Thurgood Marshall

“ In following years, the United States entered into a number of additional treaties with both the Cherokees and Choctaws. [1] By means of these treaties, the United States purchased large areas of land from the Indians to provide room for the increasing numbers of new settlers who were encroaching upon Indian lands during their westward migrations. Although the Indians were not considered to own the fee title to the land on which they lived, they did have the right to the exclusive use and occupancy of the land-a right that could be ceded only to the United States. ”

“ That disagreement, however, does nothing to make convincing even the State's argument that this part of the river bed was excluded from the grants as a matter of conveyancing law. About all that can be said about the treaties from the standpoint of a skilled draftsman is that they were not skillfully drafted. More important is the fact that these treaties are not to be considered as exercises in ordinary conveyancing. The Indian Nations did not seek out the United States and agree upon an exchange of lands in an arm's-length transaction. ”

“ Below its confluence with the Canadian, the Arkansas River forms the boundary between the land granted to the Cherokees to the north and the Choctaws to the south, and the treaties do explicitly refer to this portion of the river. ”

“ Moreover, the Indians continued to live on the land not ceded under their own laws and way of life, and their rights to those lands were 'solemnly' guaranteed by the United States. Treaty of Holston, July 2, 1791, 7 Stat. ”

“ Trapp, 224 U.S. 665, 667-668, 32 S.Ct. 565, 566, 56 L.Ed. 941 (1912) .↑ The courts below did not resolve the dispute between petitioners, and we likewise do not pass on that question.↑ This construction of the treaty term 'down the Arkansas' indicates that at the minimum the boundary of the Choctaws was also the middle of the main channel. Congress was accustomed to using the terms 'up' or 'down' the river when designating a navigable river as the boundary between States, see, e.g., Act of March 2, 1819, § 2, 3 Stat. 490 (Alabama) ; Act of February 20, 1811, § 1, 2 Stat. 641 (Louisiana) ”

“ For a recent account of these and other Cherokee efforts, see Burke, The Cherokee Cases: A Study in Law, politics, and Morality, 21 Stan.L.Rev. 500 (1969) . See generally, Federal Indian Law, supra, n. ”