402 F.2d 739 (10th Cir. 1968), 9924, Cherokee Nation or Tribe of Indians in Okl. v. State of Oklahoma

Docket Nº:9924, 9925.
Citation:402 F.2d 739
Party Name:The CHEROKEE NATION OR TRIBE OF INDIANS IN OKLAHOMA, the Choctaw Nation and the Chickasaw Nation, Appellants, v. STATE OF OKLAHOMA et al., Appellees.
Case Date:October 31, 1968
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 739

402 F.2d 739 (10th Cir. 1968)

The CHEROKEE NATION OR TRIBE OF INDIANS IN OKLAHOMA, the Choctaw Nation and the Chickasaw Nation, Appellants,


STATE OF OKLAHOMA et al., Appellees.

Nos. 9924, 9925.

United States Court of Appeals, Tenth Circuit.

October 31, 1968

Page 740

[Copyrighted Material Omitted]

Page 741

Earl Boyd Pierce, Muskogee, Okl., for appellant The Cherokee Nation. With him on the brief were Joseph Muskrat, Oklahoma City, Okl., Andrew C. Wilcoxen, Muskogee, Okl., and Jesse L. Ballard, Tulsa, Okl.

Lon Kile, Hugo, Okl., for appellants The Choctaw Nation and The Chickasaw Nation.

M. Darwin Kirk, Tulsa, Okl., for the appellees. With him on the brief were G. T. Blankenship, Atty. Gen., for the State of Oklahoma; N. A. Gibson, Oklahoma City, Okl., for Commissioners of the Land Office of the State of Oklahoma; Jay R. Bond and Ross, Holtzendorff & Bond, Oklahoma City, Okl., for Eason Oil Co.; Varley H. Taylor, Oklahoma City, Okl., for Humble Oil & Refining Co.; Robert W. Richards and S. M. Groom, Jr., Oklahoma City, Okl., for Mobil Oil Corp.; Judson S. Woodruff, McAfee, Dudley, Taft, Cates & Mark, Oklahoma City, Okl., and S.W. Wells, Tulsa, Okl., for Skelly Oil Co.; H. B. Watson, Jr., and Walker & Watson, Tulsa, Okl., for Union Oil Co. of California and Steve Gose; Frederic Dorwart and Holliman, Langholz & Runnels, Tulsa, Okl., for Lone Star Producing Co.; David O. Cordell, Eugene A. Hoefling, Riley B. Fell and Oscar L. Hasty, Tulsa, Okl., for Marathon Oil Co.; Glenn R. Davis, Boesche, McDermott & Eskridge, Tulsa, Okl., and Millard F. Carr, Denver, Colo., for Tenneco Oil Co.; Dale Hinson, Robert L. Trimble and Hudson, Keltner, Smith & Cunningham, Fort Worth, Tex., for Southland Royalty Co.; W. Douglas Weisbruch, Irving, Tex., for Lone Star Producing Co.

Roger P. Marquis, Washington, D.C., for amicus curiae the United States. With him on the brief were Clyde O. Martz, Asst. Atty. Gen., and Frank B. Friedman, Atty., Dept. of Justice.

Alpheus Varner, Poteau, Okl., for amici curiae Robert G. Carter, B. E. Cobb and Katherine Cobb Baker.

Before LEWIS, BREITENSTEIN and HICKEY, Circuit Judges.

BREITENSTEIN, Circuit Judge.

This controversy concerns the ownership of the bed of the Arkansas River between its confluence with the Grand River 1 and the Oklahoma-Arkansas boundary. The Cherokees, Choctaws, and Chickasaws claim under deeds for vast areas executed by the United States.

Page 742

Oklahoma says that under the equal footing-implied trust doctrine it received title to the beds of navigable streams upon its admission to the Union. The trial court's decision in favor of Oklahoma was made, without an evidentiary hearing, on the pleadings and matters of which it could take judicial notice. No party contends seriously that any evidence is needed or helpful.

The Cherokees sued Oklahoma and the holders of various sand, gravel, oil, and gas leases granted by Oklahoma and covering parts of the land in dispute. The relief sought was an accounting and an injunction. Oklahoma and various of its lessees counterclaimed for a decree quieting title in Oklahoma. The Choctaws and Chickasaws were permitted to intervene and assert their claims of ownership to a portion of the riverbed. 2

All parties agree that the stretch of the Arkansas River with which we are concerned is navigable in fact. 3 From the mouth of the Grand to the confluence with the Canadian, the Arkansas flows through an area granted to the Cherokees. From the mouth of the Canadian to the state boundary, the river divides the lands of the Cherokees, which lie to the north, from the lands of the Choctaws, which lie to the south. The Choctaws claim that their title goes to the north bank of the Arkansas and the Cherokees dispute this. We find it unnecessary to consider this controversy between the Tribes.

The Tribes assert ownership by reason of deeds from the United States covering vast, undivided areas, the perimeters of which were described by metes and bounds. The deeds did not except the beds of navigable streams. The basic argument is that, as a simple matter of conveyancing law, title to all lands within the area vested in the Tribes. An understanding of the situation requires consideration of the circumstances in which the deeds were issued.

At the time of the independence of the United States, the Tribes occupied large areas of land in the South. Westward expansion caused increasing friction between the white settlers and the Indians. Georgia and other later formed states asserted jurisdiction over the Indians and their lands. Intolerable situations arose. 4 The states ignored efforts by the United States to protect and provide for the Indians through treaty and statute. The federal government, faced with growing strife among the Indians and the states, adopted the policy of resettling the Indians on lands to the west which were not then settled by whites.

The Cherokees were first given lands near the White River in what is now the State of Arkansas. 5 Emigration was slow, and new treaties were made, providing for resettlement of all the Cherokees on land west of the Mississippi to be deeded to the Indians by the United States. In turn, the Indians surrendered their lands east of the Mississippi. 6 The Cherokees were then moved to the new lands, but the voluntariness of their

Page 743

migration, and of their consent to the treaties, is doubtful.

The story of the Choctaws is much the same. Relocation of that Tribe from areas east of the Mississippi was made pursuant to the Treaty of Doak's Stand, October 18, 1820, 7 Stat. 210, and the Treaty of Dancing Rabbit Creek, September 27, 1830, 7 Stat. 333. The Choctaws gave up their lands in the East and received lands in the West.

The relocation of the Indians was made possible by the Louisiana Purchase of 1803, 7 in which the United States obtained the major portion of the western basin of the Mississippi River with the express intent that the inhabitants of the region 'shall be incorporated in the Union of the United States.' 8 Prior to relocation, however, the Cherokees and Choctaws desired protection from harassment by state and territorial governments. To induce them to move across the Mississippi, the United States agreed in the Treaty of New Echota and in the Treaty of Dancing Rabbit Creek that no part of the land granted would be included in any state or territory. 9 The patents issued to the Cherokees and to the Choctaws contained no exception or reservation relating to the beds of navigable streams. The lands granted were described by their exterior boundaries.

In the years that followed the situation of the Indians deteriorated. 10 New territories were created in the West and new states admitted into the Union. A number of these states were in regions where Indian treaties provided that no state or territory should be created. 11 The existence of an extensive area which was held by the Indians and in which private property was not recognized was a serious obstacle to the creation of the State of Oklahoma. 12 In 1893, Congress created a commission to negotiate with the Cherokees, the Choctaws, and other tribes for the extinguishment of the tribal titles to land, 13 and the allotment of land to the individual members of the tribes. The result was an agreement with the Cherokees 14 and with the Choctaws 15 which nullified treaties inconsistent therewith and which provided for the allotment of the lands. These agreements were followed by the Act of April 26, 1906, 34 Stat. 137, which provided for final disposition of the affairs of the Five Civilized Tribes. 16 This Act required that lands belonging to the tribes on their dissolution shall be held by the United States in trust for the use and benefit of the Indians. 17

Oklahoma was admitted into the Union in 1907 upon compliance with the conditions of the Enabling Act 18 which provided that Oklahoma should be so admitted 'on an equal footing with the original States, ' 19 and on the agreement

Page 744

that it disclaim title 'to all lands * * * owned or held by any Indian or Indian Tribes.' 20 By statute 21 and by court decision 22 Oklahoma has consistently maintained the position that it owns the beds underlying navigable streams. The present suit which questions that ownership was brought by the Cherokees nearly sixty years after statehood.

In Pollard v. Hagan, 44 U.S. (3 How.) 212, 230, 11 L.Ed. 565, the Court held that the Constitution did not pass title of the beds of navigable waters to the United States, but reserved title to the several states. Because new states enter the Union on an equal footing with all other states, title to the beds underlying navigable waters...

To continue reading