# Amicus Curiae Brief — Choctaw Nation v. Oklahoma

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1970
- **Citation:** 397 U.S. 620

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0180%3A08. Public record. Not legal advice.