Montana v. United States – Oral Argument – December 03, 1980

Media for Montana v. United States

Audio Transcription for Opinion Announcement – March 24, 1981 in Montana v. United States

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Warren E. Burger:

We’ll hear arguments first this morning in Montana et al. v. United States.

Mr. Roth, you may proceed whenever you’re ready.

Urban L. Roth:

Mr. Chief Justice, and may it please the Court:

The Crow Indian Reservation created by the treaty of 1868 is an area of approximately 2.2 million acres located in the State of Montana.

About 400,000 acres of that land is in tribal hands and is located in the Pryor Mountains of the Big Horn Mountains, and there are no issues involved in this case affecting that particular land.

Approximately 30 percent of the Reservation lands are owned by non-Indians, approximately 43 percent of the population of the Reservation is non-Indian.

The Big Horn River is a navigable river that rises in the State of Wyoming and flows for many miles before it reaches the State of Montana.

It is a navigable stream and within the heart of the Reservation flows for approximately 45 to 50 miles.

In the Big Horn Mountains area, the Yellowtail Dam, a federally funded project, has been built, which backs up a reservoir of approximately 70 miles, which extends into the State of Wyoming.

The building of that dam created an excellent cold water fishery.

However–

Potter Stewart:

Is the dam inside the Reservation?

Urban L. Roth:

–Yes, it is, Your Honor.

The cold water fishery that was created by the dam is a put-and-take stream.

That is, the river itself does not lend itself to spawning.

As a result, the State of Montana has been, since the dam was built, the only contributor up to the time of trial of the fish which proliferate in that particular stream.

Brown and rainbow trout are the main species.

They are exotic to the Reservation, are not indigenous, and were introduced into the Reservation by the State of Montana.

The Tribe owns only one 40-acre tract which is riparian to the river.

All other riparian land has either been allotted or is owned by non-fee owners.

Montana owns a number of parcels riparian to the river which they use for fishing and boating access.

Potter Stewart:

Now, you say, Montana owns it, which they use?

Urban L. Roth:

Yes, Mr. Chief Justice.

Potter Stewart:

Who uses it, the people of Montana?

Urban L. Roth:

The State of Montana in a sort of a parens patriae position owns the–

Potter Stewart:

Montana owns it in fee?

Urban L. Roth:

–Yes, it does.

Potter Stewart:

And who uses it?

Urban L. Roth:

Fishermen, various non-Indians or Indians, whoever wants to use that particular piece of property to gain access to the Big Horn River or fish the waters of the Big Horn River.

Potter Stewart:

By license, by permission, or is it just open?

Urban L. Roth:

Well, with regard to nonmembers, of course the State of Montana has consistently required a state hunting or fishing license.

Warren E. Burger:

Nonmembers of what?

Urban L. Roth:

Nonmembers of the Crow Indian Tribe.

Excuse me.

Potter Stewart:

But not any particular permission to go on the property, is that it?

Urban L. Roth:

No.

There isn’t any permission required by the State of Montana to go on the pond.

It’s open to the public.

Potter Stewart:

And that’s been true up until this litigation, anyway?

Urban L. Roth:

Yes.

That’s correct.

In this lawsuit brought by the United States and joined in by the Crow Tribe of Indians, the United States claims that the Big Horn River, this navigable river, is owned by them in fee for the beneficial ownership of the Crow Indian Tribe.

They also claim in this Court that save and except for the exception carved out for the nonmember of the Crow tribe, owner of fee lands, hunting and fishing exception, which is carved out by the lower court, that the Crow Tribe has the exclusive right to regulate hunting and fishing within the Reservation, including that engaged in by nonmembers on fee-owned land within the Reservation.

The State of Montana in its amici states… refutes these contentions.

Trial of this case was before the Hon.

James F. Battin, District Judge for the District of Montana.

In that trial Judge Battin heard the testimony of 15 witnesses, examined 288 exhibits, studied the pretrial discovery, and thereafter rejected the claims of the respondents.

In making his conclusion he relied upon many of the facts that were developed through testimonial evidence and through the exhibits themselves.

Many of these factual findings, we believe, are critical to resolution of the issues before this Court today.

Upon appeal to the lower court, the lower court reversed in part and affirmed in part.

They carved out a peculiar exception for the non-Indian fishing and hunting on his fee lands.

They held that that was authorized but still the Tribe could regulate that activity so long as that regulation was nondiscriminatory.

However, with regard to the non-Indian neighbors such as Mr. Lackland, who testified at trial, who owns 1,040 acres within the confines of the Reservation in fee and who lives approximately 30 miles off the Reservation, and who built a pond and stocked it with fish… oddly, that particular individual cannot under the lower court’s ruling go onto that land and fish that stock.

Potter Stewart:

Why?

Because he’s a nonresident, is that it, of the Reservation?

Urban L. Roth:

Because he’s a nonresident and a nonmember of the tribe.

But what’s the irony of that situation is this, that that nonmember, as conceded by the respondents, can post his land.

And although the exclusive hunting and fishing right is claimed by the Tribe, nevertheless he can exclude the member from hunting and fishing on his land.

The State of Montana petitioned this Court, and it was granted certiorari to review the conclusions of the lower court.

Additionally, I would like to comment upon the fact that although there was no comment about the facts found by District Judge Battin, nevertheless, apparently on those same factual findings the lower court reached a conflicting conclusion.

Urban L. Roth:

Basically, there are two sets of issues in this case, which we will separate into what we call the ownership or river issues, and the regulatory issues.

However, both sets of issues require that a study of the treaty history and the legislative history entered into between the United States and the Tribe be undertaken.

The first treaty with the Crow and the United States occurred in 1825.

Basically, it was a treaty of friendship.

It established the paramount authority of the United States, and that authority was extended to resolve disputes that might occur between the Indians and the non-Indians.

This treaty was followed by the treaty of 1851.

As the lower court observed, there was no express grant of land contained in the 1851 treaty, although a particular territory was allocated to the Crow Indian Tribe.

The only reference to hunting and fishing in that particular treaty was a reference that all of the tribes retained their privilege to hunt and fish on basically, I suppose, their traditional hunting and fishing grounds.

This was followed by the Treaty of 1868.

Again, in Article I of that treaty, the United States was a sovereignty; paramount sovereignty was again recognized, and it was the only sovereign in that treaty who could sanction non-Indian intruders or malfeasors, if you will.

There was no jurisdiction or sovereignty which was given or granted to the tribes by that treaty.

And I think that’s very, very–

Potter Stewart:

Of course, the very existence of a treaty implied the sovereignty of the Indian nation, didn’t it?

You don’t make a treaty with somebody who’s not a sovereign.

Urban L. Roth:

–Well, that’s correct.

The United States, however, was… many times, of course, treaties are entered into with equal sovereignty, such as to–

Potter Stewart:

Between us and England, say?

Urban L. Roth:

–Between us and England.

In this case the paramount sovereignty of the United States was conceded by the tribe.

Potter Stewart:

But you don’t make a treaty with somebody who doesn’t have some sovereign qualities?

Urban L. Roth:

Yes.

Potter Stewart:

In other words… otherwise, you just pass a law.

Urban L. Roth:

That’s correct.

Well, as a matter of fact, though, although the quasi-sovereignty of the Indian tribes was recognized at that time, there was no question that the United States could pass a law if they wanted to, and do whatever they wished with regard to the Indians.

Nevertheless, out of deference to their particular status, I’m sure that they did treat with them.

Harry A. Blackmun:

Mr. Roth?

Urban L. Roth:

Yes, Mr. Justice?

Harry A. Blackmun:

In the United States v. Finch case, in the report in Fed. Supp. are a number of maps.

And as you’re going through these treaties, I take it that you accept the correctness of those maps?

Urban L. Roth:

Yes, I do, Mr. Justice.

Urban L. Roth:

I omitted to say that in the… well, I haven’t got to the granting, or the reservation clause of the Treaty of 1868.

In regard to that Article 2, there was reserved approximately an area of 8 million acres for the absolute and undisturbed occupation of the Crow Indian Tribes.

In addition, no one was permitted to reside or go upon the Reservation without consent.

By Article 4 of that Treaty the Crow Tribe of Indians agreed to make it their permanent home.

However, they were given the privilege… and I put quotes around the word privilege because that word had its counterpart within the Crow Tribe.

In other words, they had a fairly sophisticated vocabulary.

They knew what privilege as opposed to right meant, and that was a privilege to hunt and fish on the unoccupied lands of the United States so long as peace persisted between the United States and the Crow Tribe.

Superimposed upon those treaties is a legislative history which includes the allotment policy, or the assimilation policy, commencing with the General Allotment Act of 1887–

William H. Rehnquist:

Before you get to that, Mr. Roth, are you going to touch at some point in your oral argument on the Equal Footing doctrine of Pollard v. Hagan?

Urban L. Roth:

–Yes, sir.

The allotment policy was applied to the Crow Indian Reservation by the Allotment Act of 1920.

Against this treaty and legislative backdrop is the Equal Footing Doctrine upon which the State of Montana makes its claims to the ownership of the bed and banks of the Big Horn River.

It’s important to note that that doctrine was enunciated 26 years prior to… or at least the foundations of that doctrine were enunciated some 26 years prior to the Treaty of 1868 in the case of Martin v. Waddell, which was decided in 1842.

It was followed shortly thereafter by the case of Pollard’s Lessee v. Hagan, in 1845.

I think it’s also important to fasten upon why the Equal Footing Doctrine apparently came into existence.

In Martin v. Waddell, in studying the underpinnings of that particular doctrine, this Court apparently seized upon the fact that by the Revolutionary War the 13 original colonies gained their independence, and thus their sovereignty, from the King of England.

By virtue of that sovereignty they then became substitute for the King of England to own all of the navigable waters which were in or touched upon those 13 original colonies.

In Pollard’s Lessee v. Hagan this doctrine was then expanded to those states who were not within the 13 original colonies.

And in that first case, really articulating the Equal Footing Doctrine, I think it’s important to note that they said that title, by virtue of the Constitution, was not vested in the United States, it was vested in the tribe, and by virtue of the Constitution, then, in territorial days the fee title to those navigable waters was held by the United States in trust for the future states that would be carved out of those territories.

That’s significant because in 1868, with regard to the Territory of Montana, that territory had already been established.

As a matter of fact, a number of territory acts had conceded it… Nebraska, Dakota, Washington, Idaho, and subsequently, of course, Montana.

By 1868 territorial capital had been created.

By 1868 counties which included the territorial limits of the Crow Reservation had been created.

And I think, at this point, that it is significant to refer the Court to Section 2, because it becomes important as we talk about the relevancy of Choctaw Nation v. Oklahoma.

Section 2 of the Organic Act, or Section 1 of the Organic Act establishing the Territory of Montana–

William J. Brennan, Jr.:

And where is this, Mr. Roth?

Urban L. Roth:

–It appears at pages 30-31 in Vol.

II of the Joint Appendix.

And it states,

“That nothing in this act contained shall be construed to impair the rights of persons or property now pertaining to the Indians in said territory so long as such rights remain unextinguished by treaty between the United States and such Indians, or to include any territory. “

Urban L. Roth:

–now, here is the important part:

“which, by treaty with any Indian tribes, is not, without the consent of said tribe, to be included within the territorial limits or jurisdiction of any state or territory. “

Now, what’s significant about that?

That is significant because in the Treaty of 1868 the drafters of that treaty did not provide, as they did in the treaties of New Echota with the Choctaw, and the later treaty of 1835 with the Cherokee, a provision guaranteeing that the land or territory would never be contained in any subsequent state or territory.

Thus, I think that language in the territorial act is significant because they never intended that those later created Indian reservations would not be contained within a subsequent state or territory.

In 1868–

William J. Brennan, Jr.:

Mr. Roth?

Urban L. Roth:

–Yes, Justice Blackmun.

Harry A. Blackmun:

In these treaties, however, with the Indians, do you think that the Crow understood the meaning of the Equal Footing Doctrine?

Urban L. Roth:

No, I don’t think they did, Your Honor.

Harry A. Blackmun:

Well, isn’t the understanding of the respective parties to the treaties rather important, then?

Urban L. Roth:

Well, I believe so.

I also don’t believe that they understood what the ownership of the bed and banks of the navigable river actually entailed, nor did they possess the sovereignty that I think is necessary for the regulation, control, and ownership of a segment of a large, navigable stream, was within their understanding.

Warren E. Burger:

What is the value of a treaty or any engagement if we’re going to probe into the understanding?

Urban L. Roth:

I beg your pardon?

Warren E. Burger:

What is the value of a treaty or a contract if we’re going to undertake to probe into whether the parties understood the contents?

Urban L. Roth:

Well, at times this Court appears to have indicated that it is relevant as to what the understanding of the parties was in the circumstances.

Warren E. Burger:

Special Rule as to Indian Treaties?

Urban L. Roth:

Yes, that’s correct.

And particularly the circumstances surrounding those treaties.

However, that cuts both ways, I think.

As this Court observed, I believe, in Rosebud v. Kneip, the surrounding circumstances, i.e., the legislation, the case law that existed at that particular time, was also important in ascertaining what the intent of the United States was with regard to the particular territory.

In Rosebud v. Kneip and DeCoteau, this Court assumed that Congress was cognizant, for example, of Lonewolf v. Hitchcock, which provided the basis for abrogation of Indian treaties; and that they were cognizant of certain other factors.

I think, in regards to the Treaty of 1868, we must assume that Congress was cognizant of the Equal Footing Doctrine and the strong constitutional presumption against separating the ownership of a navigable river from a sovereign state.

In 1868, also, I think it’s significant that the Crow were a buffalo-centered culture.

They were not dependent upon fish, again, a factor that this Court and the lower court has deemed significant in ascertaining whether or not navigable waters were contained within confines of a reservation.

I cite to you Alaska Pacific Fisheries v. Alaska, and the lower court cases of Skokomish Tribe v. France, United States v. Moore, and United States v. Stotts.

In Skokomish, of course, because of the absence of an interest or dependence upon fish, the lower court held that it would not imply that navigable waters were contained within the confines of the reservation.

Also, it’s important that the lower court, in its factual findings, found that the Crow Tribe was not dependent upon the Big Horn River for travel.

Also, that… it’s important, I think, that most of, if not all of the tribal interests in the river are preserved without actual proprietorship being conveyed.

Urban L. Roth:

For example, the Winters Doctrine reserves to them water.

The U.S. v. Powers reserves to them irrigation rights.

Confederated Salish & Kootenai Tribes v. Namen guarantees them access and use of the water.

And of course, the fact that they are riparian to the river guarantees that they will have access to the fishing or whatever waterfowl or upland game birds are found along its shores or on its waters.

Potter Stewart:

That’s a matter of state law, isn’t it?

Any riparian owner has those rights?

Urban L. Roth:

That’s correct; that’s correct.

Byron R. White:

Mr. Roth?

Urban L. Roth:

Yes, Mr. Justice White?

Byron R. White:

Do you think the claim here that’s been sustained in favor of the Tribe indicates that they own not only the bed of the river but the water in the stream, in the sense that they could control, if they wanted to, the navigability of the stream?

Urban L. Roth:

I won’t concede that point.

I will concede that they will claim it.

Byron R. White:

Do you think the judgment below would enable the tribe not only to regulate fishing in the river but the navigation of it?

Urban L. Roth:

I would concede that they will assert that right, Your Honor.

Byron R. White:

Well, how do you read the holding below?

Urban L. Roth:

I read the holding below as conveying to them ownership of the entire stream.

Byron R. White:

Of the entire stream?

Urban L. Roth:

Yes, presumably regulatory power.

Byron R. White:

Because, after all, there is no necessary connection between ownership of the bed of the stream and control of navigation.

Urban L. Roth:

Absolutely not.

They’ve conceded the navigational servitude.

Byron R. White:

Furthermore, there’s no necessary connection between ownership of the bed of the stream and the ability to fish in the water.

Urban L. Roth:

Well, other than the statement in Shively v. Bowlby that the navigational servitude includes the right to travel, the right of commerce, and also the right of public fishing.

Byron R. White:

Well, but, as you well know, in the western states there is certainly a major controversy between those who claim they own the bed of the river and people who want to float the river.

Urban L. Roth:

Absolutely, Your Honor.

Byron R. White:

And I suppose that the holding below would indicate the Tribe could keep people from floating the river fishing?

Urban L. Roth:

Yes.

Actually, with regard to that argument–

Byron R. White:

As long as they didn’t get on the banks or the bottom of the stream?

Urban L. Roth:

–Yes.

Urban L. Roth:

Basically, they’ve conceded that the river ownership isn’t exclusive.

Byron R. White:

There’s a rule in some states, you know.

Urban L. Roth:

They can float the river but they can’t cast their line into the water and catch a fish planted by the State of Montana, is basically a part of that issue.

Byron R. White:

Well, the holding below would say the Tribe could prevent floaters on the river?

Urban L. Roth:

Not floaters on the river, no.

Byron R. White:

Why?

Urban L. Roth:

Because–

Byron R. White:

They can control navigation, you told me.

Urban L. Roth:

–No, I didn’t.

I said they could… perhaps I misperceived your question.

Byron R. White:

No, under the holding below, they could.

Urban L. Roth:

No, I don’t think the holding below went that far.

I don’t think the issue of whether or not the navigational servitude survives.

Byron R. White:

Do you think the court below then said, well, the treaty gave the bottom of the river, but it didn’t give the river?

The treaty did not give the Tribe control of the river?

Is that what the holding was?

Urban L. Roth:

I think that the lower court actually didn’t deal with the navigational servitude.

Obviously, I think, because of the concession by the respondents that a navigational servitude–

Byron R. White:

I’m not talking about a servitude.

I’m talking about whether the tribe had the authority to control navigation on the river.

Urban L. Roth:

–No, I don’t think the lower court went that far.

Byron R. White:

Well, if it didn’t, why would the treaty give the Indians the bottom of the river but not the power to control navigation?

And if it didn’t give the power to control navigation, why would it give them the bed of the river?

Urban L. Roth:

Precisely.

The United States… or the respondents have conceded that Confederated Salish and Kootenai Tribes v. Namen controlled access, waterfree, to navigational rights on the Big Horn River.

And that poses, basically, a paradoxical question.

Why would the United States in pursuing some public exigency or public purpose grant to the Crow Tribe the bottom or bed of the river and then superimpose upon that a navigational servitude which would not permit them to control navigation?

Byron R. White:

Well, the question is the effect of the treaty in that respect.

Urban L. Roth:

Yes.

Byron R. White:

The boundaries of the Reservation included the Big Horn River.

Urban L. Roth:

It did include the Big Horn River.

Byron R. White:

And the argument is that therefore they had the bottom of the river.

Well, why didn’t they have the power to control navigation under that same treaty?

Urban L. Roth:

I don’t know why the respondents… but they have… conceded that issue to us.

And they have in answers to interrogatories.

Warren E. Burger:

I’m not sure I understand.

You seem to link, you seem to say that they can grant the right to float on the water.

Urban L. Roth:

By “they”, Your Honor, is the Tribe?

Or the State of Montana?

Warren E. Burger:

But you link that with the ground below.

Now, you might grant, logically, the right to float on the stream, but retain title to the land in case there is oil or gold or something else under it.

Nothing inconsistent about that, is there?

Urban L. Roth:

No, you could do that, but I think you’d have to do it with definite language.

You certainly wouldn’t imply that.

Warren E. Burger:

I thought you… I got the impression that you were saying just that, that they could not separate these two?

Urban L. Roth:

Well, I think they would not separate the two because, in the first instance, there isn’t any treaty language that would even approach that kind of an intent.

And to do that, I believe, basically would be inconsistent because there was certainly nothing in 1868 which would make the bottom or bed of the stream particularly valuable to the Tribe nor that they placed any particular value upon the bed of the stream.

Thus, to separate–

Byron R. White:

Well, the question in the case is… one of the questions in the case is fishing in the river.

Urban L. Roth:

–That’s correct.

Byron R. White:

It isn’t taking things off the bottom of the river and if they don’t have control over navigation in the river and the use of the water in the river, what is the authority to prevent fishing in the river?

Urban L. Roth:

Your Honor, that is our argument.

Where is the authority?

I reiterate that in answers to interrogatories the respondents have conceded that Confederated Salish and Kootenai Tribes v. Namen, which I referred to as Namen I because Namen II is on its course up through the appellate court, an early decision by the Honorable William J. Jameson, which held that on the Flathead Lake in Montana, within the Flathead Indian Reservation, riparian owners did have, pursuant to the navigational servitude, the right of access and wharfage without tribal permission to the navigable waters of Flathead Lake.

In response to interrogatories in this case, the respondents have conceded that that case is authoritative in this case and that, indeed, all riparian owners have those rights, which the Honorable William J. Jameson articulated in Namen I.

William H. Rehnquist:

Well, how can one reconcile that concession in Namen with the holding of the 9th Circuit in this case that the State of Montana does not own the bed of the river in question?

Urban L. Roth:

I don’t think one can, because I do believe it creates a paradox.

And I think the amicus brief in support of the petition by the State of Washington focuses upon that particular dilemma.

Byron R. White:

Well, where is the Flathead case now?

Urban L. Roth:

It’s in the 9th Circuit, however not–

Byron R. White:

Well, what do you think is going to happen to Judge Jameson there?

Urban L. Roth:

–Well, first of all, Namen I upon which I rely has already been to this Court on a petition for certiorari by the Flathead Tribe and certiorari was denied.

The 9th Circuit affirmed Namen I’s decision on those rights.

Byron R. White:

So that case is settled?

I mean, that case is–

Urban L. Roth:

That case is settled and the Tribe–

Byron R. White:

–in the 9th Circuit?

Urban L. Roth:

–That’s right.

And the Tribe in Namen II which is on its way up, have not challenged Namen I’s decision on that point.

Byron R. White:

Well, apparently the 9th Circuit doesn’t think there’s anything inconsistent between the Flathead case and the Big Horn case?

Urban L. Roth:

Apparently.

I would also like to rapidly focus upon certain other factors which I believe bear upon the ownership issue, and that is the fact that rather boilerplate language was used in the treaty.

It wasn’t the unique treaty language studied by the Court in Choctaw Nation v. Oklahoma.

It affects a host of other treaties.

It affects all of the navigable waters, basically, of the western states, at least with regard to a cohesive and coherent regulatory policy.

It’s important that prior to 1973 Montana was the only jurisdiction to plant fish in the Big Horn River.

It’s important to note that Montana was the only jurisdiction that controlled hunting and fishing by nonmembers on the Big Horn or fee lands prior to 1973.

It’s important to note that nonmembers have fished and hunted the Big Horn without hindrance since the turn of the century, and the public agencies in promoting Yellowtail Dam listed as one of the side benefits the creation of a good cold water fishery below Yellowtail Dam.

We submit that under the Equal Footing Doctrine, as applied to an Indian reservation, in the United States v. Holt State Bank, and certainly not departed from in Choctaw Nation v. Oklahoma, but under the peculiar facts of that case warrant a departure from that, that the Equal Footing Doctrine applied in this case guarantees the State of Montana ownership of the bed and banks of the Big Horn River within the Crow Indian Reservation.

I would like to turn briefly to the regulatory issues because that is another portion of this case, and it’s important that that in the treaties there was no exclusive hunting and fishing rights given to the Tribe.

The argument apparently of the respondents… that their right to regulate nonmember hunting and fishing within the Reservation has two sources: one, proprietorship–

Mr. Roth, before you leave the ownership issue permanently, is it your view that immediately before Montana became a state the title to the river was in the United States as trustee for the Indians or–

Urban L. Roth:

–As trustee for the State.

John Paul Stevens:

–As trustee for the State to be formed?

That’s what it was?

All right.

Urban L. Roth:

Yes.

And perhaps, in further answer to that question, there was in effect that obligation on the United States to hold that fee title for the State was constitutional in origin, as I believe this Court stated in Corvallis Sand & Gravel Company v. Oregon.

Byron R. White:

Mr. Roth, could you tell me just a little bit about the Big Horn?

How large a stream is it?

Urban L. Roth:

Well, it contributes, at the confluence of the Yellowstone and the Big Horn River, almost three million acre feet per year to the Yellowstone River.

Byron R. White:

So how much… what’s the cubic foot/second flow, do you know?

Urban L. Roth:

I don’t know what the cubic foot/second flow is.

Byron R. White:

Well, but you fish it, you wade it to fish, a lot of times?

At some places?

Urban L. Roth:

Sometimes you wade, but basically it lends itself to floating, because there is a large quantity of water which is released at minimum flow levels from the Yellowtail Dam.

Byron R. White:

From the Yellowtail Dam, and so fishing below that is… so it comes out as a steady temperature, is it?

Urban L. Roth:

Yes.

That’s one of the… as a matter of fact, you’ve hit upon one of the features that make it such an excellent fishery, because it comes out–

Byron R. White:

It comes out the bottom of the dam, so it’s cold water?

Urban L. Roth:

–Yes.

Forty-five degrees to 50 degrees.

Byron R. White:

And it’s relatively steady flow?

Urban L. Roth:

Yes, Your Honor.

Byron R. White:

But you can wade the edges at various places?

Urban L. Roth:

That’s correct.

Byron R. White:

And a lot of people fish it that way, I suppose?

Urban L. Roth:

No question about it.

Byron R. White:

And a lot of people would like to stop in quiet water and get out of their boats and fish?

Urban L. Roth:

Yes.

Byron R. White:

And it depends… and who owns the bottom would determine whether you can do that?

Urban L. Roth:

That’s correct.

John Paul Stevens:

Mr. Roth, again, just to finish up this thought, because I want to be sure I have your position.

It’s your view that this trustee relationship between the United States and the future State to be formed was of constitutional origin and it was formed before 1868.

Does that mean that if the Treaty of 1868 had in explicit language said, we hereby convey to you the bed of the river, something like that, that that would have been beyond the power of the United States?

Urban L. Roth:

I don’t think one can ignore this Court’s language in Shively v. Bowlby and in Choctaw Nation v. Oklahoma, despite the very, very strong language that this Court later used in Corvallis Sand & Gravel Company v. United States.

However, very, very stringent limitations were placed upon a departure from the Equal Footing Doctrine.

And yes, I would concede that in light of the Choctaw case and in light of Shively v. Bowlby, they would have that power, if they did it explicitly, and for a sufficiently strong public purpose with clear and definite language.

William H. Rehnquist:

Well, wouldn’t that have raised some constitutional implications under the Equal Footing Doctrine, which is a part of the Constitution–

Urban L. Roth:

Yes, there is a constitutional question raised there, and I think one would then perhaps, going to Shively v. Bowlby, and assuming that Shively v. Bowlby did indeed put strict parameters around departure of the policy… i.e., a public exigency or international duty called for a declaration of intent… then I suppose one could inquire into whether or not Congress in approving the treaty or the legislation was acting within those constitutional parameters established in Shively v. Bowlby.

William H. Rehnquist:

–Well, there’s some tension here, isn’t there, between the Equal Footing Doctrine and the Choctaw case?

Urban L. Roth:

I believe there is.

I believe there is, Your Honor.

I would like to touch briefly upon the regulatory issue and would say this, that if this Court’s decision recently in Colt with regard to the taxing authority of the Tribes is indeed a test, which I perceive that it is, and that that test basically has three prongs.

Number one, that Indian authority or sovereignty over a nonmember stops at tribal land.

Secondly, that a legitimate tribal interest must be perceived in the regulation.

And thirdly, that there is no overriding federal policy which conflicts with the regulation.

If I perceive that as the present test of nonmember exercise of sovereignty, or tribal exercise of sovereignty over nonmembers, then Resolution 74-05 doesn’t satisfy any of that three-prong test.

Number one, obviously they exert their sovereignty over the nonmember on fee lands, not Indian lands.

Secondly, I don’t perceive any legitimate Indian interest here, because we’re talking about, not the mountain area, the 400,000 acres set aside for the tribal wildlife commissary, we’re talking about the lowlands that theoretically all of which could ultimately end up in non-Indian lands; also, a commodity, a wildlife commodity in which the Indians historically have not shown a particular interest right up to the present day, as admitted by their own tribal historian.

They showed no particular interest in the waterfowl or upland game birds.

Additionally, there appears to be a conflicting federal policy in that the allotment policy of 1887 and 1920 was aimed at bringing the Indian in close contact with the whites to advance Indian civilization.

Moreover, in implementing that Act, there was an overt act by the Federal Government vesting fee title in the non-Indian without any reservations or restrictions.

Moreover, in the Allotment Act of 1920, although there were discrete reservations made for power sites and for mineral, there was no reference to hunting and fishing.

And of course, Congress has refused the opportunity to expand Section 1165 which prohibits hunting and fishing on Indian or trust lands to include non-fee lands.

In addition, if this Court approves Resolution 74-05, it seems to me that some rather serious constitutional questions are raised, and I would just briefly touch upon those.

This is not a case… unlike some of the others… where a tribe is trying to preserve to themselves a part of the wildlife resource.

They are attempting to confiscate what is normally an inherent constituent value of fee title to land, and that is the non-Indian’s right to hunt and fish on his fee lands or to permit anyone he wants to to come on there and hunt and fish on that land.

Moreover, that particular regulation or resolution has been actively supported by the United States in a number of ways ever since it’s been enacted.

And of course the Wilmington Parking Lot v. Burton case comes immediately to mind, wherein the forces of the state or the power of the state was placed behind discriminatory conduct, this Court said that was state action.

The action on the part of the United States in this case, under the Fifth Amendment, is much more overt and much more active, including, of course, this lawsuit itself.

And additionally, I would like to focus upon Holt Civic Club v. Tuscaloosa, which again raises a very, very serious question as to extraterritorial jurisdiction of a city.

There, in a split decision, this Court apparently approved the extraterritorial powers of the city because they affected nonresidents of the city, ergo there was no confiscation of the voting right; and secondly, on the basis that it encompassed only minor things, but did not encompass taxation, zoning, or eminent domain.

All of these latter, of course, appear to be desires of the Crow Tribe to have vindicated by this particular lawsuit.

I would like to reserve the rest of my time for rebuttal.

Thank you very much.

Warren E. Burger:

Very well, Mr. Roth.

Mr. Claiborne.

Louis F. Claiborne:

Mr. Chief Justice, may it please the Court:

I’ll begin, if I may, by addressing the river bed issue, as it has been called, partly because the focus has been there and rightly so.

Louis F. Claiborne:

It may indeed be the only live issue in this case, depending on how the Court resolves that issue.

I say that–

Potter Stewart:

You say, Mr. Claiborne.

It’s been a little confusing to me, perhaps I don’t, perhaps, fully understand this case… why the ownership of the river bed is crucial or critical in a right to regulate fishing case?

Generally, the ownership of the bed of a river becomes important in a case where somebody wants to take sand or gravel out of the bed, or something more valuable like oil or minerals, precious or otherwise.

But up until now, I don’t think that’s been the critical fact insofar as regulation of fishing or hunting.

Has it?

Louis F. Claiborne:

–Indeed.

And as Your Honor may have noted, we began in our brief by wondering why the bed of the river rather than the fishing of the river–

Potter Stewart:

Right.

Louis F. Claiborne:

–was the issue here?

The answer is twofold: first, that the petitioners rightly or wrongly have at all stages of this case conceded that if the Tribe, or the United States for the benefit of the Tribe, owns the bed, they then enjoy, the Tribe enjoys an exclusive fishery within the river.

Potter Stewart:

Fish aren’t in the bed of the river, they’re in the river.

Louis F. Claiborne:

That is the premise on which the petitioners have argued this case throughout.

Byron R. White:

Well, it didn’t sound like you… in this Court, Mr. Claiborne.

Louis F. Claiborne:

Mr. Justice White, it seems to me there was a somewhat change of emphasis under perhaps prompting from the Court, but the briefs in all courts and the arguments until today were entirely premised on that concession.

Byron R. White:

Well, Mr. Claiborne, the easy answer… not the easy, but one answer to Justice Stewart’s question is that if you… if someone owns the riverbed but someone else has a right to fish in the river as long as he doesn’t touch the bottom, he can be prosecuted for trespass if he gets out of his boat and–

–That’s right.

He can float down the river, no matter who owns the bed, and fish.

Louis F. Claiborne:

Well, the federal statute 1165 has been construed as covering not merely trespassing, touching the bottom, either with the hook or with the feet, but also of fishing the overlying waters if the underlying land is tribally owned–

Byron R. White:

Do you think that follows?

Louis F. Claiborne:

–It has been the understanding, the interpretation–

Byron R. White:

In this litigation?

Louis F. Claiborne:

–of Section 1165.

That was the premise of the Finch prosecution which came to this Court, which was vacated on wholly independent grounds.

But no one questioned… in that litigation, nor in this secondary litigation… the notion that it would violate that federal statute to fish even without touching the bottom.

Byron R. White:

Well, do you think it would violate… how about just floating the river without fishing?

Can the Tribe exclude people from the river under your view of the case?

Louis F. Claiborne:

No.

There is no suggestion that they can do so, because the Tribe was–

Byron R. White:

Well, the river is within the tribal boundary, within Reservation boundaries, and the statutes say that they can exclude people from the Reservation.

Louis F. Claiborne:

–Indeed, Mr. Justice White, but just as the State–

Byron R. White:

Not on the river, eh?

Is that it?

Louis F. Claiborne:

–Only because of the paramount federal navigational servitude which, arguably at least, has a corollary for the benefit of the public at large, that is a public right of navigation on navigable rivers up through the United States.

Byron R. White:

So, there’s a right to navigate, but not a right to fish?

Louis F. Claiborne:

That is so.

Byron R. White:

I mean, that’s your claim?

Louis F. Claiborne:

Yes.

William H. Rehnquist:

And what is your response to the Equal Footing argument?

Louis F. Claiborne:

Well, we begin with the Shively case followed in any number of cases, the most recently affirmed in this Court in the Choctaw case, that there is, in the words of Shively,

“undoubted power in the United States before statehood to grant away or to reserve to itself for a special purpose the beds of navigable rivers which would otherwise inure to the future state. “

We had not supposed that that proposition was open to reexamination in this case.

And indeed, my brother seemed not to challenge that settled proposition.

Potter Stewart:

That is, the power of the United States?

Louis F. Claiborne:

The power of the United States.

Potter Stewart:

Within at least some limitations, at least, according to Shively?

Louis F. Claiborne:

Indeed.

It must be done for a public purpose–

Potter Stewart:

Ordinarily.

Louis F. Claiborne:

–and clearly, though, it is perhaps proper to say that the extent to which the presumption against its being done varies according as the beneficiary is an individual private person who would be obtaining a special privilege by a piecemeal grant of some part of the river bottom, as opposed to a political society, a point made in the Choctaw opinion, such as an Indian tribe granted a large territory from which the white public was specifically intended to be excluded.

William H. Rehnquist:

Well, how do you distinguish the Corvallis case, then?

Louis F. Claiborne:

Mr. Justice Rehnquist, I recognize that there is language in the Corvallis case which may cast doubt on what had otherwise been thought to be settled law but the Corvallis case in its holding does not in any way question the power before statehood of the United States to grant away the beds of navigable rivers, as I understand the case.

I concede that there is language which could be read as pointing in that direction.

Potter Stewart:

You would agree with Mr. Roth that there is some tension between this aspect of the Equal Footing Doctrine and cases such as Choctaw?

Louis F. Claiborne:

There is some tension, yes, Mr. Justice.

I would have thought there was some tension between the rule that the public land in the west belongs to the United States while in the east it does not… a much more… tension, yet, a proposition not yet questioned in this Court.

At all events, I begin with the assumption that the Court is not reexamining the power of the United States to grant away at least in circumstances where there is a plain public purpose to be served.

And I may say that the Choctaw case is not standing alone in so ruling.

Not only did Shively, almost a hundred years ago, seem to settle that proposition quite clearly, but the Alaska Fisheries case is a clear statement that the United States in the territorial period may reserve for the benefit of the Indians submerged lands and tidelands which would otherwise be held in trust for the future State, and the State of Alaska, since statehood, has not challenged the effectiveness of the Annet Reservation in Alaska, which was recognized in that case, in the Alaska Fisheries case, as including both the waters and the beds.

Louis F. Claiborne:

Now, I may say that at the beginning, there may have been a question whether the navigational servitude of the United States, while remaining as a power in the Federal Government necessarily had its full corollary of allowing strangers to come into the heart of the Reservation by boat.

Potter Stewart:

Isn’t that generally what follows from the navigational servitude, a public right of access to navigable streams to traverse a stream?

Louis F. Claiborne:

But it may be, Mr. Justice Stewart, that in the case of an entire territory which is sealed off, as this was intended to be, with an explicit promise by the United States to let no one enter except by permission of the Tribe, that the public right to come on this relatively small river, which may not have been so clearly viewed as navigable, was to some degree diminished.

Potter Stewart:

Or maybe the navigational servitude was eliminated too, extinguished.

And if what you say… navigational servitude either exists on it doesn’t, and I haven’t heard about a claim that it exists partially.

Louis F. Claiborne:

It may have different aspects, as we know from the Kaiser Aetna case.

The power of the United States to withhold a permit for activities within navigable waters may not necessarily grant the public at large a right of free entry.

And what is more–

Potter Stewart:

Well, generally, that is what the federal navigational servitude implies, is it not?

Louis F. Claiborne:

–Well, it does have two aspects.

One is the power in the United States to use for public purposes the flow of that river, and the other is the corollary power or right of the public to enjoy freely without toll… for commercial purposes, primarily.

Here, originally, there would have been no reason for anyone to enter on the Big Horn River entirely encircled by Crow lands.

Since they were going from nowhere to nowhere except within the Crow Reservation from which they were excluded, could not land, and in our submission could not fish, there would have been no purpose in conceding their right of entry.

It may be in that light that the treaty spoke of the boundary as cutting off the river.

Today, however, we would concede that just as the public highways that traverse the Reservation are open to the public, so is the river for purposes other than fishing.

And I stress here that the treaty, if it did not reserve the bed to the Tribe, may nevertheless have reserved the fishery or it may have reserved the water, in the sense that the public were not invited into the heart of this Reservation for the purpose of sharing the wildlife that abounds there.

And while there were no trout at that time, there were presumably waterfowl and other game.

Byron R. White:

Mr. Claiborne, do you accept the 9th Circuit’s ruling with respect to nonmember fee owners?

Louis F. Claiborne:

We do accept that ruling.

Potter Stewart:

Although it is somewhat inconsistent with your basic theory, is it not?

Louis F. Claiborne:

Yes.

We however–

Potter Stewart:

You accept it because you–

Louis F. Claiborne:

–We approach it much as the 9th Circuit did, that there is a tension between the exclusive reservation for the benefit of the Tribe of this territory and what can be viewed as congressional invitation to nonmembers to enter upon and purchase lots within that reservation.

Those two federal declarations have to be accommodated.

Byron R. White:

–Well, when you accommodate them, what do you do about the riverbed in those places of the river where the riparian owners are fee owners, nonmember fee owners?

Louis F. Claiborne:

We do not concede that the riparian fee owner has a right to fish in the river, and I may say that the Namen case–

Byron R. White:

Didn’t the 9th Circuit say that they did?

Louis F. Claiborne:

–No, Mr. Justice White.

The 9th Circuit said that they could hunt and fish on their own land but–

Byron R. White:

Well, that’s what I mean.

Louis F. Claiborne:

–But they have no riparian subsoil ownership or–

Byron R. White:

How can you fish on land?

Louis F. Claiborne:

–Well, there are fishing places within… the lands.

Byron R. White:

Well, that’s what I, now–

Louis F. Claiborne:

Nonnavigable.

Byron R. White:

–Let’s assume that on both sides of the river there’s a nonmember fee owner, and that they both live on their property.

Now who owns the riverbed between those two pieces of property under the 9th Circuit?

Louis F. Claiborne:

If this is nonnavigable?

Are we talking about the Big Horn River or?

Byron R. White:

We’re talking about the Big Horn River.

Louis F. Claiborne:

Well, according to the 9th Circuit the ownership of the bed is in the Tribe or in the United States Government for the Tribe.

Byron R. White:

But the riparian owners may nevertheless fish in the river?

Louis F. Claiborne:

No, not under the 9th Circuit’s holding.

Byron R. White:

I thought you said that they can fish on their own land?

Louis F. Claiborne:

On their own land if they have a fishing pond or if it’s a nonnavigable stream, such as the Little Big Horn, to which they are riparian, and where they would own to the middle… of the river.

Byron R. White:

I understand that.

You don’t think that the 9th Circuit would indicate at all that the riparian owner on the Big Horn could fish in the river?

Louis F. Claiborne:

Indeed, the 9th Circuit explicitly said the opposite, and so had the… in the Namen case involving the Flathead Reservation, where the 9th Circuit upheld the Tribe’s claim to the bed of the Flathead Lake, just as it did here, and while it conceded the riparian right of the fee owners to wharfage and to access for navigation to the lake, it denied them the right to fish in the lake.

So here.

Byron R. White:

But the riparian owners here on the Big Horn may navigate?

Louis F. Claiborne:

They may put their boats in the river but they may not fish because that fishery is a part of the reserve that was originally set apart for the tribe.

It’s perhaps important to stress that the only live controversy so far as the record in this case discloses, and indeed so far as any other information available to me reveals, is with respect to hunting and fishing on the Big Horn River.

There could be issues about a fee owner away from the river using his land to invite hunting or fishing parties, fishing in this case of nonnavigable ponds or streams.

That so far as we’re aware has not become a problem.

What is more, the Tribe concedes, though perhaps it need not, that it will not press its claim so as to ignore fencing or posting.

So that as a practical matter the fee owners having been conceded by the Court of Appeals a right to hunt and fish on their own lands, the Tribe having not pressed their claim to do likewise on those parcels, the only areas which are seriously contested are the Big Horn fishery, both in terms of… and hunting of wildfowl there.

And there is no suggestion that the riparian owner owns any part of the bed.

The only claim made is in the name of the State, and the question is whether the State by either owning the bed or by purchasing two strategically located lots on the edge of the river can effectively defeat what had been the exclusive right of the tribe to use that resource by inviting the world in.

And we’re not talking about white owners who live on the reservation, or even if–

William H. Rehnquist:

Do you suggest that the result in this case would have been different had it been brought by non-Indian residents and owners of land on the Reservation?

Louis F. Claiborne:

–It would certainly present a much more attractive case from the point of view of the plaintiffs, Mr. Justice Rehnquist.

The true claimants here are total outsiders who neither own nor live on the Reservation, who live in Billings or in Hardin and who come by the thousands and fish and hunt on the Big Horn River, and thereby effectively destroy what had been and what was thought to have remained to be the special hunting and fishing preserve of the Tribe.

William H. Rehnquist:

Well, the plaintiff is the State of Montana, isn’t it?

Louis F. Claiborne:

But the State of Montana has not mentioned these outsiders in any of it’s briefs.

It keeps speaking of the allottee or the person who bought from an allottee–

William H. Rehnquist:

Well, it talks about the State, about the State, and I guess implicitly it means all the residents of the State.

Louis F. Claiborne:

–But it is to be noticed that non-owners… they speak about absentee land-owners, but they never speak about total outsiders, total strangers–

William H. Rehnquist:

The general public.

Louis F. Claiborne:

–They never speak about State lands, except for the bed of the river.

And that is the real bone of contention, whether the would outside through the device of the State having purchased two allotments on the river, can thereby inundate with thousands of fishermen and hunters and crowd out the Tribe whose resource this is guaranteed to be by solemn treaty.

One last word about the Equal Footing Doctrine in the bed of the river.

We have perhaps over-elaborately attempted to explain why the Holt case is not an obstacle in this case because that case very plainly involved a situation in which there had been no recognized title in the Band before statehood, and the court simply held that unextinguished but unconfirmed Indian title was not sufficient to defeat what was otherwise the constitutional claim of the state to receive the benefit of navigable waterbeds.

Every other case in this Court or any other Court and representing a very substantial body of property, has left the understanding that when the description plainly encompasses navigable waterbeds, those are included in the confirmation of the grant to an Indian tribe.

The Alaska Fisheries case was perhaps the first to state that clearly, but that was as long ago as 1918.

It was restated most recently in the Choctaw case.

It has been followed by a host of lower courts, and it is wrong to suggest that if this Court were once again to endorse that proposition, the states, Montana and its neighbors, would lose what they thought they had.

The understanding in law has been for now 70 years that in circumstances such as these, and these are particularly clear ones because of the description.

William H. Rehnquist:

Well, what do you do with the language from Shively v. Bowlby about, upon which you apparently rely, where the Court says,

“Although the title to the soil under the tidewaters of the Bay. “

–and this is San Francisco Bay…

“was acquired by the United States by cession from Mexico equally with the title to the upland. “

“They held it only in trust for the future State. “

How can you hold something in trust for a future state and yet convey it away?

Louis F. Claiborne:

Well, the very case, Mr. Justice Rehnquist, says, we cannot doubt that Congress has the power to make grants of land 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 its national obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several states, or to carry out other public purposes appropriate to the objects for which the United States holds the territory.

This Court in Alaska Fisheries expressly held that the creation of an Indian Reservation was an appropriate object for which the United States held the territory.

So that the Shively case, while saying now, normally, the United States holds the title–

Potter Stewart:

And that is the presumption in the absence of a conveyance?

Louis F. Claiborne:

–Yes, indeed.

Potter Stewart:

Isn’t that it?

Louis F. Claiborne:

But it is only a presumption and it can be overridden, at least provided a public purpose is involved; and certainly confirming the diminished territory of the Crow Tribe was such a purpose.

My time is up.

Warren E. Burger:

Mr. Lynaugh.

Thomas J. Lynaugh:

Mr. Chief Justice, and may it please the Court:

The major concern to the Tribe in this case has been the claim of sport fishing by non-Indians on, over, and in primarily the Big Horn River.

In recent years the river has become known as a very good, in fact a blue ribbon trout stream, and has attracted many non-Indians from Montana and across the nation.

Plaintiffs’ Exhibit 30, which appears at page 25, Volume II, of the Joint Appendix indicates surveys that have been taken of the fishermen on various weekends in 1973.

One of the major concerns of the Tribe is illustrated in that survey, and that is, the majority of people who are fishing on the river, and the majority of the people who are duck hunting in the vicinity of the river and over the river are non-Indians who are not local residents, but rather non-Indians who come from the major population centers in the other parts of Montana, or non-Indians who come from other states.

The concern of the Tribe is two-fold.

It’s to conserve the fish and game within its Reservation, within the totality of the boundaries of that Reservation, as a food source for itself.

And also, it has concern about the uncontrolled influx of non-Indians into the river area, and believes that this will seriously affect the Tribe as an entity.

This Reservation is a continuing Indian Reservation.

Seventy percent of the land is owned in trust.

The majority of the population are Indian residents.

The communities within the Reservation, the population centers, are Indian communities, not primarily non-Indian communities.

The Reservation itself, as a governmental entity, is divided into various districts which accord with the population centers.

We believe that since the major problem is the hunting and fishing in, over, and on the Big Horn River… and that’s the issue presented in this case… that the problem would be resolved, we believe, by a decision on the issue of ownership of the riverbed, a decision that would say that he riverbed is owned by the Tribe.

This river is not a commercial fishery.

There are no competing economic impacts between treaty fishermen and non-treaty fishermen.

There is no natural run of the fishery beyond the Reservation boundaries, downstream.

It’s a local fishery.

Byron R. White:

Is it stocked?

Thomas J. Lynaugh:

Yes, it is, Your Honor.

Byron R. White:

By whom?

Thomas J. Lynaugh:

Your Honor, it is now stocked by the U.S. Fish and Wildlife in conjunction with the Tribe.

The U.S. Fish and Wildlife does the stocking.

Prior to–

Byron R. White:

Prior to this decision, who did it?

Thomas J. Lynaugh:

–The State of Montana has done it, Your Honor.

Potter Stewart:

So there wouldn’t be any fishery at all in the absence of stocking?

Thomas J. Lynaugh:

There was a fishery, Your Honor, but–

Potter Stewart:

We’re talking about a trout fishery, aren’t we?

Thomas J. Lynaugh:

–That’s right.

There–

Potter Stewart:

And there wouldn’t be any at all in the absence of stocking, isn’t that correct?

Thomas J. Lynaugh:

–That’s correct.

Potter Stewart:

Because there’s no propagation?

Thomas J. Lynaugh:

No, Your Honor, not that I’m aware of.

If this Court decides that the riverbed is not owned by the Tribe, then the Tribe submits that by virtue of the treaties of 1868 that it has the exclusive property right to hunt and fish within the boundaries of its reservation and control hunting and fishing within the boundaries of the Reservation by the method suggested in this case, and that is by excluding all non-Indians except for the resident owners who reside–

Byron R. White:

What authority do you have, or what do you think the basis is for the tying of ownership of fishing to the ownership of the river bottom?

In all sorts of western states they are completely separate notions, but your colleague suggested that throughout this case the assumption has been that fishing belongs, the fishery belongs to the person who owns the riverbed.

Thomas J. Lynaugh:

–I think the negotiations of the treaty pointed out that the fishing, Your Honor, and the hunting, the sustenance that can be derived from the sources within the reservation was very important to the Tribe.

Byron R. White:

That doesn’t address my question, does it?

Thomas J. Lynaugh:

I think it does from the standpoint that the total grant made to the Tribe included the river for that purpose.

Byron R. White:

Well, I would think you would make that argument even if the State owned the bottom.

Thomas J. Lynaugh:

That is our second argument that I was row addressing, Your Honor.

Byron R. White:

Well, so again, I’m asking you, why in this case has the ownership notion been tied to the fishery?

Is there some case that you know of that binds the two together?

Thomas J. Lynaugh:

There are… the issue is addressed–

Byron R. White:

Except this one?

Thomas J. Lynaugh:

–The issue is addressed in the Alaska Fishery case, I believe, where the beds of the rivers around the island were given to the tribe and that the tribe was allowed the right to exclude the public from fishery.

I think it’s also addressed in the lower court decision in this case in Finch, and also in the lower court decision in the Pollmann case decided by Judge Jameson.

Byron R. White:

But you could either… do you also concede, as I gather the United States does, or states, that the Tribe could not exclude the people from floating the river?

Thomas J. Lynaugh:

Yes, I do, Your Honor.

I see no inconsistency whatsoever.

I think the Commerce Clause itself requires that the United States have the navigation servitude.

Potter Stewart:

Does that mean the right of the general public to navigate the river?

Thomas J. Lynaugh:

For purposes of floating?

Potter Stewart:

For any purpose.

To traverse the river.

Thomas J. Lynaugh:

I think it does, but I would like to add, Your Honor, that there is… this is not an artery of commerce.

This river is floated only for the purposes–

Potter Stewart:

It’s a navigable stream.

Thomas J. Lynaugh:

–of fishing.

Potter Stewart:

It’s a navigable stream?

Thomas J. Lynaugh:

Yes, it is.

It is a navigable stream.

Potter Stewart:

And you concede the Federal Government has a navigational servitude?

Thomas J. Lynaugh:

Yes, Your Honor, I do.

Potter Stewart:

And generally a navigational servitude implies a right of the general public to traverse the navigable stream, does it not?

Thomas J. Lynaugh:

Yes, Your Honor, that’s correct.

Potter Stewart:

And do you concede that exists here?

Thomas J. Lynaugh:

Yes, I do.

But I do not–

Potter Stewart:

And… but with no right to… the right to traverse, but no right to fish in the water, is that it?

Thomas J. Lynaugh:

–I don’t see–

Potter Stewart:

Except by permission of the tribe?

Thomas J. Lynaugh:

–That’s correct.

Potter Stewart:

And why, since I’ve already interrupted you, why… and this is maybe the same question that my brother White asked you, but perhaps a little broader, why does ownership… why isn’t ownership of something quite different from the power to exercise regulation or control over it?

In other words, Government has the conceded power to regulate the speed of vehicular traffic but it doesn’t assert that it owns those automobiles.

Thomas J. Lynaugh:

I think we felt that it was a separate theory and on–

Potter Stewart:

They are separate, aren’t they?

They’re separate concepts, and one makes sense without the other.

Thomas J. Lynaugh:

–I think we believed it was a right that went along with ownership of the riverbed itself.

Potter Stewart:

But it may exist even without ownership, may it not?

Thomas J. Lynaugh:

The property right in the hunting?

Potter Stewart:

No, the power to regulate?

Thomas J. Lynaugh:

That’s correct.

Yes.

Potter Stewart:

Without any ownership whatsoever?

Thomas J. Lynaugh:

That’s correct, Your Honor.

Warren E. Burger:

Then why so much emphasis on the ownership argument?

Ownership of the bed?

Well, it certainly makes an awful lot of difference, how you fish a stream, who owns the bed.

If somebody who owns the bed doesn’t want you to fish–

Thomas J. Lynaugh:

I think one answer to the question, Your Honor, If I may, is that the ownership issue is relevant from the standpoint that if the bed was owned by the Tribe, then it would fall into a trust status, and I think it would fall under, then, the purview of–

Warren E. Burger:

–It’s the converse–

Thomas J. Lynaugh:

–1165.

Warren E. Burger:

–The converse of that I’m driving at.

Obviously, you have one situation if you own the bed, but do you need to assert ownership of the bed to assert control of the fishing?

Thomas J. Lynaugh:

No.

Byron R. White:

Is any part of the Big Horn Lake on the Reservation?

Thomas J. Lynaugh:

Are you talking about an area–

Byron R. White:

Any part of the lake above the dam?

Thomas J. Lynaugh:

–It’s within the boundaries of the reservation, but part of it, taken for the construction of Yellowtail Dam, above the dam site, but there is no–

Byron R. White:

So that the bottom of the lake is not involved in this case?

Thomas J. Lynaugh:

–That’s correct, Your Honor.

Thank you.

Thomas J. Lynaugh:

It’s the bottom of the riverbed that flows below the dam and the afterbed.

It is our feeling that we do have an exclusive property right to hunt and fish within the boundaries of the Reservation, excepting the one exception that was made by the 9th Circuit as to fee-resident owners.

But we do not believe that in balancing the allotment acts with the original intent of the treaty, that the rights of the Tribe to exclusive use of its Reservation have been abolished to the point where they cannot exclude non-Indian sport fishermen from coming within the Reservation and using the resource.

There is no express indication in the record that that right to exclude others, non-Indian sportsmen, from the Reservation hunting and fishing has been done.

I think, once again, this is an ongoing governmental body, this is a tribal body that’s operating and actively practicing its culture.

Seventy percent of the land is currently in trust.

Under Section 14 of the Allotment Act, which appears at the Petitioners’ Appendix at 105, and the page at 116, there is a provision where land can actually pass back from fee status into trust status, and the Tribe is actively involved in trying to repurchase some of the land that has gone out of the trust status, to maintain its culture and to maintain its majority impact within the boundaries of its Reservation.

If this Court were not to grant the exclusive right to control hunting and fishing within the boundaries of the Reservation, then I think the Reservation would become diminished without express congressional enactments.

And also, it would greatly reduce and almost make meaningless the attempt by the Tribe to regulate, a regulation that I think has been recognized by Petitioners, to control hunting and fishing on trust lands, to control non-Indian access to trust lands for hunting and fishing, because of the nature of the combination of fee land and trust land.

I would like to point out and read a paragraph, because I believe it is important, in Volume II of the Joint Appendix… it’s Tribal Exhibit 71qq, it appears starting at page 86 of that volume.

Warren E. Burger:

86, did you say?

Thomas J. Lynaugh:

Yes, Your Honor, 86.

Thomas J. Lynaugh:

And it’s a letter from the Superintendent of the Crow Agency to the Area Director, the Bureau of Indian Affairs, in Billings.

And it’s a letter that actually attached to the resolution that’s in question here, Resolution 7405.

It’s stated there, on page 87:

“Hunting pressure on the reservation has increased to a point where game is depleted or nonexistent in vast areas. “

“New highways, increases in population, prosperity and inflated food prices contribute greatly to the influx of sportsmen, meat hunters and poachers. “

At the bottom of the page, and I think the critical paragraph 4(a):

“The general public has taken advantage of interspersed fee and Indian trust lands to utilize the whole reservation without respect to land status because the State of Montana takes no responsibility for the policing of Indian lands, the Crow Tribe does not have the funds, the police force, nor the authority to protect their lands and the Department of the Interior has not taken effective action to curtain violations. “

“Enforcement is so impractical that with this knowledge the general public utilizes the whole reservation as a haven for unlimited hunting and fishing. “

William H. Rehnquist:

Mr. Lynaugh, you rely rather heavily in your brief on Alaska Pacific Fishery v. United States; what do you make of the language in that case where the Court says about Reservation v. Alaska,

“The reservation was not in the nature of a private grant but simply a setting apart of until otherwise provide by law of designated public property for a recognized public purpose. “

Would you not say that the admission of a state to the Union came within the definition of “as otherwise provided by law” in that language?

Thomas J. Lynaugh:

Notwithstanding that sentence, Your Honor, my reading of the Alaska Fishermen’s case is that the Government intended clearly to convey title to the waters around the island of that Tribe to the Tribe.

William H. Rehnquist:

Then that… the language, “as otherwise provided by law” would not include an Act of Congress admitting a state to the Union?

Thomas J. Lynaugh:

I think the grant was made prior–

William H. Rehnquist:

It was; there’s no question.

But–

Thomas J. Lynaugh:

–And I think that the Government intended to make the grant.

And I believe Alaska had yet to attain–

Potter Stewart:

–Even though the grant were made earlier, the language from the Alaska Fisheries opinions read to you by my brother Rehnquist would indicate that the grant was a temporary grant or a conditional grant, wouldn’t it?

Subject to a condition subsequent?

Thomas J. Lynaugh:

–I don’t–

Potter Stewart:

Wouldn’t that language so indicate?

Thomas J. Lynaugh:

–I just believe there’s other language in the decision that clearly shows the intent.

William H. Rehnquist:

Well, what about that language rather than other language of the decision?

Thomas J. Lynaugh:

I think it’s foreshadowed by the other language in the decision, Your Honor.

In addition to the paragraphs I’ve read and the Exhibit that appears at page 88-89 there’s also a paragraph that indicates, at the bottom of page 89, that the Crow Tribe’s action to close the reservation to the public was very unpopular with the general public and caused retaliations in the form of some economic sanctions being taken against the Tribe, not being able to get credit as easily as they might have been able to in the past, things of this nature.

In summary, I think the Tribe believes that some balancing of the treaty rights with current day situations exists, and that the 9th Circuit made a valiant attempt to do this by carving out an exception for the resident fee owners.

We think there is a great deal of rationale involved with that exception, because the resident fee owner is actually contributing to the Reservation economy within the boundaries of the Reservation, in many instances.

The Reservation economy is an agricultural economy.

The non-Indian is usually leasing lands from indians and thus contributing to the support of Indians within the Reservation.

Thomas J. Lynaugh:

Also, the pressure that the non-Indian would put on the hunting and fishing within the Reservation is slight compared to the pressure that would be placed on the Reservation by virtue of the opening of the river to non-Indian hunters and fishers from without the State of Montana and a great deal from within.

Therefore, we believe, with regard to the power to hunt and fish as a property right and the power to exclude non-Indians who are not residents, that power has not been abrogated from the treaty.

Warren E. Burger:

Thank you, Mr. Lynaugh.

Do you have anything further, Mr. Roth?

Urban L. Roth:

If it please the Court, I do.

I’d like to comment briefly upon Crow Tribe Exhibit 71qq which apparently states that there is a shortage of fish and game caused by the influx of non-Indian hunters.

The unfortunate part of that letter is that the Tribe was either unwilling or unable to support that assertion in the letter at trial.

They basically had one witness there, the chief game warden… who, by the way, is one of eight tribal game wardens… Bud Fritzler testify.

Mr. Fritzler, page 263 of the transcript, indicated that he stopped, I believe, 20 to 30 non-Indian fishermen and inquired of them what they were doing.

At 269, I believe it is, he cited one incident involving non-Indian having coolers full of fish.

Superimposed upon this and I think significant in light of this Court’s recent decisions in Sea Coast Products v. Douglas, and Hughes v. Oklahoma, is the fact that the Tribe has done absolutely nothing with regard to preserving this scarce resource by controlling the acquisition of wildlife and fish by tribal members.

Tribal members are free to hunt at any season.

The record is replete with examples of the fact that they exercise that right in all seasons, including in the spring, when the cow elk is pregnant; including later on, when the fawn is by her side.

William H. Rehnquist:

How about limits?

Urban L. Roth:

No limits, Your Honor, absolutely none.

But I think significant, as far as the issues in this case are concerned, is the xx to this day they do not have a significant interest in the fishery.

Moreover, as we have already indicated, it’s a put-and-take fishery, and Montana was putting the fish in and its fishermen were merely taking them out again.

So it wasn’t a commodity that was supplied by the Tribe at all nor even introduced on the Reservation by the Tribe.

So this bare assertion that for some reason the wildlife resource is endangered just isn’t true.

Now, with regard to–

Warren E. Burger:

No, but to my knowledge, if the game is being taken for food, that’s as distinguished from sport.

There is a difference, isn’t there?

Urban L. Roth:

–Yes, there is.

And certainly I think this Court, as in Washington v. Fishing Vessel Association, has shown a regard for Indian interests, Indian tribes having a percentage of the resource; that’s true.

But in this particular case, if it please Your Honor, there is no evidence that that particular portion of the wildlife resource is not available to supply them with food.

And I’m sure, if the pressure on the wildlife resource of the Reservation became too heavy, then the federal courts, as they did in Washington v. Fishing Vessel Association, could at the behest of the Tribe allocate some percentage of the resource to the Tribe and some percentage to the non-Indians and regulate perhaps even the number of fishermen and hunters who would enter on the Reservation.

But in doing so, they would balance the interests of both and would consider whether or not there was indeed pressure upon that resource, which, of course, there is no evidence of there being any substantive impact upon the resource in this particular case.

With regard to the denigration of the Holt case, I would think that the case of Minnesota v. Hitchcock, which preceded United States v. Holt State Bank, and in which this Court made a study of all of the preexisting treaties leading up to the creation of the Red Lake Reservation would have put to rest that particular comment upon the whole case.

Thank you very much.

Warren E. Burger:

Thank you, gentlemen.

Warren E. Burger:

The case is submitted.