Petitioners Brief — Choctaw Nation v. Oklahoma
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ound SO) =s:
JUL 22 1969
JOHN F. BAVIS, CLERK
In the
SUPREME COURT OF THE UNITED STATES
OcToBER TERM, 1968
No. 976 4
Tue CHocTaw NATION and THE Cuickasaw NAarTION,
Petitioners,
VERSUS
STATE OF OKLAHOMA, ET AL.,
Respondents.
THE BRIEF OF THE CHOCTAW AND
CHICKASAW NATIONS
J. D. McLaucHLIn
Liberty National Bank Building
Paris, Texas
Counsel for the Petitioners
of Counsel on the Brief:
Lon KILE
Box 726
Hugo, Oklahoma
July, 1969
UTTERSACK TYPESETTING Co.. 519 W. CALIF.. OKLAHOMA City. PH. CE 85-0030
TABLE OF CONTENTS
PAGE
Jurisdiction 2
The jurisdiction of this Court is invoked under 28
US.©. 1254 2
Treaties and Acts of Congress Involved 2
Questions Presented for Review - 2
Statement of the Case 3
Argument 14
Under the Constitution, the United States has the
power to convey a fee-simple title to Indian
Tribes 16
By the Treaty at Doak’s Stand in 1820 and the
Treaty at Dancing Rabbit Creek in 1830, the
United States conveyed to the Choctaw Nation
the fee-simple title to the lands west of the Mis-
sissippi situated in what is now Oklahoma _....__ 17
The conveyance of the fee title to the lands in Okla-
homa to the Choctaws by the Treaties of 1820 and
; 1830 and by the patent of 1842 and the removal
: of the Choctaws on to those lands were each “a
public purpose appropriate to the objectives for
which the United States held the Territory”... 18
Where Congress has granted lands underlying navi-
gable waters by way of carrying out public pur-
poses appropriate to the objects for which the
territory was held, such rights are not cut off by
the sutsequent creation of a state but remain un-
impaired, and the rights which otherwise would
pass to the state by virtue of its admission to the
Union are restricted or qualified accordingly ___. 20
It cannot be said that the United States intended to
reserve the bed of the navigable portion of the
adiien
TABLE OF CONTENTS CONTINUED PAGE
Arkansas either for itself «: for the benefit of a '
hypothetical state which neither the Choctaws
nor the Government ever thought would come
into existence 3 7
United States v. Holt State Bank is not a relevant
precedent because, without any qualifying words,
the Government conveyed to the Choctaws a fee-
simple title to the lands ceded to them in what is
now Oklahoma and further guaranteed “. . . that
no part of the land granted to them shall ever be
embraced in any Territory or State”
i
32
In effect the court below’s construction of Northern
:
4
Pacific Railway Company v. Soderberg, 188 U.S.
526, 534 and Caldwell v. United States, 250 U.S.
14, 20, vitiates Choctaw Nation v. United States,
119 U.S. 1, 27, 28, 31 L.Ed. 315, Jones v. Meehan,
117 U.S. 1, 10, 11, Choctaw Nation of Indians v.
United States, 318 U.S. 423, 431, 432, 87 L.Ed. 877,
882, 883 and the stipulation in the last sentence of
Article XVIII of the Treaty concluded at Dancing
Rabbit Creek in 1830 that “. . . in the construc-
tion of this treaty wherever well-founded doubt 4
shall arise, it shall be construed most favorably
to the Choctaws” 36
The thesis that references to the Arkansas River in
the Treaties of 1820, and 1830, are for the purpose
of establishing reference points, monuments or
boundaries is tenable only if by those treaties the
United States intended to retain the ownership of
the navigable portion of the Arkansas River in
trust for a future state — 42
At the most, by the Treaty of 1830, the United
States only reserved a navigation easement on
the Arkansas River — 44
PR TEIN ot ~
Conclusion
—
ontiiinn
AUTHORITIES
CASES: PAGE
Beecher v. Wetherby, 95 U.S. 517 32
| Brewer-Elliott Oil and Gas Co. v. United States,
| 260 U.S. 77 51
Butts v. Northern Pacific Railway, 7 Sup.Ct. 100,
119 U.S. 55 32
Caldwell v. United States, 250 U.S. 14 __.___.__.3, 36,
| 37, 38, 39, 42
Carpenter v. Shaw, 280 U.S. 263 37
Case v. Toftus, 39 Fed. 730, Ore. (1889) —__. 21-22
Cherokee Nation v. Georgia, 5 Pet. 1 9
| Choctaw Nation v. United States, 119 U.S. 1, 30 L.
Ed. 315 (1886) 3, 37, 39-40, 53
Choctaw Nation of Indians v. United States, 318
U.S. 423, 87 L.Ed. 887 3, 37,40-42, 45, 53
Factor v. Lauberheimer, 280 U.S. 276, 78 L.Ed. 315,
54 S.Ct. 191 45
Fleming v. McCurtain, 215 U.S. 56, 54 LEd. 88. —s: 118
| Gibson v. Chouteau, 13 Wall. 92, 20 L.Ed. 534... = 43
| Grand Rapids & LR. Co. v. Butler, 159 U.S. 87, 40
L.Ed. 85, 15 Sup. Ct. Rep. 991 - 4
| Hardin v. Jordan, 140 U.S. 371, 35 L.Ed. 428, 11 Sup.
Ct. Rep. 808 43
, Hardin v. Shedd, 190 U.S. 508, 47 L.Ed. 1156, 23 Sup.
; Ct. Rep. 685 43
Hynes v. Grimes Packing Company, 337 U.S. 86 32
Irvine v. Marshall, 20 How. 558, 15 L.Ed. 994... 43
Jones v. Meehan, 117 U.S. 1 _________3, 37, 39, 41, 42, 53
Kean v. Caulment Canal & Improv. Co., 190 U.S.
452, 47 L.Ed. 1134, 23 Sup. Ct. Rep. 651 _.__.. . §
Mitchell v. Smale, 140 U.S. 406, 35 L.Ed. 442, 11 Sup.
Ct. Rep. 819 43
AUTHORITIES CONTINUED Be PAGE
M. K. & T. Railway Co. v. U.S., 235 US. 37_____
Moore v. United States (9 Cir.), 157 F.2d 760, cert.
330 U.S. 827 21
Northern Pacific Railway Company v. Soderberg,
188 U.S. 526 _3, 36, 37, 39,42
Perkins v. E.L.G., 59 S.Ct. 884, 307 U.S. 325, 83 L.
Ed. 1320 ; 45
Pigeon River Imp. Slide & Broom Co. v. Charles W. ’
Cox, Ltd., 54 S.Ct. 361, 291 U.S. 138, 78 L.Ed. 695. 45
Rice v. Sioux City Memorial Park Cemetery, 60
N.W.2d 110, dismissed 75 S.Ct. 614, 349 U.S. 70,
————
Se ne EER TE
90 L.Ed. 897 —
Rynes v. Grimes Packing Company, 357 U.S. 86,
93 L.Ed. 1231 16
St. Paul & P. R. Co. v. Schurmeir, 7 Wall. 272, 19 f
L.Ed. 74 44 |
Shively v. Bowlby, 152 U.S. 1, 38 L.Ed. 331 _.____15, 30
State v. Nolegs, 139 Pac. 943 20, 52, 53
United States v. Arizona, 295 U.S. 1, 79 L.Ed. 1267,
55 Sup. Ct. 610 43
United States v. Holt State Bank, 270 U.S. 49, 70
L.Ed. 465 2, 15, 20-21, 33, 34, 35, 51
U. S. v. Santa Fe Pacific Railway Company, 314
U.S. 339, 312 U.S. 695 32
United States v. Shoshone Tribe of Indians, 58 S.Ct.
794, 304 U.S. 111, 82 L.Ed. 1218 —. @ 5
United States v. Stotts (W.D. Wash.), 49 F.2d 619. 21 ©
U. S. v. Texas, 339 U.S. 709, 94 L.Ed. 1222... = 3: |
Utah Power & Light Co. v. United States, 243 U.S.
389, 61 L.Ed. 791, 37 Sup. Ct. Rep. 387 —.____ 43
Vickery v. Yahola Sand and Gravel, 12 P.2d 881___.29,
30, 52, 53
Whitaker v. McBride, 197 U.S. 510, 49 L.Ed. 857, 25
Sup. Ct. Rep. 530 43-44
Wilcox v. Jackson, 13 Pet. 498, 10 L.Ed. 264... === 48
—
—
TABLE OF AUTHORITIES CONTINUED PAGE
Winters v. U. S., 207 U.S. 564 37, 42
Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 —__—37, 42
STATUTES:
U. S. Statutes at Large, IX, 411-12 2,8
7 Stat. 96, 2 Kappler 62 47-48
7 Stat. 156, Proclamation December 26, 1817 5, 28
7 Stat. 210, Proc., Jan. 8, 1921 2,17, 42
7 Stat. 234, Proc., Feb. 19, 1825 2, 6, 27
7 Stat. 333, Proc., Feb. 24, 1831 2, 12, 13-14, 17
13 Stat. 365 37, 42
18 Stat. 482 38
30 Stat. 495 3
TEXTBOOKS AND MISCELLANEOUS:
27 Am. Jur. 566 16
42 C.J.S. 694 16
American State Papers, Indian Affairs, Vol. I, p.
257 28
American State Papers, Indian Affairs, Vol. II, pp.
256, 257, 258 12
American State Papers, Indian Affairs, Vol. II, pp.
549-551 _. 6, 27
American State Papers, Indian Affairs, Vol. II, p.
711 7
American State Papers, Indian Affairs, Vol. II, p.
741 . = sae
Andrew Jackson (Portrait of a President) by Mar-
quis James, Vol. 2, p. 246 10
Andrew Jackson (Portrait of a President) by Mar-
quis James, Vol. 2, p. 248 _- aa
Debo, Rise and Fall of the Choctaw Republic, p. 50 6
Laws of Colonial State Governments relating to In-
dians and Indian Affairs from 1633 to 1831, incl.
(Washington 1832), pp. 242-243 8
—_
AUTHORITIES CONTINUED
Niles Register XXXVIII (1830) 73 sss
Senate Document 23d Congress, Ist Session, 512 II,
3 9 i
Senate Documents Indian Removals, 23rd Congress,
lst Session, Document 512 — 12
Senate Documents Indian Removals 23rd Congress
1st Session. Document 512 (Vol. IT), Correspon-
dence on the subject of the Emigration of Indians,
between November 30, 1831, and December 27, }
1833. (Washington: Printed by Duff Green 1835)
No. 245, pp. 240, 241, 242 5, 10-11, 12, 19, 28
Senate Document 512, Vol. IT, pp. 255-258 ..___ aa! oe
—7_
In the
Supreme Court of the United States
OcToBER TERM, 1968
No. 976
Tue CHocTtaw NATION and THE CHICKASAW NATION,
Petitioners,
VERSUS
STATE OF OKLAHOMA, ET AL.,
Respondents.
No. 1104
THE CHEROKEE NATION OF TRIBE OF INDIANS IN OKLAHOMA,
Petitioner,
VERSUS
STATE OF OKLAHOMA, ET AL.,
Respondents.
THE BRIEF OF THE CHOCTAW AND
CHICKASAW NATIONS
This is an appeal by the Choctaw and Chickasaw Na-
tions from the judgment of the United States Court of
Appeals for the Tenth Circuit entered on the 31st day of
October, 1968, in cases numbered 9924 and 9925 in that
court, and which is reported at 402 F.2d 739.
——
=
JURISDICTION
The judgment of the United States Court of Appeals
for the Tenth Circuit in each of these cases was entered on
the 3lst day of Octeber, 1968. Certiorari was granted on
April 21, 1969. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254.
TREATIES AND ACTS OF CONGRESS
INVOLVED
This case involves the Treaty of Doak’s Stand in 1820
(7 Stat. 210, Proc., Jan. 8, 1921), the Treaty of Washington
(7 Stat. 234, Proc., Feb. 19, 1825), the Indian Removal Act
of May 28, 1830 (U. S. Statutes at Large, IX, 411-12), the
Treaty at Dancing Rabbit Creek, September 27, 1830 (7
Stat. 333, Proc., Feb. 24, 1831).
QUESTIONS PRESENTED FOR REVIEW
Was the cession of lands west of the Mississippi to the
Choctaws by the Treaties of 1820 and 1830 a purpose ap-
propriate to the objects for which the United States held
the territory?
When the Treaties of 1820 and 1830 were entered into,
was it understood between the United States and the Choc-
taws that the area ceded to the Choctaws was to be em-
braced within a future state?
Is U. S. v. Holt State Bank, 270 U.S. 49, a relevant
precedent?
Are the guidelines for the construction of the Treaty
of Doak’s Stand in 1820 and the Treaty at Dancing Rabbit
—
a eee.
~ =
Creek in 1830 to be found in Northern Pacific Railway Com-
pany V. Soderberg, 188 U.S. 526, and Caldwell v. United
States, 250 U.S. 14, or in Choctaw Nation v. United States,
119 U.S. 1; Jones v. Meehan, 117 U.S. 1, and Choctaw Na-
tion of Indians v. United States, 318 U.S. 423?
Did the Atoka Agreement of April 23, 1897 (30 Stat.
506), or the Act of June 28, 1898, commonly called the
Curtis Act (30 Stat. 495), effect a retrocession of the bed
of the nevigable portion of the Arkansas River to the United
States?
STATEMENT OF THE CASE
This case involves the ownership of the avulsed beds
and the oil and minerals underlying the navigable portion ’
of the Arkansas River in Oklahoma.
The State of Oklahoma claims to own all the bed of
the navigable portion of the Arkansas River within Okla-
homa. The Choctaw and Chickasaw Nations also claim to
own all of the bed of the navigable portion of the Arkan-
sas River from its confluence with the Canadian River to
the eastern boundary of Oklahoma. The Cherokee Nation
contends that the thread of the river is the boundary be-
tween the Cherokee Nation to the north and the Choctaw
Nation to the south, and claims to own the bed of the navi-
gable portion of the Arkansas River lying in the interior
of the Cherokee Nation.
This action arose after the State of Oklahoma had
leased a sizeable part of the bed of the navigable portion
of the Arkansas River within Oklahoma to several oil
companies.
a
The action was commenced in the United States Dis.
trict Court for the Eastern District of Oklahoma by the
Cherokee Nation against the State of Oklahoma, the sey.
eral oil companies and one sand and gravel company, who
claimed as lessees of the State of Oklahoma (A 5a, 105a),
The Choctaw and Chickasaw Nations intervened. The State
of Oklahoma answered and counter-claimed (A 91a). So
did the oil companies and the sand and gravel company,
The trial court entered judgment on the pleadings in favor
of the State of Oklahoma and against the Choctaw and
Chickasaw Nations and the Cherokee Nation. An appeal
was taken to the United States Court of Appeals for the
Tenth Circuit, which affirmed the judgment of the trial
court (A 13la).
In their aboriginal state, the Choctaws, Chickasaws and
Cherokees occupied large areas in the southern states. The
explosive development of the cotton economy around the
commencement of the nineteenth century brought great
pressures by white planters upon the Federal Government
to move the Indians out of the southern states. The Louisi-
ana Purchase provided a reasonably accessible place to
which the southern Indians were expected to be moved.!
1 Within a year after the Louisiana Purchase was made, Congress passed
the Act of March 26, 1904, entitled “An Act erecting Louisiana into
two territories and providing for the temporary government thereof.”
Section 15 of that Act provided that: “SEC. 15. The President of the
United States is hereby authorized to stipulate with any Indian Tribes
owning lands on the east side of the Mississippi, and residing thereon,
for an exchange of lands, the property of the United States, on the
west side of the Mississippi. . . .”
On August 23, 1830, Andrew Jackson, then President of the United
States, was to say to the Chickasaws that they could only be preserved
as a Nation by conseniing: “. . . to remove to a country beyond the
5
a
Py
h
‘
> 1927 Vee. See See OC
_— .. §
collins
The Cherokees were the first of the southern tribes
to yield to these pressures. By the Treaty of 1817 they gave
up their lands in the southern states for a fee-simple title
to lands in what is now Arkansas. Article V of that treaty
recited that the lands ceded to the Cherokees “. . . is to
commence on the north side of the Arkansas River, at the
mouth of Point Remove or Budwell’s Old Place; thence by
a straight line northwardly to strike Chataunga mountain,
or the hill first above Shield’s Ferry on White River, run-
ning up and between said rivers for complement, the banks
of which rivers to be the lines. . .”?
Before the Choctaws had time to enter in possession
of their new territory it was discovered that the land ceded
to them in Arkansas was already occupied by white set-
tlers. The Federal Government, realizing the difficulty of
dislodging these white families, decided to induce the Choc-
taws to relinquish the land in Arkansas. In 1824 a delega-
tion of Choctaws were invited to Washington to negotiate a
treaty that would relocate the eastern boundary of the land
ceded to them by the Treaty of 1820. On November 9, 1824,
John C. Calhoun, the Secretary of War, addressed a letter
to the Choctaw delegation then in Washington, in which he
1 (Continued )
Mississippi, which for the happiness of our red friends, was laid out
by the Government a long time since, and to which it was expected,
ere this, they would have gone.” Senate Documents Indian Removals
23rd Congress 1st Session. Document 512 (Vol. II) Correspondence
on the subject of the Emigration of Indians, between November 30,
1831, and December 27, 1833. (Washington: Printed by Duff Green
1835) No. 245, pp. 240, 241, 242.
2 The Treaty at Cherokee Agency, July 8, 1817, 7 Stat. 156, Proclama-
tion December 26, 1817.
ay
~
said: “There is no probability that any State or territory
will be erected to the west of the Arkansas territory, . , .»s
A treaty was entered into on January 20, 1825, in the
City of Washington‘ by which the Choctaw Nation retro.
ceded to the United States: “. . . all that portion of the land
ceded to them by the second article of the Treaty of Doak’s
Stand, as aforesaid, lying east of a line beginning on the
Arkansas, one hundred paces east of Fort Smith, and run-
ning thence due south to Red River; it being understood
that this line shall constitute, and remain, the permanent
boundary between the United States and the Choctaws; —
and the United States agreeing to remove such citizens as
may be settled on the west side to the east side of said
line, and prevent future settlements from being made on
the west thereof.”
The emigration contemplated in the Treaty of 1820 was
slow.
In 1826, General William Clark, General Thomas Hinds,
and General John Coffee, as Commissioners for the United
States, held a council with the Choctaws in Florence, Ala-
bama. In an address on November 11, 1826, they said to
the Choctaws:
“The United States have a large unsettled and un- |
appropriated land on the west side of the great river
3 American State Papers, Indian Affairs, Vol. II, pp. 549-551.
4 7 Stat. 234, Proclamation, February 19, 1825.
5 By 1829 about 150 Choctaws had been induced to settle in their new
territory. Debo, Rise and Fall of the Choctaw Republic, at page 50.
| —
stalliin
Mississippi, unto which they do not intend that their
white settlers shall extend.”®
On the 13th of November, the commissioners submitted
for the consideration of the Choctaws the terms upon which
they were authorized to propose a cession by the Choctaws
of their remaining lands in the State of Mississippi. The
commissioners brought to the attention of the Choctaws the
object of their mission, saying:
“ .. but if you are satisfied that under such condi-
tion of things you cannot be happy, consent to move
beyond the Mississippi, where you will be away from
the white people and from their laws, and be able to
live under your own.
7 * + * * * *
“ ,. and your white father can bring you forth;
and can keep the white mans laws from interrupting
and disturbing you; and there I will guard you against
all enemies, whether they be white or red; and no
State or Territory will be created.”
But, the people of Mississippi did not wait for the suc-
cess of these Federal schemes for the removal of the Choc-
taws. In 1829, the Legislature provided for the extension of
State laws over Choctaw and Chickasaw land adjacent to
organized counties. And on January 19, 1830, Tribal govern-
ments were abolished under penalty of fine and imprison-
ment to any Indian who should exercise the “office of Chief,
8 American State Papers, Indian Affairs, Vol. II, page 711.
T Senate Document 512, Vol. II, pages 255-258.
3:
Mingo, Head Man, or other post or power established by
ihe Tribal Statutes, ordinances or customs of the Indians.”s
On May 28, 1830, Congress passed an act which pro-
vided: ®
“Be it enacted by the Senate and House of Repre-
sentatives of the United States of America in Congress
assembled, that it shall and may be lawful for the
President of the United States to cause so much of any
territory belonging to the United States, west of the
river Mississippi, not included in any state or organized
territory, and to which the Indian title has been ex-
tinguished, as he may judge necessary, to be divided
into a suitable number of districts, for the reception
of such tribes or nations of Indians as may choose to
exchange the lands where they now reside, and remove
there; and to cause each of said districts to be so de-
scribed by natural or artificial marks, as to be easily
distinguished from every other.
. * + * . » 2
Sec. 3. “And be it further enacted, that in making
of any such exchange or exchanges, it shall and may
be lawful for the President solemnly to assure the tribe
8 Laws of Colonial State Governments relating to Indians and Indian
Affaiis from 1633 to 1831, inclusive (Washington 1832), pp. 242-
243, see also Niles Register XXXVIII (1830) 73.
On February 22, 1873, the Committee of Indian Affairs in a report
to the House of Representatives of the Third Session of the 42nd
Congress in reviewing these events said: “The course adopted by the
State of Mississippi was necessarily compelling a conflict of authority
between the United States and the State of Mississippi, or else an
abandonment by the United States of its former treaty-stipulations
with the Choctaws, and a gross violation of its agreements with them,
by which it had received of the Choctaws vast tracts of country in
said States of Mississippi and Alabama.”
® Commonly called “The Removal Act”; U.S. Statutes at Large IX 411-
12.
PEP PIS TT. Oe EI LI
a
altins
or nation with which the exchange is made, that the
United States will forever secure and guarantee to
them, and their heirs or successors, the country so ex-
changed with them, and, if they prefer it, that the
United States will cause a patent or grant to be made
and executed to them for the same.”
Shortly after Andrew Jackson took office as President,
Georgia tore up Federal treaties and annexed the territory
of the Cherokee and Creek Nations; Mississippi and Ala-
bama did likewise in the case of the Choctaws and Chicka-
saws. The answer of the Cherokees was to engage William
Wirt of Baltimore, formerly Attorney General and an emi-
nent constitutional lawyer, to take their case into court on
the issue denying a state’s right to annul a Federal con-
tract. As no state possessed this right, the outcome of any
suit, once it should reach the Supreme Court, seemed a
foregone conclusion.?°®
Andrew Jackson, fearing the outcome of Cherokee Na-
tion v. Georgia, and never being one to assume a posture
of meekness toward the courts (particularly where Chief
Justice John Marshall was concerned), directed his Secre-
tary of War, John H. Eaton, to arrange a meeting with the
Choctaws and Chickasaws at Franklin, Tennessee, for Au-
gust 23, 1830. So on June Ist, four days after the passage
of the Removal Act, Secretary Eaton wrote the Chickasaws
and the Choctaws inviting them to meet with him and the
President at Franklin, Tennessee. He professed the benevo-
lent purpose of the Government to remove them from the
hostile jurisdiction of Mississippi saying: '! “Congress has
10 Cherokee Nation Vv: Georgia, 5 Pet. 1.
11 Senate Document 23d Congress, Ist Session, 512 II, 3).
—
—
passed a law manifesting a desire that you should remove
and have liberally prepared the means for taking care of
you.”
Commenting on the remarkable circumstances of the
President of the United States journeying to an Indian
Council Ground for the purpose of making a treaty, Mar-
quis James said in his Pulitzer Prize winning biography
of Jackson: '* “General Jackson traveled westward to cut
the ground from under the courts by persuading as many
Indians as possible to agree to emigrate before any suit
should core up for adjudication. Of the Choctaws and
Chickasaws he had strong hope .. .”
When Jackson reached the meeting place only the
Chickasaws had appeared. His overtures to the Chickasaws
were characteristic of the advances his commissioners were
to make to the Choctaws the following month at Dancing
Rabbit Creek. He deplored the inability of the Federai
Government to protect the Indians from intrusions of the
white settlers and the harrassments of governments of the
southern states and recounted the desires of the Indians to
live in peace and maintain their tribal existence. His pla-
cations confirmed the intention of the Government that the
lands west of the Mississippi to which the southern Indians
were proposed to be moved would never become a part of
any State or Territory. Hear the suasions of Jackson: **
12 Andrew Jackson (Portrait of a President) by Marquis James, Vol. 2,
at page 246.
13 Senate Documents Indian Removals 23d Congress 1st Session. Docu-
ment 512 (Vol. Il) Correspondence on the subject of the Emigration
of Indians, berween November 30, 1831, and December 27, 1933.
(Washington: Printed by Duff Green 1835) No. 245, pp. 240, 241,
242.
——l
—jj1]—
“Brothers, listen: The only plan by which this can
be done, and tranquillity for your people obtained, is,
that you pass across the Mississippi to a country in all
respects equal, if not superior, to the one you have.
Your great father will give it to you for ever, that it
may belong to you and your children while you shall
exist as a nation, free from all interruption.
. * = . e * *
“Peace invites you there, annoyance will be left be-
hind; within your limits, no State or Territorial au-
thority will be permitted; intruders, traders and above
all, ardent spirits, so destructible to health and morals,
will be kept from among you, only as the laws and
ordinances of your nation may sanction their admis-
sion.”
Marquis James recounts: !* “The Indian dignitaries re-
tired for consultation. General Jackson stepped into his
carriage and drove away, leaving John Henry Eaton and
General John Coffee to complete the negotiations. At the
Hermitage he received word of the Chickasaws capitula-
tion. They would cross the Mississippi in 1832. Meantime
the Choctaws agreed to treat. Directing Eaton and Coffee
to meet them, the President set out for Washington the
first week in September.”
Secretary Eaton and General Coffee proceeded from
Franklin, Tennessee, to Dancing Rabbit Creek in Missis-
sippi where they met with the Choctaws on September 15,
1830. On September 18th they exhorted the Choctaws:
“Brothers: hesitate not, determine what you mean to
do on this important occasion; record the votes of your
14 Andrew Jackson (Portrait of a President) by Marquis James, Vol. 2,
at page 248.
—o
head-men, and let us know who amongst you are will-
ing to remove and who are opposed. The sense of the
nation will thus be correctly ascertained, and the ques-
tion which has so much agitated you be finally put to
rest: say it is your determination to remain, and the
subject is done with—we shall then trouble you with
our talks no more. But decide to remove, and liberal
provisions will be made to carry you to a country where
you can be happy, and where already your fathers and
brothers have gone in peace to reside. It is a desirable
region, double in extent to the one you occupy, and
large and fertile enough for twice or three times the
number of people you have. There your great father
can be your friend; there he can keep the white man’s
laws from interrupting and disturbing you; and there,
too, he will guard you against all enemies, whether
they be white or red. There no State or Territory will
be created and he will have it in his power to protect
you fully in your usages, laws, and customs. Here he |
cannot do these things, because neither he nor Con- |
gress possess authority to prevent the States from ex-
tending their jurisdiction over you, and throughout
their limits.”15
PE
eS OT . Se
A treaty was concluded on September 27th, and a sup-
plement was adopted on September 28th.'* It provided that
“The United States under a grant specially to be made by
the President of the United States shall cause to be con-
veyed to the Choctaw Nation a tract of country west of
the Mississippi River, in fee simple to them and their de-
scendants, to inure to them while they shall exist as a
15 Senate Documents Indian Removals, 23d Congress, 1st Session, Docu-
ment 512. American State Papers, Indian Affairs, Vol. Il, pp. 256,
257, 258.
16 Treaty at Dancing Rabbit Creek September 27, 1830, 7 Stat. 333,
Proclamation February 24, 1831.
_—
-_—-
nation, and live on it, beginning near Fort Smith where
the Arkansas boundary crosses the Arkansas River, run-
ning thence to the source of the Canadian Fork; if in the
limits of the United States, or to those limits; thence due
south to Red River, and down Red River to the west
boundary of the Territory of Arkansas; thence north along
that line to the beginning. The boundary of the same to be
agreeable to the Treaty made and concluded at Washington
City in the year 1825. The grant to be executed so soon as
the present Treaty shall be ratified.”
Article IV of the treaty provided that: “The Govern-
ment and people of the United States are hereby obliged
to secure to the said Choctaw Nation of Red People by
jurisdiction and government of all the persons and prop-
erty that may be within their limits west, so that no Terri-
tory or State shall ever have a right to pass laws for the
government of the Choctaw Nation of Red People and their
descendants; and that no part of the land granted to them
shall ever be embraced in any Territory or State; ...”**
17 The southern tribes were the Cherokees, Choctaws, Chickasaws, Creeks
and Seminoles. Their removal from the southern states was a con-
certed action. They were all removed to lands in what became known
as the Indian Territory and what is now the eastern and southern
portions of Oklahoma. That country was intended as the permanent
abiding place of such tribes, where as self-governing communities,
they should be free to enjoy their own tribal laws and customs for-
ever, free from the interference or encroachment of the whites. By
the treaty with the Cherokees of May 6, 1828, the United States guar-
anteed that their permanent home west of the Mississippi “shall never,
in all future time, be placed over it the jurisdiction of a Territory or
State, nor be pressed upon by the extension in any way, of any of the
limits of any existing Territory or State,” and practically the same
guarantee was reaffirmed in the treaty of December 29, 1835. And by
the treaty with the Chickasaws of May 24, 1834, the Government con-
sented to protect the tribes in this new home against any other tribe
atten
For three-quarters of a century this guarantee was to
be the Magna Charta of the national existence of the Choc.
taw Nation.
ARGUMENT
Before the American Revolution, the English Crown
opened the beds of navigable waters. After the American
Revolution, the thirteen states succeeded to the rights of
the Crown. In accepting a new state into the Union the
Federal Government relinquished to the new state the title
which it had to the beds of the navigable streams within
that state. But “. . . Congress has the power to make grants
of lands below high water mark of navigable waters in any
territory of the United States, whenever it becomes neces-
sary to do so in order to perform international obligations,
or to effect the improvement of such lands for the promo-
tion and convenience of commerce with foreign nations and
among the several states, or to carry out other public pur-
poses appropriate to the objects of which the United States
hold the territory.”!*
A. or “Kee
AOA
a CIEE YT,
ee
It is settled law in this country that “. . . where the
United States, after acquiring the territory and before the
17 (Continued)
and from the whites, and agreed to keep them without the limits of
any State or Territory. By Article 14 of the treaty of March 24, 1832,
the Creeks were guaranteed “that no State or Territory should ever
have a right to pass laws for the government of said Indians, but that
they should be allowed to govern themselves, etc.” And by joint treaty
with the Creeks and Seminoles of August 7, 1856, it was provided
that no State or Territory should ever pass laws for said tribes, and
that no portion of their lands should ever be embraced or included
in a State or Territory.
18 Shively v. Bowlby, 152 US. 1, 48, 38 L.Ed. 331, 349.
—
—15—
creation of the state, has granted rights in such lands by
way of performing international obligations, or effecting
the use or improvement of the lands for the purposes of
commerce among the states and with foreign nations, or
carrying out other public purposes appropriate to the ob-
jects for which the territory was held, such rights are not
cut off by the subsequent creation of the state, but remain
unimpaired, and the rights which otherwise would pass to
the state in virtue of its admission into the Union are re-
stricted or qualified accordingly.”*®
Oklahoma contends that the United States never aban-
doned the intention eventually of including all whites and
Indians who moved westward as citizens in one or more
states; that the United States always retained the inten-
tion, the right and the power to include the lands conveyed
to the Choctaws and Chickasaws in a future state, either
through agreement with them or otherwise.?°
Oklahoma also contends that the Arkansas River was
only aluded to in the treaties and the patent to the Choc-
taws as a monument or a reference point.?! Finally, as we
read their brief in opposition to the Petition for Certiorari,
Oklahoma contends that the Atoka Agreement of April 23,
1897 (30 Stat. 506), effected a retrocession of the bed of the
19 United States v. Holt State Bank, 270 US. 49, 55, 70 LEd. 465, 468.
20 It states this as its proposition and argues it im extemso at pages 25,
et seq., of the brief which it filed in this Court in opposition to the
petition of the Choctaw and Chickasaw Nations for certiorari.
21 At page 14 of its brief in opposition to the sage gnge for
certiorari, Oklahoma said: “What have Petitioners to offer to show
this public highway of commerce was conveyed to them? Mere refer-
ences to the Arkansas River—obviously as a boundary, a monument
or a reference point.”
alin.
navigable streams within the land of the Choctaw Nation
to the United States.2?
Under the Constitution, the United States has the Power to
convey a fee-simple title to Indian Tribes.
Indian Tribes are capable of taking lands as owners
in fee simple by purchase where the United States, for a
valuable and adequate consideration, so sell such lands to
them.?*
In an opinion delivered by Mr. Justice Reed, in Rynes
v. Grimes Packing Company, 337 U.S. 86, 103, 104, 93 L.Ed.
1231, 1247, the Court said:
“Since Congress, under the Constitution, Section 3
of Article 4, has the power to dispose of the lands of
the United States, it may convey to or recognize such
rights in the Indians, even a title equal to fee simple,
as in its judgment is just. Northwestern Band of Sho-
shone Indians v. United States, 324 U.S. 335, 339, 340,
89 L. ed 985, 990, 991, 65 Sup. Ct. 690.” (Emphasis sup-
plied.)
2 At the last paragraph, page 29, of its brief in opposition to petition
for certiorari, Oklahoma says abstrusely: “Moreover, shortly before
Oklahoma became a state, agreements were made by the United States
with the Choctaws and Chickasaws and with the Cherokees for the
relinquishment of tribal sovereignty and the allotment of the tribal
lands in severalty and in fee to the tribal members and their freed
slaves. This was tersely expressed in the opinion of the Court of Ap-
peals as follows: “In 1893, Congress created a commission to nego-
tiate with the Cherokees, the Choctaws, and other tribes for the ex-
tinguishment of the tribal titles to land, and the allotment of land to
the individual members of the tribes. The result was an agreement with
the Cherokees and with the Choctaws which nullified treaties incon-
(Continued on page 17)
23 42 CJS. 694, 27 Am. Jur. 566 and authorities cited thereat.
_——
—]7—
By the Treaty at Doak’s Stand in 1820 and the Treaty at
Dancing Rabbit Creek in 1830, the United States conveyed
to the Choctaw Nation the fee-simple title to the lands west
of the Mississippi situated in what is now Oklahoma.
By Article I of the Treaty concluded at Doak’s Stand
on April 18, 1820, the Choctaws ceded to the United States
a part of the lands owned by them in Mississippi.** Article
II of the Treaty provides:
“For and in consideration of the foregoing cession
on the part of the Choctaw Nation, and in part satis-
faction for the same, the Commissioners of the United
States on behalf of the United States, do hereby cede
to said Nation, a tract of country west of the Missis-
sippi River .. .”
On September 27, 1830, the United States entered an-
other treaty with the Choctaws at Dancing Rabbit Creek?®
by which the Choctaws ceded to the United States the rest
of the land they owned in Mississippi. The treaty provided
for minor gifts to the Indians and by Article II the United
States again conveyed to the Choctaw Nation the lands
west of the Mississippi River situated in what is now Okla-
homa:
22 (Continued )
sistent therewith and which provided for the allotment of the lands.
These agreements were followed by the Act of April 26, 1906, 34
Stat. L. 137, which provided for final disposition of the affairs of the
Five Civilized Tribes. This Act required that lands belonging to the
tribes on their dissolution shall be held by the United States in trust
for the use and benefit of the Indians.” (Emphasis appeared in Okla-
homa’s brief.)
24 7 Stat. 210.
25 7 Stat. 333.
x=
“. .. in fee simple, to them and to their descendants,
to inure to them while they shall exist as a nation and
live on it...”
Mr. Justice Holmes, speaking for the Court in Fleming
v. McCurtain, 215 U.S. 56, 59, 54 L.Ed. 88, 91, said:
“We should mention, however, that the United States
already had ceded this tract to the Choctaw Nation
with no qualifying words by the Treaty of October 18,
1820 (Art. II, 7 Stat. at L. 210 Choctaw Nation v. United
States, 119 U.S. 1, 38, 30 L. Ed. 306, 318, 7 Sup. Ct. Rep.
75. The Treaty of 1830 only varied the description a
little and provided for a special patent.”
The conveyance of the fee title to the lands in Oklahoma to
the Choctaws by the Treaties of 1820 and 1830 and by the
patent of 1842 and the removal of the Choctaws on to those
lands were each “a public purpose appropriate to the ob-
jectives for which the United States held the Territory.”
The desire of the Federal Government to move Indians
out of the southern states is such a commonly-known fact
that the Court may take judicial notice of it. It would be
an unnecessary labor upon the Court to cite the endless
historical writings on the subject. Sufficient to say, within
a year after the Louisiana Purchase was made, Congress
passed the Act of March 26, 1904, entitled “An Act erecting
Louisiana into two territories and providing for the tempo-
rary government thereof.” Section 15 of that Act provided
that: “SEC. 15. The President of the United States is hereby
authorized to stipulate with any Indian Tribes owning lands
on the east side of the Mississippi, and residing thereon, for
an exchange of lands, the property of the United States, on
the west side of the Mississippi .. .”
5 TE SEL 6 PNT SS Pitta per e eAPRC ES :
Ee i oS Ee sete -
|
—19—
On August 23, 1830, Andrew Jackson, then President
of the United States, was to say to the Chickasaws that
they could only be preserved as a Nation by consenting:
« to remove to a country beyond the Mississippi, which
for the happiness of our red friends, was laid out by the
Government a long time since, and to which it was ex-
pected, ere this, they would have gone.”26
Generals Clark, Thomas, and Hinds, who, as commis-
sioners of the United States negotiating for the removal of
the Choctaws, said to them in an address at the Treaty
Ground of the Choctaw Nation on November 11, 1826: “The
United States have a large unsettled and unappropriated
country on the west side of the great river Mississippi, into
which they do not intend that their white settlers shall
extend. This is the country in which our father the Presi-
dent intends to settle all of his Red children. * * * We shall
now proceed to state the views which the General Govern-
ment of the United States has at present in contemplation.
It is the policy and interest of the Government to extin-
guish the Indian title to all the lands on this side of the
Mississippi.”??
For brevity it need only be added that the Indian Re-
moval Act of 1830 making it lawful for the President of
the United States to cause so much of any territory belong-
ing to the United States west of the Mississippi River not
26 Senate Documents Indian Removals, 23d Congress, 1st Session. Docu-
ment 512 (Vol. II) Correspondent on the subject of the Emigration
of Indians, between November 30, 1831, and December 27, 1833.
———— Printed by Duff Green 1835) No. 245, pp. 240, 241,
242.
27 American State Papers, Indian Affairs, Vol. II, page 741.
included in any state or organized territory and to which
the Indian title had been extinguished, as he may judge
necessary, to be divided into a suitable number of districts,
for the reception of such tribes or Nations of Indians as
he might choose to exchange the lands where they now
reside and remove them there, clearly evinced a public pur-
pose that was appropriate to the objects for which the
United States held the territory.
Se ae
Where Congress has granted lands underlying navigable wat.
ers by way of carrying out public purposes appropriate
to the objects for which the territory was held, such rights
are not cut off by the subsequent creation of a state but
remain unimpaired, and the rights which otherwise would
pass to the state by virtue of its admission to the Union
are restricted or qualified accordingly.
This Court said in Holt State Bank:
“It is settled law in this country that lands under-
lying navigable waters within a state belong to the
state in its sovereign capacity and may be used and
disposed of as it may elect, subject to the paramount |
power of Congress to control such waters for the pur- _
poses of navigation in commerce among the states and _
with foreign nations, and subject to the qualification
that where the United States, after acquiring the terri- é
tory and before the creation of the state, has granted _
rights in such lands by way of performing international ~
obligations, or effecting the use or improvement of the
lands for the purposes of commerce among the states
and with foreign nations, or carrying out other public
purposes appropriate to the objects for which the terri-
tory was held, such rights are not cut off by the subse-
quent creation of the state, but remain unimpaired, and
the rights which otherwise would pass to the state in
virtue of its admission into the Union are restricted
_—
— }
or qualified accordingly. Barney v. Keokuk, 94 U.S. 324,
338, 24 L.ed. 224, 228; Shively v. Bowlby, 152 U.S. 1,
47, 48, 57, 58, 38 L.ed. 331, 348, 349, 352, 14 Sup. Ct.
Rep. 548; Scott v. Lattig, 227 U. S. 229, 242, 57 L.ed 490,
496, 44 L.R.A. (N.S.) 107, 33 Sup. Ct. Rep. 242; Seattle
v. Oregon & W.R. Co., 255 U.S. 56, 63, 65 L.ed. 500, 506,
41 Sup. Ct. Rep. 237; Brewer-Elliott Oil & Gas Co. v.
United States, 260 U.S. 77, 83-85, 67 L.ed 140, 144, 145,
43 Sup. Ct. Rep. 60.”
The court below said:?® “From a practical standpoint
the equal footing principle must be recognized and main-
tained. There is no place in our federal system for a second
class state.” Unquestionably the conclusion of the court be-
low makes the “equal footing” doctrine so inelastic that it
would not admit of any exceptions. But the court below’s
conclusion is inconsistent with its acknowledgment?® of the
exceptions to the “equal footing” doctrine reflected in
Moore v. United States (9 Cir.), 157 F.2d 760, cert. 330 U.S.
827, and in United States v. Stotts (W.D. Wash.), 49 F.2d
619, and of the several exceptions this Court cites in sup-
port of the rule so forcefully enunciated in United States v.
Holt State Bank.
In Case v. Toftus, 39 F. 730, 731, Oregon (1889), an
often quoted decision, the Court said of the “equal footing
doctrine”:
“The true constitutional equality between the states
only extends to the right of each, under the constitu-
tion, to have and enjoy the same measure of local or
self-government, and to be admitted to an equal par-
28 Appendix 140a.
29 Appendix 144a.
~~ =
ticipation in the maintenance, administration and con.
duct of the common or national government. * * * Ip
the territories the national government is both soy.
ereign and proprietor. * * * And as such sovereign or
proprietor it may dispose absolutely of all of the public
land in the territory whether high or low, wet or dry.”
Case v. Toftus was decided more than a half century _
before Alaska became a state. But gauge the cogency of the _
Court’s inquiries:
Can any one say when, if ever, Alaska will be ad-
mitted into the Union, on an equal footing with Ohio,
Pennsylvania, and New York? For aught that appears,
it will ever be but very sparsely populated. Its com-
mercial value is principally as a splendid preserve for
fish and fur; while as a summer touring ground, and
a place to get “far from the madding crowd,” it is
original and unequaled. Can it be possible that in the
meantime the United States may not dispose of the
private property in any of the “shore” of Alaska, which
it purchased from Russia, but must hold it, willing or
not, as trustee for some possible state or local sovereign
that may arise or rule there in the far future?
It is enough to say that the conveyance of the fee title
to the lands in Oklahoma to the Choctaws by the treaties
of 1820 and 1830, and by the patent of 1842, and the removal
of the Choctaws onto those lands were each “a public pur-
pose, appropriate to the objects for which the United States —
held the Territory” and it was not cut off by the subsequent _
creation of Oklahoma, but remained unimpaired and the
ownership of the bed of the navigable portion of the Ar-
kansas River within its boundaries which otherwise would
have passed to Oklahoma by virtue of its admission to the
Union are restricted or qualified accordingly.
—
—23—
It cannot be said that the United States intended to reserve
the bed of the navigable portion of the Arkansas either
for itself or for the benefit of a hypothetical state which
neither the Choctaws nor the Government ever thought
would come into existence.
States entering the Union do so on an equal footing
with the other states. The true constitutional equality in
the sense of the “equal footing doctrine” extends, however,
only to the right of each state under the Constitution to
have and enjoy the same measure of local or self-govern-
ment, and would be admitted to an equal participation in
the maintenance, administration and conduct of the com-
mon or national government. It does not require that the
new state should be admitted to any right in the soil thereof
considered as property.
The “equal footing doctrine” refers to political rights
of sovereignty, not economic stature or standing. Thus, this
Court, speaking through Mr. Justice Douglas in the cele-
brated Tidelands case,*° said:
“The ‘equal footing’ clause has long been held to
refer to political rights and to sovereignty. See Stearns
v. Minnesota, 179 US 223, 245, 45 L. ed 162, 174, 21 SCt
73. It does not, of course, include economic stature or
standing.”
In its decision the court below said:*! “Title to the
riverbed in question passed to Oklahoma on admission un-
less prior thereto Congress disposed of the federal title for
a public purpose by an action showing a clear intent to
80 U.S. v. Texas, 339 US. 709, 7°6, 94 L.Ed. 1222, 1226.
31 14la.
—24—
make such divestiture. Such intent is not definitely de.
clared in the grant. The question is whether the surround.
ing circumstances make that intent very plain.”
“The intent is said to be established by the agreement
of the United States that no state or territory would be
created in the area granted. The acceptance of this position
would have widespread implications because, as we have
seen, other states were created in areas covered by Indian
treaties having similar provisions to those found in the
Treaties of New Echota and Dancing Rabbit Creek. We
believe that such provisions had to do with the exercise of
political power rather than with property rights. The po-
litical aspects were changed by the Indians’ acceptance of
the nullification of the treaties. The property rights were
unaffected by either the recognition or the nullification of
the treaty provisions concerned with the creation of state
or territorial governments.”
The court below cited no judicial precedent for its be-
lief. Indeed, none has been suggested in any of the briefs
or in the arguments advanced by Oklahoma. This belief
of the court below seems to have been borrowed from this
Court’s construction of the “equal footing doctrine.” It
parallels the language of Mr. Justice Douglas in the Tide-
lands case. But at Doak’s Stand in 1820, and at Dancing
Rabbit Creek in 1830, the United States on the one side,
and the Choctaws on the other side, were not talking about
a future state embracing the area to be ceded to the Choc-
taws and it entering the Union on an equal footing with
other states. The converse—that the area would never be
embraced in a future state—was the subject of those talks.
The “equal footing doctrine” had no relation to the compact
a
—25—
upon which the minds of the treating parties met at Doak’s
Stand and at Dancing Rabbit Creek.
As the United States agreed that he area ceded to the
Choctaws would not be embraced ina future state, then
for what reason can it be said that theUnited States would
have wanted to have reserved the soiland minerals under-
lying that short portion of the Arkmsas River which is
navigable within the present boundaies of Oklahoma?
The following map shows Oklaioma and the lands
ceded to the southern tribes and to vhich they were re-
moved from their aboriginal homes est of the Mississippi.
It shows the confluence of the Gran| River and the Ar-
kansas. That strip of the Arkansas belay its confluence with
the Grand River was the only navigible waters in Okla-
homa and is the part involved in thee cases. It has been
shaded more prominently to facilitate identification.
L
¢
On 3
@__s0 CHOCTAW
|
It cannot be seriously argued that thé short stretch of the
Arkansas River was reserved by tht United States from
the operation of the treaties at Doak’sStand and at Dancing
- Rabbit Creek as an avenue of comme@ce to Mexican lands
—26—
hundreds of miles overland to the west? or to any of the
lands north of the area ceded to the Cherokees and the
Creeks and Seminoles, which were also separated from it
by hundreds of overland miles.
In its decision the court below consistently returned
to the thesis that in treating with the Choctaws, the United
States always intended that the area ceded to the Choctaws
should be embraced in a future state. Thus at 145a we hear
the court below saying: “It requires a clear and definite
intent to convey the beds of the navigable rivers which
otherwise would pass to a state on admission.” And, “noth-
ing in the treaties, statutes, and conveyances establish an
intent by the United States as trustee for the states to be
formed, to convey away property held for the benefit of
the new state.” (Emphasis supplied. )
We must inquire into the validity of the conclusion of
the court below that the United States always—even as it
negotiated and signed the treaties at Doak’s Stand and at
Dancing Rabbit Creek—intended that a state was to be
formed in the lands ceded to the Choctaws and that it was
holding the bed of the navigable portion of the Arkansas
in that area for the benefit of the hypothetical future state.
John C. Calhoun, the Secretary of War of the United
States, urging the Choctaws to retrocede to the United
32 Oklahoma was then on the western frontier of the United States. Be-
yond it lay Mexico. Mexico gained its independence from Spain in
1821. Texas gained its independence from Mexico in 1836 and en-
tered the Union in 1845.
The treaty with the Choctaws of September 27, 1830, at Dancing
Rabbit Creek, described the lands conveyed to the Choctaws as, “be-
ginning near Fort Smith where the Arkansas boundary crosses the
Arkansas River, thence to the source of the Canadian fork; if in the
limits of the United States, or to those limits .. .”
_—_"
—27—
States that part of their lands lying in Arkansas, said to
their delegation in Washington in 1824: “There is no prob-
ability that any State or territory will be erected to the
west of the Arkansas territory . . .”°3 Two months later
Calhoun’s negotiations with the Choctaw delegation in
Washington resulted in the Treaty of 1825,3* which estab-
lished the permanent boundary line between the United
States and the Choctaws and in which the United States
agreed in reference to such line that it would “. . . prevent
future settlements from being made on the west thereof.”
On November 11, 1826, at the Treaty Grounds of the
Choctaws, General William Clark, General Thomas Hinds,
and General John Coffee said to them: “The United States
have a large unsettled and unappropriated country on the
west side of the great river Mississippi into which they
do not intend that their white settlers shall extend. This
is the country in which our father the President intends
to settle all his Red Children.”
In urging the Chickasaws to move to the west, Presi-
dent Jackson said to them in August, 1830, at Franklin,
Tennessee: “Peace invites you there, annoyances will be
left behind; within your limits no State or territorial au-
thority will be permitted.”
Jackson’s Secretary of War, John H. Eaton, and Gen-
eral Coffee were with him at Franklin, Tennessee. On his
instructions they proceeded on to Dancing Rabbit Creek
in Mississippi where they met with the Choctaws on Sep-
83 7 Stat. 234, Proclamation, February 19, 1825.
84 American State Papers, Vol. II, pages 549-550.
/
tember 15, 1830. On September 18th, they exhorted the |
Choctaws to move to the country west of the Mississippi,
pledging to them that out of the lands to be ceded them,
west of the Mississippi, “. . . no State or Territory will be
created . . .”35
Article IV of the treaty concluded with the Choctaws
at Dancing Rabbit Creek on September 27, 1830, was a re-
sult of these pledges. It provided that:
“The Government and people of the United States
are hereby obliged to secure to the said Choctaw Na-
tion of Red People by jurisdiction and government of
all the persons and property that may be within their
limits west, so that no territory or State shall ever
have the right to pass laws for the government of the
Choctaw Nation of Red People and their descendants;
and that no part of the land granted to them shall ever
be embraced in any Territory or State; .. .”
=~ =
)
There has never been a decision in any court of record
concerning the ownership of the navigable portion of the
Arkansas River in which either the Choctaw or Chickasaw
Nations were parties. There has never been a decision by
any court involving the ownership of the navigable por-
tions of the bed of the Arkansas River in which the owner-
ship of the Choctaw Nation or the effect of the Treaties at
Doak’s Stand or Dancing Rabbit Creek on the ownership
of the soil underlying the navigable portion of the Arkan-
sas was raised or taken into consideration. This is the first
forum in which the Choctaw and Chickasaw Nations have
had an opportunity to be heard. :
35 Senate Documents Indian Removals 23d Congress, Ist Session, Docu-
ment 512. American State Papers, Indian Affairs, Vol. II, page 257.
—
In the courts below, Oklahoma relied heavily upon the
decisions of its Supreme Court in State v. Nolegs, 139 Pac.
943; Vickery v. Yahola Sand and Gravel, 12 P.2d 881. Each
of these cases is predicated upon the conclusion of the
Supreme Court of Oklahoma, that notwithstanding its trea-
ties with the Choctaws, the bed of the navigable portion of
the Arkansas “. . . was retained and held by the United
States in trust for the future state and upon admission of
the State of Oklahoma to the Union in 1907, the title thereto
vested and became the property of the State of Oklahoma.”
—_ .
In State v. Nolegs, Oklahoma brought an action to quiet
title to an island in the Arkansas River against Nolegs, a
member of the Osage Tribe of Indians. The Jim Crow Oil
Company intervened.
The Oklahoma Court held that the ownership of the
navigable water and soil under them and all of the terri-
tory embraced in the Louisiana Purchase was held in trust
by the Federal Government for the benefit of future states,
and, as each of the states was created, the same, within
the boundary of such state, passed to it, and the absolute
right to the navigable waters and the soil thereunder was
in the State of Oklahoma. Apparently the decision of the
court was influenced by an incident which occurred in
March, 1908, in which the United States Indian Agency
had been asked to enter into a contract for taking sand
and gravel from the Arkansas within the limits of the
Cherokee Nation. At that time there were other contracts
for taking sand and gravel from the Arkansas. It was con-
tended that after statehood neither the Cherokee Nation
nor the Department of the Interior had further jurisdiction
to the matter and that the contractors should no longer
an a a mR .
—
- =
be required to pay them royalty for sand and gravel taken
from the navigable portion of the Arkansas. The acting
commissioner of Indian Affairs held that the warranty
deeds, by virtue of which the sand and gravel was being
removed, became void upon Oklahoma becoming a state
because, as he said: “In other words, when the United
States conveyed by warranty deed the lands occupied by
Cherokees, Creeks, Choctaws, Chickasaws and Seminoles,
it did not convey the bed of the navigable streams, but
reserved them for the benefit of the future state within
whose boundaries they would fall.”
In the early 1930's, an action was commenced by one
Vickery against the Yahola Sand and Gravel Company in
which one of the issues was the ownership of the bed of
the Arkansas. After an appeal was perfected to the Su-
preme Court of Oklahoma (158 Okla. 120, 12 P.2d 881), the
State of Oklahoma ex rel the Commissioners of the Land
Office intervened. In its opinion, the court acknowledged
the validity of the rule in Shively v. Bowlby?* that Con-
gress has the power to make grants of land below the high-
water mark of navigable waters in any territory of the
United States where it becomes necessary to do so in order
to carry out the public purposes (second column of page
883). But then (the latter part of first column of page 885)
the court reasoned that it would be far better for the
Cherokees “. . . that the title to the navigable portions of
the Arkansas be kept and held in the United States for the
ultimate use and benefit of the future state, if and when,
by the consent of the Cherokee Tribe, a state should be
erected embracing the Jand so granted to them.”
86 152 US. 1.
-_ =
The Treaty of Dancing Rabbit Creek, September of
1830, was negotiated by the Secretary of War, John H.
Eaton, and General John Coffee, for and in behalf of the
United States, with Greenwood LeFlore, Moshulatubbee,
and Nitakechi, for the Choctaws. We can imagine the fol-
lowing conversation between Mr. Eaton for the United
States and Moshulatubbee for the Choctaws at the signing
of the treaty:
Mr. Eaton: The treaty is ready for our signatures, and
there is nothing wrong with what has been writ-
ten, but I now see that an important provision
has been omitted.
Moshulatubbee: What is that?
Mr. Eaton: There should be a provision in the treaty
that the United States reserves the ownership of
the sands and soils in the bed of the Arkansas
River.
Moshulatubbee: Why in the world would you want a
long strip of sand and soil in the heart of the In-
dian country?
Mr. Eaton: The Arkansas is a navigable river, and it
has long been the policy of the United States to
reserve the beds of navigable rivers for future
states.
Moshulatubbee: But, you forget that this treaty pro-
vides that no state or territorial government shall
ever be established along the lands that you have
granted us, and the Cherokee treaty to the north
contains a like provision.
Mr. Eaton: But we need this provision. The War De-
partment through its engineers needs to remove
the stumps from the river so we can get our boats
up to Fort Gibson.
conn
Greenwood LeFlore: But in Article IV you have pro-
vided that the laws passed by the Choctaws’ Na-
tional Council shall be not inconsistent with the
Constitution, treaties and laws of the United
States, and your power to regulate commerce is
enough for your purpose without ownership of
the riverbed.
United States v. Holt State Bank is not a relevant precedent
because, without any qualifying words, the Government con.
veyed to the Choctaws a fee-simple title to the lands ceded
to them in what is now Oklahoma and further guaranteed
“. . . that no part of the land granted to them shall ever
be embraced in any Territory or State.”
On discovery of the American continent, the principle
was asserted and acknowledged by all European nations
that discovery followed by actual possession gave title to
the Government, by whose subject and authority it was
made, not only against other European governments, but
against the natives themselves.*?
In the United States, the right of the European dis-
coverers, having been succeeded to by the states or by the
Federal Government, the Indian title to land is a right of
possession and occupancy, the fee being in the Federal
Government.** However, under the Constitution the United
States has the power to convey a fee-simple title to Indian
Tribes.*®
37 Butts v. Northern Pacific Railway, 7 Sup.Ct. 100, 119 US. 55; Beecher
v. Wetherby, 95 US. 517.
38 U.S. v. Santa Fe Pacific Railway Company, 314 US. 339, 312 US.
695; M. K. & T. Railway Co. v. U. S., 235 US. 37.
39 Hynes v. Grimes Packing Company, 337 US. 86, 103, 104.
_—
~~
In United States v. Holt State Bank*® the fee was in
the United States, the Indians having only a right of oc-
cupancy. In the case at bar, however, the fee was in the
Choctaws. This significant fact interdicts United States v.
Holt State Bank.*!
The claim of the Choctaws in the case at bar is bot-
tomed on the premise that, by the treaties of 1820 and 1830,
and the patent of 1842, they became the owners of the fee-
simple title to the lands ceded to them in what is now
Oklahoma, and in making the grant to them the Govern-
ment guaranteed that the area would never be embraced
by any State or Territory. Conversely, United States v.
Holt State Bank is bottomed on the premise that the fee
to the lands involved there was vested in the Government,
the Indians having only a right of occupancy,*? and that
the area would be embraced by a future state.
40 270 US. 49, 70 L.Ed. 465.
41 The case at bar deals with the construction of Article II of the Treaty
entered into with the Choctaws at Dancing Rabbit Creek on Septem-
ber 27, 1830 (7 Stat. 333), which provides: “The United States under
grant especially to be made by the President of the United States shall
cause to be conveyed to the Choctaw Nation a tract of the country
west of the Mississippi river in fee simple . . .” United States v. Holt
State Bank dealt with the Chippewa treaty entered in the City of
Washington on February 22, 1855 (10 Stat. 1165), the first article
of which provided: “And the said Indians do hereby fully and entirely
relinquish and convey to the United States any and all right, title and
interest, of whatever nature the same may be, which they may now
have, and to any other lands in the Territory of Minnesota or else-
where.”
42 The Court observed at 270 US. 58, 70 LEd. 470: “The effect of what
was done was to reserve in a general way for the continued occupa-
tion of the Indians what remained of their aboriginal territory; and
thus it came to be known and recognized as a reservation. Minnesota
. Hitchcock, 185 U.S. 373, 389, 46 L.Ed. 954, 963, 22 Sup.Ct. Rep.
50.”
alin
In United States v. Holt State Bank the Indian tribe
was the grantor. The Government was the grantee. The
Court noted** that when the Indian tribe made the cession
to the Government: “There was no formal setting apart of
what was not ceded . . .” The Court is there saying that
the Chippewas were the grantors and had they wanted to
keep the soil and the minerals underlying Mud Lake, they
should have formally set them apart from their cession.
This Court, in reviewing the treaties between the Chip-
pewas and the United States, did not find in United States y,
Holt State Bank: “. . . anything evidencing a purpose to
depart from the established policy, before stated, of treat-
ing such lands as held for the benefit of the future state.”44
The sine qua non of Minnesota’s ownership of the soil
and minerals underlying Mud Lake are: First, the lands
were not ceded by the United States to the Chippewas.
The reverse was true. The Chippewas ceded the land to
the United States without any reservation except the right
of occupancy. Second, the Chippewas having ceded the
lands to the United States prior to Minnesota becoming a
State, the policy of treating lands underlying navigable
waters for the benefit of future states became applicable.
But the absolute prerequisites to Oklahoma’s owner-
ship of the soil and minerals underlying the navigable por-
tion of the Arkansas River within its borders are missing
from the case at bar. For here, without qualifying words, the
United States had conveyed to the Choctaws the fee-simple
43 First column, 70 L.Ed. 470.
44 270 US. 58, 70 L.Ed. 470.
—
sailiien
title to their lands in what is now Oklahoma. And here
the policy of retaining the bed of navigable streams in
those lands for the benefit of a future State has no appli-
cation because the United States had by treaty specifically
guaranteed the Choctaws “that no part of the lands granted
to them shall ever be embraced in any Territory or State”
(Article IV of the Treaty of 1830).
Paraphrased to reflect the facts in the case at bar,
United States v. Holt State Bank would have read:
The United States was the grantor of the patent of
1842 conveying to the Choctaws, without any qualify-
ing words, the fee-simple title to their lands in what
is now Oklahoma. There was no formal setting apart
of what was not ceded. The guarantee given by the
United States in its treaties with the Choctaws that
no part of the lands granted to them shall ever be
embraced in any Territory or State evinced a purpose
to depart from the established policy of treating such
lands as held for the benefit of a future state.
Had this Court been addressing itself to the facts in
the case at bar, it would have said in United States v. Holt
State Bank that, as the Government was the grantor of
the lands in what is now Oklahoma and the Choctaws were
the grantees, and that it was not intended in either 1820
or 1830 that the lands should be embraced in a future State
or Territory, if the Government had wanted to keep the
soil and the minerals underlying the navigable streams in
those lands, it should have formally set them apart from
its grant.
==
In effect the court below’s construction of Northern Pacific
Railway Company v. Soderberg, 188 U.S. 526, 534 and
Caldwell v. United States, 250 U.S. 14, 20, vitiates Choe.
taw Nation v. United States, 119 U.S. 1, 27, 28, 31 L.Ed,
315, Jones v. Meehan, 117 U.S. 1, 10, 11, Choctaw Nation
of Indians v. United States, 318 U.S. 423, 431, 432, $7
L.Ed. 877, 882, 883 and the stipulation in the last sent.
ence of Article XVIII of the Treaty concluded at Dancing
Rabbit Creek in 1830 that “. . . in the construction of this
treaty wherever well-founded doubt shall arise, it shall be
construed most favorably to the Choctaws.”
In its opinion, the court below said: *5 “We recognize
that an Indian treaty is to be liberally construed in favor
of the Indians as unlettered people understood it and as
justice and reason demand when the strong assert power
over those to whom they owe care and protection. Another
rule of construction is that in a grant by the sovereign
nothing passes by implication.”, citing Northern Pacific
Railway Company v. Soderberg and Caldwell v. United
States. The court below then said: “Holt State Bank ex-
tends this rule to a situation relating to Indian lands and
the equal footing-implied trust doctrine. Although Holt
State Bank did not deal with a claim presented by Indians
and although the United States is not a party to this case,
we believe that the rule announced in that decision must
apply. It requires a plain and definite intent to convey the
bed of navigable rivers which otherwise would pass to a
state on admission. * * * Nothing in the treaties, statutes
or conveyances establishes an intent by the United States,
as trustee for states to be formed, to convey away property
held for the benefit of the new states.” (Emphasis supplied.)
45 145a.
—7_
—37—
The pith of the decision of the court below is that a
construction of the treaties of 1820 and 1830 must be
adopted which would have supported a claim of the United
States to the soil and minerals underlying the navigable
portion of the Arkansas River in the area ceded to the
Choctaws if that claim had been asserted immediately after
the signing of those treaties.
The court below thus placed this Court’s decisions in
Northern Pacific Railway Company v. Soderberg and Cald-
well v. United States, vis-avis its decisions in Choctaw
Nation v. United States, Jones v. Meehan, Choctaw Nation
of Indians v. United States, Winters v. U. S., 207 U.S. 564,
576, 577, Worcester v. Georgia, 6 Pet. 515, 582, 8 L.Ed. 483,
508, Carpenter v. Shaw, 280 U.S. 263.
Northern Pacific Railway Company v. Soderberg was
a bill filed by the railway company to enjoin Soderberg
from taking granite from land of which he had taken pos-
session under a mineral location and for an accounting of
the granite quarried or removed. The railway company al-
leged its incorporation under the Act of July 2, 1864 (13
Stat. 365) and the grant to it by that Act of every alter-
nate odd-numbered section of public land, not mineral, and
to the amount of twenty alternate sections per mile on each
side of the line when passing through the territories. The
bill further alleged that the principal value of the land in
dispute consisted of a ledge of granite; that in 1898, Soder-
berg entered upon the land and began to quarry and re-
move the granite under a niineral location. Soderberg
answered that the lands were mineral in character, and as
such excepted from the Act.
==
The construction of that grant was governed by the
general rule—“. . . that grants from the sovereign should
receive a strict construction,—a construction which would
support the claim of the government rather than that of
the individual.”
Caldwell v. United States was an action brought by _
Caldwell to recover the value of certain timber cut from |
the public lands of the United States in the State of Colo-
rado.*® Caldwell based his right of recovery upon contracts
with the Denver, Northwestern and Pacific Railway Com-
pany which had been given the right by the Act of Con-
gress of March 3, 175 (18 Stat. 482), to take from the
public lands adjacent to its line, timber necessary for the
construction of its railroad. Under contract with the rail-
way company, Caldwell moved from lands adjacent to the
railroad approximately 88,000 ties and delivered them to
the company. After the ties were moved, a large amount
of “tie slash” was left. Caldwell attempted to sell about
200 cars of “tie slashes” to the Frazier River Timber Com-
pany and to the Leyden Coal Company to be used as min-
ing props. Officers of the Forest Service refused to allow
Caldwell’s transferees to have a large portion of the “tie
slash” of which they took possession and sold, the proceeds
being placed in the treasury of the United States. Caldwell
then brought that action to recover the sums paid into the
treasury of the United States claiming that there was no
provision in the Act of March 3, 1875, for disposition of
what remained of trees after portions of them had been
46 Called “tie slash” and “tie slashing,” the term being used to describe
the tops of trees, the bodies of which had been used for making rail-
road ties.
_—
==
used for making ties for railroad purpos&, He argued that
the railroad company was entitled to the ‘tie slash” as inci-
dent to its right to cut under the Act >f Congress. This
Court held that grants such as the one given by the Act of
March 3, 1875, must be construed favoratly to the Govern-
ment; that nothing passed but that whicl was conveyed in
clear and explicit language—inferences ling resolved, not
against, but for, the Government.
The facts in the case at bar are not faintly suggestive
berg or Caldwell v. United States. For the United States
stipulated by the last sentence in Article XVIII of the treaty
concluded at Dancing Rabbit Creek in 139, that:
« in the construction of this treaty wherever well
founded doubt shall arise, it shall je construed most
favorably towards the Choctaws.”
This provision reflects the policies estabished by both the
Government and the courts before the [reaty at Dancing
Rabbit Creek and followed without excsption since. Thus,
we hear this Court saying in Choctaw Nation v. United
States, 119 U.S. 1, 27, 28, 30 L.Ed. 315 ( 996):
“It had accordingly been said in the case of Wor-
cester v. Georgia, 6 Peters, 582 (3, U.S. bk. 8, L.ed.
508): ‘The language used in treati¢g, with the Indians
should never be construed to their jrejudice. If words
be made use of which are susceptple of a more ex-
tended meaning than their plain import as connected
with the tenor of the treaty, they sloyld be considered
as used only in the latter sense. * : * How the words
of the treaty were understood |y this unlettered
people, rather than their critical Maning, should form
the rule of construction.’
—40—
“The recognized relation between the parties to this
controversy, therefore, is that between a superior and
an inferior, whereby the latter is placed under the
care and control of the former, and which, while it
authorized the adoption on the part of the United
States of such policy as their own public interests
may dictate, recognizes, on the other hand, such an
interpretation of their acts and promises as justice
and reason demand in all cases where power is ex.
erted by the strong over those to whom they owe
care and protection. The parties are not on an equal
footing, and that inequality is to be made good by the
superior justice which looks only to the substance of
the right, without regard to technical rules, framed
under a system of municipal jurisprudence, formu-
lating the rights and obligations of private persons,
equally subject to the same laws.
“The rules to be applied in the present case are
those which govern public treaties, which, even in
case of controversies between nations equally inde-
pendent, are not to be read as rigidly as documents
between private persons governed by a system of tech-
nical law, but in the light of that larger reason which
constitutes the spirit of the law of nations. And it is
the treaties made between the United States and the
Choctaw Nation, holding such a relation, the assump-
tions of fact and of right which they presuppose, the
acts and conduct of the parties under them. The rule
of interpretation already stated, as arising out of the
nature and relation of the parties, is sanctioned and
adopted by the express terms of the treaties them-
selves.”
And again, in 1943, in Choctaw Nation of Indians v. United
States, 318 U.S. 423, 431, 432, 87 L.Ed. 877, 882, 883:
“Of course treaties are construed more liberally
than private agreements, and to ascertain their mean-
_—
online
ing we may look beyond the written words to the
history of the treaty, the negotiations and the prac-
tical construction adopted by the parties. Factor v.
Laubenheimer, 280 US 276, 294, 295, 78 L.ed. 315, 324,
325, 54 S.Ct. 191, Cook v. United States, 288 US 102,
112, 77 L.ed. 641, 646, 53 S.Ct. 305. Especially is this
true in interpreting treaties and agreements with the
Indians; they are to be construed, so far as possible,
in the sense in which the Indians understood them,
and ‘In a spirit which generously recognizes the full
obligation of this nation to protect the interests of a
dependent people.’ Tulee v. Washington, 315 US 681,
684, 685, 86 L.ed. 1115, 1119, 1120, 62 S.Ct. 862. See
also United States v. Shoshone Tribe, 304 US 111, 116,
82 L.ed. 306, 315, 7 S. Ct. 75.”
In Jones v. Meehan, 175 U.S. 1, 10, 11, this Court said:
“In construing any treaty between the United States
and an Indian tribe, it must always (as was pointed
out by the counsel for the appellees) be borne in mind
that the negotiations for the treaty are conducted, on
the part of the United States, an enlightened and
powerful nation, by respresentatives skilled in diplom-
acy, masters of a written language, understanding the
modes and forms of creating the various technical
estates known to their law, and assisted by an inter-
preter employed by themselves; that the treaty is
drawn up by them and in their own language; that
the Indians, on the other hand, are a weak and de-
pendent people, who have no written language, and
are wholly unfamiliar with all the forms of legal ex-
pression, and whose only knowledge of the terms in
which the treaty is framed is that imparted to them
by the interpreter employed by the United States;
and that the treaty must therefore be construed, not
according to the technical meaning of its words to
—42—
learned lawyers, but in the sense in which they would
naturally be understood by the Indians.”4?
The court below’s construction of Northern Pacific
Railway Company v. Soderberg and Caldwell v. United
States vitiates the rule enunciated by this Court in Choc-
taw Nation v. United States, 119 U.S. 1; Jones v. Meehan,
117 U.S. 1; Choctaw Nation of Indians v. U. S., 318 U.S. 423;
Worcester v. Georgia, 6 Pet. 515; Carpenter v. Shaw, 280
U.S. 263, and the provisions in the treaty of September
27, 1830, with the Choctaws that “. . . in the construction
of this treaty wherever well-founded doubt shall arise it
shall be construed most favorably to the Choctaws.”
The thesis that references to the Arkansas River in the Trea-
ties of 1820, and 1830, are for the purpose of establishing
reference points, monuments or boundaries is tenable only
if by those treaties the United States intended to retain the
ownership of the navigable portion of the Arkansas River
in trust for a future state.
By Article II of the treaty concluded at Doak’s Stand
on October 18, 1820, the United States ceded to the Choc-
taws a tract of land bounded as follows: “—beginning on
the Arkansas River, where the lower boundary line of the
Cherokee strikes the same; thence up the Arkansas to the
Canadian Fork, and up the same to its source; thence due
south to the Red River; thence down Red River three miles
below the mouth of Little River which empties into Red
River on the north side; thence a direct line to the be-
ginning.” *®
47 Of the 176 signatories on behalf of the Choctaw Nation, 166 signed
by mark.
48 7 Stat. 210, Proclamation, January 8, 1821.
=
—_-_-7"
—43—
In its opinion,*® the court below said: “We agree with
Oklahoma that references to the Arkansas River are for
the purpose of establishing reference points, monuments
or boundaries. They do not indicate an intent, much less a
clear intent, to convey the riverbed.”
It is respectfully submitted that this conclusion of the
court below is at sixes and sevens with the well-established
rule that where the United States owns the bed of a non-
navigable stream and the upland of one or both sides, it
is free when disposing of the upland to retain all or any
part of the riverbed; and whether, in any particular in-
stance, it has done so, is essentially a question of what is
intended. If its intention is not otherwise shown it will
be taken to have assented that its conveyance of the upland
operate as a conveyance of the riverbed. United States v.
Arizona, 295 U.S. 1, 79 L.Ed. 1267, 55 Sup. Ct. 610; Wilcox
v. Jackson, 13 Pet. 498, 516, 517, 10 L.Ed. 264, 273; Irvine v.
Marshall, 20 How. 558, 15 L.Ed. 994; Gibson v. Chouteau,
13 Wall. 92, 99, 20 L.Ed. 534, 536; Utah Power & Light
Co. v. United States, 243 U.S. 389, 404, 61 L.Ed. 791, 816,
37 Sup. Ct. Rep. 387; Kean v. Caulment Canal & Improv.
Co., 190 U.S. 452, 460, 47 L.Ed. 1134, 1137, 23 Sup. Ct. Rep.
651; Hardin v. Jordan, 140 U.S. 371, 384, 35 L.Ed. 428, 434,
11 Sup. Ct. Rep. 808, 838; Mitchell v. Smale, 140 U.S. 406,
413, 414, 35 L.Ed. 442, 445, 11 Sup. Ct. Rep. 819, 840; Grand
Rapids & I.R. Co. v. Butler, 159 U.S. 87, 92, 40 L.Ed. 85, 87,
15 Sup. Ct. Rep. 991; Hardin v. Shedd, 190 U.S. 508, 519,
47 L.Ed. 1156, 1157, 23 Sup. Ct. Rep. 685; Whitaker v. Mc-
Bride, 197 U.S. 510, 512, 515, 516, 49 L.Ed. 857, 860-862,
49 1444.
—
~~ S
25 Sup. Ct. Rep. 530; and see St. Paul & P. R. Co. v. Schur.
meir, 7 Wall. 272, 287, et seq., 19 L.Ed. 74, 78.
It would be a curious thing indeed to construe the
term “up the Arkansas” to mean “up the south bank of
the Arkansas to the point where it becomes non-navigable
and from that point up the north bank.” Such a thesis
could only be sustained if the United States and the Choc.
taws had agreed by the treaties of 1820 and 1830 that the
territories conveyed to the Choctaws were to become em-
braced in a future state, in which event, of course, the bed
of the navigable portion of the Arkansas would then have
been held by the United States in trust for the benefit of
the future state. Since it is plainly evident that it was not
the intent of the United States and the Choctaws at the
time they made the treaties of 1820 and 1830 that the lands
ceded to the Choctaws should become a part of a state, that
thesis is not tenable.
At the most, by the Treaty of 1830, the United States only re-
served a navigation easement on the Arkansas River.
Oklahoma has contended that, as the Treaty of 1817
established the southern boundary of the Cherokees on the
north bank of the Arkansas, the first sentence of Article XI
of the Treaty of 1830 with the Choctaws which provided: _
“Navigable streams shall be free to the Choctaws who shall _
pay no higher toll or duties than citizens of the United )
States,” established the south bank of the Arkansas as the
northern boundary of the Choctaw lands. Thus, syllogized
the State, the Government never ceded the bed of the river
itself.
—
_ we
What Oklahoma has done is this: It has excerpted one
sentence from Article XI and attempted to have it read
out of context. The whole of the Article reads:
“Navigable streams shall be free to the Choctaws
who shall pay no higher toll or duty than citizens of
the U.S. It is agreed further that the U.S. shall estab-
lish one or more Post Offices in said Nation, and may
establish such military post roads, and posts, as they
may consider necessary.”
In construing a treaty all provisions relevant to the
matter under consideration must be considered®® and,
where reasonably possible, meaning should be given to all
the words.5! A treaty should be construed in the light of
the circumstances existing at the time it was entered into?
and the objects that the parties were desirous of effecting.**
Furthermore, where the meaning of a treaty is uncertain,
recourse may be had to the negotiations and diplomatic
correspondence of the contracting parties with respect to
the subject matter.®*
When Article XI is construed as a whole, it is evident
that the treaty signatories intended that the Government
should reserve a right to establish post offices and military
50 Perkins V. E.L.G., 59 S.Ct. 884, 307 US. 325, 83 LEd. 1320.
51 Factor V. Laubenheimer, supra.
52 Pigeon River Imp. Slide & Boom Co. v. Charles W. Cox, Lid., 54 S.Ct.
361, 291 US. 138, 78 L.Ed. 695.
58 Rice v. Sioux City Memorial Park Cemetery, 60 N.W.2d 110, dis-
missed 75 S.Ct. 614, 349 US. 70, 90 LEd. 897.
54 Choctaw Nation of Indians v. United States, 63 S.Ct. 672, 318 US.
423, 87 L.Ed. 492.
=
posts and such easements over streams and over land as
might be convenient to the operation of post offices, the
supplying of military posts and the bringing of supplies
and commodities into the Choctaw country.
It will be remembered that the removal of the Indians
from the southern states to the lands west of the Missis.
sippi was a concerted effort. The Cherokees had moved
west of the Mississippi into lands in Arkansas in 1817, just
a few years before the Choctaws. The last sentence of
Article V of the Treaty of 1817 with the Cherokees pro-
vided “. . . the United States reserving the right of estab-
lishing factories, a military post, and roads, within the
boundaries above defined.” And Article IX of that treaty
provided: “. . . that nothing in the foregoing articles shall
be construed so as to prevent any of the parties so con-
tracting from the free navigation of all the waters men-
tioned therein.” Those terms, in the treaty with the Chero-
kees in 1817 are, for all practical purposes, the same as
Article XI of the treaty with the Choctaws in 1830.55
55 A similar provision was found in many other Indian Treaties. In a
Treaty with the Cherokees approved July 2, 1791, 7 Stat. 39, 2 Kap-
pler 22, a Cherokee boundary was established in Article V of the
Treaty which reads as follows:
“It is stipulated and agreed, that the citizens and inhabitants of
the United States, shall have a free and unmolested use of a road
from Washington district to Mero district, and of the Tennessee
river.”
in a Treaty with the Six Nations of November 1794, 7 Stat. 44, 2
Kappler 28, lands were involved along Lake Ontario and Lake Erie.
Article V of this treaty provides with reference to roads, rivers, and
harbors, as follows:
“And the Six Nations, and each of them, will forever allow to
the people of the United States, a free passage through their lands,
and the free use of the harbors and rivers adjoining and within
—
It will be noted from the start that the sentence from
Article XI, upon which the State has placed so much reli-
ance, covers all streams wherever they might be located
within the Choctaw lands. It neither singled out nor lim-
ited its operation to the Arkansas.
onlin
In 1830, very little was known about the rivers in the
lands ceded to the Choctaws. Many had not been surveyed
and very few had been traveled their full length. From later
exploration and travel it became known that the Arkansas
was the only navigable river within the lands ceded to the
Choctaws. The use of the all inclusive term “navigable
streams shall be free to the Choctaws” is just another way
of repeating the terms of the treaty with the Cherokees
« . that nothing in the foregoing articles shall be con-
strued so as to prevent any of the parties so contracting
from the free navigation of all the waters mentioned
therein.”
+ 55 (Continued )
their respective tracts of land, for the passing and securing of ves-
sels and boats, and liberty to land their cargoes where necessary for
| their safety.”
In a Treaty with the Sac and Foxes of November 3, 1804, 7 Stat. 84,
2 Kappler 54, the Indians gave the United States permission to estab-
lish a military post either on the upper side of the Ouisconsing or on
the right bank of the Mississippi, and did further agree:
ie “ _. that they will at all times allow to traders and other per-
sons travelling through their country under the authority of the
United States a free and safe passage for themselves and their prop-
erty of every description. And that for such passage they shall at
no time and on no account whatever be subject to any toll or ex-
action.”
Sees ie ha AAS
A Treaty with the Creeks, November 14, 1805, 7 Stat. 96, 2 Kappler
; 62, reads as follows:
; “And it is also agreed on the part of the Creek nation, that the
navigation and fishery of the Ocmulgee, from its junction with the
—
Viewed against the background of the concerted ef.
fort to remove all Indians out of the southern states and
onto lands west of the Mississippi, together with the mani-
fested desire of the Government to treat all Indian tribes
equally, it is apparent that, in its treaty with the Choctaws,
the Government was reserving nothing more than it had
in the treaty with the Cherokees; that is, “free navigation
of all of the waters mentioned therein.”
In the light of the circumstances existing at the time
the treaty with the Choctaws was entered into and the ob-
jects that the Government and the Choctaws were desirous
of effecting, it is obvious that the Government had no need
of anything but a navigation easement on the streams in
55 (Continued )
Oconee to the mouth of the Ulcofauhatchee, shall be free to the
white people; provided they use no traps for taking fish; but nets
and seines may be used, which shall be drawn to the easterly shore
only.”
By a Treaty with the Cherokees of March 22, 1816, 7 Stat. 139, 2
Kappler 87, the United States was granted the free use of certain roads
through the Cherokee nation for intercourse between the states of
Tennessee and Georgia and Mississippi Territory. Article 2 of the
treaty then went on to provide that:
“... the citizens of the United States shall freely navigate ana
use, as a highway, all the rivers and waters within the Cherokee
nation. The Cherokee nation further agree to establish and keep up,
on the roads to be opened under the sanction of this article, such
ferries and public houses as may be necessary for the accommods-
tion of the citizens of the United States.”
Article III of a Treaty of peace between the United States of America
and the tribes of Indians, called the Wyandots, Delawares, Shawanoes,
Ottawas, Chippewas, Putawatimes, Miamis, Eel-river, Weea’s, Kicka-
poos, Piankashaws, and Kaskaskias, of August 3, 1795, 7 Stat. 49, 2
Kappler 30, reads:
“And the said Indian tribes will also allow to the people of the —
United States the free use of the harbors and mouths of rivers along )-
the lakes adjoining the Indian lands, for sheltering vessels and boats, |
and liberty to land their cargoes where necessary for their safety.”
_
—
the Choctaw lands. It did not need the bed of streams that
would re-emerge by avulsion. It did not need the minerals
that might underlie the beds of the streams in the Choctaw
lands. It did not need to reserve the soil of the beds of
navigable streams and the minerals underlying them in
trust for a future state because it had guaranteed to the
Choctaws “. . . that no part of the land granted to them
shall ever be embraced in any Territory or State.”
Indeed, if the Choctaws had traded the United States
the bed of the streams within its tribal domain east of the
Mississippi and the minerals underlying them, then, by the
same token, the United States was, by its treaty, trading
to the Choctaws the beds of all of the streams and the min-
erals underlying them in the lands ceded to them west of
the Mississippi. To say otherwise is to say that the Govern-
ment was seeking an advantage for itself. This it did not
intend to do. The Court said in United States v. Shoshone
Tribe of Indians.*®
“In treaties made with them the United States seeks
no advantage for itself.”
Finally, it must be remembered that by Article XVIII
of this treaty the Government agreed “. . . that in the con-
struction of this treaty wherever well founded doubt shall
arise, it shall be construed most favorably towards the
Choctaws.” The construction of this provision most favor-
able to the Choctaws is that, as with the treaty a few years
earlier with the Cherokees, the Government retained only
an easement for the “free navigation of all of the waters
mentioned therein.”
56 58 S.Ct. 794, 304 US. 111, 116, 117, 82 LEd. 1218, 1219.
—§0—.
CONCLUSION
The removal of the Indians from the southern States
to the lands west of the Mississippi was a purpose appro.
priate to the objects for which the United States held the
territory. General Clark, General Thomas, and General
Hinds, who, as commissioners for the United States nego-
tiating for the removal of the Choctaws from Mississippi,
demonstrated the appropriateness of that purpose when
they said to them in an address at the treaty ground of
the Choctaw Nation in 1826: “The United States have a
large unsettled and unappropriated country on the west
side of the great river Mississippi, into which they do not
intend that their white settlers shall extend. This is the
country in which our father the President intends to settle
all of his Red children.”
The “Indian Removal Act” of May 28, 1830, making it
“. . . lawful for the President of the United States to cause
so many of any territory belonging to the United States,
west of the river Mississippi, not included in any State or
organized territory, and to which the Indian title has been
extinguished, as he may judge necessary, to be divided unto
a suitable number of districts, for the reception of such
tribes of Nations of Indians as may choose to exchange the
lands where they now reside and remove there . . .” was
a proper method through which the United States accom- |
plished a purpose appropriate to the object for which it
held the territories.
It is settled law that Congress has the power to make
grants of land below the high-water mark of navigable
rivers in any territory of the United States to carry out
public purposes appropriate to the objects for which the
—
United States held the territory (Brewer-Elliott Oil and
Gas Co. v. United States, 260 U.S. 77, 84). It is equally
well settled that where the United States, after acquiring
the territory and before the creation of the State, has
granted rights in such lands for the purpose of carrying
out purposes appropriate to which the objects for which
the territory was held, such rights are not cut off by the
subsequent creation of a State, but remain unimpaired,
and the rights which otherwise would have passed to the
State by virtue of its admission into the Union are re-
stricted and qualified accordingly. (United States v. Holt
State Bank, 270 U.S. 49, 54, 55, 70 L.Ed. 465, 468.)
John C. Calhoun’s pledge to the Choctaw delegation
in Washington in 1824 “There is no probability that any
State or territory will be erected to the west of the Ar-
kansas territory;” the provision in the Treaty of 1825 estab-
lishing the western boundary line of the present State of
Arkansas by which the United States covenanted that it
would “prevent future settlements from being made on
the west thereof;” the pledge of the United States given
to the Choctaws through its commissioners, General Clark,
General Hinds, and General Coffee in 1826, that there the
United States would “guard you against all enemies,
whether they be white or red; and no State or territory
will be created;” the promise of the President, Andrew
Jackson, to the Chickasaws at Franklin, Tennessee, on
August 23, 1830, that “The United States would give thein
a grant for lands which should endure as long as the grass
grows and the water runs” and “within your limits no
State or Territorial authority will be permitted;” the assur-
ance that Secretary Eaton and General Coffee gave to the
catia
wnliiinn
Choctaws at Dancing Rabbit Creek in Mississippi on Sep.
tember 18, 1830, that “there your great Father can be your
friend; and he can keep the white man’s law from inter.
rupting and disturbing you; and there, too, he will guard
you against all enemies whether they be white or red.
There no State or Territory will be created;” and the
solemn declaration of the United States in Article IV of
the Treaty of September 28, 1830, “That no part of the
lands granted to them shall ever be embraced in any terti-
tory or State” leaves no room for it to be said that when
the United States signed the treaties with the Choctaws
it intended that the lands conveyed to the Choctaws would
be embraced in a state or that it intended to reserve the
soil and the minerals under the bed of the navigable por-
tion of the Arkansas for the benefit of a future state.
The decisions of the Supreme Court of Oklahoma in
State v. Nolegs and Vickery v. Yahola Sand and Gravel
Company, and of the court below, from which this appeal is
taken, are all bottomed upon the premise that, notwith-
standing the solemn representations that the United States
made to the Choctaws to induce them to exchange their
home lands east of the Mississippi for the wild lands in
the west, it was the intention of the United States to later
embrace the area ceded to the Choctaws within a state
and that intention was known and acceded to by the Choc:
taws. This was not so.
In construing a treaty all provisions relevant to the
matter under deliberation must be considered. A treaty
should be construed in the light of the circumstances ex-
isting at the time it was entered into and the objects that
the parties were desirous of effecting.
a
=
If the representations and promises made by the United
States to the Choctaws, that the area ceded to them would
never be embraced within a future state, induced the Choc-
taws to sign the treaties at Doak’s Stand and at Dancing
Rabbit Creek, and if the meeting of the minds of the nego-
tiating parties on that issue is reflected by Article IV of
the Treaty at Dancing Rabbit Creek, then the premise upon
which State v. Nolegs and Vickery v. Yahola Sand and
Gravel Company is bottomed, is false.
Under this Court’s decisions in Choctaw Nation v.
United States, Jones v. Meehan, and Choctaw Nation of
Indians v. United States, and the specific provision of Ar-
ticle XVIII, the Treaty at Dancing Rabbit Creek must be
construed most favorably to the Choctaws. When this is
done and that treaty is viewed against the background of
the objects that the Government was desiring to effect by
it and of the circumstances existing at the time it was
entered into, it is obvious that the Government had no
need to retain anything but a navigation easement on the
streams in the lands ceded to the Choctaws.
Respectfully submitted,
J. D. McLAUGHLIN
Liberty National Bank Building
Paris, Texas
Counsel for the Petitioners
of Counsel on the Brief:
Lon KILE
Box 726
Hugo, Oklahoma
July, 1969
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.