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• 9TH CIRCUIT COURT

UNITED STATES OF AMERICA, In re
suit to quiet title to that portion of
the bed and banks of Coeur
d'Alene Lake and the St. Joe
River lying within the exterior
boundaries of the 1873 Coeur
d'Alene Reservation,
Nos. 98-35831
Plaintiff-counter-
98-35847
defendant, Appellee,
D.C. No.
v.
CV-94-00328-EJL
STATE OF IDAHO,
OPINION
Defendant-counter-claimant,
Appellant-Cross-Appellee,

v.

COEUR D'ALENE TRIBE  OF IDAHO,
Plaintiff-intervenor, Appellee-
Cross-Appellant.

Appeals from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding

Argued and Submitted
December 9, 1999--Seattle, Washington

Filed May 2, 2000

Before: Thomas M. Reavley,1 Stephen Reinhardt, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown

_________________________________________________________________

COUNSEL

Steven W. Strack, Deputy Attorney General, Natural
Resources Division, Boise, Idaho, for defendant-counter-
claimant, appellant-cross-appellee State of Idaho.

Hank Meshorer, United States Department of Justice, Envi-
ronmental and Natural Resources Division, Washington,
D.C., for plaintiff-counter-defendant, appellee United States
of America.

Raymond C. Givens, Givens, Funke & Work, Coeur d'Alene,
Idaho, for plaintiff-intervenor, appellee-cross-appellant Coeur
d'Alene Tribe of Idaho.

_________________________________________________________________

OPINION

McKEOWN, Circuit Judge:

At issue in this case is the ownership of submerged lands
lying within the present-day boundaries of the Coeur d'Alene
Indian Reservation, which was originally set aside by execu-
tive order in 1873. After a nine-day trial involving multiple
expert and lay witnesses, extensive written reports, scientific
studies, and historical documents, the district court issued a
lengthy and meticulous decision in which it concluded that
the United States retained these submerged lands for the bene-
fit of the Coeur d'Alene Indian Tribe (the "Tribe"). The court
thus entered an order quieting title to the beds and banks of
the Coeur d'Alene Lake (the "Lake") and the St. Joe River2
(collectively, the "submerged lands") in favor of the United
States, as trustee, and the Tribe, as the beneficially interested
party of the trusteeship. The State of Idaho (the "State")
appeals that order along with related orders giving the Tribe
exclusive right to these submerged lands. We affirm the judg-
ment of the district court. Congress's course of conduct in the
late 1880s--in the years immediately preceding Idaho's state-
hood in 1890--demonstrates that it intended to defeat the
State's title to submerged lands within the 1873 reservation.

The Tribe cross-appeals the district court's refusal to adju-
dicate the ownership of other submerged lands located within
what is now Heyburn State Park (the "Park"). These lands
were part of the Tribe's reservation until 1911, when the
United States conveyed them to Idaho to establish a park. We
affirm the court's decision with respect to the Park because
the complaint, read as a whole, excludes lands within the Park
and the United States expressly disclaimed any intent to quiet
title to such lands.

BACKGROUND

The district court's extensive Memorandum Decision and
Order lays out the general historical backdrop to this case as
well as extensive findings of fact. The State has not chal-
lenged the district court's factual findings, nor has it chal-
lenged the court's conclusion that executive actions reflect a
clear intent to include the submerged lands within the 1873 res-
ervation.3 We thus discuss the factual background only as it
relates to the main issue in this case, namely, whether Con-
gress intended to defeat the State's title to these submerged
lands.

In 1867, more than thirty years before Idaho became a
state, a reservation embracing at best a small portion of the
Lake was established by executive order. The Tribe was not
even aware of this order until after it sent a petition in 1871
to the Commissioner of Indian Affairs (the "Commissioner")
requesting a charter for a reservation. Thereafter, the Tribe
refused to settle within the confines of the 1867 reservation
because it did not include the Tribe's mission or waterways.
After learning of the 1867 executive order, the Tribe sent a
second petition, in 1872, to the Commissioner, requesting
inclusion of the mission and the St. Joe and Coeur d'Alene
river valleys. The Tribe's request was based in part on its con-
tinuing dependence on water resources; as it noted in its peti-
tion, "for a while yet we need have some hunting and
fishing."

Congress responded in 1873 by authorizing a commission
to negotiate with the Tribe for settlement on a reservation.
After negotiations, the Tribe agreed to settle within an area
considerably larger than the 1867 reservation. The new
boundaries included the Coeur d'Alene and St. Joe Rivers as
well as the vast majority of the Lake (the "1873 reservation").
An executive order, dated November 8, 1873,4 set aside this
area for the Tribe pending ratification of the 1873 agreement,
which was contingent on congressional approval, but such
approval never came. All subsequent executive and congres-
sional action taken with regard to the reservation nonetheless
operated from the understanding that its boundaries were as
stated in the 1873 agreement and executive order. 5

In 1885, spurred by concerns due to increasing white settle-
ment pressure, the Tribe again contacted the Commissioner,
requesting confirmation of the 1873 reservation and compen-
sation for lands outside that reservation but within the Tribe's
aboriginal territory. Congress responded in 1886 by authoriz-
ing negotiations with the Tribe "for the cession of their lands
outside the limits of the present Coeur d'Alene reservation."
Act of May 15, 1886, 24 Stat. 29, 44. Negotiations were
undertaken in 1887, and the Tribe agreed to cede its aborigi-
nal title "to all lands in said Territories and elsewhere, except
the portion of land within the boundaries of their present res-
ervation in the Territory of Idaho, known as the Coeur
d'Alene Reservation" (the "1887 agreement"). Act of March
3, 1891, 26 Stat. 989, 1027 (reciting 1887 agreement). This
agreement, like the 1873 agreement, required ratification.
While the 1887 agreement was pending before Congress,
pressure to open up at least part of the reservation to the pub-
lic (particularly the Lake), prompted the Senate to pass a reso-
lution in 1888 inquiring of the Secretary of the Interior about
the boundaries of the Tribe's reservation and "whether such
area includes any portion, and if so, about how much of the
navigable waters of Lake Coeur d'Alene, and of Coeur
d'Alene and St. Joseph Rivers." S. Res. Mis. Doc. No. 36,
50th Cong. (1888). The Senate also sought advice about
"whether it is advisable to release any of the navigable waters
aforesaid from the limits of such reservation." Id. Two weeks
later, the Secretary replied, stating that the 1873 reservation
included the submerged lands at issue and attaching a report
by the Commissioner; this report informed Congress that "the
reservation appears to embrace all the navigable waters of
Lake Coeur d'Alene, except a very small fragment cut off by
the north boundary of the reservation" and that portions of the
Coeur d'Alene and St. Joseph Rivers flowed through the res-
ervation. Letter from the Secretary of the Interior, S. Ex. Doc.
No. 76 at 3, 50th Cong. (1888). The Commissioner opined
that "changes could be made in the boundaries for the release
of some or all of the navigable waters" and that it would be
"an easy matter" to negotiate a cession of the reservation, "in-
cluding all or a portion of the navigable waters, " once the
1887 agreement had been ratified. Id. at 2.

After receiving this response, Congress authorized a third
round of negotiations, this time "for the purchase and release
by said tribe of such portions of its reservation not agricultural
and valuable chiefly for minerals and timber as such tribe
shall consent to sell . . . ." Act of March 2, 1889, 25 Stat. 980,
1002. Following negotiations, the Tribe agreed to cede the
approximate northern third of its 1873 reservation to the
United States; this area included roughly the northern two-
thirds of the Lake (the "1889 agreement"). 6 Act of March 3,
1891, 26 Stat. 989, 1030 (reciting 1889 agreement). The 1889
agreement, like the 1873 and 1887 agreements, required ratifi-
cation, and, as a condition, the Tribe insisted that the 1887
agreement be ratified. The map submitted to Congress along
with the written terms of the agreement showed the boundary
of the reservation as bisecting the Lake from west to east at
its southern third.

Congress formally ratified both the 1887 and 1889 agree-
ments, but not until 1891, Act of March 3, 1891, 26 Stat. 989,
nine months after Idaho's admission to the Union. Idaho
Admission Bill, Act of July 3, 1890, 26 Stat. 215. This state-
hood act also "accepted, ratified, and confirmed " the Idaho
constitution, id. S 1, which disclaims the State's "right and
title to . . . all lands lying within said limits owned or held by
any Indians or Indian tribes." IDAHO CONST. art. XXI, S 19.

Prior to Idaho's admission, the House introduced and the
Senate passed separate but identical bills7 ratifying the 1887
and 1889 agreements, but due to uncertainty in the House
over whether the bills were the same, the House tabled the
Senate bill pending investigation of this question, 21 CONG.
REC. 5905 (1890), which was ultimately resolved in the affir-
mative, H.R. REP. NO. 2988, 51st Cong., at 1 (1890). Two
House reports, which recommended passage of the bill, see id.
and H.R. REP. NO. 1109, 51st Cong., at 5 (1890),8 and which
indicate recognition of the submerged lands as part of the
Tribe's reservation at the time of statehood, further explained
that the 1887 agreement had not been ratified when first
presented

       for sundry reasons, among which was a desire on the
       part of the United States to acquire an additional
       area, to wit, a certain valuable portion of the reserva-
       tion specifically dedicated to the exclusive use of
       said Indians under an Executive order of 1873 . . .
       [that] contains a magnificent sheet of water, the
       Coeur d'Alene Lake, and its chief tributary, to wit,
       the Coeur d'Alene River, over the waters of which
       steamers now ply daily . . . . It also controls the out-
       let of said lake, to wit, the Spokane River.

H.R. REP. NO. 1109, at 4,reprinted in H.R. REP. NO. 2988, at
5.

Today, the boundaries of the reservation remain as estab-
lished in the 1887 and 1889 agreements, with two exceptions:
1) the Harrison cession (negotiated by agreement in 1894), a
strip of land running from the mouth of the Coeur d'Alene
River to the reservation's eastern boundary and including a
defined chunk of the Lake; and 2) the Park, an area trans-
ferred to Idaho by Congress in 1911 and embracing three
smaller lakes adjacent to the southern end of the Lake.

The United States, seeking to quiet title to submerged lands
within the present-day reservation, initiated this action in its
own capacity and as trustee for the Tribe. The district court
granted the Tribe's motion to intervene, subject to the limita-
tion that the suit would encompass only those submerged
lands put at issue by the parties' pleadings. The court declined
the Tribe's request that it adjudicate the ownership of sub-
merged lands within the Park.

Following trial, the district court ruled in favor of the
United States and the Tribe on the quiet title action. The court
found that the submerged lands lay within the boundaries of
the present-day reservation, that in 1873 the Tribe depended
on the Lake and associated rivers for a significant portion of
its fishing needs, and that in 1873 the federal government was
aware of this dependence. The court then concluded that the
Executive intended to reserve submerged lands within the
1873 reservation for the benefit of the Tribe. The State has
challenged neither these factual findings nor the court's legal
conclusion on executive intent.

The court also found that Congress was on notice, prior to
Idaho statehood, that the Executive had reserved the sub-
merged lands within the 1873 reservation for the benefit of
the Tribe; that the "northern boundary line of the diminished
reservation was drawn [in the 1889 agreement] so as to bisect
the Lake"; and that the minutes of the 1889 negotiations
showed that this placement was "for the purpose of establish-
ing the Tribe's right to the Lake and rivers." Looking at
events between 1873, after the executive order established the
reservation within which the Tribe had agreed to settle, and
1890, the year Idaho entered the Union, the court concluded
that Congress ratified the 1873 executive reservation of sub-
merged lands. The court explained that "[b]y explicitly recog-
nizing, prior to Idaho's statehood, an Executive reservation
that included submerged lands, Congress demonstrated a clear
intent to defeat the State's equal footing title. " It is this con-
clusion that the State challenges on appeal.

ANALYSIS

We review de novo the district court's interpretation of
treaties, statutes, and executive orders. See Confederated
Tribes of Chehalis Indian Reservation v. Washington , 96 F.3d
334, 340 (9th Cir. 1996); United States v. Washington, 157
F.3d 630, 642 (9th Cir. 1998) (meaning of treaty language is
question of law, reviewed de novo). Findings of historical
fact, including the district court's findings regarding treaty
negotiators' intentions, are reviewed for clear error. See
United States v. Washington, 157 F.3d at 642. Because the
State does not appear to have challenged any of the court's
underlying factual findings, we accept the facts as given and
note that they are amply supported by the record.

Juxtaposed in this case are two principles, both of which
must be accorded due weight: the canon of construction
favoring Indians and the presumption under the Equal Footing
Doctrine that a State gains title to submerged lands within its
borders upon admission to the Union. See Puyallup Indian
Tribe v. Port of Tacoma, 717 F.2d 1251, 1257 (9th Cir. 1983)
(stating that, "when faced with a claim [to submerged lands]
by an Indian tribe . . . , we must accord appropriate weight to
both the principle of construction favoring Indians and the
presumption that the United States will not ordinarily convey
title" to such lands).

[1] The Supreme Court's trilogy of decisions in United
States v. Alaska, 521 U.S. 1 (1997), Utah Division of State
Lands v. United States, 482 U.S.193 (1987), and Montana v.
United States, 450 U.S. 544 (1981), provides the framework
for analyzing whether a state's presumptive title to submerged
lands within its borders has been defeated. In Alaska, the
Supreme Court reaffirmed the two-prong test set forth in
Montana and Utah for determining whether a state's pre-
sumptive equal footing title to submerged lands within its bor-
ders has been defeated. As framed by the Supreme Court, the
question before us is "whether the United States intended to
include submerged lands within the [reservation ] and to defeat
[Idaho's] title to those lands. See Alaska , 521 U.S. at 36.

[2] Although executive action has now been held sufficient
to establish the first prong, the second prong requires a show-
ing of congressional intent. See Alaska, 521 U.S. at 40-41, 44.
Nothing in Alaska requires that congressional action take the
form of explicit congressional ratification of an agreement
reserving or conveying title to particular submerged lands.
Rather, the Supreme Court has framed the question as
whether Congress intended to defeat the state's title to the
lands at issue, see id. at 36; Utah, 482 U.S. at 202; notably,
the Supreme Court has not required that the requisite intent be
established in any specific, formulaic way, focusing instead
on whether the congressional action at issue showed an affir-
mative intent to defeat state title, that is, whether the "inten-
tion was definitely declared or otherwise made very plain."
United States v. Holt State Bank, 270 U.S. 49, 55  (1926). As
the Court in Alaska pointed out in rejecting the state's argu-
ment to the contrary:

       [T]here would have been no barrier to Congress
       retaining a petroleum reserve, including submerged
       lands, at the point of Alaska's statehood, provided it
       satisfied Utah['s] . . . requirements of demonstrating
       a clear intent to include submerged lands within the
       Reserve's scope and a clear intent to defeat Alaska's
       title. It follows that Congress could achieve the same
       result by explicitly recognizing, at the point of Alas-
       ka's statehood, an executive reservation that clearly
       included submerged lands.

Alaska, 521 U.S. at 44.

Given the State's concession, for purposes of this appeal,
that the 1873 executive order was intended to convey or
reserve title to submerged lands, we focus on the second
prong--whether Congress demonstrated an intent to defeat
the State's title to the submerged lands. We conclude that
Congress's actions prior to statehood clearly indicate its
acknowledgment, express recognition, and acceptance of the
executive reservation, thereby establishing its intent to defeat
the State's title. Accordingly, we affirm the district court's
ruling quieting title to submerged lands within the present-day
Coeur d'Alene Reservation for the benefit of the Tribe. In
light of our decision, we need not reach the Tribe's alternative
arguments for affirmance.

I. The State's Appeal--Submerged Lands

Relying on the events leading up to and surrounding the
1889 negotiations, the district court held that Congress dem-
onstrated a clear intent to defeat the State's equal footing title.
In particular, the court found that Congress was on notice that
the executive reservation included submerged lands and that
its 1889 authorization of negotiations with the Tribe for a ces-
sion of tribal property constituted recognition and validation
of the executive reservation. Idaho argues that none of the
events leading up to its statehood in 1890 constitute affirma-
tive ratification of the executive intent to convey or reserve
the submerged lands and thus cannot show congressional
intent to defeat state title to these lands.

[3] In any submerged lands/equal footing case, a court must
begin with a strong presumption against defeat of a state's
title. See Alaska, 521 U.S. at 34. The Supreme Court has
emphasized, however, that the question of whether title to
submerged lands rests with a state is "ultimately a matter of
federal intent." Id. at 36.

In Alaska itself, the Court held that the United States
reserved title to the submerged lands within a petroleum
reserve created by executive order 35 years prior to Alaska's
statehood, see id. at 32-46, and to submerged lands within a
wildlife refuge set aside by agency action (via an application
and regulations) prior to statehood but not approved until after
statehood, see id. at 46-61. In finding that the United States
intended to include submerged lands within these reserved
areas and to defeat state title to the lands, the Court empha-
sized that: 1) the reserves' boundaries were drawn so as nec-
essarily to include the submerged lands, see id.  at 36, 51; 2)
the purpose of the reserves would have been defeated had the
lands not been included, see id. at 39, 51-52; and 3) Congress
included language in the Alaska Statehood Act indicating that
it retained Enclave Clause authority to the petroleum reserve,
see id. at 41-42, and title to lands withdrawn or otherwise set
aside as refuges for the protection of wildlife, see id. at 55-56.

[4] In this case, several similar factors counsel the same
result.9 First, in both 1873 and 1889, the boundaries of the res-
ervation were drawn so as necessarily to include submerged
lands. Second, the purpose of the reservation would have been
defeated had it not included these lands. Third--and this is
the crux of the case--the series of congressional actions taken
in the late 1880s (ascertaining that the Executive construed
the reservation to include submerged lands and authorizing
negotiations to recover whatever portion of the lands the
Tribe was willing to sell) shows that Congress acknowledged
that beneficial ownership of the lands had already passed to
the Tribe. Congress's post-statehood actions also reflect rec-
ognition and confirmation of the passage of submerged lands
to the Tribe. Both before and after statehood, Congress affir-
matively treated the submerged lands as reserved for the
Tribe.

We begin with the manner in which the boundaries of the
reservation were determined. The reservation, which physi-
cally encompassed the submerged lands at issue, was created
by a pre-statehood, 1873 executive order that drew the bound-
aries so as necessarily to include submerged lands. Crucial to
the Tribe's acceptance of the 1873 reservation, as the district
court found and the State does not dispute, was the inclusion
of submerged lands. In addition, and significantly, when the
1873 boundaries were renegotiated in 1889, the "northern
boundary line of the diminished reservation was drawn so as
to bisect the Lake" specifically "for the purpose of establish-
ing the Tribe's right to the Lake and rivers." The State like-
wise does not dispute this factual finding.

Both the Tribe and the agents sent out at the behest of Con-
gress in 1889 understood the reservation to encompass sub-
merged lands. As noted, the reservation's boundaries were
redrawn by the 1889 agreement to split the lake--a fact rec-
ognized in the legal descriptions of the cession, the verbal
explanation given to the Tribe,10 and the maps submitted to
Congress. As we recognized in another case in which we
upheld tribal claims to submerged lands under the half of a
lake within the borders of a reservation, "[i]t would have been
pointless, and quite likely deceptive, to have the northern
boundary of the reservation bisect Flathead Lake unless it was
intended to convey title to the southern half of that lake to the
Indians." Confederated Salish & Kootenai Tribes v. Namen,
665 F.2d 951, 962 (9th Cir. 1982) (further noting that "the
most natural and intelligible way of understanding the bound-
ary description is to infer an intent to convey the southern
lake bed" and adopting this interpretation "in view of the
Supreme Court's very frequent admonitions that doubtful lan-
guage in Indian treaties must be construed in favor of the
Indians and given the sense the Indians would have under-
stood it to convey"). This observation is equally pertinent
here, where the natural reading of all available documentation
points to a purposeful division of the Lake.

[5] Considering together the district court's undisputed fac-
tual findings, the canon favoring Indians, and the fact that
both the 1873 and 1889 agreements drew boundary lines
across the lake--an unusual practice, as the district court
pointed out--the executive reservation and subsequent rene-
gotiation could only have been meant and understood to con-
vey title to submerged lands within the reservation's borders.

[6] This conclusion finds further support in the fact that the
purpose of the reservation would have been defeated had it
not included submerged lands. As the district court found, and
as the State does not challenge, the Tribe was dependent on
its fisheries in 1873. The Tribe successfully insisted, both in
1873 and 1889, upon a reservation drawn to include sub-
merged lands. In 1873, the reservation was expanded from its
1867 borders because the Tribe refused to settle on lands that
did not encompass the Lake and its associated waterways. In
1889, the borders of the reservation were contracted and
redrawn--but redrawn so as to ensure that the Tribe still had
beneficial ownership of the southern third of the Lake as well
as the portion of the St. Joe River within the 1873 reservation.

The State's argument that the district court should have
determined the purpose of the reservation as understood by
Congress (rather than the Executive), and as so understood in
1889 (rather than 1873) lacks support in the case law. In
Alaska, where the Supreme Court relied heavily on the pur-
pose of the reserves at issue, the Court did not require either
that Congress itself apprehend the purpose or that the purpose
be extant at the time of congressional action. See Alaska, 521
U.S. at 39, 51-52. The Court examined the purpose of the
petroleum reserve, for instance, with regard to the govern-
ment's goal in 1923, when the Executive reserved the lands,
rather than by reference to 35 years later when Congress
passed the statehood act referencing its authority over the
reserve. See id. at 39, 41-42. What mattered was that Con-
gress recognized that the executive reservation included sub-
merged lands, not that it knew or acknowledged the executive
purpose in reserving them.11 See id. at 44 (providing for a
showing that title to submerged lands does not pass to a state
where Congress "explicitly recogniz[ed], at the point of . . .
statehood, an executive reservation that clearly included sub-
merged lands"). Thus, it is irrelevant that Congress may have
believed the Tribe to have wholly or mainly converted to an
agricultural lifestyle by 1889. Here there is no dispute that the
government's negotiators and agents were aware of the
Tribe's dependence on fishing in 1873. Indeed, even Congress
was specifically on notice of this dependence as a result of the
Tribe's second, 1872 petition. What matters, however, is Con-
gress's awareness that the 1873 reservation included sub-
merged lands, an issue about which there can be no doubt
given the response to the 1888 resolution.

Turning now to the actions Congress took with respect to
the reservation in the late 1880s, we conclude that this series
of actions demonstrates acknowledgment, recognition, and
acceptance of the boundaries of the 1873 reservation, which
Congress knew the Executive had construed to include sub-
merged lands, thereby showing the requisite intent to defeat
state title.

Formal ratification, prior to statehood, of the 1887 and
1889 agreements is not necessary for a finding of congressio-
nal intent to defeat state title.12 Neither the Supreme Court nor
any of our cases require such a showing. Rather, the test is
whether Congress clearly intended to defeat the State's title to
submerged lands. Here, Congress's course of conduct in
ascertaining in 1888 that the Executive construed the reserva-
tion to include submerged lands and then authorizing negotia-
tions in 1889 to purchase and thereby recover whatever
portion of those lands the Tribe was willing to sell demon-
strates its acknowledgment that beneficial ownership of the
lands had passed to the Tribe.

As the district court found, when Congress authorized these
negotiations, it was clearly on notice that the 1873 executive
reservation included submerged lands within its confines.13
Congress also had the unratified 1887 agreement before it, an
agreement that referenced the Tribe's "present[1873] reserva-
tion in the Territory of Idaho, known as the Coeur d'Alene
Reservation" and that secured the cession, pursuant to Con-
gress's 1886 authorization, of aboriginal lands "outside the
limits of the present [1873] Coeur d'Alene reservation."

Although Congress had the opportunity and the power to
repudiate the executive reservation and the 1887 agreement,
it did not do so. Instead, in 1889 it took affirmative action,
choosing to authorize negotiations--with few limitations
aside from an instruction to acquire non-agricultural lands14
--"for the purchase and release by said tribe of such portions
of its reservation . . . as such tribe shall consent to sell"
(emphasis added). Act of March 2, 1889, 25 Stat. 980, 1002.
The express reference to the reservation as the Tribe's reser-
vation, explicit recognition that the choice to sell was the
Tribe's, and reference to tribal release of portions of its reser-
vation all manifest an awareness and acceptance by Congress
of the boundaries of the 1873 reservation--boundaries that
included submerged lands. This series of events indicates that
Congress accepted the Secretary's advice to leave any cession
up to negotiations. Indeed, the fact that Congress decided to
make its authorization open-ended reinforces the district
court's conclusion that Congress recognized and accepted the
Tribe's beneficial ownership of all lands--including sub-
merged lands--within the 1873 reservation; it also shows
Congress's recognition of the uncertainty of regaining any
land at all, and its particular desire to recover whatever sub-
merged lands it could.

[7] In short, Congress "otherwise made very plain," Holt
State Bank, 270 U.S. at 55, its intention regarding the sub-
merged lands. With the 1887 agreement and the response to
the 1888 resolution before it, Congress, fully aware of the
boundaries of the 1873 reservation and the extent of the sub-
merged lands that were within it, sought to modify the bound-
aries described in the agreement--and it sought to do so via
purchase rather than the simpler expedient of rejecting the
executive reservation. Although Congress may have been
unhappy to learn that the executive reservation included sub-
merged lands, its actions show recognition and acceptance of
the passage of beneficial ownership to the Tribe, for it sought
to regain as much submerged land as possible. The affirma-
tive course of action on which Congress embarked in 1889 --
open-ended negotiations to purchase whatever non-
agricultural land, particularly submerged lands, the Tribe was
willing to cede--presupposes that beneficial ownership of all
land within the 1873 reservation, including submerged lands,
had already passed to the Tribe.

To the extent that the State argues that reversal is necessary
because the district court erred in relying on the disclaimer
clause in the Idaho constitution,15 we reject this challenge. We
do not read the district court's brief discussion of this clause
as integral to its ruling. Nor, for that matter, do we believe
reliance on the clause is necessary to affirm the judgment qui-
eting title to submerged lands within the present-day reserva-
tion. To the extent the clause is considered at all, however, it
weighs in favor of the conclusion we have reached, for it dis-
claims title to land "held by" Indians. The lands in question
were held by the Tribe, and Congress affirmed this provision
when it ratified the Idaho constitution.16 

We also note that although Congress has never undertaken
by general laws to dispose of submerged lands, this case
involves much more than a simple disclaimer clause or a gen-
eral reference in the Idaho Admission Bill to accepting, ratify-
ing, or confirming the Idaho constitution. Congress was
heavily involved in deciding the fate of the submerged lands
set aside for the Tribe's benefit by executive order. Congress
treated the submerged lands as beneficially owned by the
Tribe--to the point of authorizing negotiations for cession of
whatever portion of the Tribe's submerged lands it was will-
ing to sell. The State's citation to Alaska v. Ahtna, Inc., 891
F.2d 1401 (9th Cir. 1989), is not instructive. There a provision
in the Alaska constitution disclaiming all right and title to
property that "may be held" by or in trust for natives stood
alone, with no prior or specific congressional action referenc-
ing the submerged lands at issue, see id. at 1405-06; in addi-
tion, the executive conveyance in Ahtna did not occur until
well after Alaska's statehood. See id. at 1403.

Finally, we note that in addition to the series of congressio-
nal actions prior to Idaho's statehood, Congress's post-
statehood actions also reflect recognition and confirmation
that submerged lands had passed to the Tribe prior to Idaho's
statehood. Although these post-statehood events are not in
themselves demonstrative of pre-statehood intent, nor are they
central to our decision, neither can they be wholly ignored.17

[8] Among these events, the most notable is the 1894 Harri-
son cession, which was ratified just five years after the 1889
authorization to negotiate. The United States negotiated with
the Tribe for the cession of a narrow strip of land extending
from the Lake to the eastern boundary of the reservation. Dur-
ing the negotiations, the parties referred to the 1889 agree-
ment as having created a boundary line in relation to the Lake,
and they explicitly included a corner of the Lake in the ces-
sion. A cession that included a portion of the lake bed would
not have been necessary absent a contemporary understanding
that the Tribe had beneficial ownership of the bed. Moreover,
as was the case with the 1889 agreement, the map submitted
to Congress depicted the cession as including part of the bed,
literally creating a right angle in the water. This post-
statehood acknowledgment of tribal ownership of the lake bed
is further confirmation, or reaffirmation, of the status of the
submerged lands within the reservation. It is tantamount to a
memorialization of prior events, especially given that nothing
occurred between statehood and the negotiations for the Har-
rison cession that altered the ownership situation. Just as Con-
gress would not have negotiated with the Tribe for land the
Tribe did not own, so too the United States, on behalf of the
Tribe, would not have ceded to the State land that the State
already owned.

The same can be said for the course of events leading to the
creation of the Park. In 1908, Congress withdrew from allot-
ment, for use as a park, a portion of the reservation embracing
three smaller lakes adjacent to the southern end of the Lake,
and in 1911 it formally transferred this area to the State. There
would have been no need for the United States to withdraw
the lands comprising the Park from the reservation and no
need for the United States to convey these lands by patent to
the State if the State already owned them. We thus have
another significant example of the contemporary understand-
ing of all parties concerned with regard to the Tribe's benefi-
cial ownership of submerged lands within its reservation.

II. The Tribe's Cross-Appeal--Heyburn State Park

The cross-appeal raises the question of whether the district
court erred in refusing to decide ownership of submerged
lands within the Park. We must decide whether the parties'
pleadings18 --specifically, the United States' complaint and
the State's counterclaim--put at issue submerged lands within
the Park. Resolution of this question requires a careful and
commonsense reading of the pleadings. We reject the cross-
appeal because the complaint, read as a whole, does not
include lands within the Park and the United States disavowed
any intent to quiet title to submerged lands within the Park.
Further, the relief the State seeks in its counterclaim largely
mimics the United States' prayer for relief, and the State has
likewise disclaimed any intent to litigate issues beyond those
raised in the United States' complaint. Accordingly, we con-
clude that the district court properly declined to adjudicate the
ownership of these submerged lands.

Neither the complaint nor the counterclaim put submerged
lands within the Park at issue. The complaint, taken as a
whole, is most naturally read to exclude these lands. First, it
specifically identifies the lands that comprise the Park as hav-
ing been "withdr[awn] from allotment" and "reserved" by the
United States. It then juxtaposes these lands, along with other
lands that the Tribe ceded to the United States, with lands
identified as "still remaining within the Coeur d'Alene 1873
Reservation." The implication is that the United States sought
to exclude any lands within the Park from the ambit of the
complaint. In addition, the complaint's prayer for relief
repeatedly makes reference to the "approximate southern one-
third of Coeur d'Alene Lake as well as those portions of the
beds and banks of the St. Joe River located within the 1873
Coeur d'Alene Indian Reservation." That the complaint refer-
ences a specific part of the Lake and the St. Joe River while
mentioning none of the three lakes that were the subject of the
conveyance to the State strongly suggests that the United
States sought to exclude the Park from this quiet title action.

Our reading of the complaint is supported by the conduct
of the United States throughout this litigation. Significantly,
the United States has pursued this action, both in the district
court and on appeal, only as to submerged lands within the
present-day boundaries of the reservation. Indeed, at the dis-
trict court level, the United States expressly disavowed any
claim to submerged lands within the Park. Under these cir-
cumstances, we will not read the more general language in the
complaint's caption and preliminary statement, which refer to
portions of the Lake and St. Joe River within the exterior
boundaries of the 1873 reservation, as extending to sub-
merged lands within the Park.

We also reject the Tribe's argument that the State itself put
submerged lands within the Park at issue via a counterclaim
in which it asserted that it was "entitled to a judgment . . . qui-
eting its title to the beds and banks of those portions of Lake
Coeur d'Alene and the St. Joe River located within Heyburn
State Park."19 Although the counterclaim incorporates the alle-
gations in an affirmative defense claiming title to "all lands
within" the Park, the State's prayer for relief largely mimics
the United States' prayer, which is far narrower than the affir-
mative defense. In its prayer for relief, the State seeks to quiet
title to "those portions of Lake Coeur d'Alene and the St. Joe
River within the present boundaries of the Coeur d'Alene
Reservation and Heyburn State Park." Notably, and in con-
trast to its affirmative defense, the State does not name in its
prayer for relief any of the three lakes originally embraced by
the Park, and it has consistently disclaimed any attempt to liti-
gate any issue beyond that raised in the United States' com-
plaint.

Because the United States disavowed any claim to sub-
merged lands within the Park, the State disavowed intent to
litigate any issue beyond that raised by the United States, and
a fair reading of the relief requested in both the complaint and
counterclaim does not, under the circumstances, encompass
lands within the Park, the district court properly declined to
adjudicate the ownership of submerged lands within the Park.

AFFIRMED.
_______________________________________________________________

FOOTNOTES

1 The Honorable Thomas M. Reavley, Senior United States Circuit
Judge for the United States Court of Appeals, Fifth Circuit, sitting by des-
ignation.
2 Referred to in certain historical documents as the St. Joseph River.
3 For purposes of this appeal, the State concedes that the 1873 executive
order was intended to reserve title to the submerged lands for the benefit
of the Tribe.
4 Executive Orders Relating to Indian Reservations, From May 14, 1855
to July 1, 1912, Washington, D.C., Government Printing Office (1912) at
72.
5 For instance, an 1883 government survey located the reservation's
northern boundary across the Lake, consistent with the 1873 agreement
and executive order; the Executive dealt with both commercial and recre-
ational use of the Lake by non-Indians on the assumption that the laws
governing Indian territory governed; Congress spoke of the 1873 reserva-
tion as "set apart for the use of the Coeur d'Alene Indians by executive
order" and described its borders in an 1888 act granting a railroad a condi-
tional right-of-way through the reservation, Act of May 18, 1888, 25 Stat.
160; Congress referenced the 1873 boundaries in its 1886 authorization of
negotiations "for the cession of their lands outside the limits of the present
Coeur d'Alene reservation," Act of May 15, 1886, 24 Stat. 29, 44; and
Congress again referenced the 1873 boundaries in its 1889 authorization
of negotiations "for the purchase and release by said tribe of such portions
of its reservation not agricultural and valuable chiefly for minerals and
timber as such tribe shall consent to sell . . . . " Act of March 2, 1889, 25
Stat. 980, 1002.
6 The Tribe's chief insisted on carefully defining the new proposed
boundaries, rejecting the suggestion that the "lake belongs to [the Tribe]as well as to the whites." Message from the President of the United States,
S. Ex. Doc. No. 14, 51st Cong. (1889), at 9. A government negotiator then
explained the proposed boundaries as follows: "[I]f we buy this land you
still have the St. Joseph River and the lower part of the lake and all the
meadow and agricultural land along the St. Joseph River." Id.
7 H.R. 7703, 51st Cong. (1890); S. 2828, 51st Cong. (1890), 21 CONG.
REC. 5769 (1890).
8 H.R. REP. NO. 2988 contains a reprint of H.R. REP. NO. 1109.
9 We recognize that, in Alaska , the Supreme Court discussed the first
two factors identified here--namely, the purpose of the reserves and the
fact that their boundaries were drawn so as necessarily to include sub-
merged lands--mainly with respect to whether the United States intended
to include the submerged lands within the reserves. These factors likewise
support a finding of executive intent to include in this case, as the State
concedes for purposes of appeal. We also discuss these factors with
respect to the "intent to defeat" prong for two reasons. First, the State
argued that Alaska involved a "unique combination of necessity, purpose,
and explicit statutory language" and also argued that the district court
short-circuited the "purpose" analysis by "failing to determine Con-
gress'[s] understanding of the purpose of the Reservation at the time of the
alleged ratification of the 1873 Executive order. " Second, under the cir-
cumstances of this case, Congress's knowledge of the scope of the execu-
tive reservation--in particular, the boundaries of the reservation and the
fact that they included submerged lands--is crucial. Accordingly, it is
helpful to outline precisely what information Congress had before it.
10 After the Tribe specifically rejected the suggestion that the "lake
belongs to [it] as well as to the whites," a government negotiator told the
Tribe that it "would still have the St. Joseph River and the lower part of
the lake . . . ."11 Even cases specifically addressing tribal claims of right to submerged
lands do not require that Congress apprehend the purpose of the reserva-
tion at the time it takes action recognizing the executive reservation.
Rather, they focus on what the "United States " or the "government" knew
as of the initial reservation. See, e.g., United States v. Aam, 887 F.2d 190,
195, 197 (9th Cir. 1990) (stating that "where courts have reviewed tribal
claims of beneficial title to land under navigable waters, the inquiry
focused on the circumstances surrounding the creation of the reservation"
and noting "insufficient proof that the United States [by its officials or
agents] perceived that the tribe depended on those particular tidelands");
Muckleshoot Indian Tribe v. Trans-Canada Enterprises, Ltd., 713 F.2d
455, 458 (9th Cir. 1983) (stating that "the United States was clearly aware
that the focus of the Muckleshoot's world was on the rivers along which
they lived"; that "[t]he Government knew, at least by the date of the 1874
Executive Order expanding the Muckleshoot Reservation, that the Indians
depended on watercourses"; and that "[t]he Government's Indian agents
understood that [t]he capture of fish was an essential source of [the Indi-
ans'] food supply") (internal quotations omitted); Puyallup Indian Tribe,
717 F.2d at 1258 (noting "the Government's awareness of the importance
of the water resource to the Tribe").
12 Nor is inclusion of language in a statehood act--here the Idaho
Admission Bill--specifying congressional intent to defeat state title neces-
sary to a finding that Congress did, in fact, intend to defeat a state's title
to particular submerged lands. In Alaska, the Supreme Court looked to the
Alaska Statehood Act as a source of congressional intent in concluding
that Congress intended to defeat Alaska's title to the petroleum reserve
and wildlife refuge. See Alaska, 521 U.S. at 41-42, 55-56. Statehood acts,
however, do not--and have never been held to--serve as exclusive
sources of congressional intent with respect to the question of congressio-
nal intent to defeat state title.

We also note that there is significantly more evidence of congressional
intent with regard to the submerged lands in this case than with regard to
the wildlife refuge in Alaska. The Supreme Court found clear intent to
defeat Alaska's title to the submerged lands within this wildlife refuge as
a result of a fairly general provision of the Alaska Statehood Act. Under
that provision, the United States retained "lands withdrawn or otherwise
set apart as refuges or reservations for the protection of wildlife." Id. at 47,
55. Not only had the refuge in Alaska not yet been approved at the time
of statehood--an administrative application for withdrawal of the lands in
the proposed refuge was still pending when Congress passed the statehood
act and when Alaska subsequently entered the Union--but Congress took
no action either prior to or at statehood specifically with regard to the ref-
uge at issue. By contrast, in this case, before statehood, Congress was
often and actively involved in deciding the fate of the submerged lands
within the Tribe's reservation.
13 Similarly, Congress's 1888 passage of an act granting a railroad a
right-of-way through the reservation, identified as "set apart for the use of
the Coeur d'Alene Indians by executive order, commonly known as the
Coeur d'Alene Reservation," and conditioned on the Tribe's consent, also
supports congressional recognition of the 1873 reservation, which Con-
gress by this point knew included submerged lands.
14 The events surrounding the authorization clearly show that the main
purpose of the new negotiations was to regain from the Tribe whatever
submerged lands it was willing to sell. The State itself notes that "as the
district court recognized, the 1889 . . . Act was an authorization `to negoti-
ate with the Tribe of a release of the submerged lands' " (quoting district
court decision). Relevant events include the 1888 resolution; the response
to that resolution; the events leading up to the resolution, such as the pres-
sure, brought to Congress's attention, to open up the Lake; the negotia-
tions themselves, which focused heavily on boundaries as they affected
submerged lands; and a subsequent report from the Department of the
Interior, which noted that little agricultural land had been acquired. See
Message from the President, S. Ex. Doc. No. 14, at 2.
15 This clause, found in article XXI, S 19, of the Idaho constitution,
reads: ". . . . And the people of Idaho do agree and declare that we forever
disclaim all right and title . . . to all lands lying within said limits owned
or held by any Indians or Indian tribes[.]"
16 That such a disclaimer clause may be declaratory, conferring no new
right or power on the United States, is immaterial. The substance of a
declaratory clause is not meaningless, even if the clause itself is unneces-
sary in that it merely recognizes a preexisting interest. See United States
v. Gardner, 107 F.3d 1314, 1320 (9th Cir. 1997) (finding constitutional
clause disclaiming title to unappropriated public lands and explaining that
although the U.S. "did not need the disclaimer clause to gain title to the
public lands in Nevada," such a declaratory clause of a preexisting U.S.
right to administer its property is valid).

We also reject as inapplicable to this case the State's argument that
Congress cannot require states to disclaim rights of sovereignty as the
price of admission to the Union. Congress did not do so here. All Con-
gress did was to acknowledge and ratify, through its course of conduct, the
executive reservation of certain submerged lands for the benefit of the
Tribe.
17 Although the State suggests that post-statehood events may not be
considered in assessing congressional intent, we are aware of no rule for-
bidding consideration of such events. Indeed, the case law may suggest the
contrary. See Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89-
90 (1918) (finding support for conclusion that Congress intended to
include submerged lands within reservation in subsequent conduct
whereby reservation was treated as including submerged lands). Cf. Aam,
887 F.2d at 194 (district court did not abuse its discretion in finding that
matters occurring after Washington's admission in 1889 were too remote
to be probative of the intent of the parties to an 1855 treaty or of the Secre-
tary's intent upon enlargement of the reservation in 1864). Notably, Aam
does not set forth any general rule barring post-statehood evidence, and it
is also readily distinguishable, for the substantial time gap--40 years--
motivating the Aam decision is not present here.
18 In construing the parties' pleadings, we bear in mind that the current
physical situation in and around the Park differs from the situation that
existed in 1873, at the time of the executive reservation, and in 1908 and
1911, the years, respectively, that the Park was authorized and conveyed
to the State. Due to the construction of a dam, three small lakes have com-
bined with the Lake into one large body of water. We read the United
States' complaint in light of the physical situation as it existed prior to the
construction of the dam.
19 The State's answer included two sections referencing the Park: 1) an
affirmative defense in which the State claimed title to "all lands within
Heyburn State Park as a result of . . . federal actions" authorizing the Park
and conveying its lands to the State by patent; and 2) the above-quoted
counterclaim. Only the counterclaim is at issue.