Petitioners Brief — Idaho v. United States

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= _ No. 00-189 ean 25. 200

In The eee

Supreme Court of the United—States---—--——

STATE OF IDAHO,

Petitioner,

UNITED STATES OF AMERICA, ET AL.,

Respondents.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF FOR PETITIONER

ALAN G. LANCE

Attorney General

CuivE J. STRONG

Deputy Attorney General

Chief, Natural Resources Division

STEVEN W. STRACK*

Deputy Attorney General

Office of the Attorney General

State of Idaho

700 W. Jefferson Street, Rm. 210

P.O. Box 83720

Boise, Idaho 83720-0010

(208) 334-2400

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

In United States v. Alaska, 521 U.S. 1 (1997), this Court

held, in the context of a statehood act, that congressional

ratification of an executive order reservation known to

contain submerged lands may imply an affirmative intent

to defeat state title to such submerged lands. The ques-

tion presented here 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 occupying an executive order reservation for

the purchase of lands “not agricultural and valuable

chiefly for minerals and timber,” with the purpose of

releasing submerged lands from the reservation.

PARTIES

The parties_to the proceedings before the Court of

Appeals for the Ninth Circuit were the State of Idaho, as

the appellant and cross-respondent, the United States of

America, as respondent, and the Coeur d’Alene Tribe, as

respondent and cross-appellant.

PPR Stet ae ee

a ELLE ERLE

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TABLE OF CONTENTS

Page

eee ecb uge geese cs bsenecccessssees 1

EE Oe 1

Statutory Provisions Involved...................... 1

CMLL eee G ch Gk Gh aba access sus isevicoeess 2

TE SUE Gg sacs c isd sccecssccessceccs 19

CREE AAG CARA SAGs DAG So Rv SS ees ss ereetsceee 21

RCNA e Sh wo 6 nn bere discs ver ddecces 50

TABLE OF AUTHORITIES

Page

CASES

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

Ee eee er en errr re eer eo 5

Burrus v. Edward Rutledge Timber Co., 202 P. 1067

Debt VE. 0 6ikcae ind canes aaesireten ee 3

Callahan v. Price, 146 P. 732 (Idaho 1915)............. 5

Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970)..... passim

Confederated Bands of Ute Indians v. United States,

Se TED. WP CRD oo one ncn cuasdsenetenks cose 38, 42

Edwards v. Severin, 785 P.2d 1022 (Mont. 1990)....... 26

Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997)... 2, 6, 22

Johnson v. Johnson, 95 P. 499 (Idaho 1908)............. 5

Kootenai Environmental Alliance, Inc. v. Panhandle

Yacht Club, 671 P.2d 1085 (Idaho 1983)............. 5

Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367

Ce ook cis bie ce akaaaciesdae vas eas 19, 22, 33, 34

Minnesota v. Mille Lacs Band of Chippewa Indians,

Oe RP. Ee CE so eis ead dn yncwseenmecevevns 47, 48

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

Northern Pac. Ry. Co. v. Hirzel, 161 P. 854 (Idaho

Sis sk nnce dnd ca ceekes Rese aee ee peerbaeks 5

Oregon ex rel. State Land Bd. v. Corvallis Sand &

eo gt me Rp Brey ere 24

Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845)..... 23, 41

TABLE OF AUTHORITIES —- Continued

Puyallup Tribe, Inc. v. Washington Dept. of Game, 433

oS 8 Sr ee ee ee eee 48

Shephard v. Coeur d’Alene Lumber Co., 101 P. 591

OR, ER arrears ner tse antenna poner yt ee 5

Shively v. Bowlby, 152 U.S. 1 (1894)....19, 22, 23, 24, 41

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

United States v. Holt State Bank, 270 U.S. 49 (1926)

bale ache bie oe hawk bake KR RE Rae owen 20, 24, 27, 43, 44

United States v. Idaho, 210 F.3d 1067 (9th Cir. 2000) ..... 1

United States v. Idaho, 95 F.Supp.2d 1094 (D. Idaho

UR any ear Gene Ge See Qn ys gen teem gE iy eM 1

United States v. Louisiana, 363 U.S. 1 (1960).......... 23

United States v. Oregon, 295 U.S. 1 (1934)......... 22, 24

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

Ph Eee er re rere rer Ter eae passim

West v. Smith, 511 P.2d 1326 (Idaho 1973) ............ 4

CONSTITUTIONS, STATUTES AND RULES

Act of May 15, 1886, 24 Stat. 29........ 1, 9, 34, 35, 44

Act of May 30, 1888, 25 Stat. 160............. a, 20

Act of February 22, 1609, 25 Stat. 676........6.5565:. 14

Act of March 2, 1889, 25 Stat. 980 .............. passim

Act Of Juty Di. TOPO, BE FORE. BIR. o's occ esas 35, 48

Act of Match 5, 1071, 26 Fiat. GOP . .0.5 26 cccvesess 2, %6

ek OE Te Se es EE bo k's hac adine sivas 16

TABLE OF AUTHORITIES - Continued

Page

Act of June 21, 1966, DE De. Bee oes bie seadvicecccecss 2

Alaska Statehood Act, Pub. L. 85-508, 72 Stat. 339 :

(1998)... s0s0asae pee anneeeeee eee ates 31, 32, 39

Fort Laramie Treaty of May 7, 1868, 15 Stat. 649.... 26

Treaty of Dancing Rabbit Creek, Sept. 27, 1830, 7

Stat. 333 ...scvéuvncueke eee eae wean enieesaae 25

28 ULS.C. & U2EG GRU ie nicshe eee ceca na ceetedesiess 1

28 U.S.C. § 1508 Ca kee ieee ens as ciee inc incass 16

28 USA. § 13006 CRP nk ks coreec bet canekcansaces 16

28 US.C. § 1906 THR nd vcbnnvehueeessideesst es ces 16

28 US.C. § 19628 COUR ssid carina ened on tanecs 16

28 USC. § 1367 (RID kvcccw duce ced ein titans cinesis 16

28 U.S.C. § 2202 CRIED) icin c even c ih cies ceekehvess 16

Idaho Const., Art Zi, 3 UP ssickckicnciversassy 15, 48, 49

1903 Idaho Sess. LOWE GP ic ccccisavis as vesdisncnsniss 3

Idaho Code § 47-1323 (Rap iicbssvsossnie desc cnteeenes 4

idaho Code § 56-1301 (0906)... cccisveswnvasevvassies 4

Idaho Code § G7-G2U2 (HDR ss cnnsee see bsSicdavesisads 4

Idaho Code § 67-4212 (Supp. 2000)................... 4

Idaho Code § 67-4506. (EWP tac caccs000s0s uss sense dees 4

Idaho Code § 67-4305 (Supp. 2000)................... 4

Idaho Code § 70-201 (iO pee xscsicvinds cucdsveseoaeees 4

Idaho Code § 7UP206 (Iii) ss sccidoaivablaks satan 4

Vii

TABLE OF AUTHORITIES - Continued

Page

MIscELLANEOUS

CUD s oo hed dace ckeesecewnnn cae 3, 15, 16

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

H. R. Rep. No. 2988, 51st Cong., 1st Sess. (1890) .... 15

H. R. Rep. No. 4053, 50th Cong., 2d Sess. (1889) ..... 3

S. Ex. Doc. No. 14, 51st Cong., 1st Sess. (1889)...... 47

S. Ex. Doc. No. 76, 50th Cong., 1st Sess.

AS CUNAN CAEN CA Wun ec Wad as'e svn es 12, 13, 38, 47

S. Misc. Doc. No. 36, 50th Cong., 1st Sess.

Se IE A et Cee er eee ere 10, 11, 12

2 Charles J. Kappler, Indian Affairs: Laws and

ices cheek sa 6315 Creo eRe bee ea LS 26

Statistical Record of Native North Americans (M.

8 | rr eT r rer TTT eee TTT eee ere 3

OPINIONS BELOW

The decision of the Ninth Circuit Court of Appeals

(Pet. App. 1-30) is reported at 210 F.3d 1067 (9th Cir.

2000). The decision of the district court (Pet. App. 31-86)

is reported at 95 FSupp.2d 1094 (D. Idaho 1998).

JURISDICTIONAL STATEMENT

The court of appeals entered its judgment on May 2,

2000. The petition for a writ of certiorari was filed with

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

is invoked under 28 U.S.C. § 1254.

STATUTORY PROVISIONS INVOLVED

The Indian Department Appropriations Act of May

15, 1886, 24 Stat. 29, provides in relevant part:

To enable the Secretary of the Interior to negoti-

ate with .. . the Coeur d’Alene Indians for the

cession of their lands outside the limits of the

present Coeur d’Alene reservation to the United

States, fifteen thousand dollars, or so much

thereof as may be necessary, to be immediately

available; but no agreement made shall take

effect until ratified by Congress.

The Indian Department Appropriations Act of March

2, 1889, provides in relevant part:

That the Secretary of the Interior be, and he is

hereby, authorized and directed to negotiate

with the Coeur d’Alene tribe of Indians for the

purchase and release by said tribe of such por-

tions of its reservation not agricultural and valu-

able chiefly for minerals and timber as such

tribe shall consent to sell, on such terms and

conditions as shall be considered just and equi-

table between the United States and said tribe of

Indians, which purchase shall not be complete

until ratified by Congress and for the purpose of

such negotiation, the sum of two thousand dol-

lars, or so much thereof as may be necessary, is

hereby appropriated; the action of the Secretary

of the Interior hereunder to be reported to Con-

gress at the earliest practicable time.

Act of March 2, 1889, 25 Stat. 980, 1002.

The relevant portions of the Indian Department

Appropriations Act of March 3, 1891, 26 Stat. 989, 1027,

which ratified two cession agreements with the Coeur

d’Alene Tribe, are set out in the Joint Appendix at 376-88.

The Act of May 30, 1888, 25 Stat. 160, which granted a

railroad right-of-way across the Coeur d’Alene Indian

Reservation, is set out in the Joint Appendix at 137-40.

STATEMENT

At issue in this case are the beds and banks, or

submerged lands, of those portions of Coeur d’Alene

Lake and its tributary, the St. Joe River, that lie within the

exterior boundaries of the Coeur d’Alene Indian Reserva-

tion. As this Court has previously remarked, Coeur

d’Alene Lake is one of the nation’s “most beautiful

lakes.” Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 264

(1997). Although a portion of the Lake lies within the

exterior boundaries of the Reservation, the land sur-

rounding the Lake is owned predominately by non-

Indians, as is most land within the Reservation.! Of the

1 By the Act of June 21, 1906, 34 Stat. 335, the Coeur d’Alene

Reservation was allotted, and the surplus lands sold to non-

Indians.

Reservation’s 5,802 residents, only 749 are Native Ameri-

cans. Statistical Record of Native North Americans, 1036 (M.

Reddy. ed. 1993).

The State of Idaho has always had a special relation-

ship to the Lake. In 1890, when Congress was debating

Idaho’s admission to the Union, one of the questions

Congress addressed was whether the Idaho Territory had

“the requisite population and resources to entitle [it] to

statehood.” H. R. Rep. No. 4053, 50th Cong., 2d Sess. 1

(1889). During these congressional debates, Coeur

d’Alene Lake and its tributaries were frequently men-

tioned as important resources justifying Idaho’s state-

hood.2

After statehood, early Idaho laws focused on the use

of Coeur d’Alene Lake and its tributaries as commercial

corridors for the transport of lumber. In 1903, the Idaho

Legislature designated “Coeur d’Alene Lake and all of

the streams tributary to and emptying into the same” as a

lumber district. 1903 Idaho Sess. Laws 89.3

In later years, the State began addressing the need to

preserve the Lake for public use. In 1927, the Idaho

See Argument of F.T. Dubois, in H. R. Rep. No. 4053, 50th

Cong., 2d Sess. 56 (1889) (“lakes whose waters are as clear as

crystal are plentifully scattered throughout the Territory

. . . [t]he largest of these are Coeur d’Alene and Pend

Oreille . . . Lake Coeur d’Alene is about 30 miles long and 4

miles wide, on which a daily line of steamers runs”); Remarks of

Mr. Dorsey, 21 Cong. Rec. 2929 (noting that Idaho’s waterways

included the Spokane River, the Coeur d’Alene River, and the

St. Joe River); Remarks of Mr. Dubois, id. at 2938 (noting that

Coeur d’Alene Lake was an “important lake” of Idaho).

* Lumber districts were limited to certain designated

waterways, referred to later in the same act as “waters of this

State.” 1903 Idaho Sess. Laws 89, 93.

Legislature declared submerged lands under Coeur

d’Alene Lake “to be devoted to a public use in connection

with the preservation of said [lake] in [its] present condi-

tion as a health resort and recreation piace for the inhabi-

tants of the state. ... ” Idaho Code § 67-4305 (Supp. 2000).

The State also appropriated the waters of Coeur d’Alene

Lake “in trust for the peopie of the state of Idaho,” in

order to preserve the water “for scenic beauty, health,

recreation, transportation and commercial purposes. . . . ”

Idaho Code § 67-4304 (1995). Recreational opportunities

were also preserved through the establishment of two

state parks along the shores of Coeur d’Alene Lake and

the St. Joe River. Idaho Code §§ 67-4202, 4212 (1989 &

Supp. 2000). Both parks are within the exterior bound-

aries of the Coeur d’Alene Reservation.

Idaho also acted to protect the public’s rights to the

Lake and its tributaries. In 1931, the Idaho Legislature

created a commission to “study and investigate ways and

means of eliminating from the Coeur d’Alene River and

Coeur d’Alene Lake, so far as practicable, all industrial

wastes which pollute or tend to pollute the same... . ”

Idaho Code §§ 70-201, 204 (1999). Idaho prohibited

dredge mining on “[t]he St. Joe River, including tribu-

taries, from its origin to its confluence with Coeur

d’Alene lake... . . ” Idaho Code § 47-1323 (1997). Idaho

regulated encroachments upon Coeur d’Alene Lake to

protect “property, navigation, fish and wildlife habitat,

aquatic life, recreation, aesthetic beauty and water qual-

ity... .” Idaho Code § 58-1301 (1994).

State courts confirmed state title to the submerged

lands of the Lake, including those portions within the

boundaries of the Coeur d’Alene Indian Reservation.

West v. Smith, 511 P.2d 1326, 1329-30 (Idaho 1973). The

Idaho courts have also confirmed that the primary uses of

the Lake are public in nature. See Shephard v. Coeur d'Alene

Lumber Co., 101 P. 591, 592 (Idaho 1909) (holding Coeur

d’Alene Lake “is a public highway”); Burrus v. Edward

Rutledge Timber Co., 202 P. 1067, 1068 (Idaho 1921), quot-

ing Northern Pac. Ry. Co. v. Hirzel, 161 P. 854 (Idaho 1916)

(holding that State holds bed of Coeur d’Alene Lake “for

the use and benefit of the whole people”); Kootenai Envi-

ronmental Alliance, Inc. v. Panhandle Yacht Club, 671 P.2d

1085, 1088 (Idaho 1983) (applying public trust doctrine to

bed of Coeur d’Alene Lake).4

For reasons unknown to the State, the federal gov-

ernment waited over 100 years before challenging Idaho’s

assumption of sovereignty over the submerged lands of

Coeur d’Alene Lake and its navigable tributaries. It was

not until 1994 that the government brought an action to

assert ownership of submerged lands within the current

boundaries of the Coeur d’Alene Reservation, excluding

* Early Idaho court decisions created some confusion over

proprietary rights to the submerged lands of the Lake and other

navigable waters within Idaho. The Idaho Supreme Court

mistakenly ruled that Idaho had adopted the English common

law principle limiting sovereign title to those rivers or streams

affected by the tide, with the beds of nontidal streams owned in

fee by the riparian owner. Johnson v. Johnson, 95 P. 499, 502-03

(Idaho 1908). The Idaho Supreme Court later Overruled its

earlier decision, Callahan v. Price, 146 P. 732, 735 (Idaho 1915),

and even repudiated it as “clearly a legislative act and not

judicial.” Northern Pac. Ry. Co. v. Hirzel, 161 P. 854, 859 (Idaho

1916). Thereafter, the Idaho courts have consistently recognized

and confirmed state title to all submerged lands within the

State, including Coeur d’Alene Lake. E.g., Bowman v. McGoldrick

Lumber Co., 219 P. 1063, 1065 (Idaho 1923); Kootenai

Environmental Alliance, Inc. v. Panhandle Yacht Club, Inc., 671 P.2d

1085, 1088 (Idaho 1983).

submerged lands within Heyburn State Park, which lies

within the Reservation boundaries.°®

The government’s action was filed in the Federal

District Court for the District of Idaho, and the Coeur

d’Alene Tribe intervened. In its ruling for the government

and the Tribe, the district court made extensive factual

findings in this case, which are not in dispute. As that

court found, before the arrival of European settlers, the

Coeur d’Alene Tribe occupied millions of acres in north-

ern Idaho and northeastern Washington, centered on

Coeur d’Alene Lake, the Coeur d’Alene River, the St. Joe

River, and the Spokane River. Pet. App. 43. The Tribe’s

villages were located around the Lake and the rivers,

which provided fish, game, and plants ry to the

Tribe’s subsistence. Pet. App. 43-45.

In the 1840s, the Coeur d’Alenes, with the help of

Jesuit missionaries, began to cultivate small garden plots.

Pet. App. 46. When non-Indian settlers began to arrive in

northern Idaho, concerns arose over potential conflicts

between the Tribe’s rights of occupancy and the land

claims of the settlers. In response, President Johnson, in

1867, established a small reservation for the Tribe in the

Hangman Valley, which lies some miles south of Coeur

d’Alene Lake. Pet. App. 50. Only a small sliver of the

5 The federal government’s action against the State

followed on the heels of an unsuccessful action brought by the

Coeur d’Alene Tribe. In 1991 the Tribe brought a quiet title

action against the State of Idaho in federal district court,

claiming ownership of submerged lands within both the current

and former boundaries of the Coeur d’Alene Reservation. The

Tribe’s claims against the State were dismissed as a violation of

the State’s sovereign immunity. The dismissal was ultimately

upheld by this Court in Idaho.v. Coeur d'Alene Tribe of Idaho, 521

U.S. 261 (1997).

‘ cae

Lake lay within the boundaries established by President

Johnson. Id.

The Tribe was apparently unaware of the 1867 Reser-

vation; in 1871 they sent a petition to the Commissioner

of Indian Affairs requesting that the farmlands in the

Hangman Valley be set aside for their use. Id. In 1872,

they sent a second petition, requesting the addition of the

valleys along the St. Joe and Coeur d’Alene Rivers. Pet.

App. 50-51. In explaining their needs, the Tribe wrote:

[W]e are not as yet quite up to living on farm-

ing: with the work of God we took labor too, we

began tilling the ground and we like it: though

perhaps slowly we are continually progressing;

but our unaided industry is not as yet up to the

white man’s. 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.

Pet. App. 51; App. 27.6

~ In 1873, the Commissioner of Indian Affairs directed

a three member commission to visit non-treaty tribes

within Idaho and induce them to settle upon designated

reservations. Pet. App. 54. The commissioners met with

conflicting assessments of the Tribe’s needs. Several reports

emphasized the Tribe’s commitment to farming, while other

accounts noted a continued reliance on fishing. Pet. App. 52.

The trial court concluded that the estimates of tribal reliance on

farming were not necessarily based on personal knowledge, and

were inflated by cultural and personal bias, and gave greater

weight to the accounts depicting the Tribe as reliant on fishing.

Pet. App. 52-53. One letter emphasized by the trial court was

from surveyor David P. Thompson, who Suggested enlarging

the reservation to include fisheries on Coeur d’Alene Lake. Pet.

App. 52; App. 30-31.

representatives of the Coeur d’Alene Tribe, and, in four

days of negotiations, agreed to establish a reservation

that included the valleys of the St. Joe and Coeur d’Alene

Rivers, and the lands surrounding all but the extreme

northern portion of Coeur d’Alene Lake. Pet. App. 55-56;

App. 32-37. The agreement provided that it was not bind-

ing until ratified by Congress. Pet. App. 56.

One member of the commission, Idaho Territorial

Governor Thomas Bennett, explained in a letter to an

Idaho newspaper that the Tribe had demanded an exten-

sion of their reservation to include fishing and mill privi-

leges on the Spokane River. Pet. App. 56-57; App. 38-41.

The official report to the Commissioner of Indian Affairs,

however, written by commission member John Monteith,

made no mention of such demands, but explained that

the Reservation boundaries were drawn to include Indian

farms and to exclude lands claimed by white settlers. Pet.

App. 56. The boundary along the Spokane River was

drawn to avoid the cost of building a steam mill for the

Tribe by making use of readily available water power. Id.

Three months after the signing of the agreement,

President Ulysses S. Grant, on November 8, 1873, set

apart a reservation for the Tribe, incorporating the

boundaries described in the agreement. Pet. App. 57. The

executive order was the result of a request from the

Commissioner of Indian Affairs, who informed the Secre-

tary of Interior that the order was needed to protect the

agreed-upon lands “from trespass by white persons

pending the action of Congress upon said agreement.” Id.

Although the Commissioner of Indian Affairs had

requested the executive order as a temporary measure

pending ratification, Congress never ratified the agree-

ment. The lack of congressional action resulted in the

executive order remaining in place through the next

decade. This state of affairs was not Satisfactory to the

Tribe, and on March 23, 1885, they submitted a petition to

the federal government requesting new negotiations, so

that the Tribe would be “compensated for such portion of

their lands not now reserved to them; [and] that their

present reserve may be confirmed to them.” Pet. App. 68,

quoting H. R. Rep. No. 1109, 51st Cong., Ist Sess. 42

(1890).

The next year, Congress authorized negotiations with

the Tribe for the cession of their lands outside the limits

of the 1873 Reservation, and provided that any agreement

reached would not take effect until ratified by Congress.

Act of May 15, 1886, 24 Stat. 29, 44; App. 50. The autho-

rized negotiations occurred in 1887, resulting in a pro-

posed agreement that provided that “the Coeur d’Alene

Reservation shall be held forever as Indian land and as

homes for the Coeur d’Alene Indians.” App. 379. The

agreement also provided that it would “not be binding on

either party until ratified by Congress.” App. 382.

Around this same time, however, concerns arose

regarding the Department of Interior’s policies restricting

the use of Coeur d’Alene Lake by non-Indians. Around

1880, steamboats had begun using the Lake to transport

people and goods between the city of Coeur d’Alene,

which lay outside the Reservation, and a landing on the

Coeur d’Alene River, which lay within the Reservation.

Pet. App. 69. From the landing, goods were transported

overland to mining camps in the upper reaches of the

Coeur d’Alene River. The steamboat Operators trans-

ported liquor to the mines, and sold liquor to passengers

while traveling over the Lake. Id.; App. 52-58. When this

liquor trade was discovered in 1886, the Department of

Interior moved quickly to quash the transportation of

liquor across the Lake, citing statutes prohibiting the

introduction of liquor into “Indian country.” Pet. App. 69.

Around this same time, government agents began eject-

ing non-Indians who were fishing and camping along the

Lake and its tributaries. Pet. App. 70.7

Concerns over the restrictions on non-Indian use of

the Lake prompted Congress to delay ratification of the

1887 agreement, in favor of investigating the situation. In

1888, the Senate passed the following resolution:

Whereas it is alleged that the present area of |

the Coeur D’Alene Indian Reservation, in the

Territory of Idaho, embraces 480,000 acres of

land; that there are, according to the statistics in

the Indian Bureau, only about 476 Indians in the

tribe now occupying such reservation, or more

than 1,000 acres to each man, woman, and child;

that Lake Coeur D’Alene, all the navigable

waters of Coeur D’Alene River, and about 20

miles of the navigable part of Saint Joseph River,

and part of Saint Mary’s, a navigable tributary

of the Saint Joseph, are embraced within this

reservation, except a shore-line of about 3 1/2

miles at the north end of the lake, it being

alleged that this lake and its rivers tributary

constitute the most important highways of com-

merce in the Territory of Idaho, and are in fact

the only navigable waters, except Snake River,

now used for steam-boat navigation in the Terri-

tory; that all boats now entering such waters are

7 According to the report of a government inspector in

1886, the steamboats would stop at several landings within the

Reservation for the purpose of “putting on and taking

off . . . fishing and excursionist parties, with their supplies.”

App. 53.

subject to the laws governing the Indian country

and all persons going on such lake or waters

within the reservation lines are trespassers; and

Whereas it is further alleged that the

Indians now on such reservation are located in

the extreme southwest corner of the same

around De Smedt Mission, near the town of

Farmington, in Washington Territory, where the

land is good for agriculture; and it being further

alleged that all that part of such reservation

lying between Lake Coeur D’Alene and Coeur

D’Alene River and that part between the Coeur -

D’Alene River and Saint Joseph River is a terri-

tory rich in the precious metals and at the same

time being of no real use or benefit to the

Indians: Therefore,

Resolved, That the Secretary of the Interior

be, and he is hereby, directed to inform the

Senate as to the extent of the present area and

boundaries of the Coeur D’Alene Indian Reser-

vation in the Territory of Idaho; whether such

area includes any portion, and if so, about how

much of the navigable waters of Lake Coeur

D’Alene, and of Coeur d’Alene and St. Joseph

Rivers; about what Proportion of said reserva-

tion is agricultural, grazing and mineral land

respectively; also the number of Indians occupy-

ing such reservation; also on what portion of

such reservation the Indians now thereon are

located; also whether, in the opinion of the Sec-

retary, it is advisable to throw any portion of

such reservation open to occupation and settle-

ment under the mineral laws of the United

States, and, if so, precisely what portion; and

also whether it is advisable to release any of the -

navigable waters aforesaid from the limits of

such reservation.

S. Misc. Doc. No. 36, 50th Cong., Ist Sess. (1888); App.

116-17.

Several weeks later, the Secretary of Interior

responded by enclosing a report prepared by the Com-

missioner of Indian Affairs. The Commissioner’s report

concluded that “the reservation appears to embrace all

the navigable waters of Lake Coeur d’Alene, except a

very small fragment cut off by the north boundary of the

reservation which runs ‘in a direct line’ from the Coeur

d’Alene Mission to the head of the Spokane River.” S. Ex.

Doc. No. 76, 50th Cong., 1st Sess. 3 (1888); App. 123. The

Commissioner then turned to the question of “whether it

is desirable to release any of the navigable waters men-

tioned in the resolution from the limits of said reserva-

tion.” App. 126. The Commissioner began by stating: “In

approaching this question [of release of navigable

waters], I deem it proper to refer briefly to the character

and condition of the Indians occupying the reservation

and the situation of affairs as existing amongst them.” Id.

He noted that members of the Tribe “cultivate the soil

extensively, live in comfortable houses, dress like the

whites, wear short hair, and in all other respects live and

do as white people do. . .. They own large bands of cattle

and horses and an abundance of hogs and poultry.” App.

127.

The Commissioner concluded that “[t]here are few

Indians in the entire country, if we except the five civi-

lized tribes, who are as far advanced. ...” App. 126. The

Commissioner also noted that members of the Tribe did

not reside by the Lake, stating his belief that “all, or

nearly all” of the tribal members lived on farmlands in

the Hangman’s Creek area “lying south of the Lake Coeur

d’Alene and St. Joseph River.” Id. After reciting the above

facts relating to the Tribe's needs, the Commissioner con-

cluded that the Tribe retained its original Indian title to

lands within the boundaries of the Reservation:

[M]y own opinion is that the reservation might

be materially diminished without detriment to

the Indians, and that changes could be made in

the boundaries for the release of some or all of

the navigable waters therefrom, which would be

of very great benefit to the public; but this

should be done, if done at all, with the full and

free consent of the Indians, and they should, of

course, receive proper compensation for any

land so taken.

Just what portion of the reservation and

navigable waters should be segregated from the

reservation, I am unable to say. That, I think,

should be determined by negotiations with the

Indians.

In conclusion I will state that in my opinion

these Indians have all the original Indian rights

in the soil they occupy. They claimed the coun-

try long before the lines of the reservation were

defined by the executive order of 1873, and the

Present reservation embraces only a portion of

the lands to which they laid claim.

I think that when the present agreement

[i.e., the 1887 agreement] shall have been rat-

ified it will be an easy matter to negotiate with

them 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.

App. 129-32. -

Congress rejected the Commissioner of Indian

Affairs’ recommendation to ratify the 1887 agreement.

Instead, Congress inserted the following language in the

Indian Department Appropriations Act of March 2, 1889:

That the Secretary of the Interior be, and he is

hereby, authorized and directed to negotiate

with the Coeur d’Alene tribe of Indians for the

purchase and release by said tribe of such por-

tions of its reservation not agricultural and valu-

able chiefly for minerals and timber as such

tribe shall consent to sell, on such terms and

conditions as shall be considered just and equi-

table between the United States and said tribe of

Indians, which purchase shall not be complete

until ratified by Congress... .

Act of March 2, 1889, 25 Stat. 980, 1002; App. 144.

The directive to seek diminishment of the Reserva-

tion was prompted by the desire to obtain a release of at

least some of the navigable waters. Pet. App. 22, n.14. The

specific directions to the Secretary of Interior, however,

omitted any mention of submerged lands. Act of March 2,

1889, 25 Stat. at 1002; App. 144.

Significantly, the 1889 Act was the last action that

Congress took with regard to the Coeur d’Alene Reserva-

tion during the territorial period. In the summer of 1889,

a group of prominent Idaho politicians met in Boise,

Idaho, to draft a constitution for submission to Congress,

in the hope of gaining statehood for Idaho. Their action

was unusual, since Congress had not passed enabling

legislation authorizing the formation of a state constitu-

tion.’ In the absence of enabling legislation, the drafters

8 In the Act of February 22, 1889, Congress enabled North

Dakota, South Dakota, Montana and Washington to form

constitutions and state governments. 25 Stat. 676. The Act

required the state constitutions to contain ordinances

looked to other enabling acts for guidance, and included

Standard language disclaiming title to public lands and

lands owned or held by Indian tribes. Idaho Const., Art

21, § 19; App. 370-72.9

Despite the lack of enabling legislation, Congress

approved the Idaho Constitution on July 3, 1890, and

admitted Idaho into the Union as the 43rd State. Act of

July 3, 1890, 26 Stat. 215. By this time, the negotiations

with the Coeur d’Alene Tribe had been completed, and

the results submitted to Congress for approval. The Tribe

agreed to cede the northern portion of the Reservation.

App. 384. The boundaries of the diminished Reservation

bisected the Lake, with the southern third of the Lake

remaining within the boundaries of the Reservation,

while the northern two-thirds of the Lake, along with the

surrounding uplands, were excluded from the Reserva-

tion. Id.

The 1889 agreement and the 1887 agreement were

transmitted to Congress for ratification on December 18,

1889. H. R. Rep. No. 2988, 51st Cong., 1st Sess. 26 (1890);

App. 373-75. The agreements were bundled as a package

for consideration, partly because the Tribe had insisted

on a provision stating that the 1889 agreement would not

be binding on either party until ratification of the 1887

agreement. Pet. App. 8; App. 385.

Although the Senate passed a bill ratifying the 1887

and 1889 agreements on June 7, 1890, 21 Cong. Rec.

disclaiming title to “all lands... owned or held by any Indian or

Indian tribes.” Id. at 677.

° Although the district court cited this provision as

supporting its decision, Pet. App. 81-82, the court of appeals, in

reaching its conclusions, expressly disclaimed any reliance on ~

this provision. Pet. App. 24.

5769-70, App. 359-67, the House did not hold a vote on

the bill that year, Pet. App. 8, and the agreements were

not ratified until passage of the Indian Department’s 1891

annual appropriation bill on March 3, 1891, eight months

after Idaho’s admission to the Union. 26 Stat. at 1027;

App. 376-88.

The exterior boundaries of the Coeur d’Alene Reserva-

tion have remained the same since 1891, with one exception.

In 1893, Congress authorized negotiations to purchase the

townsite of Harrison, populated by non-Indians but located

within the Reservation. Act of March 3, 1893, 27 Stat. 612,

616. Harrison stood on the shores of Coeur d’Alene Lake,

immediately south of the mouth of the Coeur d’Alene River.

The final description of the ceded lands, as negotiated with

the Tribe, encompassed a one-mile rectangular strip of land

that included a corner of Coeur d’Alene Lake, since the

boundary of the cession descended one mile due south of the

mouth of the Coeur d’Alene River, then proceeded east. Pet.

App. 84-85; App. 392.

As previously discussed, the State exercised sover-

eignty over Coeur d’Alene Lake throughout the 20th

century. It was not until 1994 that the United States

sought to assert ownership of the submerged lands

underlying the southern end of Coeur d’Alene Lake and

the lower reaches of the St. Joe River. In its initial com-

plaint, filed in the Federal District Court for the District

of Idaho, the United States invoked federal court jurisdic-

tion under 28 U.S.C. §§ 1331, 1345, and 2202. The Coeur

d’Alene Tribe intervened, invoking federal court jurisdic-

tion under 28 U.S.C. §§ 1331, 1345, 1346, 1362, and 1367.

The State of Idaho counterclaimed, asserting sovereign

title to the submerged lands put at issue by the United

States. Pet. App. 32.

Following a two week trial, the federal district court,

based on the historic facts set out above, concluded that

the President, in setting aside the 1873 Reservation, had

clearly intended to include submerged lands within the

Reservation. Pet. App. 66. The court then turned to the

issue of congressional ratification. The court concluded

that by “authorizing the federal government to negotiate

with the Tribe for a release of the submerged lands,

Congress acknowledged that the Executive Order of 1873

had effectively conveyed ownership of those lands to the

Coeur d’Alenes.” Pet. App. 78. The court decreed tliat the

Tribe, and the United States as trustee, were “entitled to

the exclusive use, occupancy and right to the quiet enjoy-

ment of the bed and banks of all the navigable waters

within the current boundaries of the Coeur d’Alene

Indian Reservation,” excluding submerged lands within

Heyburn State Park. App. 8.

The State appealed, and the United States Court of

Appeals for the Ninth Circuit affirmed the district court’s

decision.!° Pet. App. 1-30. The court of appeals applied

the two-pronged test from United States v. Alaska, 521 U.S.

1 (1997), to determine, first, whether the executive branch

intended to include the submerged lands within the Res-

ervation, and second, whether Congress affirmatively

defeated state title to the submerged lands. Because the

State conceded, for purposes of appeal, that the executive

branch had intended, or by 1888 had interpreted, the 1873

Executive Order Reservation to include submerged lands,

10 The Tribe also filed a cross-appeal relating to the district

court’s refusal, on Eleventh Amendment grounds, to hear the

Tribe’s claims to submerged lands within Heyburn State Park,

which were excluded from the United States’ complaint. The

court of appeals affirmed the district court. Pet. App. 27-30.

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

Pet. App. 13.

The court of appeals acknowledged that the issue

under the second prong of the test is “whether the con-

gressional action at issue showed an affirmative intent to

defeat state title, that is, whether the ‘intention was defi-

nitely declared or otherwise made very plain.’ ” Pet. App.

12. The court of appeals, however, did not identify speci-

fic statutory language plainly declaring an affirmative

intent to defeat state sovereignty to submerged lands.

Nor did it identify any statute conveying submerged

lands to the Tribe. Rather, it concluded that “the affirma-

tive course of action on which Congress embarked in ~

1889 —- open-ended negotiations 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, includ-

ing submerged lands, had already passed to the Tribe.” Pet.

App. 23 (emphasis added).

The court of appeals also purported to adopt this

Court’s admonition in Alaska that “the purpose of a con-

veyance or reservation is a critical factor in determining

federal intent.” 521 U.S. at 39. The court of appeals,

however, explicitly declined to determine the purpose of

the Coeur d’Alene Reservation as understood by Con-

gress. Pet. App. 18-19. Rather, it held that it was neces-

sary to examine purpose only as it related to the

government’s goals at the time the executive branch

reserved the submerged lands. Id.

The court of appeals issued its decision on May 2,

2000. The State of Idaho filed a petition for a writ of

certiorari with this Court on July 25, 2000. The petition

was granted on December 11, 2000.

SUMMARY OF ARGUMENT

It is a rare and extraordinary thing for a sovereign

government to abrogate the public’s ownership of lands

underlying navigable waters. Submerged lands are tied in

a unique way to sovereignty, precisely because their natu-

ral and primary uses are public in nature. Shively v.

Bowlby, 152 U.S. 1, 11 (1894). Only sovereign ownership

assures that submerged lands will be maintained for the

benefit of the whole people. If such lands are to be

removed from common public use, it must be done with

deliberation, and only after full consideration of the con-

sequences. An intent to defeat sovereign title to sub-

merged lands must also be plainly stated, because such

an important decision would not be left for inference

from ambiguous language. Martin v. Waddell’s Lessee, 41

U.S. (16 Pet.) 367, 416 (1842).

For these reasons, the Court has carefully limited the

circumstances under which it will infer an intent to sever

submerged lands from sovereignty. While Congress, with

its possession of national and municipal sovereignty over

territories, may have the authority to sever submerged

lands from sovereignty, and prevent their passage to

future States, it has done so only in “the most unusual

circumstances.” Utah Div. of State Lands v. United States,

482 U.S. 193, 197 (1987). Within Indian reservations, an

intent to defeat state sovereign title to submerged lands

has been found only where Congress conveyed the lands

in fee to the occupant tribe, and promised the tribe the

lands would never be included within any future state.

Choctaw Nation v. Oklahoma, 397 U.S. 620, 625 (1970).

Where Congress has granted tribes rights other than full

fee title, including rights of occupancy or exclusive use,

the Court has not inferred an intent to defeat state sover-

eign title to submerged lands within Indian reservations.

United States v. Holt State Bank, 270 U.S. 49, 58-59 (1926);

Montana v. United States, 450 U.S. 544, 554 (1981).

Within other types of federal reservations, an intent

to defeat state title to submerged lands has been found

only where Congress made the determination that state

ownership would thwart the purposes for which the res-

ervation had been established, and expressly prevented

the state from assuming sovereignty and ownership over

the submerged lands. See generally United States v. Alaska,

521 U.S. 1 (1997). Notably, in both Choctaw Nation and

Alaska, the statutes in question addressed explicitly how

the assumption of statehood would affect both sover-

eignty and title within the federal reservations at issue. —

In the case of the Coeur d’Alene Indian Reservation,

Congress never addressed the question of whether the

future State of Idaho would be denied sovereign title to

submerged lands within the Reservation. Prior to state-

hood, there were two congressional actions relating to

submerged lands within the Reservation. The first was a

Senate inquiry into allegations that steamboats on Coeur

d’Alene Lake were “subject to the laws governing the

Indian country and [that] all persons going on such lake

or waters within the reservation lines are trespassers.”

App. 116-17. After being informed by the Department of

Interior that it interpreted the Coeur d’Alene Indian Res-

ervation to embrace the submerged lands of Coeur

d’Alene Lake, Congress ordered negotiations to diminish

the Reservation, through the purchase of lands from the

Coeur d’Alene Tribe. In ordering the negotiations, how-

ever, Congress did not convey the submerged lands to the

Tribe; it did not affirm the Reservation boundaries that

embraced the submerged lands; it did not direct that the

public be denied access to the submerged lands or the

overlying waters; and it did not address whether the

submerged lands would later pass to the State as an

incident of its sovereignty. Rather, Congress repudiated

the Reservation as it then existed, directed its diminish-

ment, and drafted its description of the lands to be pur-

chased so as to avoid any implication that it was

recognizing tribal title to the submerged lands. Act of

March 2, 1889, 25 Stat. 980, 1002 (the “1889 Act”).

In short, Congress did not “purport to defeat the

entitlement of future States to any land reserved,” and

made “no mention of the States’ entitlement to the beds

of navigable rivers and lakes upon entry into statehood.”

Utah Div. of State Lands, 482 U.S. at 208. Further, neither

the 1889 Act, nor its legislative history, suggest that Con-

gress concluded that the future assumption of state sover-

eign title to submerged lands would thwart the purposes

of the diminished Coeur d’Alene Indian Reservation. To

the contrary, the language of the 1889 Act strongly

implies that the primary purpose of the diminished Res-

ervation was to provide lands to meet the agricultural

needs of the Coeur d’Alene Tribe, and the legislative

history described the Tribe’s members as successful

farmers. Thus, exclusive tribal control of submerged

lands, and exclusion of the public uses associated with

state sovereign title, were not necessary to fulfill the

purposes of the diminished Reservation.

ARGUMENT

Submerged lands, are, by their nature, “incapable of

ordinary and private occupation, cultivation, and

improvement; and their natural and primary uses are

public in their nature. ...” Shively v. Bowlby, 152 U.S. 1,

11 (1894). In ancient England, submerged lands were held

by the King “for the benefit of the whole people.” Utah

Div. of State Lands v. United States, 482 U.S. 193, 196 (1987).

Following the issuance of the Magna Carta, submerged

lands became so identified with sovereignty that it was

doubted whether “the king or any particular subject can

gain a propriety exclusive of the common liberty.” Martin

v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367, 412 (1842). If

anything, American law ties submerged lands even more

firmly to sovereignty. American law rejected the sover-

eign’s rights of private property in submerged lands, jus

privatum, that was recognized in England apart from the

public’s right to submerged lands, or jus publicum. Idaho v.

Coeur d'Alene Tribe, 521 U.S. 261, 286 (1997). These “devel-

opments in American law are a natural outgrowth of the

perceived public character of submerged lands, a percep-

tion which underlies and informs the principle that these

lands are tied in a unique way to sovereignty.” Id.

Because submerged lands are so identified with sov-

ereignty and public use, issues involving their ownership

cannot be analogized to property transactions. “Domin-

ion over navigable waters and property in the soil under

them are so identified with the sovereign power of gov-

ernment that a presumption against their separation from

sovereignty must be indulged, in construing either grants

by the sovereign of the lands to be held in private owner-

ship or transfer of sovereignty itself.” United States v.

Oregon, 295 U.S. 1, 14 (1935). Ownership can be vested in

someone other than the rightful sovereign only after affir-

mative steps are taken to sever the lands “from the pre-

rogative powers of government.” Martin, 41 U.S. (16 Pet.)

at 410.

The Constitution of the United States parcels sover-

eignty between the States and the federal government,

and so this Court, in addressing title to submerged lands,

was “called upon to draw the line that separates the

Sovereignty and jurisdiction of the government of the

union, and the state governments... . ” Pollard v. Hagan,

44 U.S. (3 How.) 212, 220 (1845). It soon became estab-

lished law that within the original thirteen states, sover-

eign title to submerged lands was vested in the states.

Shively, 152 U.S. at 16. Because subsequently admitted

States enter the Union on an equal footing with the

original thirteen states, they too are vested with title and

control to submerged lands. Utah Div. of State Lands, 482

U.S. at 197. Each state’s ownership and control of sub-

merged lands is “an inseparable attribute of the equal

sovereignty guaranteed to it upon admission [to the

Union].” United States v. Louisiana, 363 US. 1, 16 (1960).

Before gaining admission, however, most western

States were originally territories under the plenary con-

trol of the federal government. When the United States

acquired new territories, “they took upon themselves the

trust to hold the municipal eminent domain for the new

states, to invest them with it, to the same extent, in all

respects, that it was held by the [original states].” Pollard,

44 U.S. at 222-23. This trust extends to submerged lands.

See Shively, 152 U.S. at 49 (submerged lands are held “in

trust” for future states); Montana v. United States, 450 U.S.

544, 551 (1981) (“the Federal Government holds [sub-

merged] lands in trust for future States”). While this trust

is derived from ancient Principles defining the very

nature of sovereignty, the Constitution does not prohibit

the United States from breaching the trust. The United

States “have the entire dominion and sovereignty,

national and municipal, Federal and state, over all the

territories, so long as they remain in a territorial condi-

tion.” Shively, 152 U.S. at 48. The possession of both

national and municipal sovereignty over a territory vests

Congress with the authority to sever submerged lands

from sovereignty, and prevent them from passing to

future States formed out of the territory. Id.

While Congress can abrogate its responsibility to

hold submerged lands in trust for future States, it has

done so “only in the most unusual circumstances.” Utah

Div. of State Lands, 482 U.S. at 197. Firm congressional

policy has been that submerged lands “shall not be

granted away during the period of territorial govern-

ment . . . unless in case of some international duty or

public exigency.” Shively, 152 U.S. at 50. This policy has

consistently informed this Court’s interpretation of con-

gressional actions alleged to defeat state title to sub-

merged lands: “[D]isposals 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 U.S. 49, 55 (1926). |

Further, Congress’ authority to defeat state title to

submerged lands is strictly limited to the period during

which Congress exercises municipal sovereignty over a

territory. Upon a state’s admission, “the title of the

United States to lands underlying navigable waters

within the State passes to it, as incident to the transfer to

the State of local sovereignty. . . . ” United States v.

Oregon, 295 U.S. at 14. Once vested, state title to sub-

merged lands is absolute and cannot be defeated. Oregon

ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429

U.S. 363, 374 (1977).

This Court’s most recent cases have emphasized that

defeats of state title to submerged lands are to be found

only in exceptional circumstances. The court of appeals

examined what it called this Court’s “trilogy of deci-

sions” in United States v. Alaska, 521 U.S. 1 (1997), Utah

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

and Montana v. United States, 450 U.S. 544 (1981). It is

more revealing, however, to expand the analysis to

include Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970),

wherein the Court found a defeat of state title. Together,

the four decisions identify the factors that have led to a

defeat of state title to submerged lands, and the factors,

or lack thereof, that have led to the opposite conclusion.

In Choctaw Nation, the Court held that the United

States had conveyed the bed of the Arkansas River to the

Choctaw Nation. The factors the Court identified in its

decision included the fact that the tribe was granted a fee

simple patent to its lands. Id. at 625. The patent made an

express reference to the “main channel of the Arkansas

river” as a boundary. Id. at 630. Most importantly, the

treaty pledged that the Nation would enjoy the “jurisdic-

tion and government of all the persons and property that

may be within their limits west, so that no Territory or

State shall ever have a right to pass laws for the govern-

ment of the Choctaw Nation . . . and that no part of the

land granted to them shall ever be embraced in any

Territory or State.” Id. at 625, quoting Treaty of Dancing

Rabbit Creek, Sept. 27, 1830, 7 Stat. 333-34.

In later submerged lands decisions, the Court

described the decision in Choctaw Nation as a “singular

exception,” and traced the outcome in large part to “the

Government’s promise that the reserved lands would

never become part of any State,” and the fact that the

Nation was promised “freedom from state jurisdiction.”

Montana, 450 U.S. at 555 n.5. The Court later stated that

“indispensable to the holding [in Choctaw Nation] was a

promise to the Indian Tribe that no part of the reservation

would become part of a State.” Utah Div. of State Lands,

482 U.S. at 198.

The next submerged lands case taken up by the Court

was Montana, wherein the Crow Tribe claimed ownership

of the beds and banks of the Big Horn River. There, as

was the case in Choctaw Nation, the boundaries of the

reservation were described by reference to the mid-chan-

nel of a navigable river.11 The Crow Tribe, however, was

not expressly promised that its lands would never be

embraced within a future state. Rather, it was promised

that its reservation was set apart “for the absolute and

undisturbed use and occupation” of the Tribe. Montana,

450 U.S. at 548. Distinguishing Choctaw Nation, this Court

held that:

The treaty in no way expressly referred to the

riverbed, Packer v. Bird, 137 U.S., at 672, nor was

an intention to convey the riverbed expressed in

“clear and especial words,” Martin v. Waddell, 16

Pet., at 411, or “definitely declared or otherwise

made very plain,” United States v. Holt State

Bank, 270 U.S., at 55. Rather, as in Holt, “[t]he

11 Article 2 of the Fort Laramie Treaty of May 7, 1868, 15

Stat. 649, described the boundary of the Crow Reservation as

running up the 107th meridian “to the mid-channel of the

Yellowstone River; thence up said mid-channel to the point

where it crosses the said southern boundary of Montana....” 2

Charles J. Kappler, Indian Affairs: Laws and Treaties 1008 (1904).

This portion of the Yellowstone River has been found to be

navigable. Edwards v. Séverin, 785 P.2d 1022, 1023-24 (Mont.

1990).

effect of what was done was to reserve in a

general way for the continued occupation of the

Indians of what remained of their aboriginal

territory.” Id., at 58.

450 U.S. at 554. The Court also found that “the situation

of the Crow Indians at the time of the treaties presented

no ‘public exigency’ that would have required Congress

to depart from its policy of reserving ownership of beds

under navigable waters for the future States,” because “at

the time of the treaty the Crows were a nomadic tribe

dependent chiefly on buffalo, and fishing was not impor-

tant to their diet or way of life.” Id. at 556.

Six years after Montana, the Court again addressed

the issue of title to submerged lands within a federal

reservation in Utah Div. of State Lands. The situation

addressed in Utah Div. of State Lands was unique, since it

involved a reservation set aside for the specific purpose

of preserving a navigable lake as a potential reservoir

site. 482 U.S. at 199. Further, no third party was involved,

so the only issue was whether the reservation of sub-

merged lands would defeat state title. To answer the

question, the Court began by noting that when the fed-

eral government reserves submerged lands, it “may not

also intend to defeat a future State’s title to the land”

because the “land remains in federal control, and there-

fore may still be held for the ultimate benefit of future

States.” Id. at 202. Thus, the Court held, “we would not

infer an intent to defeat a State’s equal footing entitle-

ment from the mere act of reservation itself.” Id.12 Rather,

12 Notably, in support of the proposition that an intent to

allow the State obtain title to submerged lands within a federal

reservation “would not be unusual,” this Court cited decisions

addressing submerged lands within Indian reservations,

namely, Montana and Holt State Bank. 482 U.S. at 202.

the Court formulated a two prong test to address alleged

defeats of state title arising from reservations of sub-

merged lands. The Court held that “the United States

would not merely be required to establish that Congress

clearly intended to include land under navigable waters

within the federal reservation; the United States would

additionally have to establish that Congress affirmatively

intended to defeat the future State’s title to such land.” Id.

While the Court went on to hold, under the first

prong, that there was no intent to include the submerged

lands within the reservation in question, it also applied

the second prong, holding that “Congress did not clearly

express an intention to defeat Utah’s claim to the lakebed

under the equal footing doctrine upon entry into state-

hood.” Id. at 208. In support of its holding, the Court

identified three factors. First, the Act in question did not

“purport to defeat the entitlement of future States to any

land reserved,” but merely reserved land from sale, entry,

settlement or occupation. Id. Second, the Act made “no

mention of the States’ entitlement to the beds of naviga-

ble rivers and lakes upon entry into statehood.” Id. Third,

the transfer of the lakebed to the State would not defeat

the purpose of the reservation, which was to develop a

reservoir or water reclamation project at the lake. Id.

In this Court’s most recent submerged lands deci-

sion, United States v. Alaska, the Court turned once again

to the question of state title to submerged lands within a

federal reservation. This time, however, the submerged

lands in question had originally been reserved or set

aside by the executive branch, not Congress. The Court

employed the two prong test used in Utah Div. of State

Lands, requiring a clear intent to include submerged lands

;

€

within the federal reservation, and an affirmative expres-

sion of intent to defeat the future state’s title to such land.

Alaska, 521 U.S. at 41. For the two reservations in ques-

tion, the Court concluded that the first prong of the test

was met, since the executive branch had clearly intended

to include submerged lands within the reservations. Id. at

39-40, 55. The decisive question presented to the Court

was whether Congress had taken additional actions that

affirmatively defeated state title to submerged lands

within the two areas reserved or set aside by the execu-

tive branch.

The first reservation addressed in Alaska was a

national petroleum reserve. After finding that the execu-

tive branch had intended to include submerged lands

within the reserve, the Court turned to the question of

whether Congress intended to defeat state title to the

submerged lands. The Court found such intent in § 11(b)

of the Alaska Statehood Act. Alaska, 521 U.S. at 44. Sec-

tion 11(b) provided that the United States would have the

“power of exclusive legislation . . . as provided by [the

Enclave Clause of the Constitution, Art. I, § 8, cl. 17] over

such tracts or parcels of land as, immediately prior to the

admission of said State, are owned by the United States

and held for military . . . purposes, including naval

petroleum reserve numbered 4 [the National Petroleum

Reserve].” Alaska, 521 U.S. at 41. The Court concluded

that Section 11(b), “which noted that the United States

owned the Reserve and which included a statement of

exclusive legislative jurisdiction under the Enclave

Clause, reflected Congress’ intent to ratify the inclusion

of submerged lands within the Reserve and to defeat the

State’s title to those lands.” Id. at 46.

In interpreting Section 11(b), the Court also relied

heavily upon the purpose of the Reserve, which was to

secure ownership of valuable oil deposits. Id. at 40. The

Court noted that ownership of submerged lands was

“necessary to prevent the Reserve’s petroleum resources

from being drained from beneath submerged lands.” Id.

at 42. In light of this fact, the Court concluded:

[Defeating state title to submerged lands was

necessary to achieve the United States’ objective

— securing a supply of oil and gas that would

necessarily exist beneath uplands and sub-

merged lands. The transfer of submerged lands

' at statehood - and the loss of ownership rights

to the oil deposits beneath those lands - would

have thwarted that purpose.

Id. at 42-43.15

The second set of submerged lands addressed in

Alaska was within the boundaries of an area withdrawn

and set apart as a wildlife refuge, pursuant to an applica-

tion submitted to the Secretary of Interior by the Bureau

of Sport Fisheries and Wildlife. Id. at 46.14 After finding

that the withdrawal was intended to include submerged

lands that served as wildlife habitat, the Court addressed

whether Congress had affirmatively defeated state title to

the submerged lands. The Court found such intent in

§ 6(e) of the Alaska Statehood Act. Section 6(e) addressed

the circumstances under which Alaska would assume

13 The Court had earlier examined purpose as it related to

the executive intent to include the submerged lands within the

reservation. 521 U.S. at 39-40. :

14 At the time of statehood, the application was still

pending. Department of Interior regulations in force at that time

set such lands apart pending final approval of the application.

521 U.S. at 57-58.

POOR IETS eR ETT A en me

sovereignty over fish and wildlife management. It pro-

vided that the federal government would retain “admin-

istration and management of the fish and wildlife

resources of Alaska” until the Secretary of Interior certi-

fied to Congress “that the Alaska State Legislature has

made adequate provision for the administration, manage-

ment, and conservation of said resources in the broad

national interest.” Pub. L. 85-508, 72 Stat. 339, 340-41. The

Act also provided that:

All real and personal property of the United

States situated in the Territory of Alaska which

is specifically used for the sole purpose of con-

servation and protection of the fisheries and

wildlife of Alaska . . . shall be transferred and

conveyed to the State of Alaska by the appropri-

ate federal agency; Provided . . . That such

transfer shall not include lands withdrawn or

otherwise set apart as refuges or reservations

for the protection of wildlife. .. .

Id. at 340-41.

Based on this strong language, the Court inferred an

intent to defeat state title to submerged lands. It held that

“Section 6(e) of the Alaska Statehood Act expressly pre-

vented land that has been ‘set apart as [a] refug[e]’ from

passing to Alaska.” 521 U.S. at 61. It further concluded

that “[iJn § 6(e) of the Statehood Act, Congress clearly

contemplated continued federal ownership of certain

submerged lands . . . so long as those submerged lands

were among those ‘withdrawn or otherwise set apart as

refuges or reservations for the protection of wildlife.’ ” Id.

at 57. The only real issue was whether the refuge in

question included submerged lands. Here, the Court

turned to the purpose of the Reservation. It held that

“waters within the boundaries of the Range were an

essential part of the habitats of the species the Range was

designed to protect, and [the] retention of lands underly-

ing those waters was critical to the Government’s goal of

preserving these aquatic habitats.” Id. at 52. Because

“[t]he 1957 application to create the wildlife refuge

clearly encompassed submerged lands,” id. at 61, the

Court concluded that “the operative provision of the

Alaska Statehood Act, § 6(e), reflects a very clear intent to

defeat state title.” 521 U.S. at 57.

The common thread running through the cases where

this Court has found a defeat of state title to submerged

lands is an unmistakable expression of congressional

intent that the lands in question would not be subject to

state sovereignty. In Choctaw, the Tribe was expressly

promised at the time of treaty-making that no part of the

reservation would become part of a state. Twice, this

Court has emphasized this promise was indispensable to

the holding in Choctaw. Utah Div. of State Lands, 482 U.S.

at 198, Montana, 450 U.S. at 555 n.5.

In Alaska, Congress asserted Enclave Clause jurisdic-

tion over the petroleum reserve, establishing that it was

not just reserving proprietary rights to itself, but was

denying the assumption of state sovereignty over lands

within the reserve. Alaska, 521 U.S. at 46. For the wildlife

refuge, Congress expressly prevented all lands within the

refuge from passing to the State upon its admission.

Importantly, the provision was made in the context of

§ 6(e) of the Alaska Statehood Act, which addressed the

general assumption of state sovereignty over fish and

game resources and the lands and-property related to the

assumption of such sovereignty.

In short, a defeat of state title to submerged lands

within federal reservations has been found only where it

was clear, from the language and context of the statute in

question, that Congress contemplated the effects of its

action on the assumption of state sovereignty over sub-

merged lands. Where the statute in question simply con-

veyed or reserved property rights, rather than allocating

rights of sovereignty, no defeat of state title to submerged

lands has been found. This principle is not new; in fact, it

was applied in one of this Court's earliest submerged

lands decisions, Martin v. Waddell’s Lessee. There, the

Court, describing the history of the State of New Jersey,

found that during the colonial period, all sovereign and

Proprietary rights had been conveyed from King Charles

II to the Duke of York, and then to the Proprietors of East

New Jersey. 41 U.S. (16 Pet.) at 407. In 1702, the Propri-

etors of East New Jersey surrendered all rights of govern-

ment and sovereignty to Queen Anne, explicitly retaining

all rights of private property. Id. at 407, 415-16. The Court

held that the surrender of sovereignty carried with it title

to submerged lands, despite the express retention of all

property rights. Id. at 416. The Court stated:

[I]f the great right of dominion and ownership

in the rivers, bays and arms of the sea, and the

soils under them, were to have been severed

from the sovereignty, and withheld from the

crown; if the right of common fishery for the

common people . . . was intended to be with-

drawn, the design to make this important

change in this particular territory would have

been clearly indicated by appropriate terms; and

would not have been left for inference from

ambiguous language.

41 U.S. (16 Pet.) at 416.

By the same token, in order to find that the federal

government has defeated state title to submerged lands

within a federal Indian reservation, the government must

do more than retain property rights for itself or the

occupant tribe. Congress must affirmatively intend to

sever the submerged lands from future state sovereignty

and dedicate the lands to federal or tribal uses which

would be thwarted if the lands were subject to state

sovereignty. An intent to defeat state title must also be

definitely declared or otherwise made plain: because of

the importance of submerged lands to sovereignty, and

their dedication to public use, an intent to sever sub-

merged lands from sovereignty “would not have been left

for inference from ambiguous language.” Martin, 41 U.S.

at 416.

In the case of the Coeur d’Alene Indian Reservation,

there is no evidence that Congress exercised its municipal

sovereignty over the Territory of Idaho to sever the sub-

merged lands of Coeur d’Alene Lake and the St. Joe River

from sovereignty and convey them to the Coeur d’Alene

Tribe for its proprietary use. Nor is there any-reason to

conclude that Congress severed the submerged lands

from state sovereignty and dedicated them to the exclu-

sive use of the federal government.

Up to the point of Idaho’s admission, Congress

passed three acts specifically addressing property rights

within the Coeur d’Alene Reservation. The first was the

Act of May 15, 1886, 24 Stat. at 44, which authorized

negotiations with the Coeur d’Alene Tribe for the pur-

chase of its lands outside the limits of the 1873 Executive

Order Reservation. The second was the Act of May 30,

1888, 25 Stat. 160, which authorized a railroad right-of-

March 2, 1889, 25 Stat. at 1002, which authorized the

purchase of certain lands within the 1873 Reservation.

The 1889 Act was the last action Congress took with

+ 7” 2 hayt FIR * S80

rere ERM ee eee eS by Cert Ie Ts eal tied aia i Na Dae

35 7

respect to the Coeur d’Alene Reservation before passage

of the Idaho Statehood Act, which accepted the terms of

Idaho’s constitution and admitted Idaho to the Union.

Act of July 3, 1890, 26 Stat. 215. It is informative to review

each of the above Acts in turn, comparing each to the

congressional acts reviewed in this Court’s submerged

lands decisions.

The Act of May 15, 1886.

Little need be said about the 1886 Act, since neither

the district court nor the court of appeals interpreted the

1886 Act as defeating state sovereign title to submerged

lands. Indeed, the 1886 Act did nothing but authorize

negotiations “with the Coeur d’Alene Indians for the

cession of their lands outside the limits of the present

Coeur d’Alene Reservation to the United States. ...” Act

of May 15, 1886, 24 Stat. at 44; App. 50. Nothing on the

face of the Act implies an intent to defeat, or even

address, state sovereign title to submerged lands within

the reservation. Additionally, Congress made plain its

intent that the 1886 Act was not to be construed as taking

any final action with regard to the Tribe’s lands, by

providing that “no agreement made shall take effect until

ratified by Congress.” App. 50. -

The Act of May 30, 1888.

Likewise, little need be said about the 1888 Act,

which granted an “extension of [a] railroad through the

lands in Idaho Territory set apart for the use of the Coeur

d’Alene Indians by executive order, commonly known as

the Coeur d’Alene Indian Reservation. ...” Act of May

30, 1888, 25 Stat. 160; App. 137. The court of appeals did

not specifically identify the 1888 Act as defeating state

title to submerged lands, holding only that Congress’

passage of the Act “supports congressional recognition of

the 1873 reservation, which Congress by this point knew

included submerged lands.” Pet. App. 21 n.13. Beyond

recognizing the existence of the 1873 reservation, how-

ever, the 1888 Act does not purport to defeat state title to

submerged lands, or otherwise convey or reserve such

lands. The Act does mention Coeur d’Alene Lake and the

St. Joe River, but only as geographic points describing the

location of the railroad right-of-way, which crossed the

Lake.

The Act of March 2, 1889.

The congressional action that received the primary

attention of the court of appeals was the 1889 Act, which

authorized negotiations for a cession of a portion of the

1873 Reservation. The court paid particular attention to

the Act’s legislative history. The history of the 1889 Act

started with Congress’ consideration of the 1887 agree-

ment, which would have confirmed the 1873 boundaries.

Pet. App. 21. As part of its consideration of the 1887

agreement, Congress attempted to ascertain, through an

inquiry to the Department of Interior, whether the Coeur

d’Alene Reservation included submerged lands. Supra at

10-12; App. 116. In response, the Department of Interior

submitted a report to Congress stating that the Coeur

d’Alene Reservation “appears to embrace all the naviga-

ble waters of Lake Coeur d’Alene,” with the exception of

a small fragment at the extreme north end of the Lake.

App. 123. The court of appeals held that the report put

Congress on notice that the executive branch construed

the 1873 Reservation to include submerged lands. Pet.

App. 21.

The court of appeals attached significance to the fact

that “[a]lthough Congress had the opportunity and the —

power to repudiate the executive reservation and the

1887 agreement, it did not do so.” Pet. App. 15. Instead,

Congress authorized cession negotiations for the “pur-

chase and release by said tribe of such portions of its

reservation . . . as such tribe shall consent to sell.” Act of

7 March 2, 1889, 25 Stat. at 1002, App. 144. The court of

appeals held:

The express reference to the reservation as the

Tribe's reservation, explicit recognition that the

choice to sell was the Tribe’s, and reference to

tribal release of portions of its reservation all man-

ifest an awareness and acceptance by Congress

of the boundaries of the 1873 reservation -

boundaries that included submerged lands.

Although Congress may have. been unhappy to

learn that the executive reservation included

submerged lands, its actions show recognition

and acceptance of the passage of beneficial own-

ership to the Tribe, for it sought to regain as

much submerged land as possible. The affirma-

tive course of action on which Congress

embarked in 1889 - open-ended negotiations to

purchase whatever non-agricultural land, par-

ticularly 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.

Pet. App. 22-23 (emphasis in original).

1. The court of appeals, by holding that Congress did

not “repudiate” the 1873 Executive Order Reservation,

simply mischaracterized Congress’ actions. Congress not

only repudiated the 1873 Reservation, but such repudia-

tion was the underlying purpose of the 1889 Act. The

very reason that Congress required renewed negotiations

was Congress’ refusal to accept the Reservation bound-

aries established in the 1873 Executive Order and the

1887 agreement.

The court of appeals was correct in one respect: Con-

gress had the authority to repeal the 1873 Executive

Order if it chose to do so. Executive orders do not vest

the occupant tribe with compensable title, but only a

right of permissive occupancy akin to a tenancy at will.

Confederated Bands of Ute Indians v. United States, 330 U.S.

169, 176 (1947). It is not surprising, however, that Con-

gress chose not to repeal the 1873 Executive Order. An

outright repeal of the Order would have left the Tribe’s

farmlands unprotected. A repeal also would not have

resolved outstanding claims of aboriginal title within the

boundaries of the Reservation. As the Commissioner of

Indian Affairs noted in his 1888 Report, it was the Indian

Department’s position that “these Indians have all the

original Indian rights in the soil they occupy” and that

such rights predated the 1873 Executive Order. App. 131.

Given the above concerns, Congress chose to repudi-

ate the 1873 Reservation, and its inclusion of submerged

lands, by refusing to accept the existing Reservation

boundaries, and directing further negotiations that would

result in a radical diminishment of the Reservation. Con-

gress’ action can be characterized as an “acceptance” of.

the 1873 Reservation only through the most twisted

application of logic.

2. The holding of the court of appeals cannot be recon-

ciled with this Court’s submerged lands decisions. As

discussed above, this Court has inferred an intent to

defeat state title to submerged lands only where Con-

gress, by a definite declaration or plain statement of

intent, severs submerged lands from future state sover-

eignty and dedicates them to specific federal or tribal

uses. The 1889 Act simply has no comparison to the

strong language that led to defeats of state title in Choc-

taw Nation and Alaska. Unlike Choctaw Nation, there is no

language promising that Reservation lands would never

be part of a future state, or otherwise severing submerged

lands within the Coeur d’Alene Reservation from future

State sovereignty. The 1889 Act was a repudiation of the

1873 boundaries, and an authorization to negotiate new

boundaries; nothing more. There is no basis for conclud-

ing that Congress intended to defeat future state sover-

eignty over submerged lands. Indeed, there is no

indication on the face of the Act, or in its legislative

history, to indicate that Congress gave any thought to the

effect its actions may have on future state sovereign title

to submerged lands.

The 1889 Act is also distinguished from the provi-

sions reviewed in Alaska. In both of the provisions

reviewed in Alaska, Congress plainly stated its intent to

prevent the assumption of state sovereignty over the

_ Teservations at issue. See Alaska, 521 U.S at 41 (discussing

assertion of exclusive Enclave Clause jurisdiction over

petroleum reserve); Pub. L. 85-508, 72 Stat. at 340-41

(discussing state assumption of sovereignty over fish and

wildlife management and ownership of associated prop-

erties). Nothing in the 1889 Act compares to the language

reviewed in Alaska. No provision in the Act limits the

future assumption of state sovereignty over the Coeur-

d’Alene Reservation. As such, the operative language is

analogous to that reviewed in Utah-Div. of State Lands,

since it did not “purport to defeat the entitlement of

future States to any land reserved,” and made “no men-

tion of the States’ entitlement to the beds of navigable

rivers and lakes upon entry into statehood.” 482 U.S. at

208. In short, the 1889 Act lacks any indication that Con-

gress intended to address the issue of whether sub-

merged lands within the Reservation would be subject to -

future state sovereignty. In the absence of such evidence,

it cannot be reliably concluded that Congress intended to

defeat state sovereign title to submerged lands.

3. The court of appeals also failed to appreciate the

significance of the fact that the 1889 Act lacked any

express reference to submerged lands. The operative lan-

guage of the Act merely directed the Secretary of Interior

to “negotiate with the Coeur d’Alene tribe of Indians for

the purchase and release by said tribe of such portions

of its reservation not agricultural and valuable chiefly

for minerals and timber as such tribe shall consent to

sell... .” 25 Stat. at 1002; App. 144. The lack of an

express reference to submerged lands is especially reveal-

ing. As the court of appeals noted, the Act was prompted

by Congress’ displeasure upon learning that the Depart-

ment of Interior interpreted the Reservation to embrace

submerged lands. Pet. App. 23. Yet, in the 1889 Act,

Congress failed to list submerged lands among the lands

to be purchased.

The omission of any mention of submerged lands in

the 1889 Act could not be anything other than purposeful.

The most natural reading of the omission is that Congress

understood that the submerged lands were part of the

regalia of sovereignty, and not subject to tribal ownership

or disposal. Rather, Congress limited its express recogni-

tion of tribal property rights to the uplands adjacent to

the Lake. Such a limitation reflects the understanding

PIE we

that the lake was a public highway whose use was lim-

ited by tribal ownership of the adjacent uplands, which

were necessary to construct the landings and shore facili-

ties needed to make the Lake useful as a highway of

commerce. !5

The fact that the language in the 1889 Act applied

only to uplands is analogous to the situation addressed in

Utah Div. of State Lands. There, the Court held that the

language of withdrawal was necessarily limited to

uplands otherwise open to settlement. 482 U.S. at 203.

The intent to limit the withdrawal to uplands was only

affirmed by the fact that the federal purpose of develop-

ing Utah Lake as a reservoir was fully met by the reserva-

tion of title to adjacent uplands, and did not require

defeat of public title to the lakebed. 482 U.S. at 206-08.

Here, Congress’ purpose of securing public use of the

Lake did not require recognizing tribal title to the lake-

bed, since its purpose was fully met by acquiring tribal

title to adjacent uplands. Indeed, it would have been

incongruous for Congress to affirmatively defeat public

title to the Lake for the sole purpose of purchasing it back

from the Tribe. Congress therefore declined to expressly

recognize tribal title to the lakebed.

15 Congress’ refusal to recognize tribal title to submerged

lands was consistent with the fact that at this point in history,

the prevailing law was this Court’s decision in Pollard v. Hagan,

which held that Congress could not defeat state title to

submerged lands. Pollard, 44 U.S. (3 How.) at 28-29. It was not

until the 1894 decision in Shively v. Bowlby that the Court

confirmed the power of Congress to defeat future state title to

submerged lands during the period of territorial government.

152 U.S. at 48.

Similar omissions of express references to submerged

lands have figured prominently in this Court’s past deci-

sions. See Montana, 450 U.S. at 554 (“[t]he treaty in no

way expressly referred to the riverbed”); Utah Div. of

State Lands, 482 U.S. at 203 (“[t]he words of the 1888 Act

did not necessarily refer to lands under navigable

waters”). In short, an express reference to lands under

navigable waters is crucial to the determination that Con-

gress definitely declared or otherwise made plain its

intent to defeat state title to the submerged lands. This

rule is of especial application to the 1889 Act, where the

executive branch had construed the Reservation bound-

aries to embrace submerged lands, and Congress’

response was to order the purchase of certain uplands

and the negotiation of new boundaries. If Congress had

intended to recognize and affirm tribal title to the lake-

bed, it would have naturally included the Lake in the

description of the lands to be acquired.

4. Itis beyond question that the 1889 Act did not convey

any lands to the Coeur d’Alene Tribe. At most, Congress

recognized the Tribe’s pre-existing rights of exclusive use

and occupancy, and directed the purchase of those rights.

See Confederated Bands of Ute Indians v. United States, 330

U.S. 169, 176 (1947) (holding that Indian reservations set

aside by executive orders vest the occupant tribes with

rights of permissive occupancy). In fact, this conclusion is

implicit in the court of appeals’ holding that Congress

was directing the purchase of lands that “had already

passed to the Tribe.” Pet. App. 23.

Congress’ recognition that the Tribe held an exclusive

right of occupancy to lands within the Reservation, how-

ever, does not imply that Congress intended to sever

submerged lands within the Reservation from future state

)

er CEI

sovereignty. In this Court’s decisions addressing title to

submerged lands within Indian reservations, a defeat of

state title has been inferred only where Congress explic-

itly granted or conveyed the submerged lands to the

occupant Tribe in fee. Choctaw, 397 U.S. at 635. Where the

Act in question granted or recognized tribal rights of

exclusive use or occupancy, no defeat of state title has

been found.

For example, in Holt State Bank, the Court was asked

to determine title to the submerged lands underlying

Mud Lake on the Red Lake Indian Reservation. 270 U.S.

at 52. The Court deemed it significant that lands within

the Reservation had never been formally granted to the

Tribe, nor had the rights of the Indians been affirmatively

declared. Id. at 58. Rather, what had been done was to

“reserve in a general way for the continued occupation of _

the Indians what remained of their aboriginal terri-

tory....” Id. The Court held that this recognition of the

aboriginal right of occupancy was insufficient to deny the

State sovereign title to the submerged lands of Mud Lake,

since there was nothing in the recognition that “even

approaches a grant of rights in lands underlying naviga-

ble waters. ...” Id. at 58-59.

In Montana, there was a ratified treaty setting apart

lands for the exclusive use of the Tribe, but the Court

analogized the Tribe’s rights in reservation lands to those

recognized in Holt State Bank: “[A]s in Holt, ‘[t]he effect of

what was done was to reserve in a general way for the

continued occupation of the Indians what remained of

their aboriginal territory.’ ” 450 U.S. at 554, quoting Holt

State Bank, 270 U.S. at 58. Again, the right of occupancy,

even though permanent and exclusive, was held insuffi-

cient to defeat sovereign title to submerged lands, since it

did not amount to a conveyance of the riverbed in clear

and especial words. Id.

Together, Holt State Bank and Montana establish that

the United States’ recognition of a tribal right of exclusive

use and occupancy does not imply an intent to defeat the

future assumption of state sovereignty over submerged

lands. There must be more. In the 1889 Act, however,

there was nothing more. Congress conveyed no property

rights to the Tribe; it simply authorized the purchase of

the Tribe’s existing rights of occupancy. Indeed, Congress

took care to assure that its action would not be construed

as granting the Tribe any recognizable rights until it had

an opportunity to review and approve the results of the

negotiations it authorized. See Act of May 15, 1886, 24

Stat. at 44 (“no agreement made shall take effect until

ratified by Congress”); Act of March 2, 1889, 25 Stat. at

~ 1002 (“which purchase shall not be complete until ratified

by Congress”). App. 51, 144.

In short, the 1889 Act, at most, recognized existing

tribal rights of occupancy within the Reservation, and

then only until the completion of negotiations to pur-

chase the timber and mineral lands. As in Holt State Bank

and Montana, this recognition of the Tribe’s continued

occupation of what remained of their aboriginal territory

did not amount to a grant or conveyance sufficient to

infer an intent to defeat state title to submerged lands

within the Reservation.

5. Because the 1889 Act contains no plain statement of

intent to defeat state title to submerged lands, no further

inquiry is needed. But, if the Court were to look beyond

the plain language of the Act, as did the court of appeals,

the purpose of the Reservation would be a critical factor -

in determining whether a defeat of state title is implied

by the terms of the Act. See Alaska, 521 U.S. at 52 (noting

that in prior submerged lands decisions, the Court

“focused on the purpose of the conveyance or reservation

as a critical factor in determining congressional intent”).

Defeats of state title to submerged lands within federal

reservations have been found only where the assumption

of state title would have thwarted the purpose of the

reservation.

For example, in Choctaw Nation, state title to sub-

merged lands could not be reconciled with the stated

purpose of the Treaty of Dancing Rabbit Creek, which

was to guarantee the Nation exclusive sovereignty over

its lands, and forbid the inclusion of those lands in any

future state. Choctaw Nation, 397 U.S. at 625. In Alaska,

state ownership would have thwarted the government

objectives of retaining exclusive federal sovereignty over

petroleum reserves and aquatic wildlife habitat. 521 U.S.

at 43 (“[t]he transfer of submerged lands at statehood -

and the loss of ownership rights to the oil deposits

beneath those lands - would have thwarted that purpose

[of securing a supply of oil and gas”]); id. at 52 (“waters

within the boundaries of the Range were an essential part

of the habitats of the species the Range was designed to

protect, and . . . retention of lands underlying those

waters was critical to the Government's goal of preserv-

ing these aquatic habitats”).

In the case of the Coeur d’Alene Indian Reservation,

neither of the lower courts bothered to determine the

purposes of the Reservation as understood by Congress,

nor did they explain how the purposes of the Reservation

would be thwarted by state ownership of submerged

lands. The court of appeals determined there was no need

“that Congress apprehend the purpose of the reservation

at the time it takes action recognizing the executive reser-

vation.” Pet. App. 18 n.11. Thus, the court limited its

discussion of purpose to the finding that when establish-

ing the reservation by executive order, “the government’s

negotiators and agents were aware of the Tribe’s depen-

dence on fishing in 1873.” Pet. App. 19.

The court of appeals’ failure to explore the purposes

of the Reservation, as understood by Congress, is inde-

fensible. The 1889 Act was not an affirmation of the 1873

Executive Order Reservation or its purposes; it was a

mandate to radically alter the Reservation to meet the

changing needs of the Tribe. As such, examination of the

purposes of the altered Reservation is required to fully

understand congressional intent.

The purposes of the altered Reservation are easily

discerned on the face of the 1889 Act. Although the

language is directed toward the purchase of certain lands,

Congress’ objectives for the continuing Reservation are

also evident. Congress directed the Secretary of Interior

to negotiate with the Tribe for the purchase and release of

“such portions of its reservation not agricultural and

valuable chiefly for minerals and timber. . . . ” 25 Stat. at

1002; App. 144. The express language of the Act directs

the Secretary of Interior to protect the Tribe’s agricultural

lands, reflecting the fact that the primary purpose of the

continuing Reservation was to protect the Tribe’s agri-

cultural activities.

The fact that Congress’ primary purpose for the new

Reservation was to protect the Tribe’s agricultural land is

supported by the legislative history. The reports submit-

ted to Congress in relation to the 1887 agreement uni-

formly portrayed the Coeur d’Alene Indians as farmers.

The commission that negotiated the 1887 agreement

reported that “[t]he reservation is one of the best we have

visited . . . [t]he Indians have good productive farms,

good houses, barns, gardens, horses, hogs, cattle, domes-

tic fowls, wagons, agricultural implements of the latest

patterns, and indeed everything found on flourishing

farms.” S. Ex. Doc. No. 14, 51st Cong., 1st Sess. 50 (1889);

App. 217.

In 1888, the Commissioner of Indian Affairs, in

responding to the Senate’s inquiry regarding Coeur

d’Alene Lake, affirmed the Tribe’s reliance on agriculture,

and added that “[t]here are few Indians in the entire

country, if we except the five civilized tribes, who are as

far advanced. .. . ” S. Ex. Doc. No. 76, 50th Cong., 1st

Sess. 5 (1888); App. 126. Given this legislative history, and

the express language in the 1889 Act, Congress clearly

anticipated that after the diminishment of the Coeur

d’Alene Reservation, the primary purpose of the Reserva-

tion would be to provide the lands nécessary to sustain

the Tribe’s agricultural efforts.

Even assuming, for purposes of argument, that the

purpose of the reduced Reservation was to provide fish-

ing opportunities for the Coeur d’Alene Tribe, such a

purpose is not necessarily incompatible with state sover-

eignty over submerged lands. Federal protection of tribal

fishing rights does not imply the exclusion of state sover-

eignty over natural resources. Indian hunting and fishing

rights “can coexist with state management of natural

resources.” Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172, 204 (1999). The Court has “repeat-

edly reaffirmed state authority to impose reasonable and

necessary nondiscriminatory regulations on Indian hunt-

ing, fishing, and gathering rights in the interest of conser-

vation.” Id. at 205. State authority over hunting and

fishing by tribal members extends to lands within the

boundaries of Indian reservations. Puyallup Tribe, Inc. v.

Washington Dept. of Game, 433 U.S. 165, 175-77 (1977).

The recognition that States may regulate treaty hunt-

ing and fishing when necessary for conservation “accom- - :

modates both the State’s interest in management of its

natural resources and the [tribe’s] federally guaranteed

-treaty rights.” Minnesota, 526 U.S. at 205. By employing

such a standard, “treaty rights are reconcilable with state

sovereignty over natural resources.” Id. Thus, state sover-

eignty over submerged lands and federal protection for

tribal fisheries are not irreconcilable, distinguishing this

case from Alaska, where state ownership of submerged

lands would have thwarted the primary purposes of the

reservations.

The Act of July 3, 1890.

The final action Congress took with regard to Indian

reservations within the Idaho Territory was the Act

admitting Idaho to the Union. Act of July 3, 1890, 26 Stat.

215. Although there was no specific mention of the Coeur

d’Alene Reservation, the Act affirms the following provi-

sion in the Idaho Constitution:

And the people of the state of Idaho do agree

and declare that we forever disclaim all right

and title to the unappropriated public lands

lying within the boundaries thereof, and to all

lands lying within said limits owned or held by

any Indians or Indian tribes; and until the title

thereto shall have been extinguished by the

United States, the same shall be subject to the

disposition of the United States, and said Indian

lands shall remain under the absolute jurisdic-

tion and control of the congress of the United

States... .

Idaho Const., Art. 21, § 19.

The court of appeals did not read this provision as a

defeat of state title to the submerged lands at dispute

here, but it did cite the provision as “weigh[ing] in favor

of the conclusion we have reached, for it disclaims title to

land ‘held by’ Indians.” Pet. App. 24.

The court of appeals’ conclusion, however, presup-

poses that Congress had, prior to statehood, affirmatively

acted to defeat state title to submerged lands. On its own,

the provision cannot be read as a defeat of state title to

submerged lands within the boundaries of the Coeur

d’Alene Indian Reservation. As this Court has repeatedly

recognized, during the territorial period, submerged

lands within the boundaries of Indian reservations are

held in trust for future States, unless Congress takes

affirmative action to defeat state title to the submerged

lands prior to the State’s admission. Montana, 450 U.S. at

551.

The language of Article 21, Section 19 of the Idaho

Constitution merely disclaims title to lands owned or

held by Indian tribes. It does not alter tribal title or

convey any interests not already held. Thus, in the

absence of a pre-statehood act that defeated state title to

submerged lands within the Coeur d’Alene Indian Reser-

vation, those lands, at the point of statehood, continued

to be held by the United States in trust for the State of

Idaho, and were not “held by any Indians or Indian

tribes.” Given that fundamental fact, the disclaimer pro-

vision in the Idaho Constitution does not affect the issues

before the Court.

CONCLUSION

The judgment of the United States Court of Appeals

for the Ninth Circuit should be reversed.

Respectfully submitted.

ALAN G. LANCE

Attorney General

CuIvE J. STRONG

Deputy Attorney General

Chief, Natural Resources Division

STEVEN W. STRACK

Deputy Attorney General

January 2001

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.