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.
^1 In addition to the millions of acres conveyed to the Cherokees in fee simple, which included the land surrounding the segment of the Arkansas River here in question, they were guaranteed lands to the west of that tract as 'a perpetual outlet west' which provided for 'free and unmolested use' of those lands.
^2 The details of the removal of the Cherokees from their ancestral lands are related in Western Cherokee Indians v. United States, 27 Ct.Cl. 1, 20 et seq. While 6,000 had moved west to their new lands by 1838, 18,000 were still in their ancestral homes.
'The Eastern Cherokees were prisoners in Georgia, under the guard of 5,000 United States soldiers, who had hunted them down from their mountains and driven them out of their valleys and were now bringing them to the terms of an enforced emigration.' Id., at 20.
They were finally forcibly removed by the U.S. Army under General Scott:
'He moved quickly and successfully, and has thus recorded the most painful experience of his military life:
"Food in abundance had been provided at the depots, and wagons accompanied every detachment of troops. The Georgians distinguished themselves by their humanity and tenderness. Before the first night thousands-men, women, and children, sick and well were brought in. Poor creatures. They had obstinately refused to prepare for the removal. Many arrived half starved, but refused the food that was pressed upon them. At length the children, with less pride, gave way, and next their parents. The Georgians were the waiters on the occasion, many of them with flowing tears. The autobiographer has never witnessed a scene of deeper pathos." Id., at 23.
For early incidents involving this Court in aspects of the removal problems see M. James, Andrew Jackson: Portrait of a President 280-281, 304-305 (1937); 1 C. Warren, Supreme Court in U.S. History, c. 19 (1937); Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483.
^3 Our agents said the following to the Cherokee Council on July 31, 1837: 'Here you are subjected to laws, in the making of which you have no voice; laws which are unsuited to your customs, and abhorrent to your ideas of liberty. There, Cherokees, you will make laws for yourselves, and establish such government as in your own estimation may be best suited to your condition. There, Cherokees, in your new country, you will be far beyond the limits or jurisdiction of any State or Territory. The country will be yours; yours exclusively. No other people can make claim to it, and you will be protected by the vigilant power of the United States against the intrusion of the white man.' S.Doc. No. 120, 25th Cong., 2d Sess., 988.
^4 The Treaty with the Cherokees of December 29, 1835, 7 Stat. 478, provided in Article 5 that no lands conveyed shall without the consent of the Cherokees ever 'be included within the territorial limits or jurisdiction of any State or Territory.' And see Article IV of the Treaty of Sept. 27, 1830, 7 Stat. 333.
^5 The Treaty with the Cherokees of May 6, 1828, 7 Stat. 311, spoke of the desire of the United States to provide the Cherokees 'a permanent home, and which shall, under the most solemn guarantee of the United States, be, and remain, theirs forever-a home that shall never, in all future time, be embarrassed by having extended around it the lines, or placed over it the jurisdiction of a Territory or State, nor be pressed upon by the extension, in any way, of any of the limits of any existing Territory or State.'
^6 The story of the exploitation of Indians by state and local agencies has been recently summarized by William Brandon:
'Termination is truly a word of ill omen to tribal Indians. Its meaning in Indian affairs is the termination of 'Federal responsibility,' the responsibility of the Federal Government to act as trustee for Indian lands, rights, and resources; the responsibility to protect Indian groups in these rights and possessions-protect them particularly against states, counties, cities, or other local powers
that might divest them of their rights and possesstions-and to provide certain services such as education and health.
'These responsibilities are based upon treaty promises or other equally legal commitments, in which the Federal Government pledged, in return for cessions of value, to render unto specific Indian groups specific rights and their protection, plus the provision of schools, hospitals, sawmills, teachers, doctors, tools and implements, roads, supplies when needed-all the services of the modern world, to be supplied and administered by the Federal Government rather than administered under state and local jurisdictions, because of well-founded apprehensions that state and local jurisdictions might not be trustworthy in carrying out such promises.' Progressive, January 1970, p. 38.
E. Cahn, Our Brother's Keeper 21 (1969), states the same theme:
'The Indian knows that termination takes many forms. He can be flooded out of his reservation; he can be relocated; his reservation can be sold out from under him if he cannot meet taxes to which it is subject. His limited power to protect himself on the reservation from local prejudice and discrimination can be wiped away by the substitution of state laws for tribal law, and state jurisdiction for tribal jurisdiction. All of these, the Indian knows, are variants on one basic truth: the United States Government does not keep its promises. Sometimes it breaks them all at once, and sometimes slowly, one at a time. The result is the same-termination. When the Indian is asked to forsake his status under the Bureau in exchange for cash, for promises of technical aid, for public works improvements and industrial developments, he has learned to expect two things:
'-That the promises will not be kept.
'-That even if they should be kept, they will prove inadequate to maintain the Indian at even his reservation level of deprivation.'
^7 The Cherokee Nation claims to have negotiated some 13 sand and gravel leases for the bed of the Arkansas River between April 12, 1883, and May 27, 1893-prior to the admission of Oklahoma into the Union. The record does not disclose the date when the State of Oklahoma first assumed the role of lessor of the river bed, although several cases have involved such leases by the State. See, e.g., Lynch v. Clements, Okl., 263 P.2d 153.
^8 Sequoyah, the great Cherokee from Tennessee, whose home stood on the banks of the Little Tennesee River, was crippled for life on a hunting trip; and in his inactive life thereafter invented the Cherokee syllabary, inspired by the 'talking leaves' or written and printed pages by which the whites communicated. His syllabary contains some 80 syllables in the Cherokee language. His memory is perpetuated in the name of the genus of California giant redwoods and his statue was placed in Statuary Hall of the National Capitol in 1917.