*1 v. STATES UNITED et al. IDAHO 18, 2001 June 200 1 Decided Argued April 00-189. No. *3 Souter, J., Court, Stevens, delivered opinion of the in which O’Connor, Ginsburg, Breyer, JJ., Rehnquist, J., and joined. C. filed a dissenting opinion, in Scalia, Kennedy, Thomas, JJ., which joined, and post, p. 281.
Steven Strack, W. Idaho, General of ar- Deputy Attorney the cause for gued himWith on the briefs were petitioner. Alan Lance, G. Strong, Clive J. General, and Attorney Dep- uty Attorney General.
Raymond C. Givens the cause for argued respondent J, Coeur d’Alene Tribe. With him on the brief were Brian Cleary Joseph Kearney. D. David C. Frederick argued and the cause for the United him States. With on the brief were Acting Solicitor Acting Underwood, General Assistant At torney General Deputy Cruden, Kneedler, Solicitor General James Kilbourne, C. and Hank Meshorer*
* Molenaar, Dennis Jerry K. Boyd, Douglas P. A Payne, Nancy and filed a brief of amici curiae urging County reversal for Benewah Wolff et al. A brief of amici curiae was filed for the by State of California et al. Lockyer, Bill Frank, Attorney California, General of Richard M. Chief Assistant Attorney General, and J. Ste- Rodriquez Matthew Jan S. and vens, Assistant Attorneys General, Attorneys and General for their opinion the Court. delivered Souter
Justice against action brought quiet this title The United States question the National is whether of Idaho. The the State Tribe, d’Alene title, holds in trust for Coeur Government underlying and the portions of Lake Coeur d’Alene We that it does. Joe River. hold St.
I 3.5 mil- more than Tribe once inhabited The Coeur d’Alene northeastern Idaho and lion acres in what is now northern d’Alene and Washington, including the area of Lake Coeur Supp. 1094,1095-1096,1099-1100 the (Idaho 1998).1 2d St. Joe River. 95 F. traditionally the lake used Tribal members transportation, waterways fiber, food, its related Id., 1099-1102. activities. recreation, and cultural everything from depended on lands for potatoes lake to fish weirs from the water harvested at 1100. Id., traps in riverbeds and banks. anchored treaty United Britain, with an 1846 Great Under d’Alene, region acquired of Lake Coeur title to the States Rocky Treaty Regard Westward to Limits see right aboriginal subject to the Mountains, Stat. generally Oneida possession tribes, resident see held County Oneida, 414 U. S. Nation N. Y.v. Indian (1974); Law 486- Indian Cohen, F. Handbook Federal (1982 ed.). immigration into the in the face of *4 aboriginal territory, Supp. 2d, President 95 F. Tribe’s setting aside a reserva- issued an Executive Johnson Order was although the Tribe comparatively size, modest tion of M. Alabama, Bruce Botelho of Pryor Bill States as follows: of respective Dakota, Stenehjem Arkansas, of North Pryor Wayne Mark Alaska, of L. Dakota, Mark Hardy Myers of Mark W Barnett of South Oregon, Gregoire O. H. Christine Utah, Vermont, William Sorrell of of Shurtleff Gay Woodhouse Wyoming. and Washington, 1 Idaho, District Court’s Petitioner, challenge did not the State (CA9 2000). See 210 F. 3d findings appeal. factual on apparently unaware of this action least 1871, until at when petitioned the Government to set aside a reservation, id., at 1102-1103. The Tribe found boundaries un- satisfactory, part due in adequate to their failure make provision fishing for important and other waterways. uses petitioned When the Tribe Commissioner Indian Af- fairs a time, second it insisted on a reservation included key valleys river yet quite up because “we are not as living farming” on yet “for a while we need have some hunting fishing.” App. 27.
Following negotiations, further agreed the Tribe in 1873 (for relinquish compensation) all aboriginal claims to its lands outside the of a bounds more substantial reservation negotiators for agreed apart United States to “set and secure” “for the exclusive use of the Coeur d’Alene In- protect dians, and to . from occupancy . . settlement or persons.” other Id., at 33. The reservation boundaries agreement described in the part covered of the St. Joe River (then called Joseph), the St. and all of Lake Coeur d’Alene except a sliver cut off boundary. the northern Id., at Supp. 33-34; 95 F. 2d, at 1095-1096.
Although by its agreement own terms the was bind- ing congressional without approval, App. 36-37, later in 1873 President Grant issued an directing Executive Order that the specified reservation agreement in be “with- drawn from sale apart and set as a reservation Cur d’Alene Indians.” Exec. reprinted Order of 8,1873, Nov. 1 Kapler, C. (1904). Indian Affairs: Laws and Treaties The 1873 Executive Order boundary set the northern directly across Lake Coeur d’Alene, which, the District Court found, contrary practice “to the usual meandering survey along line high the mean water mark.” 95 Supp. F. App. 2d, (expert 1108; testimony).2 trial Although State did not challenge the District Court’s factual find ings below, it claims in its reply brief to us that it was “commonplace” for reservation boundaries to cross navigable waters. Reply Brief for *5 survey An 1883 Government fixed the reservation’s total area 598,499.85 acres, which the District Court found nec- essarily “included lands within the reservation Supp. boundaries.” 2d, F. at 1108.
As of 1885, agree- neither ratified the 1873 compensated ment nor the Tribe. prompted This inaction petition again, the Government to “make with proper treaty peace aus friendship and ... which your petitioners may be properly fully compensated and portion for such of their lands not now reserved to them; [and] present may that their reserve be confirmed to them.” App. response, Congress In 350-351. nego- authorized new tiations to agreement obtain Tribe’s to cede land outside the borders of the May 1873 reservation. Act of 15, 1886, 333, ch. agreed Stat. 44. the Tribe to cede right,
“all they title, and claim which have, now or ever to all had, lands in said [Washington, Territories Idaho, Montana] and and except portion elsewhere, of land present within the boundaries of their reservation in Territory known Idaho, as the Coeur d’Alene Res- App. ervation.” 378. promised Government, return, compensate agreed
Tribe, and “[i]n consideration of the foregoing agree- cession ments ... the Coeur d’Alene Reservation shall held forever as Indian land and as homes Coeur part d’Alene Indians . . . and no of said reservation occupied, open shall be sold, ever to white settlement, 9. Ultimately, Petitioner this dispute factual is of consequence; little the District found Court the boundary calculations acreage the understanding showed of the Government and the Tribe sub- included, 2d, 95 F. merged Supp. were con- and the State appeal “[c]ertainly, ceded on ... the executive branch had construed the 1873 Coeur d’Alene Reservation as including submerged lands.” Appellant Brief for (CA9), No. 98-35831 Opening p.
or disposed otherwise of without the consent the residing Indians Id., on said at 379. reservation.” As agreement before, the binding party was not on either by until Congress. ratified Id., In January yet not having any 1888, agree- ratified ment with the expressed uncertainty Tribe, the Senate about the extent of the adopted Tribe’s reservation and a resolu- directing tion the Secretary of the Interior “inform the Senate as to the extent present area and boundaries of the Coeur Territory d’Alene Indian Reservation in the Idaho,” specifically, “whether such area includes portion, and if so, about navigable how much of the waters of Lake Coeur Joseph d’Alene, and of Coeur d’Alene and St. (1888). Rivers.” S. Mise. Cong., Doc. No. 36, 50th 1 Sess., 1st Secretary responded February in report 1888with a the Commissioner stating of Indian Affairs, that “the reser- appears vation to embrace all the waters Lake Coeur except d’Alene, by very fragment a small cut off boundary north “[t]he of the reservation,” and St. Jo- seph River through also flows the reservation.” S. Exec. (1888). Doc. Cong., No. 50th largely, 1st Sess., 3 Based appears, report, on this Idaho conceded in the Court (as here) Appeals it does that the Executive Order Opening included lands. See Brief Appellant (CA9), in p. No. (“Certainly, 98-35831 concedes that executive branch had con- strued the 1873 Coeur including d’Alene Reservation as submerged lands”); Brief for Petitioner 17. May shortly receiving Secretary’s after re-
port, Congress passed granting right-of-way Act a Washington Company Idaho Railroad “for the extension of its through railroad Territory apart Idaho set for the use of the Coeur order, d’Alene Indians executive commonly known as the d’Alene Coeur Indian Reservation.” May § Act of 30, 1888, Notably, 336, 1, ch. 25 Stat. 160. Act directed that the Tribe’s consent be obtained and that (no mentioned) the Tribe being alone else one compen- right-of-way, part sated for the a of which crossed over navi- gable waters within the Id., reservation. §3, 161; Stat. Reply see also Brief for Petitioner 16. prepared ratify not agreement, the 1887 owing growing
however, to a desire to obtain for public only any interest of the land outside portions reservation, but certain of the reservation itself. The House Committee on Indian Affairs later recalled that agreement promptly was not ratified for
“sundry among reasons, which *7 part was desire on the of the acquire United States to an area, additional portion wit, a certain valuable spe- the reservation cially dedicated to the exclusive use of said Indians under an order Executive portions 1873, which situate[d] of said lands, on the northern end of said reservation, necessary is valuable and to the citizens of the United sundry States for It reasons. contains numerous, extensive, ledges. and valuable mineral It large contains bodies of valuable timber. ... It con- magnificent tains a sheet of the water, Coeur d’Alene Rep. Lake . . . .” H. R. Cong., No. 1109,51st 1st Sess., 4(1890).
But simply did not alter the 1873 boundaries unilaterally. Instead, the Tribe was understood to en- beneficially titled to the reservation as then defined, and the Appropriations 1889 Indian Act provision a included direct- ing Secretary negotiate the Interior “to with the Coeur d’Alene tribe specifically, Indians,” and, nego- purchase tiate “for the by and release said tribe of such portions of agricultural its reservation not and valuable chiefly for minerals and timber as such tribe shall consent to sell.” 2, 1889, Act of Mar. 412, ch. §4, 25 Stat. 1002. year, Later that the Tribe and negotiators Government agreement reached a new under which the Tribe cede would portion including approxi- northern reservation, mately exchange two-thirds of d’Alene, Lake Coeur App. Supp. $500,000. 198; see also F. 2d, at 1118. boundary line, lake, new old one, like the ran across the Simpson, negotiator States, and General a for the United re- “you Joseph assured the Tribe that still have the River St. part App. again, And, and the lower the lake.” binding party agreement was to be on either until agreement Congress. both it and the were ratified Id., at 199. passed ratifying 7,
On June Senate bill both agreements. Cong., 2828,51st and 1889 1st S. Sess. (1890). (1890); Cong. Rec. 5769-5770 On June parallel Senate bill was referred to House, where a bill already reported by been In- the House Committee on Rep. Cong., dian Affairs. H. R. No. 51st 1st Sess. (1890); (1890). Cong. see 21 Rec. 2775 July
On 3, 1890, while the Senate bill under consid- eration Affairs, House Committee on Indian Con- gress passed admitting the Idaho Act, Statehood Idaho into equal footing original Union “on States,” with the July Act of 3,1890, 656,26 ch. Stat. 215. The Act Statehood “accepted, ratified, and confirmed” the Idaho Constitution, *8 ibid., disclaimed] right which “forever all and title ... all lying [Idaho] lands by any within owned or held Indians or provided Indian tribes” and that “until the title thereto shall extinguished have been States, the United the same shall subject disposition to of States, the United and said Indian jurisdiction lands shall remain under the absolute and congress control of States,” the United Const., Idaho (1890). §XXI, Art.
A little over August a month on later, 19,1890, the House reported Committee on Indian Affairs that the bill Senate ratifying the agreements 1887 and 1889 was identical to already House bill that it had Rep. recommended. H. R. (1890). Cong., 2988, No. 51st 1st 3, Sess. On March 1891, Congress “accepted, ratified, and confirmed” both the 1887 agreements and 1889 with Tribe. Act of 3,Mar. 1891, §§ 543, ch. 19, 20, 26 Stat. 1027,1029. The Act also directed Secretary of convey Interior to to one Frederick Post “portion [the] reservation,” id., at 1031,that the Tribe purported to sell to Post in 1871.3 The property, located Spokane on the River and known as Post Falls, was de- scribed as “all three of the river channels and islands, with enough land on the north and south shores for water-power improvements.” Ibid.
In 1894, Congress approved yet
agreement
another
with
the Tribe, this time for the cession of a lakeside townsite
called Harrison, within
boundary
of the ratified reser
vation.
Aug.
Act of
15, 1894,ch. 290,28
Stat.
agreement
reprinted in App. 389; see also
The United States, acting in its own capacity and as
trustee for the Tribe, initiated this
against
action
the State
(in
quiet
Idaho to
title
the United States, to be held for
Tribe)
the use and benefit of within the exterior boundaries of the Tribe’s current res-
ervation, which encompass the lower third of Lake Coeur
part
d’Alene and
of the St. Joe River.4 The Tribe inter-
generally,
See
g.,
e. Oneida Indian Nation
N. Y. v. County
Oneida, U.
(under
S.
(1974)
667-668
common law and various
Acts,
Nonintercourse
Indian title can only be extinguished with federal
consent).
4Because this action was brought by the
States,
United
it does not
implicate the Eleventh Amendment bar raised when the
pressed
its own claim to the submerged lands in Idaho v. Coeur d’Alene Tribe
Idaho,
(1997).
The United States’s complaint was apparently motivated by Idaho’s of permits issuance for the “docks, construction of piers, floats, pilings, breakwaters, boat ramps and other such aids to navigation within 272 lands, and its interest
vened
assert
in its own favor.
counterclaimed,
title
Idaho
seeking
quiet
Ibid.
District Court
trial,
9-day
quieted
Following
States,
trustee,
as
and
Coeur
title “in favor of the United
Idaho, as
interested
d’Alene Tribe of
the beneficially
party
of
d’Alene
of
to the bed and banks
the Coeur
the trusteeship,
within the current bound-
Lake and the St.
River
Joe
lying
Reservation.”
95 F.
aries of the Coeur d’Alene Indian
Supp.
for the Ninth Circuit
2d,
Court
Appeals
(2000).
certiorari, 531
II Due tothe public importance navigable waterways, land such waters is ownership underlying “strongly Mon identified with the power government.” sovereign States, tana United (1981). 544, 450 v. U. S. 552 See gen Idaho, Idaho Coeur d’Alene 261, 521 S. v. U. erally Alaska, States (1997). United (1997); 521 5 1, v. U. S. order to allow on an new States to enter Union “equal with with to this im States footing” original regard interest, United “the States con portant early adopted has adhered to the lands under stantly policy regarding held waters ... for the navigable acquired territory v. Holt States.” United States ultimate benefit of future Bank, see also (1926); U. S. v. Shively (1894). Therefore, U. S. 48-50 in contrast Bowlby, States, law surface land held the United governing Scott v. see (1913), U. the default rule Lattig, S. title to land under waters from the navigable passes United States to a admitted State. Shively, supra, newly at 26-50. has the be Specifically, although Congress power fore waters, statehood to beneath land convey and to States, reserve such land for the United court “‘[a] southern Complaint one-third Coeur d’Alene Lake.” in CIV94-0328- (D. Idaho), pp. N-EJL 6-7. *10 deciding question a of title to the bed of water begin must strong presumption’ . . against . with a defeat of a supra, Alaska, State’s title.” (quoting at 34 Montana, 552). supra, at
Armed presumption, with that we have looked to Con- gress’s declarations we intent when have had to resolve submerged conflicts over lands claimed to have re- been conveyed by served or the United before States statehood. (“Whether supra, Alaska, submerged at 36 title to lands rests ultimately with a State, is a course, matter of federal intent”); Div. Utah State Lands v. United States, 482 U. S. (1987); supra, Montana, 201-202 at 550-557; Holt State supra, Bank, at 57-59; Alaska Fisheries v. United Pacific (1918); States, Shively, supra, 248 U. S. 87-90 at 48-51. congressional The issue of is intent refined somewhat submerged when lands are located within a tract that the National special Government has way dealt with in some before reserving particular statehood, as lands for a purpose national refuge such as a or, wildlife here, as Indian reserving submerged reservation. Because lands necessarily imply does not the intent “to defeat future State’s title land,” supra, Utah Div. Lands, two-step at we enquiry undertake a in reservation cases. We ask whether Congress intended to include land under navigable waters within the federal reservation if and, so, Congress whether intended to defeat future State’s title submerged supra, supra, Alaska, lands. 36; Utah, at 202.
Our most recent sort, case of this Alaska, United States v. supra, parcels initially addressed two of land reserved not by Congress but, here, the Executive Branch. We explained two-step congressional test is intent satisfied when clearly an Executive reservation includes lands, recognizes the reservation way in a that demonstrates an intent to defeat state title. Id., at 41-46, 55-61. We considered whether included reservation the Executive
on notice that purpose of the id., 42, 45, 56, and whether lands, see compromised if the have been would 45-46, 42-43, id., at passed State, we ex- undermined, purpose have been would Where plausible United States simply “[i]t that the plained, id., portions area,” only upland sought to reserve *11 at 39-40. branch had “the executive that
Here, Idaho has conceded interpreted, Executive the 1873 had or intended, submerged Brief lands.” to include Reservation Order right A to sound is a one. The concession Petitioner 17. traditionally adjacent waters the lakebed control petition emphasized in its important which Tribe, fishing. depend on continued to that it to the Government (finding include sub supra, no intent to at 556 Montana, Cf. merged the tribe did a reservation where lands within water). navigable depend fishing District of The on or use reserved acreage of the determination Court found the necessarily the lakebed included the area of area in 1883 boundary crossing east the lake from unusual line within the (concluding supra, that a bound at 39 Alaska, Cf. west. necessarily ary following islands ocean of offshore side islands). submerged shoreward of the embraced lands parties findings light concession, of and Idaho’s those Congress’s intent question, second of here concentrate on the submerged to defeat Idaho’s title to the lands.5 States’s Appeals accepted and Court of the United District Court lands, submerged Congress position had reserved reach title. did not They intended that reservation to defeat Idaho’s that, of scope the Tribe’s alternative theory notwithstanding lands, reservation, submerged the Tribe title to the aboriginal retained by Congress, which cannot be without action see extinguished explicit Winans, Nation, Oneida Indian cf. United States v. S., 667-668; 414 U. (1905) treaty aboriginal U. (explaining ceding S. that a some lands to the States and other lands as a reserva setting apart United Indians, from rights tion “was not a but grant rights grant Appeals, In the Court of Idaho point also conceded one part enquiry. in this agreed covered second It Secretary report after of the Interior’s 1888 that the res- nearly ervation embraced “all the water Lake Cong., d’Alene,” Coeur S. Exec. Doc. No. 50th 1st Sess., onwas notice that the Executive Order reser- submerged Opening Appel- vation included lands. Brief for (CA9), lant in (“[Congress was] No. 98-35831 at 11 informed that the Coeur d’Alene Reservation embraced lands”). Again, prudent Idaho’s light concession was findings the District Supp. Court’s 2d, facts. 95 F. at 1114 (“The prior evidence shows that to Idaho’s statehood, Con- gress was on notice that the Executive Order of re- served for the benefit of the Tribe the Reservation”). within the boundaries of Coeur d’Alene merely The District impute Court did not knowledge survey, explained land but also how the rights lands and related water con- been tinuously important throughout period to the Tribe *12 prior congressional to confirming action the reservation and granting Idaho statehood. And the District Court made the following findings period negotiations preceding about the by Congress: authorized
“The facts demonstrate that an influx of into non-Indians aboriginal Tribe’s territory prompted the the Federal negotiate to Government with the Coeur d’Aleñes in attempt to confine Tribe the to a reservation and aboriginal to obtain the Tribe’s release of its lands for agree Before would settlement. it to these conditions, enlarged however, the Tribe demanded an reservation the included Lake and rivers. Thus, the Federal only goals Government could promoting achieve its of them —a of granted”). reservation those not The Tribe not press does its unextinguished-aboriginal-title here. See argument Brief Respondent 25, Coeur d’Alene Tribe n. 12. ab- extinguishing and avoiding hostilities
settlement, included reservation by agreeing to a original title 1107.6 Id., at submerged lands.” the Execu the 1873 background for summary, the in This, turn lands, which inclusion tive Order’s the to Senate the request subject of the the were rights the Tribe’s about for advice Secretary Interior the d’Alene Coeur Lake “navigable waters the over 36, Doc. No. Misc. S. Joseph Rivers,” St. d’Alene Coeur Secretary an noted, the As Cong., Sess., 1st 50th Cong., 50th No. Doc. Exec. affirmative, S. the swered indicating that survey the consistently with Sess., 1st Thus, the reservation. within were submerged lands to difficult it would remarked District Court plain more made have could imagine circumstances the reser within were submerged lands Congress that to Supp. at 1114. 2d, 95 F. vation. deal to proceeded Congress then in which manner
The land preservation clearly that shows the Tribe with with contrary agreement absent reservation, within objectives complementary Congress’s was central Tribe, and estab- settlement pressures white dealing with The legislation. permanent lishing rights land preserve its fight its readiness shown military, States United force it defeated in 1858 when aboriginal lands. intending to take it misunderstood which at 2-3. Sess., Cong., 1st Rep. 51st No. H. R. See reser- before again in 1873 hostility arose with concern surveyor on awhen established, were boundaries vation (1873), re Affairs, Report Annual of Indian Commissioner See also *13 previous awith dissatisfied Tribe was that (explaining in App. printed pur “[f]or required agreement the 1873 claimed country of the tract to all claim Tribe’s] [the extinguishing pose States, U. S. v. United them”). Montana generally by See justify public purpose (creation appropriate (1981) of Indian reservation lands). title to defeat of state ing scene had Surveyor “[sjhould warned the General that fisheries be my excluded there in opinion will be trouble with these App. Indians.” 30. although
Hence, goal of extinguishing aboriginal title could have been by achieved congressional fiat, see Tee-Hit- Ton Indians v. United States, 348 (1955), U. S. 272, 279-282 Congress was free to define the reservation boundaries however it goal saw fit, the of avoiding hostility seemingly could not have been attained without the agreement of the Congress any Tribe. event made plain it expressly object its towas obtain tribal only by interests tribal con- sent. When in Congress steps took extinguish- toward ing aboriginal title all lands outside boundaries, it did so authorizing negotiation agreements ceding title for compensation. that, Soon after Congress when de- cided to seek a reduction in the size of the 1873 reserva- tion Secretary itself, the of the Interior advised the Senate against fiddling scope with the of the reservation without agreement. Tribe’s report The of February 1888 like- urged wise any move to diminish the reservation “should done, if all, done at with the full and free consent they the Indians, and should, of course, proper receive compensation any land so App. taken.” 129. Accord- ingly, after receiving Secretary’s report, Congress under- took in the negotiation 1889Act to authorize with the Tribe for the compensated consensual, cession portions of such the Tribe’s reservation “as such tribe shall consent to sell,” § Act of Mar. 2,1889, ch. 412, 4, 25 Stat. the mean- time it honored the recently reservation’s clarified bound- aries requiring that the compensated Tribe be for the Washington and Idaho Railroad Company right-of-way, Act § May 30,1888, ch. 1, 25 Stat. 160. including facts, provisions of Acts of 1886, 1888, and 1889, thus demonstrate un- objective derstood its turning on the agreement Tribe’s abrogation any land might claim it have and to *14 explicit The of the 1873 boundaries. reduction reservation’s were the Tribe agreement of statutory provisions requiring Congress’s final point unchanged right through to con- that of course in Act reservation, of the an ratification submerged within lands by no cession the Tribe tained added, it should Nor, the reservation’s outer boundaries. passage delay in final any hint in the evidence that is there allowing by pull one ratifying a fast Act to was meant pass under a submerged Idaho to reservation’s approved Act legal presumption, of the virtue Statehood res- Congress eight action on took final months before confirming the that the Act There is no evidence ervation. comparison of delayed for reason but reservation was they that respective to assure bills, House Senate passage the Senate prior were identical to the House’s version.7 be- argument that,
The record thus answers State’s sought to obtain Congress 1889Act cause the indicates chiefly minerals portions “valuable thinking necessarily one timber,” was not land. thing of the reservation or about the balance another Arg. Reply of Oral Brief for Petitioner see also Tr. 6-7; argument ignores that Con- simply the evidence 12-13. The gress included did know that the reservation lands, it modification and that authorized the reservation’s solely by agreement. words, other intent, re- anything consensually the Tribe would not ceded benefitj flatly objective at odds with main for the an Tribe’s the balance Idaho’s view that meant to transfer of, the earlier things, Given the other preceding among discussion Acts, this reference congressional it without go saying should statehood the fact that the Senate the ratification Act before passed enactment intended constituted suggest the Senate action alone that Congress, let expression of intent on behalf of the whole lands. of itself Idaho’s title to the was sufficient to defeat (Rehnquist, post, J., dissenting). But cf. C. lands to the State in what would have amounted to an act of bad faith accomplished by unspoken operation of law. Indeed, the implausibility of the State’s *15 position current underscored the fact that it amade contrary argument in the Court Appeals, where it em- phasized the finding District Court’s that the 1889 Act was negotiate authorization “to with the Tribe for a release of the submerged recognized lands,” and “[Congress was] informed that the Coeur d’Alene Reservation embraced submerged Opening lands.” Appellant Brief for in No. 98- (CA9), position
Idaho’s is at odds only not with evidence of congressional intent before statehood, but also with later congressional understanding that statehood had not affected question. Eight pass- months after ing the Statehood Act, ratified the 1887 and 1889 agreements in their entireties (including language in the agreement that “the Coeur d’Alene Reservation shall land”), held forever Indian signal with no that some of the land parties over which the agreements to those had negotiated passed had in the interim to Idaho. The ratifi- suggested Act cation in a way further Congress’s under- standing that the 1873 reservation’s lands had passed not to the State, including a provision confirm- ing the Tribe’s sale of river channels to Frederick Post. Confirmation would have beyond been Congress’s power if title to the submerged riverbed already passed Finally, State.8 the Act Congress ceding portion says that the conveyance to Post included land that was outside boundary of the 1873 reservation. Brief for Reply Petitioner 18. That merely suggests the possibility that Congress intended de feat the State’s title to even more territory than the United States is claiming here.
The State also hypothesizes the relevant portions of the Spokane may River not have been considered the time of the convey- ance, ibid., in which the equal case footing doctrine would not apply and the conveyance would say about nothing Congress’s intent with regard to Con- confirms Harrison land the townsite of for reser- gress’s understanding within that the lakebed Only three part of the reservation. vation’s boundaries was town- reservation, the years confirming after Act rail- right-of-way just site cession was treated as the (and no The Tribe statehood. road had been treated before else) sug- compensated bounds cession whose one for a boundary lines did gested lands; the inclusion of shore, edge entire stop meander the at the water’s encompass sub- area of the lake but continued into the simply could merged territory that the National Government the time conveyed passed if to Idaho at not have it had statehood.9 negotiate with the Coeur sum, undertook territory an Execu- in the
d’Alene for reduction *16 sub- included the tive Order concedes reservation that Idaho merged Congress aware that lands at issue here. to re- submerged clearly intended lands were included only them define the area of the reservation that covered guarantee exchange that transfer, consensual in indica- no retain There is the Tribe would the remainder. resolve this We need not lands waters. underlying that say it to factual below. Suffice question, which was not addressed that understanding an actions in 1891 with Congress’s were consistent which, Post, to conveyed the State did not have title to the riverbeds concededly navi- of the along part with the later Harrison cession of submerged lands lake, that no understanding is with an gable consistent to Idaho. passed within the reservation’s stated boundaries cannot, Here, dissent, Congress post, we with the at agree already statehood, “ha[ve] lands convey submerged after reserve or 1, 26-28 152 U. S. Bowlby, been bestowed” a See v. Shively State. upon (1845)). (1894) point Our How. (citing Hagan, Lessee Pollard v. of merely to confirm statehood is mentioning Congress’s actions after lands already make clear: prestatehood what actions Congress’s statehood, Con because upon here not bestowed Idaho at issue were agree barring lands gress they remain tribal reservation intended contrary. ment to the objective negotiated
tion that ever modified its of if which would have been defeated transfer, consensual Con- pass gress parts had let reservation to the State before agreements Any imputation with the Tribe were final. secrecy dropping faith either bad or of its dealing express objective the Tribe of consensual with is nego- with at odds the evidence. We therefore think “ma[k]e history, subsequent tiating events, not mention [it] very plain,” Bank, S., Holt State 270 U. that Con- gress recognized the full extent of the Executive Order lying ultimately within stated boundaries passage and intended to bar to Idaho of title to confirmed, here. lands at issue judgment Appeals Court affirmed.
It is so ordered. with Rehnquist, Scalia, Justice whom Justice Chief Kennedy, Justice and Justice Thomas dissenting. join, plausible proposition makes out a case for the The Court day Idaho was admitted to the the Ex- that, Union, on the of the Federal had intended to ecutive Branch Government retain in trust for the Coeur d’Alene Indian the sub- merged portion lands under Lake Coeur d’Alene. But part intent on the the existence of such Executive simply enough incoming Branch is defeat State’s within title to its borders. Decisions *17 years going more this Court back than establish this beyond proposition a of a doubt. shadow “[T]he ownership navigable land waters,” of under repeating, sovereignty.” of bears “is incident Montana (1981). Recognizing States, 544, 450 U. this v. United S. important relationship, principle this Court “announced the that the United States held the lands waters under in the Territories fin trust’ for the future States that would States, 482 Lands v. United Div. State
be created.” Utah (1987) Hagan, v. (quoting Pollard Lessee 198, S. U. (1845)). lightly be dis-r duty may not 212, How. That inquiry observes, our rightly regarded, and, as the Court against of a defeat strong presumption “begin[s] awith (internal quotation marks Ante, at 273 title.” State’s omitted). submerged [of “disposals Accordingly, citations period ... during lands] the territorial United States was the intention regarded unless as intended should very plain.” United definitely made or otherwise declared (1926); also see 49, 55 Bank, S. State 270 U. States v. Holt (“[The Court] such infer supra, must not Montana, at 552 definitely declared conveyance unless the intention in clear very plain, rendered or was or otherwise made em terms confirmed in especial unless words, or the claim (internal stream” the land under the waters braces omitted)). quotation and citations marks application in its critical mistakes makes three Court significantly equal footing here—errors doctrine miscon foremost, Court dilute First and the doctrine. directly relevant scope historical events ceives by July to question 1890, acted 3, had, whether entering submerged from the withhold lands title very entered Union that Idaho of Idaho. At the moment July equal footing original States,” Act “on an with vested Congress and the President 656, 26 ch. Stat. including title sovereignty, in Idaho the accoutrements of improper Court It therefore lands. to discern to look to order events after Idaho’s admission years previously intended or whether months Indeed, entering lands. to divest the State of its footing equal doctrine applying I am of no aware case this Court in which determine title to beyond for evidence has looked of statehood moment federal intent.
Our decision in United (1997), Alaska, States v. 521 U. 1S. particularly illustrative of the timeframe relevant to our inquiry. That case part concerned in assumption Alaska’s of title to submerged lands within the National Petroleum (Reserve) Reserve-Alaska and the Arctic National Wildlife Refuge (Refuge). id., See 4. today’s stark contrast to decision, the Court in its lengthy in discussion Alaska re- entirely sisted temptation to delve into the treatment of the question lands in years the months and following Alaska’s admission Union in 1959. And the invita- tion to hardly do so could have been more obvious with respect Refuge, to the which apart” had been “set aas wild- life reservation but had yet.been formally approved by Secretary Id., Interior. applica- at 46-47. “This tion,” the observed, Court pending July “was still Congress passed when the Alaska Statehood Act, and in January 1959, when formally Alaska was admitted to the Union.” Id., at Although the Court noted that the application approved was several months after Alaska’s admission, the Court pending considered application only relevant put insofar as it on notice action. id., See at 56. The give— Alaska Court did not contrary to reasoning present Court’s in case— import to the fact application that the ultimately ap- proved. Indeed, Alaska's focus on the instant of statehood as the inquiry crucial hardly moment could be more clear. (“The g., See, e. at 42 id., conclusionthat was aware passed when it the Alaska Statehood Act the Reserve encompassed lands is legisla- reinforced other just tion, enacted Alaska’s admission to the Union, before granting certain Territory offshore Alaska”); lands to the (“We id., at 55 now prior consider whether, to Alaska’s ad- mission to Union, the United States defeated the future State’s title lands included within the added)). proposed Range” (emphases cases Other indicate *19 Lands, State Div. g., e. Utah See, emphasis. a similar S., 551.1 at Montana, 450 U. supra, 195; at here issue at submerged lands as the Accordingly, insofar ultimately Congress that no moment concerned, it is of are ante, at 279. See negotiations. and 1889 the 1887 ratified assent given its Congress had action, it such took before Well sovereign State as a entry the Union into to Idaho’s Federal extinguish the to Executive with joined thereby submerged lands. to title right withhold to Government’s “the fact that of the acceptance Congress’ that It follows Indian forever held shall Reservation d’Alene Coeur explain whether nothing ibid., to does land,” less of—much the time reservation within lands were token, By the same admission. eight months after —Idaho’s attempt in 1891 Congress’ illuminated is not inquiry our conveyance certain purported Seltice’s to affirm Chief by Con- or 271, 279, ante, at Post, see Frederick to cession,” “Harrison so-called approval in gress’ consequences of ad- Simply put, the ante, at 279-280. see uniquely sover- ignores the it instantaneous, and are mission suggest that the Court for event eign character already has what diminish can subsequent somehow events been bestowed. (at question be- that the theory) agree least
Second, all under land to include Congress intended us is fore “whether so, if and, the federal navigable waters within title State’s the future to defeat intended whether added). (emphasis ante, lands,” by consid- “intent” this proceeds to determine But Court Congress. obviously Acts are not ering what forbidding no rule aware “we are Appeals stated Court may Indeed, law the case events. [post-statehood] of such consideration States, v. United Fisheries Alaska contrary. See suggest Pacific 2000). (CA9 This 1067, 1079, n. (1918).” 210 F. 3d 78, 89-90 248 U. S. until the Union not admitted indeed, Alaska puzzling citation is Fisheries. in Alaska decision after Court’s years some 40 Pacific negotiations itself did authorize with the Tribe in expressly provided 1889, but those Acts resulting agreements binding were not “until Congress.” ratified May App. Act of 15, 1886, 24 51; Stat. Act of 2, 1889, Mar. App. 25 Stat. undisputed And it is that ratifi gained cation did not occur before Idaho admission. The willing congressional Court, however, is to divine intent to withhold lands from the from what prestatehood best are described as proceedings. inchoate In the Court’s view is sufficient that one House of Con gress approve had acted agreements and that the process other was of considering *20 legislation. similar ante, speaks See at 278. The Court thus of the “final” rati negotiations fication of the 1887 and 1889 as if the official approval of both Houses but a mere formal ity. § Ibid. But see Const., U. S. Art. 7, cl. 2. But I, the indisputable July fact remains “Congress” that, as of 3, 1890, passed the Act Idaho Statehood but had not ratified the agreements. and prior support
Nor do our decisions in this area the Court’s decision to wander so far afield. In Alaska, we evaluated impact provision express the of an in the Alaska Statehood Act, Pub. reserving 85-508, L. Stat. certain lands for the United S., States. 521 U. at 41-42. There the evidence “Congress expressed that a clear intent to defeat state title” lands came in the duly passed form aof fed- eral statute rather preludes than inferences drawn from congressional to future Acts. Id., Indeed, that 11(b) § specificity, Statehood Act in directly abounds in iden- 6(e) tifying § the Reserve, and defining in other reserved in lands some So, too, detail.2 in Utah Division 2Again, the Court’s reliance on language contained the Idaho State ante, hood Act the affirming Idaho Constitution is unavailing. See at 270. Clauses that indicating entering State “forever disclaims all right and title to . . . all . . . lands owned or held any Indians Indian or tribes” were boilerplate time, formulations at the and the inclusion of
. <M to oo without prestatehood federal statutes evaluated we
Lands of law. lacking force proceedings to inchoate reference claim (discussing impact on Utah’s S., at 198-200 482 U. Sundry Appropriations lands of to certain Sundry Appropriations Act 505, and 1888,25 Stat. Act 371). supra, at 550- Montana, Cf. Stat. ch. property treaties vested (considering certain whether Indians). wisely relied have We thus rights in the Crow past, it is unfortunate sort of evidence on this today. upon route we embark relationship between despite the critical Third, unwarranted sovereignty, makes the Court lands respect to granted with assumption use reserving sub- necessarily title include waters must has ex- previously the Court merged below them. As lands underlying of territorial plained, purpose a reservation g., Alaska, e. probative See, intent. of federal often con- Court’s the District accepting Even 521 U. at 39. S., dietary further habits, and regarding clusions the Tribe’s con- Congress was accepting Court’s inference this navigable waters,3 it does cerned with the Tribe’s access in the Alaska employed compares precision language hardly this *21 years 1889 Indeed, between the every Act. admitted Statehood (1889); Const., 16, §2 N. D. Art. such a disclaimer. See 1912 entered with (1889); Const., I (1889); §18 Const., XXII, Mont. Ordinance S. D. Art. (1889); §3 (1889); Const., Const., XXVI, §2 Ordinance Wyo. Art. Wash. Const., I, (1906); § M. Const., N. Const., (1894); Ill Okla. Art. Utah Art. (1910). in XX, (1910); Const., Tellingly, XXI, par. § Ariz. Art. Art. Oklahoma’s, language is the relevant Constitutions save each these event, disclaimer, in any This in Constitution. identical to that the Idaho “owned were in fact lands submerged whether begs question the simply admission. upon Idaho’s or Coeur d’Alene Tribe held” the has apparently Idaho Although may justified. This inference not be lands within submerged Order included 1873 Executive conceded the similar made a reservation, Congress hardly fact confirms the United with Tribe. the simply authorizing negotiations in statement Alaska, moreover, it is best (1997), indicates States v. 521 U. S. necessarily Congress follow that to intended reserve by authorizing title in negotiations lands lead- portions ing to the cession of the reservation established by the 1873Executive Order. perfectly assumption
It is with consistent the that Con- gress preserve way wanted to the Coeur d’Alene Indians’ of life to conclude if grant that, meant to the likely d’Alene, interest Lake Coeur it was more right a to fish and travel the waters rather than withhold- ing perpetual Tribe’s the benefit underlying title the Montana, lands. ([Although treaty] S., See 450 U. at 554 the gave right the occupy Crow Indians sole use and implicitly, power land, reserved and, to exclude others respondents’ from provision simply it, reliance on that begs question precise conveyed extent of the (“The attaches”); exclusivity to which this see also ibid. mere fact that the bed of a water lies within the bound- treaty aries in the described does not make the riverbed part conveyed especially land, when there is no ex- press might reference to the riverbed that overcome the presumption against conveyance”). its Congress’ reason,
For this grant decision in 1888 a right-of-way Washington and Idaho Railroad Com- pany part a across of the Coeur d’Alene Reservation is not Congress’ clear respect evidence intent with to sub- merged portion right- lands. All but miniscule of of-way along passes lands, surface and it crosses the lake only points. at one of its narrowest There mention is no authorizing lands in the resolution, and it Congress required company seems obvious that pay an open question whether Executive action alone is sufficient to withhold Id., 43-45; Const., IV, 3,§ title to lands. cf. U. S. Art. 2cl. (“The have dispose shall Power to of and make all needful Rules or Regulations respecting Territory other Property belonging added)). Thus, to the United States” (emphasis the majority rests far too *22 much Idaho’s weight regarding on concession the 1873 reservation. impact compensation significant to the Tribe because upon the railroad would have surface lands: company right granted “[T]he way hereby to said seventy-five shall be each side of feet width on and said aforesaid[;] central line of said railroad as company right from said shall also have the to take adjacent stone, material, of said road line necessary of said earth, and timber for the construction way adjacent right ground railroad; also, to such machine-shops, side-tracks, station-buildings, depots, for in amount turnouts, water-stations, not to exceed three hundred feet in three feet width and thousand length each for station, each to the extent one station App. ten miles of road.” 138. just regarding I
Thus, do not think intent to infer compen- Congress’ requirement lands from primarily sation for what was to intrusion —and significant upon one at surface lands. that — properly congressional sum, the evidence of intent today anywhere before the Court near the fails to rise to certainty require. Congress’ level of our desire to cases entering sovereign divest an of its in sub- interest merged “definitely lands must be or otherwise made declared very plain,” supra, Montana, That has standard not been met here.