Washington Law Review


Rick Best


The treatment of submerged lands within Indian reservations provides a classic example of the Indian rights gap. Two possible owners may claim such lands under navigable water: the tribe or one of the several states. Substantial legal and economic significance attaches to ownership. The title may determine fishing rights as well as potentially lucrative mineral rights to gas and oil deposits. When a river is rerouted, the uncovered land may become a valuable recreational or commercial waterfront. Title can also determine criminal jurisdiction for acts taking place on the water. States rely on the equal footing doctrine to claim title to submerged lands. Under this doctrine, as Congress created each state, the state received title to the submerged lands. In most of the western United States, however, Indian reservations predated the states. Title may, therefore, have been transferred to the tribe at the creation of the reservation under theories of Indian treaty construction. Even in the absence of preexisting reservations, Indians may claim title to homelands that preceded the formation of the United States itself under the theory of aboriginal title. The Supreme Court has been inconsistent in analyzing the issue of title when state and tribal governments present conflicting claims. It has not clearly resolved the circumstances in which the presence of a reservation should create an exception to the equal footing doctrine's presumption of state ownership of navigable water. As a result, lower courts have been forced to develop jurisprudence without clear guidance. In the process stare decisis has not, wielded its usual force.

First Page