Choctaw Nation v. Oklahoma – Oral Argument – October 23, 1969 (Part 2)

Media for Choctaw Nation v. Oklahoma

Audio Transcription for Oral Reargument – March 05, 1970 in Choctaw Nation v. Oklahoma
Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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Louis F. Claiborne:

Chief Justice may it please the Court.

Yesterday I had said that the conveyances to these two tribes the Cherokee and the Choctaws taken together encompassed the riverbed of the Arkansas River.

In one instance the riverbed or the river was entirely surrounded by Cherokee land in the other portion — or the other portion, in dispute it formed the boundary between the territory granted to those two tribes.

As to that latter portion, the suggestion that somehow the bed of the Arkansas River was included in neither grant is somewhat comparable to what maybe a suggestion when say the states of Louisiana or Mississippi were admitted to the union where the Mississippi River is the boundary between them and because the acts of admission in each case read to the river or up the river or down the main channel of the river as these conveyances do.

The conclusion were reached that the Mississippi River were included neither in Mississippi nor in Louisiana, a result which we would strain to avoid because it obviously makes no sense.

That is quite comparable to the situation here.

We’re not dealing with grants — small grants to private landowners we are dealing with what amount to large territories ceded to quasi-sovereign tribes then defined as nations, in that time considered quasi-independent.

The treaties, the fact that we dealt with them by treaties of course indicates that approach of dealing with Indian tribes as independent entities.

The treaties themselves are recognized, powers extensive power of self-government in these tribes.

It would be inconsistent with that approach to reserve, to attempt to reserve, to wish to reserve, to have any interest in reserving the beds of navigable rivers or any other territory within the area ceded except only as the United States might have some special reason for doing so such as maintaining the area around Fort Gibson in the Middle of the Cherokee grants which was expressly done.

So here, they might have been interest in the United States in reserving a right of navigation on the Arkansas River and that can be read into this grants to the chapters in Cherokees but of course the navigational servitude which appertains to the United States in all states does not carry in it an ownership of the bed of the river and there is no reason to so read it here.

Hugo L. Black:

Is there any indication here that the bed of this river has any particular value for any by reason of any minerals or anything and its possibility?

Louis F. Claiborne:

Precisely, Mr. Justice Black.

At that time, it was not known that the bed of this river would become valuable.

There was therefore no reason for the United States withhold for its own benefit of the bed of this river.

All it was concerned about or it could be concerned about was to preserve its right to maintain it as an open highway of commerce and as a way of access to Fort Gibson within the Indian territory but as to the bed there was no reason for the United States to wish to retrieve ownership.

Hugo L. Black:

You didn’t quite understand my question.

Is anything in the record that indicates that the bed of the stream as such has embodied in it any minerals of any type that make it of a special value?

Louis F. Claiborne:

Today, yes Mr. Justice Black.

Hugo L. Black:

What is it?

Louis F. Claiborne:

Its oil.

Hugo L. Black:

Oil.

Louis F. Claiborne:

And this controversy arises because very valuable oil deposits have been discovered in the bed of the river and so the matter becomes an important practical dispute.

Hugo L. Black:

Is the real pragmatic question then who owns the oil there, the Indians or the State Oklahoma?

Louis F. Claiborne:

That is exactly the practical questions Mr. Justice Black.

Now, as to the equal footing doctrine, we say that the doctrine has no application here.

First, we point out that it hadn’t been invented yet Pollard versus Hagan, the first case in this Court to apply that rule thought from inevitable rule was some years after these grants to these Indian tribes.

Now, I don’t —

Byron R. White:

Now, before you finish, does the United States can take the position that the Arkansas was then or is not now I guess then was not then navigable above fort Gibson.

Yesterday you said we are talking about the navigable portion of the Arkansas River.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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Byron R. White:

Now, I suppose their Indian lands border of the Arkansas River above Fort Gibson.

Louis F. Claiborne:

They were.

They certainly were.

Byron R. White:

Are they still are?

Louis F. Claiborne:

I think not Mr. Justice White but they could be — they said it were Cherokee and creek lands bordering on the portion of the Arkansas River above Fort Gibson.

I already am not, I’m not aware.

Byron R. White:

Well, many of that, they would be separated of the question for any of navigable portion of the Arkansas River in this case.

Louis F. Claiborne:

That is I think true, Mr. Justice White.

I thought it was agreed by all parties and I made the misspeaking that the navigable course of the Arkansas River ends at Fort Gibson.

Byron R. White:

Has that ever been litigated?

Louis F. Claiborne:

I frankly cannot answer.

Perhaps, one of the other counsel will know — will know better.

As I say, the equal —

Potter Stewart:

What difference does it make to the point of view of the issue in this case whether it is navigable or not navigable?

Louis F. Claiborne:

The only claim Oklahoma claim make to the bed of the river here.

Potter Stewart:

Oh, their argument it depends upon the hypothesis (Voice Overlap).

Louis F. Claiborne:

Except the only on the supposition that it was never included in any grants or any Indian in which event it still belongs to the United States or still did at the time of — well I suppose it’s —

I am not sure.

It may still then belong to the United States.

Well, never having been ceded to the state expressly but when —

Warren E. Burger:

Claiborne, excuse me.

You’re finishing your answer (Voice Overlap).

In your submission yesterday you post that at least that as I understood it that the Indian tribes gave up and yielded land in Georgia and South Carolina in the Eastern interior states in exchange for this land, I suppose ,they surrendered all rights of every character to subsurface minerals and oils in those eastern lands, is that correct?

Louis F. Claiborne:

I think that is true, Mr. Chief Justice.

I should put, I’m not clear whether those grants were on as a categorically feasible grants.

I am clear that those grant’s were not made with stipulation which is quite relevant here that the present lands would never under any circumstance being incorporated within the State and that they will it in perpetuity as a permanent home.

This language being appropriate precisely because these tribes had been so often shifted Westwood that it was appropriate to at long last seem to be guaranteeing them a place from which they would not be evicted, though in the end they were evicted from Oklahoma as well.

As I said, the equal footing doctrine is inappropriate here, first because it haven’t been device yet and therefore can hardly be suppose to have been in the mind of the grantors but mostly because that is a doctrine which is — works to the benefit of the future State.

Here we have an expressed decoration in both treaties to the effect that never will a State be created in this territory and therefore no occasion to reserve for the benefit of a future State that will never come into existence in the beds of navigable rivers.

For these reasons, we suggest that the judgment be reversed.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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Hugo L. Black:

May I ask you one question that is to the provisions?

If the Indians are awarded this land, how will the oil be administered?

Will they own it in common, the tribe and if it has to be extolled, how will it be done, who will control?

Can they do it themselves?

Louis F. Claiborne:

Mr. Justice Black, as to your first question, the tribe retains an existence and does now have tribal property as oppose to the form of property which has been subdivided among the individual regions there is a tribal counsel, there is a tribal government, there are tribal funds which are administered for the common benefit of the tribe, some of those for school purposes.

What would happen and how the Indians would choose to appropriate the revenues from these oil lands are not clear.

It might be that because technically, the property would lie in trust with the United States that some supervision of these revenues would lie with the department of interior.

That the question frankly hasn’t been fully explored and I’m not sure how it would resolve, (Voice Overlap).

Hugo L. Black:

Did you say it will go to the schools?

What schools?

Louis F. Claiborne:

There are, as I understand it Cherokee and Choctaw schools maintained with tribal funds derived from other common tribal property.

Hugo L. Black:

Do they run there own schools still in that section of the country?

Louis F. Claiborne:

As I understand that they do, though some of them attend the State schools.

They’re free to do it Your Honor.

But they do use some of the tribal funds, for that purpose, sole purpose.

Byron R. White:

Now their educational systems, first grade to high school?

Louis F. Claiborne:

I think that is correct Mr. Justice White, and not for the whole.

Warren E. Burger:

Thank you, Mr. Claiborne.

Mr. Kirk.

M. Darwin Kirk:

Mr. Chief Justice and may it please the Court.

Our friends, the Cherokees have produced a convenient map which I think will be helpful in following to the argument which I will make and I respectfully ask the Court to refer to that map.

Also, you might find it helpful to refer to the little map on page 25 of chapter 3.

Now, this controversy involves the bed of the navigable portion of the Arkansas River.

The portion, selected by the Cherokees in bringing this suit in 1966 was the portion commencing at the Arkansas Line where the City of Fort Smith is located and ending where the Grand River flows into the Arkansas.

Byron R. White:

Fort Gibson is?

M. Darwin Kirk:

Where Fort Gibson is, correct.

Byron R. White:

It’s settled that the Arkansas was thought to be navigable by the —

M. Darwin Kirk:

No, it is settled that the Arkansas was then thought to be navigable.

It was established as navigable.

Byron R. White:

Above that.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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M. Darwin Kirk:

No, I’m not — we’re speaking only of the area in controversy.

Byron R. White:

That wasn’t settled that it was not navigable above Fort Gibson.

M. Darwin Kirk:

The historical evidence is that there are a few miles of the Arkansas and a few miles of the Verdigris that are navigable and were– would be legally sold but the Cherokees didn’t choose to include that in these suits, so we have not treated it in the suit.

Byron R. White:

Certainly it is now, wasn’t it?

M. Darwin Kirk:

Yes, it is now.

And at the times we’re talking about, the times these treaties were made, it was very definitely navigable.

The stretch of the river is a meandering stream, as you see it from that map.

Although it has not been pertinent in this case and no evidence has been introduced on it and our engineer estimates that there are a little over a 100 miles of riverbed in this stretch of the river.

You will note that the head of the stretch, Fort Gibson established in 1824 and at the foot of it, Fort Smith on which the first military establishment appeared in 1817.

This area has been substantially used in commerce during this decade previous to the time of the signing of these final treaties with the Cherokees and the Choctaws.

Now, let us keep these dates in mind.

The first treaty that the Eastern Cherokees signed, and they constituted I believe about four-fifths of the entire tribe, was in 1835.

All treaties previous to that had been negotiated with the Western Cherokees, who then I believe constituted only about one-fifth of the Cherokee members.

They were a group that separate from the rest and went out voluntarily and the rest didn’t want to negotiate over many years and finally arrived in the agreement in 1835.

Now, the final Choctaw Treaty, the one on which superseded all previous treaties and the one upon which the Choctaw claims under patent is based was executed in 1830.

So, in this decade previous to that, this stretch of the Grand River, the Arkansas River up to the Grand was established as a useful artery of commerce.

The trial court examined into the available facts carefully and reached a very definite conclusion on that subject.

The trial court said, “It is the conclusion of the Court as to this issue that it was common knowledge in the legal sense from at least as early as 1824 until sometime after November 16, 1907, the day of Oklahoma State.

The Arkansas River in its natural state was a navigable river to below in its confluence with the Grand River regularly used throughout the remainder of its course in what is now Oklahoma as a highway of Commerce during the major portion of each year.

Accordingly, it is the decision of this Court based upon judicial knowledge alone and without taking the evidence that this stretch of the Arkansas River was never 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 that the time the treaties were made pursuant to which the lands were ceded, and also at the time when Oklahoma was admitted to statehood November 16, 1907.

History records substantial riverbed navigation along that stretch of the Arkansas River but during this period there were regularly scheduled trips at the Ports of Fort Gibson and at the ports, free ports just above Fort Gibson.

In 1833, 17 boats regularly docked at Fort Gibson.

There were 22 established landings between Fort Smith and Fort Gibson and including Redland, Sallisaw, Webbers Falls and Vian.

It actually was the only method by which substantial commerce could come into this area and as a result of this navigable water, this part of Oklahoma became to be the first port that had any substantial settlements made in it.

It was a vital link between Fort Smith and Fort Gibson and the bottleneck between Fort Gibson and the outside world.

History is complete with the records of substantial stores for the army post, recruits being brought in a great many of the Indians who later came in under this treaties were brought up this river in boats and steam boats.

They device the shallow draft steamboat which could negotiate this river very well in the major portions of each year and so there is no question that this was an established navigable body of water before these treaties were made.

It was so found by the trial court and has not been challenged in this case that I know of.

The ownership of the Mississippi River and its tributaries and I should say that the Arkansas River is a second longest tributary of the Mississippi, the longest being the Missouri.

The negotiators that appear into the Louisiana Treaty were quite cognizant of the necessity of securing all these waters because of navigation and many other reasons.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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M. Darwin Kirk:

In a later date of May 13, 1803 from Robert Livingston and James Monroe to James Madison, the secretary of the State, the writer set the question of a full control on use of the Mississippi River and all streams that entered into it from their sources to the ocean was one of the paramount reasons culminating in the Louisiana Purchase of 1803.

President Jefferson in submitting the Louisiana Purchase Treaty to Congress to the Senate for ratification to Congress for the appropriation said, “whilst the property and sovereignty of the Mississippi and its waters secure and independent outlet for the produce of the Western States and the non-control of navigation through their whole course, free from collision with other powers and the dangers to our peace from that source, the fertility of the country its climate and extent prowess in dew season the important age to our treasury and ample provision for our posterity and the widespread for the blessings of freedom and the equal laws.

Hugo L. Black:

Mr. Kirk, may I see if I can understand about everybody here about who do you represent?

M. Darwin Kirk:

State of Oklahoma sir.

Hugo L. Black:

Only the State of Oklahoma?

M. Darwin Kirk:

Just the State of Oklahoma, yes.

Hugo L. Black:

I see the attached names to your briefs.

I should know the other counsel representing all respondents.

M. Darwin Kirk:

Pardon me, Mr. Justice Black I am representing actually all of the respondents which include the State of Oklahoma’s lessees also its oil and gas lessees and its sand and gravel lessees.

Hugo L. Black:

It has — the State of Oklahoma has already leased these lands?

M. Darwin Kirk:

The State of Oklahoma has leased these lands.

In fact it has been leasing them since about 1908.

Hugo L. Black:

Has there been any litigation about it before?

M. Darwin Kirk:

Not with the Cherokee tribe or the Choctaw tribe until this last lease was instituted in 1966.

The State of Oklahoma —

Hugo L. Black:

Now, how long had the State of Oklahoma been making leases?

M. Darwin Kirk:

Nearly 60 years.

Hugo L. Black:

And are they developing oil right now?

M. Darwin Kirk:

There is no oil developed thereon.

Mr. Claiborne I believe was mistaken on that subject sure he was in good faith there is some gas production.

Hugo L. Black:

But these oil companies are represented, what’s their representation if it is not for the oil.

M. Darwin Kirk:

It is because of the gas.

They have all gas leases.

Hugo L. Black:

Is any of that being developed now?

M. Darwin Kirk:

Yes, there is some gas production on some of the leases.

Hugo L. Black:

How long has it been developed?

M. Darwin Kirk:

It’s a quite recent, just in the last three or four years, I would think.

Hugo L. Black:

But who is this controversy really between.

M. Darwin Kirk:

This controversy is between the State of Oklahoma and the Cherokee tribe and the Choctaw tribe (Voice Overlap).

Hugo L. Black:

I know that one of this case but who is it actually between the oil?

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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M. Darwin Kirk:

The standard values of land should, could I say this Mr. Justice Black.

The values of the land involved far exceed the value of the minerals and the State of Oklahoma has no other claimant to the lands other than the State.

Hugo L. Black:

Your claim here is that the State of Oklahoma was given the bed of the stream when it became a State.

M. Darwin Kirk:

That is correct.

Hugo L. Black:

And it’s owned it ever since and it never have been conveyed to anybody else.

M. Darwin Kirk:

That is correct.

Hugo L. Black:

Now, if you say that at the end of this lawsuit, our controversy between various oil companies as to whether the State can give it to them or the Indians can give it.

M. Darwin Kirk:

There is no controversy, Mr. Justice Black.

Hugo L. Black:

Well what would it be then?

M. Darwin Kirk:

There is no controversy between the State and the oil and gas lessees.

Hugo L. Black:

I’m not talking between the State, of the two groups of the oil companies that at the end of this, you’re going to have a fight over which one gets it dependent upon whether it goes to the Indians or the State.

M. Darwin Kirk:

No, there is not.

The other gas lessees —

Hugo L. Black:

What are all these oil companies whose name assigned to your brief?

Why are they interested?

M. Darwin Kirk:

Because they hold oil and gas leases from the State of Oklahoma.

Hugo L. Black:

From the state.

M. Darwin Kirk:

From the state of Oklahoma.

Hugo L. Black:

And not from the Indians.

M. Darwin Kirk:

Not from the Indians, that is correct.

Hugo L. Black:

Well, they are bound they have to fight that out at the end of the lawsuit out there.

M. Darwin Kirk:

No, not if the State of Oklahoma prevails they have good leases.

Hugo L. Black:

That’s right.

But suppose the State of Oklahoma doesn’t prevail?

M. Darwin Kirk:

If the State of Oklahoma does not prevail then they would have to make their piece with whichever of the Indian tribes does prevail.

As stated yesterday by Mr. Kile, there is a conflict between the Choctaws and the Cherokees?

Hugo L. Black:

Well now, do any of them who already have leases from the Indians.

M. Darwin Kirk:

None that I know of.

Hugo L. Black:

You don’t know?

M. Darwin Kirk:

I know of none and I’ve not heard of any.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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Warren E. Burger:

Let me go back to something you said to Mr. Justice Black and you said the land and by that I assume, you mean the land under the bed of the river, the land of the riverbed is worth more than any estimated value of subsurface products.

M. Darwin Kirk:

In Oklahoma —

Warren E. Burger:

Is that in this record?

M. Darwin Kirk:

Yes the value is not, no.

And the oil and gas development actually is not either but these are undisputable facts.

The law is and we have set it forth on our briefs that the State claims the riverbed between high watermarks and that was established years ago in the law of Oklahoma as being the States the extent of the states claim to the bed of a navigable stream, Mr. Chief Justice.

And there the stream is being stabilized and in some places straightened by the United States Army Engineers in this navigation, Arkansas River Navigation Project that is going up there.

At least a considerable amount of area formerly covered by waters are better and Mr. Kile mentioned that in the talking about in the evasive bed and I believe that is what he intend to say.

Hugo L. Black:

Mr. Kirk, can I ask the question because as you look at the briefs now, it looks like this is ultimately aside as that which all I have does and this will get the leases and that will depend on whether the State or the Indians own the land.

M. Darwin Kirk:

Mr. Justice Black perhaps that could be assumed but it is not a fact.

Hugo L. Black:

But what’s they reason for all these briefs by the oil companies?

M. Darwin Kirk:

The oil companies are seeking to protect their respective leases.

Some of the companies have only one lease on maybe very limited area of riverbed.

Hugo L. Black:

On what?

M. Darwin Kirk:

Some of the oil companies do have only one lease on a very limited area of riverbed.

Hugo L. Black:

This is about 25, it looks like to me.

M. Darwin Kirk:

Well, I say one you may find one company that will have only one lease on one say 320-acre track which then composes a part of the riverbed but we have a 100 miles of riverbed here to consider.

Hugo L. Black:

Are you representing the Indians?

M. Darwin Kirk:

No, I am representing the State of Oklahoma and its lessees, Mr. Justice Black.

Hugo L. Black:

And the oil companies that have leases.

M. Darwin Kirk:

Its lessees are the oil companies and the sand and gravel companies that are parties to this litigation.

Byron R. White:

You’ve got a covenant in their leases guaranteeing the title?

M. Darwin Kirk:

I’m —

Byron R. White:

I suppose you’re obliged to.

M. Darwin Kirk:

There is a representation of title yes.

I’m certain.

Byron R. White:

And as your — you have usual royalty for your leases.

M. Darwin Kirk:

Yes.

Byron R. White:

On the oil gas 1/8.

M. Darwin Kirk:

I am not sure of the amount, what is the 1/8.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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Byron R. White:

Does that produce — are those leases producing revenue for the State now?

M. Darwin Kirk:

A few of them are.

It has not been out and said there was no oil, there is some gas and there has been rather difficulty.

It looked a lot better when the suit started and it does now.

Hugo L. Black:

When was that?

When did the suit actually started between the Indians?

M. Darwin Kirk:

The Indians brought to suit in December 1966, Mr. Justice Black.

Hugo L. Black:

Had there been more suits before that?

M. Darwin Kirk:

That’s the first suit that the Indians have brought here on challenging this and Oklahoma has exerted dominion control over these river for 60 years prior to that.

Thurgood Marshall:

But you didn’t use it prior to that.

M. Darwin Kirk:

Yes we did, we exclude many all gas leases and sand and gravel leases to this market Mr. Justice Marshall.

Thurgood Marshall:

Do I understand you to say that the past four years there has been a big jump in this game?

M. Darwin Kirk:

Past three or four years, there has been a discovery of gas, a gas field over in this area.

Thurgood Marshall:

That’s when the Indians —

M. Darwin Kirk:

That’s correct.

Thurgood Marshall:

— decided they were interested in the money.

M. Darwin Kirk:

That’s right.

That got them interested and apparently they decided to file their suit then.

They stood by for 60 years without filing any suit or bringing the question to Court.

Byron R. White:

What value is the riverbed in the State of Oklahoma other than the mineral production?

M. Darwin Kirk:

The riverbed and composites within high watermarks are great deal of land and the land values are very substantial.

Byron R. White:

For what?

M. Darwin Kirk:

Agriculture.

These river bottom lands that — where the river is now being controlled through the navigation project are very valuable lands.

They can be smooth over with a bulldozer and put on production some of it has high bank.

Byron R. White:

You mean when the river is deepened and channeled what used to be covered by water isn’t (Voice Overlap) by water anymore.

M. Darwin Kirk:

That is correct.

Byron R. White:

And those lands are then exposed they are ready for use.

M. Darwin Kirk:

Right.

Byron R. White:

And those are the lands that Oklahoma would like to own.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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M. Darwin Kirk:

That’s right.

That’s the real value in this case.

Warren E. Burger:

Any other use except agriculture?

M. Darwin Kirk:

Well, of course, the gas production is something (Voice Overlap).

Warren E. Burger:

Leaving that out.

M. Darwin Kirk:

Well —

Warren E. Burger:

Raising lands here?

M. Darwin Kirk:

Probably yes, probably the new navigation channel makes certain areas along with the river bed valuable for sites for industrial plans or any number of things but the navigation project plus the gas development somewhat in different success probably have something to do with the Indians deciding in 1966 to file their suit.

Warren E. Burger:

Is there anything in this record showing the aggregate number of acres that lie between the high and low watermark in Oklahoma claims?

M. Darwin Kirk:

No, there’s nothing in the record and actually we have never ascertained it.

It’s a very difficult civil engineering job.

Warren E. Burger:

I should think it would be.

M. Darwin Kirk:

That will be.

Warren E. Burger:

You say it’s very, it’s a very substantial area in total.

M. Darwin Kirk:

It is.

Now, Mr. Kile in his argument yesterday, referred to our preliminary statement in our brief and states that he accepts the challenge in that statement.

That’s at page 9 and if the Court cares to refer to it again and he read what we stated and I’m going to read it again because it is our position in this case on this point.

Page 9 directly under preliminary statement, the question to be resolved is simple and direct.

Did the United States convey or agreed to convey the riverbed to the Cherokees or Choctaws?

The answer is no.

Not by the standards this Court has established for the beds of navigable waters or even by the accepted standards of ordinary conveyancing in the judgment of the courts below, there was no ambiguity on this subject and each of them concluded that the treaties and patents did not provide for a conveyance of the bed of the river.

Petitioners not having met to burden of showing inclusion of the riverbed under their treaties or patents have sought to shift the burden by arguing that the State must show that the United States reserved the riverbed when it made the treaties and patents.

Since the United States did not convey the riverbed, there was no need to reserve it.

We say that the riverbed was not conveyed and the Court of Appeals sustained us in that.

Now, let us refer to the language of the treaties and the patents because there is where the languages upon which the Choctaws and the Chickasaws or the Cherokees must stand or fall.

In the treaty of October 18, 1820 with the Chocktaws, the treaty called the Treaty of Doak’s Stand.

The lands ceded and I’m not going to read the whole lengthy description but just to part only part that refers to the Arkansas.

Hugo L. Black:

Where are you reading from this, the most convenient place?

M. Darwin Kirk:

Well this is not in, this is —

Hugo L. Black:

Not in your brief?

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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M. Darwin Kirk:

This is page 56.

Hugo L. Black:

Of your brief?

M. Darwin Kirk:

56 of our brief yes.

Hugo L. Black:

Thank you.

Article 4?

M. Darwin Kirk:

A tract — a treaty October 18, 1820 Doak’s Stand, a tract of country and I haven’t included all of this and I am not going to read all that might be the descriptions.

A tribe and only the parts referring to the Arkansas River, a track of country west of the Mississippi River situate between the Arkansas and Red River and bounded as follows, beginning on the Arkansas where the lower boundary line on the Cherokees strike the sand, that’s up the Arkansas to the Canadian Fork and up the same that source and so forth that is all of the set about the Arkansas River just dense up the Arkansas and that treaty but they do make it quite clear it’s a vast track of land that lies between the Arkansas and the Red River.

Now, if you’ll look at that little map on page 25 of the Choctaw brief, you’ll find an oversimplified but somewhat helpful map which shows where that boundary goes.

They have a vast track there between the Arkansas and the Red River and that’s what the Government agreed to convey it to them.

Now, —

Warren E. Burger:

Let me go back to that language now that your emphasizing and see if I understand you.

M. Darwin Kirk:

Yes.

Warren E. Burger:

In second line the middle of the first line where the lower boundary line of the Cherokees strikes the sand, that is strikes the Arkansas River, do you say that it strikes the high watermark or the low watermark or the center of the channel, where?

M. Darwin Kirk:

Well, they’re really locating that because of the Arkansas State boundary.

The Cherokee southeastern corner was located by the surveyor Isaac McCoy who on whose basis who’s surveying the Cherokee pattern was wrong.

On the north bank of the Arkansas and he located the northeastern boundary of the Choctaws on the South bank of the Arkansas.

Now, let us take this treaty, final treaty between the Choctaws and the United States in which all the previous treaty was superceded and merged you might say, that’s the Treaty of Dancing Rabbit Creek, September 13, 1830.

You will find that on page also a reference to that at page 59, I believe of our briefs, 56 of our brief, yes.

Now, the beginning near Fort Smith where the Arkansas boundary crosses the Arkansas River running dense to the source of the Canadian Fork.

Now, that is the only margin of the Arkansas River running dense to the source of the Canadian Fork.

That’s all as said about the Arkansas River in that treaty and that’s the final treaty.

Now, their patent, their patent is shown — the Choctaw’s didn’t set up their patent in their brief, so we had to set it out and it’s shown on page, appendix 5 of our brief, patent issued to the Choctaws.

Warren E. Burger:

And are you speaking of the Roman V designation?

M. Darwin Kirk:

Well it is a Roman Numeral XI and appendix V.

Patent to the Choctaws dated March 23, 1842.

I won’t read all of that I will read just a part that mentions the Arkansas River.

That however is before the Court and if you want to read everything that’s said, it’s there.

The United States under grant especially to be made by the press of the United States and they were citing the previous treaty the year 1933.

The United States under grant special to be made by the President of the United States shall cause to be conveyed to the Choctaw a tract of country west of the Mississippi River and fees to them and their descendants to inure to them why they shall exist as a nation and live on it.

Beginning near Fort Smith where the Arkansas boundaries strike the Arkansas River running dense to source of the Canadian Fork.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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M. Darwin Kirk:

If you are in the limits of the United States or to those limits hence due south to the Red River down the Red river to the west boundary of the territory of Arkansas.

Thence, north along the line to the beginning, now that is the description.

Byron R. White:

Do you think that — is that the coal of the respective Red River the same as that of the Arkansas.

M. Darwin Kirk:

That is correct the Red River is a non-navigable stream.

Byron R. White:

Well, I know but that will take a quite (Inaudible) whether the bed of the stream is included in the patent.

M. Darwin Kirk:

That’s correct but the rule is different on a navigable stream from a non-navigable stream.

Byron R. White:

Oh it is but it may be — it’s clear that the patent included stream.

M. Darwin Kirk:

Well that’s correct it seems clear to consider there.

That’s correct.

Thurgood Marshall:

Other than the right of the Federal Government over the navigable stream, what is the difference so far as the State is concerned between navigable and a non-navigable stream?

M. Darwin Kirk:

It is our position Mr. Justice Marshall that the State upon obtaining statehood acquires the bed of the navigable streams and that United States holds it in trust for the future states to be formed.

Thurgood Marshall:

But does the state also takes jurisdiction of the non-navigable stream?

M. Darwin Kirk:

No, the State does not own any non-navigable streams.

Thurgood Marshall:

Well, then you say that the State that has no jurisdiction over the Red River.

M. Darwin Kirk:

That is correct.

Thurgood Marshall:

Well, who has jurisdiction?

M. Darwin Kirk:

The riparian owners, I believe on the south side, I believe the —

Thurgood Marshall:

Well, in this particular area of the Choctaw Nation, no base still on that?

M. Darwin Kirk:

As riparian owners on the north side I understand that they claim own to the middle.

Thurgood Marshall:

They’re only the riparian owners but they this results as the treaty.

M. Darwin Kirk:

That’s right.

Thurgood Marshall:

But what about the provision of the treaty that they shall not give any of this to the State.

M. Darwin Kirk:

What is that Mr. Justice Marshall?

Thurgood Marshall:

Part of the treaty would say none of these grants shall be able to be given to a State.

Can you say that in the treaty?

M. Darwin Kirk:

No, the treaty didn’t say that the treaty said that the lands ceded to the Choctaws shall at no time be included within the limits of the future territory or State and the treaty with the Cherokees, I said the lands ceded to the Cherokees shall at no time be included within the limits of a future territory or State without their consent.

We think that getting the consent of the Choctaws could be implied, I mean they could always consent.

Thurgood Marshall:

Do you mean that the fact that they didn’t object mean that they consent it?

Byron R. White:

Wasn’t there a major treaty?

M. Darwin Kirk:

No they didn’t consent.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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M. Darwin Kirk:

No, I will tell you that there were later treaties in which I did consent.

Thurgood Marshall:

That’s what the Court says.

M. Darwin Kirk:

Yes.

Byron R. White:

But if the — if it were held I suppose if this happens to the Cherokees and Choctaws and that’s scoop up the bed of the Arkansas River, same exactly the same language should include then the Red River.

M. Darwin Kirk:

Well,

Byron R. White:

Well, wouldn’t it really —

M. Darwin Kirk:

Well, they have to be expressly included, yes.

They have to expressly included.

Byron R. White:

I am now asking you concede where your case is and if it were held in this case time whether your intentions, given intentions.

M. Darwin Kirk:

Yes.

Byron R. White:

That this happened to convey bed of the Red River and the bed of the Arkansas River to be shared on the north of the Choctaw.

M. Darwin Kirk:

Yes.

Byron R. White:

The same patent would convey the bed of the river.

M. Darwin Kirk:

Yes, excuse me, Mr. Justice White.

Byron R. White:

That would be dependent on the riparian owners of themselves.

M. Darwin Kirk:

My throat is getting a little hoarse and I’d like to water if I might please.

Warren E. Burger:

Will you get some water for Mr. Kirk?

We apologize that should have been placed there at the outset of your argument.

We will have it for you in a moment.

Hugo L. Black:

Is anything said in any of these while they can call on previous advancements that refers to navigable particulars?

M. Darwin Kirk:

No there is no mentioned of navigability.

Now, with respect to the Cherokee treaties and patents, we have and if you wish to follow it in page 50 in reference —

Warren E. Burger:

50 now of your brief?

M. Darwin Kirk:

Page 50 of our brief.

The reference is to the reference in the Cherokee Treaty of May 6, 1828.

The only reference to the Arkansas River is to the main branch of the Arkansas River to its junction with the Canadian River.

Warren E. Burger:

What part now?

You will help us if you identify it.

M. Darwin Kirk:

That’s on Page 50.

Warren E. Burger:

Under Article 2?

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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M. Darwin Kirk:

Of our brief.

Yes under Article 2.

The complete description is given there.

Warren E. Burger:

How far down — how far down from commencing is the pertinent part?

M. Darwin Kirk:

The only part that where Arkansas River is mentioned is to the main branch of the Arkansas River thence down said river to its junction with the Canadian River.

Now, on that treaty the area of between Fort Smith and the confluence with the Canadian was entirely left open, it wasn’t even mentioned.

Now, that was a treaty with the Western Cherokees.

We have maps in back of our brief that shows it.

Now, the Treaty of February 13, 1833.

Now, that maybe found on the description on page 51 and omitting the previous language and going only to where it mentions the Arkansas thence down, let’s see, down the old western territory line of Arkansas territory to the Verdigris and down into few miles and I know this first mentioned the Arkansas, to the Arkansas.

Thence down the Arkansas, as you can see is just a few miles there to a point, thence down the Canadian to the Arkansas, thence down the Arkansas to the point of the Arkansas where the Eastern Choctaw boundary strikes the said river.

Now, the patent is the New Echota Treaty, the one which the Eastern Cherokees joined.

December 29, 1835 the patent is shown in full in our Appendix 9, back to the Cherokees.

Warren E. Burger:

What’s the Roman designation?

M. Darwin Kirk:

29 in a Roman numeral page.

Hugo L. Black:

Which one of these — in which one of these do your adversaries explained, they were conveyed the bed of the streams?

M. Darwin Kirk:

Well, they haven’t been very specific about that, Mr. Justice Black, but apparently they invoke all these treaties.

Apparently, I hope to find an inclusion somewhere.

Hugo L. Black:

But is that a claim that simply the conveying of the land conveys the bed of streams to them?

M. Darwin Kirk:

Apparently, that is their contention.

Now, the only place here in the patent where the Arkansas River is mentioned is where it says, in the patent on page 30 top of page.

Warren E. Burger:

We are still on the appendix now?

M. Darwin Kirk:

Yes.

In my notes, I apologize.

In my notes, I’ll try to leave out anything that didn’t expressly refer to the Arkansas.

Well, anyhow, this is taken from this treaty, thence down the main channel of the Arkansas River to the western boundary of the State of Arkansas.

Now, that’s only reference to the Arkansas River there except the reference above to the junction with the Arkansas River.

Hugo L. Black:

May I ask to be clear about what you are — why you are presenting these?

Are you presenting these to show that at no place in any of the treaties that carry any reference to the bed of the streams?

M. Darwin Kirk:

Right, right.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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M. Darwin Kirk:

And I’d like to call the attention of the Court to the conclusion of the Court of Appeals on that subject.

Now, that is found in the appendix, the general appendix at page 144a, 144a of the appendix, the first grammatical paragraph.

Mr. Justice White asked a question on that yesterday which I believe was not answered correctly.

I call attention to what the Court of Appeals said, “The Indians seek comfort from the technical language of the treaties and grants.

They attach significance to such phrases as to the Arkansas River.

Down the Arkansas and thence down the main channel of the Arkansas.

We agree with Oklahoma that references to the Arkansas River are for the purpose of establishing reference points, monuments or boundaries.

They do not indicate an intent much less a clear intent to convey the riverbed.”

Now, that was the conclusion of the Court of Appeals in passing on these treaties and patents that I have gratefully referred to you.

Byron R. White:

What about the point that if you read the Cherokee patent, the Cherokee lands straddle the Arkansas and you cross the Arkansas at one point to get south of the River and cross back to the north of another point?

M. Darwin Kirk:

We say that —

Byron R. White:

What are you going to do about that?

M. Darwin Kirk:

As to that, that’s about 40%, I would say of this riverbed, about 60% lies below the junction where the Canadian, about 40% has the Cherokee lands on both sides.

Byron R. White:

But certainly the — if you follow these calls, they gave and see simple and all there was, was in the boundaries is that needs some boundary description.

M. Darwin Kirk:

That is true but —

Byron R. White:

There was a riverbed clearly within the bounds where this meets and bound description.

M. Darwin Kirk:

That is correct, that is to that stretch of it.

Byron R. White:

What is your answer to that?

M. Darwin Kirk:

Our answer to that is that there was no clear indefinite specific description of the riverbed in the treaties or the patents referring to that portion or any portion of the Arkansas riverbed.

That under the authorities set forth in the decisions starting back with Martin versus Waddell, Pollard versus Hagan, Shively versus Bowlby, United States versus Holt State Bank.

The beds of navigable waters are held by these that were not under the Constitution conveyed to or relinquished to the Federal Government.

The 13 regional counties got the origin of the waterbeds of the navigable waters.

The states then submitted were admitted on an equal footing with the original 13 —

Byron R. White:

Your argument, those that you said those cases hold United States never owned the riverbeds to give away in the first place?

M. Darwin Kirk:

Right so they had administration over them and they would only the policy of Congress as set forth exhaustibly in Shively versus Bowlby.

It expresses the fact that those — the navigable waters are never, have not been conveyed away except under exceptional circumstance.

Byron R. White:

But they do have title to convey away under certain circumstances?

M. Darwin Kirk:

Under certain circumstances.

These circumstances are set forth in the opinion of Shively versus Bowlby.

In order to perform international obligations, to effect the improvement of such lands or the promotion and convenience of commerce with four missions and among the several States or to carryout other public purposes appropriate to the objects for which the United States holds the territory.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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M. Darwin Kirk:

Now, a counsel for Cherokee is and Chocktaws have argued that they come within the last exception, you might say to the general rule.

We say they do not.

There was no reason for — they’re an agricultural people, they didn’t make their living by fishing, they didn’t make their living by commerce.

There was no purpose in conveying a highway of commerce already established to them in the treaties with them, and that therefore this purpose would not have been carried out in conveying to them.

Furthermore, of course, we say they were not conveyed to them under the rule of Holt State Bank, United States versus Holt State Bank.

Potter Stewart:

I don’t understand the — your argument based on the fact that they were not a commercial people and were not fishermen.

This is doesn’t have to do unless I’m quite mistaken with the work either for navigational purposes or fishing purposes or anything else.

We’re talking about the bed of the river, the land under the river and the mineral reserves.

M. Darwin Kirk:

That is correct.

Potter Stewart:

There is no question about the continuing right of the United States always in any navigable stream, the navigational easement.

M. Darwin Kirk:

That is correct.

They have done a few cases over on the west coast where small water covered area was conveyed.

Certain Indians at the end of the reservation where they made their living by fishing and it was held at the —

Potter Stewart:

But that has to do with the Water Fishing Rights.

M. Darwin Kirk:

Yes, that is right.

Well, there is nothing like it.

Potter Stewart:

The issue here is not water but land.

M. Darwin Kirk:

I agree with you Mr. Justice Stewart.

Now the —

Thurgood Marshall:

The Indian’s position that land they left had all these rivers and everything on it and in ways to be assumed that what the Government gave them was the equivalent of what they gave up.

M. Darwin Kirk:

Yes.

Thurgood Marshall:

That’s their position, is it not?

M. Darwin Kirk:

No, I think what they gave them was what those conveyed to them.

Now, there is no evidence as to what they gave up.

In this case, what they got was what was conveyed to them.

Thurgood Marshall:

And they were conveyed property in fee simple?

M. Darwin Kirk:

They were conveyed the property in fee simple subject to certain very important.

Thurgood Marshall:

Well as to this land, they had land on both sides of the river.

They had fee simple to everything but the riverbed.

M. Darwin Kirk:

They had fee simple except that they are the patents to them provided that the Choctaw patent provided that the lands hereby granted shall revert to the United States of the Cherokee Nation ceases and abandons the same as the Cherokee patent, excuse me.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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M. Darwin Kirk:

The Choctaw patent provides that the land shall inure to them as long as they shall exist as a nation and live on it.

Occupancy is required.

Thurgood Marshall:

I respectfully say it is not what I was asking you.

Your argument was as I understood it and I now ask you is that your argument?

Then where the river was in the middle of piece of the property that the nation was given fee simple of everything but the river bank?

M. Darwin Kirk:

Right.

Under the language I have just — with the qualification I have just read.

Thurgood Marshall:

Well, how can we spell that out, it leads the river by the mile?

M. Darwin Kirk:

We have because it was a navigable river bottom because it comes —

Thurgood Marshall:

The river bottom is not navigable.

M. Darwin Kirk:

The river is navigable and the bottom follows the navigation rights established by the Court.

Thurgood Marshall:

But it is not now, that river bottom is not the bottom of a navigable route.

Is it?

M. Darwin Kirk:

The one we’re talking about Mr. Justice Marshall is, yes.

Thurgood Marshall:

Well, I thought you said it was one where there were miles of land that was just land and could be farmed.

M. Darwin Kirk:

Well, that is land between the high watermarks previously established by the river before stabilization by the United States Army Engineers, which creates an artificial evulsive change.

Thurgood Marshall:

So, if you look at it as the time it was granted.

They did not have jurisdiction over the bed of the navigable river?

M. Darwin Kirk:

Correct.

Thurgood Marshall:

According to you?

M. Darwin Kirk:

That’s our position.

Thurgood Marshall:

And so now that it’s now worth something to the State, the land but not the river now belongs to the State.

You didn’t mind the board, did you?

M. Darwin Kirk:

It has been — the State has collected a revenue over from this riverbed from sand and gravel and oil and gas leases for 60 years.

It has been of value to the State.

It has gotten more valuable lately.

Hugo L. Black:

Were the Indians making any claim through it at that time?

M. Darwin Kirk:

They did not, not until the suit was filed in December 1966.

Now, the Holt State Bank rule, in that case, there are certain reservations were established for the Chippewa Indian tribes.

Under certain treaties made prior to Minnesota statehood.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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M. Darwin Kirk:

These treaties expressly described certain land as being reserved for these Indians.

They do create a reservation contrary to what counsel for the Cherokees and the Choctaws have argued.

The statute shows it.

Now, in the Red Lake or Indian reservation were then the boundaries of that reservation was a lake called Mud Lake that the, in 1889 of the treaties last treaties were 1855 prior to Minnesota statehood, State being admitted in 1858, I believe.

The treaty of 1855 included just Mud Lake.

In 1889, the Government made a further treaty with the Indians in which the Red Lake Reservation was to be ceded by two of the government and was ceded back to the Government.

The Government was then going to divide the land into tracks and sell it off and deposit the money in a trust fund for the benefit of the Chippewa’s.

A number of tracks were sold to settlers by the Government and patents issued to the purchasers along the shores of Mud Lake.

Later on, the Government developed a project to drain Mud Lake and that lay bearer certain valuable agricultural land between riparian lines of the settlers who have bought from the Government and the water placed to where the water had receded and they claimed as riparian proprietors under the Minnesota law.

The Federal Government suit on behalf of the Chippewa’s contending that this lake was not a navigable lake.

And not being a navigable lake that when it was drained, when the water was drained away the land lake bearer did not inure to the benefit of the riparian proprietors but they claimed that did inure to the benefit of the Chippewa’s.

It was within Red Lake reservation boundaries and there is no question to that.

The Court held in substance that in the treaties with the Chippewa’s, which did express to encompass this area within the boundaries.

The United States did not expressly and distinctly convey the navigable water bottoms.

The Court first held by the way that the lands, the bottoms were navigable contrary to United States that Mud Lake was navigable, contrary to the contention of the United States.

And accordingly, the Court held since, there was no specific description of this land encompassed all around by the reservation boundaries.

But there could not be inferred any intention to convey the navigable water bottoms in view of the long established policy of this country to hold the beds of navigable waters in trust for future states.

Now, that in substance is the holding in the Holt State Bank and we think it’s the holding under which the part of the Arkansas River that has Cherokee land in both sides should continue to be owned and held by the State of Oklahoma.

Now, the argument of counsel for the other side seems to be based principally on the agreement in the Cherokee Treaty that the land ceded to them should not at any future time be embraced within the boundaries of a future State without their consent, remember that, without their consent.

The Choctaw Treaty says, the lands ceded to them should at no time be included within the boundaries of a future territory or State.

Now in 1893, by Act of Congress of March 3, 1893, 27 Stat. 645, Congress created a commission for the purpose of inducing the Cherokees and Choctaws and other tribes to relinquish tribal rights and to accept allotment of their lands in severalty to tribal members where the ultimate object of including said lands in a State.

The result of this Act and ensuing Acts of Congress were agreements with the Cherokees 32 Stat. 716 and with the Choctaws 30 Stat. 495, and 42 Stat. 641 in 1902, which provided for the allotment of the lands to individual members of the respective tribes and relinquishment of the general powers of the tribal governments.

These agreements were followed by the Act of April 28, 1904, 33 Stat. 573, which supplemented the tribal laws and put the laws of Arkansas in effect in Indian territory.

Hugo L. Black:

That part of Indian territory?

M. Darwin Kirk:

Yes, that is correct.

Well, the now in 1901 an Act of Congress was passed making all members of the Five Civilized Tribes including the Cherokees and Choctaws and Chickasaws making them citizens of the United States.

Now, the Act of April 26, 1906, continuing tribal governments for limited purposes ending termination of some future state and for regulation of tribal affairs under the interior department.

The interior department was given complete and comprehensive regulation over the tribes.

The Cherokees and Choctaws became citizens of the United States as a result of these Congressional Acts.

As citizens of the territory, they voted with other citizens in the elections concerned with the admission of Oklahoma to the Union and Oklahoma was admitted on November 16, 1907.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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M. Darwin Kirk:

Now, the tribes continued to exist in a sort of a de jure form.

They have practically for everything.

There is very little that their tribal governments have to decide.

They have no legislative powers.

They have very limited administrative powers.

Everything they do has to be proved by the department of the interior.

Mr. W.F. Semple, counsel for Choctaws for many years later on their Principal Chief, in a text book written by him on Oklahoma Indian Land Titles said, “The Act of Congress of April 26, 1906 in continuum of the tribal governments also provided that the President of the United States could remove the tribal chiefs or appoint one in case of death or removal.”

All the five civilized tribes have a chief or governor although in the Cherokee and Seminole nations there are very few unsold common properties.

The duties principally are to sign deeds to the remaining lands and employ attorneys to handle claims against the Government.

Hugo L. Black:

When did the Indians there become boarders in Oklahoma?

M. Darwin Kirk:

Upon Oklahoma statehood, November 16, 1908, I mean 1906, sorry.

Hugo L. Black:

I recall Senator Owen, we have called Senator Owens as a senator.

Was he elected?

The Senate election or later.

M. Darwin Kirk:

Senator.

Hugo L. Black:

Senator Owens.

M. Darwin Kirk:

Senator Owens is elected first election.

Hugo L. Black:

First election.

Yes, he was a Cherokee.

Section 28 of the Act of April 26, 1906.

I am still reading from Mr. Semple, says the tribal government shall be continued in full force and effect for all the purposes authorized by law unless otherwise provided by law.

But in fact, the legislative branches have long then ceased to function.

The tribal laws were supplemented by the Act of April 28, 1904, which equipped the laws of Arkansas in the force in effect for Indian Territory as to Indians, freed men and white persons alike.

Now, some interest has been expressed as to the present status of the Indian tribes in Oklahoma and as to their schooling.

We have — this is common knowledge, which counsel for Choctaws and Cherokees know.

But it has not been divorced, so we’re going to site a report, House Report number 2503 dated December 15, 1952 but seems to be passed.

Warren E. Burger:

It’s not in your brief?

Not in your brief?

M. Darwin Kirk:

No, it is not in the brief.

We didn’t know that matter is going to the combination —

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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Warren E. Burger:

Give us that citation again?

M. Darwin Kirk:

House Report number 2503 82nd Congress, 2nd Session.

Hugo L. Black:

Can you start that over for me.

M. Darwin Kirk:

Dated December 15, 1952.

The only thing I want to read from you was that is this statement, “There are no reservations for Cherokees or Choctaws or Chickasaws in Oklahoma.”

Now I have another —

Hugo L. Black:

May I know why?

M. Darwin Kirk:

Reservations, their lands were allotted in severalty.

There are citizens.

They live in a community like everybody else with the exception of a very few.

Thurgood Marshall:

Is there anything in this record that says that they are not as of today nations?

M. Darwin Kirk:

Well of course, actually I think the rest of the nation, those has put to rest in the case of Cherokee versus Georgia when Mr. Chief Justice Marshall stated that the Cherokees were not a nation, so that could bring an action in the United States Courts and he at that time —

Thurgood Marshall:

But is there anything in this record that show that they are not tribes?

M. Darwin Kirk:

No nothing, nothing.

They are certainly tribes.

Thurgood Marshall:

Well, if they are tribes.

Why don’t they have a right to maintain this suit?

M. Darwin Kirk:

We don’t question their right to maintain the suit.

Thurgood Marshall:

Well, what is the claim you are making on that particular point that they don’t have reservations?

M. Darwin Kirk:

Well, the question, the Court was, was interested in that question that we simply supply the information.

I don’t think this particular material except that there are civilized members of the community.

Now, the question was asked —

Thurgood Marshall:

There are citizens and office holders out there.

M. Darwin Kirk:

Right, they are.

Thurgood Marshall:

All over the State?

M. Darwin Kirk:

Well, you can’t tell when you’re talking to a Cherokee or a Choctaw in Oklahoma.

Thurgood Marshall:

Go to schools like other people?

M. Darwin Kirk:

I have done the rest with them all my life and I never know when my member is a Cherokee or Choctaw or what he might be so they are mixed with whites so much.

Thurgood Marshall:

Former Chief Justice of Court of Appeals, Judge Templar was a Cherokee.

M. Darwin Kirk:

Right.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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M. Darwin Kirk:

They are completely immense in the community of Oklahoma.

Just like all the rest of us.

In fact, one of my co-counsel Mr. Groom is part Cherokee, if you would like to look at a Cherokee Indian.

Now, on the question of schooling, we have a 1952 report.

We have here this is House Report number 2503 Union calendar 790, 82nd Congress second session.

A report and it seems to be the last one that has been made.

On the agency area statistics on Indian education, on the data here that I’m going to read are data on Indian children ages 6 to 18 inclusive having one-fourth degree or more Indian blood and cover fiscal year in 1952.

Now, Five Civilized Tribes there is nothing separate all the way through on separate tribes here.

They lumped the Five Civilized Tribes together, Cherokees, Choctaws, Chickasaws, Seminoles and Creeks.

Hugo L. Black:

And what?

M. Darwin Kirk:

And Creeks.

Children attending public schools perhaps of last tribes, 13,894, children attending Government schools, 1,864 roughly 90% are attending public schools and the others schools they attend are Government schools.

Byron R. White:

Why don’t we go back on involvement with you sir, is that your contention here that if the patent to either one of these tribes had specifically and expressly said that the riverbed of Arkansas is included in the grant?

M. Darwin Kirk:

Yes.

Byron R. White:

Would it then be a contention that there would have been no conveyance?

M. Darwin Kirk:

Fortunately, we don’t make — they have to make that contention.

Byron R. White:

Well, I think you do.

M. Darwin Kirk:

Well, if a sufficient — if there were sufficient evidence for it I don’t think Congress is powerless to deal with the lands of navigable waters.

Byron R. White:

If these patents are sufficiently clear in a sense that they fully intended to do convey all the part of the riverbed, you would say the United States had power to do that?

M. Darwin Kirk:

I would question that exercise of power, Mr. Justice White.

Fortunately, we don’t have to do that.

I would question that exercise of power.

Byron R. White:

Well, wouldn’t you say that — in looking at your brief it seems to me you’ve pretty well conceded that the patent to the Cherokee, for example, where from the mouth of the Canadian through the boundary of the Arkansas River to the boundary of State of Arkansas that if you just read that patent, you end up on the western ground of the State of Arkansas on the south side of the river.

That’s what the patent says, “To the northerly point of the eastern boundary of Choctaw lands on the south of side of the river.”

M. Darwin Kirk:

I believe it says at the south side of the river, isn’t that correct, which is different.

Byron R. White:

You say it would’ve been a lot better that patent that said the opposite field.

M. Darwin Kirk:

We said that in our brief that is correct.

Byron R. White:

Have you resort to field notes?

M. Darwin Kirk:

We do.

Byron R. White:

Have a survey.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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Byron R. White:

What is your understanding in Oklahoma’s and what controls in a field or patent?

M. Darwin Kirk:

Well the field notes are evidence, I would say and in this case they are evidence.

We are not saying this —

Byron R. White:

You don’t have any cases in Oklahoma where field notes override to clear (Voice Overlap).

M. Darwin Kirk:

No, I do not.

I do not sir, we don’t contend these field notes override (Voice Overlap).

We’re just saying they’re evidence.

Byron R. White:

Do you disagree then that the in this patent, the call for the southeastern corner of the Cherokee land was on the south side, on the south side of the Arkansas River?

M. Darwin Kirk:

We said, we said it would be on the south bank of the Arkansas River.

That is a boundary.

The Arkansas River —

Byron R. White:

The south bank — now, remember the southeast —

M. Darwin Kirk:

The Cherokees, no the Cherokee is on the north.

Byron R. White:

Now, how do you — how can you possibly read that patent that way when it says that the when you from Canadian down the river to the down Arkansas you end up to the point on the south, at the northeast point of Choctaw land and on the south side of the river?

M. Darwin Kirk:

That is merely for the purpose of locating where that end —

Byron R. White:

Yes, where the southeast corner of Cherokee land is?

M. Darwin Kirk:

No, I don’t agree with that.

Byron R. White:

Well, you don’t explain it in your brief, so I was just wondering how you explain it here.

M. Darwin Kirk:

We contend that as merely a location.

Byron R. White:

The only thing you do is you want to talk about the field notes.

M. Darwin Kirk:

We contend that as merely a location point under the evidence of the field notes is pertinent on the subject.

Byron R. White:

And you say when the patent that says they are on the south side of the Arkansas River, you did not mean that?

M. Darwin Kirk:

Well, we don’t exactly say that, we say no that’s merely a location.

Byron R. White:

A location for what?

M. Darwin Kirk:

A reference.

It is a location for the lower end of this land.

Byron R. White:

Well, that’s — that is not the issue here.

M. Darwin Kirk:

The issue is whether the entire bed of the river is included and if there is clear and definite language that would justify and warrant the inclusion of this entire bed of this river.

We say there is no such language.

Byron R. White:

Well, it says that one quarter of the Cherokee land is at the northern extremity of the eastern boundary of the lands of the Choctaws.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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M. Darwin Kirk:

The word “at” if you note the footnote.

Byron R. White:

It’s at the more extremity of the eastern boundary of the land of the Choctaws on, on the south bank of the Arkansas River.

M. Darwin Kirk:

All right “at” that point, and “at” does not mean —

Byron R. White:

It does not mean it’s there though.

M. Darwin Kirk:

No, no, that means the vicinity.

We have given a definition of that in the note there, the note in the brief.

It is our contention to review that this has establish a navigable water years prior to the time of these treaties and patents that when the treaties and patents were made, there was no description of the riverbed that would constitute a conveyance of the riverbed.

We contend that the provisions and the treaties to the effect that no future State, the lands ceded would never be included in any future territory or State, simply meant did not forever renounce the possibility of this land ever becoming a part of a future State or territory.

That the Government did not violate its covenant with the Indians, that it sought their consent, that it got their consent, that they agreed to the inclusion in a future territory or State and that the Government has kept faith with them and that the base of their entire argument falls.

Warren E. Burger:

How long after the admission of Oklahoma to the Union was the first lease made the riverbed by the State of Oklahoma to outsiders?

M. Darwin Kirk:

I have — we do not have a record exactly of that.

Of course, we have called the Court’s attention to a ruling by the Interior Department of 1908 to the effect that the Cherokees do not own this land.

It was submitted to them and this —

Byron R. White:

Who submitted it?

M. Darwin Kirk:

The Lowry Record Company made a request or a lease from the Interior Department.

A letter was written as an opinion by the acting Commissioner of Indian Affairs and approved by the Secretary of the Interior.

This letter was written in response to an application made by the Lowry Record Company to Interior Department for permission to enter into a contract to take sand and gravel from the Arkansas River.

In denying jurisdiction in the matter, the acting commissioner said after citing authorities among them Shively versus Bowlby.

In other words, when the United States conveyed by warranty deed the lands occupied by the Cherokees, Creeks, Choctaws, Chickasaws, and Seminoles, it did not convey the ownership of a beds of navigable streams but reserve them for the benefit of the future State within whose boundaries they would fall.

Warren E. Burger:

And what is the date of that?

M. Darwin Kirk:

March 27, 1908 approved by the Secretary of the Interior.

Now, that has remained unchallenged by either Cherokees or Choctaws for 60 almost 60 years.

Warren E. Burger:

Well, then has Oklahoma been exercising dominion among other things by leasing the riverbed for 60 some years?

M. Darwin Kirk:

Yes, now we have records in the Supreme Court of Oklahoma of cases from 1913 to 1940.

I can give you citations of those.

United States works also in the Federal Courts.

So, United States versus Mackey, 214 Federal 137, 1913, State versus Nolegs 139-943 1914, Brewer-Elliot Oil and Gas Company versus United States, 1922, a decision of this Court.

Warren E. Burger:

What is the thrust of these, what is the point of these cases?

M. Darwin Kirk:

They all show the exercise of dominion over the riverbed by the State of Oklahoma in the official Court reports.

Warren E. Burger:

If you wish you may supply those citations if they’re not in your briefs.

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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M. Darwin Kirk:

Very well, thank you, I will do so.

So, we have a ruling by the interior department on the subject.

We have these successive assertions of title by the State evidenced that in these various decisions I have cited.

Thurgood Marshall:

And we also have the position of the United States as stated by the Solicitor General as of today?

M. Darwin Kirk:

Yes, we have that but as stated today.

That’s correct.

They differ from their previous position.

At least the Department of Justice does.

Now, there is one thing Mr. Kile has called the Court’s attention to the fact that should be controversy be decided in favor of the Indians.

There would have to — there would be a controversy between the Cherokees and the Choctaws.

In the trial court and also appearing as amicus curiae in the Court of Appeals, we had a representative of certain of riparian land owners.

Who if the Indians should become victorious on the tribe under whom they claim, they are the present grantees of the allottees of the riparian land from the Choctaws.

They undoubtedly will and their interest in this case was that they would seek to recover the riverbed from the Choctaws as riparian proprietors and those questions all would remain to be settled also.

Byron R. White:

Can I just ask you, you assert in your brief that the patent that says that this was prepared from Mr. McCoy’s field notes.

M. Darwin Kirk:

Correct.

Byron R. White:

And the class.

M. Darwin Kirk:

Right.

Byron R. White:

How do you know that?

M. Darwin Kirk:

Well, the records — the records show that there were it is unchallenged.

We’ve made the assertion in our brief and there’s some challenge but we can produce the records if you would like.

Byron R. White:

The Government would be.

M. Darwin Kirk:

Well, if there would be I believe War Department instructed Mr. the Secretary of War instructed Mr. Isaac McCoy to make this survey.

Byron R. White:

There’s no question you make the survey and filed these notes to the client.

I’m just wondering other these records from Mr. McCoy’s notes apply.

M. Darwin Kirk:

That stated to me the purpose on making the survey.

Byron R. White:

There is no reference in the survey in the patent.

M. Darwin Kirk:

No, the patent was granted after the survey.

They — Your Honor, I believe my time has lapsed.

Warren E. Burger:

Not quite, not quite.

M. Darwin Kirk:

Are there any more questions you like to be asked?

Audio Transcription for Oral Argument – October 22, 1969 (Part 1) in Choctaw Nation v. Oklahoma

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Warren E. Burger:

No, I think not.

Thank you very much, Mr. Kirk.

Mr. Ford, are you are dividing the remaining time or you’re using it all?

You have 14 minutes.

Peyton Ford:

Yes, Your Honor and while the Court has some questions to ask me, I have no rebuttal.

Warren E. Burger:

All right there is no indication of questions.

Gentlemen, we thank you for your submission.

The case is submitted.