NOVEMBER 2000

7 Indeed, as explained above (see p. 9, supra), by the time Con-

gress passed the Idaho Statehood Act admitting Idaho to the

Union in July 1890, the Senate had already passed a bill to ratify

the 1887 and 1889 agreements with the Coeur d’Alene Tribe, and

the House Committee on Indian Affairs had already reported a

parallel bill to the House of Representatives. In doing so, there

was no suggestion that passage of the Statehood Act would be in

derogation of the agreements’ retentions of the lake and river bed

for the benefit of the Tribe. Congress thus obviously viewed its

approval of the Statehood Act and of the agreements with the

Tribe as consistent and complementary. The court of appeals

therefore properly gave effect to the text of the 1889 agreement

that preserved the southern portion of the lake and the relevant

portion of the St. Joe River for the Tribe.