Amicus Curiae Brief — Choctaw Nation v. Oklahoma

INDEX

Onmrmee

F ent:

a land grants to petitioners included owner-

ship of the bed of the segment of the Arkansas

River enclosed by the grants, and the riverbed

never passed to the State of Oklahoma______ 8

A. The grants on their face unreservedly con-

veyed ownership of all land within the

specified perimeters, including the land be-

neath navigable waters__._______.._____ 8

B. Nothing in the “Equal Footing’—“Im-

plied Trust’? Doctrine undermines the in-

tent and effect of the grants to petitioners. 11

C, A contrary conclusion reached by the De-

partment of the Interior in 1908 would not

justify rejection of petitioners’ claims_____ 25

ee ee 29

ne 30

CITATIONS

Cases:

Alabama v. Texas, 347 U.S. 272_.___..____ | 15

Alaska Pacific Fisheries v. United States, 248

ile FOon concencsssesuaseneneee 22

Atlantic & Pacific R.R. Co. v. Mingus, 165

Sah GER <n ncoccsesnceuneee 8 10,17

Brewer-Elliott Oil & Gas Co. v. United States,

PP WAN 00 oc eacccnncennendelee 13, 16

Choate v. Trapp, 224 U.S. 665_____....._.__- 4, 23

Goodtitle v. Kibbe, 9 How. 470____._..._____ 13

Knight v. United States Land Association, 142

SL Bre 15

Lynch v. Clemons, 263 P. 2d 153____._._____ 26

(1)

Cases—Continued

Missouri, Kansas & Texas Ry. v. United

8S Ernie 4

Moore v. United States, 157 F. 2d 760, certiorari

Es netndencnecnennadl 29

Mumford v. Wardwell, 6 Wall. 423___...___- 12

Pollard v. Hagan, 3 How. 212__--_-_--- 5, 12, 13, 24

Shively v. Bowlby, 152 U.S. 1.-------- 13, 15, 16, 23

State v. Nolegs, 40 Okla. 479, 139 Pac. 943... 95

United States v. California, 332 U.S. 19_____- 28

United States v. Holt State Bank, 270 U.S. 49_ 5,

18, 19, 20, 21, 22, 93

Vickery v. Yahola Sand & Gravel Co., 158 Okla.

RS et hes 16, 25

Weber v. Board of Harbor Commissioners,

PE iweb olncddek betledaenete iii) a

Constitution, treaties, and statutes:

United States Constitution, Art. IV, § 3.___- 15

Treaty of Dancing Rabbit Creek, Septem-

ber 27, 1830, 7 Stat. 333_________- 3, 4, 9, 17, 28

Tc atch ut detsndtet uieteis Ceeeitaclaenanieie 9

ST cin tins aentataccch thins iieniae 9

ee een 9

es 8s hee siansthon en eob eq tin iid )

Treaty of New Echota, December 29, 1835,

PT idsitnentthkateonieonisneies 3, 4, 9, 17,28

Se A aera eas 10

IES Renae anys ow a 10

I Niet in tis hides insets Stincsingpmeavnciiniephiail 10, 24

Sica: 5 cc diith cals accitins einacaaigneeeliee 24

ee eee 18

Treaty of January 17, 1837, 11 Stat. 573___- 5

Treaty of June 22, 1855, 11 Stat. 611_______ 5

Act of April 26, 1906, 34 Stat. 187_________- a

Act of June 16, 1906, 34 Stat. 267__________ 4

Miscellaneous:

Federal Indian Law (Department of the

in cihciwhdidwinanchsknnednnamaee 27

_

Gn the Supreme Court of the United States

OcrToBER TERM, 1969

No. 41

Tae Onoctaw NATION AND THE CHICKASAW NaTION,

PETITIONERS

Vv.

STATE OF OKLAHOMA, ET AL.

No. 59

THE CHEROKEE NATION OR TRIBE OF INDIANS IN

OKLAHOMA, PETITIONER

v.

STaTE OF OKLAHOMA, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINION BELOW

The opinion of the court of appeals (A. 131a-146a)

isreported at 402 F. 2d 739.

JURISDICTION

The judgment of the court of appeals (A. 146a) was

entered on October 31, 1968. The petition for a writ of

(1)

——y

certiorari on behalf of the Choctaw Nation and th

Chickasaw Nation was filed on January 25, 1969 (No,

976, O.T., 1968). By order entered on January 9, 1969,

Mr. J adiine White extended the time for the Cherokee

Nation or Tribe of Indians of Oklahoma to file a peti-

tion for a writ of certiorari to and including March 5,

1969, and their petition was filed on March 3, 1969

(No. 1104, O.T., 1968). The petitions in both cases

were granted on April 21, 1969, and the cases cop.

solidated. This Court’s jurisdiction rests on 28 U.S.C.

1254(1).

2

QUESTION PRESENTED

Whether by treaties and patents in the 1830’s, grant.

ing outright to the petitioner-tribes tracts of lands de-

scribed only by metes and bounds which included a

segment of the Arkansas River, the United States

conveyed ownership of the riverbed, so that it could

not have passed to the State of Oklahoma under the

“equal footing doctrine’? when that State was created

in 1907.

STATEMENT

1. The tribes before the Court as petitioners in the

present cases inhabited lands in the southeastern

United States that early felt the pressure of migrating

white settlers involved in the westward expansion of

the Nation. The government’s response, in order to ac-

commodate the divergent interests of settlers and In-

dians, took the form of offering the Indians parcels of

land further west of the immediately threatened areas

in return for their peaceful removal from the lands on

——

3

which they were then living. Under this program, by

a series of treaties in the early 1800’s the Cherokees

and the Choctaws were resettled in various locations in

a generally westward course, in territory acquired by

the United States in 1803 as part of the Louisiana

Purchase.”

Finally, by the Treaty of Dancing Rabbit Creek on

September 27, 1830, with the Choctaws (7 Stat. 333),

and by the Treaty of New Echota on December 29, 1835,

with the Cherokees (7 Stat. 478), the government prom-

ised to convey to the tribes very large tracts of land in

what is today the State of Oklahoma, and patents were

subsequently issued conveying these lands to them “in

fee simple’’.’ In the treaties and patents the lands con-

veyed were described only by exterior metes and bounds

(see, ¢.g., A. 8a-12a), and in the aggregate these grants

included all the lands through which the navigable por-

tion of the Arkansas River in Oklahoma runs, a por-

tion of the river being entirely within the grant to

the Cherokees, and another segment of the river being

the boundary line between the two grants. Both

treaties solemnly assured the Indians that these new

homelands would never be made part of a State or

territory.” Approximately sixty years later, however,

‘These developments are summarized in the opinion of the

court of appeals (A. 134a-136a).

*The grant to the Cherokees covered more than 14 million

acres, (See A. lla).

* The Choctaws were promised that “no part of the land granted

them shall ever be embraced in any Territory or State” (7 Stat. 333,

wt), and the Cherokees were similarly told that their new lands

ee rrrtseCiaC ‘

4

intent on creating a State that would inelude th

lands that had been granted to the Indians, Congreg

in 1893 established a commission to negotiate ap

agreement with the tribes superseding the Treaties of

Dancing Rabbit Creek and New Echota, and th

tribes ultimately agreed to a disposition of thei

affairs whereby title to tribal lands passed to th

United States as trustee for the individual member

of the tribes. See Act of April 26, 1906, 34 Stat. 137;

Missouri, Kansas & Texas Ry. v. United States, 235

U.S. 37.‘ The next year, 1907, Oklahoma was admitted

to the Union “on an equal footing with the original

States”. See Act of June 16, 1906, 34 Stat. 267.

2. The issue in this case, an action for an account.

ing brought by the Indians against the State and

various oil companies holding leases from the State,

is the ownership of the riverbed of the portion of the

Arkansas River, below the ordinary high water mark,

bracketed by the grants. With ownership of the hed,

of course, goes the right to exploit the subsurface re-

sources, including oil. Oklahoma claims the entire

riverbed, arguing that the United States had reserved

ownership of the bed of the river and held it in trust

for the future State, and that under the “equal footing

doctrine” the title to the riverbed passed to the State

automatically upon its entry into the Union. The

“shall, in no future time without their consent, be included within

the territorial limits or jurisdiction of any State or Territory”

(7 Stat. 478, 481).

*This Court’s opinion in Choate v. Trapp, 224 US. 665,

667-670, details the factors leading up to these negotiations

and the agreements reached. See also A. 136a-137a.

5

Cherokees claim the whole of the riverbed where it

js surrounded by their lands, and half of the bed—to

the “thread’’ of the river—where the river is the

boundary between their lands and those of the Choc-

tavs and Chickasaws.° These latter tribes—whose

grant is earlier in time—claim the entire bed of the

boundary river.®

The court of appeals, affirming the rulings of the

district court (A. 113a, 114a, 117a-120a), recognized

that “patents issued to the Cherokees and to the Choe-

taws contained no exception or reservation relating to

the beds of navigable streams. The lands granted were

described by their exterior boundaries’? (A. 136a).

Nevertheless, notwithstanding the unqualified language

of the grants and the pledge that the lands would

never be included in any State, the court below con-

cluded that, under the “equal footing doctrine” of

Pollard v. Hagan, 3 How. 212, as construed in United

States v. Holt State Bank, 270 U.S. 49, the lands un-

der the Arkansas River must be deemed to have been

reserved for the future State because no explicit state-

ments were made to the contrary. The court held that

the State of Oklahoma, therefore, received title to the

‘Although the grants involved in this case were made di-

rectly to the Choctaw Nation, the Chickasaw Nation owns an

undivided interest in the Choctaw lands by virtue of the Treaty

of January 17, 1837, 11 Stat. 573, and the Treaty of June 22,

1855, 11 Stat. 611.

*We express no view on the conflicting claims of the tribes

where the Arkansas River is the boundary between the grants.

Because of their ruling in favor of the State, the courts below

had no oceasion to decide this dispute and this Court will pre-

sumably not reach the question on the present review.

6

bed of the Arkansas River when it entered the Union

and could thus control the exploitation of subsurface

mineral rights.

SUMMARY OF ARGUMENT

The plain terms of the treaties and patents involved

in this case reveal an unqualified grant in fee simple

of all land encompassed within the perimeters speci-

fied, and these conveyances naturally carried with them

the ownership of the beds of navigable rivers flowing

through the region. They contain no suggestion that

the United States sought to reserve ownership of the

riverbeds; on the contrary, where the United States

wished to preserve some interests or privileges, the

treaties expressly defined them. Since the treaties ex.

pressed a clear intention to convey a peaceful, secure,

and permanent homeland for the Indians, there is no

basis for inferring any unarticulated intention to re-

serve ownership of narrow strips of land in the midst

of these remote tracts.

Giving these treaties and patents their natural

meaning is fully consistent with the principles that

new States are deemed to enter the Union on an

“equal footing” with their sister-States, and that the

United States normally holds navigable waterways in

territories in an “implied trust’? for a prospective

State. The “equal footing’’-“implied trust” doctrine

recognizes that the national government, in the pre-

statehood period, has complete authority to dispose

of lands that would otherwise pass automatically to a

new State, if the government considers such a course

- .,

appropriate. The grants in this case amply manifested

such a decision, for they created an autonomous In-

dian region that was pledged never to be included

within the jurisdiction of any State. At the time of the

conveyances these Indians were entrusted with a

measure of sovereignty analogous to what a State would

have received ; contemporaneous pledges that no State

would ever be erected must be taken to negate any

general presumption that the United States, as a mat-

ter of policy, ordinarily holds lands under navigable

rivers in trust for future States.

No support for a contrary conclusion is furnished

by a letter from the Interior Department written in

1908, asserting that ownership of the bed of the Ar-

kansas River had been reserved and had passed to

Oklahoma upon statehood. The letter simply quotes

generalized discussions in this Court’s cases but makes

no effort to analyze the grants involved here to deter-

mine the effect of those principles upon the interpre-

tation of these grants. The letter also contains several

factual inaccuracies on material issues. Since it was

drafted more than seventy years after these treaties

and patents, the letter cannot be said to represent a

“contemporaneous” executive construction. That letter,

therefore, does not deserve any weight in this Court’s

appraisal of pertinent factors underlying a proper in-

terpretation of the grants. On a fresh and objective

analysis, the treaties and patents will be found to have

conveyed ownership of the riverbeds claimed by peti-

tioners; the contrary holding of the court of appeals

was error.

357-927—69——_-2

8

ARGUMENT

THE LAND GRANTS TO PETITIONERS INCLUDED OWNERSHIP

OF THE BED OF THE SEGMENT OF THE ARKANSAS RIVER

ENCLOSED BY THE GRANTS, AND THE RIVERBED NEVER

PASSED TO THE STATE OF OKLAHOMA

The.United States government supports the position

taken by the Indians in this litigation that the treaties

entered into between the government and the tribes

nearly a century and a half ago, as implemented by the

land patents, effectively conveyed to the Indians the

full and complete ownership of that portion of the bed

of the Arkansas River that lies within the area encom.

passed by the grants. In our view the narrow con-

‘struction placed upon these grants by the court below

- the clear intendment of what this Court has

called the ‘‘solemn treaties” between the United

States and these tribes. Atlantic & Pacific R.R. Co. y.

Mingus, 165 U.S. 413, 437.

A. THE GRANTS ON THEIR FACE UNRESERVEDLY CONVEYED

OWNERSHIP OF ALL LAND WITHIN THE SPECIFIED PE-

RIMETERS, INCLUDING THE LAND BENEATH NAVIGABLE

WATERS

The treaties and patents involved in this case con-

veyed huge tracts of land to the Cherokee and the

Choctaw Indians, in fee simple, as their permanent

homelands. The lands granted were defined simply by

reference to lines marking the perimeters of the tracts

conveyed; circumscribed by these boundaries was the

portion of the Arkansas River flowing through the

area. By ordinary rules of conveyancing, as well as

the natural meaning of the language used, these grants

carried with them the ownership of everything in-

“

cluded within their perimeters, since there was no ex-

pression of any intent to qualify or limit what on

their face are outright grants of all the territory

defined by the exterior metes and bounds specified.

Underscoring the breadth of the cession to the

Choctaws, for example, are the provisions for complete

self-government of their “country” (Arts. II, IV, 7

Stat. 333-334), and for the Choctaws to require writ-

ten permits of anyone who desired to trade with

members of the Nation (Art. X, 7 Stat. 335). Fur-

thermore, the only reference in the Treaty of Dancing

Rabbit Creek to “navigable streams’—apart from

mention of the Arkansas River and the Red River as

constituting or as intersecting the boundaries of the

grant—was the assurance to the Choctaws that they

would have free use of all such streams and be sub-

ject to no higher toll or duty than citizens of the

United States (Art. XI, 7 Stat. 335). In that same

article, reflecting the only express reservation of rights

in the treaty, it was provided that the United States

might establish any necessary post offices and military

post roads and posts. There was not even a mention

of the right of white men to travel along the navi-

gable waterways within the territory ceded, much

less an indication of an intention to reserve ownership

of the beds of such rivers.

The structure of the Treaty of New Echota with the

Cherokees was much the same. Explicitly reserved

were the right to establish and maintain military

posts and roads as might be necessary for the “in-

terest and protection” of the Cherokees, along with

10

the right to the free use of “land, timber, fuel and ma.

terials” for the construction and support of such

facilities, “provided that if the private rights of indj-

viduals are interfered with, a just compensation there

for shall be made” (Art. 3, 7 Stat. 480-481). The

Cherokees, too, were accorded rights of self-govern.

ment, see Atlantic & Pacific R.R. Co. v. Mingus, supra,

provided only that their laws not be inconsistent with

the Constitution of the United States or with the acts

of Congress “regulating trade and intercourse with the

Indians”, and that the Indian laws would not apply to

soldiers and citizens traveling or residing, with per-

mission, in the Indian country (Art. 5, 7 Stat. 481),

Further highlighting the scope of the grant to the

Cherokees is the provision that, in addition to the mil-

lions of acres conveyed to them in fee simple, the In-

dians were guaranteed “a perpetual outlet west, and

a free and unmolested use of all of the country west of

the western boundary”’ of the tract, “as far west as the

sovereignty of the United States and their right of

soil extend’’. But appended to this assurance, amply

testifying to the ability of the draftsmen to define con-

ditions and reservations when any were intended, was

the proviso that if the “salt plain on the westem

prairie”’’ fell within the limits of that outlet, “‘the right

is reserved to the United States to permit other tribes

of red men to get salt on said plain in common with

the Cherokees”’ (Art. 2, 7 Stat. 480).

No article in the Cherokee treaty, as none had in

the treaty with the Choctaws, hinted at a reservation

of ownership of the beds of the rivers flowing through

ll

the lands ceded. Indeed, it would have been pointless

for the United States to have reserved ownership of

submerged land of no apparent value in the midst

of a remote tract that was conveyed to the Indians

precisely because it was far removed from the regions

where the United States government and white set-

tlers had substantial interests. The absence of any

express clause dealing with title to the riverbed, there-

fore, must fairly be attributec to a desire to avoid

the superfluous.

p, NOTHING IN THE “EQUAL FOOTING’’-“IMPLIED TRUST”’

DOCTRINE UNDERMINES THE INTENT AND EFFECT OF THE

GRANTS TO PETITIONERS

The only speculation thus far advanced for imput-

ing to the treaty-makers some intention to reserve

ownership of the riverbeds rests on a legal principle—

the “equal footing doctrine”’—that may inform the

search for intent, but is no substitute for a factual in-

quiry into actual intent. The premise of the “equal

footing doctrine” is that the original thirteen States

assumed full ownership of the lands below navigable

waterways, with the national government entrusted

by the Constitution only with authority to regulate the

use of navigable waters for the protection and promo-

tion of commerce and the maintenance of national de-

fense. When new States are admitted to the Union,

according to this principle, they should be assumed

(as is customarily provided in the Congressional act

or resolution) to be admitted on ‘“‘equal footing” with

their original sister-States. A corollary of this as-

12

sumption is the “implied trust’’ concept: that land

below navigable waters is held by the United States

before statehood “in trust’? for future States, ang

passes automatically to the State upon its entry int

the Union. See, e.g., Mumford v. Wardwell, 6 Wall.

423, 436; Weber v. Board of Harbor Commissioners,

18 Wall. 57, 65-66. These principles, however, do not

properly justify the construction reached by the court

below.

The “equal footing doctrine” is generally traced to

the decision in Pollard v. Hagan, 3 How. 212, a decision

rendered in 1845—ten years after the treaty with the

Cherokees was concluded and fifteen years after the

treaty with the Choctaws. Thus it is immediately

doubtful that the silence of the treaty-makers on the

precise question of ownership of the riverbed can

fairly be interpreted as a conscious decision to reserve

these lands to assure the “equal footing’’ of a future

State. But in any event, the development of this

doctrine, even after it was articulated by this Court,

is completely consistent with effectuating what we

believe was the clear intent to convey title of the

riverbed to the Indian g»antees.

The situation in Pollard involved a congressional

attempt, after Alabama had entered the Union, to grant

land below the high water mark of the Mobile River. In

explaining why this attempt was ineffectual, some of the

Court’s language implied a lack of power in the federal

government ever to convey land under a navigable river,

even before statehood, on the theory that in such a

circumstance the new State would not stand on an

equal footing with the original States.

Those suggestions were quickly repudiated five

years later in Goodtitle v. Kibbe, 9 How. 470, 478,

where the Court followed the narrow holding of Pol-

lard but explained: “Undoubtedly, Congress might

have granted this land to the patentee * * * before

Alabama became a State. But this was not done.”

Accord, Brewer-Elliott Otl & Gas Co. v. United

States, 260 U.S. 77, 83. This ‘“‘whole subject has been

clarified” (td. at 84) in Shively v. Bowlby, 152 U.S. 1,

which contains an exhaustive history of the “equal

footing’’-“implied trust’”’ doctrine, stating the course

that has generally been followed by the United States

as a matter of policy, while affirming its power to

depart from this policy by making pre-statehood

grants (152 U.S. at 48, 49-50, 58) :

By the Constitution, as is now well settled,

the United States, having rightfully acquired

the Territories, and being the only government

which can impose laws upon them, have the en-

tire dominion and sovereignty, national and

municipal, Federal and state, over all the Ter-

ritories, so long as they remain in a territorial

condition. * * *

= * = * *

We cannot doubt, therefore, that 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 necessary to do so in order to perform

international obligations, or to effect the im-

provement of such lands for the promotion and

convenience of commerce with foreign nations

and among the several States, or to carry out

14

other public purposes appropriate to the objects

for which the United States hold the Territory,

The Congress of the United States, in dis.

posing of the public lands, has constantly

acted upon the theory * * * that the navigable

waters and the soils under them, whether

within or above the ebb and flow of the tide,

shall be and remain public highways; and,

being chiefly valuable for the public purposes

of commerce, navigation and fishery, and for

the improvements necessary to secure and pro-

mote those purposes, shall not be granted away

during the period of territorial government;

but, unless in case of some international duty

or public exigency, shall be held by the United

States in trust for the future States, and shall

vest in the several States, when organized and

admitted into the Union, with all the powers

and prerogatives appertaining to the older

States in regard to such waters and soils within

their respective jurisdictions; in short, shall not

be disposed of piecemeal to individuals as

private property, but shall be held as a whole

for the purpose of being ultimately adminis-

tered and dealt with for the public benefit by

the State, after it shall have become a

completely organized community.

* * * * a

The United States, while they hold the coun-

try as a Territory, having all the powers both

of national and of municipal government, may

grant, for appropriate purposes, titles or rights

in the soil below high water mark of tide

waters. But they have never done so by general

laws; and, unless in some case of international

—

duty or public exigency, have acted upon the

policy, as most in accordance with the interest

of the people and with the object for which the

Territories were acquired, of leaving the ad-

ministration and disposition of the sovereign

rights in navigable waters, and in the soil under

them, to the control] of the States, respectively,

when organized and admitted into the Union.

15

As the Court there made clear, reservation of the

ownership of the beds of navigable rivers is a matter

of policy judgment, subject to exception when deemed

appropriate by the proper organs of the national gov-

ernment. The analogy of the United States as “trus-

tee’ for prospective States, therefore, is imprecise, for

prior to statehood the national government remains

free to dispose of such lands as it sees fit, even if the

future State will thus lack complete equality with its

sisters because of the conveyance. See United States

Constitution, Art. IV, § 3; Alabama v. Texas, 347 U.S.

272, 273-274, and 275, 277 (Reed, J., concurring). Short

of an outright grant in fee simple, the United States

may also determine to hold such lands in trust for pur-

poses other than automatic transfer to a later created

State, and such a trust will effectively preclude auto-

matic acquisition by the State under the “equal footing”’

doctrine. See Knight v. United States Land Association,

142 U.S. 161, 183; Shively v. Bowlby, supra, 152 U.S. at

30-31.’

'Thus, to the extent that in 1906 the tribes ceded their in-

terest in the riverbed to the United States in trust for the

members of the tribes (see p. 4, supra), ownership of the bed

did not in any event pass to Oklahoma when it became a State

in 1907,

357-927—69——_3

16

The “equa: footing’’-“implied trust’’ doctrine, there.

fore, marks the beginning and not the end of the ip.

quiry into what the national government intended ty

pass in a particular conveyance. But before those prin.

ciples even become relevant in construing the Scope

of a grant, there must be some demonstrable expecta.

tion that the lands involved will ultimately form part

of a State. The understanding at the time of the grant

is what is pertinent for these purposes, and thus the

general purpose at the time of the Louisiana Purchage

to hold the territory for the creation of States is not

controlling. Brewer-Elliott Oil & Gas Co. v. United

States, supra, 260 U.S. at 85.

That critical premise was explicitly negated in the

treaties involved here. The Cherokees and the Choe.

taws do not assert ownership of the bed of the Arkap-

sas River through ‘“‘piecemeal’’ grants to individuals

of “private property”’’ carved from land held “for the

purpose of being ultimately administered and dealt with

for the public benefit by the State, after it shall have

become a completely organized community.’’ Shively y,

Bowlby, supra. Here, an entire region was conveyed

to tribes of Indians as part of their resettlement, with

assurances of self-government and with the pledges

that their new homelands never would be part of any

State. As the Supreme Court of Oklahoma has ob-

served, these treaties “in a measure departed from”

the original purpose of the Louisiana Purchase to

create new States. Vickery v. Yahola Land & Gravel

Co., 158 Okla. 120, 123, 12 P. 2d 881, 885. Far from

permitting any inference that the United States was

all

17

implicitly reserving from otherwise unqualified grants

the ownership of riverbeds which would later be trans-

ferred automatically to a State, these treaties assured

the Indians a sovereign autonomy that, by necessary

parity of reasoning, must be taken as passing title to

the riverbeds to them as the authority that was consti-

tuted in liew of a prospective State.

This Court has already recognized the unique char-

acter of these treaties. In Atlantic & Pacific R.R. Co. v.

Mingus, supra, the Court sustained a statutory forfeit-

ure of land previously conveyed to a railroad com-

pany on the condition that it complete a lengthy rail-

road within a certain period. The company defended

by pointing out that the proposed route lay through the

Indian country ceded to the tribes presently before

the Court; that the original statutory grant had prom-

ised that Congress would procure the necessary extin-

guishing of Indian ownership as soon as public policy

and the Indians’ welfare allowed; but that Congress

had failed to take any steps along those lines. In ex-

plaining why the lands held by the Choctaws and

Cherokees under the Treaties of Dancing Rabbit

Creek and New Echota would not be construed as

falling within the statutory term “Indian territory”’,

the Court explained [165 U.S. at 435-436]:

** * TA] reference to some of the treaties,

under which it [the land] is held by the In-

dians, indicates that it stands in an entirely dif-

ferent relation to the United States from other

Territories, and that for most purposes it is

to be considered as an independent country.

Under such treaties, the Indians had been enacting

and executing their own laws, appointing tlieir own

18

officers, raising and expending their own revenues

(165 U.S. at 436). In this context, the Court found

it impossible to believe that Congress could have ip.

tended to commit itself to extinguish ‘“‘a title guar.

anteed to the Indians by solemn treaties and which

had been possessed by them [by that time] for up-

wards of forty years with the powers of an almost

independent government”’ (165 U.S. at 437).*

In this light, we submit, wooden—and essentially

retroactive—application of the supposed strictures

of the “equal footing’-“implied trust’’ doctrine js

inappropriate. To ascribe to the United States goy-

ernment, whose agents drafted those treaties, an un-

expressed intent to reserve ownership of the bed of a

river traversing autonomous Indian lands, for the

benefit of a hypothetical State that the government

explicitly promised would never comprehend those

lands, would be to indulge a cynical fiction without

any basis in fact. Such a niggardly construction is ut-

terly devoid of suport in the circumstances surround-

ing the conveyance, and is on the contrary manifestly

inconsistent with the bilateral understanding of the

rights being created.

In concluding that it could not accord these treaties

their evident scope, the court below relied heavily on

the decision in United States v. Holt State Bank, 270

"SThe Treaty of New Echota with the Cherokees had de

clared that, “to illustrate the liberal and enlarged policy of the

Government of the United States towards the Indians in their

removal beyond the territorial limits of the States,” Congress

might provide for them to send a delegate to the House of

Representatives (Art. 7, 7 Stat. 482).

19

U.S. 49. In Holt Bank this Court had summarized the

“equal footing doctrine”’ and its effect in these words

(270 U.S. at 54-55) :

It is settled law in this country that lands

underlying 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 Con-

gress to control such waters for the purposes

of navigation in commerce among the States

and with foreign nations, and subject to the

qualification that where the United States,

after acquiring the territory and before the cre-

ation of the State, has granted rights in such

land by way of performing international obli-

gations, or effecting the use or improvement of

the lands for the purposes of commerce among

the States and with foreign nations, or carry-

ing out other public purposes appropriate to

the objects 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 restricted or qualified according-

ly. * * * But, as was pointed out in Shively v.

Bowlby, [152 U.S.] pp. 49, 57-58, the United

States early adopted and constantly has ad-

hered to the policy of regarding lands under

navigable waters in acquired territory, while

under its sole dominion, as held for the ulti-

mate benefit of future States, and so has re-

frained from making any disposal thereof, save

in exceptional instances when impelled to par-

ticular disposals by some international duty

20

or public exigency. It follows from this that

disposals by the United States during the ter.

ritorial period are not lightly to be inferred,

and should not be regarded as intended Unless

the intention was definitely declared or Other-

wise made very plain.

The references to commerce, navigation, interna.

tional duty, ete. were of course not intended to be any-

thing more than illustrations of the purposes for

which the United States government might find it ap.

propriate in the exercise of its sovereign capacity to

transfer lands under navigable waterways instead of

retaining them for a future State. The court below

erred in erecting what this Court provided as a gen-

erally sound guide, which may prove helpful in dis.

cerning the actual intent of a grant, into 4

presumption of law of nearly irrebuttable proportions,

In seizing upon the phrases ‘‘in exceptional circum.

stances’”’ and “unless the intention was definitely de-

clared or otherwise made very plain’ (A. 138a), the

court of appeals failed to take proper account of the

circumstances in which that language was used.

Analysis of the context in Holt State Bank will

demonstrate, we believe, that the principles there ex-

pressed and applied support, if indeed they do not

compel, the conclusion that the treaties and patents in

the present case effectively passed title to the bed of

the portion of the Arkansas River flowing through the

Indians’ lands.

At issue in Holt Bank was the ownership of the bed

of a lake that had been drained after Minnesota was

eal .

admitted to the Union. The Court noted (270 U.S. at

51-58) :

An affirmative disposal is not asserted, but only

that the lake, and therefore the lands under it,

was within the limits of the Red Lake Reserva-

tion when the State was admitted. * * *

The Court declined to accept the contention that

merely assigning the lands to an Indian reservation

prevented their passage to the State under the “equal

footing doctrine,’’ because that view would have ex-

tended to all navigable waters, including the 400-

square mile Red Lake and the large international Lake

of the Woods. Significantly, no grant of a fee was

involved, with promises of perpetual autonomy; the

government there had merely established a reservation

for the Indians in return for their cession of their

aboriginal right of occupancy of some surrounding

lands. The Court emphasized this factor (270 U.S. at

58-59) :

There was no formal setting apart of what was

not ceded, nor any affirmative declaration of the

rights of the Indians therein, nor any attempted

exclusion of others from the use of navigable

waters. The effect of what was done was to re-

serve in a general way for the continued occu-

pation of the Indians what remained of their

aboriginal territory; and thus it came to be

known and recognized as a reservation. Minne-

sota Vv. Hitchcock, 185 U.S. 373, 389. There was

nothing in this which even approaches a grant

of rights in lands underlying navigable waters;

nor anything evincing a purpose to depart from

22

the established policy, before stated, of treating

such lands as held for the benefit of the future

—

In Holt Bank, moreover, the pertinent treaties with

the Indians preceded by only three years the admis.

sion of Minnesota as a State. Similarly, the grants to

Compare Alaska Pacific Fisheries v. United States, 248 US,

78, where an Act of Congress set apart “the body of lands

known as Annette Islands” as an Indian reservation for the Met-

lakahtla Indians and the question was determining the perimeters

of the grant. The Court began by examining the language of

the statute and then stated (248 U.S, at 87):

“As an appreciation of the circumstances in which words are

used usually is conducive and at times is essential to a right

understanding of them, it is important, in approaching a solu-

tion of the question stated, to have in mind the circumstances

in which the reservation was created * * *.” After an examination

of the circumstances surrounding the legislation, the Court held

that it included the lands under the adjacent navigable waters, In

the present case, the problem is a simpler one, since the lands in

question are within the outside limits of great unconditional land

grants.

In a post-Holt decision, the Ninth Circuit found no inconsistency

in following the Alaska Pacific Fisheries approach of examining

the surrounding circumstances to determine the scope of the land

included within an Executive Order reserving for Indians tracts of

land described by government survey lot and section descriptions.

Moore v. United States, 157 F. 2d 760, certiorari denied, 330 U.S.

827. The court rejected an attempt to make the “equal footing”

doctrine an automatic and inflexible rule, and held instead that the

reservation included adjoining underwater lots. The couri ex-

plained (157 F. 2d at 765) :

“* * * There [in Holt Bank], as in the Annette Islands case and

the instant appeal, the question was one of intent. Alaska Pacific

Fisheries v. United States, supra, is not mentioned and we cannot

regard it as overruled sub silentio. * * *”

individual settlors in Shively v. Bowlby, supra, 152

U.S. at 51, were mae only nine years before Oregon

entered the Union. In those cases, it was reasonable to

determine that Congress had not intended to convey

away the lands that would otherwise imminently

pass to the States. Here, by contrast, at the time the

treaties were drawn and signed, and at the time the

patents were issued, the express determination was

that there would never be any State with jurisdiction

over the uplands, much less potential ownership of the

bed of a river running through those lands. Indeed, it

was not until more than seventy years later, after the

Indians had been persuaded to renegotiate their in-

terests, that it was even found possible to create the

State of Oklahoma and include the Indian lands in

it.”

In both of those cases, too, important national and

international waterways were involved: in Shively it

was the Columbia River, and in Holt Bank it was Mud

Lake, which was found to have been a wide portion of

a river long used by settlers and traders for travel and

commerce (270 U.S. at 56-57). There is no indication

that at the time the United States government granted

to the Choctaws and Cherokees the tracts of land sur-

rounding a major segment of the Arkansas River, the

river was an important artery of commerce. In any

event, one of the principal, express purposes of the

See Choate v. Trapp, supra, 224 U.S. at 667-670.

24

treaties was to secure for the Indians a region where

they would be free from the incursions of unwelcome

white men (see pp. 2-3, supra). Even though the In.

dians may not have been given complete authority to

control the use of the river for commerce, them is

no reason to believe the United States retained any-

thing more than a right to regulate navigation and

commerce, a function that Pollard v. Hagan, supra,

established did not carry with it a reservation of

ownership of the riverbed." And it cannot be denied,

we believe, that inclusion of the riverbeds in the

grants fulfilled an appropriate public purpose; con-

veyance of unreserved ownership of all land embraced

within the tracts represented a fair and sensible ces-

sion of what was to be a permanent, quasi-independ-

ent homeland for the Indians, exchanged for their

removal from lands the white settlers sought to claim,

We therefore submit that, construing the treaties

and patents with the aid of all available indicia of

their meaning, and not simply according to a single

subsequently developed maxim of interpretation, the

grants of land to the Cherokees and Choctaws suff-

ciently manifested the national government’s intent to

inelude in its cession the ownership of the bed of the

river flowing through the Indians’ new homelands.

“ Although the treaties adverted to congressional regulation

of commerce with the Indians and travel through their territory

by white citizens, permission from the tribes was apparently

contemplated as a pre-condition to such travel or residence in

the area by non-Indians. See, e.g., Arts. 5 and 6, Treaty of New

Echota, 7 Stat. 481.

25

There is no warrant for imputing to the government

an intention to retain the ownership of isolated strips

of land beneath the Arkansas River to de held in trust

for a hypothetical State that at the time the parties

solemnly declared would never come into existence.

c, ACONTRARY CONCLUSION REACHED BY THE DEPARTMENT

OF THE INTERIOR IN 1908 WOULD NOT JUSTIFY REJEC-

TION OF PETITIONERS’ CLAIMS

In the case of State v. Nolegs, 40 Okla. 479, 484-

485, 139 Pac. 943, 945, where the issue was the naviga-

bility of a particular portion of the Arkansas River,

the Supreme Court of Oklahoma cited, as one item

of evidence establishing navigability, a letter from

the Department of the Interior which embodied that

conclusion.” That letter (which we have reproduced in

® Volegs was an action by the State of Oklahoma against

riparian owners who had purported to lease mineral rights in

the bed of the Arkansas River. The court did not discuss the

“equal footing”-“implied trust” doctrine, but concluded that,

because it found the river to be navigable, ownership of the bed

had passed to the State upon its entry into the Union. The only

Indian property-owner in the case, an Osage, was dismissed as

a party because of the absence of the United States, from whom

he claimed. The court had no occasion to discuss the significance

of the treaties and patents involved in the present case.

In Vickery v. Yahola Sand & Gravel Co., 158 Okla. 120, 12

P. 2d 881, the Oklahoma court held that a Cherokee allottee

had noclaim for minerals taken out of the bed of the Arkansas

River. Because in its view the United States would have had no

proper purpose in conveying ownership of the riverbed to the

Cherokees, the court determined that these lands had been re-

served in trust for the State of Oklahoma and had passed to it.

We submit that the court's analysis pays insufficient attention to

26

full as an Appendix to this brief) was prepared by

the Acting Commissioner of Indian Affairs and au:

thorized by the Secretary of the Interior as ah

sponse to a request for instructions from the Commis.

sioner to the Five Civilized Tribes (which include

the Cherokees and the Choctaws). He had apparently

been approached by a sand and gravel company to

obtain approval of its view that it need not pay

royalties to the Cherokee Nation for minerals ex-

tracted from the bed of the Arkansas River afte

Oklahoma’s admission to the Union because, at that

time, “the title to the bed of the river had passed from

the Cherokee Nation to the State of Oklahoma” (App,

infra, p. 30). The letter proceeds to quote extensively

from several of this Court’s decisions, and concludes that

the United States had reserved ownership of the river.

bed until it passed automatically to Oklahoma upon

statehood (App., infra, p. 34). In opposing certiorari,

respondents contended that this letter is of “extreme

importance” in showing a “long continued executive

interpretation expressly placed upon the treaties

involved in this litigation by the Department of the

Interior, which is charged with their administration”

(Brief in Opp., p. 16, Nos. 976 and 1104, O.T. 1968).

This reliance is wholly misplaced.

the variety of purposes which might have prompted the na-

tional government to have made such a grant and fails to con-

front satisfactorily the purpose and breadth of the treaties and

patents at issue. See, also, Lynch v. Clements, 263 P. 9d 153

(Okla.). The question is, of course, as no one disputes, solely

a matter of federal law.

27

Contrary to respondents’ statements, and highlight-

ing the principal deficiency of the letter, it featured

absolutely no discussion of the treaties which are at

the core of this lawsuit. The letter simply quoted from

this Court’s cases dealing in general terms with the

“equal footing’’-“‘implied trust doctrine’’—eases which

expressly recognized that the government had power

in appropriate circumstances to convey riverbed lands

(see App., infra, p. 33)—and mechanically assumed

the answer to the very question at issue. The circum-

stances surrounding these treaties were not discussed,

nor was the possible significance of the language defin-

ing the conveyance only by exterior metes and bounds.

The factual errors in the only sentence relevant to

the issue further demonstrate the lack of attention given

at the time to the real problem.” The letter states (App.,

infra, p. 34) :

In other words, when the United States con-

veyed by warranty deed the lands occupied by

the Cherokees, Creeks, Choctaws, Chickasaws

and Seminoles, it did not convey the owner-

ship of the beds of navigable streams but re-

served them for the benefit of the future State

within whose boundaries they would fall.

But the United States did not convey these tracts by

warranty deed; it was the treaties and the patents

pursuant thereto which accomplished the transfer of

title. Those conveyances were not of lands occupied

“The letter was written at a time when allotment of the

lands, with a view to liquidation of the tribes, was in active

process. See Federal? Indian Law (Dept. of the Interior), pp.

94 et seq.

~ —_

by the Indian tribes; instead, they were of vacant

lands given in return for cession of lands east of the

Mississippi occupied by the tribes. There was no de.

sire to retain the riverbeds for a future State within

whose boundaries they would fall; the treaties eX:

pressly disclaimed the intention to create a State

These significant factual errors and omissions demon-

strate why the conclusion reached, unaided by any

explicit analysis or reasoning, deserves no Weight jn

this Court’s consideration of the issue."

In addition, we note, there is no indication that the

Indians affected were consulted on the question. And,

since the letter post-dates the treaties and patents

which are the focus of this case by more than seventy

years, the conclusion reached can scarcely be termed

the sort of ‘contemporaneous’? administrative ¢op-

struction that may helpfully enlighten judicial inter.

pretation of legal documents.

This Court is therefore entitled to approach thes

important questions afresh. For the reasons stated

above, we believe that consideration of the terms of

the Treaty of Dancing Rabbit Creek and the Treaty

of New Echota, in light of their peculiar historical con-

text, will show that the United States government did

exercise the power confirmed by this Court’s decisions

to convey to the Cherokees and to the Choctaws the

ownership of the bed of the Arkansas River where it

flows through the lands granted to them.

** The United States, this Court has held, cannot. be estopped

to disavow the errors of its subordinate officers, E.g., United

States v. California, 332 U.S. 19, 39-40.

28

- =.

CONCLUSION

The judgment of the United States Court of Ap-

peals for the Tenth Circuit should be reversed, and

the cause remanded for further proceedings.

Respectfully submitted.

Erwin N. GRISWOLD,

Solicitor General.

SHrro KasSHIWA,

Assistant Attorney General.

Louis F. CLAIBORNE,

Puiuie A. Lacovara,

Assistants to the Solicitor General.

Rocer P. MArQUvISs,

Frank B. FRIEDMAN,

Attorneys.

JuLy 1969.

APPENDIX

een

Department of the Interior, Office of Indian Affairs

WaAsHINGTON, Mar. 26, 1908.

Subject:

Purchase of sand and

gravel by Lowerree

Rucker Company from

bed of Arkansas River

The Honorable, The Secretary of the Interior,

Sir: I have the honor to invite your attention to

the enclosed letter of March 2 from J. G. Wright,

Commissioner to the Five Civilized Tribes, submit-

ting communication of February 13 from the United

States Indian Agent, Union Agency, relative to an

application made on August 30, 1907, by the Lowerree

Rucker Company for permission to enter into a con-

tract for the taking of sand and gravel from the Ar-

kansas River within the limits of the Cherokee Na-

tion. Mr. Wright quotes the Agent as reporting that

a representative of the Lowerree Rucker Company

called at his office and said that practically no gravel

had been taken out of the river prior to November 16,

1907, the date when the Indian Territory became in-

corporated as a part of the State of Oklahoma; that

it was the contention of the company that the title to

the bed of the river had passed from the Cherokee

Nation to the State of Oklahoma; and that for that

reason the company did not think it proper to enter

into a contract to pay royalties to the Cherokee Na-

tion for gravel taken from a river situated in the State

of Oklahoma.

(30)

_

The Commissioner says that there are in existence

other contracts for the taking of sand and gravel from

the Arkansas River, which the War Department has

held to be a navigable stream, and that all the parties

to such contracts are contending that from and after

November 16, 1907, when Indian Territory became a

part of the State of Oklahoma, neither the Cherokee

Nation nor the Department of the Interior had fur-

ther jurisdiction in the matter, and that they should

no longer be required to pay royalty on sand and

eravel taken from the bed of any navigable stream.

Commissioner Wright asks for instructions.

In the case of Shively vs. Bowlby (152 U.S. 1) the

Supreme Court very thoroughly discusses the ques-

tion of riparian rights and quotes from certain of its

previous decisions from which the following is cited:

In the case of Weber v. Harbor Commissioners (18

Wall. 65, 66), involving the question of ownership of

lands below tide-water at San Francisco:

Although the title to the soil under the tide

waters of the bay was acquired by the United

States by cession from Mexico, equally with the

title to the upland, they held it only in trust for

the future State. Upon the admission of Cali-

fornia into the Union upon equal footing with

the original States, absolute property in, and

dominion and sovereignty over, all soils under

the tide waters within her limits passed to the

State, with the consequent right to dispose of

the title to any part of said soils in such manner

as she might deem proper, subject only to the

paramount right of navigation over the waters

so far as such navigation might be required by

the necessities of commerce with foreign nations

or among the several States, the regulation of

which was vested in the general government.

31

- ——n

~

The case of Knight v. United States Land Associa-

tion (142 U.S. 183):

It is the settled rule of law in this court that

absolute property in, and dominion and gover.

eignty over, the soils under the tide waters in

the original States were reserved to the several

States; and that the new States since admitted

have the same rights, sovereignty and jurisdic.

tion in that behalf, as the original States pos-

sess within their respective borders. Upon the

acquisition of the territory from Mexico, the

United States acquired the title to tide lands,

equally with the title to upland; but with re.

spect to the former they held it only in trust for

the future States that might be erected out of

such territory.

In St. Clair v. Lovingston (34 Wall. 64, 68):

By the American Revolution, the people of

each State, in their sovereign character, ac-

quired the absolute right to all their navigable

waters and the soil under them. The shores of

navigable waters and the soil under them were

not granted by the Constitution to the United

States, but were reserved to the States respec-

tively. And new States have the same rights of

sovereignty and jurisdiction over this subject

as the original ones.

In summing up the case before it the court said:

Lands under tide waters are incapable of

cultivation or improvement in the manner of

lands above high water mark. They are of great

value to the public for the purposes of com-

merce, navigation and fishery. Their improve-

ment by individuals, when permitted, is

incidental or subordinate to the public use and

right. Therefore the title and the control of

them are vested in the sovereign for the benefit

of the whole people.

_ ae

At common law, the title and the dominion in

lands flowed by the tide were in the King for

the benefit of the nation. Upon the settlement

of the Colonies, like rights passed to the

grantees in the royal charters, in trust for the

communities to be established. Upon the Amer-

ican Revolution, these rights, charged with a

like trust, were vested in the original States

within their respective borders, subject to the

rights surrendered by the Consitution to the

United States.

Upon the acquisition of a Territory by the

United States, whether by cession from one of

the States, or by treaty with a foreign country,

or by discovery and settlement, the same title

and dominion passed to the United States, for

the benefit of the whole people, and in trust for

the several States to be ultimately created out

of the Territory.

The new States admitted into the Union since

the adoption of the Constitution have the same

rights as the original States in the tide waters,

and in the lands under them, within their re-

spective jurisdictions. The title and rights of

riparian or littoral proprietors in the soil be-

low high water mark, therefore, are governed

by the laws of the several States, subject to

the rights granted to the United States by the

Constitution.

The United States, while they hold the coun-

try as a Territory, having all the powers both

of national and of municipal government, may

grant, for appropriate purposes, titles or rights

in the soil below high water mark of tide wa-

ters. But they have never done so by general

laws; and, unless in some case of international

34

duty or public exigency, have acted upon the

policy, as most in accordance with the interes

of the people and with the object for which the

Territories were acquired, of leaving the ad-

ministration and disposition of the Sovereign

rights in navigable waters, and in the soil under

them, to the control of the States, respectively,

when organized and admitted into the Union,

The Arkansas River throughout its length in the

Cherokee Nation is a navigable stream under the laws

of the United States.

Under the above-quoted holding of the Court, it

must be conceded that when the State of Oklahom

was created, its jurisdiction and ownership of the

lands below high water mark of all navigable streams

within its boundaries, became absolute. In other

words, when the United States conveyed by warranty

deed the lands occupied by the Cherokees, Creeks,

Choctaws, Chickasaws and Seminoles, it did not con-

vey the ownership of the beds of navigable streams

but reserved them for the benefit of the future State

within whose boundaries they would fall. Thus, the

State of Oklahoma, on its creation, became absolute

owner of the bed of the Arkansas River, and the

Cherokee Nation is not entitled to royalty for any

sand or gravel taken from the bed of that river since

November 16, 1907.

Very respectfully,

s/C. F. Larraser,

Acting Commissioner.

Approved:

s/JESSE E. WILson,

Secretary.

MarcH 27, 1908.

US. GOVERNMENT PRINTING OFFICE: 1969