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41 Vs ) 1 ) OKLAHOMA, ET AL, } 3 3 Respondents ) 3 3 ------■ -) to 3 the CHEROKEE NATION OR TRIBE ) 11 of INDIANS in OKLAHOMA, } 3 12 Petitioner ) ) No

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41 Vs ) 1 ) OKLAHOMA, ET AL, } 3 3 Respondents ) 3 3 ------■ -) to 3 the CHEROKEE NATION OR TRIBE ) 11 of INDIANS in OKLAHOMA, } 3 12 Petitioner ) ) No L1BRAKY :eme court, u. s. Supreme Court of the United States OCTOBER TERM, 1969 In the Matter of: a ca» tss» cz* wo tsu a GJ-i C3 CA» «-} » THE CHOCTAW NATION AND Docket No. THE CHICKSAW NATION Petitioners vs, OKLAHOMA* ET AL, Respondents 9 ti, «£» t!.s# tfi THE CHEROKEE NATION OR TRIBE Docket No, 5S OF INDIANS IN OKLAHOMA, Petitioner F SUPREME vs, eb M A 27 OKLAHOMA, ET AL0 C; S RECEIVED H Respondents„» AI 10 COURT, f ~ 38 Duplication or copying of this transcript OFFICE by photographic, electrostatic or other AH (J.S. facsimile means is prohibited under the ’ 70 order form agreement. Place Washington, D, C, Date October 23, 1369 ALDERSON REPORTING COMPANY, INC. 300 Seventh Street, S. W. Washington, D. C. NA 8-2345 CONTENTS \ .ORAL . A RGUMBNT OF: PAGE z Louis F. Claiborne, Esq.. t on behalf of the United States ... ........................... ........ 43 3 4 3 6 7 a 0 ?o ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 ; ? IN THE SUPREME COURT OF THE UNITED STATES 2 OCTOBER TERM 1969 3 4 THE CHOCTAW NATION AND THE CHICKASAW NATION, ) 5 ) Petitioners ) 6 } No. 41 vs ) 1 ) OKLAHOMA, ET AL, } 3 3 Respondents ) 3 3 - - -- -- -- -- -- - - -■ -) to 3 THE CHEROKEE NATION OR TRIBE ) 11 OF INDIANS IN OKLAHOMA, } 3 12 Petitioner ) ) No-. 59 13 vs ) 3 OKLAHOMA, 3 14 ET AL. ) Respondents ) 15 ) 16 The above-entitled matter came on for argument at M 10:05 o’clock a.m. on October 23, 1969 58 BEFORE: 19 WARREN E. BURGER, Chief Justice 20 HUGO L. BLACK, Associate Justice WILLIAM 0. DOUGLAS, Associate Justice 21 JOHN M. HARLAN, Associate Justice POTTER 'STEWART, Associate Justice 22 BYRON R. WHITE, Associate Justice THURGOQD MARSHALL, Associate Justice 23 24 25 i 1 APPEARANCES: 2 LON KILE, ESQ., Box 725 3 Hugo, Oklahoma Counsel for Petitioners 4 (Choctaw and Chicasaw Nations) 5 PEYTON FORD, ESQ. Washington, D„ C„ 6 Counsel for Petitioners (Cherokee Nation, et al.) 7 LOUIS P. CLAIBORNE, Esq. 8 Office of the Solicitor General Department, of Justice 9 Washington, D„ C. For .the United States (amicus crriae) 10 M. DARWIN KIRK, Esq. it P. 0. Box 1439 Tulsa, Oklahoma 74101 12 Counsel for Respondents 13 \ 14 15 16 17 18 19 20 21 22 23 24 25 i PROCEEDINGS 2 MR. CHIEF JUSTICE BURGER: You may proceed, Mr. 3 Claiborne, whenever you are ready. 4 ORAL ARGUMENT BY LOUIS F. CLAIBORNE, ESQ. S OFFICE OF THE SOLICITOR GENERAL 6 ON BEHALF OF THE UNITED STATES 7 MR. CLAIBORNE; Mr. Chief Justice, and may it please 8 the Court: Yesterday I had said that the conveyances to these 9 two tribes, the Cherokees and the Choctaws, taken together, 10 encompassed the river bed of the Arkansas River. In or> n stance the river bed or the river was entirely surrounded by 12 Cherokee land and you find the other portion in dispute was the 13 boundary between the territories joining those two tribes. 14 As to that latter portion, it is suggested that 15 somehow the bed of the Arkansas River was included in neither m grant, is somewhat comparable: to what might be a suggestion wher 17 say, the States of Louisiana and Mississippi were admitted to 18 the Union where the Mississippi River is the boundary between 19 them, and because of the Acts of Admission in each case read 20 "through the river," or "down the river,'8 or "down the main 21 channel of the river,” as these conveyances do, the conclusion 22 reached would be that the Mississippi River ware included neithe c in Mississippi nor in Louisiana, a result which we would strain 23 to avoid because it obviously makes no sense. That is quite 24 comparable to the 'situation here. 25 3 i We're not dealing with grants; small grants to 2 private landowners, we are dealing with what amounts to large 3 territories ceded to quasi-sovereign tribes, then defined as 4 nations; in that time considered quasi-independent. The 5 treaties that we — the fact that we dealt with them by treaties 6 of course, indicates that approach of dealing with Indian 7 tribes as independent entities. •? 8 The treaties themselves recognised extensive powers 9 of self-government in these tribes. It would be inconsistent 10 with that approach to attempt to reserve, to wish to reserve, n to have an interest in reserving the beds of navigable rivers iz or any other territory within the area ceded, except only as 13 the United States might have some special reason for doing so. Such as maintaining the area around Fort Gibson in the middle 14 of the Cherokee grant, which was expressly done. 15 So, here there may have been interests in the United 16 States in reserving a right of navigation on the Arkansas River 17 and thatcan be read into these grants, to the Choctaws and IS k Cherokees* But of course, the navigational servitude which 19 as pertains tothe United States in all states, does not carry 20 with it an ownership of the bed of the river and there is no 21 reason to so read it here. 22 Q Excusa me. Is there any indication here that 23 the bed of this river has any particular value by reason of 24 any minerals or anything imposited in it? 25 4 1 A Precisely, Mr. Justice Black. At that time it 2 was not known that the bed of this river would become valuable 3 and there was, therefore, no reason for the United States to 4 withhold, for its own benefit, the bed of this river. All it 5 was concerned about — all it could be concerned about was to 6 reserve its rights to maintain it as an open highway of 7 commerce and as a way of access to Fort Gibson within the 8 Indian territory. But, as to the bed, there was no reason for 9 the United States to wish to 10 Q YOU didnt* quite understand my question. Is II there anything in the record that indicates that the bed of n this stream, as such, has embodied in it any minerals of any type that make it of any special value. 13 U A Today, yes, Mr. Justice Black. Q What is it? 15 16 A It's oil. Q Oil. 17 A And this controversy arises because very 18 valuable oil deposits have been discovered in the bed of the 19 river and so the matter becomes an important tactical dispute. 20 Q Is the real pragmatic question, then, who owns 21 the oil there, the Indians or the State of Oklahoma? 22 A That is exactly the practical question, Mr. 23 Justice Black„ 24 Now, as to the Equal Footing Doctrine, we say that 25 1 doctrine has no application hera» First, we point out that it 6, hadn’t been invented yet. Part of this is — in the first 3 case in this Court to apply that rule — a lawful, inevitable 4 rule, was seven after these grants to these Indian tribes. 5 Now, 1 — 6 Q Before you go on, I wanted to ask: Did the 7 Unitad States take the position that the Arkansas was then or 8 is not now — X guess then — was not then navigable above 9 Fort Gibson? Yesterday you said we were talking about the 10 navigable portion of the Arkansas River. Now, I suppose there a are Indian lands bordering the Arkansas Fiver above Fort 12 Gibson? 13 A Yes, there certainly were. 14 Q And there still are? 15 A 1 think so, Mr. Justice White, but there could !6 be. Q Not these, but some others? 17 J8 A They certainly were Cherokee and Creek lands 19 bordering on the portion of the 20 Q Are they stili there? A I really am not aware of it. 21 22 Q Well, in any event, in this we. would be settling the question for any of the navigable portion of the 23 Arkansas in this case. 24 A That is what X think, too, Mr. Justice White. 25 1 I thought it. was agreed by ail parties and I may be mistaken 2 that the navigable course of the Arkansas River ends at Port 3 Gibson» 4 Q Has that ever been litigated? C A lt frankly, cannot answer. Perhaps one of the 6 other Counsel will know that. 7 Q What difference does it make, from the point of 8 view in this case, whether it is navigable or not navigable? 9 A It's the only claim Oklahoma can make to the bed 10 of the river — only on the supposition that it was never 11 included in any grant to any Indian, in w'hf c& event it still 12 belongs to the United States» or still did at the time of 13 I'm not sure, it may still then belong to the United States, 14 never having been ceded to the state expressly. 15 Q In your submission yesterday you. posed, at least 16 as I understood it, the Indian tribes gave up the real good 17 land in Georgia and South Carolina in the Eastern States in IS exchange for this land. I suppose they surrendered all rights 19 of every character to subsurface minerals, oils, in those .20 eastern lands; is that correct? A I think that is true, Mr. Chief Justice. I am 21 22 not clear whether those prior grants were as categorically 23 feasible grants.
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