WILSON v. OMAHA INDIAN TRIBE

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Argument of Edson Smith

Chief Justice Warren E. Burger: We'll hear arguments next in Wilson against Omaha Indian Tribe and the consolidated case.

It takes a little time for the audience to clear, Mr. Smith.

I think you may proceed whenever you're ready, Mr. Smith.

Mr. Edson Smith: Mr. Chief Justice and may it please the Court.

This suit amounts to a suit to quiet title to about 2,900 acres of land lying on the east bank of the Missouri River in Iowa, about 30 miles south of Sioux City.

The plaintiffs are the Omaha Indian Tribe in the United States as trustee for the tribe, and they are the respondents here.

The defendants are the record title holders of the land.

They are counterclaimants.

They are three individuals, a corporation, and the State of Iowa, and they are the petitioners here.

I represent Wilson and others.

Mr. Cullison will speak for the State of Iowa.

Directly west of this area, across the river in Nebraska, is the Omaha Indian Reservation.

It is established there pursuant to a treaty of 1854 with the router as its boundary on the east.

Justice Potter Stewart: Mr. Smith, I was a little confused by the -- just the nexus of what you're telling us now about the factual situation by the State of Iowa petitioner's reply brief filed here on March 17.

On page 14, it says under the conclusion “within the living memory, the land in issue has always been on the west bank of the Missouri River --

Mr. Edson Smith: That's a typographical error.

Justice Potter Stewart: Within the State of Iowa.”

Mr. Edson Smith: It should be “east.”

It's a typographical error.

Justice Potter Stewart: Shouldn't it?

Mr. Edson Smith: It should be “east.”

Justice Potter Stewart: Yes.

Mr. Edson Smith: It's been on the east bank, for 48 years at least, and some of it for 85 years.

The -- when the Reservation was surveyed in 1867 by T.H. Barrett for the General Land Office, this area of latitude or longitude, or under the sky, as they sometimes say, was occupied by a kind of peninsula extending eastward from Nebraska toward Iowa, between the upper and the lower limbs of the Blackbird Bend and so much of it, at least as was above the ordinary high water mark, was part of the Omaha Reservation.

Justice Potter Stewart: Is there a helpful drawing in these papers?

Mr. Edson Smith: Yes, on the back of the white appendix, there is a drawing, a map, of this area and, there, it shows the present river.

It shows the Iowa-Nebraska State boundary which was fixed by compact between the states in 1943.

It shows the retracement of the Barrett Meander of the Nebraska Shore of this Peninsula of 1867.

Justice Potter Stewart: You say that's where -- there are several drawings in representation.

Mr. Edson Smith: That's right, but they -- the one I'm referring to is on the back sh-- cover, attached to the back cover.

Justice Potter Stewart: Of the white -- I see it.

Mr. Edson Smith: Of the white appendix.

Justice Potter Stewart: That is the appendix to the petition for a writ of certiorari.

Mr. Edson Smith: Yes.

Justice Potter Stewart: Filed here July 28.

Mr. Edson Smith: That's correct, Your Honor.

In the --

Justice Potter Stewart: That was the most helpful drawing.

Mr. Edson Smith: Yes, there -- actually, there are copies of the same map in several other places in briefs and so forth, but that's the one I've referred to.

The irregular line there, which is northeast and south of the Barrett, the retracement of the Barrett Survey line is the Iowa high bank.

The land inside that Barrett Survey retracement, bounded on the west by the Iowa-Nebraska State boundary and on the other sides by the retracement is what we call in this case Barrett Survey area, and it's part of the larger lowland area, also bounded on the west by the state boundary but on the other sides by the Iowa high bank which has been called the Blackbird Bend area.

The plaintiffs in this case, the State of -- the United States, as trustee for the Tribe -- Indian Omaha Tribe, claim that this land, now on the Iowa Bank of the River, is there by reason of a avulsive actions of the river and that it's part of the Reservation.

The defendant, State of Iowa, claims part of it as secretion to the bed of the river, part of the bed owned by the state, and Iowa and the other defendants claim there is though the secretion to Iowa riparian land, that's between Iowa and the defendants Lake and Wilson and RGP Incorporated, and the conflicting claims are settled by those defendants giving Iowa quick-claim deeds to the land Iowa now claims in Iowa consenting to decrease in quite --

Justice William J. Brennan: What Court does Iowa claim?

Mr. Edson Smith: It shows on that map that I've referred to, Your Honor.

It's --

Justice William J. Brennan: You say that it claims as part of the bed of the old river, the old bed?

Mr. Edson Smith: Yes, Iowa claims part of this land as secretion to the east half of the bed of the river which Iowa owned, and the rest of it is claimed by Iowa and the other defendants as secretion to Iowa riparian land.

Actually, each def -- the other defendants claim through Iowa and Iowa claims through the other defendants also by reason of the quick-claim deeds to Iowa and the quiet title action decrees in favor of those other defendants.

The District Court placed the burden of proof upon the plaintiffs to prove their complaints and upon the defendants to prove their counterclaims.

The Court found that the plaintiffs had failed to sustain their burden but that the defendants had proved that this land is secretion to Iowa riparian land and, accordingly, the District Court quieted title in the defendants.

Justice Potter Stewart: Applying what law?

Mr. Edson Smith: Applying -- the District Court held the law of Nebraska was applicable.

Justice Potter Stewart: That's what I thought.

Mr. Edson Smith: I think --

Justice Potter Stewart: Which was somewhat more favorable to --

Justice William J. Brennan: I think it should be the law of Iowa but it was state law.

Justice Potter Stewart: But the law of Nebraska was somewhat more favorable to the tribe than would've been the law of Iowa, correct?

Mr. Edson Smith: Yes.

Justice Potter Stewart: So far as its presumption of avulsion.

Mr. Edson Smith: That's correct.

Their presumption is definitely in favor of secretion in Iowa and Nebraska hasn't really passed on that question.

The Eighth Circuit reversed the District Court and said that -- directed a decree quieting title in the plaintiffs in so much of this Barrett survey area as was trust land.

The Eighth Circuit held that the evidence did not prove either avulsion or accretion, but that the evidence was conjectural -- too conjectural and the Trial Court's decree too speculative to sustain the defendants' burden under Section 194 of 25 United States Code, which purports to put the burden of proof on the White person in a trial about the right of property where an Indian is a party on the other side.

The Court's decision in that respect was further influenced by its decision to apply federal rather than state common law of accretion and avulsion and by it peculiar version of state common law, under which, there may be an avulsion without any fast land being s --

Justice John Paul Stevens: Do you mean avulsion of federal law?

Mr. Edson Smith: Yes, that's right.

Did I'm -- did I say state?

I'm sorry.

Federal law, yes.

Its peculiar version of federal law under which it's not necessary in order to have an avulsion that there'd be any fast land severed from one bank of the river and becoming attached to the other and if there may be an avulsion within the bed of this river, that is, over where the stowage of the river moves over or around a piece of shore or a sandbar and that it's not necessary in order to have an avulsion that the river abandoned its own bed and seek a new one.

It can all happen within the bed.

Wilson's petition for certiorari listed five questions for review.

This Court granted certiorari but limited to two of those questions.

First, whether the Court of Appeals erred in so construing Section 194 as to make it applicable in this case and, second, whether the Court of Appeals erred in applying federal rather than state common law of accretion and avulsion to this case.

I intend to cover the first point of the construction of Section 194 and Mr. Cullison will devote his attention to the question of the state or federal law.

There are five groups of words in --

Justice John Paul Stevens: Do you think then, if it were decided that assuming that federal law applies, we don't have an issue here as to whether the Court of Appeals directly viewed the federal law of avulsion.

Mr. Edson Smith: You didn't grant certiorari on that point, Your Honor.

Justice John Paul Stevens: Okay, thank you.

Mr. Edson Smith: We hoped you would, but we were disappointed.

There are just those two questions presented.

In Section 194, you'll find five groups of words that are misconstrued, we say.

Coincidentally, Section 194 is printed on page 2 of the Wilson principle brief.

It's part of the 1834 Indian Non-Intercourse which is printed in full in the buff-covered appendix, beginning at page 190 with Section 22, which is the present Section 194 printed at page 199.

First group of words that calls for construction there are “any Indian” and “the Indian” and “himself,” referring to an Indian.

The Court of Appeals construed “an Indian” to mean an Indian tribe, but it takes more than one Indian to make a tribe.

The United States sues, in this case, as trustee for the Omaha Tribe, not for its individual members.

The Omaha Tribe is a corporation

It's a legal entity, separate and distinct from its members.

It sues for itself, not for its members.

It claims this land as tribal land.

The Congress knew how to describe Indians separate from tribes or going to the Section to apply to the Indians and not to the tribes, to describe tribes separately from Indians who are going to this section to apply to tribes and not Indians, and to describe both at the same time when they're going to the section to apply both is perfectly apparent from the 30 sections of this 1834 Act.

Where it wanted them to apply to both, it used appropriate language such as “any Indian or Indian tribe,” used that expression in a number of times.

Section 194 makes its first appearance on the statute books in the 1822 Indian Non-Intercourse Act.

But, there, the difference was that the plural was used, “Indians.”

That was changed to singular in the 1834 Act.

If, by any stretch of the imagination, Indian is plural, it could be construed to include an Indian tribe.

Certainly, changing that to singular would preclude any such option.

Justice William H. Rehnquist: Actually, in the 1822 enactment in Section 4, when you go back in statutes at large, it's used in the plural in the first sentence in the first clause and the singular in the second clause, isn't it?

Mr. Edson Smith: That's correct, Your Honor.

The opposition says that this change was a mere change of -- to correct syntax and make it the same in both places, but if they wanted to correct the syntax and make it mean plural, they could just as well have changed the later word there to plural from singular and that would've had the same effect if the Congress chose to change the plural to singular, rather than to change the singular to plural.

Justice John Paul Stevens: Mr. Smith, is it your view that if, say, a husband and wife who were joint tenants of a property were Indian would not have the benefit of the statute if they both brought suit on the cases without being entitled --

Mr. Edson Smith: No, that's not right here, Your Honor.

I think if they are --

Justice John Paul Stevens: And I don't --

Mr. Edson Smith: Individual Indians -- if there's two individual Indians suing one White person, the statute would -- on its face, would apply.

Justice John Paul Stevens: What if there are three?

Mr. Edson Smith: Or three, but this is --

Justice John Paul Stevens: But how do we distinguish between singular and plural then?

It's not too many, is that it?

Mr. Edson Smith: Well, if it's --

Justice John Paul Stevens: Because either you con -- once you concede that, you're conceding --

Mr. Edson Smith: If each one is suing for itself, but if it's an organized group --

Justice John Paul Stevens: Well, that's a different point.

Mr. Edson Smith: That's a different point, yes.

Justice John Paul Stevens: And then I think you really are abandoning the point that the singular is of any significance.

You're saying there's a difference between the word “Indians” --

Mr. Edson Smith: Well, I don't think that the plural would be -- could be construed to include a tribe, but --

Justice John Paul Stevens: But shouldn't we read this at least as covering plural Indians and not place so much emphasis on the “an Indian”?

Justice Potter Stewart: Each individual Indian would be --

Mr. Edson Smith: Each individual Indian would --

Justice Potter Stewart: Certainly, his own property right.

Mr. Edson Smith: That's right.

Justice Potter Stewart: That's a different case away, but I just wonder if the singular is significant rather than the fact it refers to “Indians” rather than “Indian Tribes.”

Mr. Edson Smith: Well, as I say, I don't think-- even in the 1822 Act, I don't think that could be properly construed to include a tribe or the plural is used, but I say if, by any stretch of the imagination, it could be.

Certainly, when it was changed to the singular, it would be even less possible to construe it as a tribe.

Justice John Paul Stevens: What if instead of the tribe suing one tribe-- tribal member, it sued on behalf of the class of Indians who belonged to the tribe? How would you handle that?

Mr. Edson Smith: Well, if it's a matter of the individual rights by, I would say, one could see for the class, but here, as I pointed out, this is not because he brought four individual Indians by the tribe.

It's a suit brought by the tribe for itself, involving tribal land, not a lot of Indian lands and, certainly “an Indian,” as I say, it takes more than one Indian to make a tribe.

In 1834, the Courts were holding that tribes could not sue or be sued in Federal Court, and that might be one reason why Congress didn't give the tribes the burden of proof advantage that Section 194 purports to give to s-- individual Indians, why give a burden of proof advantage to a party that couldn't come into Court? The next group of words that I want to talk about are “a White person.”

According to the dictionary, a White person is a member of the Caucasian race, but the Corporate-defendant here is not a Caucasian.

The State of Iowa is not a Caucasian.

The individual-- as to the individuals, there's no evidence in the record as to whether they're-- what their color or what their race is.

Here, again, the language of the 30 sections of the 1834 Act demonstrates that Congress knew how to describe non-Indians and, incidentally, the Court of Appeals construed a White person to mean all non-Indians, but where Congress wanted to describe all non-Indians and use such expressions as “any person other than an Indian.”

In Section 16 of the 1834 Act, the word “White person” is used and, with respect to that section, this Court held in United States versus Perryman in 1880 that “White person” does not mean all non-Indians and it does not include a Negro.

Judge Bogue, the trial judge, held that Section 194 would not be applicable in this case because the-- in order to trigger its application, the Indian must first make the showing of previous possession or ownership of the land involved and that, if the Indian could show previous possession or ownership, he would be showing an avulsion and, if he made that proof, he wouldn't have to have Section 194 because he'd already proved his case.

Judge Bogue held that this land was accretion to the Iowa Riparian Land and, as such, that it is not the same land that the Indian owned or possessed in 1867.

It is new and different land, deposited against the Iowa Bank by the river by bringing down and moving them from north and dropping it there.

Justice John Paul Stevens: Well, isn't that a fundamental reason why the statutory presumption is inapplicable to this case, even if it otherwise would be?

Because, in order to invoke it, one-- the Indian or Indians must show against a “White person” previous possession or ownership, and doesn't that assume the answer to the issue in this case?

Mr. Edson Smith: It does.

The Court of Appeals simply begged the question.

It assumed the existence--

Justice John Paul Stevens: Isn't that correct, regardless of your argument, as to the meaning of the statutory presumption?

Mr. Edson Smith: Yes, that's right, Your Honor.

I've listed here five different groups of words that call for construction.

If any-- if the Court of Appeals is wrong in any one of those five, it would return the burden of proof to where the Trial Court put it on each party to prove his own case.

The final clause of the section is one that calls for construction.

It reads “whenever the Indian shall make out a presumption of title in himself from the fact of previous possession or ownership.”

The Court of Appeals construed that to mean that the Indian does make out a presumption of a title in himself if he shows previous possession or ownership.

Justice John Paul Stevens: Well, if he shows previous possession or ownership then, under the circumstances of this case, the change must have been an avuslive change and the Indians win regardless of any presumption.

Isn't that correct, under the law of Nebraska or of Iowa or of--

Mr. Edson Smith: If he shows an avulsion--

Justice John Paul Stevens: Under this federal law in any event.

Mr. Edson Smith: If it is an avulsion, yes.

Justice John Paul Stevens: Yes, that's the end of it.

Mr. Edson Smith: Yes.

Here--

Justice John Paul Stevens: But doesn't that turn on whether one takes this “under the sky” approach to the land or decide first whether there's accretion and an avulsion?

If you talk about “under the sky” or meets in bounds by latitude and longitude--

Mr. Edson Smith: Not just--

Justice John Paul Stevens: They did think a prima facie case of that, didn't they?

Mr. Edson Smith: With reference to the “under the sky,” the--

Justice John Paul Stevens: If you measure the latitude and longitude “under the sky” or however you phrase it here, they did demonstrate everyone's satisfaction that this area was, at one time, within the reservation.

Mr. Edson Smith: But the area under the sky--

Justice John Paul Stevens: Yes.

Mr. Edson Smith: But not the present land.

Justice John Paul Stevens: I understand, but isn't that an issue you have to decide in reading the statute?

Does it mean presumption of title to the area under the sky or do you mean to resolve the accretion-avulsion dispute first?

Mr. Edson Smith: Well, it doesn't say “area under the sky.”

The statute says--

Justice John Paul Stevens: It doesn't say anything.

Mr. Edson Smith: “Previous ownership or possession--“

Justice John Paul Stevens: Of what?

Mr. Edson Smith: Of the land in controversy.

Justice Potter Stewart: And if you're cor-- if it was accreted land, then the land didn't exist until the accretion.

Mr. Edson Smith: That's right.

Justice John Paul Stevens: Does the word “land” appear in Section 22?

I don't find it.

Mr. Edson Smith: Well, it says in-- it says “property”--

Justice John Paul Stevens: Right.

Mr. Edson Smith: In all trials with respect to property, and the implication of --

Justice John Paul Stevens: And it is conceded by everybody that --

Mr. Edson Smith: “Previous possession or ownership” is --

Justice John Paul Stevens: This particular area on the surface of the Earth, at one time, did belong to the Indi.

Mr. Edson Smith: This particular area, yes, but not the property that's in that particular area now.

Justice John Paul Stevens: Depending on how one construes the word “property” within the meaning of Section 22.

That's just -- that's the issue one must decide, as I understand it.

Mr. Edson Smith: Well, if it's this property, why, then that's one thing.

If it's other property formerly occupying that area under the sky, that's something else again.

But, the point I was about to make with regard to that clause is that, even assuming that it's the same property, the Court of Appeals here assumed that the Indian would make out the presumption of present title simply by showing previous possession or ownership.

And, what I'm saying is that that doesn't follow because “whenever” doesn't mean “always” and “whenever” calls into application here the presumption of a continuance of the existence of a condition or state of facts, and that's a presumption that is not applied in all cases but only where the circumstances are such as to show the likelihood of the continuation of that state of facts or condition.

And, in this case, the con-- the circumstances are such that the Indian couldn't possibly make out a presumption of ownership because the land has been on the Iowa side of the river for 48-- 85 years.

The defendants and their predecessors, their title, have been in possession of it for at least 40 years and they've cultivated it, leveled it.

They've cleared with the trees.

They've put in loads in culverts.

They had such possession as to give them title by adverse possession four times over because the statute of limitations of Iowa and Nebraska both are 10 years if those statutes applied.

They don't apply and they still have strong presumption which would be the basis of application of those statues to which they apply.

Under those circumstances, the Indians could not make out a presumption of title in himself.

Finally, on this subject, the words “burden of proof” themselves call for construction.

That is an ambiguous turn that has two meanings.

It may mean burden of going forward with the evidence.

It may mean risk of a non-persuasion.

The Court of Appeals construed it to mean risk of non-persuasion and that, so interpreted, it makes out of Section 194 an invidious racial discrimination.

It takes the right person's property and gives it to the Indian solely on the basis of race construing it, however, to mean burden of going forward with the evidence.

It has no such devastating effect on the White person's rights and such a construction could save the constitutionality of the statue for whatever that's worth.

Justice John Paul Stevens: Of course, under your construction of the statute-- presumption of the statute, its constitutionality would be very dubious, wouldn't it?

Because it would be discriminating-- we've held that discrimination favoring Indians at the expense of non-Indians does not violate the Equal Protection Clause of the Fourteenth Amendment, at least, context but favoring--

Mr. Edson Smith: Well, then I think that's--

Justice John Paul Stevens: Disfavoring White people at the expense of everybody else, Negros and everybody else, would raise serious constitutional questions under the Equal Protection Clause of the Fourteenth Amendment, wouldn't it?

Mr. Edson Smith: Well, it certainly does, Your Honor.

Of course, we --

Justice John Paul Stevens: As a discrimination -- a differentiation between Indians and non-Indians would not.

Mr. Edson Smith: Well, I think the discrimination between Indians and non-Indians of this sort would still be an invidious discrimination.

Justice John Paul Stevens: Well, but you say--

Mr. Edson Smith: I am unaware of the Mancarry case--

Justice John Paul Stevens: A White person doesn't mean “non-Indian” and, hence, it means what it says, “White person.”

And, that would invoke serious constitutional doubts if that's correct, wouldn't it?

Because that means that you're discriminating against White persons in favor of not only Indians but colored people, yellow people, brown people.

Mr. Edson Smith: I -- that's the point that was raised in the briefs of the --

Justice John Paul Stevens: The Solicitor General.

Mr. Edson Smith: Solicitor General, yes.

I think that might be true but I disagree that discrimination between White persons and Indians is not an invidious discrimination.

Justice John Paul Stevens: Well--

Mr. Edson Smith: I'm aware that Mancarry--

Justice John Paul Stevens: The more it felt its discrimination differentiation to the benefit of Indians between Indians and non-Indians does not violate the Equal Protection Clause, at least in a certain context.

Mr. Edson Smith: I'm not--

Justice John Paul Stevens: That's our case.

Mr. Edson Smith: I'm not clear on that, Your Honor, in this Mancarry case.

Justice John Paul Stevens: The Court is.

The Court held --

Mr. Edson Smith: The Court held there could be a discrimination in --

Justice John Paul Stevens: In employment.

Mr. Edson Smith: In employment in the Bureau of Indian Affairs, giving --

Justice John Paul Stevens: Favoring Indians against --

Mr. Edson Smith: Not favoring all Indians, favoring just those Indians that are tribal Indians living on the reservation or whatever it takes to be a tribal Indian.

And, the purpose of that discrimination, according to this Court, was to help Indians develop self-government and so forth.

Now, there's no such background for discrimination of that sort in this c-- in this Section 194, and the Court said it was not-- in those circumstances, it was not an invidious discrimination.

Here, I think it is an invidious discrimination.

I don't think it's comparable to the--

Justice John Paul Stevens: It would be even worse if there were discrimination against people who were White in favor of everybody else, wouldn't it, Indians, Black people, Brown people, Yellow people?

Mr. Edson Smith: Alright, I didn't quite follow.

Justice John Paul Stevens: That's your construction of it.

That it has to be read meaning “only White people, a White person.”

Justice Harry A. Blackmun: Let me put the question this way.

Would your case be any different if some of the claimants were from Nigeria or from China?

Mr. Edson Smith: Well, according to the-- that argument, if they were from Nigeria or China and they were discriminated against as between them and White persons, the -- that would make the section unconstitutional, but what I'm saying is it's equally unconstitutional where it's simply discrimination of this sort between an Indian and a White person.

Justice John Paul Stevens: Mr. Smith, following up on Justice Blackmun's point, as I understand it, the record does not tell us the race of your individual clients.

Mr. Edson Smith: That's fair.

That's correct, Your Honor.

Justice John Paul Stevens: It's conceivable that two or three of them are from China and the rest are White persons.

And, I take it, if the presumption is decisive, some of your clients will win and some will lose because some of them will be White persons who get the -- who have the adverse effect of the statute and others will not be hurt by the statute and they may well win.

Mr. Edson Smith: Well, that's -- if this was the only point in the construction of the section, yes, it will be possible to go back and prove that some are White and some are other and --

Justice John Paul Stevens: And so, some of your clients--

Mr. Edson Smith: So, there might be a difference which--

Justice Potter Stewart: You're going to make a constitutional argument in your brief?

Mr. Edson Smith: We made a constitutional argument in our petition for certiorari, Your Honor.

Justice Potter Stewart: But in your brief on the merits, do you?

Mr. Edson Smith: In our brief, we tried to confined our arguments to the --

Justice Potter Stewart: Construction of the statute, as well as the appellee --

Mr. Edson Smith: The construction of the statute, yes, because--

Justice Potter Stewart: Belongs to what?

Mr. Edson Smith: That was all that this Court granted certiorari on.

We-- the constitutionality of the statute was one--

Justice Potter Stewart: We don't really have it.

Mr. Edson Smith: But you didn't-- actually, on the constitutionality, you have up-- held up the petition for certiorari of one of the other defendants which raises the constitutionality question, along with ours.

I will reserve the rest of my time for rebuttal, Your Honor.

Argument of George Bennett Cullison, Jr.

Chief Justice Warren E. Burger: Mr. Cullison.

Mr. George Bennett Cullison, Jr.: Mr. Chief Justice and may it please the Court.

If there's anything clear throughout the history of the federal system, it is that the Tenth Amendment to the Constitution and the decisions of this Court require application of local law and not federal common law in property disputes, unless the constitution laws of the United States otherwise require.

This was the rule even under Swift v. Tyson.

It is the position of the State of Iowa that these basic principles have been violated in this case.

Until this controversy arose in 1975, title was settled in the petitioners in this case.

In 1975, the Solicitor for the United States Department of Interior formed the erroneous belief that the land in this case was cut off from the Omaha Indian Reservation by a re-channelization project with the United States Core of Engineers during the 1940s.

Later, in 1975, the tribe, aided by the United States Bureau of Indian Affairs, invaded the land and occupied it.

Against this factual backdrop, the United States commenced action to quiet title to the land as trustee for the Omaha Indian Tribe.

Chief Justice Warren E. Burger: To what use was the land put at the time you described as its having been invaded and occupied?

Mr. George Bennett Cullison, Jr.: It was-- a portion of it claimed by the State of Iowa, Your Honor, was used for a wildlife refuge.

The remaining portion of the land was under cultivation by the other petitioners in the case and the tribe, in its own behalf, at Bureau of Indian Affairs commenced a separate action to quiet title to the same land an additional 8,000 acres in the same locality.

After trial, lasting about six weeks, the State of Iowa and the other petitioners it proved, without the aid of any presumptions, that the Indian land in this locality, which was in the path of Missouri River, washed away more than a century ago and that this land is new land formed on the Iowa side of the river.

On the appeal to the Eighth Circuit Court of Appeals, it was held that federal interest required application of federal common law of avulsion drastically different from local law, as well as previously recognized federal law.

By extrapolating from two Court of Appeals decisions involving interstate boundaries, this Court -- the Court of Appeals concluded that a sudden and unusual jump of the thalweg within the bed of a river or over as well as around land, whether it's submerged or not, invokes the Doctrine of Avulsion.

These events would be difficult to prove at the time they occurred.

But, the Court of Appeals cast the burden upon Iowa and the other petitioners in this case to prove they did not occur more than a century ago.

Justice William H. Rehnquist: You say that they did that as a matter of the federal boundary law of accretion and avulsion?

Mr. George Bennett Cullison, Jr.: Your Honor, they used that-- the two Court of Appeals cases involving interstate boundaries to reach this result, and we contend that they, even in this particular case--

Justice William H. Rehnquist: I had always read Nebraska against Iowa, the 143 US case, to stand for the proposition that there's a presumption that it-- the change occurred by accretion rather than avulsion.

Mr. George Bennett Cullison, Jr.: I think that's correct, Your Honor.

Justice William H. Rehnquist: I think many texts had read it the same way.

Mr. George Bennett Cullison, Jr.: That's correct, Your Honor.

I think so, and I think that identifle-- identifiable land in place is also a rudimentary and important concept in this law of avulsion that's also found in that case.

The Court of Appeals held that the State of Iowa and the other petitioners in this case fail to sustain this impossible burden and, therefore, it reversed the Trial Court in order that title to the land be quieted in the Omaha Indian Tribe and in the United States as trustee.

The Court of Appeals held and respondents argue that it's required in this case decision in Oneida Indian Nation v. County of Oneida.

The issue before this Court in that case was whether there was federal subject matter jurisdiction under 28 United States Code 1331 and 1332.

It was alleged by the petitioners in that case that a conveyance of tribal land to the State of New York without the consent of the United States Government violated the Federal Non-Intercourse Act.

Clearly, a violation of the Non-Intercourse Act was alleged and this Court properly held that there was federal subject matter jurisdiction.

Justice Potter Stewart: What was the basis of federal jurisdiction in the present case, diversity or what?

Mr. George Bennett Cullison, Jr.: It was the United States title in the land in dispute, the Indian title to land in dispute.

Justice Potter Stewart: The United States is the plaintiff.

Mr. George Bennett Cullison, Jr.: That's correct, Your Honor.

There is no dispute in this case concerning the propriety of federal jurisdiction.

In Oneida, this Court went on to discuss federal government's continuing interest in protecting the aboriginal title to Indians in their reservation land.

Whatever the effect of this language is, it is distinguishable from the case at bar. In this case, the question is not whether the State of Iowa and the other petitioners here seek to extinguish Indian title to their aboriginal lands in violation of a federal statute because the Indian's possession of the land was extinguished by the physical action of the Missouri River over a century ago.

The question here is whether Indian land is affected by the same law of accretion and avulsion that uniformly affects the property rights of the State of Iowa and the other peti-- riparian owners in this same locality.

United States v. Oklahoma Gas Company is more pertinent.

In that case, the question before this Court was whether the federal authority to construct a highway through tribal land, held in trust by the United States Government, included the right to erect electrical transmission lines.

This Court held that a conveyance by the United States of land which it owns beneficially for Indians is to be construed according to the law of the state where the land lies, unless an expressed congressional intention to the contrary is shown.

The Court pointed out application of different federal law was not necessary to protect the Indians from their own improvidence or from overreaching by others.

The Court pointed out the same law applied to Indians and to non-Indians alike.

The Court continued with the observation that Oklahoma is spotted with restricted lands held in trust for Indian lotees.

Complications and confusion would follow from applying rules differing from those which obtain as to lands of non-Indians and that the Court believes that if the Congress had intended this, they would have made its meaning clear.

Exactly that same reasoning is applicable in this case.

So, the fundamental issue to be decided by this Court is whether federal interest requires application of new federal common law radically different from local law in this case.

The Court of Appeals and the respondents argue that it is required because the case involves an interstate boundary and because there is a special interest of the United States Government in protecting reservation lands.

Both of these contentions are incorrect.

There is no interstate boundary involved in this case.

The boundary between Iowa and Nebraska was fixed by a compact in 1943.

Justice Byron R. White: What if in an earlier century than that, Iowa and Nebraska had become involved in a dispute as to their boundary?

Mr. George Bennett Cullison, Jr.: Then--

Justice Byron R. White: In the same area and they sued each other in this Court, and the question was-- it got down to whether there was accretion or avulsion?

Mr. George Bennett Cullison, Jr.: Then that would be a question of federal law to be decided by this Court.

Justice Byron R. White: At that time?

Mr. George Bennett Cullison, Jr.: At that time.

Justice Byron R. White: And, now-- and that-- so, that-- but that's irrelevant in this case because, why?

Mr. George Bennett Cullison, Jr.: That's irrelevant in this case because, now, there is an interstate boundary and for the additional reason that the only issue that the location of the boundary could have any relevance to the case would be in choice of law between Iowa and Nebraska in case there was a conflict between the law of Iowa and Nebraska.

Justice Byron R. White: But the events that changed the river took place at a time when federal law would've controlled if there hadn't been a dispute between Iowa--

Mr. George Bennett Cullison, Jr.: That's very correct, Your Honor, but the only relevance of the location of the boundary in this case would be in the choice of law where there's a conflict between the law of Iowa and the law of Nebraska.

And, any conflict that there is between the law of Iowa and the law of Nebraska was resolved in favor of the respondents when the Court chose Nebraska law in deciding the case.

And, for that reason, the location of the boundary now or the location of the boundary before 1943 has no relevance to this case and it's our contention that any cases-- federal cases that relate to interstate boundaries have no application here.

Also, there is no special interest of the United States Government in protecting the aboriginal rights of the Omaha Indian Tribe in this case either because the tribe was denied possession of this land a century ago by the physical action of the Missouri River and not by any action involving the State of Iowa or these petitioners.

The same law applies to the Omaha Indian Tribe as applies to the other riparian owners in the same locality.

There is no need in this case to protect the tribe from its own improvidence or overreaching by others because there is none involved here.

The local law is uniform in its application to Indians and to Indians-- non-Indians alike.

And, we submit that there is no basis and no reason why the interest of the United States Government in the Omaha Indian Tribe and its tribal lands cannot be readily and equally protected according to state property laws.

And--

Justice Byron R. White: You say, it's really no different than if the same property had simply been public lands, not an Indian reservation.

Mr. George Bennett Cullison, Jr.: That's correct, Your Honor.

Justice Byron R. White: The Un-- the mere ownership of riparian land by the United States doesn't mean that the law of avulsion or accretion should be federal law.

Mr. George Bennett Cullison, Jr.: Or should be any different in local law--

Justice Byron R. White: In that section of the river, yes.

Mr. George Bennett Cullison, Jr.: That's right, Your Honor.

Unless it's shown that there's some discrimination or there's some interference with a federal interest that is important or unless it's required by some federal need or some federal policy that local law should apply.

Justice Byron R. White: And you say it should be decided just as though this weren't an interstate river at all, if it were just a river inside some state.

The riparian ownership of land by the United States wouldn't mean federal law would control.

Mr. George Bennett Cullison, Jr.: That's right, Your Honor.

That's right.

We contend that the Court of Appeals judgment should be overruled, reversed, and that the Trial Court's judgment should be affirmed.

Justice John Paul Stevens: Mr. Cullison, I realize that this question bears on Mr. Smith's side of the case, as argued here.

Mr. George Bennett Cullison, Jr.: Yes, Your Honor.

Justice John Paul Stevens: Yours is between which law applies.

But, going back to the statute, Section 194, do you think it would be possible to say that a state is not a White person, whatever might be the situation as to individuals.

You're here representing the State of Iowa.

Mr. George Bennett Cullison, Jr.: That's correct, Your Honor.

I'm not sure if I understand your question.

Justice John Paul Stevens: Well, the-- Section 194 refers to an Indian may be a party on one side and a White person on the other.

Do you think it would be possible for a Court to hold that however the term “White person” is interpreted with respect to individuals, it has not application to a sovereign state?

Mr. George Bennett Cullison, Jr.: That is our position, Your Honor.

Justice John Paul Stevens: Do you think it's, well--

Mr. George Bennett Cullison, Jr.: I believe that--

Justice John Paul Stevens: Part of your position, but, I take it, in-- because you're on this side of the case you might be sympathetic to Mr. Smith's position so far as individuals are concerned and maybe you're not taking it--

Mr. George Bennett Cullison, Jr.: I believe the constitutional problem that was raised with respect to different types of people do not apply to the state, that you still can-- that, still, it does not apply to the State of Iowa regardless of whether-- of the constitutional problems of distinguishing or making distinctions between Blacks and Whites and Caucasian and Orientals.

That, still, the-- there are more constitutional problems raised by including the State of Iowa as a White person than there are by-- avoided by interpreting the award to mean “only non-Indians.”

Thank you.

Argument of William H. Veeder

Chief Justice Warren E. Burger: Mr. Veeder, we'll not ask you to split your argument for three minutes if you'll be prepared to go on at 1:00.

Mr. William H. Veeder: You're very kind, Your Honor.

Thank you.

[Luncheon Break]

Chief Justice Warren E. Burger: Mr. Veeder, you may proceed whenever you're ready.

Mr. William H. Veeder: Mr. Chief Justice and may it please the Court.

This is a unique case that is here for review for several reasons.

We've heard complaints this morning that the Appellate Court had applied 25 USC 194 to them and that they had the burden of proof by reason of that statute.

The fact is that they are complaining about a statute that applied the burden of proof that they voluntarily assumed themselves because they had no other course to pursue.

They pleaded and spent days trying to prove that the Blackbird Bend had been washed away by action of Missouri River and that it had been restored by accretions to the Iowa Bank, and they failed.

They failed totally and completely and entirely in the effort to make the proof that they are now complaining about.

They pleaded in their answers and they undertook to prove, and that's the only defense that they had to the Omaha Indian Tribe's complaint, the only defense they had was that the river had washed away this-- the lands and that they had been restored by accretions.

Justice Potter Stewart: Mr. Veeder.

Mr. William H. Veeder: Yes?

Justice Potter Stewart: The-- this litigation began, as I understand it, by a Bill to quiet title--

Mr. William H. Veeder: That's right.

Justice Potter Stewart: Filed by the tribe and by the United States.

Mr. William H. Veeder: The United States of America filed, and, incidentally, I have a large map here that might be of help to the Court, I don't know whether what locations are important.

Justice Potter Stewart: Now, but that's just-- if you just please listen to my question--

Mr. William H. Veeder: Yes.

Justice Potter Stewart: And answer it, thank you.

Mr. William H. Veeder: I will.

Justice Potter Stewart: It began by a Bill to fi-- to quiet title filed by your client and the United States as plaintiffs--

Mr. William H. Veeder: The United States filed the first complaint.

Justice Potter Stewart: Yes, and the--

Mr. William H. Veeder: And it related to this land that is in pink.

Justice Potter Stewart: Right, and in order to-- I suppose the allegations in that complaint were that, or at least depended upon, the proposition that this was an avulsive change, didn't it?

Mr. William H. Veeder: Not really, Your Honor.

The pleas were simply that the 2,900 acres-- the title of the 2,900 acres resided an Omaha Indian Tribe and that that land is held in trust by the United States of America.

Justice Potter Stewart: And, as some sort of a statutory or other presumptions or inferences that would change the general rules, the general rule would be that the plaintiff has the burden of proof, wouldn't it?

Mr. William H. Veeder: That's correct and we certainly proved the-- we offered our prima facie case and we proved that these lands were originally part of the Omaha Indian Reservation, we offered the treaty, we offered the 1867 Barrett Survey showing concisely and precisely where those 2,900 acres were situated and that, in 1867, the river flowed around that land.

And, I submit to Your Honor that that was a prima facie case, but may I take one--

Justice Potter Stewart: That is at-- the so-called “under the sky meets and bounds”?

Mr. William H. Veeder: That's “under the sky.”

We've proved that those lands were part of the Omaha Indian Reservation in 1854.

We've proved that there are surveys in 1867.

We've proved that they are occupied by the Indians until at some time between the 1920s.

Justice Potter Stewart: As a matter of the “meets and bounds”?

Mr. William H. Veeder: Yes.

Justice Potter Stewart: “Under the sky”?

Mr. William H. Veeder: Yes, those were-- that was surveyed by Barry-- by Barrett and it was entirely a federal United States Congressional survey--

Justice Potter Stewart: Because, under the ordinary rules of this, this land would've had to shift it to the east bank of the river by reason of avulsion for it to be the same land in the Iowa property law, would it not?

Mr. William H. Veeder: Your Honor--

Justice Potter Stewart: If the actual loss of the land on the west bank and a gradual accretion on the east bank and a gradual erosion on the west bank than under ordinary property laws, it wouldn't-- it would've belonged to the owners on the east bank, wouldn't it?

Mr. William H. Veeder: Well, Your Honor, we--

Justice Potter Stewart: The owners on the east, isn't that generally proper--

Mr. William H. Veeder: No, Your Honor, I think that's-- if I may respectfully suggest--

Justice Potter Stewart: Well, please do.

Mr. William H. Veeder: That is a very simplified situation that you have described.

This is a very large track of land.

Justice Potter Stewart: Yes.

Mr. William H. Veeder: It's in Oxbow.

It was-- it's encompassed within, and may I retract just a moment.

The Department of Justice case relates to the land that's there in pink that you can see.

The-- that's 2,900 acres.

The Department of-- the Omaha Tribe involves 6,000 acres of land.

Justice Potter Stewart: That's not directly in issue in this case.

Mr. William H. Veeder: No, it isn't.

They just cut the heart out of it, 2,900 acres in the middle.

Justice Potter Stewart: Right.

Mr. William H. Veeder: But what I'm saying that it is very simplistic to say that, normally, the rule is that the accretions, that is the presumption of accretions, as--

Justice Potter Stewart: No, I'm not talking about a presumption.

I'm talking about what historically happened.

And, if what historically happened was the gradual erosion of the west bank and the gradual accretion of land on the east bank, then the original west bank owners no longer own the land.

Now, you say that's over simplistic.

Do you mean to say that's in-- that's long been mistaken?

Mr. William H. Veeder: That's not the situation here, Your Honor.

Justice Potter Stewart: Well, by saying over simplistic, do you mean to tell me it's wrong?

Mr. William H. Veeder: It is--

Justice Potter Stewart: And don't hesitate if that's what you mean.

Mr. William H. Veeder: I really think, on this river, it is wrong.

I think, on this river, there is no way--

Chief Justice Warren E. Burger: Do you mean on this river or on this situation?

Mr. William H. Veeder: On the Missouri River and this situation.

The factual situation is very, very simply this.

The river, from the time of Louis and Clark, was flowing around that Oxbow-- that bend.

The Oxbend-- bow bend moved eastward by accretions toward 1875.

In 1879, there was a drastic change in the course of the river but, Your Honor, the important thing here is that the burden was upon these defendants to prove that the Blackbird Bend was obliterated and entirely washed away and that it was replaced by accretions.

That is their pleading here.

Justice Potter Stewart: Well, normally, when one files a complaint in a civil case, the general rule is that it's his burden to prove his case, isn't it?

Mr. William H. Veeder: Up to the point where there is an affirmative defense interposed and this is the point that is controlling here.

These people were without a patent.

They didn't have a patent.

The title that they have here and before this Court, including the State of Iowa, stems from a trespass.

Let's start with that.

There's no conflict here about doing a shift of the bed of the stream.

There is no conflict here in regard to the ownership of islands rising on the bed of the stream.

This is a finite case of a right claim of trespass and I-- going ahead right now on this point in regard to the State of Iowa, we have put into this record-- we have put into this record for this Court two deeds from these petitioners to the State of Iowa, and that's the only claim of title the State of Iowa has, is two deeds, quick claim deeds then raining back to a man named Joker who, in 1929, entrust us upon these lands and says you quiet title to them.

Justice Potter Stewart: By prescriptive writings?

Mr. William H. Veeder: Yes, but it doesn't apply to the United States nor to the tribes.

They have a very tremendous problem here.

They have no patents, and I see why they say the traced the land to ten patents.

That simply is untrue.

There is not a patent in the chain of title.

We checked it out yesterday again because I didn't want to say it if it isn't true.

We are here in a situation, and it's an extremely important situation, where we pleaded the ownership.

The tribe pleaded the ownership to this land and they pleaded back, “yes, we admit that it, one time, belonged to the United States and to the tribe but it was all washed away and entirely replaced.”

That's the lawsuit that's in this Court.

Justice Potter Stewart: Well--

Mr. William H. Veeder: That's the--

Justice Potter Stewart: Where is that in the-- where is that in their answer?

Mr. William H. Veeder: It's-- I've got it, well, marked here, Your Honor.

In every one of them, I can show it in my brief a whole lot simpler, Your Honor.

Justice Potter Stewart: Okay.

Mr. William H. Veeder: Footnote 50, we go right straight down the line and we trace their entire title showing that they have no title whatever and showing the source of their title.

Chief Justice Warren E. Burger: Now, give us the page, would you?

Mr. William H. Veeder: I'll get it right now, Your Honor?

Chief Justice Warren E. Burger: Is it 27?

Mr. William H. Veeder: We started on page 25.

It's 25, 26, and 27.

Justice Potter Stewart: Of what?

Mr. William H. Veeder: Of my brief.

Justice Potter Stewart: This blue brief.

Mr. William H. Veeder: The brief of the trial.

Justice Potter Stewart: Well, my question was-- you said that they answered “yes, we admit that the tribe once occupied this land.”

Mr. William H. Veeder: That's right.

Justice Potter Stewart: And I was just wondering where that was in the briefs.

Mr. William H. Veeder: And their affirmative advances, Your Honor, if you would look on page, of my brief, 30, 31, 32, 33, we see allegations in their answers.

They admit at the pages-- top page 32, Your Honor, they say, in April and May, they admit the land was there.

That it existed in Winona County.

It existed.

Then, they say down there, this is the Wilkinson-- Wilson, and petitioner Wilson says “all said lands used to set Iowa and Nebraska a compact line, between 1867 and 1943, was eroded away by actions of Missouri River and seized to exist at the described location, having been washed down the river.”

And then they go on, “by the--

Justice Potter Stewart: So they don't really say “yes, we admit the lands in controversy were once occupied by the tribe.”

Mr. William H. Veeder: Well, Your Honor, yes.

They admit that the lands-- I didn't set out the entire petition.

Justice Potter Stewart: They said those lands are gone, eroded away.

Mr. William H. Veeder: They also said that it was originally situated in the State of Nebraska and it was under the treaty.

Yes, that's the original statement, Your Honor.

Justice Potter Stewart: Well, where?

Where did they say the lands in question were once occupied by the Indians?

You said they admitted it in their answer.

Mr. William H. Veeder: I'll get it, Your Honor.

Well, if Your Honor would turn to the page 73 in the--

Justice Potter Stewart: Of your brief?

Mr. William H. Veeder: In the appendix.

Justice Potter Stewart: Okay.

Mr. William H. Veeder: And you will find there the plaintiffs had admitted that, in 1867, the Barrett Survey was made to describe the land.

It said they existed not in Winona County but within the border of the State of Nebraska.

It said the land, between 1867 and 184--93 were eroded away.

Now, that is reiterated by every one of the defendants, including the State of Iowa.

Justice Potter Stewart: So, that's a little different from saying that the lands in controversy were once occupied and they say that they-- the lands once-- that the lands-- that the Indians once occupied no longer exists.

That's what they say.

It eroded away.

Mr. William H. Veeder: That's right and, Your Honor, to go back to the original question, those lands, the only defense they had was that there o-- that they eroded away and that they were replaced.

Now, that's an affirmative-- that is an affirmative pleading under the law-- under the law of the State of Iowa why they had to assume that burden of proof wholly aside from 25 USC 194.

Chief Justice Warren E. Burger: You said a few minutes ago essentially what this sentence embraces, namely that the land was washed away.

Now, were you stating that as an affirmative fact or were you quoting this provision?

Mr. William H. Veeder: I was quoting from their defenses.

They said the land is all washed away and--

Chief Justice Warren E. Burger: You do not concede that it was--

Mr. William H. Veeder: No, Your Honor.

Our affirmative-- our proof was absolutely to the contrary.

We proved that that land was never washed away and, in our brief, we set out five plates, the only official maps of the United States of America and those five plates.

And, you will find that those lands were never washed away and we proved that.

But, in regard to a question that Justice Rehnquist asked earlier this morning about the matter of accretions, part of our case in chief, Your Honor, was that we put in extensive proof that there were no accretions before we finished our case in chief, our prima facie case, we showed that there were no accretions.

First, we showed the land--

Justice William H. Rehnquist: The District Court declined to credit your evidence.

Mr. William H. Veeder: Well, for whatever he said, the District Court simply copied the petitioner's pet-- findings, verbatim, with all the mistakes in them and the Court of Appeals reversed.

The Court of Appeals, with great care, went through this transcript in detail and on the crucial point of both the question of whether the lands were washed away.

And in regard to the matter of accretions, the Court of Appeals said with great specificity that the-- those findings were clearly erroneous.

Justice William H. Rehnquist: Do you think the Court of Appeals' treatment of that issue is consistent with this Court's decision in Nebraska against Iowa?

Mr. William H. Veeder: I can't-- which one now?

Justice William H. Rehnquist: The--

Mr. William H. Veeder: The first one, 143?

Justice William H. Rehnquist: 143, yes.

Mr. William H. Veeder: I certainly do, Your Honor.

I certainly think that there was no departure in regard to the issue of accretions nor would I want to be a party to it.

We knew the obligation, and may I say this, we tried this case on the predicate of the State of Iowa law.

I don't say that it's applicable.

I say federal law is applicable, but I knew very well the burden of proof under the circumstances, and we proved that there were no accretions.

We have proved by extensive geology and soil tests that there were no accretions.

I didn't want to come in here facing a presumption that we haven't overcome, and that was the first thing we did.

We overcame that presumption of the state law.

Justice William H. Rehnquist: Are you suggesting that it would make no difference in this case whether federal law or state law applies?

Mr. William H. Veeder: Your Honor, that's an extremely difficult case because, from our standpoint, we believe the primacy of federal law was applicable but, I'll say this.

We won the case both in federal and state law.

Justice William H. Rehnquist: Well, what should we do though if-- what should we do if we decide the Court of Appeals was wrong on the applicable law and that the law was state law?

Mr. William H. Veeder: I hope it never occurs, but I think--

Justice William H. Rehnquist: I know, but what if we deci-- what if we disagree with you?

Mr. William H. Veeder: I think the only thing you could do then is send it back to the Eighth Circuit and say “hey, did they win on the basis of state law?”

Justice William H. Rehnquist: And you say you did.

Mr. William H. Veeder: Well, we certainly did.

Justice William H. Rehnquist: Yes.

Mr. William H. Veeder: There's no question.

From the standpoint of the proof that we offered using-- and in our briefs we're very explicit on that, Your Honor.

We took case after case in the State of Iowa, why the burden of proof with these people and we proved that we had complied with the state law.

I-- we didn't have to.

We didn't have to comply with state law, but we did show that there were no accretions either under federal law, and I don't think there's a great deal of difference in the matter of accretions and st-- between the two.

Now, it's a little d-- more difficult.

In the State of Iowa, the accretions have to atap-- attach at the ordinary high water mark.

That is a real problem.

He applied the laws in Nebraska regions, which I do not comprehend.

That's the Trial Court.

But, our problem was made very simple.

We never had to get the question on the avulsion that Your Honor raised a point about because they failed to show that the land never obliterated.

This is why we were prepared and, fact is, we put in some evidence on the issue of avulsion but it was manifest when our witnesses could only say they would prefer to have the laws of accretions to the State of Iowa or that they said this is educated guesses, well, I'm not going to take any-- have to do any work on it than that.

We just went on right down the line and say “yes, we've proved that land was never washed away.”

Justice William H. Rehnquist: Yes, but what if the Court of Appeals was correct in saying “we're now reviewing our-- we're now exercising our reviewing function and we find this evidence, as to whether there was accretion or avulsion, to be evenly balanced”?

Let's just assume that's what--

Mr. William H. Veeder: Assume they had said that?

Justice William H. Rehnquist: Yes, and didn't-- isn't that what they said?

Mr. William H. Veeder: No, Your Honor.

Justice William H. Rehnquist: Well, assume they had.

Who--

Mr. William H. Veeder: Assuming after that--

Justice William H. Rehnquist: Who loses then?

Mr. William H. Veeder: Well, I think we would win because we've been in our prima facie case and they had overcome it.

They ha-- we put in the case that the land was being situated where they were.

We put in the evidence that--

Justice William H. Rehnquist: I know.

Maybe you put in a prima facie case but when the defendants get through with their case a Court says “the evidence is now evenly balanced.”

Mr. William H. Veeder: But, Your Honor, you see--

Justice William H. Rehnquist: Who wins then?

Mr. William H. Veeder: We do because they had--

Justice William H. Rehnquist: Why?

Mr. William H. Veeder: They had the burden of proving-- Your Honor, they couldn't win on the strength of their case for one very simple reason.

They had no patents, remember this.

They'll tell you differently, but they didn't.

We checked it out thoroughly.

They had no strength to their claims.

We were in possession, remember that, and we were pleading ownership--

Justice William H. Rehnquist: 100 years ago.

Justice William H. Rehnquist: No.

Justice William H. Rehnquist: Yes, you were in possession when you started the lawsuit.

Mr. William H. Veeder: Indeed, we were, Your Honor.

We were careful about that.[Attempt to Laughter]

Justice William H. Rehnquist: You had the fires burning.[Laughter]

Mr. William H. Veeder: What?

Yes, the law is very clear on that, Your Honor.

Chief Justice Warren E. Burger: Well, tell me--

Mr. William H. Veeder: And--

Chief Justice Warren E. Burger: Well, finish your response and then I--

Mr. William H. Veeder: What I was saying in this is that we were plaintiffs in possession claiming title, predicated upon a treaty, and we made our prima facie case and the only way they could win is if they had the affirmative to prove that that land was washed away and replaced by accretions.

Justice William H. Rehnquist: This is wholly independent of 194.

Mr. William H. Veeder: Wholly independent of 194.

I used 194 and relied upon it.

There's no question about it, but I do say that you cannot extract 1-- 25 USC 194 from this lawsuit.

You can't take it out of the context of what we referred in the history of it and I don't think we should do that.

Chief Justice Warren E. Burger: Is it under state law or federal law that you responded to Mr. Justice White, if I understood you, that when the evidence is evenly balanced, the plaintiff prevails?

Mr. William H. Veeder: If we're in possession, yes.

I think so.

We should-- we were in possession under claimant title there.

Chief Justice Warren E. Burger: Isn't the general rule-- isn't the general proposition that if the evidence is evenly balanced, the plaintiff hasn't carried the necessary preponderance--

Mr. William H. Veeder: Well, we've--

Chief Justice Warren E. Burger: And, therefore, the plaintiff fails.

Mr. William H. Veeder: Well, Your Honor, under this circumstance, and we have to look at the circumstance, we were there claiming under a treaty.

They had no patent.

They had nothing.

Chief Justice Warren E. Burger: Now, you're analyzing the proof.

The assumption of his question I thought--

Mr. William H. Veeder: You have to remedy the stre--

Chief Justice Warren E. Burger: And mine is--

Mr. William H. Veeder: You have to remedy the strength of your title.

Chief Justice Warren E. Burger: That if the evidence is evenly balanced, I had always thought for a number of years that the defendant prevails.

Mr. William H. Veeder: I would assume that if they were in possession that might be the situation, but they wouldn't here, Your Honor.

Chief Justice Warren E. Burger: Very well.

Justice John Paul Stevens: Mr. Veeder, do you understand that anything that you've argued is something we're supposed to decide, and the two questions we've granted certiorari?

Mr. William H. Veeder: May I hear that again, Justice?

Justice John Paul Stevens: Well, we granted certiorari, as I understand it, to decide whether Section 194 applies and whether state or federal law applies.

I don't understand the relevance of your argument to either of those questions.

Mr. William H. Veeder: Well, Your Honor, the-- my argument is very explicit on that point.

It's that I don't believe that this case should go off strictly on an interpretation in 25 USC 194.

I think it has to go on to both our elements of the pleadings that were presented here and the fact that we went ahead and proved that we were in possession, that we proved that there were no accretions, and that the title would reside with us under the circumstances.

We did rely upon the primacy of federal law.

We did rely upon 25 USC 194, but what we are saying is that these petitioners assume the burden of proof placed upon them under 25 USC 194 and the Court of Appeals said “you failed because your testimony was conjectural on--

Justice John Paul Stevens: As I understand your argument, what you're saying is you don't really care how we answer the two questions--

Mr. William H. Veeder: I do care very much, Your Honor.

As a lawyer representing Indian people, I think I believe in the primacy of federal law and I think 25 USC 194 is extremely important, but I'm also-- is my time up I have--

Chief Justice Warren E. Burger: Yes, it is.

Mr. William H. Veeder: Thank you.

Argument of Sara S. Beale

Chief Justice Warren E. Burger: Mrs. Beale.

Ms Sara S. Beale: Mr. Chief Justice and may it please the Court.

I would like to cover both the statutory question and the choice of law question during the course of my argument, and I would propose to turn first to the statutory questions since they do provide a backdrop for the consideration of the choice of law question.

This morning's questions raise one point that I'd like to clear up immediately in the terms of the application of Section 194 to this case.

That was a threshold question of is this the kind of case where the United States and the tribe could have shown previous possession or ownership in order to invoke the presumption of Section 194, and a suggestion was made or the question was raised if it's the kind of case where the allegations are that the land that the United States and the tribe were seeking was destroyed, does that mean that the showing initially made to-- or required to invoke the presumption is the same showing that's required to prevail in the case as a whole and that it's circular, in that, we've not made out our initial burden of claiming the applicability of the statute? We think not.

We think that when the tribe and the United States showed that the land at these “meets and bounds,” “under the sky,” however one would want to describe it, the property at that location was part of the reservation where title-- legal title was held by the United States and the beneficial ownership was in the Omaha Indian Tribe that we've shown previous possession or ownership as of 1867.

Justice Byron R. White: Well, Mrs. Beale, what about the admission in-- at page 75 of the appendix which, I gather, is the answer of the respondents, admit that the lands described in paragraph 2 of plaintiff's complaint were, in 1867, a part of the Omaha Indian Reservation, to which, United States held title for the use and benefit of the Omaha Tribe of Indians. Is that enough to trigger the presumption?

Ms Sara S. Beale: Well, I think even if they had not admitted that much--

Justice Byron R. White: Is that enough to trigger the presumption I think--

Justice William H. Rehnquist: You say it is.

Ms Sara S. Beale: I think it is, surely.

I think it is and, therefore, we think that the question here is “did some events occur after the time of our pre-- possession and ownership, which we have shown?”

That would be given legal effect to cut off the ownership of the tribe and of the United States on behalf of the tribe, just as if we have shown that we had previous possession and ownership in 1867 and there was a conveyance whose validity was disputed.

The question would be, because of those events, did we or did we not lose title?

By the same token, we think we've shown that this property was held by the United States for the tribe in 1867 and then the question is, given the presumption that their ownership continued, were there events that occurred which had the legal effect of cutting off that title?

As the Court knows from some of its previous cases, Congress passed a series of statutes to regulate trade and interaction between Indian tribes and non-Indians and to protect the peaceful possession of Indian lands in the 1790s and in the early 1800s.

Section 194 was added as an amendment in 1822 to the current version of the Non-Intercourse Act, and we think its clear policy and intent was to play a role in protecting the possession and the ownership of these Indian lands against dubious or questionable claims by non-Indians.

And, we think that overall intent and purpose, that protective purpose, has to be kept in mind in construing the particular questions that the petitioners have raised.

The first set of questions that they have raised is, who may invoke the protection of Section 194? The statute itself says when an Indian is a party, “when an Indian,” and he makes out a presumption of title in himself.

Now, we don't think that, by using the singular term “an Indian,” Congress meant to preclude either one, two, or three Indians, the-- a tribe which is a group of Indians, or the United States as trustee for either an individual Indian or for the tribe to prevent that those-- any of those claimants from invoking the protection of 194 when a non-Indian claimant makes a challenge to lands that were originally owned by the Indians.

We think that, consistent with the clear policy, one would give that singular word “an Indian” the meaning that would include the United States and the tribe.

And, we think that is consistent with the normal rule of construction in 1 USC 1 which says, as a general matter, singular words ha-- mean the same as plural words.

They are used interchangeably.

Now, the question is whether there is anything in the legislative history or in the remainder of the text of the 1832-- 1834 or 1822 versions of the Non-Intercourse Act that shows some narrower intent by Congress.

Is there anything specific that would show that they-- instead of meaning it-- that the Act should have this broader application but that, instead, it should only mean “an Indian”?

Justice William H. Rehnquist: Mrs. Beale, are you--

Chief Justice Warren E. Burger: Can you suggest any statutes in which the term “Indian” has been construed by a Court to mean many Indians or an Indian tribe?

Ms Sara S. Beale: Actually, I'm not certain that-- of that question.

I couldn't give you an exact--

Chief Justice Warren E. Burger: No, in that period, Congress was legislating quite regularly on Indian's rights, Indian tribes, Indian lands.

Are you suggesting that they used the term “Indian” to mean all these things that you've just mentioned, one Indian, many Indians, an Indian tribe which is a corporate entity?

Ms Sara S. Beale: I'm really not certain if there is another contemporary statute that has been construed that way.

Chief Justice Warren E. Burger: That is-- that's what it means.

Ms Sara S. Beale: That's right, and I'm just not certain if there was another contemporary act that had that meaning.

Justice William H. Rehnquist: Mrs. Beale, are you addressing yourself now both to the meaning of the words “an Indian” and a “White person,” or just “an Indian”?

Ms Sara S. Beale: Well, I was starting with “an Indian,” but I also do want to get to “a White person.”

And, my point was merely that, as a general rule, one-- in looking at a statute such as this, not only from the policy point of view but from the rule of general construction, one would assume that the word would be broad enough to include the tribes and the United States when it's representing interests of a single Indian or a tribe.

And, we have dealt with in our brief the question of comparing this section to other portions of the 1834 Act in which it was included.

There's a suggestion that, by comparing this particular provision to either Section 12 or to other provisions, one comes to the conclusion that there was a definite intent to narrow the meaning of Section 194.

That it was narrowed from the terms that were used in the 1822 Act.

As discussed this morning, the 1822 Act used not only the term “an Indian,” but also a plural term “Indians.”

Why did Congress change it in 1834?

We think that the only reason they changed it was to make the language of the section consistent throughout.

There's nothing in the legislative history that shows any other intent and we don't find any of the guess work very persuasive to really suggest that there was some other intent.

We have found one report from that period which was designed as a model of the amendment of all the Indian statutes and it shows the precise change that Congress made here between 1822 and 1834, and it indicates that no intent wa-- that there was no intent to change the meaning of that section.

We think it was just to clean up the syntax.

And, we would question the Court against holding Section194 up against the other provisions of the 1834 Act and finding that because the term “Indian tribe” is used in some of those other provisions that that would show an intent not to include “Indian tribe” here.

We think it's pretty clear from looking at that 1822 language that Congress was not very careful and precise.

In the same statute it said “an Indian,” “Indians,” “White persons,” “a White person,” “himself.”

It's not a carefully drafted provision and, if one looks at the 1832 Act-- the 1834 Act, again, the terminology varies very greatly from section to section.

These sections were pulled from different enactments, some in 1796, some in 1822, and they didn't make the language consistent throughout.

So, we would say, looking at this provision in 1822, giving effect to the intent of Congress and the general rule of construction, that it should be applied to a group of Indians, a single Indian, and the United States on behalf of the tribe.

Justice John Paul Stevens: Mrs. Beale, isn't there-- if you look at the reason for the provision, I suppose it's to-- sort of a protective provision--

Ms Sara S. Beale: Absolutely.

Justice John Paul Stevens: Because the Indian might be at a disadvantage in litigation with a White person, but is-- does the same disadvantage apply when the United States are doing the litigating for the Indian?

Ms Sara S. Beale: Well, I think it was not only that there might be a disadvantage but that there was a very important press to protecting the tribal land so that they wouldn't be lost in a questionable case.

Now, granted the United States as a representative of the tribe would be more familiar with Court rules and Court procedures and would have more resources, but I don't think that there should be a rule that would cut against or discourage the United States from helping out an Indian tribe or a single Indian from enforcing his rights, and I think that the purpose of protecting Indian lands is the same.

So that, the fact that the United States comes in and if the real party in interest is someone entitled to invoke Section 194 to protect those Indian interests that it should not make a difference that the government has more resources or is more familiar with Courtroom procedures.

Justice William H. Rehnquist: Mrs. Beale, following up on Justice Stevens' question, is there any precise date that can be assigned to the time when the United States began to sue on behalf of Indian awards for title to land?

Ms Sara S. Beale: That's a new suggested question.

There are some very early cases.

Heckman would be an early one, but I think there are even some earlier than that.

I can't-- I guess I cannot put a precise date on that.

One thing I would mention in that connection though is that there's been a suggestion that the tribes could not be litigating in 1834 and that Congress was thinking about who could be coming into Court in 1834 and thinking that individual Indians could and that tribes couldn't.

We haven't found anything that would back up that suggestion and, indeed, the citation to the Cohen article-- the Cohen Handbook suggest to the contrary that, although Indian tribes were not considered to be a foreign nation in that sense for jurisdictional purposes, that they were coming into Court.

And, I think even-- I can't tell you as a certainty that in 1834 there was a case where the United States came in but there are some very earlier ones in the 1800s and I don't know of any suggestion that they couldn't have come in that early.

I would like to turn on, unless there are any more questions about the “an Indian” part of the statute, to the “White person” part of the statute.

And, again, we would start from the presumption or from the beginning point that Congress had again a broad protective purpose and we think when it used the term “White person” it was not thinking solely of individual Caucasians.

And, we think that in order to give the protective purposes of the statute their full effect that we should assume that what Congress meant was “non-Indian claimant to the land,” and the constitutional difficulties that were referred to this morning are a good reason for choosing what we believe to be a construction that is, one, was intended by Congress and, two, gives effect to the purposes of the statute.

We can't-- we do not think that the statute could be upheld if it distinguished between Caucasian claimants, on the one hand, she would be disadvantaged, Black claimants, Chinese claimants, Asian-American claimants, on the other hand.

We think that there-- that they could not be upheld on that basis and, so, we would urge the Court to give the statute a construction which not only fulfills Congress' purposes and is consistent--

Justice Thurgood Marshall: I understand that the State of Iowa says that it's not Caucasian.

Ms Sara S. Beale: I think the State of Iowa says that it is not a “White person” and it says, number one, that it's not a person at all and, number two, if it is a person, it's not White.

Justice Thurgood Marshall: You agree, don't you?

Ms Sara S. Beale: No, and we-- the reason being, we think if White--

Justice Thurgood Marshall: I contemplate there's at least one Negro out there, I know.

Ms Sara S. Beale: Absolutely.

Justice Thurgood Marshall: I know that.[Laughter]

Ms Sara S. Beale: Absolutely, but we would say that--

Justice William H. Rehnquist: And an Indian.

Ms Sara S. Beale: Yes, that's right.

As a matter of fact, they had some of the Omaha Indians, if we prevail here, but the--[Laughter]

What we think was intended here, if we're correct in saying that “White” means non-Indian here, the new think that the only question really is, is the State of Iowa a person?

We do not think that they prete-- that they would ever claim to be an Indian person.

We think that they would agree that they aren't predominantly non-Indian in that sense, and the Court has previously ruled in a number of context that where it promotes Congress' intent and where it is the intent of Congress, the word “person” is broad enough to include a state.

Justice William H. Rehnquist: What if this was the State of Oklahoma where one might quite reasonably make an argument that Oklahoma is not a non-Indian state?

Ms Sara S. Beale: Well, it would be my understanding that it's not, although it has a sizable number of Indian citizens, that it's by no means predominantly or the majority of the citizens are non-Indians.

Justice William H. Rehnquist: But if the state could prove by some sort of census figures and bloodline figures that the majority of its citizens were Indians, then it would not be the subject of the statute.

Ms Sara S. Beale: Well, I can't give a definite answer to it.

I would say that the same problem could arise if the majority ownership of a corporation, and we contend a corporation as well as an individual-- a flesh and blood individual could also be a non-Indian person.

And, if we're correct in saying that person has this broader meaning beyond individuals, then it seems to me that the Court would have to decide, is it a question of the predominant the majority ownership, the majority membership?

And, I think that would be one very reasonable way to draw the line.

That so long as this litigating party, this juristic person, is now predominantly Indian, that it could be properly denominated a non-Indian claimant for that purpose.

There may be other ways that you could draw that line, but it seems to me that that might be a reasonable way to draw them, and I do not understand here that the State of Iowa claims to be a predominantly Indian person in that sense.

I don't think that question is really before us.

Justice John Paul Stevens: Mrs. Beale, do you think that Section 16 of the statute as construed in the Perryman case is constitutional?

Ms Sara S. Beale: I would have serious doubts about that, and I also think that in-- as our brief stated, in retrospect, we think the historical analysis which we promoted at the time is incorrect and we would think if the statute came before the Court again that we would urge that that was not what Congress intended in that section.

But, if that was what Congress intended then I think that there would be serious constitutional difficulties there.

Justice John Paul Stevens: But having been construed that way some years ago, aren't we bound to respect that instruction just as much as if Congress had written it in itself?

Ms Sara S. Beale: Well, it's certainly a precedent for this Court and, I guess, the position that we took in the brief is the same one that I would urge here.

We pointed out that we think that that decision may be wrong, but we also pointed out that, even in terms of construing that section Congress looked-- or this Court looked very much to the peculiar legislative history of that provision and said, because Congress was attempting to distinguish here between fugitive slaves and White persons, when it said “White person,” it meant Caucasian person and that is certainly some type of legislative history that we do not have here, so that the Perryman decision can be distinguished.

Now, as a matter of our view, we think that it, number one, may be wrong and, number two--

Justice John Paul Stevens: I guess they have some difficulty under a standing, the rationale, but it's alright to protect the Indians from robbery by Whites but not by a fugitive slave that I think that's--

Ms Sara S. Beale: Well, I--

Justice John Paul Stevens: It sounds to me like, although they gave the reason, they really just read the statute literally.

What it boils down to, they just said “White person” means White person.

Ms Sara S. Beale: Well, that must-- I think that--

Justice John Paul Stevens: Then they gave a reason that's most unpersuasive for doing that, other than the fact that it says it.

Ms Sara S. Beale: I went back and looked at our briefs to see what he had done, and we had urged that this is-- that the history here showed very clearly that the problem with the interracial wars, and so forth, between the tribes and the citi-- local citizens in Georgia were so serious that Congress reacted to that in drawing Section 16 and in changing the language of Section 16 from a broader term which didn't use the word “White.”

I think it was “any citizen” or “other person.”

When they put in “White person,” we argued to the Court, and this Court agreed, they must have meant White person.

They must have been thinking about this problem in Georgia.

Now, what we didn't do was to connect up that history, which I assume we were correct about, the-- that there were problems in Georgia at that time with what Congress was intending to do in enacting that particular statute.

We didn't show anyone refer to it in the debates or that it was mentioned in the committee reports, anything of that nature, and that's why I'm suggesting that perhaps the line wasn't as clear as the Court thought and as we argued at the time.

But, the basis of that decision, whether we find it persuasive or not, and I would agree with you that it's not compelling, is that particular legislative history.

So, we would think that it can clearly be distinguished on that basis.

Justice John Paul Stevens: Mrs. Beale, your time is running.

Are you trying to get to the choice of law question?

Ms Sara S. Beale: I would certainly like to do that right now.

Chief Justice Warren E. Burger: You have about four minutes to get it done.

Ms Sara S. Beale: We believe that the united decision is the most recent expression by this Court of what we think is the dispositive principle here, and that is that Indian title is a right not only conferred exclusively by a federal law, but continuously protected and controlled by federal law and, this is very important, subject only to termination in accordance with and by means of federal law.

And, for that reason, the Court in Oneida held that a federal cause of action was presented when the tribe contended that land that-- 100 years ago had been their lands and was now settled by many other people when they brought a possessory action for that land and, here also, we think when the Omaha Indian Tribe and the United States as trustee comes in and says the Indian title to this land has never been terminated.

And, the question is has Indian title been terminated or not, that federal law must apply, and the history of the Non-Intercourse Act, and the reason that I wanted to discuss Section 194 first, shows very clearly the congressional-- and its overwriting federal and congressional interest in the protection of Indian lands and the means by which Indian title can be terminated.

There--

Justice Byron R. White: Do you think the question would be different if the reservation was a newly created reservation and was covered land that was-- to which the tribe never had--

Ms Sara S. Beale: Aboriginal title?

Justice Byron R. White: Aboriginal title?

Ms Sara S. Beale: I don't think it would be, but if the Court thought that--

Justice Byron R. White: And you would agree-- would you agree the other way too, that the two cases should be decided the same way?

Ms Sara S. Beale: I would think that they should be but we have both points here.

Not only do we have a reservation established by federal law, but this was the aboriginal home of the Omaha Indian, so that, to the extent that that's a necessary ingredient, we clearly have that ingredient here.

And, we don't find any inconsistency between the decision in Oneida on the one hand, and the decision in Corvallis which petitioners rely upon on the other hand.

Corvallis says only, as we read it, that when there is no federal interest requiring the displacement of state law, local property law controls the ownership and the incidence of ownership of land along a waterway, a stream, a river, and what we are saying and what Oneida holds is that there is a continuing federal interest requiring the displacement of state law when it is a question of Indian reservation title, aboriginal title perhaps also, as well as federally conferred and protected rights to Indian possession.

And, additionally, I think we would point to the portion of the Corvallis decision which notes that when the question is not what happens after a federal patent has issued but has title gone from the federal government to a patentee or, in this case, to other kinds of claimants, that question, whether federal ownership has passed, is always one of federal law.

Wilcox v. Jackson, very early cases, established the proposition that when a question is a termination or not a federal interest, the passing of title from the federal government that, again, federal law always governs that question.

So, we find ourselves very comfortable in the Corvallis for that reason.

It's wholly consistent with the special rule for Indian title and the special rule for considering whether federal title has been terminated or has passed.

Justice Byron R. White: So, suppose there's a navigable river inside a state, it's not a boundary river, and there's an Indian reservation on one side of the stream and just west of it is a federal military installation and then there's a national forest on the same side of the stream, all in a row.

And then, there are a series of changes in the river and there's private ownership on the other side, not in the-- and there's a-- and the river changes like it did here.

You say federal law applies in each of those cases as to whether there's avulsion or accretion?

Ms Sara S. Beale: Well, yes, we do and we think that the federal law applies in the case of the--

Justice Byron R. White: You can't--

Ms Sara S. Beale: Indian reservation for--

Justice Byron R. White: You can't really suggest that that's consistent with Corvallis, can you?

Ms Sara S. Beale: Well, I would say two things.

I think, in its citation of Wilcox v. Jackson, Corvallis does suggest that the question of whether federal title has been lost is always the question of federal law but even if we're not right on that, even if merely the federal ownership of public domain lands is not enough.

I think Oneida clearly establishes that there's an additional peg to our argument when we're speaking of federally protected Indian lands where Congress has specifically moved to oust the states of jurisdiction in has specifically claimed for itself the question of when federal-- when and how Indian rights may be terminated.

So, we think that tha-- that it's an easy-- the easiest case for us is the Indian reservation.

Now, we would read Wilcox v. Jackson and Corvallis is saying, at least when there's federal ownership, the question whether our title is lost at least would also be federal law.

If there are no further questions, I think I'll t--

Justice William H. Rehnquist: I have one question, Mrs. Beale, if I might.

There's this sentence on pa-- the last sentence of pate 71 of the government's brief.

It says, accordingly, the question whether Indian title to a portion of a reservation has been lost must be determined by the application of federal common law which embodies the sum of federal law making on the issues and interests involved.

Am I to understand from that that, entirely apart from the Non-Intercourse Act, that it may be a “heads I win, tails you lose situation” when Indians are involved that is the-- precisely the same historical facts may take place but j-- by reason of “federal common law,” the Indians would win in each case?

Ms Sara S. Beale: No.

If I understand you, you're saying that does federal-- do we chose federal law or make federal law in such a way that Indian always win--

Justice William H. Rehnquist: Yes.

Ms Sara S. Beale: If federal law applies and, in our contention, that would be no, that Indians can lose as well as win under federal law but that it's important to be applying federal law not only because Congress has manifested this intent and so forth, but in order that if under federal law, the Indians would win as they do here.

And, the reservation purposes could be continued, that the Indians have the benefit of that rule but they don't always win.

We don't think that you jimmy federal law to make the Indians win in each case.

Chief Justice Warren E. Burger: Thank you, Counsel.

The case is submitted.