# Choctaw Nation v. Oklahoma/Dissent White

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Douglas
* Dissenting Opinion White
United States Supreme Court
397 U.S. 620
Choctaw Nation v. Oklahoma
Argued: March 5, 1970. --- Decided: April 27, 1970
Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice BLACK join, dissenting.
At issue in these cases is the ownership of the lands underlying the Arkansas River from it confluence with the Grand River in Oklahoma downstream to the western border of Arkansas. The Arkansas River is a navigable stream below, but not above, its junction with the Grand River. The contending parties are three Indian tribes on the one hand and the State of Oklahoma on the other. The Cherokees base their claim on a United States patent of 1838 and underlying treaties, the Choctaws and the Chickasaws on an 1842 patent also issued in fulfillment of prior treaty commitments. The State claims under the settled doctrine that a newly admitted State takes title to the beds of all navigable rivers within its borders; the State denies that the prior patents conveyed the river bed. The patent to the Cherokees included property on both sides of the Arkansas River from its confluence with the Grand River downstream to its junction with the Canadian River. From the Canadian River to the Arkansas border, the Arkansas River was the boundary between Cherokee lands on the north side and the Choctaw lands on the south.
According to the Court, the Indians became the owners of all of the river bed from the Grand River to the Arkansas border: the river bed between the Grand River and the Canadian River is Cherokee property because the metes and bounds description of the grant crossed the river without purporting to exclude the river bed; the remaining portion of the river bed is said to be Indian property because by ordinary conveyancing standards the relevant patents and treaties reveal an intent by the United States to convey the river bed to the tribes. I differ with the Court as to both portions of the river bed.
* As far as riparian rights are concenred-and for other purposes too-the policy and applicable laws of the United States have always distinguished between navigable and nonnavigable streams. Section 931 of Title 43 of the United States Code, Rev. Stat. § 2476, which dates from 1796, does so unmistakably:
'All navigable rivers, within the territory occupied by the public lands, shall remain and be deemed public highways; and, in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both.'
The owners of land adjacent to a non-navigable stream own the river bed, but the surveys of public lands stop with the banks of navigable streams; conveyances by the United States of land located on a navigable river carry no interest in the river bed under federal law. St. Paul and Pacific Railroad Co. v. Schurmeir, 7 Wall. 272, 288-289, 19 L.Ed. 74 (1869), made the difference very clear:
'(T)he court does not hesitate to decide, that Congress, in making a distinction between streams navigable and those not navigable intended to provide that the common law rules of riparian ownership should apply to lands bordering on the latter, but that the title to lands bordering on navigable streams should stop at the stream, and that all such streams should be deemed to be, and remain public highways.'
Packer v. Bird, 137 U.S. 661, 672, 11 S.Ct. 210, 212, 213, 34 L.Ed. 819 (1891), is to like effect. Shively v. Bowlby, 152 U.S. 1, 49-50, 14 S.Ct. 548, 566, 38 L.Ed. 331 (1894), re-emphasized that:
'The congress of the United States, in disposing of the public lands, has constantly acted upon the theory that those lands, whether in the interior or on the coast, above high-water mark, may be taken up by actual occupants, in order to encourage the settlement of the country; but that the navigable waters and the soils under them, whether within or above the ebb and flow of the tide, shall be and remain public highways; and, being chiefly valuable for the public purposes of commerce, navigation, and fishery, and for the improvements necessary to secure and promote those purposes, shall not be granted away during the period of territorial government, but, unless in case of some international duty or public exigency, shall be held by the United States in trust for the future states, and shall vest in the several states, when organized and admitted into the Union, with all the powers and prerogatives appertaining to the older states in regard to such waters and soils within their respective jurisdictions; in short, shall not be disposed of piecemeal to individuals, as private property, but shall be held as a whole for the purpose of being ultimately administered and dealt with for the public benefit by the state, after it shall have become a completely organized community.'
The issue in Shively was whether the grantee of lands along a navigable river in Oregon Territory had an interest in the river bed by reason of his federal grant. It was held that he did not.
In 1845, Pollard v. Hagan, 3 How. 212, 11 L.Ed. 565, held that the United States had no power, except where state law permitted, to convey an interest in the bed of a navigable river after the State in which it was located had been admitted to the Union. The Court also implied that because the beds of navigable streams were held in trust for future States, the United States was without power to dispose of the beds prior to statehood. This implication was repudiated by statements in such later cases as Goodtitle v. Kibbe, 9 How. 471, 478, 13 L.Ed. 220 (1850), and Shively v. Bowlby, supra, 152 U.S., at 47-48, 14 S.Ct., at 565 566. In the words of the latter:
'We cannot doubt, therefore, that congress has the power to make grants of lands below high-water mark of navigable waters in any territory of the United States, whenever it becomes necessary to do so in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several states, or to carry out other public purposes appropriate to the objects for which the United States hold the territory.' 152 U.S., at 48, 14 S.Ct., at 566.
Nevertheless, whether the United States had only a retricted power to convey interests in navigable river beds prior to statehood was deemed an open question in Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 85-86, 43 S.Ct. 60, 63, 64, 67 L.Ed. 140 (1922); decision on that question was reserved as was decision on the issue whether, if the power to convey was limited to certain purposes, provision of a home for an Indian tribe came within one of these permitted purposes. Three years later, United States v. Holt State Bank, 270 U.S. 49, 55, 46 S.Ct. 197, 199, 70 L.Ed. 465 (1926), again recognized that 'the United States early adopted and constantly has adhered to the policy of regarding lands under navigable waters in acquired territory, while under its sole dominion, as held for the ultimate benefit of future states, and so has refrained from making any disposal thereof, save in exceptional instances when impelled to particular disposals by some international duty or public exigency.'
The ownership of lands under navigable waters was deemed an incident of sovereignty, Martin v. Waddell, 16 Pet. 367, 409-411, 10 L.Ed. 997 (1842), and whatever the power of the Federal Government to convey such lands lying in its unorganized territories, Congress never undertook to do so by general laws. Shively v. Bowlby, supra, 152 U.S., at 48-50, 14 S.Ct., at 566 567. Conveyance of a river bed would not be implied and would not be found unless the grant 'in terms embraces the land under the waters of the stream,' Packer v. Bird, supra, 137 U.S., at 672, 11 S.Ct., at 213; Shively v. Bowlby, supra, 152 U.S., at 47-48, 14 S.Ct., at 565-566. Such 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, supra, 270 U.S., at 55, 46 S.Ct., at 199.
Against this doctrinal background, for either the Cherokees, the Choctaws, or the Chickasaws to prevail, there must be found in their grant a 'very plain' basis for concluding that the United States intended to convey an interest in the river bed. As I see it, neither the patents nor the treaties here involved satisfy that standard.
The patent to the Choctaws in 1842, which merely quotes from the 1830 Treaty of Dancing Rabbit Creek, 7 Stat. 333, describes the northern boundary of the Choctaw grant as '(b)eginning near fort Smith where the Arkansas boundary crosses the Arkansas River, running thence to the source of the Canadian fork * * *.' An earlier treaty, the 1820 Treaty of Doak's Stand, 7 Stat. 210, described the northern boundary of the Choctaw lands as going 'up the Arkansas to the Canadian Fork * * *.' The quoted phrases of the patent (and the Treaty of Dancing Rabbit Creek) and of the Treaty of Doak's Stand are the sole bases for the Choctaw claim to the entire bed of the Arkansas River from the western boundary of Arkansas upstream to the junction with the Canadian River. The Cherokees claim that the conveyance gave the Choctaws only the southern half of the river bed; the State of Oklahoma claims that the northern boundary of the Choctaw lands went up the river on its south bank and hence gave the Choctaws none of the river bed since the river was navigable and there was no express conveyance of the river bed to the Choctaws.
As for the Cherokees, their southern boundary from the Canadian River to the Arkansas border is described in the 1838 patent as proceeding from the north bank of the Canadian River at its junction with the Arkansas River, 'thence down the main channel of Arkansas river to the western boundary of the State of Arkansas, at the northern extremity of the eastern boundary of the lands of the Choctaws, on the south bank of the Arkansas river. * * *' The patent was in execution of three prior treaties. The 1835 Treaty of New Echota, 7 Stat. 478, in describing the land to be conveyed, repeated the description of the Treaty of February 14, 1833, 7 Stat. 414, which was supplemental to the Treaty of May 6, 1828, 7 Stat. 311. The description in the Treaty of New Echota did not contain the 'main channel' language later used in the patent; from the Canadian, the southern boundary ran 'down the Arkansas to that point on the Arkansas where the eastern Choctaw boundary strikes said river * * *.' The Cherokees claim this language gives them the northern half of the river bed. The Choctaws and the State claim that the Cherokees have no interest in this part of the river bed.
Insofar as the river bed from the Canadian River to the Arkansas border is concerned, the terms of the patents and the treaties are obviously a far cry from what the cases require to evidence the intention of the United States to dispose of lands under a navigable river. But it is said that these cases are irrelevant where the grantee is an Indian tribe and that countervailing considerations require treaties with Indian tribes to be interpreted as the treaties would have been understood by the Indians. Reliance is also placed on the provision in the 1830 Choctaw treaty stating that 'wherever well founded doubt shall arise,' the treaty shall be construed in favor of the Choctaws. But I find it difficult to conclude from such murky language that the United States intended to reject its historic policy with respect to beds of navigable rivers in executing these treaties and patents. Nor is there any evidence whatsoever that the Indians of that day would have considered the land under a navigable river to be of any utility to them or as being included in a grant of lands adjacent to the river. Indeed, the Treaty of Dancing Rabbit Creek expressly negatives any inference that the United States was sharing with the Choctaws any of its sovereignty over the navigable portion of the Arkansas River. It provided that '(n)avigable streams shall be free to the Choctaws who shall pay no higher toll or duty than citizens of the U.S.'
The Cherokee patent recited that the treaty lands had been surveyed and the description in the patent was taken from the survey. Field notes of an 1831 survey of the eastern Cherokee boundary show unmistakably that the surveyor 'fixed, the South East corner of the Cherokee lands' on the north bank of the Arkansas River and that from this point it was '64.50 Ch, to the South bank, where the northern extremity of the Eastern boundary of the Choctaw lands, strikes the Arkansas River.'
The Choctaw grant had also been surveyed pursuant to treaties executed prior to the patent. The field notes of an official survey made in 1821 show that the northern pint of the eastern boundary of Choctaw territory was on 'the south bank of the Arkansas River * * * distance from the Cherokee corner on the north bank of the river, one mile and thirty chains, Arkansas River 630 yards wide,' and that the surveyor on 'October 4th started from a post on the south side of the Arkansas, opposite the lower boundary of the Cherokees to meander the Arkansas.' A plat of another survey of Choctaw lands made in 1825 shows the northern terminus of the eastern Choctaw boundary as being on the south side of the river.
There is little, if anything, in these early surveys to support ownership of the river bed in the Indians. On the contrary, the indications clearly are that downstream from the Canadian River the southern border of the Cherokees' land was on the north side of the Arkansas River and the northern boundary of the Choctaws' land was on the south side.
I find unimpressive the Court's reliance on Brewer-Elliott Oil & Gas Co. v. United States, supra, for the proposition that because the southern boundary of the Cherokee lands ran 'down the main channel of Arkansas river' the northern half of the river bed belonged to the Indians. In Brewer-Elliott the Cherokees had ceded certain land to the United States and from that land the United States created a home for the Osage Indians, '(b)ounded * * * on the south and west by * * * the main channel of the Arkansas river * * *.' 17 Stat. 229. As stated by the Court of Appeals, the central issue was whether the Osage Indians owned 'the bed of the Arkansas river north of the thread of the main channel thereof, which was the south boundary of the lands of the Osage Tribe of Indians.' 270 F. 100, 101 (C.A.8th Cir. 1920). The Court of Appeals ruled that the river at that point was not navigable and that 'riparian grantees and owners under the acts of Congress and under the law applicable in 1838, 1872, and 1883 at the place where these leased premises lie became the owners of the beds of unnavigable streams to the respective threads thereof. Rev.Stat. § 2476 (43 U.S.C. § 931); (St. Paul and Pacific) Railroad Co. v. Schurmeier (sic), 7 Wall. 272, 287, 19 L.Ed. 74. * * *' 270 F., at 109. This Court affirmed, pointing out, as was obviously true, that the grant extended 'as far as the main channel * * *.' 260 U.S., at 87, 43 S.Ct., at 64. Nothing the Court said, however, is any basis for construing a grant to or as far as the main channel of a navigable river as an express grant of any lands under that channel.
Much is made of the declarations in the treaties with the Cherokee and the Choctaw Nations that the Indian lands would not be included within any State or Territory. It is argued that in view of these declarations the United States had no reason to reserve the river bed. But this is a narrow view of the historic policy of the United States. Navigable rivers in the public domain were a public resource and lands underlying them were not to be conveyed to private hands by the United States. Whether or not it was anticipated that the public domain would be included in a future State, congressional policy, declared early in our history, was that conveyances of public lands bordering on navigable rivers carried no title to the adjoining river bed.
I cannot, therefore, conclude that either the Cherokees or the Choctaws took any interest in the bed of the Arkansas River, at least from the junction of the Arkansas River and the Canadian River downstream to the Arkansas border.
The river bed above the Canadian River is said to be owned by the Cherokees because the tribe was granted lands on both sides of the river pursuant to a single metes and bounds description the calls of which crossed the river without excluding the river bed. It is quite true that if one plots out the conveyance described by the patent the Arkansas River is included within the perimeters of the granted property. But there is no express reference to the river bed, the river was a navigable stream, and the policy of the United States was not to convey lands underlying such waters. No such conveyance should be recognized unless the intention to make such a conveyance was unmistakably stated. No one suggests that the Cherokees were granted full sovereignty over the Arkansas River, that the United States had conveyed away its power to control navigation and commerce on the Arkansas, or that the public had lost its right to travel the navigable portion of the Arkansas by virtue of the conveyance to the Cherokee Nation. There being no indications that the Indians thought one way or the other about the underwater lands or that they had any use for them in those days, the evidence is insufficient to prove an intent on the part of the Government to convey the river bed. Cf. United States v. Holt State Bank, supra.
Even if it were otherwise, however, the conveyance to the Cherokees was to the Cherokees as a Nation; it created no rights, legal or equitable, in individuals. Cf. Fleming v. McCurtain, 215 U.S. 56, 30 S.Ct. 16, 54 L.Ed. 88 (1909). If the river bed passed to the tribe, it was to be held by the Nation as property common to all. Moreover, the Cherokee patent expressly provided 'that the lands hereby granted shall revert to the United States, if the said Cherokee Nation becomes extinct, or abandons the same.' The Choctaw patent and treaties contained a similar condition. Such provision limited the duration of title and qualified 'the absoluteness of the earlier words, 'in fee simple." Fleming v. McCurtain, supra, at 61, 30 S.Ct., at 18. The significance of the limitation is that pursuant to agreements reached with the Cherokee, Choctaw, and Chickasaw Nations, Congress early in this century provided for the allotment of tribal lands to individual members of the tribe, terminated the general powers of the tribal governments and continued tribal existence for limited purposes only under the supervision of the Interior Department. See Act of June 28, 1898, 30 Stat. 495; Act of July 1, 1902, 32 Stat. 716; Act of April 26, 1906, c. 1876, 34 Stat. 137. Tribal lands for the most part were conveyed to individual Indians or sold. Transfers of lands to individuals along the navigable portion of the Arkansas River neither expressly nor by implication carried with them the river bed. The former Indian territory is not now either occupied or owned solely by Indians but is widely held by diverse peoples and interests in the State of Oklahoma. Should it now be held that the title to the river bed, severed from and no longer serving communal property, remains in the tribe, to be administered or sold by it for purely private purposes? I think not. For the purposes anticipated by the treaties and patents, the Cherokee, Choctaw, and Chickasaw Nations ceased to exist as general governmental entities in 1906. Oklahoma became a State in 1907 and took title to the river bed, which had meanwhile reverted to the United States if title to the river bed had ever been in the Indian Nations.
I would affirm the judgment of the Court of Appeals.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse