Warren E. Burger: We'll hear arguments in Number 41, Choctaw Nation and Chickasaw Nation against Oklahoma and Number 59, Cherokee Nation or Tribe of Indians in Oklahoma. Counsel, I have an announcement to make of interest to you. You observe Mr. Justice Harlan is not going to sit on this case. I will participate in the decision of the case based on the prior, all briefs records, the prior argument which I heard and the tape recordings of this argument, but will not remain present and not able to remain present in the courtroom for this argument but will take part in the decision. Mr. Justice Black, if you will please take to preside.
Hugo L. Black: All right gentlemen.
Lon Kile: Mr. Justice Black, may it please the Court. The circuit court's decision from which this appeal was taken had turned on that Court's construction of this Court's decision in United States versus Holt, United States versus Holt State Bank. A review of the facts in United States versus Holt State Bank may of be of some help in the discussion of its application to the facts and the case at bar. In United States versus Holt State Bank, Chippewas ceded to the United States their right of occupancy to a certain lands in Minnesota. In return, the United States agreed to put the land up for sale and when it was sold, put the money into a trust fund to be used for the benefits of Chippewas. Within the lands that the Chippewas ceded to the United States was a lake called Mud Lake. Following the treaty with the Chippewas, Minnesota became a state and later Mud Lake was drained and its bed became valuable for agricultural purposes. After Mud Lake was drained, the Government claimed that it was obligated to sell the bed of Mud Lake for the benefit of the Chippewas. The defendants claimed that upon its admittance to the union, Minnesota became the owner of the bed under the equal footing doctrine and that they have succeeded to the rights of the state. The case presented two issues. First, was the lake navigable and second, were the lands underlying the lake disposed of by the United States before Minnesota became a state. Well, the Court first found that the lake was navigable and then it addressed itself to the question of whether the United States has its post of those lands before Minnesota became a state. Now it was not claimed in Holt State Bank that United States have made an affirmative disposition of the bed of the lake, but only this was the only claim that was made, that the lake was in the limits of a reservation when Minnesota was admitted to the union. Now, in it's analysis of the facts in that case, this Court said, “the reservation came in to being through a succession of treaties with the Chippewas whereby they ceded to the United States, their aboriginal right of occupancy to the surrounding lands. There was no formal setting apart of what was not ceded. The effect of what was done was to reserve in a general way for the continued occupation of the Indians, what remained of their aboriginal territory and thus it came to be known and recognized as a reservation.” This Court in its decision in U.S. versus Holt State Bank referred to the equal footing doctrine and said, “First that disposals by the United States during territorial days is not likely to be inferred and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain.” This Court found nothing in the cession of a right of occupancy in exchange for a promise that the land would be sold and the money used for the benefit of the Chippewas, rightfully so I think is even approaching a grant by the Government to the Indians of the underlying navigable waters. And this Court did not find anything in this cession of a right of occupancy in exchange for the creation of a trust fund that would evince a purpose to depart from the established policy of treating such lands as held for the benefit of a future state and we take no issue with this Court's decision in Holt State Bank case. We believe that -- we believe that it's a good decision and it's a sound decision and one that should be allowed a stand. But it must be remembered that in Holt State Bank, the Chippewas were the grantors and the United States was the grantee. The Court said there was no formal setting apart of that which was not ceded. What the Court is there saying is this. The Chippewas were the grantors. Had they wanted to keep the soil and the minerals, underlying Mud Lake, they should have set them apart from their cession. But in the case at bar, the shoe fits on the other foot. In the case now at bar, the United States was the grantor in the patent of the Cherokees of 1838 and it was the grantor in the patent to the Choctaws in 1842. Applying the rule, enunciated in Holt State Bank, it must be said that had the United States in its patent to the Cherokees in 1838, its patent to the Choctaws in 1842, wanted to have reserve the soils and minerals underlying any portion of the Arkansas River, it should have done so. Now, it is said in Holt State Bank and we think that it is a sound rule that before a disposal of the bed of navigable waters by the United States can be inferred, its intent to do so should be made very plain. If it appears then in this case that when the Indians moved from their ancestral homes in the south to the wild lands in the west, it was both their intention and the intention of the United States that the lands to which they were being moved would never be embraced in the state or territory. If it appears from the negotiations leading up to the treaty, the language of the treaties themselves that it was the intention of the Indian tribes and the intention of the United States that the lands to which the Indians were being moved would never be embraced in a state or territory, then it is very plain. And the test established in Holt State Bank has been met, that the United States would have no reason to have retained the beds of the navigable streams in these lands. The absence of the necessity for retaining such a bed coupled with the urgency associated with moving the Indians out of the southern states, makes the intent of the United States to dispose of the beds of the navigable streams within those lands to which the Indians were then being moved, very plain.
Byron R. White: But the treaty with the Cherokee said that they wouldn't be put out of the Cherokee land?
Lon Kile: That is indeed so. The treaty with the Choctaw said that it should be theirs as long as they remained a nation.
Hugo L. Black: When was that? When was that.
Lon Kile: If you please, Mr. Justice Black the treaties were made with the Choctaws in 1820 and with the Cherokees in 1828 and another treaty with the Choctaw in 1832, a final treaty with the Cherokees in 1835. The result of these treaties were the issuance of a patent. The first patent that the United States Government ever gave to a tribe of Indians or it conveyed this land in fee simple to the Cherokees in 1938 and then there's another patent, being second patent in which United States Government have ever conveyed to fee simple title to an Indian tribe to the Choctaws in 1842.
Hugo L. Black: Does the case depend on written documents?
Lon Kile: Yes, I think so, I think it depends. I think that it depends upon the negotiations leading up to the treaties and the treaties themselves.
Hugo L. Black: That has to be in writing I assume now?
Lon Kile: Yes sir and it is in writing and they are set out in our briefs.
Byron R. White: And the patents?
Lon Kile: And the patents, the patents each convey a fee simple title. My time has expired, I maybe excused.
Hugo L. Black: Alright.
Peyton Ford: If the Court please. I think the background of this case has been fully covered except I would like briefly refer to the so-called Louisiana Purchase of 1883. There has been great weight placed upon that by the respondents in that their interpretation of that purchase is that it was purchased for the purpose of the formation of future states and covered by the Louisiana Purchase. Article III of that purchase and that's the only reference that provides that the inhabitants of this area that is ceded to the United States by France shall be -- they shall enjoy their freedom, their religion, their constitutional rights that the Federal Government would afford them hand that the inhabitants perhaps at some future date might become a citizen of the United States. There was no reference to the creation of specific states --
Hugo L. Black: Mr. Ford, do you have a separate brief?
Peyton Ford: Yes sir.
Hugo L. Black: Do you have a separate brief?
Peyton Ford: Yes sir. It's -- that is red, does that help you and I have a short reply brief.
Hugo L. Black: I'll get them.
Peyton Ford: That I would recommend to Your Honor merely because of its brevity.
Hugo L. Black: Because of its brevity? Will that help?
Peyton Ford: Now, the only thing having disposed of the Louisiana Purchase briefly rather than to recite school boy history that Jefferson was severely attacked by purchasing Louisiana as an executive. To add on he had doubts in his own mind and due correspondence are indicators he thought a Constitutional Amendment was necessary to enact this territory. He was apparently dissuaded on that decision, so the treaty was affirmed 24/7, I think on Christmas Eve 1903, I mean 1803, if I drop a century. But the interesting part of that is in 1802, Georgia made a cession pact ceding part of their land right following that to the Osages and return for a certain land. Then in 1808, the Osages began a negotiation with treaty, ratified in 1810. But in 1809, the Cherokees called upon Jefferson or they petitioned him in regard to the way they were being treated and so forth and their possible move to the west and this also was in between the negotiations with the Osage Treaty and ratification. Then in 1909, Jefferson said, gave his blessings and said to, “My children go forth and seek this land” and directed them to the Arkansas and White Rivers and said the higher the better which incorporates part of the land that is in contention today. Now with reference to the treaties, the 1835 treaties in effect incorporates, I'm speaking of Cherokees, the treaty of 1817, of 1833 and 1835. In Brewer v. Elliot, the Court clearly spoke that the Louisiana Purchase could not intervene where a tribe was granted a fee simple title. Of course, in Cherokee Tobacco, it was held that a treaty may suspend a prior Act of Congress and an Act of Congress may suspend the treaty. By later treaties that the Louisiana Purchase had any validity, it certainly was not advocated, but modified by the subsequent treaty. But the thing that we're trying to construe in this case in my mind is a clear language of the treaty prescribed in the 1833 Treaty adopted in the 1935 Treaty and the patent that was adopted in 1938 and the language in the treaty so far as the land covered is consistent with the patent, that position. And there are case after case, Creek case and I think Holden v. Joy and several other cases of this Court that holds that we did get title in fee simple for these five civilized tribes; Choctaw, Cherokees, Creek, Seminoles, Chickasaw. Now, as to the conveyance, it was a simple conveyance and as Holmes pointed out in the Fleming case, 215 U.S. that the United States would choose to use any language it wanted to, but it chose a simple language of conveyance that the average citizen would understand.
Hugo L. Black: Where is that quoted in your brief?
Peyton Ford: In my brief?
Hugo L. Black: Yes.
Peyton Ford: Fleming is not cited but it's 215 --
Hugo L. Black: I meant the language to which you refer, the language to which you refer?
Peyton Ford: Of Holmes?
Hugo L. Black: Yes.
Peyton Ford: It's Fleming v. McCurtain, it's not cited in the brief but its 295 U.S. I've forgotten the language. He also in that case spoken to the cessation of these tribes and said the Congress has spoken, as a simple answer to it, and were still in existence or any Act of Congress including the Act of 1894, of 1902, of 1906, of 1952 and of 1962 and as to the equal footing doctrine, Shively v. Bowlby, was decided in 1845. There was a trust expressly created between Virginia and Georgia prior to that time to form the State of Alabama. And the United States attempted to grant land to a private party after statehood. In Shively v. Bowlby and of course, that engrasped it for so-called public purpose exception, but before the Court agrees to that and it's pointed out in their reply brief. In every case, from Shively v. Bowlby to Holt, the case is decided upon the facts that territorial status existing, that there was a Government in existence prior to status. Indian Territory was never a territory as such other than as you would speak with territory covering certain lands. Oklahoma territory did enjoy territory status. Indian Territory did not and never became a territory of the United States. And I think the public purpose in this is so obvious that it hardly needs requisites. The removal of the Indian which is an absolute necessity, as the compact of 1802 with Georgia which indicates the public purpose. The power of Congress to convey this land is clear and simple and the so-called argument that the tribe might at sometime cease then as was pointed out in early days in a letter of one of the Indian commissioners in Holden v. Joy, I think, and it's simply an escheat provision. We cease, the land goes back.
Hugo L. Black: What has made that land so valuable under the river?
Peyton Ford: Well, there is as any river, it has certain agricultural --
Hugo L. Black: I wouldn't suppose they just re-litigate on what was the surface of the river. What is it, is it oil?
Peyton Ford: Well it's a -- I think Mr. Kirk in his previous argument said it was oil and I think it was gas --
Potter Stewart: I think in the previous argument, and we heard that it wasn't --
Peyton Ford: I think it was gas.
Potter Stewart: -- really that valuable as people had originally thought.
Peyton Ford: No, no, I don't think, that's for the Court to decide anyway, but the principal production is gas I think instead of oil. Now Mr. Kirk is far better informed in that subject than I am.
Hugo L. Black: Well, for what purpose can the Indians have use for it except for the gas?
Peyton Ford: Huh?
Hugo L. Black: For what the purpose can the Indians use it except for the gas or oil?
Peyton Ford: They could use the revenue.
Hugo L. Black: The bed of the river -- of the stream?
Peyton Ford: They could use the revenue derived from the bed of the stream if that particular bed was productive of oil, gas --
Hugo L. Black: But that's what this is about mainly, isn't it?
Peyton Ford: It happens to be gas, do I have any more time.
Speaker: You have six minutes.
Peyton Ford: I'll reserve it for rebuttal.
Hugo L. Black: Mr. Claiborne.
Louis F. Claiborne: Mr. Justice Black and may it please the Court. There are really two arguments made by the State of Oklahoma in order to claim the bed of the navigable portion of the Arkansas River which is in dispute here. The first is that these Indian tribes never obtained title to the bed. The second is that if they did, they lost it at some subsequent time. As to the first proposition --
Hugo L. Black: Lost in how?
Louis F. Claiborne: Well, they would say -- well, they don't press these arguments. They have suggested here and there. I take it that they're not pressed as their main arguments, “lost by voluntarily relinquishment in the 1890's just prior to statehood,” that is prior to Oklahoma statehood. They have received that they have taken from them or that they gave it away when they agreed to an allotment of their land or were forced to allot their lands. The second of these arguments would be that they cease to exist as a nation and therefore under the terms of the grants, these communal tribal lands reverted to United States and in turn inundate to the State of Oklahoma. That is an argument which barely suggested by Oklahoma and I hope not seriously pressed. More seriously, I think, they suggest that neither tribe the Choctaws, Chickasaws together nor the Cherokees ever obtained title to the bed of the river and I make two arguments in that respect. The first is that as a technical manner conveyancing, these treaties and patents did not embrace the bed of the river. The second is that even if the patents broadly embrace the bed that was an implied reservation by the United States in these grants for the benefit of some future state. As to the first proposition, I think what is most noteworthy when one traces down the various descriptions and the various treaties and the various patents is that the grant to the Cherokees and the grants to the Choctaws are always defined one with relation to the other. The boundary between them is spoken of as common corner, the Cherokee corner or the Choctaw corner at the extreme downward point of the Arkansas River. There are references to the river which talk about down the main channel which doesn't sound like along the north bank. Finally, and I think most of persuasive, is the almost unthinkable proposition that in grants of this size and as the little map I have prepared for the Court indicates, the whole of the state of Oklahoma except the panhandle was granted to three Indian tribes. The Cherokees at the north, the Creeks and Seminoles in the center, Choctaws and Chickasaws at the bottom, each of these grants is of a huge tract of land. In the case of the Cherokees, it's an approximately 14 million acres, roughly three times the size of Maryland. The Choctaw and the Chickasaw grant is considerably larger. All of this territory, west of the Arkansas boundary was intended to be and to remain Indian Territory. These enormous grants to what were then described as nations meant to remain forever as quasi-independent, quasi-sovereign states. It is unthinkable, I think, that the riverbeds were meant to be left out when all of this territory west of the line was confined to the tribes all in contiguous grants. Much the same considerations weigh against the second argument advanced by Oklahoma, which is that the United States impliedly reserved the beds even though they're caught within the description. I should emphasize that in one instance, it's quite clear that the bed of the river is caught within the description of that portion of the Arkansas River that is entirely embraced by Cherokee lands on both sides which runs from Fort Gibson to the confluence of the Arkansas with the Canadian River. Now the notion that the United States would have, in this instance, reserve to itself the benefit of a future state, the bed of the Arkansas River insofar as it was navigable is at odds both with the understanding of the times. First of all, that doctrine had not yet been articulated and it's only several years later, this Court for the first time developed that proposition. But leaving that aside --
Thurgood Marshall: What about the other language, “over to the Arkansas River and benched up the river so many miles?” Is it your position that that means the whole bed of the river or half of it?
Louis F. Claiborne: Mr. Justice Marshall, we do not take a position with respect to the intramural debate as between the two tribes. It would seem to us that description is ambiguous. It certainly does not show any intent to exclude the bed of the river. As to which of the two tribes has the better claim is a matter which I should think this Court would leave to the lower courts which have not ruled on it in the first instance.
Thurgood Marshall: Well, isn't a part of the river that is on the boundary not between the two, but is there a part of the river that's on the boundary?
Louis F. Claiborne: There is -- there is Mr. Justice Marshall.
Thurgood Marshall: Well, you claim that whole river bed there or half of it?
Louis F. Claiborne: The Choctaws claim the whole of it, the Cherokees claim the north half of it. Obviously, there's an overlapping claim here which I don't think is to be disposed of by this Court. The --
Hugo L. Black: Mr. Claiborne, you may proceed.
Louis F. Claiborne: Mr. Justice Black and may it please the Court. Picking up from Mr. Justice Marshall's question, let me say broadly that the realistic situation here is that the Government of the United States determine that all lands west of a certain boundary that ultimately was the boundary of the State of Arkansas should be Indian lands, a whole enormous territory which includes present Oklahoma and some other lands. Subsequently, it was determined to divide that acreage between these several tribes. The exact descriptions of that division should not be dispositive as to whether all of that Indian country was then meant to be and to remain an Indian territory. From that point on, from the 1820's on and later when this territory was called the Indian Territory, nobody ever thought that any portion of it had been kept back. The exact boundaries between the several grants were matters of some dispute. Some of the grants originally were overlapping, were found to be overlapping and were then corrected, but the general picture and I think this is a fair statement, is that all of that land was meant to be Indian land in which white settlers were excluded and it ought not to be dispositive whether the coals in certain surveys exactly match or do not. As a matter of fact, we think here that the descriptions do show a contiguous boundary between the Cherokee and the Choctaw grant where the Oklahoma -- where the Arkansas River is the boundary between them.
Hugo L. Black: When did this dispute arise first?
Louis F. Claiborne: This dispute as between the tribes of Oklahoma, Mr. Justice Black?
Hugo L. Black: Yes.
Louis F. Claiborne: I suppose it was always there from the point when Oklahoma became a state. Since we have --
Hugo L. Black: When did it arise over the -- over the bottom of the river?
Louis F. Claiborne: Well, the letter from the interior department which is reprinted at the back of our brief in 1908 indicates that at that time, there was already some question with respect to whether the state or whether the tribes own the bed. At that time it was simply sand and gravel removal, it was not oil or gas. The value of the bed at that time I suppose was minimal. I may say also that to the extent that these tribes are taxed with not having brought this suit earlier, it was not at all clear. In fact, it was assumed after Cherokee Nation versus Georgia that these tribes have no standing of their own to bring the suit in the federal court and because they couldn't bring one in the state court without the consent of the state. It was only in your opinion Mr. Justice Black in the Creek case in 318 U.S. decided in 1944 that for the very first time it was said, it wasn't a holding, it was a dictum, but it was a clear dictum that these nations so-called, these civilized tribes did have standing to file a suit without a special Act of Congress authorizing it. There were of course dozens of cases entitled Cherokee Nation versus United States --
Hugo L. Black: Have there been any opportunity get a special Act of Congress passed to Justice Black?
Louis F. Claiborne: I don't think up to that time and that was 1944, that still leaves some time between then and the time this suit was filed 20 years later. However, it's first to fact that the value of this property was not apparent until the discovery of gas in very recent years. Secondly --
Potter Stewart: Are you trying to say Mr. Claiborne that before to that opinion to which you referred in 318 U.S., there has been many cases, captioned such and such a Nation against the United States?
Louis F. Claiborne: But all of them except perhaps one and the one is entitled Cherokee Nation versus Hitchcock, the then the Secretary of the Interior which is cited by Mr. Justice Black in that opinion and the Creek case as authority. There was another cited which is really not good a precedent because it was filed pursuant to special act terms. What I meant to say was that all of these suits with that possible exception were filed pursuant to specific authorization from the Congress.
Hugo L. Black: The bills were passed?
Louis F. Claiborne: Special bills were passed. Usually there were suits in Court of Claims. I may say even this suit could not have been brought under the decisions of this Court, but for the consent granted by Oklahoma or a waiver of its sovereign immunity. And we don't know whether Oklahoma was at all times willing to consent to the suite by these tribes. Finally, I should say in fairness that the tribes' approach the Department of Interior some years ago seeking to have the United States file the suit on behalf of the tribes which was then -- which has been an established practice. The Department of Interior did not refuse to do so, but took it's time in processing the request and ultimately the tribes brought their own suits. Now, I don't mean to imply for a moment that the Department of Interior and the Department of Justice are not fully in support of the petitioners here as indeed my presence indicates and the Government appeared likewise in the courts below since the first appearance. Going back, these grants were in no sense, as though they were grants to private owners of even large estates. These were cessions made by treaty with what were considered independent nations or quasi-independent nations. There were recognitions and grants, not only of property in the real estate sense, but a political power. The treaties themselves and the opinions of this Court rendered just two and three years before in Cherokee Nation versus Georgia, and Worcester versus Georgia by Mr. Chief Justice Marshall indicated to what extraordinary extent these tribes, these civilized tribes were independent nations. They were held not to be foreign states, but they were held in every other respect to be independent political sovereignties. Under those circumstances and considering also the terminology of the grants which I remind the Court were in terms of a fee simple title, in terms of a permanent home for these tribes of Indians and with a special assurance that at no future time would a state be called out or surround them. It is -- it seems to us that one cannot realistically suppose that there was any intention to retain for the benefit of the future state. The beds of the Navajo Rivers that might exist within that enormous territory now ceded for the benefit of the tribes. It does not appear why the United States would have wished for its own purposes to retain the bed of the river. It did retain, as it always does, its navigational servitude, its right to use the river as a notary of commerce. It had an interest in maintaining Fort Gibson that the head of navigation on the Arkansas River and its access to that fort was of course a matter of importance but that --
Byron R. White: This is usually presented in the [Inaudible] Creeks?
Louis F. Claiborne: No, Mr. Justice White because the Creeks do not have land bordering on any navigable portion of the river.
Byron R. White: The Arkansas was considered navigable by the Court?
Louis F. Claiborne: According to this Court's opinion on Brewer-Elliot in 260 U.S., the Court there accepted the findings of the two courts below that the head of navigation on the Arkansas River was just above Fort Gibson, at the confluence of the Grand River and of the Arkansas River which is the point from which this dispute arises. That case incidentally, the Brewer-Elliot decision, says in so many words that the reserved doctrine under which beds of navigational rivers are reserved may not be applicable with respects to these grants that being granted to the Cherokees and by the Cherokees to the Osages.
Byron R. White: Is there a conflict between the Choctaws, the Chickasaws and Cherokees over the bed of the Canadian?
Louis F. Claiborne: I think not, Mr. Justice White.
Byron R. White: [Inaudible]
Louis F. Claiborne: I think not but I'm not really am not clear. If it is of course non-navigable, there wouldn't be any claim by the state. It would simply be a claim as between the two tribes and I frankly don't know which ways it's resolved. I think there the patent is clear however that's it's the north bank of the -- of Canadian that's I think it's clear --
Byron R. White: [Inaudible]
Louis F. Claiborne: I think the Cherokee grant resides the north bank of the Canadian and I think the Choctaw grant is not that specific, it simply says a territory between the Canadian and the Red River.
Byron R. White: [Inaudible]
Louis F. Claiborne: I would think so, yes.
Byron R. White: [Inaudible]
Louis F. Claiborne: In terms yes, I think that's correct Mr. Justice White, but I really don't -- I'm not sufficiently informed on that question to be sure of my answer, that's my impression.
Byron R. White: [Inaudible]
Louis F. Claiborne: The Red River in this Court's decision in Oklahoma versus Texas was adjudicated to belong -- well, to be outside of Texas and to be within Oklahoma. It was held to be non-navigable and the Indian allottees were held to own the bed where -- the entire bed where their allotments filled. That dispute is only about a small portion of the Red River which was in what was called the least district of the Choctaw grant. Now, even in the equal footing doctrine is applicable, it is recognized that there's an exception where the United States for a public purpose grants the bed of the river, does not reserve it. Here, the public purpose is to satisfy the claims of the Eastern Seaboard States as to whom the United States have promised to extinguish Indian title and its resulting obligation to the Indian tribes to find a new home for them and to maintain the peace and avoid Indian wars. All of those important public purposes were determinative in having the Government settle the tribes west of this Arkansas land and in the way that gave them an absolutely protected boundary into which no white man was permitted except by leave of the governments of these tribes.
Byron R. White: Did the United States of America grant to Cherokees or Choctaw and take one the tribes and the patent fee of the patent, both said the north bank and north of the Arkansas River without regard of any presumptions or equal footing doctrine [Inaudible]
Louis F. Claiborne: No, I think even there Mr. Justice White, there would be an argument that because this entire area have been carved out not so much as a land grant but as a political grant that the -- just as the state would own the bed, so here the intention was that these tribes as nations would stand in the shoes of a state with all of the same rights. If there's any equal footing argument here, it's that the nations who receive these territories ought to stand on an equal footing with the other territories created from the Louisiana Purchase and the suggestion that Oklahoma is being treated as a second class state is rather out of place. It's the Indian nations that are being treated as second class grantees if they are deprived of the bed. But we would certainly strain to avoid a result which would leave a strip of land in the middle of Indian country reserved from those grants when one could imagine no purpose for doing so.
Byron R. White: Well, I suppose they're conceived [Inaudible] navigable stream?
Louis F. Claiborne: It's a sovereign servitude but not at --
Byron R. White: [Inaudible]
Louis F. Claiborne: No, no more than when a state is created out of the Louisiana territory, the United States retains its navigational servitude.
Byron R. White: [Inaudible]
Louis F. Claiborne: Well, if that is -- that is an aspect of sovereignty, I suppose, that certainly the United States retained roughly the same sovereignty that it would with respect to the state carved out of the Louisiana territory or any other territory of the United States. If I may trespass on the Court's time for a moment, I would say that with respect to the suggestions that somehow if they once got it, they subsequently lost the bed of the river. I think Oklahoma is hesitant to suggest that they gave it up because that would amount to an argument that they did so only by duress. It being perfectly clear that the Cherokees and the Choctaws agreed to allotment only under pressures from the Congress and after the passage of the Curtis Act as to the proposition that they have ceased to be nations and that therefore under the terms of the grants, there was reversion to the United States. This Court's decision in the Menominee case which holds that a tribe remains a tribe even after a Termination Act has been passed by the Congress would seem dispositive there. These -- though there was at one time an intention to abolish the tribes and end their tribal community, they still retain tribal property, they are still tribes. They do so in some rights of self-government and if all advance it would be unworthy to have destroyed the nation in order to rob it of its property. For these reasons, we suggest that the judgment below should be reversed.
Hugo L. Black: Mr. Blackenship.
G. T. Blackenship: Mr. Justice Black, may it please the Court.
Byron R. White: [Inaudible]
G. T. Blackenship: Yes sir I do. It depends upon of course what degree of blood you're referring to --
Byron R. White: When you talk about members of the tribe, [Inaudible]
G. T. Blackenship: Well, an estimated of a total of a quarter or more Indian blood; 25,000 Cherokees, 20,000 Chickasaws, 16,000 Choctaws and I will say this Mr. Justice White, the figures vary with what the authorities --
Byron R. White: [Inaudible]
G. T. Blackenship: I don't have those figures sir.
Byron R. White: So that there we have, say 40,000 Cherokees?
G. T. Blackenship: 25,000 of a quarter blood or more, about 5,100 full bloods.
Byron R. White: And they have on the Choctaws?
G. T. Blackenship: The Choctaws about 16,000 of quarter or more, about 5,100 full bloods.
Byron R. White: And the Chickasaws.
G. T. Blackenship: 3,200 with about 1,400 full bloods.
Speaker: And how about the population?
G. T. Blackenship: Two-and-a-half million, sir.
Hugo L. Black: Where do these Indians live?
G. T. Blackenship: All over, Mr. Justice Black.
Hugo L. Black: All over what?
G. T. Blackenship: All over the state of Oklahoma. Primarily in the eastern part from the --
Hugo L. Black: Do they all live in the State of Oklahoma?"
G. T. Blackenship: Yes sir. The figures that I've been referring to are residents of the State of Oklahoma.
Hugo L. Black: Well, I thought a large number of them left Oklahoma.
G. T. Blackenship: Well, we hope not sir, but I think the figures that I'm referring to are figures compiled from the --
Hugo L. Black: Do they live on this particular land that was deeded to them?
G. T. Blackenship: Well, you see most of the land has been allotted to the individual members of the tribe, most of it sometime ago. There's still some land held in commoners or restricted land, but the vast majority of it was allotted to the individual members of the tribe. My part in this effort today is somewhat limited. I come to you to -- I hope make a little clearer what the controversy at least from our view is really all about and will take but merely a few minutes of our time at which time I will defer to my colleague, Mr. Kirk who carried the argument on the occasion of the last appearance before this Court. But before I do so, I have -- I would like to request permission of the Court to use a photograph which is merely -- which is not part of the record, but is in the matter of being informative which I think will assist the Court in understanding the controversy. I'd like to use it the same manner --
Hugo L. Black: I don't suppose it would do us any harm.
G. T. Blackenship: Thank you sir.
Hugo L. Black: This is the map?
G. T. Blackenship: Yes sir. This is an aerial photograph taken off the Arkansas River bed very near Fort Smith as you can see. This picture was taken in 1963. Its only purpose is to help the Court in understanding that which the Court dealt into on the occasion of the last appearance here in which you Mr. Chief -- Mr. Justice Black asked about earlier today and that is what the controversy all about and you may note that in this picture there is an area called Old Channel. That's a large ox-bow that was created by having the channels straightened through the efforts of the army engineers which is referred to as New Channel. Now, this particular photograph is a picture of a place called Bradens Bend. It's near Fort Smith. It contains about 5,000 acres of very valuable land. The -- we have engineered it and we estimate that the land which has been uncovered as a result of straightening the riverbed for which rights of way were acquired and not in controversy here. The surface of this uncovered land is valued somewhere around $7 million.
Hugo L. Black: Is there any water now flowing in the old channel?
G. T. Blackenship: Sir?
Hugo L. Black: Is there any water flowing in the old channel?
G. T. Blackenship: Oh! Yes sir. You mean in the old channel?
Hugo L. Black: Yes.
G. T. Blackenship: Well, because of the fact that it was covered for so many years, there have been some drainage problems but a great majority of it is useful for farming. Now, it's within the flood banks you see and on occasion of very high water very well maybe inundated at some future time, at which time it takes a couple of years for it to aerate and to be usable again but at the present time that that you see they refer to as the old channel can be farmed and is highly productive.
Byron R. White: Is that at issue here?
G. T. Blackenship: That is what the controversy is all about.
Byron R. White: [Inaudible]
G. T. Blackenship: No sir, the new channel was acquired by purchase. It's not an issue here, but when they diverted the river into the new channel then this land was uncovered and is part of the controversy here. As you know, we're talking about from Fort Gibson down to the Arkansas line which is approximately 95 miles --
Byron R. White: [Inaudible]
G. T. Blackenship: Yes sir and that land is the primary object of the controversy or land similar to, there are three of those.
Potter Stewart: And as you look at this photograph as I understand it to the right of the old channel is the Choctaws and Chickasaws and to the left is the Cherokees?
G. T. Blackenship: Yes sir, that's correct.
Potter Stewart: And it's the old channel which is the boundary, not the new channel, is that right?
G. T. Blackenship: Yes sir that's correct.
Potter Stewart: And therefore the land which has now been uncovered because of the construction of the new channel is that land that used to be under the old channel that is in issue here?
G. T. Blackenship: That is correct. In addition to that, there are -- the mineral rights also are in controversy.
Byron R. White: The land that was under it?
G. T. Blackenship: Yes sir, now in -- with regard to that that question was raised at the last argument and we have since taken steps to determine what's at stake there and the mineral interest which are presently under lease by various oil companies have been valued at a million dollars.
Hugo L. Black: At what?
G. T. Blackenship: At a million dollars, the surface value is $7 million. The riverbed in this navigable portion is about 95 miles long and contains 41,000 acres roughly during the length of that 95 miles and that which is primarily at issue here is the lower 17 miles for two reasons. First of all, it's the only area of the river bed that has any value for oil and gas discovery purposes and secondly, this is the area where the land flattened out and the riverbed straight all over the countryside. Farther back up north, it's contained within rather narrow boundaries and there is nothing particularly at issue.
Hugo L. Black: This is not one of the actions that was authorized by Congress by special bill, is it?
G. T. Blackenship: This case?
Hugo L. Black: Yes.
G. T. Blackenship: No sir. The State of Oklahoma has exercised dominion over the riverbed since statehood, but issued -- but sold oil and gas leases starting in 1910 and the latest having been in 1966. Sand and gravel leases were sold by the states starting in 1912 and for practically every year through and including 1969. This case was filed in December of 1966. Earlier in that year, the state sold oil and gas leases valued well for approximately $500,000.00. Since statehood, the revenue from the riverbed has been a total of about $600,000.00, so you can see the largest amount of course is very recent.
Hugo L. Black: That's the total --
G. T. Blackenship: That's a total amount.
Hugo L. Black: -- since statehood cumulated?
G. T. Blackenship: Yes sir, $600,000.00. That money is in the School Land Commission permanent fund, the revenue from which is distributed to all of the public schools in the State of Oklahoma. The --
Hugo L. Black: Suppose I'd -- suppose the Court were to decide this that Oklahoma didn't own it?
G. T. Blackenship: I suspect we'd have to return that money to various entities. As a matter of fact, that's the very reason why -- one of the reasons why we are here. We have made a contractual arrangement with regard to the sale of these leases. We have the largest economic interest that being the surface and that's the main purpose for which we appear is in defense of those interests. The litigants, the Cherokees and the Choctaws and Chickasaws have no reservation in the State of Oklahoma. They have no tribal system of schools. As a matter of fact, what tribal schools they did have were transferred to the Department of Interior in 1906 and the only tribal school to my knowledge and that our research could reveal in existence at the present time is a vocational school in Tonkawa which is a very recent origin. The plaintiffs in this particular action have never been in possession, physical possession of the land because the land was only recently uncovered. Therefore, it's not a case of having people -- scarce on the land were going to have it removed and physically and etcetera. These are the facts which the Court inquired into on the case of our last oral argument and I thought it would be of assistance to the Court to know really what the physical facts were and the basis of the controversy.
Hugo L. Black: What do you mean by saying the Indians have never been in possession of any of the land.
G. T. Blackenship: Physical possession of the riverbed because the riverbed was riverbed until the engineers --
Hugo L. Black: You're speaking only of the riverbed?
G. T. Blackenship: Yes sir, until it was uncovered. That concludes my remarks. If there are any questions, I'll be glad to answer to them.
Hugo L. Black: Mr. Kirk.
M. Darwin Kirk: Mr. Justice Black and may I please the Court. We have enlarged certain map appendices from our brief and we would like to have them distributed to the Court. We think it would be easier for you to read after we have reduced them to the point where we could print them in our brief. We found that they were rather difficult to read and we think this will be helpful to the Court if they were to be considered. The first one, the large map here is attached to our brief as appendix three. We have completed that and attached it on the --
Hugo L. Black: Which brief is that?
M. Darwin Kirk: What is that?
Hugo L. Black: Which brief is that?
M. Darwin Kirk: In the brief of the State of Oklahoma. That is the map prepared by Isaac McCoy from which the Cherokee patent was prepared. It is a map of the surveys under the direction of Isaac McCoy. The other enlargement is the enlargement of our appendix four from our brief. This enlargement is an enlargement of the copy of the field notes of the surveyor Donaldson who did this surveying under the direction of Isaac McCoy. These we think will be helpful to the Court in locating the Cherokee and the Choctaw boundary lines particularly the Cherokee and in locating the Cherokee and the Choctaw corners at or near Fort Smith. Now, the trial court found and its finding was not challenged, that this stretch of the Arkansas River was navigable in fact and in law at the time the western domains, now a part of Oklahoma, were ceded to the Choctaw Nation and to the Cherokee Nation and at the time the treaties were made, pursuant to which the lands were ceded and also at the time Oklahoma was admitted to statehood on November 16, 1907. We consider the fact of established navigability at the time these treaties were made to be a very important fact. That was so found by the trial court and has not been challenged in this case. Now we, in substance, rest our case on the laws of governing navigable waters as laid down by this Court, particularly in the case of Pollard versus Hagan, Shively versus Bowlby and U.S.A. versus Holt State Bank. In the case of Pollard versus Hagan, Mr. Justice McKinley in an opinion written in 1845 referring to an opinion written in 1842 by Mr. Justice Taney said in the case of Martin et. al. versus Waddell, 16 Peters 410, the present Chief Justice Taney in delivering the opinion of the Court said, “When the revolution took place, the people of each state became themselves sovereign and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution.” In the case of Pollard versus Hagan, the Court went on and said, “We have arrived at these general conclusions; First, the shores of navigable waters and the soils under them were not granted by the Constitution to the United States, but were reserved to the states respectively. Second, the new states have the same rights, sovereignty and jurisdiction over this subject as the original states. The State of Oklahoma was admitted on an equal footing with the original states and we say that this law is it that was applicable, set forth in the case of Martin versus Waddell and the case of Pollard versus Hagan is still applicable today. Now, the most complete and erudite opinion that has been written on the subject of the rights of the states with respect to navigable waters was written by Mr. Justice Gray in the case of Shively versus Bowlby in 1893. In that case Mr. Justice Gray commented that this was an occasion suitable for a complete review of the law as had been involved. He went back to the beginning to the common law of England as applied in the American colonies to the common law as applied after the revolution. He reviewed the whole range of decisions that had been handed down since then and wrote what seem us to be a guiding opinion in this litigation. Now, he did say that he -- when the United States acquires a territory, it does have a demonstrative jurisdiction over it and it holds it in trust for the formation of future states. Now, he says some certain dispositions can be made when necessary by the United States during territorial period. He said we cannot doubt therefore, that Congress has the power to make grants of land below high watermark of navigable waters in any territory of the United States, whenever it becomes necessary to do so, first in order to perform international obligations; second to effect of improvement of such lands for promotion and convenience of the commerce with foreign nations and among the sovereign states; or third to carry out other public purposes appropriate to the objects for which the United States holds the territory. Now, he goes further in that opinion and he defines what the objects for which the United States holds the territory are. With respect to that he said this, “And the territories acquired by Congress whether by deed of cession from the original states or by treaty with a foreign country are held with the object as soon as their population and condition justify it of being admitted into the union as states upon an equal footing with the original states in all respects. The Congress of the United States in disposing of the public lands has constantly acted upon the theory that those lands whether in interior or on the coast, above high water mark they be taken up by actual occupants in order to encourage the settlement of the country. But 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 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.
Byron R. White: Or something else?
M. Darwin Kirk: Or public exigency.
Byron R. White: Or something else?
M. Darwin Kirk: No, we have mentioned the one before. The first three that we mentioned before: perform international obligations, effect improvement of lands for the promotion and convenience of commerce with foreign nations and among the sovereign states, or to carry out public purposes appropriate to the objects for which they hold the territory. And they defined objects for which the hold the territory as being the formation of a future state -- future states, that is the object that he's talking about.
Byron R. White: You don't think the -- do you think the [Inaudible] stay away from the navigable rivers for any domestic purpose?
M. Darwin Kirk: I would say, I don't know what you mean by domestic purpose. I would say that the formation of the future state would be a domestic purpose.
Byron R. White: Do you think that's an example that deed in this case expressly without any confrontations with the act [Inaudible] boundary of the area [Inaudible]
M. Darwin Kirk: I would say under Shively versus Bowlby, it certainly would not be one of the objects for which United States holds the territory, yes.
Byron R. White: [Inaudible] the patent to the Indians which is just [Inaudible]
M. Darwin Kirk: I think it would be yes. I would question it under Shively versus Bowlby. Now we go further and say however we don't need to meet that because it didn't convey it to them.
Byron R. White: Well, I just --
M. Darwin Kirk: I'll reach that in a moment.
Byron R. White: Well, we'll reach the argument and talk about that briefly.
M. Darwin Kirk: I am indeed sir.
Byron R. White: Did the boundaries of the Cherokees there?
M. Darwin Kirk: Not within the boundaries of the Cherokee granted here, Mr. Justice White, according to our --
Byron R. White: The Cherokees hold there --
M. Darwin Kirk: That will be a part of my argument, Mr. Justice White. In the case of United States versus Holt State Bank and I might say that we differ on the facts and the holding of that case, and the counsel for the Choctaws who has argued previously. We have set forth however our understanding of the facts on the holding of that case on pages 35 to 37 of our brief and we refer the Court to that. I won't go into that in detail here at this time. But to get -- in that case, the Court actually reaffirmed the principles laid down in Shively versus Bowlby where they said the United States early adopted and constantly hasn't heard to the policy of regarding lands under navigable waters and acquired territory while under its sole dominion. It's held for the ultimate benefit of the future states and so has refrained from making any disposal thereof say in exceptional instances when impelled to particular disposals by some international duty or public exigency. It follows from this that disposals by the United States during the territorial period are not likely to be inferred, should not be regarded as intended unless the intention was definitely declared or otherwise made very plain. That language was used with respect to a statute, the United States statute in a form of a treaty with the Chippewas which set aside a reservation, a Red Lake Reservation. Within the reservation was a navigable lake, Mud Lake. Mud Lake was not mentioned as being conveyed to the Chippewas and the Court held it was not conveyed because there was not a specific reference to Mud Lake in the patent. That was a holding in this case of this Court in Holt State Bank. We say that applies with respect to the Arkansas River here and particularly with respect to the part where the Cherokees have land on each side. Now, there is -- with respect to the Chippewa title which has been questioned here; that title we think is a good reservation title. It has been so defined and held in Minnesota versus Hitchcock 185 U.S. 373 and a similar type of title has been affirmed in the United States versus Santa Fe Pacific Railroad Company, 314 U.S. 339 with respect to the Hualapai tribe in Arizona. The patents issued to the Cherokees and the Choctaws were authorized by the Indian Removal Act of May 28, 1830. That provided that for granting patents in removed Indian tribes and contained a provision that provided always that such land shall revert to the United States if the Indians become extinct or abandon the same. So, the Cherokee patent pursuant to that Indian Removal Act provides the lands hereby granted shall revert to the United States if the Cherokee Nation ceases and abandons the same. The Choctaw patent provides, it shall inhere to them as long as they shall exist as a nation and live on it. Now, coming to the Cherokee treaties and the Cherokee patent on the subject that you expressed particular interest in, Mr. Justice White, the western Cherokees' first land in Oklahoma was acquired pursuant to the treaty of 1828, 7 Stat. 311. In that treaty, it was agreed that seven million acres of land plus an outlet west should be conveyed to the Cherokees. The description of the land was incomplete. When they got to the -- where the Arkansas comes to a confluence with the Canadian, they angled off up between the two and they didn't close it with the Arkansas state line, but they have provided they'd have a survey and which would correct all that. The 1833 Treaty with the western Cherokees has also covered the same land substantially except that down toward the lower part, the boundary line between the Creeks and the Cherokees was straightened out and settled whereas under the 1828 Treaty it was left open up in the area, I might say it, but that boundary was left open to on the north westerly side. But the parties had in mind having a survey and they did have a survey and it was conducted, shortly work on it was commenced, shortly after the 1828 Treaty, under the direction of Reverend Isaac McCoy who was commissioned to do the surveying by the war department. The map which we have provided for the Court here is the result, the final result of Reverend McCoy's surveying work down under Reverend McCoy and his basis for the description in the Cherokee patent. The field notes which we have provided the Court with copies on enlarged basis, both of which are in our briefs as appendix, describe the first line that was run by that surveying crew under McCoy's direction by a surveyor by the name of Donaldson. In that line, he ran the line between the State of Arkansas and the Cherokees on the west and the state Arkansas on the east when he comes down to this corner and he uses as a reference point, the land in the Choctaw corner across the river which he fixes on the south bank of the river and he sets the Cherokee corner on the north bank of the river. Now, the Cherokee patent --
Potter Stewart: Was that to the -- just to the west of Fort Smith?
M. Darwin Kirk: Yes, yes that's on the Arkansas line just west of Fort Smith. The line that was run from north where the Arkansas River runs across the Arkansas state line, the line between Arkansas and the Cherokees. Now, in that -- in those field notes which you have a copy up there. This surveyor, they are very voluminous, we have the field notes but they are about four inches thick. We only put in the part referring to this problem and here's what the surveyor says in respect to that point.
Speaker: Where are you quoting from?
M. Darwin Kirk: I'm quoting from our appendix four, our appendix four which is there as marked in here on the copy you have there. Mile 76 and set, 1250 change left came break and entered into open prairie bottom rich soil, 50, changed to [Inaudible] again, 80 changed to the north bank of the Arkansas River, set a stake and made round it from which 62 degrees 20 minutes west to cotton wood, marked [Inaudible] 76ms, 36 degrees, no minutes east, a cotton wood marked U.S. 76m. At this point has fixed the southeast corner of the Cherokee lands. That's along the channel of the river 664.50 chance to the south bank where the northern extremity of the eastern boundary of the Choctaw land strikes the river. Now, he does that for a reference point. He's surveying the Cherokee boundary, but he is referring to another point which helped set up his point, the Cherokee corner on the left bank of the river.
Potter Stewart: And he says that's along the channel of the river?
M. Darwin Kirk: It's a --
Potter Stewart: Rather than along the north bank.
M. Darwin Kirk: On the north bank he says.
Potter Stewart: I thought you said, I thought you read that's along the channel of the river.
M. Darwin Kirk: I said after he fixes the north bank.
Byron R. White: Well, across the south, at the point of the north bank is the point of the south of the Arkansas River.
M. Darwin Kirk: That's right.
Byron R. White: There -- there across the bank of the south, move along the channel.
M. Darwin Kirk: That's right, right, and right and there he fixes the Choctaw corner. So he fixes the Cherokee corner on the north bank and the Choctaw corner on the south bank. Now, let's take the -- now those field notes are -- should be considered in connection with the Cherokee patent.
Thurgood Marshall: Well, Mr. Kirk with boundaries on each side of the river for each nation, had that been a boundary line between two states, what would be the line in the river?
M. Darwin Kirk: I would say that if it's in the boundary line between the two states, the description would have called for it to be down the middle of the stream. We have -- we have cited --
Thurgood Marshall: Well, now we have a conveyance from the United States to a nation. Why wouldn't that same rule of construction apply?
M. Darwin Kirk: It's not a rule of construction, Mr. Justice Marshall. We have cited on our brief the conveyance --
Thurgood Marshall: Well, in Louisiana against -- versus Mississippi, this Court found that it was. When a navigable river constitutes a boundary between two independent states, the line defining that point at which jurisdiction the two states have is the middle of the stream, the channel. That what this Court said.
M. Darwin Kirk: well, we have a contemporaneous patent. We have a contemporaneous definition of the line of the State of Missouri which we have cited on the brief which was made an 1820, almost contemporaneous with these documents and they called --
Thurgood Marshall: Well, this is not a recent opinion. The opinion it refers is in 1905.
M. Darwin Kirk: Well, this is a navigable stream. In this case there is no -- this particular authority, you're reading to me, I'm not sure the context of it, or what it would be --
Thurgood Marshall: It would be context between the State of Louisiana and Mississippi as to where their boundary line was.
M. Darwin Kirk: Yes, well, Mr. Justice Marshall in any event, let me read from you from the language of this Court in the Mingus case.
Hugo L. Black: Which case?
M. Darwin Kirk: Atlantic Pacific Railroad Company versus Mingus, 165 U.S. 413 and referring to the -- these Indian tribes, the Cherokee tribe in particular, they said, in some respects they bear the same relation to the Federal Government as the territory did in its second grade of Government under the ordinance of 1787. Such territory passed its own laws subject to the approval of Congress and its inhabitants were subject to the Constitution and Acts of Congress. The principal difference consists in the fact that the Cherokees enact their own laws under the restriction stated, to appoint their own officers and pay their own expenses. This however is no reason why the laws and the proceeds of the Cherokee territory so far as it relates to rights claimed under them should not be placed on the same footing as other territories in the union. It is not a foreign, but a domestic territory, a territory which originated under our Constitution and laws.
Thurgood Marshall: But it's still a nation as of that time?
M. Darwin Kirk: They are a domestic dependent nation, Mr. Justice Marshall as defined by this Court.
Hugo L. Black: They didn't have any army and president, did they?
M. Darwin Kirk: What is that?
Hugo L. Black: They didn't have any army, did they?
M. Darwin Kirk: Well --
Hugo L. Black: This nation?
Thurgood Marshall: [Laughing]
M. Darwin Kirk: They have no army, that's correct. They have the word nation, but it was a very dependent nation. Now, Mr. Chief Justice Marshall even said that their lack of relationships like a ward to a guardian, that's how much of a nation they were. Now, the Cherokee patent conveys this land, covers this land pursuant to the survey, pursuant to the Isaac McCoy's survey. It refers to the description in the survey. The patent is dated December 31, 1838 and found at appendix nine of our brief.
Byron R. White: [Inaudible]
M. Darwin Kirk: Mr. Justice White, --
Byron R. White: [Inaudible]
M. Darwin Kirk: I've been unable to find the language you're talking about. Let me read where it reaches that point. The patent as I say which is found in appendix nine of our brief getting when it comes down to the Canadian River, thence down to the Canadian River on it's north bank to it's junction with the Arkansas River. Excuse me, I'll turn to that --
Byron R. White: [Inaudible]
M. Darwin Kirk: Perhaps so, I'm not sure. Any out of patent is in -- the complete patents in appendix 9. The complete patent is in appendix nine of our brief. It's also on page 53 of our brief. Alright, and we get to this point, you find a point thence down the Canadian River on its north bank, “Thence down of the Canadian river to its north bank to 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, four chains and 54 lengths east of Fort Smith thence north and thence north.” Now, we say that's a reference point. We say the word “at” means in the vicinity and we say that it's simply a double reference for the surveyor's accuracy and it does not take the Choctaw bound -- the Cherokee boundary to the south bank of the river.
Byron R. White: So, you are saying, do you think that length is about the north side of the river and the south side of the river up to the north corner?
M. Darwin Kirk: Right, right, opposite north corner, at the corner shown by the field notes of the survey and so that's where we say the description goes and by the way that is the only reference to any point south of the river in the old Cherokee patent.
Byron R. White: Have you included in your brief, to refer the record, a copy with the survey, notes of the [Inaudible] Indian Nations in 55, [Inaudible]
M. Darwin Kirk: No, we have not included that Mr. Justice White. I may have but we didn't --
Byron R. White: [Inaudible] survey --
M. Darwin Kirk: Yes.
Byron R. White: And they did survey and they did incorporate it.
M. Darwin Kirk: I may have read them, but I don't have them freshly in mind as now. But we say this is contemporaneous. The contemporaneous maps with field notes are the ones that are legally effective in this situation, in this case. Now, that is --
Byron R. White: The instructions to the surveyor at that time, the instruction that's complete [Inaudible]
M. Darwin Kirk: He may have been given those instructions but the land are previously been conveyed.
Byron R. White: [Inaudible]
M. Darwin Kirk: No it is not in the record. We say that now we have another argument put forward by appellants to which I should give some note here. They have argued that because there were provisions in the treaties that at no time would the lands ceded to them be included in the boundaries -- within the boundaries of a territory or state. They contended that therefore there could not have been any holding in trust by the United States for a future territory or state. We say that that conclusion is erroneous and faulty. We say that the Cherokee treaty in particular says without their consent that practically implies that their consent could be sought and obtained that they might have in mind. We have cited congressional reports and a great deal of other data which shows that future states were contemplated in this area. The facts are that the lands conveyed to them were not included in a future territory or state without their consent. Their consent was obtained. They have made agreements with the United State Government for the allotment of their lands, made agreements that their tribal sovereignty should be relinquished in favor of the allottees, made agreements that the laws or their tribal law should be superseded by the laws of Arkansas. They were admitted to citizenship in the United States as full citizens. They put themselves and were put under the jurisdiction of the Interior Department as to all of their tribal affairs. We say that they did consent to become a part of the future state. They voted on the admission of Oklahoma as a future state and therefore the United States kept faith with them and they were included in the State of Oklahoma with their consent. If there are no further questions, Mr. Justice Black.
M. Darwin Kirk: My co-counsel has suggested to Mr. Justice White that I may have overlooked, you were referring to appendix F of the Cherokee brief. The report of Commissioner of Indian Affairs, John D.C. Atkinson – Atkins. In that report he traces the various surveys that were made and comes to the – he shows that three earliest surveyors, either fixed the corners of the Cherokees or Choctaw or both on the north or south bank of the river respectively. He himself later surveyed, the ones that you were talking about were seeking to relocate the old survey boundaries. I think this is what you were talking about.
Byron R. White: [Inaudible]
M. Darwin Kirk: No, we -- those have never been researched or provided.
Hugo L. Black: I think I believe, your time is up.
M. Darwin Kirk: Is my time up?
Hugo L. Black: There seems to be a red light there.
M. Darwin Kirk: Thank you sir.
Hugo L. Black: Mr. Ford.
Peyton Ford: Yes sir. I hope you won't turn the Court and engineer, we currently have, so I wish that you could compare the calls of the survey and the patent done by the Cherokee and they read the same in reverse. So far as I can tell, there's a difference between 47 and 53 degrees; it might have around the three. We have never claimed the half the river. It's clearly stated in the patent and it's not inconsistent with the treaty. Two, just to three in Alabama v. Texas in speaking of disposal of the public lands and the equal footing doctrine and the concurring opinion said specifically, United States has power to dispose of it's public lands under the power -- under the so called equal footing doctrine and it's not intended to equate the states on economic basis, but on a political basis. Each state can't hope to have it, either New York or Manhattan or gold or silver. That's not the purpose and read as late as that said. The -- I would like to call the Court's specific attention to the Enabling Act of Oklahoma which is cited on page 26 of our brief and the Oklahoma Constitution which specifically provides that these Indian tribes will be protected in the possession of their land. And the previous act which is referred to by Mr. Kirk in the court of law as extinguishing the tribe is simply without meaning. The Court so far as this map is concerned then without relationship to what value there is, I don't know. Certainly, on February the 25th in the State of Arkansas v. Tennessee met and answered the same question concerning [Inaudible] accretion or erosion whether it be by natural or artificial means. The Cherokees are an existing tribe. They have some 41,000 enrolled, 4,000 full bloods and a total of descendants of 100,000. The money that we have derived from any recovery in these cases outside of the per capita distributions to the Indians, not only in the so-called outlet case, but in many other cases that Mr. Pear participated then has gone in trust for the Indians and is used either for rehabilitation, higher education and various vocable projects. Any questions? When you said three minutes, I'm trying to obey.
Hugo L. Black: That's all then, Mr. Ford.