# Opposition Brief — Idaho v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1726%3A05

## Record

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

## Text

) | NOY & 9000

No. 00-189 | i

{_

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1726%3A05. Public record. Not legal advice.