Choctaw Nation v. Oklahoma/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

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

The Cherokees, pursuant to treaties with the United States, exchanged their aboriginal domain in the East for more than 14,000,000 acres of land west of the Mississippi, then in Indian Territory but now a part of Oklahoma. Pursuant to promises in the treaties, the United States on December 31, 1838, issued a patent to the Cherokees describing the lands by metes and bounds and conveying the lands here in question in fee simple.

A portion of the Arkansas River is entirely within the grant to the Cherokees. It is therefore a mystery why all of the bed in that portion of the river was not conveyed to the Cherokees. The river bed was not reserved to the United States by the patent. The United States, however, made other reservations: (1) the right to permit other tribes to get salt on the western part of the grant; (2) any rights to lands assigned the Quapaws which turned out to be within the bounds of these Cherokee lands; (3) the right to establish and maintain military posts and roads together with the free use of land, timber, fuel, and materials for the construction and support of those facilities. Since the United States made some reservations but made no reservations of the river bed, and if fair dealing is the standard, one would conclude, I think, that the river bed was the tail that went with the hide.

As respects the Choctaws, another section of the Arkansas River was the boundary between the Choctaw and the Cherokee grants. Whatever may be the rights between the Cherokees and the Choctaws, it seems clear to me than since one portion of the Arkansas was within the exterior boundaries of the Cherokee grant and another portion was within the exterior boundaries of the Choctaw grant, the river bed of each of those segments went to the respective grantees in fee simple.

Here an entire region was conveyed to these tribes as part of their resettlement, with assurances of selfgovernment and with pledges that their new homelands would never be part of any State. They were indeed constituted as the sovereign autonomy established in lieu of a prospective State.

The title held by these tribes was not the usual aboriginal Indian title of use and occupancy but a fee simple, cf. United States v. Creek Nation, 295 U.S. 103, 55 S.Ct. 681, 79 L.Ed. 1331 terminable if and when these Indian nations ceased to exist or abandoned the territory-conditions not yet occurring. The reliance by the Court of Appeals on United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465, was therefore misplaced as that case involved only the aboriginal Indian title of use and occupancy. Id., at 58-59, 46 S.Ct., at 200.

The United States, speaking through the Solicitor General, has filed a brief amicus taking that position in these cases and maintaining it vigorously on oral argument. It concedes, as it must in light of Shively v. Bowlby, 152 U.S. 1, 49-50, 14 S.Ct. 548, 566-567, 38 L.Ed. 331, that while the United States holds a domain as a territory, it may convey away the right to the bed of a navigable river, not retaining that property for transfer to a future State, though as stated in Holt State Bank that purpose is 'not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain.' 270 U.S., at 55, 46 S.Ct. at 199. Such exceptional circumstances are present here.

The treaties with the present Indians solemnly assured them that these new homelands would never be made part of a State or Territory. So it is reasonable to infer that the United States did not have a plan to hold this river bed in trust for a future State. As the United States says, we would have to indulge 'a cynical fiction without any basis in fact' to attribute such a purpose to the parties. Sixty years later, however, Congress was intent in creating a State out of these lands.

Friction between the Indians and the whites who sought to settle on these lands mounted. As time passed the American attitude towards these treaties became as hostile as the opinion below. The Commissioner of Indian Affairs in his 1886 Report spoke of the exploitation of many Indians by a few Indians who had a monopoly of land and he attacked the treaties as such:

'(I)t is perfectly plain to my mind that the treaties never     contemplated the un-American and absurd idea of a separate nationality in our midst, with power as      they may choose to organize a government of their own, or not      to organize any government nor allow one to be organized, for      the one proposition contains the other. These Indians have no     right to obstruct civilization and commerce and set up an      exclusive claim to self-government, establishing a government      within a government, and then expect and claim that the      United States shall protect them from all harm, while      insisting that it shall not be the ultimate judge as to what      is best to be done for them in a political point of view. I     repeat, to maintain any such view is to acknowledge a foreign      sovereignty, with the right of eminent domain, upon American      soil-a theory utterly repugnant to the spirit and genius of      our laws, and wholly unwarranted by the Constitution of the      United States.' H.R. Exec. Doc. No. 1, pt. 5, 49th Cong., 2d     Sess., 87.

But cf. the views of Robert L. Owen, U.S. Indian Agent, in     H.R. Exec. Doc. No. 1, pt. 5, vol. 2, 50th Cong., 2d Sess.,     134-135 (1888). And see A. Debo, The Rise and Fall of the     Choctaw Republic 245 et seq. (1934).

A commission was created to negotiate an agreement with these tribes superseding the earlier treaties, all as related in Choate v. Trapp, 224 U.S. 665, 667-670, 32 S.Ct. 565, 566-567, 56 L.Ed. 941. An agreement was in time reached whereby tribal lands were allotted to individual members of the tribe, with any remaining tribal land passing to the United State as trustees for the Indians. 34 Stat. 137. The bed of the Arkansas was not allotted. The next year-1907-Oklahoma was admitted to the Union on an equal footing with the original States. 34 Stat. 267. Certainly this cession by the tribes of their interest in the river bed of the Arkansas to the United States in trust for their members was no possible vehicle for transferring that title to Oklahoma.

The Court properly makes these cases candidates for application of the classic rule that treaties or agreements with Indians are to be construed in their favor, not in favor of commercial interests that repeatedly in our history have sought to exploit them. The idea was perhaps best stated in United States v. Winans, 198 U.S. 371, 380-381, 25 S.Ct. 662, 664, 49 L.Ed. 1089:

'(W)e will construe a treaty with the Indians as 'that     unlettered people' understood it, and 'as justice and reason      demand, in all cases where power is exerted by the strong      over those to whom they owe care and protection,' and      counterpoise the inequality 'by the superior justice which      looks only to the substance of the right without regard to      technical rules.' (Choctaw Nation v. United States) 119 U.S.      1, 30 L.ed. 306, 7 Sup.Ct.Rep. 75; (Jones v. Meehan) 175 U.S.     1, 44 L.ed. 49, 20 Sup.Ct.Rep. 1. How the treaty in question     was understood may be gathered from the circumstances.'

We should therefore resolve any doubts in these cases in favor of these Indians, mindful of what President Jackson said at a meeting with the Choctaws and Chickasaws:

'Brothers, listen: the only plan by which this can be done,     and tranquillity for your people obtained, is, that you pass      across the Mississippi to a country in all respects equal, if      not superior, to the one you have. Your great father will     give it to you for ever, that it may belong to your and your      children while you shall exist as a nation, free from all      interruption.

Peace invites you there; annoyance will be left behind;     within your limits, no State or territorial authority will be      permitted; intruders, traders, and above all, ardent spirits,      so destructive to health and morals, will be kept from among      you, only as the laws and ordinances of your nation may      sanction their admission.' S.Doc. No. 512, 23d Cong., 1st     Sess., Vol. 2, 240-242.

Only the continuation of a regime of discrimination against these people, which long plagued the relations between the races, can now deny them this just claim.

Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice BLACK join, dissenting.