December 5, 1997 in Nation/World

Tribe Argues For Portion Of Lake Cda Feds, Indians Say State’s Claim Came Too Late

By The Spokesman-Review

The state of Idaho is a Johnny-come-lately trying to undermine an accord between the United States and the Coeur d’Alene Tribe, an attorney told a federal judge Thursday.

The tribe began making its case Thursday in a legal claim to the southern third of Lake Coeur d’Alene.

If successful in court, the tribe would have the power to regulate fishing, boat docks and other lake uses controlled by the state.

When the tribe and the U.S. government settled on the boundaries of the Coeur d’Alene Indian Reservation, “both parties were in agreement,” tribal attorney Ray Givens told Judge Edward Lodge. “It is a third party that did not exist at the time that’s saying the contract is no good.”

The U.S. government and the tribe are suing the state. The state contends it owns the lake because of the Equal Footing Doctrine, which gives states the same rights as the original 13 states.

But when Idaho became a territory and a state, Givens said, the laws specifically stated that the state did not have ownership of Indian territory, unless the tribe had ceded that property to the U.S. government.

Givens said the tribe never ceded its submerged lands.

“That aboriginal title still exists and we ask that it be confirmed,” Givens said.

Givens’ first witness is an anthropologist. Next week, he plans to call tribal members to the stand.

“If the court is going to know the Coeur d’Alene people, it has to meet some of them,” he said.

The tribe has been pursuing its ownership claim since the early ‘70s, when it first took its case to the Federal Power Commission.

Thursday was the first time the tribe has been able to argue its case in court.

The U.S. Supreme Court threw out an earlier case this summer.

In that case the tribe alone was suing the state for ownership of the entire lake.

The court ruled that, under the 11th Amendment, the tribe cannot sue the state.

The U.S. Justice Department also filed a lawsuit, which the tribe joined, that seeks ownership of the southern third of the lake. The federal government isn’t pursuing a claim to the entire lake because of an 1889 agreement in which the tribe sold the northern portion of its reservation.

The federal government rested its case Thursday morning after only calling one witness, ethno-historian Richard Hart. Hart’s testimony relied heavily on a three volume report he spent five years researching and writing for the U.S. Justice Department.

“Hart did such a great job,” said U.S. attorney Hank Meshorer, explaining why he didn’t call his other two witnesses, a surveyor and a historian.

Hart testified that the tribe was dependent on the fisheries in the lake and in the St. Joe and Coeur d’Alene rivers when it was negotiating with the United States for tribal territory.

During cross-examination, state deputy Attorney General Steven Strack zeroed in on documents that either failed to mention the importance of fish or indicated that the tribe was good at farming.

For instance, in the 1850s, when John Mullan was building his military road through the area, he reported that the Coeur d’Alenes lived by hunting, fishing and cultivating the soil.

Hart stuck to his conclusions that the tribe still was dependent on subsistence practices, even as it learned to farm from Jesuit missionaries.

The historic habits of the tribe are important to the case because if the government didn’t recognize fisheries as important to the tribe, it may not have intended to grant the tribe ownership of the bed and banks of the lake when establishing the Coeur d’Alene Indian Reservation.

, DataTimes

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