Transcript

IN THE SUPREME COURT OF THE UNITED STATES

IDAHO, ET AL., Petitioners v. COEUR d'ALENE TRIBE OF IDAHO, ETC., ET AL.

No. 94-1474

October 16, 1996

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:00 p.m.

APPEARANCES:

CLIVE J. STRONG, ESQ., Deputy Attorney General of Idaho, Boise, Idaho; on behalf of the Petitioners.

RAYMOND C. GIVENS, ESQ., Coeur d'Alene, Idaho; on behalf of the Respondents.

PROCEEDINGS

1:00 p.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in Number 94-1474, Idaho v. Coeur d'Alene Tribe of Idaho.

Mr. Strong.

ORAL ARGUMENT OF CLIVE J. STRONG ON BEHALF OF THE PETITIONERS

MR. STRONG: Mr. Chief Justice and may it please the Court:

Although States are part of the Union, they nonetheless retain certain attributes of sovereignty. Two of those retained attributes of sovereignty, the States sovereign immunity under the Eleventh Amendment and a State's entitlement to lands beneath the beds and banks of navigable waters under the equal footing doctrine are at issue in this case.

The State of Idaho has been in possession of the beds and banks of the navigable waters of Lake Coeur d'Alene since Statehood. Pursuant to that possession, the State, pursuant to its duty, has regulated those lands for the benefit of the public as a whole. This action now by the Tribe seeks to divest the State of that possession and instead reside it with the Tribe.

The Ninth Circuit Court of Appeals recognized that this action by the Tribes with respect to quiet title claims was barred by the Eleventh Amendment, and nonetheless, the court proceeded to allow the suit with respect to the State officers to proceed under the rationale of Ex parte Young.

Under the injunctive and declaratory relief sought by the Tribe, the Tribe would be awarded quiet title and exclusive possession of these lands.

QUESTION: But it would not, as I understand it, be a decree that would estop the State if the State later wanted to contest the title.

MR. STRONG: Your Honor --

QUESTION: Isn't that correct?

MR. STRONG: No, Your Honor, it's not.

QUESTION: You think the State would suffer preclusion from that?

MR. STRONG: Your Honor, by the very nature of these properties, it is impossible to separate the title from the possession of the property.

QUESTION: Well, yes, but in one sense it's always impossible to separate the officer from the State, but that's what Ex parte Young does, and I would have thought that the State's ultimate fear would be that if -- if it had an ultimate fear, is that if the officers lost the suit, that the State would lose its title, and I would have thought if for no other reason than the very nature of the Eleventh Amendment claim that the State had, that there would be no issue preclusion against the State if the State either later wished voluntarily to litigate its question of title, or was sued in a State court for that purpose.

MR. STRONG: Your Honor, the very nature of this lands is what brings the difficult interplay with Ex parte Young. Under the officer's suit rationale it is assumed that the State simply could bring another action to clear its title to these lands, but if the Tribe were awarded possession of these lands, under section 28 2409a, the Federal Quiet Title Act specifically precludes an action by the State against the United States Government for possessions of lands held in trust for the benefit of the Tribe. Likewise, tribal sovereign immunity would preclude the State from bringing an action against the tribal -- against the --

QUESTION: So you're saying it's the Quiet Title Act that would in effect require the preclusion?

MR. STRONG: The Quiet Title Act would because of the language in the act that precludes an action by a State against the United States for lands that are held in trust for the benefit of the Tribe. The act -- the argument would be made --

QUESTION: No, but that's not the only way the State could perfect its title, is it?

MR. STRONG: Your Honor, that would be the only way the State could perfect its title in this case.

QUESTION: He could walk in and seize the land, I presume, send in the State National Guard and wait for somebody to sue to get it off the land. Couldn't it do that?

MR. STRONG: Your Honor, the State would be bound to abide by lawful orders of this Court. The State officers are the ones that are being enjoined from possession of these lands --

QUESTION: The whole theory is that that doesn't run against the State, it just runs against the State officers. You've got to get some other State officer, that's all.

MR. STRONG: But the State cannot act but through its officers. If the officers are enjoined from proceeding, there is no way that the State can go forward.

QUESTION: Supposing the State sends another crop of officers who haven't been named in this particular action, are they bound by the previous decree against the original State officers?

MR. STRONG: Your Honor, the successors in office are the ones that would be bound by this particular order, but certainly they would suspect the tribe would immediately sue the State to enjoin those people from taking possession of the lands.

QUESTION: Now --

QUESTION: Of course, it works the other way around. If you -- if you prevail on the merits with a ruling by this Court that the President had no authority to convey away the lands, I take it you would have the benefit of that judgment.

MR. STRONG: I'm sorry, Your Honor, I don't understand the question.

QUESTION: Suppose Idaho -- suppose the suit were to go forward and Idaho would prevail in this suit, or the officers would prevail in this suit, and it were held that the land had not been conveyed to the Tribes, that would work to your benefit, I take it. You could --

MR. STRONG: Yes, Your Honor, that would <*>work to our benefit.

The nature of the Eleventh Amendment, <*>or the Ex parte Young is a narrow exception to the Eleventh Amendment. As an exception to the Eleventh Amendment, it must be interpreted in a way that accommodates the substantial sovereign interest at stake under the Eleventh Amendment, and as this Court has stated in the past --

QUESTION: You think it always operates in such a way that in fact the State is not bound? I mean, I always thought Ex parte Young was just a great fiction, that in fact 99 percent of the time you can say the suit is only against the officers, but as a fact -- as a practical matter the State is, you know, is precluded. You don't think that's the way it works normally?

MR. STRONG: You're correct, Your Honor, it is a fiction, and the fiction is that the suit can go forward because it doesn't unnecessarily interfere with the State's actions, but in this instance, because of the very nature of the title of these lands, it interferes with the State action.

The lands that we're talking about here are lands that came to the State through the equal footing doctrine. The lands that are specifically identified with sovereignty, as this Court stated in Oregon v. Corvallis Sand & Gravel, that when you're dealing with submerged lands you're not dealing with the issue of substantive property law, but rather with the constitutional sovereignty of the States.

QUESTION: So you're saying land and Treasury, land and Treasury we won't apply Ex parte Young?

MR. STRONG: Your Honor, I'm saying in this context, sovereign lands is the same as the Treasury. You should not allow an action to proceed against lands that the State receives as an incident of sovereignty, that incidence of sovereignty, because of the very nature of these lands, they're held open for the benefit of the public as a whole, the State receives lands under an equal footing doctrine, is required to manage those for the benefit of the public for commerce, navigation, and other purposes.

QUESTION: But can't you say in any case in which a State officer suffers an injunction, that the State officer is thereby deflected from performing duties which in the judgment of the State would be better performed either for some other purpose, for the purpose that it -- that the -- that was enjoined, and that there is always a kind of frustration of State activity as a result of it, and I don't -- for that reason, I don't see why there is some peculiar status of lands, even when the State has a sovereign purpose in holding the lands.

MR. STRONG: Your Honor, these lands are identified directly with sovereignty of the State. As this Court has said in the past --

QUESTION: Yes, but the right to exercise any governmental function is identified with the sovereignty of the State, and yet the officer who is ordered by the State to perform that function can be enjoined under Young.

MR. STRONG: Your Honor, if the officers are enjoined in this action, however, the nature and title -- the title isn't in the actual ownership of the property, but it's the regulation of that property for the benefit of the public as a whole. If the officers are enjoined in the ability to manage and regulate these lands for the benefit of the whole, then the very sovereign nature of that title is entirely defeated.

QUESTION: Well, it isn't entirely defeated if the State has, as I assumed it had, a right to contest the title in a forum of its own choosing, and therefore it seems to me that what the State is suffering boils down to the fact that if its officers lose this suit, the consequences of that may very well precipitate the State into having to litigate the title itself.

But what the Eleventh Amendment protects is not circumstances requiring the State as a practical matter to litigate, but rather, it protects it from being hauled into a particular forum to do its litigation, and therefore, if what the State is ultimately suffering is in effect the precipitation of litigation in the absence of which it will suffer in some way. I don't see that that is the Eleventh Amendment's concern.

MR. STRONG: Your Honor, if the State officers are enjoined from the regulation of these lands, the point that I'm making is that the State does not have a remedy. The State couldn't simply go out and commence another action.

QUESTION: Well, you -- let me put it this way. If we were to hold, in explaining a judgment here, that the State would not be estopped as a result of this judgment against the officers if it wishes later on to litigate its title, then you would have no quarrel, is that correct?

MR. STRONG: No, Your Honor, because this Court cannot grant the relief the State would need to bring the action because of the Federal Quiet Title Act, and assuming that the Tribe was successful in obtaining possession, the argument would be made that our action against the United States, the actual trustee of these lands, would be precluded because those lands were held in trust for the benefit of the State.

QUESTION: Okay. I understand your position -- yes.

QUESTION: So you say that the respondent Tribe could not bring a quiet title action in State court?

MR. STRONG: No, Your Honor. In fact the State's position has been that that is one of the alternative remedies available to the --

QUESTION: Despite the Federal Quiet Title Act.

MR. STRONG: Well, the Federal Quiet Title Act limits the State.

QUESTION: So it does not limit, in your view, the Tribe from filing a quiet title action in State court?

MR. STRONG: No. The Federal Quiet Title Act would have no limitation on the Tribe.

QUESTION: And the State of Idaho has waived its sovereign immunity for such a suit.

MR. STRONG: That is correct, Your Honor, that -- our courts would be available to the Tribe to fully pursue in the entirety the relief that they are seeking in this action.

QUESTION: What authority from this Court do you rely on for the proposition that the Eleventh Amendment bars adjudication of the State's sovereign title question in Federal court?

MR. STRONG: Your Honor, we look to Treasure Salvors. In Treasure Salvors the -- although there was a split plurality opinion, all four justices on each side of that plurality ultimately held that you cannot adjudicate a State's title in the context of the Eleventh Amendment. That would be precluded. You have to somehow be able to segregate the possession of the property under Treasure Salvors from the title to the property in order to move forward.

The point that we're making here is, is that under the presumption in Montana, which is a strong presumption of State ownership, that the only way you can determine that the -- the Court can determine that the Tribe is entitled to possession of these lands is to first determine that the presumption of State ownership has been overcome, and that the United States abandoned its traditional policy in favor of holding these lands in trust.

Rather than the issue of taking tribal property, this case really presents an issue of whether the United States took the State's sovereign title and instead bestowed it upon the Tribe. That is the very nature of this case, and because it involves the State's title is why it is barred by the Eleventh Amendment.

QUESTION: Mr. Strong, I understood you to say that this case is about where the suit will be, and Idaho has a State court remedy, a State court where this disputed question can be tried out. Is that, the existence of that remedy, essential to your position? Let's suppose Idaho did not choose to consent to be sued on this matter at all, would your position be any different?

MR. STRONG: No, Your Honor, our position would be no different. The Eleventh Amendment precludes an action against the State, directly against the State, and since this is a determination of the State's title, it would be precluded by the Eleventh Amendment regardless of the unavailability of the forum.

QUESTION: So you're saying that Idaho has chosen to give the Tribe a remedy in Idaho's own courts, but doesn't have to, so we would be left with the anomaly, if Idaho hadn't consented to be sued in its own courts, of a dispute over title determined by Federal law, right, because both sides are --

MR. STRONG: That's correct.

QUESTION: -- staking their claim on Federal law, and no Federal court could hear it, and a State court has chosen not to hear it.

MR. STRONG: No, Your Honor, there is another remedy that's available to the Tribe which also takes us outside the context of Ex parte Young.

A Tribe is a dependent sovereign Nation, is -- cannot hold legal title to these trust lands. Legal title is held by the United States on behalf of the Tribe, so the Tribe has a remedy here that's not traditionally available in an Ex parte Young --

QUESTION: But that's up to the United States to pursue that remedy.

MR. STRONG: Your Honor, that is correct, but the Tribe can petition the United States to bring an action on its behalf, and if the United States fails to take such action, and the Tribe believes that it should be taking further action with respect to this property, it has a remedy against the United States to bring an action, breach of trust action against the United States to force it to either litigate the title, or compensate it.

QUESTION: Is there an action pending now which the United States has brought?

MR. STRONG: Yes, Your Honor, there is an action pending in the United States District Court in Idaho, and that action is properly brought under Texas v. -- United States v. Texas. The State has no objection to an action by the trustee of these lands as against the State of Idaho. The law is very clear on that matter. That action seeks to quiet title to the southern third of Lake Coeur d'Alene. It again verifies the fact that there is a remedy available to the Tribe, and that is to petition the United States to bring an action on its behalf.

QUESTION: Of course, even if that remedy did not exist, as well as the remedy of suit in State court, which you say also exists, it still would not be a unique situation. Presumably -- namely that the situation of the Tribe not being able to get relief would presumably not be unique, or relief in Federal court --

MR. STRONG: Would not be --

QUESTION: -- because that's presumably the situation with respect to all claims to money from the State Treasury.

MR. STRONG: That's correct, Your Honor. The very nature of the Eleventh Amendment creates this tension where there may not be an available remedy, and the idea of Ex parte Young was to address that situation, but as I've demonstrated both through the action by the Tribe in State court, or by the action of the United States, the rationale for Ex parte Young is not applicable in the context --

QUESTION: How do you distinguish the old case of Tindal v. Wesley?

MR. STRONG: Tindal v. Wesley has been limited by the Larson case, and in that -- what it basically says is that there has to be either an action by the officer acting ultra vires, Larson does, or alternatively that there has to be some violation of Federal law.

There is no allegation in this suit that the State officers were acting any -- outside of their authority. In fact, the State officers are doing exactly what was expected of them under the presumption of Federal ownership, that is, regulating these lands on behalf of the public as a whole.

As to the Federal question, as to whether there's a violation of Federal law, as I -- this is not an instance where the State is taking tribal property but rather, the question is whether the United States took the State's entitlement and instead vested it to the Tribe, and so the very essence of the claim isn't a violation of Federal law, but a determination of what that Federal law means, and this is --

QUESTION: Well, but from the Tribe's point of view, I suppose if they have good title and the State occupies their land, they would be able to treat it as some form of inverse eminent domain, wouldn't they?

MR. STRONG: Your Honor, the State does not have an ability to take tribal land. If these are tribal lands, State authority would not extend to them. This case is most analogous to a tortious interference type situation where there is competing claims as to what Federal law means, and we're simply trying to resolve this, very much similar to, say, the Oregon v. Hitchcock case, in which the State claimed ownership of lands under, I believe the Submerged Lands Act, and the Court said no, that was prohibited because it was an action as to the title of lands in the United States.

The State would contend that the officer's suit, the traditional officer's suit as we think of it, going back to the United States v. Lee, is premised on the notion that it's a State affirmatively acting in -- as a private citizen to take its property, and that it's a taking that brings those actions into play, and the rationale of Lee is that we need that kind of rule to avoid the tyranny of the Government simply confiscating State property -- or, I mean, private property for benefit of State governmental actions.

We contend that under the equal footing doctrine that concern is not present in this case because the State entered into possession as a result of Statehood, and it's been in possession for over a century with respect to those lands, and so we simply don't have that problem before us today.

Likewise, as to whether the conduct of the officer is unlawful, which is a premise of Ex parte Young, there is nothing in the conduct of the officers here that would suggest that they're violating any Federal law. In fact, they're operating, as I've indicated in the past, consistent with the Federal premise of these equal footing doctrines to regulate them on behalf of the public as a whole.

QUESTION: Yes, but if they're -- if the Tribe is right on the merits, aren't they then violating some Federal rights?

MR. STRONG: Your Honor, if the Tribe is right on the merits there would be a violation of the Federal rights, but in this context you --

QUESTION: It seems to me your argument is sort of proceeding on the assumption that they're wrong on the merits, an issue we don't reach until we decide the threshold question.

MR. STRONG: No, Your Honor. In determining this case you must first consider the applicable law, and the applicable law under Montana v. United States is that you must presume State ownership of these submerged lands absent an express congressional conveyance, and until that is established, the State is entitled to operate as it has in the past, that it is entitled to the ownership of these beds and banks, and until that issue is resolved, it is impossible to state that the State officers are not acting consistent with Federal law.

QUESTION: But isn't it correct -- I know you say here there is both a Federal action pending where the United States is suing, and there's a State forum available, but if neither of those things were true, we had a different case, you would still say that there was no remedy here.

MR. STRONG: Yes, Your Honor. The --

QUESTION: So the Federal question could never be resolved.

MR. STRONG: That's the very nature of the tension between the Eleventh Amendment and the compact made with the States and the Federal Government, is that the States are to be free from suits that will interfere with --

QUESTION: Yes, but with the exception created by Ex parte Young.

MR. STRONG: That's correct, with the exception created by Ex parte Young, but as I am contending today, this action doesn't fall within Ex parte Young.

The purpose of Ex parte Young is to enjoin the unlawful enforcement of State laws, and before you can determine that the actions upon which the officers --

QUESTION: They're unlawful in the sense that they violated a supreme Federal law.

MR. STRONG: That's correct.

QUESTION: Yes.

MR. STRONG: And we don't know in this case whether there's a violation --

QUESTION: But we didn't know in Ex parte Young until after the case was tried whether there was a violation, either.

MR. STRONG: But we do know in this case that there is a presumption of State ownership in that --

QUESTION: Which is a rebuttable presumption.

MR. STRONG: That is a rebuttable presumption, but nonetheless it's a strong presumption, and the Court is required to begin with that presumption in any analysis of an equal footing conveyance situation, and given that presumption --

QUESTION: But isn't there also a presumption in the Ex parte Young area that State action is generally considered lawful and constitutional? You always start with a presumption of constitutionality whenever you challenge State action.

MR. STRONG: Your Honor, the essence of what we're trying to contend before the Court today is that under Ex parte Young you start with the premise that a well pled complaint alleges a violation of some Federal law, a supremacy issue, and the contention we make today is that there is no Supremacy Clause question here, because if the State is correct and you are required to assume that the State is correct because of the presumption until it's litigated, then the State is acting consistent with Federal law.

Once that Federal law is determined, as it was in Treasure Salvors, then it would be appropriate for the Court to go forward and to evaluate the merits of --

QUESTION: I really don't understand why the presumption in the Montana case is any different from the general presumption that State action conforms with the Constitution. That's where I'm not sure I follow your argument.

MR. STRONG: I understand, Your Honor.

QUESTION: Well, isn't your -- isn't the essence of your argument, I guess, and your best answer to Justice Stevens, if I understood you earlier, that Ex parte Young is concerned with a situation in which the plaintiff claims under Federal law, and the officers sued are claiming under State law, and here you're saying both parties are claiming under Federal law, and that's why Young doesn't apply. Is that your argument?

MR. STRONG: Your Honor, in part that's our argument. We contend that the question here is, whose interpretation of Federal law is correct? And until that interpretation is resolved, it's impossible to say the officers are in violation of Federal law.

QUESTION: Well, yes, but if we understand Ex parte Young simply to be a means of litigating a claim of Federal right against State officers, then it would not in any way be dispositive that the State officers were themselves claiming to be operating consistently with Federal law, or to be claiming affirmatively that they had a Federal right to do what they do.

MR. STRONG: Well, Your Honor --

QUESTION: So I mean, that would be the end of your argument, I take it, there, and I guess my question is going to be, doesn't every defendant in an Ex parte Young case say, I am operating consistently with Federal law?

MR. STRONG: Well, certainly a party says that in an Ex parte Young situation.

QUESTION: Okay, so that the only thing peculiar about this case is that they're pointing, in effect the State officers here are pointing, or are going to point if they have to, to a title claim rather than to some other basis in Federal law to say that they are acting lawfully within the meaning of Federal law.

MR. STRONG: Your Honor --

QUESTION: Which --

MR. STRONG: -- what they point to is, rather than an assertion that they're acting in conformance with Federal law, is a presumption under Federal law that they are --

QUESTION: No, but that goes to the merits. I'm just saying, what are the issues that are being litigated, and the issue that's being litigated is, on the plaintiff's part, a claim of Federal right, on the defendant's part, a claim to be acting consistently with Federal law.

MR. STRONG: That is correct.

QUESTION: And that is true of every Ex parte Young case that is ever litigated, isn't it?

MR. STRONG: But, Your Honor, the Eleventh Amendment serves the purpose of protecting the State in the operation of its sovereign duties. These lands, as this Court has said --

QUESTION: No, it protects a State -- it protects a State from being hauled into a Federal court under certain circumstances, and Ex parte Young says you can in those same circumstances sue the officer. Ex parte Young cases are by nature based on claims of Federal right and defenses based on claims of consistency with Federal law. That's what you've got here, isn't that so?

MR. STRONG: Your Honor, what you have here is property that's been identified as an essential attribute of sovereignty. If the Eleventh Amendment is to serve any purpose at all, it is to protect the sovereignty of the States from being sued in a court.

QUESTION: Mr. Givens, you raise two questions in your petition, and you have had no opportunity yet to get to the second one. I hope you'll take some time, if my colleagues allow you to get to it.

MR. STRONG: Yes, Your Honor. Just to complete that thought, the essence of the -- if the Eleventh Amendment serves any purpose, it serves to protect the sovereignty of the State and its operations of its Government. If -- Ex parte Young cannot be used as a method to simply sue an officer and to infringe upon the State's authority. In this action the only way relief can be granted is if you directly determine the State is without title.

Turning to the second question that we have presented to the Court, we want to make -- first make clear the issue that is before the Court. We are not seeking a determination as to whether Congress took affirmative action in this case to defeat the State's equal footing title.

Rather, our contention is that the President cannot act without express congressional authority to defeat a State's equal footing title, and we point back to the Sioux Tribe case in which it is specifically stated that the authority of the President is limited directly to a delegation of power from Congress, because the operation of the Property Clause is vested exclusively in Congress.

So if in Sioux Tribe the Court found that it is impossible for the President to convey an interest in property to a tribe of uplands which are public lands -- I want to emphasize it's public lands not submerged lands -- then it's also likewise and even axiomatic that with regard to submerged lands, which are held in trust for the benefit of future States, that the President could not act to defeat that title.

Mr. Chief Justice, if I may, I'd like to reserve the balance of my time for rebuttal.

QUESTION: Very well, Mr. Strong.

Mr. Givens, we'll hear from you.

ORAL ARGUMENT OF RAYMOND C. GIVENS ON BEHALF OF THE RESPONDENTS

MR. GIVENS: Mr. Chief Justice, please the Court:

The State is really asking for -- its State officers are asking for a new submerged land exception to pretty -- very well-developed areas of the law.

QUESTION: What -- the complaint is rather sketchy as to what these officers are supposed to be doing. It names the Governor and the Commissioner of lands, I believe, and the Secretary of State. Does it set forth with any specificity, or do other pleadings, supplemental pleadings set forth with any specificity exactly what these officers are doing that is inconsistent with the ownership that you allege?

MR. GIVENS: The short answer is no, there are no supplemental pleadings, Your Honor, and that's part of the difficulty of the whole case. We're at -- this case stems from the most preliminary procedures.

The Tribe filed its complaint -- it is a generalized complaint. It does specify certain statutes that they are -- the State officers are operating under. The Governor is holding a statutorily -- State statutorily created water right. The members of the land board that was -- are enforcing a State statute that gives encroachment permits.

QUESTION: Is that set forth in the complaint?

MR. GIVENS: In -- yes, Your Honor.

QUESTION: I didn't see that. It's in your response at page --

MR. GIVENS: At --

QUESTION: Three.

MR. GIVENS: -- our response to the petition for cert, page --

QUESTION: Page -- it begins at page 3 --

MR. GIVENS: Page 12.

QUESTION: -- and then that's at page 12.

MR. GIVENS: Asking that the water right of 67 - 4304 be declared invalid, and the rest of them, Your Honor, are really in more of a general way.

QUESTION: Which brings us --

QUESTION: Yes, but that simply sets forth the extent of the declaration that you choose. It doesn't say that any particular officer is enforcing this in any particular respect. It just seems to me if you're going to rely on the doctrine of Ex parte Young this is a very sketchy pleading.

MR. GIVENS: It should be -- it needs to be amended, Your Honor, for -- obviously for that reason. If the State felt that there was -- they didn't understand what we were suing about. Of course, there's the rule for asking for more specific statement.

The other reason the complaint needs to be amended is that when the complaint was filed we felt we had a theory because of the way Idaho defined its sovereignty as to not include quiet title actions that we could sue the State for quiet title.

QUESTION: Not include what, quiet title actions?

MR. GIVENS: Yes. Yes. There are two Idaho supreme court cases that say that quiet title actions do not impact the sovereignty of the State, and we felt because of that the Eleventh Amendment was not applicable. The Ninth Circuit felt otherwise. We asked this Court to review that. It chose not to, so it's not part of the case, so to get that out of the case we're going to have to amend on remand, and very well the complaint should be more specific.

QUESTION: Can you just tell us briefly what the reasoning of that is, that quiet title actions don't impact the sovereignty of the State?

MR. GIVENS: The cases are Roddy and the Lyons cases, and the -- the thinking of the Idaho court was simply that quiet title actions were actions against the land, not against the sovereignty of the State.

QUESTION: Was it the in rem personification notion?

MR. GIVENS: They didn't use those exact words, but that basic concept, yes, Your Honor.

QUESTION: Well, that's a pretty strange doctrine, isn't it? I mean, if the State claims sovereign title and the quiet title action deprives the State of it, how can it be said it doesn't affect the State in its sovereign capacity?

MR. GIVENS: Maybe I didn't understand the question, Your Honor.

QUESTION: Well, I don't see how the State could take the position that a quiet title action asserting that the State lacks title to lands that the State claims in its sovereign capacity, how can it be said that doesn't affect the State sovereign interests?

MR. GIVENS: The Idaho court was -- in the Roddy and Lyons cases were presented with a -- claims against the State to quiet title, and they chose not to waive sovereign immunity judicially, which is what most States have done.

QUESTION: Yes, but you do agree in any event that a quiet title action could be brought by the Tribe in State court?

MR. GIVENS: No, Your Honor. There is a very serious question of State court jurisdiction. Of course, there's the initial question of no State court jurisdiction over the tribe, personal jurisdiction, but there is also a very serious subject matter jurisdiction question.

From the outset of the Indian law jurisprudence in this country, the courts have held that, generally, State courts have no jurisdiction over Indian lands --

QUESTION: Even when the Indian tribe is the plaintiff?

QUESTION: Yes.

MR. GIVENS: Well -- I'm not talking about personal jurisdiction, the subject matter jurisdiction of the court.

QUESTION: But the subject matter jurisdiction, aren't the court -- what is it, the circuit court, the superior court, the district court --

MR. GIVENS: District --

QUESTION: The district court is a court of general subject matter jurisdiction, isn't it?

MR. GIVENS: Yes.

QUESTION: I mean, it's not confined to certain types of cases. You can bring any case you want, can't you, if -- unless there's an amount in controversy requirement.

MR. GIVENS: Well, I guess the problem, Your Honor, is that litigants cannot create subject matter jurisdiction upon a court that it doesn't otherwise have, and the only congressional act that -- or the primary congressional act that conveyed subject matter jurisdiction on State courts to adjudicate Indian interests was Public Law 280, of course, and in that -- in Public Law 280, as is discussed in Bryan/Itasca County, it's very clear that the statute -- Congress specifically said that State courts do not have jurisdiction to adjudicate property determinations in Indian country against tribes.

QUESTION: So an Indian tribe couldn't go into the district court of Ada County or something like that and sue someone who is trespassing on tribal property, in your view.

MR. GIVENS: I guess it would be -- the short answer to your question, Mr. Chief Justice, is there is a serious question of subject matter jurisdiction. It would be like someone in Maryland going into a Virginia court and suing to quiet title against someone in Virginia for property in Maryland. The Tribe's basis of the whole lawsuit in this case is, of course, the Tribe's title to the lake. It is not -- the Tribe is not trying to take anything away from the State. The Tribe has always owned that lake, in the Tribe's position, and all that the Tribe is asking for is to have a Federal court hold that the State officers who are regulating on that lake are -- should not be doing that.

QUESTION: In fact, there is another suit pending right now that would determine the issue of title?

MR. GIVENS: For -- yes, Your Honor, for a portion of the lake. Lake Coeur d'Alene is a long, skinny lake, and the United States has brought suit for a portion of the southern part of the lake. The Tribes suit is for the entire lake, so part of it is covered by the U.S.'s suit, part of it is not.

The Tribe has been granted intervention status in that case, and we tried to expand it to the whole suit and the district court I think quite properly limited it to the parameters of the United States' complaint.

As to the Eleventh Amendment issue generally, if I could get to that, the thrust of the State's argument, State officer's argument, as we understand them, is that there is another remedy, just as we've been speaking of, this State court remedy, and the Tribe could go there like any other citizen could go to State court.

Well, there may be problems with it we just discussed, but the State officers merge Federal officer suits and State officer suits and pick and choose bits and pieces of cases back and forth, when in reality when they're looked at carefully they really come from protecting different interests in the Eleventh Amendment or in a sovereign immunity context.

The Federal officer suits are designed to provide a remedy primarily in the takings area, and as Congress has provided those remedies, be it the quiet title act or some other remedy, then there is not the constitutional problem in Federal officer suits.

In the State officer suits, the problem has primarily been the supremacy of Federal law. There have been a few State officer suits where the Federal law problem has been lack of a remedy, but that is not the situation in this case.

The State officers' position finds no support in the cases that actually provided the foundation for Ex parte Young, the Tindal, particularly Tindal. There's -- it is -- unless there is a distinction made because this is submerged land as opposed to any other kind of land.

QUESTION: Tindal tends to negate your statement that you distinguish sharply between State officer suits and Federal officer suits. Didn't they say there that a question whether a particular suit is won against the State within the meaning of the Constitution must depend on the same principles that determine whether a particular suit is won against the United States?

MR. GIVENS: The Federal -- violation of Federal law, the supremacy interest that was being protected in Tindal in that case was a taking interest. The -- just as it was in Lee. There wasn't -- hadn't been provided a remedy, so to that context the two concepts merged.

In this case the Federal interest that is being protected is the constitutional primacy of Federal regulation, Federal control of Indian reservations.

The statutes which implemented various aspects of the creation of the Coeur d'Alene reservation is the executive order and the common law theory of aboriginal title of the tribes, so there -- I mean, Mr. Chief Justice, it's one of those situations, I think, where you can say yes, this is like that, but really, when you look at it underneath, Tindal, just like all of the other State officer suits, are protecting the supremacy of Federal law.

QUESTION: But in this case that's odd, because we're only talking about Federal law on both sides. The usual justification for Young is that you have to vindicate the superior Federal law as against the inferior State law, but here both sides are advancing Federal law as the basis for their claim.

MR. GIVENS: Your Honor, there's no question but what the State officers thrust that forward as their argument, but I think the more appropriate way to analyze the issue here is that the Tribe claims ownership based on Federal law, and as a result of that claimed ownership, is asking the Federal court to enjoin State officers from their regulation of the Tribe's lake under State law.

Now, then the State officers come back on the other hand and say well, no, we have a claim under Federal law why our officers are doing the right thing, and it -- it's just as Justice Souter was describing in his question. It's exactly the same sort of situation, really, that you always have in any Ex parte Young situation where the State officers are saying we are acting appropriately under Federal law, whether it be this particular one or some other Federal law that justifies our action.

QUESTION: Mr. Givens, could you -- could the Tribes sue in Federal court just to determine title to this property, or do you concede that that is not -- that the Eleventh Amendment would bar that?

MR. GIVENS: Well, Your Honor, that's what we did, and the -- that's what the Ninth Circuit said it could not do, because that would be an adjudication against the State.

QUESTION: Do you accept that?

MR. GIVENS: Yes, Your Honor. The State officers themselves, those are the only defendants that we're left with.

QUESTION: All right, and you are not here arguing that the Tribe could bring a direct suit in Federal court to determine title.

MR. GIVENS: That is correct. That is the --

QUESTION: Well, what are the attributes of title ownership? They are the right to possess and control and regulate the property, I guess.

MR. GIVENS: Well, it's -- I guess it's like --

QUESTION: And won't that have to be determined basically by deciding who has the title?

I mean, how would you ever be able to determine that the tribe has the right to possess, regulate, and exclusively do so without determining that the Tribe had title and that's the basis for it?

MR. GIVENS: The issue of title will be an issue, just as --

QUESTION: Well, that being the case, I don't see why the Eleventh Amendment shouldn't be a bar here, because you are in essence asking the Court to do what you've conceded the Court can't do. I just don't see why the Eleventh Amendment doesn't kick in here.

MR. GIVENS: That is exactly the question that this Court addressed in Lee, it is exactly the question this Court addressed in Tindal, and in both instances they said no, we can separate the determination of title from the, in those cases trespass, in this case regulation by the State officers.

The litigation against the State officers does not preclude the State from later litigating title, and --

QUESTION: Mr. Givens, Larson is more recent than those, and I thought it was made pretty clear in Larson, which was against the Federal Government, of course, that you can't proceed unless either the officers are acting beyond their authority ultra vires, or their action is unconstitutional.

Now, that was a Federal case against the United States, but I thought that we made clear, or at least the various opinions made clear in Treasure Salvors that we would apply Larson in the State context as well. Now, would you meet the requirements of Larson?

MR. GIVENS: The officers -- it is never within the officer's ability as a State officer to violate the Federal Constitution, and these -- part of which is the Supremacy Clause, and that is where the State officer and Federal officer cases depart, Your Honor, and I think it is why it is so important to keep clearly in mind which interest is really being protected.

In the State officer cases the constitutional interest that is at issue is the supremacy of Federal law, it is not the -- whether or not the State officer is acting within or without his authority.

That State officer can be acting within his authority under State law and still be acting in violation of Federal law unconstitutionally, and the thrust of all of Ex parte Young jurisprudence is that this -- the Federal court still should appropriately provide a remedy not necessarily to test whether or not the officer is acting properly or improperly, but to uphold the supremacy of Federal law. That is the underlying thrust of all the State officer cases.

So to the extent that the -- this is -- this factual situation is a little bit different than Larson, it is -- the result should be different in Larson, it is because it rests on different underpinnings.

QUESTION: Mr. Givens -- oh, I'm sorry. Please.

QUESTION: I wondered if -- I'm slightly -- I'd appreciate some clarification on this question of title versus what's going on here.

My understanding of it was that really this is a suit which someone who was not steeped in Eleventh Amendment law would say was a suit for title. I don't know what the State can do, if you win, with this submerged land. I don't know what laws it could enforce. It sounds like you're getting the property.

The only reason I suppose that title came in is, in a case called Tindal the Court held that a suit just like this one wasn't really against the State, though it is, but nonetheless we give the State an escape hatch, that because of the last paragraph the State won't be bound as to title, thus they get an extra chance to come back and fight it if they want.

Is that understanding correct?

MR. GIVENS: I think that would be correct, yes, Your Honor. The --

QUESTION: Don't say it's correct if you don't really agree with it, because you're the expert in this area.

MR. GIVENS: Oh, maybe I misunderstood exactly what you said, then.

QUESTION: Yes -- I mean, no, no, if you do agree, fine. I'm happy that that is correct, if it is, but I mean, I'm trying to follow through the intricacies. I got your argument before that you thought in reality Ex parte Young is simply a way of permitting in certain cases the assertion of the Federal interest in States obeying Federal law.

MR. GIVENS: That's correct, Your Honor.

QUESTION: And you think that you can't distinguish real property cases where the Federal law gives the property to Jones, or Smith, or the Indian tribe from cases involving mental hospitals, schools, churches, whatever. Is that right?

MR. GIVENS: That's correct, Your Honor. They're both based on the supremacy of Federal law.

QUESTION: All right, but then we run into this doctrine, and you think Tindal is strongly in support of you.

MR. GIVENS: It is to the extent, Your Honor that Tindal said clearly that you -- the Federal court can enjoin a State officer who is holding property unconstitutionally without adjudicating the title to that property.

QUESTION: So what we have, is it fair to characterize -- we have a fiction on a fiction. There's the fiction of Ex parte Young, because it's simply a fictional way of allowing the assertion of Federal supremacy in an important number of cases. And then we have the fiction that that wasn't really a property State title, which it is, and now we get a new fiction which allows the State to come back and really sue for title, even though you win this case. You win the case, the State isn't barred from bringing its title suit, is that right?

MR. GIVENS: That's right. That's right.

QUESTION: All right.

QUESTION: What good does it do you, then, to win this case if the State isn't bound?

MR. GIVENS: The State officers can no longer regulate the Tribe's lake. The --

QUESTION: So you really -- you -- the benefit you get is, you get the same result as if you acquire the title.

MR. GIVENS: There are very -- there are similarities, Your Honor, there is no question about that, and the --

QUESTION: Mr. Givens, isn't it more than similar? Isn't -- aren't you saying in effect you get -- the result of your lawsuit, if it were allowed to go forward, would be, you'd have title as against all the world except the State of Ohio -- Idaho?

MR. GIVENS: The -- after --

QUESTION: Because you would have to establish your title, although one party, Idaho, wouldn't be bound by it.

MR. GIVENS: The -- in determining this suit, the Court would adjudicate the Tribe's ownership. It would not have to adjudicate the State's ownership.

QUESTION: Well, they both -- I think we can agree that they both can't own the same land. It either belongs to one or the other, and my question to you is, isn't the thrust of your lawsuit, we own it? There's one party left out there who can contest that but no one else in the world.

MR. GIVENS: That's right, and as with any -- anyone who files any quiet title action, if you don't sue Jones and Jones has a claim to it, you may get your quiet -- your title quieted to everybody except Jones. Jones can still come in and make a claim for it.

QUESTION: Mr. Givens, may I go back to your answer to an earlier question from Justice Ginsburg? I'm not sure that this should be dispositive of anything in the case, but as I recall your answer, it was -- in questioning whether this case fit within the Ex parte Young framework. You said that in fact what the State officers were claiming here, were claiming rights to regulate in the enforcement of State law.

In other words, it wasn't merely a matter of two contesting titles, there was State law which had been enacted to determine just how the State would regulate, and what it would do, and that therefore the contest here was really a contest between a claim of superior title on the one hand and a claim to enforce particular State laws which ultimately implied a contrary claim of title, is that right?

MR. GIVENS: Yes, Your Honor.

QUESTION: Are we in a position to assess that answer, because I thought the very answer that you gave to Justice Kennedy earlier was that there are no specific detailed claims against State officers at this point, that's just not the state of the pleadings, and you said, well, we ought to go back and amend.

So, are we really in a position to accept your answer that what is being contested here are particular acts of regulation by particular State officers enforcing particular State laws? Is that really before us?

MR. GIVENS: The -- you may be correct, Your Honor. It puts a litigant, of course, in a difficult position. You plead a complaint with several different counts and theories, and the appellate court says, well, you lose on some of those, and there are some that's left, and instead of having the opportunity then to amend as you would on remand normally, all of a sudden you're up here on the remainder.

The preliminary nature of this case makes it very difficult to deal with this -- not only this issue, but also the Property Clause issue, and if I could just address that for just a moment, the tension in the Property Clause that the State officers raise is really between the executive and the Congress. And, again, the State officers are asking for a unique exception to some very well settled law in this regard.

Thirty years ago in Arizona, California, this Court said that there was no difference between reservations, Indian reservations created by executive order and those created by treaty as to either land or water.

QUESTION: Yes, but they weren't talking about the equal footing doctrine then, were they?

MR. GIVENS: They were not. They were talking water rights, Your Honor.

The -- 80 years ago --

QUESTION: And it's different -- creating a reservation is much different than conveying land.

MR. GIVENS: The -- well, the creation of the reservation can or cannot convey land, and there was little analysis in that case, there's no question about that, but it did cite to Midwest Oil, which was decided 80 years ago when this Court held that the congressional acquiescence could -- or by congressional.acquiescence executive orders creating reservations, those reservations would be valid.

QUESTION: Well, Midwest Oil was certainly distinguished in the steel seizure case, was it not?

MR. GIVENS: It -- acquiescence is not a --

QUESTION: A sure thing.

MR. GIVENS: -- favored doctrine. However, Coeur d'Alene was cited as one of the 99 Indian reservations in Midwest Oil.

One hundred and twenty-five years ago in Holden this Court said that if there's an executive order and then later congressional acts that recognize that, and that's exactly what we have here. We have four of them that were listed in the brief, all pre-Statehood, that specifically recognize the Coeur d'Alene reservation, specifically recognized the -- what the executive had done.

And probably most on point, in 1888 Congress asked the executive, does this reservation include some of this navigable waters, and should we send -- appoint a negotiating team to go out and negotiate for the cession of some of that?

The executive branch said yes, it does, and if you do, you should pay them for it.

They then acted affirmatively upon that and appointed a negotiating team, so there is that later congressional recognition.

Finally, as --

QUESTION: Of course, you could have the reservation here by executive proclamation and simply not get the submerged land rights.

MR. GIVENS: That's entirely possible, Your Honor, and the difficulty with even arguing this issue at this point is, it is at such a preliminary stage, and those questions need to be -- I mean, that's the heart of the case. They need to be developed, and that's -- the place to do that is at trial.

QUESTION: Well, how further would you do -- I mean, if, in fact, a presidential proclamation without the authority of Congress cannot cut off a State's rights under the equal footing doctrine, there's nothing that a trial is going to prove about that.

MR. GIVENS: Oh, yes, Your Honor. The State concedes that there are several other theories which are pled in the Tribe's complaint which are not within the issue presented and which has to be remanded to trial.

QUESTION: Well, but at least that would decide this -- if we were to hold that, that would decide this aspect of the case.

MR. GIVENS: I've gotten lost in the words, Your Honor.

QUESTION: Well, I -- I won't detain you. Thank you.

MR. GIVENS: I'd love it, Your Honor. Thank you.

QUESTION: Mr. Strong, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF CLIVE J. STRONG ON BEHALF OF THE PETITIONERS

MR. STRONG: Thank you, Your Honor.

One quick point with regard to the Eleventh Amendment issue. I would like to go back to a question, two questions that were posed by this panel to Mr. Givens, one by Justice O'Connor, and one by Justice Ginsburg.

As Justice Ginsburg rightly points out, what the Tribe seeks, and it's stated in their response brief on page 4, what remains in the suit is declaratory and injunctive relief against Idaho officers to stop their violation of Federal law and to quiet the title, the Tribe's title against the world other than Idaho and its departments.

And as Justice O'Connor rightly observed, the essence of title to property is the opportunity to possess that property, and that's particularly true with respect to sovereign submerged lands.

As this Court said in Oregon v. Corvallis Sand & Gravel, submerged lands cannot be compared to substantive property law, but rather as an issue substantially related to constitutional sovereignty of the States.

The unique aspect of that sovereign title -- there is a legal title and a public title -- is the responsibility of the State to manage those lands for the benefit of the public. If the officers are enjoined from carrying out that sovereign duty, how can it be said that the sovereignty of the State is not affected?

QUESTION: And what's the answer on that point, on that very point in Tindal? I thought they got that from the last paragraph of Tindal, so what is the answer to that?

MR. STRONG: I'm sorry, Your Honor, I --

QUESTION: Where the Court -- this Court seemed to divide all the aspects of title -- I mean, with the fiction of the title itself, and says the State gets another chance to litigate it.

MR. STRONG: Tindal is a much different case than the case we have before us, because in Tindal it was an issue where the officers through their actions came into possession of the property.

These officers have no relationship to the title here. The title passed to the State on Statehood. We've possessed it since that date, and so the officer's duties, what they're doing, have no relationship to title whatsoever, and so the only way you could bring in Tindal is to say that the officers are taking the property.

How can it be said that they're taking the property if they have never, by their own actions, took possession of the land, but rather, came into possession as a result of the constitutional presumption?

QUESTION: Idaho could have no complaint, could they, except for a defense on the merits, if the United States in its suit had chosen to litigate on behalf of the Tribe for this entire -- for all the land that the Tribe is now claiming, rather than just a part of it?

MR. STRONG: Certainly not, Your Honor. If the United States had felt that there was a basis for making a claim for the entire lake, it could have brought that action and the State would have no objection to that type of lawsuit.

QUESTION: And there's nothing to indicate why the United States -- in this record why the United States sued for less than what the Tribe is claiming in this --

MR. STRONG: No, Your Honor, but the reasonable assumption is that the United States has evaluated that claim and determined that there isn't a Federal interest in the northern two-thirds of the lake.

Turning to the last or second question we presented to the Court, as Mr. Givens rightly points, that his theory is based upon the idea that Midwest Oil somehow gave the President authority by acquiescence of Congress, and it's our position that the Property Clause powers are vested exclusively within Congress, and then in the Sioux Tribe the only way that authority can be delegated to the President is by an express action of Congress.

This is particularly true with regard to the submerged lands, which are held in trust for the future States. If a President can simply unilaterally take those lands out of trust, then what aspect of sovereignty is really being protected?

In fact, the sovereignty of States, they would have no way of protecting themselves against such a withdrawal.

Moreover, Midwest Oil is a very unique case. It's limited to the situation in which the President is withdrawing lands, public lands that are available for sale. In Midwest Oil, the Court found acquiescence to be acceptable, because in that instance no third party was being injured.

The State of Idaho is being injured by this action because the lands were held in trust for the benefit of the State, and if they're taken out of trust and conveyed to the Tribe, then the State's sovereignty has been injured.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Strong.

The case is submitted.

(Whereupon, at 2:00 p.m., the case in the above-entitled matter was submitted.)