No. 00-189 

In the Supreme Court of the United States 

STATE OF IDAHO, PETITIONER 

v. 

UNITED STATES OF AMERICA, ET AL. 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES IN OPPOSITION 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

LOIS J. SCHIFFER 

Assistant Attorney General 

JAMES C. KILBOURNE 
KATHERINE J. BARTON 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

The United States created the Coeur d’Alene Indian 
Reservation through an Executive Order that included 
a portion of the bed of Coeur d’Alene Lake and the St. 
Joe River as part of the Reservation. The district court 
found that, at the time of Idaho’s admission to the 
Union, Congress clearly manifested its intent, through 
legislation and other actions, that the Reservation 
included submerged lands. The question presented is 
whether the court of appeals erred in affirming the 
district court’s conclusion that Congress’s actions es- 
tablished its intent, when Idaho was admitted to the 
Union, to defeat the State’s title to those submerged 
lands. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statement ........................................................................................ 1 

Argument ........................................................................................ 14 

Conclusion ....................................................................................... 23 

TABLE OF AUTHORITIES 

Cases: 

Alaska Pac. Fisheries v. United States, 248 U.S. 

78 (1918) ................................................................................... 

21 

Bowman v. McGoldrick Lumber Co., 219 P. 1063 

(Idaho 1923) ............................................................................ 

17 

Choctaw Nation v. Oklahoma 397 U.S. 620 (1970) ........ 

18-19 

Erickson v. State, 970 P.2d 1 (Idaho 1998) ........................ 

17 

Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997) ........ 

9, 10 

Kootenai Envt’l Alliance, Inc. v. Panhandle Yacht 

Club, Inc., 671 P.2d 1085 (Idaho 1983) .............................. 

17 

Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803) ....... 

91 

Montana v. United States, 450 U.S. 544 (1981) ................ 

2 

United States v. Alaska, 521 U.S. 1 (1997) ............. 

2, 11, 12, 

15, 20, 21 
United States v. California, 332 U.S. 19 (1947) ............... 

19 

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

(1926) ......................................................................... 

2, 14, 19, 20 

United States v. Idaho, No. CV 94-328-N-EJL 

(D. Idaho Oct. 19, 1998) ......................................................... 

11 

Utah Div. of State Lands v. United States, 482 U.S. 

193 (1987) ................................................................................. 

2, 18 

West v. Smith, 511 P.2d 1326 (Idaho 1973) .................... 

17, 18 

Constitutions, statutes and rule: 

U.S. Const.: 

Art. IV, § 3, Cl. 2 (Property Clause) .................................. 

2 

Amend. XI .............................................................................. 10 

(III) 

IV 

Constitution, statutes and rule—Continued: 
Page 

Idaho Const. Art. XXI, § 19 .................................................... 

22 

Act of May 30, 1888, ch. 336, 25 Stat. 160 ............................. 

7 

Act of Mar. 2, 1889, ch. 412, 25 Stat. 1002..................... 8, 14, 20, 22 

Act of July 3, 1890, ch. 656, 26 Stat. 215 ............................... 

9 

Act of Mar. 3, 1891, ch. 543, 26 Stat. 989 ............................... 

9 

26 Stat. 1027-1032 .................................................................. 

9 

Sup. Ct. R. 10 ............................................................................. 

16 

Miscellaneous: 

21 Cong. Rec. (1890): 

p. 2775 .................................................................................... 

9 

pp. 5769-5770 .......................................................................... 
9 

H.R. 7703, 51st Cong., 1st Sess. (1890) ................................. 
9 

H.R. Rep. No. 1109, 51st Cong., 1st Sess. (1890) ................ 
9 

S. 2828, 51st Cong., 1st Sess. (1890) ...................................... 9 

In the Supreme Court of the United States 

No. 00-189 

STATE OF IDAHO, PETITIONER 

v. 

UNITED STATES OF AMERICA, ET AL. 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES IN OPPOSITION 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1-30) is 
reported at 210 F.3d 1067. The opinion of the district 
court (Pet. App. 31-86) is reported at 95 F. Supp. 2d 
1094. 

JURISDICTION 

The judgment of the court of appeals was entered on 
May 2, 2000. The petition for a writ of certiorari was 
filed on July 25, 2000. The jurisdiction of this Court is 
invoked under 28 U.S.C. 1254(1). 

STATEMENT 

The United States brought this action to quiet title to 
submerged lands for the beneficial use of the Coeur 
d’Alene Indian Tribe. The disputed lands are located in 

(1) 

2 

northern Idaho within the exterior boundaries of the 
Coeur d’Alene Indian Reservation and consist of ap- 
proximately the southern third of Coeur d’Alene Lake 
and a portion of the St. Joe River. The United States 
District Court for the District of Idaho held that the 
United States owns those lands for the benefit of the 
Tribe, Pet. App. 31-86, and the court of appeals unani- 
mously affirmed the district court’s judgment, id. at 1- 

30. 

1. Under the Property Clause of the United States 
Constitution, Congress has plenary power “to make all 
needful Rules and Regulations respecting the Territory 
or other Property belonging to the United States.” 
U.S. Const. Art. IV, § 3, Cl. 2. Congress’s power ex- 
tends to submerged lands beneath navigable waters, 
which have long been viewed as having special sover- 
eign attributes. See United States v. Alaska, 521 U.S. 
1, 33-34 (1997); Utah Div. of State Lands v. United 
States, 482 U.S. 193, 195 (1987). “As a general principle, 
the Federal Government holds such lands in trust for 
future States, to be granted to such States when they 
enter the Union and assume sovereignty on an ‘equal 
footing’ with the established States.” Montana v. 
United States, 450 U.S. 544, 551 (1981). The United 
States may, however, deprive a future State of title to 
submerged lands by reserving those lands for an 
appropriate public purpose or by granting them to 
private parties. See Alaska, 521 U.S. at 33-34. 
Nevertheless, “disposals by the United States during 
the territorial period are not lightly to be inferred, and 
should not be regarded as intended unless the intention 
was definitely declared or otherwise made very plain.” 
United States v. Holt State Bank, 270 U.S. 49, 55 (1926). 

2. The district court made extensive findings re- 
specting the lands at issue here. See Pet. App. 31-86. 

3 

As that court explained, the Coeur d’Alene Tribe once 
inhabited more than 3.5 million acres in northern Idaho 
and northeastern Washington, including the lands 
adjacent to Coeur d’Alene Lake and two associated 
waterways, the St. Joe River and the Spokane River. 
Id. at 32, 43. The Tribe depended on those water bodies 
for food, trade, travel, and cultural practices. Id. at 43- 

48. Tribal members ate trout and whitefish year-round, 
collected mussels and clams, traded dried fish, relied on 
the lake and associated rivers to facilitate hunting, 
gathered plants growing in the wetlands and marshes 
of these waterways, and used the watercourses as 
primary highways for travel, trade, and communication. 
Id. at 44. The lake and rivers were tied to the Tribe’s 
“recreational pursuits, religious ceremonies and burial 
practices.” Id. at 45. By the mid-1800s, through the 
influence of missionaries, the Tribe’s members had be- 
gun to establish small garden plots, but they continued 
to depend on the lake and rivers for fish, waterfowl, and 
plants. Id. at 46, 49. 

The arrival of non-Indian settlers in the region led to 
conflicts. See Pet. App. 49-50. On June 14, 1867, Presi- 
dent Andrew Johnson issued an Executive Order estab- 
lishing a reservation for the Tribe lying southwest of 
Coeur d’Alene Lake and including only a sliver of the 
lake. Id. at 32-33, 50. The Tribe initially was unaware 
of the federal government’s unilateral action. When the 
Tribe learned that the United States had created a 
reservation, the Tribe expressed dissatisfaction with 
the boundaries and refused to accept it. Id. at 50. In 
1871 and 1872, the Tribe sent petitions to the Commis- 
sioner of Indian Affairs describing certain areas that 
the Tribe considered essential for a reservation. In the 
1872 petition, the Tribe made clear that it requested, in 
addition to 20 square miles identified in the 1871 

4 

petition, “two valleys, the S. Josephs (today called the 
St. Joe), from the junction of S. and N. forks, and the 
Coeur d’Alene from the Mission inclusively.” Id. at 50- 

51. The Tribe explained that the valleys “have been 
from old the habitual residence of most of us” and that, 
although the Tribe was gaining experience at farming, 
“[w]e think it hard to leave at once old habits to 
embrace new ones: for a while yet we need have some 
hunting and fishing.” Id. at 51. A government Indian 
agent noted, in his 1871 report, that the Tribe’s mem- 
bers “subsist principally by hunting and fishing.” Id. at 

52. Similarly, a government official warned two years 
later that “there will in my opinion be trouble” if the 
Tribe were excluded from their traditional fisheries. 
Ibid. 

In 1873, the Commissioner of Indian Affairs directed 
a commission to visit non-treaty Tribes in Idaho, includ- 
ing the Coeur d’Alene Tribe, to induce them “to aban- 
don their roaming habits and consent to confine them- 
selves within the limits of such reservation or reserva- 
tions as may be designated for their occupancy.” Pet. 
App. 33, 54. That year, the commission reached an 
agreement with the Coeur d’Alene Tribe that called for 
a reservation of approximately 598,000 acres and 
provided for compensation for the relinquishment of all 
claims to the remainder of the Tribe’s aboriginal lands. 
Id. at 33. The reservation included, in addition to the 
area set aside by the 1867 Executive Order, an ex- 
panded upland area, the St. Joe and Coeur d’Alene 
Rivers, and all but a small portion of Coeur d’Alene 
Lake. Id. at 33-35, 55-56. The agreement also guaran- 
teed “that the water[s] running into said reservation 
shall not be turned from their natural channel where 
they enter said reservation.” Id. at 55. The agreement 
required congressional approval to become binding on 

5 

the parties. Id. at 33-34, 56. The Commissioner of 
Indian Affairs recommended that the President set 
apart the Reservation by Executive Order pending con- 
gressional action. Id. at 34, 57. On November 8, 1873, 
President Ulysses S. Grant established, by Executive 
Order, the Coeur d’Alene Indian Reservation with 
boundaries identical to those in the agreement. Ibid. 

In 1883, the federal government surveyed the 
boundaries of the Reservation. Pet. App. 35, 57. The 
government instructed the surveyor to run the north- 
ern boundary across Coeur d’Alene Lake, excluding a 
portion of the lake’s northern end from the Reserva- 
tion. Id. at 57. Surveying a boundary across a naviga- 
ble waterway “was contrary to the usual practice of 
meandering a survey line along the mean high water 
mark.” Ibid. According to the survey, the Reservation 
encompassed a total area of 598,499.85 acres, “a calcula- 
tion that included submerged lands under the Lake and 
rivers within the boundaries of the reservation.” Id. at 
57-58. 

In 1885, the Tribe submitted a petition to the federal 
government requesting confirmation of the Reservation 
and payment for the lands not reserved to them. Pet. 
App. 68. In response, Congress authorized the Secre- 
tary of the Interior to negotiate with the Tribe “for the 
cession of their lands outside the limits of the present 
Coeur d’Alene reservation.” Id. at 35, 68. As a result of 
those negotiations, the Tribe agreed in 1887 to cede its 
aboriginal lands “except the portion of land within the 
boundaries of their present reservation in the Territory 
of Idaho, known as the Coeur d’Alene Reservation.” 
Ibid. The federal government promised, in exchange, 
that the Coeur d’Alene Reservation “shall be held for- 
ever as Indian land and as homes of the Coeur d’Alene 
Indians.” Id. at 68-69. The 1887 agreement specified 

6 

that it was not binding on either party until ratified by 
Congress. Id. at 35, 69. 

Meanwhile, the influx of non-Indians continued to 
encroach on tribal lands, including the associated water- 
ways. Pet. App. 69. The government allowed steam- 
boats to use Coeur d’Alene Lake, but the government 
treated the portions of the lake lying within the Res- 
ervation as Indian country and subjected the steam- 
boats to the Trade and Intercourse Act, which prohib- 
ited introduction of liquor into Indian country. Id. at 69 
& n.17. Non-Indians who were discovered making 
recreational use of the lake and rivers within the 
reservation boundaries were ejected as trespassers. Id. 
at 70. Consequently, pressure grew to make a portion 
of the lake and adjacent rivers available to non-Indian 
use. Ibid. 

On January 25, 1888, the Senate passed a resolution 
observing that the Reservation is alleged to include 
“Lake Coeur d’Alene, all the navigable waters of Coeur 
d’Alene River, and about 20 miles of the navigable part 
of St. Joseph River, and part of St. Mary’s, a navigable 
tributary of the Saint Joseph,” except for about 3.5 
miles of shoreline at the north end of the lake. Pet. 
App. 71. The resolution directed the Secretary of the 
Interior to “inform the Senate as to the extent of the 
present area and boundaries of the Coeur d’Alene 
Indian Reservation,” including whether it included the 
navigable waters named in the resolution, and whether 
it would be advisable to release lands valuable for 
mineral entry as well as “any of the navigable waters 
aforesaid” from the limit of the reservation. Id. at 72. 

On February 7, 1888, the Commissioner of Indian 
Affairs responded on behalf of the Secretary of the 
Interior, reporting to Congress that “the reservation 
appears to embrace all the navigable waters of Lake 

7 

Coeur d’Alene, except a very small fragment cut off by 
the north boundary of the reservation which runs ‘in 
a direct line’ from the Coeur d’Alene Mission to the 
head of Spokane River.” Pet. App. 72. The Commis- 
sioner recommended “that changes could be made in 
the boundaries for the release of some or all of the 
navigable waters” of the Reservation without detri- 
ment to the Indians. Id. at 73. The Commissioner 
anticipated that, if the 1887 agreement with the Tribe 
was ratified, it would not be difficult to negotiate with 
the Tribe “for the cession of such portions of their 
reservation as they do not need, including all or a 
portion of the navigable waters, upon fair and very 
reasonable terms.” Ibid. The Commissioner attached 
to the report a map of the Reservation as established 
by the 1873 Executive Order that showed the lake and 
rivers in relation to the reservation boundaries and 
described the reservation as including 598,499.85 acres, 
thus necessarily including the submerged lands. Ibid. 
Also in 1888, Congress enacted a statute provisionally 
granting the Idaho and Washington Railroad Company 
a right of way through the Coeur d’Alene Reservation 
that extended 75 feet into the lake and required the 
consent of and payment of compensation to the Tribe to 
make the right of way effective. Act of May 30, 1888, 
ch. 336, 25 Stat. 160. See Pet. App. 21 n.13. 

During that same year, Congress debated whether to 
ratify the 1887 agreement, but postponed a final deci- 
sion out of a desire “to acquire” an additional area of the 
Reservation. Pet. App. 74. The reservation lands of 
interest included, among other things, “a magnificent 
sheet of water, the Coeur d’Alene Lake and its chief 
tributary, to wit, the Coeur d’Alene River.” Ibid. Con- 
gress accordingly initiated steps to obtain, by purchase, 
“the northern end of [the 1873] reservation.” Ibid. On 

8 

March 2, 1889, Congress passed the annual Indian Ap- 
propriations Act, which included a provision authoriz- 
ing the Secretary of the Interior 

to negotiate with the Coeur d’Alene tribe of Indians 
for the purchase and release by said tribe of such 
portions of its reservation not agricultural and 
valuable chiefly for minerals and timber as such 
tribe shall consent to sell. 

Ibid. (quoting Act of Mar. 2, 1889, ch. 412, 25 Stat. 
1002). 

In negotiations conducted pursuant to this congres- 
sional authorization, the government’s chief spokes- 
person, General Simpson, initially told tribal leader 
Chief Seltice that “the Lake belongs to you as well as to 
the whites—to all, every one who wants to travel on it.” 
Pet. App. 75. Chief Seltice objected to “[General Simp- 
son’s] idea about the boundary.” Ibid. General Simp- 
son then suggested a revised boundary line that ran 
east from the Idaho-Washington territorial boundary to 
the western shore of the lake, ran south along the lake 
to a point about two-thirds from the northern end of the 
lake, and then cut directly east across the lake. Ibid. 
General Simpson explained that the government would 
purchase the northern end of the 1873 Reservation and 
leave the Tribe the “St. Joseph River and the lower 
part of the lake and all the meadow and agricultural 
land along the St. Joseph River.” Ibid. That under- 
standing became the basis for a final agreement that 
was signed on September 9, 1889. Id. at 75-76. The 
Secretary of the Interior reported to the House of Rep- 
resentatives that, under the 1889 agreement, the Tribe 
would sell lands that “embrac[ed] by far the greater 
portion of the navigable waters of the reservation.” Id. 
at 76. 

9 

In March 1890, the House Committee on Indian 
Affairs reported a bill (H.R. 7703, 51st Cong., 1st Sess.) 
to approve the agreements with the Coeur d’Alene 
Tribe, see 21 Cong. Rec. 2775 (1890); H.R. Rep. No. 
1109, 51st Cong., 1st Sess., and a parallel bill (S. 2828, 
51st Cong., 1st Sess.) passed the Senate on June 7, 1890, 
see 21 Cong. Rec. 5769-5770 (1890). 

Shortly thereafter, 
on July 3, 1890, Congress admitted Idaho to the Union. 
Pet. App. 76; Act of July 3, 1890, ch. 656, 26 Stat. 215. 
The Idaho Statehood Act admitted Idaho “on an equal 
footing with the original States.” Ibid. In the 
Statehood Act, Congress “accepted, ratified, and 
confirmed” the constitution of Idaho, which had been 
approved by Idaho voters in November 1889. Ibid. The 
constitution contained a clause that specifically re- 
nounced the State’s “right and title to the unappropri- 
ated public lands” and lands “owned or held by any 
Indians or Indian tribes,” and it recognized that “said 
Indian lands shall remain under the absolute jurisdic- 
tion and control of the congress of the United States.” 
Pet. App. 76-77, 82. Later in that same Session, Con- 
gress ratified the 1887 and 1889 agreements with the 
Coeur d’Alene Tribe. Id. at 77; see Act of Mar. 3, 1891, 
ch. 543, 26 Stat. 989, 1027-1032.1 

1 Congress later approved the removal from the Tribe’s Res- 
ervation of two additional areas containing navigable waters. In 
1894, Congress ratified the Harrison cession, which encompassed a 
one-mile strip of land that included a corner of Coeur d’Alene 
Lake. Pet. App. 26. In 1908, Congress withdrew a portion of the 
Reservation encompassing three smaller lakes and, in 1911, for- 
mally conveyed those lands by patent to the State. Id. at 27. Since 
that time, approximately 80% of the Reservation passed out of 
Indian ownership, and today the Tribe or tribal members own 
approximately 69,000 acres of the reservation. See Idaho v. Coeur 
d’Alene Tribe, 521 U.S. 261, 264 (1997). 

10 

3. The United States, acting in its sovereign capac- 
ity and as trustee for the Tribe, initiated this action 
against the State of Idaho seeking to quiet title to the 
submerged lands within the exterior boundaries of the 
Tribe’s reservation for the benefit of the Tribe and its 
members. See Idaho v. Coeur d’Alene Tribe, 521 U.S. 
261, 266 (1997).2 In addition to its title claim, the 
United States sought a declaratory judgment to 
establish the Tribe’s right to exclusive use, occupancy, 
and quiet enjoyment of the submerged lands. The 
United States also sought a permanent injunction 
prohibiting the State from asserting any right, title or 
other interest to such lands. Pet. App. 31-32. The 
Tribe intervened, asserting its interests based on alter- 
native legal theories, which are not at issue in the 
petition for writ of certiorari. Id. at 32. The State of 
Idaho counterclaimed, requesting that title to the sub- 
merged lands be quieted in favor of Idaho. Ibid. 

Based on the historic facts set out above, the district 
court concluded that the United States had “overcome 
the strong presumption of State ownership” and dem- 
onstrated that the United States retained the sub- 
merged lands for the benefit of the Tribe. Pet. App. 83. 
In summarizing its conclusions, the court explained that 
“the trial evidence demonstrates that the Federal 
Government clearly intended to include the submerged 
lands within the 1873 reservation.” Ibid. The court also 
found that Congress was “on notice that submerged 
lands had been included in the 1873 reservation” and 
that Congress’s direction to the Secretary of the 

2 The Coeur d’Alene Tribe previously brought suit against 
Idaho seeking to quiet title to the whole of Coeur d’Alene Lake. 
See Idaho, 521 U.S. at 264-265. This Court concluded that the 
Eleventh Amendment barred the Tribe’s claim. See id. at 281-288. 

11 

Interior to negotiate with the Tribe for the release of 
the submerged lands “reflected Congress’s intent to 
ratify the inclusion of submerged lands within the 
reservation and to defeat the State’s title to those 
lands.” Ibid. 

In light of those facts, the district court concluded 
that Congress’s approval of the Idaho Statehood Act, 
including the disclaimer clause of the Idaho Constitu- 
tion, “confirmed that the Federal Government retained 
title to the submerged lands for the benefit of the 
Tribe.” Pet. App. 84. The court entered an order quiet- 
ing title to the bed and banks of the Coeur d’Alene 
Lake and the St. Joe River lying within the current 
boundaries of the Coeur d’Alene Indian Reservation. 
Id. at 85-86. The district court permanently enjoined 
the State of Idaho from asserting any right, title or 
other interest in the submerged lands at issue. Ibid. 
The court did not address the Tribe’s alternate legal 
theories. Id. at 84 n.27. The court also denied the State 
of Idaho’s counterclaim. Id. at 86.3 

4. Idaho appealed, and the court of appeals affirmed 
the district court’s judgment. Pet. App. 1-30. The 
court of appeals explicitly applied the two-pronged test 
set forth by this Court in United States v. Alaska, 
supra, for determining whether the State was entitled 
to the submerged lands at issue. That court stated: 

3 The district court denied Idaho’s motion for stay and injunc- 
tion pending appeal. See United States v. Idaho, No. CV 94- 328-N- 
EJL (D. Idaho Oct. 19, 1998). The court rejected the State’s asser- 
tion that management of the lower part of the lake by the United 
States or the Tribe would adversely affect the State and the public 
interest. Rather, the court concluded that “the record reflects that 
currently the Tribe intends to honor all permits, licenses or uses 
issued or authorized by the State or its political subdivisions.” 
Slip. op. 4. 

12 

“As framed by the Supreme Court, the question before 
us is ‘whether the United States intended to include 
submerged lands within the [Reservation] and to defeat 
[Idaho’s] title to those lands.’ ” Pet. App. 12 (quoting 
Alaska, 521 U.S. at 36). See also id. at 13-27. 

Because Idaho conceded on appeal that the United 
States intended to include the submerged lands in the 
Reservation established by the 1873 Executive Order, 
the court focused on the second prong of the test. Pet. 
App. 13. Citing Alaska, the court stated that the 
second prong required an affirmative showing of con- 
gressional (rather than executive) intent to deprive 
Idaho of title to the lands in question and that such 
intention must be “definitely declared or otherwise 
made very plain.” Id. at 12. In accordance with this 
Court’s decision in Alaska, the court of appeals 
considered several factors that bore on Congress’s 
understanding of the status of submerged lands within 
the Coeur d’Alene Reservation and on Congress’s 
corresponding actions at the time of Idaho’s admission 
to the Union. Id. at 15 & n.9. 

First, the court of appeals recognized that the 
boundaries of the Reservation, as defined by both the 
1873 Executive Order and the 1889 agreement, were 
drawn across the lake, with the 1889 agreement sub- 
stantially curtailing the included acreage. Pet. App. 16. 
The practice of drawing the boundary across the lake, 
rather than along the shoreline, manifested the under- 
standing that the submerged lands within the reserva- 
tion boundary are part of the reservation. Id. at 16-17. 
The Tribe had insisted on including those submerged 
lands as part of the 1873 Reservation, and the govern- 
ment had redrawn the boundary in 1889 to “establish[] 
the Tribe’s right to the Lake and rivers,” a fact that 
was reflected in the maps submitted to Congress. Id. at 

13 

16. The court of appeals accordingly concluded that 
Congress was clearly on notice and must have under- 
stood that the 1873 Executive Order creating the 
Reservation and the 1889 agreement diminishing its 
size necessarily deprived a future State of title to sub- 
merged lands remaining within the Reservation. Id. at 

17. 
Second, the court of appeals observed that the 
United States had created the Coeur d’Alene Reser- 
vation to provide a means for tribal subsistence and 
that “the purpose of the reservation would have been 
defeated had it not included submerged lands.” Pet. 
App. 17. The historical record showed that Congress 
had authorized the United States to negotiate a reser- 
vation for the Tribe, and the Tribe agreed to the 1873 
Reservation, because the Tribe was dependent on the 
lake’s fisheries. Id. at 18. The Tribe refused to settle 
on lands that did not include the lake and associated 
waterways. Ibid. Similarly, the court found that, when 
Congress directed the United States to renegotiate the 
Reservation boundaries, the United States reached 
agreement by ensuring that the Tribe retained benefi- 
cial ownership of the southern third of the lake and a 
portion of the St. Joe River. Ibid. In this case, as in 
Alaska, the fact that the United States had a distinct 
purpose for including submerged lands within the 
Reservation bears on the question of congressional 
intent, because Congress’s retention of the submerged 
lands is necessary to fufill that purpose. See ibid. 
Third, the court of appeals explained that Congress 
took a series of actions that “demonstrates acknowledg- 
ment, recognition, and acceptance of the boundaries of 
the 1873 reservation, which Congress knew the 
Executive had construed to include submerged lands, 
thereby showing the requisite intent to defeat state 

14 

title.” Pet. App. 19-20. Congress’s action in authorizing 
the 1889 negotiations to recover lands held by the Tribe 
manifested Congress’s intent to honor the 1873 agree- 
ment and Executive Order. Id. at 21. “Although Con- 
gress had the opportunity and the power to repudiate 
the executive reservation and the 1887 agreement, it 
did not do so.” Instead, Congress authorized negotia- 
tions “for the purchase and release by said tribe of such 
portions of its reservation . . . as such tribe shall 
consent to sell.” 

Id. at 22 (emphasis and ellipses 
supplied by the court) (quoting Act of Mar. 2, 1889, ch. 
412, 25 Stat. 1002). The court concluded that Con- 
gress’s affirmative act of directing open-ended negotia- 
tions to purchase whatever non-agricultural land, 
particularly submerged lands, the Tribe was willing to 
cede “presupposes that beneficial ownership of all land 
within the 1873 reservation, including submerged lands, 
had already passed to the Tribe.” Id. at 23. Thus, the 
court concluded that Congress had “made very plain” 
its understanding and intent that the future State of 
Idaho would not have title to those reservation lands. 
Ibid. (quoting Holt State Bank, 270 U.S. at 555). 
Congress’s ratification of Idaho’s constitution, by which 
Idaho disclaimed lands “held by” Indian Tribes, 
provided further support for the court’s conclusion. 
Finally, the court concluded that Congress’s approval of 
Idaho’s disclaimer, coupled with Congress’s actions 
recognizing the Tribe’s title to the submerged lands at 
issue here, established that Congress intended to defeat 
the State’s title to those lands. Id. at 24-25. 

ARGUMENT 

The court of appeals correctly affirmed the district 
court’s judgment that a portion of the bed of Coeur 
d’Alene Lake and the St. Joe River are part of the 

15 

Coeur d’Alene Indian Reservation. The lower courts 
properly identified and applied familiar legal principles 
that this Court recently reaffirmed in United States v. 
Alaska, 521 U.S. 1 (1997). This case does not involve 
any novel or undecided legal question, and it does not 
give rise to any conflict with any decision of this Court, 
another court of appeals, or the Idaho Supreme Court. 
Rather, the court of appeals’ affirmance correctly re- 
solved a fact-specific dispute over the application of 
settled law to a particular tract of land. The petition for 
a writ of certiorari accordingly should be denied. 

1. As the court of appeals recognized, this Court has 
unequivocally established the legal principles that con- 
trol this case. “In Alaska, the Supreme Court reaf- 
firmed the two-prong test set forth in Montana and 
Utah for determining whether a state’s presumptive 
equal footing title to submerged lands within its 
borders has been defeated.” Pet. App. 12. The court of 
appeals properly examined “ ‘whether the United 
States intended to include submerged lands within the 
[Reservation] and to defeat [Idaho’s] title to those 
lands.’ ” Ibid. (quoting Alaska, 521 U.S. at 36). Idaho 
conceded below that “the 1873 executive order was 
intended to convey or reserve title to submerged 
lands.” Id. at 13. Hence, the only issue before the court 
of appeals was whether “Congress’s actions prior to 
statehood clearly indicate its acknowledgment, express 
recognition, and acceptance of the executive reser- 
vation, thereby establishing its intent to defeat the 
State’s title.” Ibid. The court of appeals concluded, 
based on a careful examination of the historical record, 
that Congress intended to deprive Idaho of title to a 
portion of the lake and river beds. Id. at 13-27. 

Idaho argues that “the court of appeals’ misapplica- 
tion of the holdings in Alaska creates a series of con- 

16 

flicts that should be resolved through the granting of 
the petition for certiorari.” Pet. 19. Idaho is mistaken. 
As a preliminary matter, Idaho is wrong in its view that 
this Court should review a court of appeals’ supposed 
“misapplication” of settled law to the facts of a particu- 
lar case. This Court does not grant review merely to 
examine the asserted “misapplication of a properly 
stated rule of law.” Sup. Ct. R. 10. Furthermore, what 
Idaho describes as “conflicts” (Pet. 19) are merely 
Idaho’s disagreements with the lower courts’ factbound 
conclusions respecting the historical record in this case. 
At bottom, Idaho simply invites this Court to assume 
the court of appeals’ role and engage in error review. 
There is no reason for the Court to do so. The 
unanimous court of appeals affirmed the district court’s 
“lengthy and meticulous decision” (Pet. App. 2-3) on a 
fact-dependent issue that affects a single tract of land 
within a particular judicial district, and Idaho did not 
request rehearing or rehearing en banc on any issue in 
the case. Idaho’s arguments in support of its petition 
are unpersuasive. 

2. Idaho first contends (Pet. 14-16) that the decision 
of the court of appeals conflicts with decisions of the 
Idaho Supreme Court. This contention is without 
merit. None of the cases that Idaho cites addressed the 
question presented below: whether the United States, 
on behalf of the Tribe, retained submerged lands within 
the Coeur d’Alene Indian Reservation at the time it 
admitted Idaho to the Union—or, put another way, 
whether Congress intended to defeat the State’s pre- 
sumptive title to those lands. Indeed, none of those 
cases addressed any federal question at all, much less 
any question of ownership of the submerged lands 
within the Tribe’s Reservation. 

17 

The cases that Idaho identifies involved the rights of 
private landowners near or adjacent to Coeur d’Alene 
Lake. Three of the four cases, by petitioner’s own 
admission, addressed property or portions of the lake 
outside the boundaries of the Tribe’s Reservation. See 
Erickson v. State, 970 P.2d 1 (Idaho 1998); Kootenai 
Envt’l Alliance, Inc. v. Panhandle Yacht Club, Inc., 
671 P.2d 1085 (Idaho 1983); Bowman v. McGoldrick 
Lumber Co., 219 P. 1063 (Idaho 1923). The fourth case 
cited by petitioner, West v. Smith, 511 P.2d 1326 (Idaho 
1973), did address the rights of an owner of property 
within the exterior boundaries of the Reservation. In 
that case, however, the Idaho Supreme Court specifi- 
cally stated that the question of who held title was 
immaterial to its decision, see id. at 1330, 1331, and that 
it was not ruling on questions concerning rights 
associated with the lake bed, see id. at 1334. 

Moreover, to the extent that those cases addressed 
the question of state ownership of the lake bed, they did 
so only in the context of determining whether individ- 
ual riparian landowners had specified rights with 
respect to the lake by virtue of their riparian ownership 
or, in the case of Kootenai Environmental Alliance, the 
extent of the State’s authority to grant a lease under 
the public trust doctrine.4 The decisions did not 

4 Erickson reviewed the trial court’s determination of the 
lake’s high water mark in order to determine whether title to 
certain lands could be quieted to owners of land adjacent to the 
lake. 970 P.2d at 2. Kootenai Environmental Alliance examined 
whether the public trust doctrine precluded the State from grant- 
ing a lease to a private club for certain docking facilities. See 671 
P.2d at 1087. Bowman examined whether the owner of property 
that did not extend to the high water mark of the lake had riparian 
rights to the lake. 219 P. at 1064. West addressed whether a 
houseboat moored to the lakebed could maintain a catwalk 

18 

consider the United States’ or the Tribe’s claims of title 
to the submerged lands themselves in the southern one- 
third of the lake. The state supreme court cases 
accordingly do not give rise to a conflict with the court 
of appeals’ decision in this case. 

3. Idaho next contends (Pet. 16-19) that the decision 
of the court of appeals “presents irreconcilable conflicts 
with decisions of this Court.” The only decision of this 
Court that Idaho cites, however, is Alaska, and the 
court of appeals and the district court each explicitly— 
and correctly—applied that decision to resolve this 
case. See Pet. App. 11-12; id. at 37-38. Moreover, Idaho 
acknowledges that the “conflict” it posits would not 
“normally” provide “fertile ground for review on 
certiorari.” Pet. 17. Idaho nevertheless urges this 
Court to depart from its normal practice because sub- 
merged lands disputes arise most frequently in the 
Ninth Circuit (ibid.) and because this Court’s decision 
in Alaska, which arose out of the Court’s original 
jurisdiction, was “not intended to provide national 
guidance or establish rules of general applicability” 
(Pet. 18). Idaho is wrong in both respects. 

First, submerged lands disputes like the one involved 
here are not limited to the Ninth Circuit. Disputes over 
the federal government’s pre-statehood reservation or 
conveyance of submerged lands may arise in any 
judicial district in which the federal government held 
lands in territorial status. See, e.g., Utah Div. of State 
Lands v. United States, 482 U.S. 193 (1987) (certiorari 
to the Tenth Circuit in a case involving an executive 
designation of a reservoir site located in what is now 
the State of Utah); Choctaw Nation v. Oklahoma, 397 

attached to the shore, adjacent to the plaintiff ’s property, that 
interfered with the plaintiff ’s access to the lake. 511 P.2d at 1328. 

19 

U.S. 620 (1970) (certiorari to the Tenth Circuit in a case 
involving an Indian reservation created by treaty and 
patents and located in what is now the State of 
Oklahoma); United States v. Holt State Bank, 270 U.S. 
49 (certiorari to the Eighth Circuit in a case involving 
an Indian reservation created by treaty and located in 
what is now the State of Minnesota).5 

Second, there is no basis for Idaho’s suggestion that 
cases brought under this Court’s original jurisdiction— 
which have included landmark decisions ranging from 
Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803), to 
United States v. California, 332 U.S. 19 (1947)—fail “to 
provide national guidance or establish rules of general 
applicability.” Pet. 18. The Court’s decisions in original 
actions have equal dignity with decisions rendered on 
certiorari or appeal. Indeed, the Court’s decision in 
Alaska reaffirmed generally applicable legal principles 
that had previously been set out in Utah, Montana, and 
Holt State Bank, and that control this case. As we have 
noted, Idaho simply objects to what it views as “the 
court of appeals’ misapplication” of those principles. 
Pet. 19. Idaho’s objections are not only fact-based chal- 
lenges respecting settled principles, but they are also 
mistaken on the merits. 

a. Idaho contends that the court of appeals mis- 
applied Alaska because that court did not require a 
showing that Congress “affirmatively intend[ed] to 
defeat state title.” Pet. 19-22. Idaho is wrong. The 
court of appeals applied Alaska’s explicit test, which 

5 Idaho also argues that disputes over submerged lands in 
“executive order” reservations occur most frequently in the Ninth 
Circuit. Pet. 17-18. But the Court’s decisions in Alaska, Utah, and 
Montana do not suggest that a different legal standard would 
apply to those reservations. Hence, there is no reason to create a 
special certiorari rule for Executive Order reservations. 

20 

inquires “whether the United States intended to 
include submerged lands within the [reservation] and to 
defeat [the State’s] title to those lands.” Compare 
Alaska, 521 U.S. at 36, with Pet. App. 12 (the congres- 
sional action must manifest “an affirmative intent to 
defeat state title”). As the court of appeals correctly 
explained, “the test is whether Congress clearly in- 
tended to defeat the State’s title to submerged lands.” 
Id. at 21. The facts in this case, as found by the district 
court, satisfy that standard. See id. at 21-25. As the 
court of appeals explained, “Congress was heavily 
involved in deciding the fate of the submerged lands set 
aside for the Tribe’s benefit by executive order. Con- 
gress treated the submerged lands as beneficially 
owned by the Tribe—to the point of authorizing nego- 
tiations for cession of whatever portion of the Tribe’s 
submerged lands it was willing to sell.” Id. at 24-25. 
Congress, through its various legislative actions, includ- 
ing its approval at statehood of Idaho’s constitutional 
disclaimer of Indian lands, made its intentions “very 
plain.” Alaska, 521 U.S. at 34 (quoting Holt State 
Bank, 270 U.S. at 55).6 

6 Idaho suggests that Congress directed negotiations in 1889 
aimed at purchasing submerged lands that the Tribe held under 
the 1873 Executive Order because it wanted “to secure the imme- 
diate release of at least some of the Lake from its status as ‘Indian 
country’ ” before turning the whole lake over to the State in 1890. 
Pet. 21. That theory makes no sense. If Congress believed that 
the Tribe had no right to the lake bed, it would not have authorized 
negotiations aimed at acquiring whatever portion of those lands as 
the Tribe “shall consent to sell.” Act of Mar. 2, 1889, ch. 412, 25 
Stat. 1002. Indeed, Idaho’s theory suggests that Congress was en- 
gaged in blatant trickery. Under Idaho’s view, Congress pur- 
ported to authorize negotiations for the purchase of those sub- 
merged lands that the Tribe would sell, but Congress intended to 
transfer to the State, without payment to the Tribe, whatever 

21 

b. Idaho next contends (Pet. 22-26) that the court of 
appeals misapplied this Court’s teachings with respect 
to the relevance of the purpose of a reservation in 
determining congressional intent. Idaho is plainly 
mistaken. This Court’s decisions recognize that “the 
purpose of a conveyance or reservation is a critical 
factor in determining federal intent.” Alaska, 521 U.S. 
at 39. The Court specifically cited, as an example, its 
ruling in Alaska Pacific Fisheries v. United States, 248 
U.S. 78, 87-89 (1918), that a “reservation of [a] ‘body of 
lands’ in southeastern Alaska for Metlakahtla Indians 
included adjacent waters and submerged lands, because 
fishing was necessary for Indians’ subsistence.” 
Alaska, 521 U.S. at 39. The court of appeals directly 
applied the Alaska decision to the facts presented by 
the Coeur d’Alene Reservation. See Pet. App. 14-15 
(discussing the relevance of a reservation’s purpose). 
The court of appeals noted that, “[a]s the district court 
found, and as the State does not challenge, the Tribe 
was dependent on its fisheries in 1873.” Id. at 17. 
Furthermore, the Tribe’s continued insistence on bene- 
ficial ownership of a portion of the lake and river in 
1889 manifests the Tribe’s continued reliance on those 
water resources and submerged lands at the time of 
Idaho’s admission to the Union in 1890. See id. at 18, 
73, 75. If Congress had believed that the Tribe no 
longer needed those resources at the time of Idaho’s 
admission, Congress would have sought to acquire the 

lands the Tribe decided to retain. There is no basis for inferring 
that Congress had that intention. Rather, the historical record 
shows that Congress understood the 1873 Executive Order to have 
reserved most of the lake bed for the benefit of the Tribe and that 
the future State of Idaho would be entitled to only those portions 
that Congress reacquired through negotiations with the Tribe. 
See Pet. App. 21-23. 

22 

entire lake and river bed, rather than only “such por- 
tions of [the Tribe’s] reservation not agricultural and 
valuable chiefly for minerals and timber as such tribe 
shall consent to sell.” Act of Mar. 2, 1889, ch. 412, 25 
Stat. 1002 (emphasis added). Cf. Pet. 25-26 (quoting the 
Act of March 2, 1889, but omitting the emphasized 
phrase). 

c. Finally, Idaho contends that “[t]he court of ap- 
peals’ decision ignores the fact that Congress purpose- 
fully deferred its ratification of the Reservation until 
after statehood.” Pet. 26-29. Idaho’s factbound chal- 
lenge is both wrong and inconsequential. The court of 
appeals did address that issue. The court recognized 
that, following Idaho’s admission—and Congress’s 
ratification of Idaho’s disclaimer of all lands “owned or 
held by any Indians or Indian tribes,” Idaho Const. Art. 
XXI, § 19—Congress ratified both the 1887 and 1889 
agreements. Pet. App. 8. The court of appeals properly 
accepted the obvious import of Congress’s actions: 
Congress intended to admit Idaho to the Union while 
at the same time honoring the United States’ agree- 
ments with the Coeur d’Alene Tribe. Id. at 23. Con- 
gress could do so only by retaining title to the su- 
merged lands at issue here for the benefit of the Tribe. 
Id. at 81. If Congress had intended to deprive the Tribe 
of ownership of the residual portion of the lake 
bed—and deny the Tribe the benefit of the bargain the 
parties had made—Congress would have refused to 
honor those agreements or would have modified them 
to exclude the lake and river bed. Instead, Congress 
ratified the 1887 and 1889 agreements without any 
modification of the final reservation boundaries set out 
in the later agreement, and thereby confirmed what its 
pre-statehood actions made clear: The United States 

23 

retained a portion of the bed of Coeur d’Alene Lake and 
the St. Joe River for the benefit of the Tribe.7 

CONCLUSION 

The petition for a writ of certiorari should be denied. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

LOIS J. SCHIFFER 

Assistant Attorney General 

JAMES C. KILBOURNE 
KATHERINE J. BARTON 

Attorneys 

NOVEMBER 2000 

7 Indeed, as explained above (see p. 9, supra), by the time Con- 
gress passed the Idaho Statehood Act admitting Idaho to the 
Union in July 1890, the Senate had already passed a bill to ratify 
the 1887 and 1889 agreements with the Coeur d’Alene Tribe, and 
the House Committee on Indian Affairs had already reported a 
parallel bill to the House of Representatives. In doing so, there 
was no suggestion that passage of the Statehood Act would be in 
derogation of the agreements’ retentions of the lake and river bed 
for the benefit of the Tribe. Congress thus obviously viewed its 
approval of the Statehood Act and of the agreements with the 
Tribe as consistent and complementary. The court of appeals 
therefore properly gave effect to the text of the 1889 agreement 
that preserved the southern portion of the lake and the relevant 
portion of the St. Joe River for the Tribe.