Choctaw Nation v. Oklahoma

No. 41

Argued October 22-23, 1969

Reargued March 5, 197 Decided April 27, 1970 *

397 U.S. 620

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Syllabus



Under various treaties (including the Treaty of Dancing Rabbit Creek in

1830 between the United States and the Choctaws and the Treaty of New

Echota in 1835 between the United States and the Cherokees) and patents

issued thereunder, petitioner Indian Nations are held, contrary to the

claims of the State of Oklahoma and other respondents, to have received

title to the land underlying the navigable portion of the Arkansas River

from its confluence with the Grand River in Oklahoma to the

Oklahoma-Arkansas border.



402 F.2d 739, reversed and remanded. [397 U.S. 621] MARSHALL, J., lead

opinion



MR. JUSTICE MARSHALL delivered the opinion of the Court.



These cases involve a dispute over the title to land underlying the

navigable portion of parts of the Arkansas River in the State of

Oklahoma.  As a practical matter, what is at stake is the ownership of

the minerals beneath the river bed and of the dry land created by

navigation projects that are narrowing and deepening the river channel.



In December, 1966, petitioner Cherokee Nation brought suit in the United

States District Court for the Eastern District of Oklahoma against the

State of Oklahoma and various corporations to which the State had leased

oil and gas and other mineral rights.  In its complaint, the Cherokee

Nation sought both to recover the royalties derived from the leases and

to prevent future interference with its property rights, claiming that

it had been, since 1835, the absolute fee owner of certain land below

the mean high water level of the Arkansas River.  Subsequently,

petitioners Choctaw and Chickasaw Nations sought and were granted leave

to intervene in the case in order to present their claims that part of

the river bed belongs to them.



After pretrial proceedings in the District Court, a judgment on the

pleadings was entered against petitioners and in favor of the State. 

The District Court held that land grants made to petitioners by the

United [397 U.S. 622] States conveyed no rights to the bed of the

navigable portion of the Arkansas River.  The court thus held that title

to the river bed remained in the United States until 1907, when it

passed to the State upon Oklahoma's admission to the Union.  On appeal,

the United States Court of Appeals for the Tenth Circuit affirmed the

judgment of the District Court.  402 F.2d 739 (1968).  We granted

certiorari, 394 U.S. 972 (1969), to consider petitioners' claims that

they received title to the land in question by treaties with the United

States in 1830 and 1835. I



At the outset, we note that these cases require us to pass upon the

effect of treaties that were entered into nearly a century and a half

ago.  As background, it is necessary briefly to relate the circumstances

by which petitioners received large grants of land by treaty from the

United States.



The history behind these treaties goes back at least to the period

immediately after the Revolutionary War and prior to the adoption of the

Constitution -- a time when petitioners and other Indian Nations

occupied much of what are today the southern and southeastern parts of

the United States.  In 1785, in the Treaty of Hopewell, November 28,

1785, 7 Stat. 18, the United States entered into a treaty of peace and

friendship with the Cherokee Indians which established the boundaries of

the Cherokee Nation and in which the Indians acknowledged themselves to

be under the protection of the United States.  The next year, a similar

treaty was concluded between the Choctaws and the United States.  Treaty

of Hopewell, January 3, 1786, 7 Stat. 21.



In following years, the United States entered into a number of

additional treaties with both the Cherokees [397 U.S. 623] and Choctaws.

 By means of these treaties, the United States purchased large areas of

land from the Indians to provide room for the increasing numbers of new

settlers who were encroaching upon Indian lands during their westward

migrations.  Although the Indians were not considered to own the fee

title to the land on which they lived, they did have the right to the

exclusive use and occupancy of the land -- a right that could be ceded

only to the United States.  Moreover, the Indians continued to live on

the land not ceded under their own laws and way of life, and their

rights to those lands were "solemnly" guaranteed by the United States. 

Treaty of Holston, July 2, 1791, 7 Stat. 39, 40; see Indian Intercourse

Act of 1802, 2 Stat. 139.



Even while it was making this solemn guarantee, however, the United

States adopted a policy aimed at completely extinguishing these Indian

Nations' rights to their native lands.  The United States had acquired a

large western territory in 1803 by the Louisiana Purchase, and it was

soon proposed that the Indians be relocated on new lands west of the

Mississippi.  For a time, it seemed that the westward removal of the

Indians might be readily accomplished.  In the Treaty of July 8, 1817, 7

Stat. 156, the Cherokee Nation agreed to trade part of its lands in

Georgia for a large amount [397 U.S. 624] of land in the Arkansas

Territory.  See also Treaty of February 27, 1819, 7 Stat. 195. 

Thereafter, a number of the Cherokees left their eastern lands and

traveled west.  Three years later, in the Treaty of Doak's Stand,

October 18, 1820, 7 Stat. 210, the Choctaw Nation agreed to exchange

approximately half of its remaining Mississippi lands for a large tract

of land in the Arkansas Territory and an even larger one farther west.



Before the United States could relocate the Indians on these new lands,

however, at least part of the land that had been set aside in the

Arkansas Territory was already settled.  It was apparent that the

westward removal had not been aimed far enough west to escape the new

nation's expansion.  By the Treaty of January 20, 1825, 7 Stat. 234, the

Choctaws were persuaded to cede back to the United States the eastern

portion of the land given them in the Treaty of Doak's Stand. 

Similarly, the Cherokees who had voluntarily moved to Arkansas agreed to

move again -- farther west to a new tract of land, "a permanent home,

and which shall, under the most solemn guarantee of the United States,

be, and remain, theirs forever."  Treaty of May 6, 1828, 7 Stat. 311.



The prospect of the voluntary removal of the Indians to land west of the

Mississippi soon disappeared.  For the most part, the Choctaws and the

Cherokees who had not already left their eastern lands refused to give

up the land that had long been their home.  The abortive attempt to set

aside Arkansas Territory land for the Indians justifiably made many of

them doubt that the United States would protect them in their new lands.

 But at the same time the Indians were deciding to remain, the new

settlers' expansion and desire for their lands increased.  In Georgia,

the state legislature, tired of waiting for the United States to fulfill

its [397 U.S. 625] promise to extinguish Indian rights to Georgia lands,

asserted jurisdiction over the Cherokees and prepared to distribute the

Cherokee lands.  Mississippi soon followed suit, abolishing tribal

government and extending its laws to Choctaw territory.



A clash between the obligation of the United States to protect Indian

property rights on the one hand and the policy of forcing their

relinquishment on the other was inevitable.  With the passage of the

Indian Removal Act of 1830, 4 Stat. 411, it became apparent that policy,

not obligation, would prevail.  In spite of the promises to protect the

Indians' land and sovereignty, it was clear that the United States was

unable or unwilling to prevent the States and their citizens from

violating Indian rights.



Thus, faced with the prospect of losing both their lands and way of

life, the Choctaws agreed in 1830 to leave Mississippi and to move to

new lands west of the Arkansas Territory.  As a guarantee that they

would not again be forced to move, the United States promised to convey

the land to the Choctaw Nation in fee simple "to inure to them while

they shall exist as a nation and live on it."  In addition, the United

States pledged itself to secure to the Choctaws the jurisdiction and

government of all the persons and property that may be within their

limits west, so that no Territory or State shall ever have a right to

pass laws for the government of the Choctaw Nation . . . and that no

part of the land granted to them shall ever be embraced in any Territory

or State. Treaty of Dancing Rabbit Creek, Sept. 27, 1830, 7 Stat.

333-334.



The Cherokees were at first determined to retain the Georgia lands on

which they had by that time settled [397 U.S. 626] down, establishing

farms and towns.  However, after a time, they, too, were forced to

leave.  In the Treaty of New Echota, December 29, 183, 7 Stat. 478, the

Cherokees who had remained in the East agreed to leave their lands and

to join the Cherokees who had already moved west of the Mississippi. 

Once again, the United States assured the Indians that they would not be

forced to move from their new lands:  a patent would issue to convey

those lands in fee simple, and they would never be embraced within the

boundaries of any State or Territory.



The United States thus succeeded in its efforts to remove the Indians

from their eastern lands.  In exchange, by the Treaty of Dancing Rabbit

Creek with the Choctaws in 1830 and the Treaty of New Echota with the

Cherokees in 1835, the United States granted a vast area of its western

territory to the two Indian Nations.  The land thus granted to the

Choctaws encompassed what is today approximately the southern third of

the State of Oklahoma; to the north, the Cherokees received title to a

tract of land in the eastern part of the remainder of the State with a

perpetual outlet to and other rights in land farther west.



Although, by later treaties, other Indian tribes were settled on parts

of the land originally included in these grants, and the Chickasaw

Nation was granted an undivided one-fourth interest in the remainder of

the Choctaw land, see Treaty of January 17, 1837, 11 Stat. 573; Treaty

of June 22, 1855, 11 Stat. 611, the fee [397 U.S. 627] simple title to a

vast tract of land continued to be held by the petitioner Indian Nations

for well over half a century.



Then, again due in large part to the pressure of settlers who were

encroaching on Indian lands, Congress acted to change the arrangement. 

By  16 of the Act of March 3, 1893, 27 Stat. 645, a commission was

created to negotiate with the Indian tribes that had been located in

Oklahoma on the allotment of land to their individual members in

preparation for the final dissolution of the tribes.  Thereafter, the

Indians -- including the Choctaws, Chickasaws, and Cherokees -- agreed

to the allotment of their lands and the termination of tribal affairs. 

See Act of June 28, 1898, 30 Stat. 495; Act of July 1, 1902, 32 Stat.

716.  Finally, Congress provided for the disposition of all petitioners'

lands with the provision that any remaining tribal property "be held in

trust by the United States for the use and benefit of the Indians."  Act

of April 26, 1906,  27, 34 Stat. 148.  The way was thus paved for

Oklahoma's admission to the Union "on an equal footing with the original

States," conditioned on its disclaimer of all right and title to lands

"owned or held by any Indian, tribe, or nation."  Act of June 16, 1906, 

3, 4, 34 Stat. 270, 271.



According to petitioners, they received title to the bed of the Arkansas

River by treaty and patent from the United States.  Because the land was

not individually allotted or otherwise disposed of pursuant to the 1906

Act, title remained in petitioners or passed to the United States to be

held in trust for them.  The State, on the other hand, claims that

petitioners never received title to the land.  The courts below held in

favor of the State, thus disposing of the case since it was undisputed

[397 U.S. 628] that, if title remained in the United States, it passed

to Oklahoma upon admission to the Union as an incident of statehood. 

The sole question for review then is whether the treaty grants from the

United States conveyed title to the bed of the Arkansas River to the

Cherokee and Choctaw Nations. II



We move then to the construction and effect of the treaties between

petitioners and the United States.  At the outset, the State argues that

the bed of the Arkansas River was not included in the grants to

petitioners even by the accepted standards of ordinary conveyancing,

since, to a skilled draftsman, "the land descriptions in the treaties,

standing alone, actually exclude the river beds."



Part of the Arkansas River here in question is surrounded on both sides

by land granted to the Cherokees, and, with regard to it, the argument

is at the least strained.  There is no explicit exclusion of the river

bed in the 1835 Treaty of New Echota; in fact, there is no reference at

all to the river from "a point where a stone is placed opposite the east

or lower bank of Grand river at its junction with the Arkansas" to its

junction with the Canadian.  See 7 Stat. 480.  As we read the Cherokee

treaties and the patent issued thereunder by the President, the Cherokee

Nation was granted one undivided tract of land described merely by

exterior metes and bounds.  That portion of the Arkansas River between

its junctions with the Grand and Canadian Rivers lies completely within

those metes and bounds, and all of the land inside those boundaries,

including the river bed, seems clearly encompassed within the grant.



Below its confluence with the Canadian, the Arkansas River forms the

boundary between the land granted to the Cherokees to the north and the

Choctaws to the south, and the treaties do explicitly refer to this

portion [397 U.S. 629] of the river.  In the Treaty of Doak's Stand in

1820, petitioner Choctaw Nation was granted all the land within the

following boundaries: Beginning on the Arkansas River, where the lower

boundary line of the Cherokees strikes the same; thence up the Arkansas

to the Canadian Fork, and up the same to its source; thence due South to

the Red River; thence down Red River, three miles below the mouth of

Little River, which empties itself into Red River on the north side;

thence a direct line to the beginning. 7 Stat. 211.  (Emphasis added.) 

Ten years later, this grant was superseded by the Treaty of Dancing

Rabbit Creek, which "varied the description a little and provided for a

special patent," Fleming v. McCurtain, 215 U.S. 56, 59 (1909): beginning

near Fort Smith where the Arkansas boundary crosses the Arkansas River,

running thence to the source of the Canadian fork; if in the limits of

the United States, or to those limits; thence due south to Red River,

and down Red River to the west boundary of the Territory of Arkansas;

thence north along that line to the beginning. 7 Stat. 333.  (Emphasis

added.)  And the patent issued to the Choctaw Nation in 1842 by

President Tyler merely repeated the language of this latter treaty.



The Choctaw treaties preceded any grant to the Cherokee Nation; and,

under them, petitioners Choctaw and Chickasaw Nations claim the entire

bed of the Arkansas River between its confluence with the Canadian River

and the Oklahoma-Arkansas border.  The Cherokees, however, also have a

claim to this part of the river, based on the language setting out the

southern border of the [397 U.S. 630] land granted them in the Treaty of

New Echota:  from a point on the Canadian River, thence down the

Canadian to the Arkansas; thence down the Arkansas to that point on the

Arkansas where the eastern Choctaw boundary strikes said river. . . . 7

Stat. 480.  (Emphasis added.)  Moreover, they point to the patent issued

them by President Van Buren in 1838, which described the southern

boundary of their lands as follows: down the Canadian river on its north

bank to its junction with 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 Arkansas river. . . . (Emphasis added.) 

According to the Cherokee Nation, the United States thereby conveyed to

it the north half of the Arkansas River from its junction with the

Canadian to the eastern Oklahoma border.  Petitioners thus are in

disagreement about the effect of the words in the treaties and patents

with regard to this lower portion of the river.



That disagreement however, does nothing to make convincing even the

State's argument that this part of the river bed was excluded from the

grants as a matter of conveyancing law.  About all that can be said

about the treaties from the standpoint of a skilled draftsman is that

they were not skillfully drafted.  More important is the fact that these

treaties are not to be considered as exercises in ordinary conveyancing.

 The Indian Nations did not seek out the United States and agree upon an

exchange of lands in an arm's-length transaction.  [397 U.S. 631]

Rather, treaties were imposed upon them, and they had no choice but to

consent.  As a consequence, this Court has often held that treaties with

the Indians must be interpreted as they would have understood them, see,

e.g., Jones v. Meehan, 175 U.S. 1, 11 (1899), and any doubtful

expressions in them should be resolved in the Indians' favor.  See

Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89 (1918). 

Indeed, the Treaty of Dancing Rabbit Creek itself provides that, in the

construction of this Treaty, wherever well founded doubt shall arise, it

shall be construed most favourably towards the Choctaws. 7 Stat. 336.



Applying these principles here, we conclude that the entire Arkansas

River below its confluence with the Grand River was within the metes and

bounds of the treaty grants to petitioners.  The State argues that the

treaty terms "up the Arkansas" and "down the Arkansas" should be read to

mean "along the bank of the Arkansas River."  However, the United States

was competent to say the "north side" or "bank" of the Arkansas River

when that was what it meant, as it had in the 1817 grant to the

Cherokees in the Arkansas Territory.  See 7 Stat. 18.  Even more

damaging to the State's argument is the contemporaneous interpretation

of the treaty language by the President as reflected in the specific

language of the Cherokee patent, "down the Canadian river on its north

bank to its junction with Arkansas river; thence down the main channel

of Arkansas river."  [397 U.S. 632] (Emphasis added.)  According to the

State, the italicized part of this description should be read to mean

"down the north bank of the main branch of the Arkansas River." 

However, not only does this reading itself seem to include part of the

river bed -- that underlying the "secondary" branches -- but it also

conflicts with this Court's interpretation of the term in Brewer-Elliott

Oil & Gas Co. v. United States, 260 U.S. 77 (1922).



The facts involved in Brewer-Elliott were essentially similar to those

of the present cases.  There, the United States had established a

reservation for the Osage Indians which was bounded on one side by "the

main channel of the Arkansas river."  260 U.S. at 81.  The United States

brought suit to establish the Indians' right to the river bed and the

oil reserves beneath it, and the State of Oklahoma intervened to claim

that the river bed had passed to it at statehood.  The case came [397

U.S. 633] here after the Court of Appeals had held that, whether the

river was navigable or non-navigable, the United States, as the owner of

the territory through which the Arkansas flowed before statehood, had

the right to dispose of the river bed, and had done so, to the Osages.

Id. at 80.  This Court held that, in the region in question, the

Arkansas River was nonnavigable, and that the title of the Osages as

granted certainly included the bed of the river as far as the main

channel, because the words of the grant expressly carry the title to

that line. Id. at 87.  (Emphasis added.)  The question whether it would

have been beyond the power of the United States to make the grant had

the river been navigable was reserved for future decision.



In the present cases, there is no question that the Arkansas River is

navigable below its junction with the Grand River.  However, we do not

understand the State to argue the question reserved in Brewer-Elliott. 

Indeed, it seems well settled that the United States can dispose of

lands underlying navigable waters just as it can dispose of other public

lands.  See Shively v. Bowlby, 152 U.S. 1, 47-48 (1894).  Rather, the

question is whether the United States intended to convey title to the

river bed to petitioners.  See Alaska Pacific Fisheries v. United

States, supra, at 87; Moore v. United States, 157 F.2d 760, 763 (C.A.

9th Cir.1946); cf. Donnelly v. United States, 228 U.S. 243, 259 (1913).



Turning then to that question, we think it clear, as did the Court of

Appeals, that the parties to the treaties [397 U.S. 634] and patents did

not pause specifically to provide for the ownership of the river bed. 

According to the State -- even if the river bed was within the bounds of

the grants to petitioners -- we need look no further, because 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).  Even were we limited to the

treaties and patents alone, the most specific language of those

instruments is identical to that which we said "expressly" conveyed

title to the river bed in Brewer-Elliott.  However, nothing in the Holt

State Bank case or in the policy underlying its rule of construction

(see Shively v. Bowlby, supra, at 49-50) requires that courts blind

themselves to the circumstances of the grant in determining the intent

of the grantor.  Indeed, the court in Holt State Bank itself examined

the circumstances in detail and concluded "the reservation was not

intended to effect such a disposal."  270 U.S. at 58.  We think that the

similar conclusion of the Court of Appeals in this case was in error,

given the circumstances of the treaty grants and the countervailing rule

of construction that well founded doubt should be resolved in

petitioners' favor.



Together, petitioners were granted fee simple title to a vast tract of

land through which the Arkansas River winds its course.  The natural

inference from those grants is that all the land within their metes and

bounds was conveyed, including the banks and bed of rivers.  To the

extent that the documents speak to the question, they are consistent

with and tend to confirm this natural reading.  Certainly there was no

express exclusion of the bed of the Arkansas River by the United States,

as there was to other land within the grants. [397 U.S. 635]



As a practical matter, reservation of the river bed would have meant

that petitioners were not entitled to enter upon and take sand and

gravel or other minerals from the shallow parts of the river or islands

formed when the water was low.  In many respects, however, the Indians

were promised virtually complete sovereignty over their new lands.  See

Atlantic  Pacific R. Co. v. Mingus, 166 U.S. 413, 435-436 (1897).  We do

not believe that petitioners would have considered that they could have

been precluded from exercising these basic ownership rights to the river

bed, and we think it very unlikely that the United States intended

otherwise.  Nor do we believe that the United States would intend that

it, rather than petitioners, have title to the dry bed left from

avulsive changes of the river's course, which as the District Court

noted are common in this area.  Indeed, the United States seems to have

had no present interest in retaining title to the river bed at all; it

had all it was concerned with in its navigational easement via the

constitutional power over commerce.  Cf. Pollard v. Hagan, 3 How. 212,

229 (1845).



Finally, it must be remembered that the United States accompanied its

grants to petitioners with the promise that "no part of the land granted

to them shall ever be embraced in any Territory or State."  In light of

this promise, it is only by the purest of legal fictions that there can

be found even a semblance of an understanding (on which Oklahoma

necessarily places its principal reliance), that the United States

retained title in order to grant it to some future State.



We thus conclude that the United States intended to and did convey title

to the bed of the Arkansas River below its junction with the Grand River

within the present State of Oklahoma in the grants it made to

petitioners.  [397 U.S. 636] The judgments of the Court of Appeals are

therefore reversed, and the cases are remanded for further proceedings

consistent with this opinion.



It is so ordered.



MR. JUSTICE HARLAN took no part in the consideration or decision of

these cases. DOUGLAS, J., concurring



MR. JUSTICE DOUGLAS, concurring.



While I join the Court's opinion, I add a few words.



The Cherokees, pursuant to treaties with the United States, exchanged

their aboriginal domain in the East for more than 14,000,000 acres of

land west of the Mississippi, then in Indian Territory but now a part of

Oklahoma.  Pursuant to promises in the treaties, the United States on

December 31, 1838, issued a patent to the Cherokees describing the lands

by metes and bounds and conveying the lands here in question in fee

simple.



A portion of the Arkansas River is entirely within the grant to the

Cherokees.  It is therefore a mystery why all of the bed in that portion

of the river was not conveyed to the Cherokees.  The river bed was not

reserved to the United States by the patent.  The United States,

however, made other reservations:  (1) the right to permit other tribes

to get salt on the western part of the grant; (2) any rights to lands

assigned the Quapaws which turned out to be within the bounds of these

Cherokee lands; (3) the right to establish and maintain military posts

and roads, together with the free use of land, timber, fuel, and

materials for the construction and support of [397 U.S. 637] those

facilities.  Since the United States made some reservations, but made no

reservations of the river bed, and if fair dealing is the standard, one

would conclude, I think, that the river bed was the tail that went with

the hide.



As respects the Choctaws, another section of the Arkansas River was the

boundary between the Choctaw and the Cherokee grants.  Whatever may be

the rights between the Cherokees and the Choctaws, it seems clear to me

that, since one portion of the Arkansas was within the exterior

boundaries of the Cherokee grant and another portion was within the

exterior boundaries of the Choctaw grant, the river bed of each of those

segments went to the respective grantees in fee simple.



Here, an entire region was conveyed to these tribes as part of their

resettlement, with assurances of self-government [397 U.S. 638] and with

pledges that their new homelands would never be part of any State.  They

were indeed constituted as the sovereign autonomy established in lieu of

a prospective State.



The title held by these tribes as not the usual aboriginal Indian title

of use and occupancy, but a fee simple, cf. United States v. Creek

Nation, 295 U.S. 103, terminable if and when these Indian nations ceased

to exist [397 U.S. 639] or abandoned the territory -- conditions not yet

occurring.  The reliance by the Court of Appeals on United States v.

Holt State Bank, 270 U.S. 49, was therefore misplaced, as that case

involved only the aboriginal Indian title of use and occupancy.  Id. at

58-59.



The United States, speaking through the Solicitor General, has filed a

brief amicus taking that position in these cases and maintaining it

vigorously on oral argument.  It concedes, as it must in light of

Shively v. Bowlby, 152 U.S. 1, 49-50, that, while the United States

holds a domain as a territory, it may convey away the right to the bed

of a navigable river, not retaining that property for transfer to a

future State, though, as stated in Holt State Bank, that purpose is not

lightly to be inferred, and should not be regarded as intended unless

the intention was definitely declared or otherwise made very plain. 270

U.S. at 55.  Such exceptional circumstances are present here.



The treaties with the present Indians solemnly assured them that these

new homelands would never be made part of a State or Territory.  So it

is reasonable to infer that the United States did not have a plan to

hold this river bed in trust for a future State.  As the United States

says, we would have to indulge "a cynical fiction without any basis in

fact," to attribute such a purpose to the parties.  Sixty years later,

however, Congress was intent in creating a State out of these lands.

[397 U.S. 640]



Friction between the Indians and the whites who sought to settle on

these lands mounted.  As time passed, the American attitude towards

these treaties became as hostile as the opinion below.  The Commissioner

of Indian Affairs, in his 1886 Report, spoke of the exploitation of many

Indians by a few Indians who had a monopoly of land, and he attacked the

treaties as such: [I]t is perfectly plain to my mind that the treaties

never contemplated the un-American and absurd [397 U.S. 641] idea of a

separate nationality in our midst, with power as they may choose to

organize a government of their own, or not to organize any government

nor allow one to be organized, for the one proposition contains the

other.  These Indians have no right to obstruct civilization and

commerce and set up an exclusive claim to self-government, establishing

a government within a government, and then expect and claim that the

United States shall protect them from all harm, while insisting that it

shall not be the ultimate judge as to what is best to be done for them

in a political point of view.  I repeat, to maintain any such view is to

acknowledge a foreign sovereignty, with the right of eminent domain,

upon American soil -- a theory utterly repugnant to the spirit and

genius of our laws, and wholly unwarranted by the Constitution of the

United States. H.R. Exec. Doc. No. 1, pt. 5, 49th Cong., 2d Sess., 87. 

But cf. the views of Robert L. Owen, U.S. Indian Agent, in H.R. Exec.

Doc. No. 1, pt. 5, vol. 2, 50th Cong., 2d Sess., 134-135 (1888).  And

see A. Debo, The Rise and Fall of the Choctaw Republic 245 et seq.

(1934).



A commission was created to negotiate an agreement with these tribes

superseding the earlier treaties, all as related in Choate v. Trapp, 224

U.S. 665, 667-670.  An agreement was in time reached whereby tribal

lands were allotted to individual members of the tribe, with any

remaining tribal land passing to the United States as trustees for the

Indians.  34 Stat. 137.  The bed of the Arkansas was not allotted.  The

next year -- 1907 -- Oklahoma was admitted to the Union on an equal

footing with the original States.  34 Stat. 267.  Certainly this cession

by the tribes of their interest in the river bed of the Arkansas to the

United States in trust for [397 U.S. 642] their members was no possible

vehicle for transferring that title to Oklahoma.



The Court properly makes these cases candidates for application of the

classic rule that treaties or agreements with Indians are to be

construed in their favor, not in favor of commercial interests that

repeatedly in our history have sought to exploit them.  The idea was

perhaps best stated in United States v. Winans, 198 U.S. 371, 380-381:

[W] e will construe a treaty with the Indians as "that unlettered

people" understood it, and "as justice and reason demand in all cases

where power is exerted by the strong over those to whom they owe care

and protection," and counterpoise the inequality "by the superior

justice which looks only to the substance of the right, without regard

to technical rules."  119 U.S. 1; 175 U.S. 1.  How the treaty in

question was understood may be gathered from the circumstances.



We should therefore resolve any doubts in these cases in favor of these

Indians, mindful of what President Jackson said at a meeting with the

Choctaws and Chickasaws:



Brothers, listen:  the only plan by which this can be done, and

tranquillity for your people obtained, is that you pass across the

Mississippi to a country in all respects equal, if not superior, to the

one you have.  Your great father will give [397 U.S. 643] it to you

forever, that it may belong to you and your children while you shall

exist as a nation, free from all interruption. *    *    *    * Peace

invites you there; annoyance will be left behind; within your limits, no

State or territorial authority will be permitted; intruders, traders,

and above all, ardent spirits, so destructive to health and morals, will

be kept from among you only as the laws and ordinances of your nation

may sanction their admission. S.Doc. No. 512, 23d Cong., 1st Sess., Vol.

2, 24242.



Only the continuation of a regime of discrimination against these people

which long plagued the relations between the races can now deny them

this just claim. WHITE, J., dissenting



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 its 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 [397 U.S. 644] 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. I



As far as riparian rights are concerned -- 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 [397 U.S. 645]

different persons, the stream and the bed thereof shall become common to

both. The owners of land adjacent to a nonnavigable 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.  Railroad

Co. v. Schurmeir, 7 Wall. 272, 288-289 (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 (1891), is to like effect.  Shively v. Bowlby,

152 U.S. 1, 49-50 (1894), reemphasized 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 purpose, shall not be granted away during the

period of territorial government, but, unless in case of some

international [397 U.S. 646] 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, 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 (1850), and Shively v.

Bowlby, supra, at 47-48.  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 [397

U.S. 647] 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.  Nevertheless, whether the United

States had only a restricted 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

(1922); decision on that question was reserved, a 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 (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 (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, at 48-50.  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, at 672; Shively v. Bowlby, supra, at 47-48.  Such disposals

by the United States during the territorial period are not lightly to be

inferred, and should not he regarded as intended unless the intention

[397 U.S. 648] was definitely declared or otherwise made very plain.

United States v. Holt State Bank, supra, at 55. II



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 [397 U.S. 649] 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 [397 U.S. 650] 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 point 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 [397 U.S. 651] 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]; Railroad

Co. v. Schurmeier [sic], 7 Wall. 272, 287. . . . 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.  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

Choctaw Nations that the Indian [397 U.S. 652] 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. III



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 [397 U.S. 653] 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 (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.  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, 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

[397 U.S. 654] 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. Footnotes MARSHALL,

J., lead opinion (Footnotes)



* Together with No. 59, Cherokee Nation or Tribe of Indians in Oklahoma

v. Oklahoma et al., also on petition for writ of certiorari to the same

court.



1. E.g., Treaty of October 2, 1798, 7 Stat. 62; Treaty of December 17,

1801, 7 Stat. 66; Treaty of October 25, 1805, 7 Stat. 93.



2. See Johnson v. McIntosh, 8 Wheat. 543 (1823); Fletcher v. Peck, 6

Cranch 87, (1810).



3. See Act of March 26, 1804,  15, 2 Stat. 289.  In 1802, even before it

had acquired new lands west of the Mississippi, the United States agreed

to extinguish Indian title within the limits of the States as soon as it

could be done "peaceable [sic] and on reasonable terms." U.S. Interior

Dept., Federal Indian Law 180-181 (1958).



4. See n. 3, supra.



5. The efforts on behalf of the Cherokees remaining in Georgia included

two cases that were brought to this court, Cherokee Nation v. Georgia, 5

Pet. 1 (1831), and Worcester v. Georgia, 6 Pet. 515 (1832).  For a

recent account of these and other Cherokee efforts, see Burke, The

Cherokee Cases:  A Study in Law, Politics, and Morality, 21 Stan.L.Rev.

500 (1969).  See generally Federal Indian Law, supra, n. 3, at 180-200.



6. See Marlin v. Lewallen, 276 U.S. 58, 61 (1928); Choate v. Trapp, 224

U.S. 665, 667-668 (191'2).



7. The courts below did not resolve the dispute between petitioner, and

we likewise do not pass on that question.



8. This construction of the treaty term "down the Arkansas" indicate

that, at the minimum, the boundary of the Choctaws was also the middle

of the main channel.  Congress was accustomed to using the terms "up" or

"down" the river when designating a navigable river a the boundary

between States, see, e.g., Act of March 2, 1819,  2, 3 Stat. 490

(Alabama); Act of February 20, 1811,  1, 2 Stat. 641 (Louisiana); and,

when it did so, the boundary was set as the middle of the main channel. 

See Arkansas v. Mississippi, 250 U.S. 39 (1919); Iowa v. Illinois, 147

U.S. 1 (1893).



Given this congressional usage, it seems natural for the President, on

whose behalf the treaties had been negotiated, to have given the same

interpretation to identical language in the analogous situation

involving the boundary between petitioners Choctaw and Cherokee Nations,

which had long been considered sovereign entities.  In fact, this Court

recognized the analogy in Barney v. Keokuk, 94 U.S. 324, 337 (1877), a

case involving a grant bounded by the Mississippi River, when it quoted

with apparent approval the following language from Haight v. City of

Keokuk, 4 Iowa 199, 213 (1856): The grant to the [Indians] was to them

as persons, and not as a political body.  The political jurisdiction

remained in the United States.  Had the grant been to them as a

political society, it would have been a question of boundary between

nations or states, and then the line would have been the medium filum

aquae, as it is now between Iowa and Illinois. The grants to petitioners

were undoubtedly to them as "a political society," and any "well founded

doubt" regarding the boundaries must, of course, be resolved in their

favor.



9. The District Court took judicial notice of the navigability at all

relevant times of those portions of the Arkansas River in question, and

that issue is not in dispute here.  In the Brewer-Elliott case, this

Court affirmed the finding of the District Court that "the head of

navigation is and was the mouth of the Grand River."  260 U.S. at 86.

DOUGLAS, J., concurring (Footnotes)



1. In addition to the millions of acres conveyed to the Cherokees in fee

simple, which included the land surrounding the segment of the Arkansas

River here in question, they were guaranteed lands to the west of that

tract as "a perpetual outlet west" which provided for "free and

unmolested use" of those lands.



2. The detail of the removal of the Cherokees from their ancestral lands

are related in Western Cherokee Indians v. United States, 27 Ct.Cl. 1,

20 et seq.  While 6,000 had moved west to their new lands by 1838,

18,000 were still in their ancestral homes.



The Eastern Cherokees were prisoners in Georgia, under the guard of

5,000 United States soldiers, who had hunted them down from their

mountains and driven them out of their valleys and were now bringing

them to the terms of an enforced emigration. Id. at 20.



They were finally forcibly removed by the U.S. Army under General Scott:



He moved quickly and successfully, and has thus recorded the most

painful experience of his military life:



Food in abundance had been provided at the depots, and wagons

accompanied every detachment of troops.  The Georgians distinguished

themselves by their humanity and tenderness.  Before the first, night

thousands -- men, women, and children, sick and well -- were brought in.

 Poor creatures.  They had obstinately refused to prepare for the

removal.  Many arrived half-starved, but refused the food that was

pressed upon them.  At length, the children, with less pride, gave way,

and next their parents.  The Georgians were the waiters on the occasion,

many of them with flowing tears.  The autobiographer has never witnessed

a scene of deeper pathos. Id. at 23.



For early incidents involving this Court in aspects of the removal

problems, see M. James, Andrew Jackson:  Portrait of a President

280-281, 304-305 (1937); 1 C. Warren, Supreme Court in U.S. History,

c.19 (1937); Worcester v. Georgia, 6 Pet. 515.



3. Our agents said the following to the Cherokee Council on July 31,

1837:



Here you are subjected to laws, in the making of which you have no

voice; laws which are unsuited to your customs, and abhorrent to your

ideas of liberty.  There, Cherokees, you will make laws for yourselves,

and establish such government as in your own estimation may be best

suited to your condition.  There, Cherokees, in your new country, you

will be far beyond the limits or jurisdiction of any State or Territory.

 The country will be yours; yours exclusively.  No other people can make

claim to it, and you will he protected by the vigilant power of the

United States against the intrusion of the white man. S.Doc. No. 120,

25th Cong., 2d Sess., 988.



4. The Treaty with the Cherokees of December 29, 1835, 7 Stat. 478,

provided in Article 5 that no lands conveyed shall, without the consent

of the Cherokees, ever "be included within the territorial limits or

jurisdiction of any State or Territory."  And see Article IV of the

Treaty of Sept. 27, 1830, 7 Stat. 333.



5. The Treaty with the Cherokees of May 6, 1828, 7 Stat. 311, spoke of

the desire of the United States to provide the Cherokees a permanent

home, and which shall, under the most solemn guarantee of the United

States, be, and remain, theirs forever -- a home that shall never, in

all future time, be embarrassed by having extended around it the lines,

or placed over it the jurisdiction of a Territory or State, nor be

pressed upon by the extension, in any way, of any of the limits of any

existing Territory or State.



6. The story of the exploitation of Indians by state and local agencies

has been recently summarized by William Brandon:



Termination is truly a word of ill omen to tribal Indians.  Its meaning

in Indian affairs is the termination of "Federal responsibility," the

responsibility of the Federal Government to act as trustee for Indian

lands, rights, and resources; the responsibility to protect Indian

groups in these rights and possessions -- protect them particularly

against states, counties, cities, or other local powers that might

divest them of their rights and possessions -- and to provide certain

services such as education and health.



These responsibilities are based upon treaty promises or other equally

legal commitments, in which the Federal Government pledged, in return

for cessions of value, to render unto specific Indian groups specific

rights and their protection, plus the provision of schools, hospitals,

sawmills, teachers, doctors, tools and implements, roads, supplies when

needed -- all the services of the modern world, to be supplied and

administered by the Federal Government, rather than administered under

state and local jurisdictions, because of well founded apprehensions

that state and local jurisdictions might not be trustworthy in carrying

out such promise. Progressive, January, 1970, p. 38.



E. Cahn, Our Brother's Keeper 21 (1969), states the same theme:



The Indian knows that termination takes many forms.  He can be flooded

out of his reservation; he can be relocated; his reservation can be sold

out from under him if he cannot meet taxes to which it is subject.  His

limited power to protect himself on the reservation from local prejudice

and discrimination can be wiped away by the substitution of state laws

for tribal law, and state jurisdiction for tribal jurisdiction.  All of

these, the Indian knows, are variants on one basic truth:  the United

States Government does not keep its promises.  Sometimes it breaks them

all at once, and sometimes slowly, one at a time.  The result is the

same -- termination.  When the Indian is asked to forsake his status

under the Bureau in exchange for cash, for promises of technical aid,

for public work improvements and industrial developments, he has learned

to expect two things:



-- That the promises will not be kept.



-- That even if they should be kept, they will prove inadequate to

maintain the Indian at even his reservation level of deprivation.



7. The Cherokee Nation claims to have negotiated some 13 sand and gravel

leases for the bed of the Arkansas River between April 12, 1883, and May

27, 1893 -- prior to the admission of Oklahoma into the Union.  The

record does not disclose the date when the State of Oklahoma first

assumed the role of lessor of the river bed, although several cases have

involved such leases by the State.   See, e.g., Lynch v. Clements, 263

P.2d 153.



8. Sequoyah, the great Cherokee from Tennessee, whose home stood on the

banks of the Little Tennessee River, was crippled for life on a hunting

trip, and, in his inactive life thereafter, invented the Cherokee

syllabary, inspired by the "talking leaves" or written and printed pages

by which the whites communicated.  His syllabary contains some 80

syllables in the Cherokee language.  His memory is perpetuated in the

name of the genus of California giant redwoods, and his statue was

placed in Statuary Hall of the National Capitol in 1917.

