1. Where an act of Congress setting apart and confirming a
reservation to the Osage Indians out of lands formerly occupied but
ceded by the Cherokees described the west boundary as "the main
channel of the Arkansas River," and a deed to the United States for
the Osages, made by the Cherokees in pursuance of this and
Page 260 U. S. 78
other acts and of a treaty, described the land only by whole
townships, and by fractional townships "on the left bank of the
Arkansas River,"
held that the deed was to be interpreted
in conformity with the act, and that the act carried title to land
in the riverbed out to the main channel. Pp.
260 U. S. 82,
260 U. S.
87.
2. Congress has power to make grants of lands below high water
mark of navigable waters in a Territory, to carry out public
purposes appropriate to the objects for which the United States
holds the Territory. P.
260 U. S. 83.
Shively v. Bowlby, 152 U. S. 1,
152 U. S. 47.
3. This principle was not affected as to lands within the
Louisiana Purchase by the purpose, declared in the treaty with
France, that statehood should ultimately be conferred on the
inhabitants of the territory purchased. P.
260 U. S.
86.
4. A navigable river is one which is used or is susceptible of
being used in its ordinary condition as a highway for commerce over
which trade and travel are or may be conducted in the modes
customary on water. P.
260 U. S.
86.
5. The evidence in this case affords no ground for rejecting the
finding of the two courts below that the Arkansas River, along the
Osage Reservation in Oklahoma, is not and never has been a
navigable stream. P.
260 U. S.
86.
6. A grant of land in the bed of a nonnavigable river made by
the United States while holding complete sovereignty over the
locality including it cannot be divested by a retroactive rule or
declaration of the state subsequently created out of that territory
classifying the river as navigable. P.
260 U. S.
87.
7. Such a grant being attacked upon the ground that the river
was navigable and its bed not subject to be granted by the United
States, the question of navigability is not a local, but a federal,
question. P.
260 U. S. 87.
Wear v. Kansas, 245 U. S. 154,
distinguished.
270 F. 100 affirmed.
Appeal from a decree of the circuit court of appeals affirming a
decree of the district court in favor of the United States in a
suit brought on its own behalf and as trustee for the Osage Tribe
of Indians to cancel oil and gas leases granted the appellants by
the State of Oklahoma covering land constituting part of the bed of
the Arkansas River within the Osage Reservation, and to enjoin
operations under the leases and quiet title in the United States as
trustee.
Page 260 U. S. 79
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This is an appeal from a decree of the circuit court of appeals
of the Eighth Circuit affirming that of the district court for
Western Oklahoma. The bill in equity was filed by the United States
for itself and as Trustee for the Osage Tribe of Indians, against
the Brewer-Elliott Oil & Gas Company, and five other such
companies, lessees, under oil and gas leases granted by the State
of Oklahoma, of portions of the bed of the Arkansas River, opposite
the Osage Reservation in that state. It averred that the riverbed
thus leased belonged to the Osages, and not to Oklahoma, and that
the leases were void, that the defendants were prospecting for, and
drilling for, oil in the leased lots in the riverbed and were
erecting oil derricks and other structures therein, and prayed for
the cancelling of the leases, the enjoining of defendants from
further operations under their leases, and a quieting of the title
to the premises in the United States as trustee.
The State of Oklahoma intervened by leave of Court, and in its
answer denied that the Osage Tribe or the United States as its
trustee owned the riverbed of which these lots were a part, but
averred that it was owned by the state in fee. The other defendants
adopted the answer of the state.
After a full hearing and voluminous evidence, the district court
found that, at the place in question, the Arkansas River was, and
always had been, a nonnavigable
Page 260 U. S. 80
stream, that, by the express grant of the government, made
before Oklahoma came into the Union, the Osage Tribe of Indians
took title in the riverbed to the main channel, and still had it.
It entered a decree as prayed in the bill. The circuit court of
appeals held that, whether the river was navigable or nonnavigable,
the United States, as the owner of the territory through which the
Arkansas flowed before statehood, had the right to dispose of the
riverbed, and had done so to the Osages. It also concurred in the
finding of the district court that the Arkansas at this place was
and always had been nonnavigable, and that the United States had
the right to part with the riverbed to the Osage Tribe when it did
so. It affirmed the decree.
The Osage Tribe derived title to their reservation from the Act
of Congress of June 5, 1872, entitled an act to confirm to the
Great and Little Osage Indians a reservation in the Indian
Territory (17 Stat. 228). The Act, with its recitals, is printed in
the margin.
* The
description
Page 260 U. S. 81
of the tract conveyed is:
"Bounded on the east by the ninety-sixth meridian, on the south
and west by the north line of the Creek country, and the main
channel of the Arkansas River, and on the north by the south line
of the State of Kansas."
The Act of March 3, 1873, 17 Stat. 530, 538, directed the
Secretary of the Treasury to transfer $1,650,600 from Osage funds
to pay for lands purchased by the Osages from the Cherokees. The
Act of March 3, 1883, 22 Stat. 603, 624, appropriated $300,000 to
be paid to the Cherokees for this and other lands on condition of
their executing a proper deed. The conveyance from the Cherokees to
the United States in trust for the Osages recites the Cherokee
Treaty of 1866, 14 Stat. 799, the
Page 260 U. S. 82
Acts of June 5, 1872, March 3, 1873, and March 3, 1883, and
conveys to the United States the tract of country described in the
Act of June 5, 1872, except that, instead of its being bounded by
the main channel of the Arkansas River, it is described as
townships and fractional townships, "the fractional townships being
on the left bank of the Arkansas River." The deed purports to be
executed under authority of an act of the Cherokee Nation which
directed a deed under the Act of March 3, 1883, requiring
conveyance, satisfactory to the Secretary of the Interior, to the
United States in trust for the Osages now occupying said tract, "as
they occupy the same."
We have no doubt that the title to the riverbed is to be
determined by the language of the Act of June 5, 1872,
Page 260 U. S. 83
and that the meaning of the Cherokee deed is to be interpreted
not as if its words stood alone, but in the light of the acts of
Congress in pursuance of which it was made, and especially of the
Act of 1872, under which the Osages took possession, and which was
enough to vest in them good title to the land described therein
without the deed of 1883.
Choate v. Trapp, 224 U.
S. 665,
224 U. S. 673;
Jones v. Meehan, 175 U. S. 1,
175 U. S. 10;
Francis v. Francis, 203 U. S. 233,
203 U. S.
237-238.
Coming, then, to consider the effect of the words of the Act of
1872 in bounding the Osage reservation "by the main channel of the
Arkansas River," we are met by the argument that the United States
had no power to grant the bed of the Arkansas River, a navigable
stream, to the Indians, because it held title to it only in trust
to convey it to the states to be formed out of the Louisiana
Purchase, which, when admitted to the Union, must, in order to be
equal in power to the other states, be vested with sovereign rights
over the beds of navigable waters and streams. The case of
Pollard's Lessee v.
Hagan, 3 How. 212, is cited to sustain this
proposition. That was a case where a Spanish claimant of land under
navigable waters in Alabama, seeking to establish title against the
state, relied on a confirmation of an invalid Spanish grant by the
United States enacted after Alabama became a state. Such a
confirmation was held to be ineffective against the sovereign title
of the state. The language of Mr. Justice McKinley, who spoke for
the Court, fully sustains the argument made here that, even before
statehood, the United States was without power to convey title to
land under navigable water and deprive future states of their
future ownership. Such a view was not necessary, however, to the
case before the Court and has since been qualified by the Court
through Chief Justice Taney in
Goodtitle v.
Kibbe, 9 How. 471,
50 U. S. 478.
Ward v. Race Horse, 163 U. S. 504,
relied on by counsel for appellants,
Page 260 U. S. 84
does not sustain their contention. The gist of the Court's
holding there was that a right to hunt upon the unoccupied lands of
the United States so long as game might be found thereon, granted
by the United States in an Indian treaty made before the statehood
of Wyoming, was not to be construed as intended to continue
thereafter, or to give immunity from the Wyoming game laws.
The whole subject has been clarified, after the fullest
examination of all the authorities, in a most useful opinion by Mr.
Justice Gray, speaking for the Court in
Shively v. Bowlby,
152 U. S. 1. On page
152 U. S. 47, the
learned Justice says:
"VIII. Notwithstanding the
dicta contained in some of
the opinions of this Court, already quoted, to the effect that
Congress has no power to grant any land below high water mark of
navigable waters in a territory of the United States, it is evident
that this is not strictly true."
And he then reviews the cases, and thus states the Court's
conclusion (pp.
152 U. S.
48-49):
"We cannot doubt therefore that Congress has the power to make
grants of lands 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 international 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 hold the territory."
"IX. But Congress has never undertaken by general laws to
dispose of such lands. And the reasons are not far to seek. . .
."
"The Congress of the United States, in disposing of the public
lands, has constantly acted upon the theory that those lands,
whether in the interior or on the coast, above high water mark, may
be taken up by actual occupants, in
Page 260 U. S. 85
order to encourage the settlement of the country, but that the
navigable waters and the soils under them, whether within or above
the ebb and flow of the tide, shall be and remain public highway,
and, being chiefly valuable for the public purposes of commerce,
navigation, and fishery, and for the improvements necessary to
secure and promote those purposes, shall not be granted away during
the period of territorial government, but, unless in case of some
international duty or public exigency, shall be held by the United
States in trust for future states, and shall vest in the several
states, when organized and admitted into the Union, with all the
powers and prerogatives appertaining to the older states in regard
to such waters and soils within their respective jurisdictions --
in short, shall not be disposed of piecemeal to individuals as
private property, but shall be held as a whole for the purpose of
being ultimately administered and dealt with for the public benefit
by the state, after it shall have become a completely organized
community."
We do not think the declared purpose of the Louisiana Purchase
Treaty with France that statehood should be ultimately conferred on
the inhabitants of the territory purchased, relied on by the
appellants, varies at all the principles to be applied in this
case. They are the same in respect to territory of the United
States, whether derived from the older states, Spain, France of
Mexico. If the Arkansas River were navigable in fact at the
locus in quo, the unrestricted power of the United States,
when exclusive sovereign, to part with the bed of such a stream for
any purpose, asserted by the circuit court of appeals, would be
before us for consideration. If that could not be sustained, a
second question would arise whether vesting ownership of the
riverbed in the Osages was for "a public purpose appropriate to the
objects for which the United States hold territory," within the
language of Mr. Justice Gray in
Shively v. Bowlby above
quoted.
Page 260 U. S. 86
We do not find it necessary to decide either of these questions
in view of the finding as a fact that the Arkansas is and was not
navigable at the place where the riverbed lots here in controversy
are.
A navigable river in this country is one which is used or is
susceptible of being used in its ordinary condition as a highway
for commerce over which trade and travel are or may be conducted in
the customary modes of trade and travel on water. It does not
depend upon the mode by which commerce is conducted upon it,
whether by steamers, sailing vessels or flatboats, nor upon the
difficulties attending navigation, but upon the fact whether the
river, in its natural state, is such that it affords a channel for
useful commerce.
Oklahoma v. Texas, 258 U.
S. 574;
Economy Light Co. v. United States,
256 U. S. 113;
The Montello,
20 Wall. 430;
The Daniel
Ball, 10 Wall. 557,
77 U. S. 563.
Voluminous testimony was introduced in the district court upon the
issue of navigability. That court considered it all with evident
care, and had no difficulty in reaching the conclusion that the
Arkansas River along the Osage Reservation was not, and had never
been, navigable within the adjudged meaning of that term, and that
the head of navigation is and was the mouth of the Grand River,
near which was Fort Gibson, and this is a number of miles below the
reservation. The circuit court of appeals reviewed this finding and
fully concurred in its correctness. Neither the argument nor the
record discloses any ground which can overcome the weight which the
findings of two courts must have with us.
Washington Sec. Co.
v. United States, 234 U. S. 76,
234 U. S. 78;
Texas Railway Co. v. Louisiana R. Co. Commission,
232 U. S. 338;
Chicago, Junction Ry. Co. v. King, 222 U.
S. 222,
222 U. S. 224;
Dun v. Lumbermen's Credit Association, 209 U. S.
20,
209 U. S. 24. It is
a natural inference that Congress, in its grant to the Osage
Indians in 1872, made it extend to the main channel of the river
only
Page 260 U. S. 87
because it knew it was not navigable. This would be consistent
with its general policy. Rev.Stats. ยง 2476;
Oklahoma v.
Texas, 258 U. S. 574;
Scott v. Lattig, 227 U. S. 229,
227 U. S. 242;
Railroad Co. v.
Schurmeir, 7 Wall. 272,
74 U. S. 289.
If the Arkansas River is not navigable, then the title of the
Osages as granted certainly included the bed of the river as far as
the main channel, because the words of the grant expressly carries
the title to that line.
But it is said that the navigability of the Arkansas River is a
local question, to be settled by the Legislature and the courts of
Oklahoma, and that the supreme court of the state has held that, at
the very point here in dispute, the river is navigable.
State
v. Nolegs, 40 Okl. 479. A similar argument was made for the
same purpose in
Oklahoma v. Texas, supra, based on a
decision by the Supreme Court of Oklahoma as to the Red River.
Hale v. Record, 44 Okl. 803. The controlling effect of the
state court decision was there denied because the United States had
not been there, as it was not here, a party to the case in the
state court.
Economy Light Co. v. United States,
256 U. S. 113,
256 U. S. 123.
In such a case as this, the navigability of the stream is not a
local question for the state tribunals to settle. The question here
is what title, if any, the Osages took in the riverbed in 1872,
when this grant was made, and that was thirty-five years before
Oklahoma was taken into the Union, and before there were any local
tribunals to decide any such questions. As to such a grant, the
judgment of the state court does not bind us, for the validity and
effect of an act done by the United States is necessarily a federal
question. The title of the Indians grows out of a federal grant
when the Federal government had complete sovereignty over the
territory in question. Oklahoma, when she came into the Union, took
sovereignty over the public lands in the condition of ownership as
they were then, and if the bed of a nonnavigable stream had then
become the property
Page 260 U. S. 88
of the Osages, there was nothing in the admission of Oklahoma
into a constitutional equality of power with other states which
required or permitted a divesting of the title. It is not for a
state, by courts or legislature, in dealing with the general
subject of beds of streams, to adopt a retroactive rule for
determining navigability which would destroy a title already
accrued under federal law and grant, or would enlarge what actually
passed to the state at the time of her admission under the
constitutional rule of equality here invoked.
It is true that, where the United States has not in any way
provided otherwise, the ordinary incidents attaching to a title
traced to a patent of the United States under the public land laws
may be determined according to local rules, but this is subject to
the qualification that the local rules do not impair the efficacy
of the grant or the use and enjoyment of the property by the
grantee. Thus, the right of the riparian owner under such grant may
be limited by the law of the state either to high or low water mark
or extended to the middle of the stream.
Packer v. Bird,
137 U. S. 661,
137 U. S.
669.
We said in
Oklahoma v. Texas, 258 U.
S. 574,
258 U. S.
594:
"Where the United States owns the bed of a nonnavigable stream
and the upland on one or both sides, it, of course, is free when
disposing of the upland, to retain all or any part of the riverbed,
and whether in any particular instance it has done so is
essentially a question of what is intended. If, by a treaty or
statute or the terms of its patent, it has shown that it intended
to restrict the conveyance to the upland or to that and a part only
of the riverbed, that intention will be controlling, and, if its
intention be not otherwise shown, it will be taken to have assented
that its conveyance should be construed and given effect in this
particular according to the law of the state in which the land
lies. Where it is disposing of tribal land of the Indians under its
guardianship, the same rules apply. "
Page 260 U. S. 89
In government patents containing no words showing purpose to
define riparian rights, the intention to abide the state law is
inferred. Mr. Justice Bradley, speaking for the Court in
Hardin
v. Jordan, 140 U. S. 371,
140 U. S. 384,
said:
"In our judgment, the grants of the government for lands bounded
on streams and other waters, without any reservation or restriction
of terms, are to be construed as to their effect according to the
law of the state in which the lands lie."
Some states have sought to retain title to the beds of streams
by recognizing them as navigable when they are not actually so. It
seems to be a convenient method of preserving their control. No one
can object to it unless it is sought thereby to conclude one whose
right to the bed of the river, granted and vesting before
statehood, depends for its validity on nonnavigability of the
stream in fact. In such a case, navigability
vel non is
not a local question. In
Wear v. Kansas, 245 U.
S. 154, upon which the plaintiffs in error rely, the
patent of the United States under which Wear derived title was a
grant, made before statehood, to land bordering on the Kansas River
without restriction, reservation, or expansion. The state tribunal
took judicial notice of the navigability of the river, refused to
hear evidence thereon, and held that the patent to land on a
navigable stream did not convey the bed of the river. The United
States, by its unrestricted patent, was properly taken to have
assented to its construction according to the local law. Whether
the local law worked its purpose by conclusively determining the
navigability of the stream, without regard to the fact, or by
expressly denying a riparian title to the bed of a nonnavigable
stream, was immaterial. In either view, the result there would have
been the same. The case of
Donnelly v. United States,
228 U. S. 243, is
to be similarly distinguished, if, indeed it can be said, after the
qualification of the opinion,
228 U. S. 228 U.S.
708,
228 U. S. 711,
to require distinguishing.
The decree of the circuit court of appeals is affirmed.
*
"Chap. CCCX. An act to confirm to the Great and Little Osage
Indians a reservation in the Indian Territory."
"Whereas, by the treaty of eighteen hundred and sixty-six
between the United States and the Cherokee Nation of Indians, said
nation ceded to the United States all its lands west of the
ninety-sixth meridian west longitude, for the settlement of
friendly Indians thereon, and whereas, by act of Congress approved
July fifteenth, eighteen hundred and seventy, the President was
authorized and directed to remove the Great and Little Osage
Indians to a location in the Cherokee country west of the
ninety-sixth meridian, to be designated for them by the United
States authorities, and whereas it was provided by the same act of
Congress that the lands of the Osages in Kansas should be sold by
the United States, and so much of the proceeds thereof as were
necessary should be appropriated for the payment to the Cherokees
for the lands set apart for the said Osages west of the
ninety-sixth meridian, and whereas, under the provisions of the
above mentioned treaty and act of Congress and concurrent action of
the authorities of the United States and the Cherokee Nation, the
said Osages were removed from their former homes in the State of
Kansas to a reservation set apart for them in the Indian Territory
at the time of the removal supposed to be west of the said
ninety-sixth meridian, and bounded on the east thereby, and upon
which said Osages have made substantial and valuable improvements,
and whereas, by a recent survey and establishment of the
ninety-sixth meridian, it appears that the most valuable portion of
said Osage reservation, and upon which all their improvements are
situated, lies east of the said meridian, and whereas it therefore
became necessary to select other lands in lieu of those found to be
east of the established ninety-sixth meridian for said Osage
Indians, and whereas a tract has accordingly been selected lying
between the western boundary of the reservations heretofore set
apart for said Indians and the main channel of the Arkansas River,
with the south line of the State of Kansas for a northern boundary
and the north line of the Creek country and the main channel of the
Arkansas River for a southern and western boundary, and whereas the
act of Congress approved July fifteenth, eighteen hundred and
seventy, restricts the said reservation for said Osage Indians to
'a tract of land in compact form equal in quantity to one hundred
and sixty acres for each member of said tribe;' and whereas in a
letter of the Cherokee delegation, addressed to the Secretary of
the Interior on the eighth day of April, eighteen hundred and
seventy-two, on behalf of the Cherokee Nation, containing their
approval of and assent to the proposition to provide for the
settlement of the Osage and Kaw Indians on that portion of the
Cherokee country lying west of the ninety-sixth degree west
longitude, south of Kansas, east and north of the Arkansas River:
Therefore,"
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled that, in
order to provide said Osage tribe of Indians with a reservation and
secure to them a sufficient quantity of land suitable for
cultivation, the following-described tract of country, west of the
established ninety-sixth meridian, in the Indian Territory be, and
the same is hereby, set apart for and confirmed as their
reservation, namely: bounded on the east by the ninety-sixth
meridian, on the south and west by the north line of the Creek
country and the main channel of the Arkansas River, and on the
north by the south line of the State of Kansas:
Provided,
that the location as aforesaid shall be made under the provisions
of article sixteen of the treaty of eighteen hundred and sixty-six,
so far as the same may be applicable thereto:
And provided
further, that said Great and Little Osage tribe of Indians
shall permit the settlement within the limits of said tract of land
[of] the Kansas tribe of Indians, the lands so settled and occupied
by said Kansas Indians, not exceeding one hundred and sixty acres
for each member of said tribe, to be paid for by said Kansas tribe
of Indians out of the proceeds of the sales of their lands in
Kansas at a price not exceeding that paid by the Great and Little
Osage Indians to the Cherokee Nation of Indians."
"Approved June 5, 1872."