October 13, 1996 in Idaho

Tribe Says It Can Better Manage Lake Cda Coeur D’Alene Indians To Argue Case Of Ownership Before Supreme Court

From Staff And Wire Reports Sta

Who owns Lake Coeur d’Alene is a question of government agreements, legal doctrines and the Constitution. And for the Coeur d’Alene Tribe, it is a question of the heart.

“It’s God’s lake,” tribal press secretary Bob Bostwick said. “But he put the Coeur d’Alene Tribe here to take care of it.”

They take that charge so seriously that all seven members of the Coeur d’Alene Tribal Council will be in Washington, D.C., on Wednesday when the U.S. Supreme Court hears arguments on the tribe’s claim to ownership of the lake.

In October 1991, the tribe sued members of the Idaho Land Board, the panel of five elected officials that oversees state property, claiming ownership of Lake Coeur d’Alene and several rivers within its Panhandle reservation.

Tribal leaders contend President Ulysses S. Grant gave the Coeur d’Alenes the lake in an 1873 executive order establishing their reservation.

The state maintains Grant had no authority to cede the lake to the tribe without congressional approval, and that the Constitution’s equal footing doctrine means Idaho automatically assumed ownership of the beds and banks of all navigable waters within its borders at statehood in 1890.

“We are defending the public’s ability to use and enjoy Lake Coeur d’Alene,” Idaho Attorney General Alan Lance said.

The tribe wants to provide proper stewardship of the lake, Bostwick said. Establishing ownership means the tribe could oversee cleanup of heavy metals pollution or even patrol the lake to prevent houseboats from dumping sewage, he said.

If the tribe ultimately prevails, many functions now performed by the state - such as issuing dock permits and managing fish - would be the tribe’s responsibility.

“Fishing could be regulated in a different way. Access to the waters could be regulated in a different way,” said Bob Cooper, spokesman for the attorney general’s office.

Now, he said, “you have a lake the people are accustomed to using under the laws and rules of the state of Idaho.”

The tribe has said its ownership would not prevent access or use.

“The fish are still going to be there and so are the fishermen,” Bostwick said. “We want to just give the fishermen some healthier fish.”

Any final decision on ownership is still years away while courts untangle various legal questions.

It was the 11th Amendment prohibition on federal lawsuits against states without their consent that convinced a judge to dismiss the tribe’s case. Then the 9th U.S. Circuit Court of Appeals reversed that decision, ruling that federal courts have the authority to require state officials to comply with federal law. The appellate court also said that since the Coeur d’Alenes’ suit named individual Land Board members, the state itself would not be bound by the outcome.

Idaho appealed to the Supreme Court, which agreed in April to hear the case. A high court opinion involving the Seminole Tribe and the state of Florida the month before seemed to buttress Idaho’s argument. And the Idaho attorney general’s office called suing individual Land Board members “a ploy to circumvent the 11th Amendment.”

Lance said Friday that 23 other states have joined Idaho in its appeal.

“We disagree with the 9th Circuit ruling that only the officers would be bound by a decision,” Lance said. “If the state’s elected officers cannot regulate the lake, for all practical purposes the state cannot regulate the lake.”

The Land Board includes the governor, attorney general, secretary of state, superintendent of public instruction and controller.

The Coeur d’Alene Tribe contends those state officials and their predecessors in office have failed to regulate the 30-mile-long lake, doing far too little to clean up heavy-metal contamination throughout the basin from a century of hard-rock mining.

Bostwick said the Coeur d’Alenes’ ownership claim is justified in part because tribal members would do a far better job of caring for the lake. To them, it’s personal.

“The stewardship of it has just been a failure, an absolute abysmal failure. And that’s reason enough,” Bostwick said. “But the most important reason in the legal argument is it always was the Coeur d’Alene Tribe’s lake. It always has been and it always will be.”

The federal government and the tribe have sued mining companies in the Silver Valley, demanding an estimated $1 billion to repair alleged environmental damages down the Coeur d’Alene River to Lake Coeur d’Alene. Lance and Gov. Phil Batt tried to avert the legal action, telling Attorney General Janet Reno it might undermine voluntary cleanup initiatives.

A separate lawsuit filed by the federal government seeking ownership of one-sixth of the lake on behalf of the Coeur d’Alene Tribe also is pending. The state’s 11th Amendment immunity does not apply in that case.

Bostwick said all the legal wrangling could have been avoided if the state had agreed years ago to negotiate with the tribe.

“The tribe didn’t come with a lawyer and a hammer. The tribe came with a hand extended and some real concern about the lake, and the Land Board shut the door in their face,” he said.

But Batt said there is no room for negotiation.

“It’s pretty difficult for the state to ever stipulate that other entities have ownership of bodies of water within the state of Idaho,” he said. “We’ve maintained the attitude that the federal government doesn’t have (ownership), nor the tribe. And I think we have to stick with that until the courts rule otherwise.”

, DataTimes ILLUSTRATION: Color photo

The following fields overflowed: CREDIT = From staff and wire reports Staff writer Susan Drumheller contributed to this report.

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