Transcript

IN THE SUPREME COURT OF THE UNITED STATES

IDAHO, Petitioner v. UNITED STATES, ET AL.

No. 00-189

April 23, 2001

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:04 a.m.

APPEARANCES: STEVEN W. STRACK, ESQ., Deputy Attorney General, Boise, Idaho; on behalf of the petitioner. RAYMOND C. GIVENS, ESQ., Coeur d'Alene, Idaho; on behalf of Respondent Coeur d'Alene Tribe. DAVID C. FREDERICK, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of Respondent United States.

PROCEEDINGS

(10:04 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument now in No. 00-189, Idaho versus the United States. Mr. Strack.

ORAL ARGUMENT OF STEVEN W. STRACK, ESQ.

ON BEHALF OF THE PETITIONER

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

Four years ago in a decision that involved these same parties, the court affirmed the principal that submerged lands are an essential attribute of state sovereignty. Today the court is asked to determine whether this essential attribute of sovereignty was defeated by the Act of March 2nd, 1889, an Act that authorized negotiations for the purchase of timber and mineral lands. Under law, the 1889 Act embodies a presumption against defeat of state title.

QUESTION: Would you mind if I just get a little background that helps me understand better the practical issues involved here. We're talking about roughly one-third of the lake, the submerged lands and about one-third of Lake Coeur d'Alene; is that right?

MR. STRACK: Actually the acreage would be more like one-fourth of the lake.

QUESTION: About one-fourth.

MR. STRACK: Yes.

QUESTION: In the southern part of the lake?

MR. STRACK: This is the southern part of Lake Coeur d'Alene and we're also talking about the lower 15 or 20 miles of the St. Joe River.

QUESTION: And what are the practical consequences of a finding one way or the other? What as a practical matter difference does it make who has the submerged lands.

MR. STRACK: Well, I think it makes a very large difference from the state's viewpoint, Justice O'Connor, because this is a public highway. This is not just an isolated body of water.

QUESTION: Well, just tell me what's involved. Is it fishing rights or regulation of boating, what is it? Why does the state care, what is involved as a practical matter.

MR. STRACK: We care because the majority of the users on the Lake are not Indians and because of that we have a significant interest in protecting their safety, for example, citing people who are boarding in an unsafe manner or if citing someone who doesn't have the requisite amount of life vests on board for small children. It's not clear the tribe could fill that role --

QUESTION: I'll pursue Justice O'Connor's question, why can't the State, why can't the tribe have the patrol boat just like a tribe has a patrol car on the road?

MR. STRACK: Because this is a public highway and the court has been very clear that on a public highway tribes usually do not have general sovereign authority over non-Indians. That's because they don't have the power to exclude generally and that's the basis of tribal authority over non-Indians, in most instances.

QUESTION: Well, then, why can't the state's boat go into the southern part of the lake?

MR. STRACK: Because the tribe has basically precluded us from that and I believe the Court's decree precludes us from doing that also.

QUESTION: You can't work -- all this is about is whether or not the State wants to have a policeman in a boat cite somebody for not wearing a life vest and the tribe just won't agree to figuring out some method so that people boat safely? It sounds like is that all that's at stake and you can't work it out with the tribe?

MR. STRACK: Justice Breyer, I think there's a lot more at stake than simply that.

QUESTION: I'm not saying in principle. I want to know what does this come down to as a practical matter that has led the State of Idaho to say it's important. I mean all kinds of principles, you may even be right, they may be right, but sometimes -- what is the practical application, anything else?

MR. STRACK: I think there's many practical applications, Justice Breyer, as we spoke about in our brief.

QUESTION: Well, name one. Could you just name one. So far I have the fact that you told Justice O'Connor that it's not been possible for you to work out with the tribe whether a policeman could cite somebody in a boat for not wearing a life jacket. Now what's the next one?

MR. STRACK: Oh, for example, we have an in-stream flow, a statutory in-stream flow that protects the lake level and that's certainly broadened the question by this concept of tribal ownership of at least a portion of the lake. We have --

QUESTION: Mr. Strack, may I ask that you raise the podium a bit because I'm having difficulty hearing.

QUESTION: You're lowering. Other way.

QUESTION: There.

MR. STRACK: Another practical aspect would be, for example, our statute that prevents dredging on this portion of the river. That would no longer have any validity because now it's tribal land. And so generally this, we treat this lake as a public resource and a recreation place. The State protects public access and because it is a public resource, the public, if we fail in our duties the public can sue us. That wouldn't necessarily be true of the tribe on the lake because then it becomes managed not for public uses necessary but for whatever use --

QUESTION: Well, does the Federal Government in its capacity as a trustee, if you will, have any role in how the lake is managed or used if it belongs to the tribe?

MR. STRACK: Justice O'Connor I haven't seen any evidence of that to date. They have simply stepped back and let the tribe regulate. I haven't seen any evidence of the Federal Government having any interest in doing that.

QUESTION: Let me ask you another question. After Idaho became a state, I think there were at least two conveyances by the United States to people of land in that area, one to Frederick Post and the other to someone named Harrison; is that right?

MR. STRACK: Justice O'Connor, actually the Harrison session was not a conveyance of land, they simply bought land from the tribe.

QUESTION: Ceded.

MR. STRACK: Got a cession of land from the tribe but they never exercised any ownership right over that little corner of the lake. That was part of that Harrison cession. They never conveyed it to anybody.

QUESTION: And how about Post the Frederick Post property.

MR. STRACK: The Post cession occurred in the 1880 -- 1891 Act.

QUESTION: So is it your position that both of those are void, that there was no authority because Idaho had already become a state.

MR. STRACK: First of all, on the Harrison cession, I don't think that would be void because they were simply changing the boundary across a navigable waterway. They could do that today if they wanted to and we would have no problem with that if they wanted to take a portion of the lake out of reservation. We would have a problem if they attempted to convey it to somebody, but they didn't do that in --

QUESTION: But if the tribe doesn't own it, I don't see how you could take the position that the conveyance by them would be valid. I don't understand.

MR. STRACK: It's a simple cession. I think the tribe could agree that we're going to cede this portion of the lake out of the reservation.

QUESTION: Something they don't own.

MR. STRACK: Yes. I think it's a jurisdictional boundary, not just a property boundary so they can certainly say yes, we'll agree to moving this jurisdictional boundary over to this part of the lake, and I don't think that would have any violation of the state's rights under the equal footing doctrine.

QUESTION: You're making a distinction between property and regulation and I gather from your answers so far what you're saying is property rights are not at stake, only sovereign rights to police, is that accurate?

MR. STRACK: Well, Justice Ginsburg, the way I view submerged lands is that they're a blend of sovereign rights and property rights, and so -- but there is examples where if there is a conveyance of property and a conveyance of sovereignty, the submerged lands go with the sovereignty because they're an attribute of sovereignty. It's a very loose situation. But what I was talk -- referring to before was the fact that reservation boundaries are not just property boundaries, they're also jurisdictional boundaries, especially nowadays where we have allotted reservations such as this one, and so they can move the reservation boundary without necessarily applying anything as to property rights on either side of that --

QUESTION: What about as to sovereignty rights? When you say jurisdictional boundary, I assume you mean a boundary of sovereignty. You don't mean that?

MR. STRACK: Justice Scalia, yes, I do mean a boundary of sovereignty.

QUESTION: You do mean that. Well, then, that brings back the question of how the tribe could cede jurisdictional rights without ceding sovereign rights.

MR. STRACK: I think in the case of the Harrison cession, Justice Scalia, again there was no exercise of property rights once that cession occurred but --

QUESTION: But we're not talking about property rights. We're talking about sovereignty rights, aren't we?

MR. STRACK: That's correct.

QUESTION: And you acknowledge that the consequence of the cession was an alteration of jurisdiction, which I assume is the same as an alteration of sovereignty.

MR. STRACK: Justice Scalia, I think I see the source of your confusion and perhaps I could clear that up a bit.

QUESTION: I hope so.

MR. STRACK: And the fact is that within an Indian reservation there is a shared sovereignty. State sovereignty extends over jurisdictions, but so does federal sovereignty, and so a jurisdictional line as I'm speaking of it here would be a line wherein in this would define Indian country in which the Federal Government would have perhaps special preemptive powers over State sovereignty. We don't view this as an either/or situation where you either have State sovereignty or you have Federal sovereignty. There's always going to be shared sovereignty within Indian country, and as a matter of fact here, there's numerous examples of this kind of shared sovereignty or special beneficial rights that tribes own in sovereign lands without defeating State title.

I think a wonderful example is the usual and accustomed fishing right that many tribes have in the Northwest and there they have the right to fish at these places, occupy these places, it's a special right in submerged lands but it does not defeat State sovereignty over those lands. And so certainly there's a number of examples where we have this beneficial interest in a tribe that does not necessarily imply anything as far as a State's sovereign right to regulate itself.

QUESTION: It also doesn't apply anything as to the tribal sovereignty. I mean that's the source of my confusion. You don't think that sovereignty is at issue when there are just the fishing rights involved, correct?

MR. STRACK: I think that would be correct, Justice Scalia.

QUESTION: You get to the 1899 Act, as I understand it the premise of the 1899 Act was that the United States would not take any portion of the reservation except by agreement; is that correct.

MR. STRACK: They would not take the portion that they were authorized to purchase except by agreement and that would have been the timber and mineral lands, yes.

QUESTION: Well, and are you saying that the -- that the Act had no significance for any other portion of the reservation?

MR. STRACK: In terms of submerged lands, I think, Justice Souter, that is what we are submitting, that this was an act that sought diminishment of the reservation and Congress knew that it would be focused on the northern part of the reservation and they knew that the northern part of the reservation contained submerged lands. That was all contained in the 1888 report to Congress. But, in seeking that diminishment, they did not authorize the purchase of submerged lands, so how could they seek diminishment --

QUESTION: Do we know, is that true as a matter of law, I mean couldn't submerged lands also have mineral deposits or have been thought to have mineral deposits and therefore be subject to the purchase power under the statute?

MR. STRACK: There's no evidence at all in the record, Justice Souter, that Congress believed these submerged lands to have any mineral value whatsoever.

QUESTION: Well, let's assume then that the -- that the Act referred only to lands that were not submerged lands. Wouldn't it have been very -- a very strange construction on the intentions and the acts of the United States to assume on the one hand that with respect to specified kinds of lands, timber and minerals, it wouldn't touch the reservation except by agreement, and at the same time assume that without any agreement and in fact without any express reference, it was divesting the tribe of the submerged lands which were also part of the reservation. Wouldn't that have been -- I mean wouldn't anyone looking at the Act say gee, if they're not going to take timber and minerals except by agreement they're not going to take anything else either. Apparently the only thing they intend to take, if they can get an agreement, is timber and minerals. They don't intend to take anything else and we may safely assume that they won't except by agreement. Wouldn't that be a fair interpretation of the significance of the 1899 Act.

QUESTION: 1889.

QUESTION: -- '89 Act.

MR. STRACK: Justice Souter, I think we would disagree for the fact that I -- in fact, it would be strange if we believed that the tribe had owned these lands prior to the 1889 Act.

QUESTION: Well, I thought it was -- I thought it was conceded in this case that the reservation included -- the reservation as originally set aside by executive order included submerged lands.

MR. STRACK: We conceded the fact, Justice Souter, that the President intended to reserve those submerged lands but we made that concession in light of the trial court's finding that the President was not authorized to permanently reserve those lands.

QUESTION: Well, but he wasn't authorized permanently to reserve anything, I presume, was he? The submerged lands are in the same position as any other portion of the reservation, isn't that so?

MR. STRACK: No, I think I would disagree with that, Justice Souter, because I think submerged lands are in a special status. Certainly the President has the authority to set aside lands, prevent settlement on those lands, but submerged lands usually are not public lands in that sense.

QUESTION: What about heavenly authority?

QUESTION: I don't see then why you made the concession.

MR. STRACK: We made the concession that he intended to reserve the submerged lands because that was basically a factual finding and we did not view it significant in light of the fact that you would have to have the subsequent congressional ratification and we wanted to focus the Court of Appeals on this second element of the Alaska test which is the need for ratification.

QUESTION: Okay, but before you get to the second element I just want to get clear on the terms that are being used. You conceded that the President intended to include submerged lands in the reservation and I take it you don't dispute the fact that the commissioner had by this time filed a -- a report saying that submerged lands were included in the reservation. Isn't it therefore fair to assume that when Congress was talking about the reservation in the 1889 Act, that it was talking about the reservation as so understood, i.e., the reservation as the President intended to create it and as the commissioner had described it to include submerged lands.

MR. STRACK: Justice Souter, we certainly recognize that Congress was looking at the reservation boundaries as established and working on the basis of the information that was provided in the 1888 report. But we would agree with that, but we would question whether or not Congress actually approved that inclusion because of this omission of submerged lands.

QUESTION: Well, I'm just asking right now what Congress meant when it was talking about the reservation in the 1889 Act, and isn't it reasonable to suppose that it meant by reservation the reservation as intended, the reservation as described by the commissioner, i.e., the reservation that included submerged lands. Isn't that probably what it meant by the word?

MR. STRACK: Looking at the 1889 Act as a whole, Justice Souter, I don't think I would agree that statement because of this omission of the submerged lands to my mind raises a question as to whether Congress recognized that inclusion. And if we look back at the 1888 report, it does not mention submerged lands per se. It does not mention of bed of the lake. It mentions the fact that the reservation embraces these navigable waters.

QUESTION: Why do you have to take that position? I mean, can't you acknowledge that when Congress was speaking about the reservation it was talking about the reservation that President Grant had created, but that Congress knew that that reservation was not legally effective to create it because it needed ratification which had not occurred.

But nevertheless Congress, out of an abundance of goodwill to the Indians, was not willing to go back on the 1873 executive order without the express consent of the Indians, but that still doesn't amount to any effective action by Congress creating the reservation.

I mean, your basic point is that the 1873 executive order doesn't do anything without Congressional ratification, which never occurred. So does it make any difference whether Congress in the 1889 Act viewed the 1873 order which it knew was ineffective absent ratification as including the submerged lands or not? What difference does it make?

MR. STRACK: Justice Scalia, I don't think it makes any difference. I think you're correct in that assumption.

QUESTION: Might it not make a difference in what Congress thought it was doing when it was in fact passing the Statehood Act which referred to reservations of the -- reservation of the Indian reservation? Might that not inform us in what Congress had in mind?

MR. STRACK: Justice Souter, when I say it doesn't make a difference I'm referring to the second prong of the Alaska test. Under that prong you would still have to have this affirmative declaration of intent.

QUESTION: Well, we do because in Alaska we're dealing with. In effect, a two-party situation. We're dealing with the relationship between the national government and the new State. Here we're dealing with a three party situation and one of the things I would think that would be an indication of what Congress meant in dealing with the State was what Congress understood in its dealings with the Indians.

MR. STRACK: Your Honor, I would agree with that but I think an essential background fact that perhaps we're not taking into account is the fact that executive orders at this point were not thought to convey any property interest to tribes.

QUESTION: Mr. Strack, did the Court of Appeals in its opinion place any reliance on the Statehood Act? As I read it, it didn't, did it?

MR. STRACK: Your Honor, it mentioned the Statehood Act but it did not rely on it for a finding that State title had been defeated, that's correct.

QUESTION: Mr. Strack, do I understand your position correctly that it's the 1889 agreement, the ratification of that, if that had come nine months earlier, if that had come before statehood instead of after you would concede that the tribe, United States in trust for the tribe, should prevail. Is that what this whole thing turns on, that it was nine months after rather than before?

MR. STRACK: Justice Ginsburg, I don't think we would agree with that because if the 1891 Act had in fact been enacted before statehood, then we would have to look at this under the conveyance rules of Holt State Bank and Montana, and there the court said that where a tribe is simply granted a continuing right of aboriginal occupation that that right usually would not carry with it title to submerged lands. It may have an interest in submerged lands, but not sufficient to defeat State title.

And here, all of the rights vested in the tribe came as a result of the 1887 agreement which provided that these lands would be held as Indian land which is simply a restatement of this principle of aboriginal occupation. There was no additional rights vested in the tribe as the result of the 1889 agreement.

QUESTION: I'm getting confused. You said a moment ago the 1887 agreement, did you misstate that or are there two agreements, one 1887 and one 1889?

MR. STRACK: Mr. Chief Justice, there is two agreements here. Maybe I could walk through it.

QUESTION: Tell us what they are and what the difference is.

MR. STRACK: In 1887, the tribe and the United States negotiated an agreement that would cede all lands outside the 1873 boundaries and as part of that agreement they agreed that the tribe would continue to hold the land within the reservation as Indian land.

Then in 1889 we have the second agreement which was only a cession agreement specifically limited to purchase of lands by the 1889 Act and in the agreement there was no additional rights of conveyance. There's no language of conveyance in the 1889 agreement itself. It's simply a quit claim to the northern portion of the reservation.

So whatever rights the tribe holds in the southern third of the lake and the remainder of the reservation are necessarily going to be founded in the language of the 1887 Act which defines the tribe's rights. And under Montana, where we simply have a continued right of aboriginal occupation, that type of conveyance to a tribe would not normally carry with it an interest in a lake bed that would be sufficient to defeat State title.

QUESTION: If it says in this kind of grant, suppose it said specifically we're going to give to the Indian tribe and not to Idaho the right to use navigable waters on the lake would that be sufficient to carry with it submerged lands?

MR. STRACK: Justice Breyer, I would say it would not because again that would simply be a beneficial interest and we have numerous examples of where tribes have beneficial interest in submerged lands without a defeat of State title. For example, they could reserve an exclusive fishing right. They could reserve a fishing right in common with other people.

But I think the point I want to make is that because of this presumption against defeat of State title that we should always assume that Congress would try to accommodate tribal rights and State interest in public ownership of these lands to the extent possible. And here where all we have is a simple right of use, that would probably not be sufficient. Again, I think it's worth pointing out that in neither of these agreements is there a fishing right provided to the tribe expressly, which is very unusual for a northwestern tribe.

I think that admission by itself is very telling in the legislative history leading up to the 1889 Act and the 1889 agreement, again we see numerous references to this tribe as a farming tribe, not as a fishing tribe.

QUESTION: So what would it have taken, if the 1873 reservation had been ratified, would that have done it, would there then be no dispute? I'm trying to determine what it is in the State's view that would have plainly conferred this submerged land right on the tribe.

MR. STRACK: Justice Ginsburg, I think it would take something akin to section 6 C which was reviewed in the Alaska case which would be reratified as reservation and prevent any passage of lands to the future State of Idaho.

QUESTION: So ratifying the 1873 reservation executive order, that would not have been sufficient either?

MR. STRACK: I don't believe it would be a ratification just by itself because the courts always look for that additional affirmative language somehow, like in the Choctaw case where you have fee title but it was suggested that even that fee title might not be sufficient because the court then relied on that passage which said no part of this reservation shall ever be part of any future State. And again, we see that in the Alaska case, none of these lands will ever be passed to the future State.

QUESTION: And that position explains why you were willing to leave uncontested any of the fact findings and said the only question is what did Congress do. You didn't question what the executive meant or any of the fact findings but only what Congress did or didn't do.

MR. STRACK: Your Honor, that's correct.

QUESTION: In terms of what Congress set to do, should it make a difference whether we're talking about a reservation which on the one hand has simply been set aside by executive or Congressional action to which Indians were moved as in the Cherokees and so on or whether we're talking about a reservation which in fact covers land to which the Indians have an aboriginal title or an aboriginal claim which I take it is the case here.

MR. STRACK: Justice Souter, I believe the distinction the court has made in the past is between an affirmative grant of rights and a continuing aboriginal occupation of rights. I don't know that it would make a difference if the tribe had not aboriginally occupied the territory or not. Certainly what it looks for is that affirmative grant in that language which says that no party's land shall ever pass to the future State. I'd like to reserve the remainder of my time.

QUESTION: Very well Mr. Strack. Mr. Givens, we'll hear from you.

ORAL ARGUMENT OF RAYMOND C. GIVENS, ESQ.

ON BEHALF OF THE RESPONDENT COEUR D'ALENE TRIBE

MR. GIVENS: Mr. Chief Justice, may it please the court:

There are six prestatehood acts of Congress or items that occurred that Congress was specifically informed of that establish that the State title to these submerged lands was defeated at statehood.

QUESTION: When you say, Mr. Givens, that Congress was specifically informed of, I gather you're not suggesting that Congress took any action in response to them.

MR. GIVENS: Oh, yes they did.

QUESTION: Okay, well then, are these Acts of Congress you're talking about.

MR. GIVENS: Some are and some are information provided to Congress that form the basis for those Congressional Acts, Your Honor. Let me run through them briefly. I think --

QUESTION: Well, do that, please.

MR. GIVENS: -- it will become clear. The first is the 1873 agreement, executive order, and the reports of that. The executive order, of course, established the reservation, withdrew it and set it apart, set the boundaries and the reports provided that information to Congress. So Congress knew about it from the beginning.

QUESTION: Well, you know, of what significance is the, quote, the language, quote, Congress, quote, knew about it from the beginning. Are you suggesting that every member of Congress read these reports?

MR. GIVENS: Your Honor, Congress as an institution had knowledge of the reservation and the specific --

QUESTION: Well, what is your authority for saying that it is crucial whether or not Congress had notice.

MR. GIVENS: Because in --

QUESTION: Your case authority.

MR. GIVENS: Well, what is important, Your Honor, is that in the later acts Congress by statute specifically referred to three times before statehood either the Coeur d'Alene reservation, the present Coeur d'Alene reservation or talking about the tribe and its reservation, so Congress knew of the reservation and they knew of it because of the second one Your Honor, and that was the 1883 survey and plat of the reservation which is at page 49 of the record.

QUESTION: And how did Congress know of that survey?

MR. GIVENS: They knew of it, Your Honor, because of the third one and the third one is in 1888 the Senate made specific requests of the Department of Interior concerning the reservation asking is the lake in the reservation, and if so, should we get any of it back, and they were provided, the Department of Interior provided Congress with that same plat that showed the detail of the lake.

QUESTION: Was this a joint resolution of the Senate?

MR. GIVENS: It was only of the Senate, it was not of the House, but prestatehood the record also establishes, Your Honor, in the March 1890 House report that the House also had knowledge of that and the House March report makes that clear.

QUESTION: Well, you say the House report showed that the House had not -- was this a report of the full House or of a committee of the House.

MR. GIVENS: This was a report of the Committee on Indian Affairs of the House, Your Honor.

QUESTION: On that specifically, that's why I asked the question, I think Mr. Strack said, well, the 1887 is it, the question that they put in 1888 was does it include any portion of the navigable waters of the lake and then it comes back it does include all the navigable waters. But he said the navigable waters has nothing to do with the submerged land, that it's, maybe they gave him the navigable waters but that's not the submerged land underneath the navigable waters. I think that was his answer.

I'd like you to respond to that because all the documents you rely upon refer to navigable waters, as none of them says anything about submerged land.

MR. GIVENS: In spending ten years with these documents, there can be really no dispute that whether it's called navigable waters or submerged lands or lake just like it's called land or ground or soil the meaning of the -- was the same throughout.

QUESTION: I haven't spent ten years with them so -- so I mean, and they're arguing the opposite --

MR. GIVENS: Yeah.

QUESTION: And therefore I'd like to know what specifically it is that allows me to say that those words navigable waters includes submerged lands.

MR. GIVENS: It is this, Your Honor, and that's why this survey and plat is so important in that the -- in the sur -- in the plat, in the survey they calculated the actual acreage and in 1888 the Department of Interior did an interesting thing. Not only did they provide Congress with the plat, they provided Cong -- or the Senate with another map that showed the acreage and actually the acreage is right over the top of the lake and this is at 135 of the record, and Coeur d'Alene reservation is written right through the lake and in the text that they talk about of that '88 question and answer which is the third of these items, they use the word embrace both for the acreage and for the navigable waters.

QUESTION: Mr. Givens, I don't think there's a big dispute about the extent of the reservation. I mean that isn't really what the dispute's about. The dispute is whether, when you describe the boundaries of the reservation, it means that the Indians have aboriginal occupation rights or whether it means the extraordinary thing that when we create a new State, the land under navigable waters will not go to the new State, and how do you get that out of simply the description of the boundaries of the reservation?

MR. GIVENS: You get to that through the next three items, Your Honor, and they are the '89 statute where it talked about its reservation and they knew that reservation included the lake because of the detail in the plat. They --

QUESTION: How do we know that it included the submerged lands as opposed to the surface of the lake. I mean, we describe water area in acreage just as well as land area, so how do you get from acreage necessarily submerged land?

MR. GIVENS: We know that because of the next item, Your Honor, and that was the two reports in 1890, and particularly the first one from the commissioner that said that the United States got back most of the lake but specifically the executive specific report on these negotiations that included a map again, a second map showing the reservation boundary dotted line crossing the lake showing that these submerged lands were part of the -- more particularly --

QUESTION: Well, now, I don't see that it shows that at all because as I understand it, that map was there at the time of the negotiations between General Simpson and a tribal chief whose name I forget and General Simpson started out with the proposition in those negotiations that in fact both the Indians and the whites would have the use of the lake and that led to an immediate disagreement.

The one thing it does seem to show is that General Simpson did not understand that a line across the lake necessarily conveyed either an exclusive right to navigate, let alone land underneath the water.

MR. GIVENS: But then, Your Honor, it went on to say you will still have under the -- if you take this agreement, you will still have the southern part of the lake, I think it said the lower part of the lake and the St. Joseph River, you would still have.

QUESTION: That may be, because you would get it by the agreement and the agreement in fact had not been ratified by the time of statehood. I mean, I know what he said but its significance for this case, it seems to be equivocal.

MR. GIVENS: And at statehood what, which is the final one, or actually just prior to statehood the people of Idaho ratified the Idaho constitution which disclaimed any ownership or any jurisdiction over Indian lands until that title is extinguished by Congress, so the title that had been the ownership interest that Congress knew of that had been established by the '73, initially by the 73 executive order, none of the Coeur d'Alene country had been extinguished, not just --

QUESTION: All right, so you're assuming that Indian lands in the Idaho Statehood Act referred to lands as defined by the 19 -- by the 1873 executive order and I don't -- I don't know why we necessarily should make that assumption.

MR. GIVENS: Well, one reason to make that assumption, Your Honor, is the 1887 agreement had a very unusual clause in it, the reports from the negotiators explained it was so unusual that the tribe insisted that the provision be put in that the land could never be sold or otherwise disposed of without the consent of the tribe, any part of the reservation.

QUESTION: That was in which agreement; I'm sorry?

MR. GIVENS: Pardon?

QUESTION: Which agreement was that in?

MR. GIVENS: '87. Article five of the '87 agreement, which is equivalent of fee.

QUESTION: Okay, but that -- and once again that agreement had not been ratified at the time of statehood; is that correct?

MR. GIVENS: It was not ratified at the time of statehood but what happened with that disclaimer act is the disclaimer act put all of this on hold. It pushed the hold button. It said the United States still has ownership and complete jurisdiction, absolute jurisdiction is the words out of the --

QUESTION: Well, but that took place in 1887 and 1890 Idaho was admitted to the union and a subsequent Congress can do things differently than an earlier Congress.

MR. GIVENS: Certainly they can, but this is what Idaho did to itself. Idaho itself adopts its constitution and says we disclaim it, we don't have any jurisdiction over it.

QUESTION: Yeah, but the question is what are they disclaiming? Justice Souter asked you a few minutes ago how do we know that what was defined in the 1873 reservation was what Idaho disclaimed in its 1890 constitution?

MR. GIVENS: We know because, also because this '87 agreement specifically refers to the reservation as Indian lands which is the same word used in the Idaho disclaimer.

QUESTION: Thank you, Mr. Givens. Mr. Frederick, we'll hear -- did United States have statutory authority to bring this action, Mr. Frederick?

ORAL ARGUMENT OF DAVID C. FREDERICK, ESQ.

ON BEHALF OF RESPONDENT UNITED STATES

MR. FREDERICK: Yes, we did.

QUESTION: What is it?

MR. FREDERICK: Well, the statutory authority would have been under quiet title principles. This -- the purpose of this action was to quiet title in the lands.

QUESTION: So the right to quiet title in lands which the government claims an interest.

MR. FREDERICK: That's correct, Mr. Chief Justice.

QUESTION: Mr. Frederick, can I ask you the question that was asked of Mr. Strack, why does it matter to the Indians, they don't want people to have to wear life jackets, is that -- must be something more than that.

MR. FREDERICK: There certainly are very serious issues at stake here. Tribal ownership of the souther -- tribal ownership of the southern third of Lake Coeur d'Alene implicates such issues as the extent to which the tribe can have a role in anti-pollution measures for the lake, what consequences would flow from pollution of tribally owned lands, as well as to the extent to which the tribe could regulate non-Indian uses on the southern third of the lake.

QUESTION: Could the tribe engage in dredging activities that would affect either the water quality or the level of the portion of the lake that is not within the tribe's jurisdiction even under your theory?

MR. FREDERICK: Well, it would have to work with the Corps of Engineers which would have paramount authority under various laws, but yes, that would be one of the questions.

QUESTION: Why does the United States have paramount authority under various laws?

MR. FREDERICK: Well under the Rivers and Harbors Act the Corps of Engineers has control over navigable waterways.

QUESTION: Whether the State or the tribe?

MR. FREDERICK: That's correct. That's correct. But from the United States' point of view one of the reasons why this case is so important is because it involves the good faith of the United States. In 1891 when Congress ratified this statute it ratified understandings that had been reached between United States negotiators and it is unthinkable that Congress under the equal footing doctrine would have conveyed the submerged lands to all of the lake while simultaneously negotiating to ratify an agreement that would convey the southern third to the tribe.

QUESTION: You know, there's certainly something to what your say, but that just totally disparages the equal footing doctrine as if it's of no consequence and it seems to me it's equally possible that Congress may have been at varying states of mind in varying years.

MR. FREDERICK: Mr. Chief Justice, here the negotiating history makes quite clear on page 183.

QUESTION: Yeah, but the idea that every member of Congress knew that negotiating history when they voted to admit Idaho as a state doesn't make any sense at all.

MR. FREDERICK: The Statehood Disclaimer Act, Mr. Chief Justice, disclaims --

QUESTION: The ninth circuit didn't rely on that at all.

MR. FREDERICK: I recognize that, but what it does show is Congress' intent to ratify the Constitution disclaiming that the State would not have any interest in lands owned or held by the United States -- held by the tribe until the United States extinguished title.

QUESTION: We don't know that the reference in the Statehood Act was to the same lands as in the 1873 reservation.

MR. FREDERICK: It was well-known, Mr. Chief Justice.

QUESTION: Well known to whom?

MR. FREDERICK: To everyone who was involved in the negotiations and the dealings between the United States and the tribe.

QUESTION: Well, but that doesn't mean that every member of Congress, and that's the question here, what did Congress mean when it admitted Idaho to the union?

MR. FREDERICK: In 1889, Mr. Chief Justice, Congress passed a law that authorized negotiations for cessions of the Coeur d'Alene reservation by the tribe as such tribe shall consent to sell.

QUESTION: And it was never ratified.

MR. FREDERICK: It was ratified six months after the Statehood Act.

QUESTION: Yes, but that's too late under the equal footing doctrine.

MR. FREDERICK: The question is whether Congress had manifested its intent to defeat State title and under Alaska, the test is whether Congress intended to retain the executive reservation and knew that reservation contained submerged lands.

QUESTION: How do you manifest your consent when, by a subsequent act, you're relying on the negotiations and the negotiations are not a manifestation of consent? You need something before the Statehood Act that shows the consent of Congress.

MR. FREDERICK: The '89 Act does that by showing that Congress recognized the present reservation which was the reservation embraced within the 1873 executive order and the '86 Act which authorized the negotiations for the lands outside the present reservation.

QUESTION: They don't necessarily show that they recognize the kind of title that could not be defeated by a subsequent creation of a state. They just show that the Indians had this as their reservation.

MR. FREDERICK: As the executive had defined it, Justice Scalia, and that's the key point here. The State has conceded that the executive order reservation is what it is and those boundaries that were defined in the geological survey had angles drawn in the lake itself, it's simply not tenable to suggest that when the lines are bent and a point is drawn in the lake and that the line crosses the lake that the lands underneath those navigable waters are not also included.

QUESTION: Well, hy is that so when we have said expressly in Montana and in Utah that the fact that a lake is included within the boundaries of the reservation does not itself mean that the submerged lands are also within the reservation? We've been very clear on that in Alaska and Alaska repeated that.

MR. FREDERICK: In Alaska, however, and the reason why this is closer to Alaska than it is to Utah and to Montana is that the line actually was drawn on the submerged lands as it was in Alaska where the line was drawn out in the coastal waterway area. In Montana the reservation simply crossed a river, lines crossed the river and there was no survey in Montana that this Court discusses that would show acreage as being included.

In fact, Montana is distinguishable there because the rights that were given by the treaty of 1868 only were residential rights.

QUESTION: Well, how can you tell that this particular reservation the line was drawn across the submerged lands? It could just as easily have referred to the navigable waters.

MR. FREDERICK: Because the map and the geological survey say so. If I could direct the court's attention to two maps, the first is on page 135 of the joint appendix and in -- that map was given to Congress in response to the Senate resolution asking specifically does the reservation include the navigable waters.

QUESTION: Yes, but that's -- I just looked at that because it was decided and I can't find a word there, of course they get the navigable waters. That's why I wanted to ask and Mr. Strack said that the fact that they are given navigable waters means that they can go and fish on the lake, it doesn't mean they have a right to the submerged lands, that's what I took him as saying. Now, that, therefore that to me is an important question to me that I'm asking. What reason is there for thinking that if they gave them 42 documents, a hundred documents, a million documents, say you have navigable waters, what reason is there for thinking that that includes submerged lands?

MR. FREDERICK: Two reasons, first the executive enforced anti-liquor prohibitions on Indian country and as this court decided in Bates versus Clark in 1877, Indian country for purposes of that law was defined until tribal ownership was extinguished. The executive treated that land on the lake as tribal land for enforcing the Indian country prohibitions on liquor. Secondly --

QUESTION: I'm sorry, that doesn't get me underneath the water unless they're wearing diving helmets.

MR. FREDERICK: No, it does get you under the water because the enforcement was not occurring on that sliver of the lake that was not within the reservation. Moreover, the Senate said there are problems with trespass on the lake by whites not authorized to be within the reservation and the concept of trespass is traditionally thought of as ownership of the property.

QUESTION: Well, was the -- were they snorkeling on the submerged lands? I mean surely they were talking about trespass on the water of the lake.

MR. FREDERICK: Yes, and the question, Mr. Chief Justice, is who owns the lake and in 1889 when General Simpson negotiated with the tribe they drew the line from one part directly across the lake to a different part directly across the lake. That map which is set out at page 202 of the joint appendix --

QUESTION: Let me try it once more because I was thinking my answer when I asked it would be nobody has ever doubted that if you give navigable lands to the Indian tribe you're giving them the submerged land, I mean nobody has ever tried to drive a wedge between navigable waters and submerged land, but that wasn't the answer I got. I got the answer yes, they're totally different. So this case has been around for some time and I guess by now you've thought of what's the response to that and that's what I'm trying to get.

MR. FREDERICK: The submerged lands were important to the tribe for a number of different reasons. Unlike the Crow tribe in Montana, this tribe depended on water resources and they recognized the value of submerged lands even before the 1873 executive order when they made an agreement with a man named Post to convey the river channels which can be nothing but submerged lands for the purpose of Post building a mill on that site. This tribe harvested water potatoes, it built fishing weirs that were affixed to the submerged lands of the lake and the associated waterways and the executive knew that.

When they negotiated for the land, Chief Seltice insisted that the line be drawn in such a way that the tribe would understand what was theirs. And General Simpson in his response on page 183 of the joint appendix says quite clearly after this agreement when the line is redrawn you shall have the lower part of the lake. That could not be clearer that the executive understood that the submerged lands south of where the line was to be drawn were to be owned by the tribe.

So the question then becomes this is in a sense an amalgam of Alaska and Utah lands because had this occurred before statehood this would have been a conveyance case and the question would have been what did Congress intend by the conveyance. And I would direct the court to the 1987 agreement which we have set forth in the --

QUESTION: 1887.

MR. FREDERICK: 1887 agreement. On page 93 the language here is quite clear. It says, quote, it is agreed that the Coeur d'Alene reservation shall be held forever as Indian land and as homes for the Coeur d'Alene Indians. And then skipping down a few lines, and no part of said reservation shall ever be sold, occupied, open to white settlement or otherwise disposed of without the consent of the Indians residing on said reservation.

QUESTION: And that was ratified in 1891 after Idaho was already a State.

MR. FREDERICK: That's correct, Justice Scalia, but --

QUESTION: So I mean, that's a lovely agreement but it's not an agreement by Congress.

MR. FREDERICK: Justice Scalia, in the Alaska case the executive had set apart certain lands for a wildlife refuge which had not been finalized prior to Alaska statehood, but this court held that that executive reservation because Congress understood that it included submerged lands and was to meet the purposes behind the reservation defeated the State --

QUESTION: There you had an actual reservation of jurisdiction on the part of the United States that was not -- not present here in the act.

MR. FREDERICK: To the contrary, Mr. Chief Justice. Here the 1873 executive order set apart the reservation.

QUESTION: I mean in the Statehood Act.

MR. FREDERICK: And in this case the disclaimer clause says until the United States extinguishes title to lands owned or held by Indians, the State of Idaho will disclaim all right and title to that land. The executive order reservation boundaries were well-known well before statehood and --

QUESTION: What do you make the argument that the reference to title doesn't cover this because submerged lands really is an incident of sovereignty, it is jurisdictional rather than proprietary.

MR. FREDERICK: It is proprietary in the sense of ownership, Justice Souter. The fact that the State may have some regulatory interest even over the southern third of the lake under even our theory because under the Mescalero Apache Indian case the State might still have a regulatory role, given a range of factors that would be involved in even if the tribe owns the southern third.

But the important point is that we do know that it included submerged lands because the Post, the Frederick Post patent expressly included river channels which is submerged lands when they drew the Harrison cession in 1894. At first they started it, it meandered to the coast but because the town of Harrison wanted to build docks and wharfs, they redraw the line at a right angle in the middle of the lake so that the town of Harrison could build out that wharfage on to the submerged lands of the lake. So in this case the boundary lines are quite clear that the parties understood submerged lands were at issue and they drew the lines accordingly.

QUESTION: The language in the Statehood Act itself which through cross-reference to the understanding would be taken to have reserved the submerged lands for the Indian tribes.

MR. FREDERICK: No, the language that is the disclaimer clause that we have set out and I can direct the court to that language which we have put in the joint appendix, it's on page -- sorry, that language is on page 371 of the joint appendix and it provides as I have said, but I would point out that at this time Idaho had a number of Indian tribes that were resident there and so it would be unusual for a State and its constitution to single out a particular tribe when there are multiple tribes, when the purpose of this disclaimer clause was to emphasize that the State of Idaho would renounce and forever disclaim all right and title to the unappropriated public lands that were owned by the United States until such title had been extinguished by the United States.

QUESTION: May I just ask this question and be sure I have your theory. I don't see how an Idaho disclaimer can be the ratification by Congress that is necessary here. So you're actually relying on the Statehood Act itself as a congressional act that did the job despite the fact the ninth circuit did not?

MR. FREDERICK: The State -- no, two things, Justice Stevens. Our theory depends upon the court recognizing the executive reservation through statehood which the '89 Act is clear --

QUESTION: But would it be enough if Congress knew all about it but did nothing but perfect and clear -- every Cong -- every congressperson was aware of the executive's view of the reservation, would that have been enough?

MR. FREDERICK: That would have raised an Alaska question and I think that that would have been enough in light of the executive having set forth the boundary. What the Statehood Act does for us is that it shows what Congress intended because Congress specifically adopted the Idaho constitution in the Statehood Act. So that is also an expression of congressional intent that Congress ratified and adopted the Idaho constitution and the Statehood Act which contained the disclaimer.

QUESTION: How does it do it? How -- what's the language that Congress passes that incorporates the provision which you read to me which wasn't from the Congressional resolution but was from the Idaho constitution which Idaho says doesn't mean this now.

MR. FREDERICK: It's in the Idaho admission bill.

QUESTION: What does it say? I mean, is there --

MR. FREDERICK: Well, it says section one, the State of Idaho is hereby declared to be a State and that the constitution which the people of Idaho have formed or themselves be in the same is hereby accepted, ratified, and confirmed. So Congress in section one of the Idaho Admission Act ratified the Idaho constitution which contained the disclaimer clause language.

QUESTION: Mr. Frederick, can I come back to this pollution thing? Part of Lake Coeur d'Alene has, I understand, is badly polluted from mine tailings, some such thing; is that stuff on the portion that's at issue here or is it on another portion?

MR. FREDERICK: It's throughout the lake, although the principal portion of the polluted part is on the northern part of the lake. The southern part at least I'm reliably informed, and this is matter that's outside of the record, is not as polluted, although it is subject to pollution problems and issues.

I would like to just make a couple of points in conclusion and that is the Idaho issue in terms of submerged lands is also implicated by the 1888 railroad statute which Congress passed and that passage which came after the Senate resolution asking about the navigable waters included a right of way that crossed across Lake Coeur d'Alene to a point on the lake itself and requires that the secretary provide compensation to the tribe for that easement and it further provided that no rights for the railroad shall accrue unless and until they obtained the consent of the tribe.

So read together and this court's cases makes very clear two overarching propositions, that these Indian statutes should be read as a series and that doubts should be construed in favor of the tribe suggest that Congress did understand that the submerged lands were at stake, that the tribe had control over those submerged lands and that the United States would not take them without the consent of the tribe. If there are no further questions.

QUESTION: Thank you, Mr. Frederick. Mr. Strack, you have four minutes remaining.

REBUTTAL ARGUMENT OF STEVEN W. STRACK, ESQ.

ON BEHALF OF THE PETITIONER

MR. STRACK: On this question of whether or not there's a difference between beds and navigable waters, I think the court has made that very clear in the Alaska decision where the court looked to purposes that required ownership of the beds themselves; for example, the need to own the bed to preserve the oil deposits.

QUESTION: We've just heard about wharfs, about harvesting potatoes, about grants for the mill, does that indicate the sort of purposes that we thought were important in Alaska?

MR. STRACK: Looking back at the 1889 Act I don't think any of those purposes are evident on the face of the 1889 Act. If there was a purpose and the only purpose they have identified is fishing, and that itself does not require ownership of the beds of the navigable waters themselves unless they're fishing methods for some reason required ownership of the bed like a fishing weir, but we don't see any evidence that they were doing that in 1889.

So again I think we need to look at the purposes here and see whether or not those require ownership of navigable waters, ownership of the beds of navigable waters as opposed to the waters themselves.

I'd like to go back too to the question practical effect because I think it obviously is a concern here. And I think it's important to note that all of the lands along the shore of the lake are owned by non-Indians and that's been true since 1910 when the reservation was allotted.

Those lands, those people have riparian rights which they look to the State to protect and define. Many of those people have encroachments on the lake and that's where our ownership of the beds comes into play because we regulate those encroachments so that they do not go out far enough to impair navigation and other uses of the lake.

So all of these people along the lake, now their riparian rights are called into question because the State no longer owns the beds of the lake according to the decree and so we don't know what the effect of that would be.

On the issue of pollution it works both ways, so the tribe has an interest in protecting the lake from pollution and the State has an equal interest, if not more so, because we own the remainder of the lake, and when you split a system like this in two it becomes very hard to regulate that in a consistent manner. For example --

QUESTION: As far as encroachments on the lake, doesn't the Corps of Engineers have authority no matter whether the tribe owns the submerged lands or the State of Idaho? Doesn't the Corps get to say what can encroach out in the navigable water?

MR. STRACK: Justice O'Connor, for the most part the Corps is not involved in these kinds of encroachments unless there's dredging and filling.

QUESTION: Do you dispute the fact that the Corps does have jurisdiction to determine what encroachments are authorized in navigable water?

MR. STRACK: Where there's a fail interest involved, Justice O'Connor they certainly could come in and preempt, but it's my experience that we regulate all those encroachments and I'm not aware of the Corps ever being involved in those kinds of decisions.

QUESTION: If the State perhaps regulates more stringently then the Corps would care to, that's quite possible.

MR. STRACK: That is quite possible because of the statute that we have in place protecting the lake as a public resource for recreation and other public uses.

And so when we have a split system like this, especially on issues such as fisheries, if the tribe was to introduce new species of fish that was not genetically compatible with the fisheries that we have in the remainder of the lake, we could have some real problems there. So there's tremendous practical effects that result not only from tribal ownership but tribal ownership of a small portion of the greater lake.

On the issue of -- Mr. Givens mentioned the acreage that included in the report, the acreage that included navigable waters but it's also important to look at the acreage of the cession that was reported. According to the United States' exit report at page 237 the acreage that was ceded in 1889 was 243,000 acres and that included 37,000 acres of the lake. But the House report 1109 reported that acreage as 185,000 acres. That's found at page 315 of the joint appendix. So obviously Congress did not view this cession as including the lake bed itself. They did not view themselves as having purchased that from the lake.

QUESTION: I SEE.

Chief Justice REHNQUIST: Thank you, Mr. Strack. The case is submitted.

(Whereupon, at 11:03 a.m., the case in the above-entitled matter was submitted.)