MONTANA ET AL. v. UNITED STATES ET AL.
No. 79-1128
Supreme Court of the United States
Argued December 3, 1980—Decided March 24, 1981
450 U.S. 544
Urban L. Roth, Special Assistant Attorney General of Montana, argued the cause for petitioners. With him on the briefs were Michael T. Greely, Attorney General, Clayton R. Herron and F. Woodside Wright, Special Assistant Attorneys General, James E. Seykora, and Douglas Y. Freeman.
Deputy Solicitor General Claiborne argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Harlon L. Dalton, Robert L. Klarquist, and Steven E. Carroll.
Thomas J. Lynaugh argued the cause for respondent Crow Tribe of Indians. With him on the brief was Charles A. Hobbs.*
*Briefs of amici curiae urging reversal were filed by Warren Spannaus, Attorney General, James M. Schoessler, and Tom D. Tobin for the State of Minnesota et al.; by Slade Gorton, Attorney General, and Timothy R. Malone, Assistant Attorney General, for the State of Washington, joined by the Attorneys General for their respective States as follows: Robert Corbin of Arizona, Robert T. Stephan of Kansas, John Ashcroft of Missouri, Paul L. Douglas of Nebraska, and Robert B. Hansen of Utah;
This case concerns the sources and scope of the power of an Indian tribe to regulate hunting and fishing by non-Indians on lands within its reservation owned in fee simple by non-Indians. Relying on its purported ownership of the bed of the Big Horn River, on the treaties which created its reservation, and on its inherent power as a sovereign, the Crow Tribe of Montana claims the authority to prohibit all hunting and fishing by nonmembers of the Tribe on non-Indian property within reservation boundaries. We granted certiorari, 445 U. S. 960, to review a decision of the United States Court of Appeals for the Ninth Circuit that substantially upheld this claim.
I
The Crow Indians originated in Canada, but some three centuries ago they migrated to what is now southern Montana. In the 19th century, warfare between the Crows and several other tribes led the tribes and the United States to sign the First Treaty of Fort Laramie of 1851, in which the
and by Paul A. Lenzini for the International Association of Fish and Wildlife Agencies.
Briefs of amici curiae urging affirmance were filed by Robert D. Dellwo for the Coeur D‘Alene Tribe of Indians et al.; and by Barry D. Ernstoff, Steven S. Anderson, Reid Peyton Chambers, Carl V. Ullman, and Arthur Lazarus, Jr., for the Confederated Tribes of the Colville Indian Reservation et al.
A brief of amici curiae was filed by officials for their respective States as follows: David H. Leroy, Attorney General of Idaho, and Robie G. Russell, Phillip J. Rassier, Steven V. Goddard, and Leslie L. Goddard, Deputy Attorneys General; Robert K. Corbin, Attorney General of Arizona; George Deukmejian, Attorney General of California, and R. H. Connett, Assistant Attorney General; Thomas J. Miller, Attorney General of Iowa; Robert T. Stephan, Attorney General of Kansas; Richard H. Bryan, Attorney General of Nevada; Jeff Bingaman, Attorney General of New Mexico; Allen I. Olson, Attorney General of North Dakota; Mark V. Meirhenry, Attorney General of South Dakota; Robert B. Hansen, Attorney General of Utah; Chauncey H. Browning, Attorney General of West Virginia; and Bronson C. La Follette, Attorney General of Wisconsin.
Several subsequent Acts of Congress reduced the reservation to slightly fewer than 2.3 million acres. See
Since the 1920‘s, the State of Montana has stocked the waters of the reservation with fish, and the construction of a dam by the United States made trout fishing in the Big Horn River possible. The reservation also contains game, some of it stocked by the State. Since the 1950‘s, the Crow Tribal
On October 9, 1975, proceeding in its own right and as fiduciary for the Tribe, the United States endeavored to resolve the conflict between the Tribe and the State by filing the present lawsuit. The plaintiff sought (1) a declaratory judgment quieting title to the bed of the Big Horn River in the United States as trustee for the Tribe, (2) a declaratory judgment establishing that the Tribe and the United States have sole authority to regulate hunting and fishing within the reservation, and (3) an injunction requiring Montana to secure the permission of the Tribe before issuing hunting or fishing licenses for use within the reservation.
The District Court denied the relief sought. 457 F. Supp. 599. In determining the ownership of the river, the court invoked the presumption that the United States does not intend to divest itself of its sovereign rights in navigable waters and reasoned that here, as in United States v. Holt State Bank, 270 U. S. 49, the language and circumstances of the relevant treaties were insufficient to rebut the presumption. The court thus concluded that the bed and banks of the river had remained in the ownership of the United States until they passed to Montana on its admission to the Union. As to the dispute over the regulation of hunting and fishing, the court found that “[i]mplicit in the Supreme Court‘s decision in Oliphant [v. Suquamish Indian Tribe, 435 U. S. 191,] is the recognition that Indian tribes do not have the power, nor do they have the authority, to regulate non-Indians unless so granted by an act of Congress.” 457 F. Supp., at 609. Because no treaty or Act of Congress gave the Tribe authority to regulate hunting or fishing by non-Indians, the court held
The Court of Appeals reversed the judgment of the District Court. 604 F. 2d 1162. Relying on its opinion in United States v. Finch, 548 F. 2d 822, vacated on other grounds, 433 U. S. 676, the appellate court held that, pursuant to the treaty of 1868, the bed and banks of the river were held by the United States in trust for the Tribe. Relying on the treaties of 1851 and 1868, the court held that the Tribe could regulate hunting and fishing within the reservation by nonmembers, although the court noted that the Tribe could not impose criminal sanctions on those nonmembers. The court also held, however, that the two Allotment Acts implicitly deprived the Tribe of the authority to prohibit hunting and fishing on fee lands by resident nonmember owners of those lands. Finally, the court held that nonmembers permitted by the Tribe to hunt or fish within the reservation remained subject to Montana‘s fish and game laws.
II
The respondents seek to establish a substantial part of their claim of power to control hunting and fishing on the reservation by asking us to recognize their title to the bed of the Big Horn River.1 The question is whether the United States
Though the owners of land riparian to nonnavigable streams may own the adjacent riverbed, conveyance by the United States of land riparian to a navigable river carries no interest in the riverbed. Packer v. Bird, 137 U. S. 661, 672; Railroad Co. v. Schurmeir, 7 Wall. 272, 289;
“[and so defeat the title of a new State,] in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several States, or to carry out other public purposes appropriate to the objects for which the United States hold the Territory.” Shively v. Bowlby, 152 U. S. 1, 48.
In United States v. Holt State Bank, supra, this Court applied these principles to reject an Indian Tribe‘s claim of title to the bed of a navigable lake. The lake lay wholly within the boundaries of the Red Lake Indian Reservation, which had been created by treaties entered into before Minnesota joined the Union. In these treaties the United States promised to “set apart and withhold from sale, for the use of” the Chippewas, a large tract of land, Treaty of Sept. 30, 1854,
The Crow treaties in this case, like the Chippewa treaties in Holt State Bank, fail to overcome the established presumption that the beds of navigable waters remain in trust for future States and pass to the new States when they assume sovereignty. The 1851 treaty did not by its terms formally convey any land to the Indians at all, but instead chiefly represented a covenant among several tribes which recognized specific boundaries for their respective territories. Treaty of Fort Laramie, 1851, Art. 5, 2 Kappler 594-595. It referred to hunting and fishing only insofar as it said that the Crow Indians “do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described,” a statement that had no bearing on ownership of the riverbed. By contrast, the 1868 treaty did expressly convey land to the Crow Tribe. Article II of the treaty described the reservation land in detail4 and stated that such land would be “set apart for the absolute and undisturbed use and occupation of the Indians herein named . . . .” Second Treaty of Fort Laramie, May 7, 1868, Art. II,
“[T]he United States now solemnly agrees that no persons, except those herein designated and authorized to
Whatever property rights the language of the 1868 treaty created, however, its language is not strong enough to overcome the presumption against the sovereign‘s conveyance of the riverbed. The treaty in no way expressly referred to the riverbed, Packer v. Bird, 137 U. S., at 672, nor was an intention to convey the riverbed expressed in “clear and especial words,” Martin v. Waddell, 16 Pet., at 411, or “definitely declared or otherwise made very plain,” United States v. Holt State Bank, 270 U. S., at 55. Rather, as in Holt, “[t]he effect of what was done was to reserve in a general way for the continued occupation of the Indians what remained of their aboriginal territory.” Id., at 58.
Though Article 2 gave the Crow Indians the sole right to use and occupy the reserved land, and, implicitly, the power to exclude others from it, the respondents’ reliance on that provision simply begs the question of the precise extent of the conveyed lands to which this exclusivity attaches. The mere fact that the bed of a navigable water lies within the boundaries described in the treaty does not make the riverbed part of the conveyed land, especially when there is no express reference to the riverbed that might overcome the presumption against its conveyance. In the Court of Appeals’ Finch decision, on which recognition of the Crow Tribe‘s title to the riverbed rested in this case, that court construed the language of exclusivity in the 1868 treaty as granting to the Indians all the lands, including the riverbed, within the described boundaries. United States v. Finch, 548 F. 2d, at 829. Such a construction, however, cannot survive examina-
For these reasons, we conclude that title to the bed of the Big Horn River passed to the State of Montana upon its
finally signed new treaties with the United States aimed at rectifying their past suffering at the hands of the Federal Government and the States.
Under the Choctaw treaty, the United States promised to convey new lands west of the Arkansas Territory in fee simple, and also pledged that “no Territory or State shall ever have a right to pass laws for the government of the Choctaw Nation . . . and that no part of the land granted to them shall ever be embraced in any Territory or State.” Treaty of Dancing Rabbit Creek, Sept. 27, 1830,
III
Though the parties in this case have raised broad questions about the power of the Tribe to regulate hunting and fishing by non-Indians on the reservation, the regulatory issue before us is a narrow one. The Court of Appeals held that the Tribe may prohibit nonmembers from hunting or fishing on land belonging to the Tribe or held by the United States in trust for the Tribe, 604 F. 2d, at 1165-1166, and with this holding we can readily agree. We also agree with the Court of Appeals that if the Tribe permits nonmembers to fish or hunt on such lands, it may condition their entry by charging a fee or establishing bag and creel limits. Ibid. What remains is the question of the power of the Tribe to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe. The Court of Appeals held that, with respect to fee-patented lands, the Tribe may regulate, but may not prohibit, hunting and fishing by nonmember resident owners or by those, such as tenants or employees, whose occupancy is authorized by the owners. Id., at 1169. The court further held that the Tribe may totally prohibit hunting and fishing on lands within the reservation owned by non-Indians who do not occupy that land. Ibid.
The Court of Appeals found two sources for this tribal regulatory power: the Crow treaties, “augmented” by
A
The purposes of the 1851 treaty were to assure safe passage for settlers across the lands of various Indian Tribes; to compensate the Tribes for the loss of buffalo, other game animals, timber, and forage; to delineate tribal boundaries; to promote intertribal peace; and to establish a way of iden-
The 1868 Fort Laramie Treaty,
the Interior and the Commissioner of Indian Affairs repeatedly emphasized that the allotment policy was designed to eventually eliminate tribal relations. See, e. g., Secretary of the Interior Ann. Rep., vol. 1, pp. 25-28 (1885); Secretary of the Interior Ann. Rep., vol. 1, p. 4 (1886); Commissioner of Indian Affairs Ann. Rep., vol. 1, pp. IV-X (1887); Secretary of the Interior Ann. Rep., vol. 1, pp. XXIX-XXXII (1888); Commissioner of Indian Affairs Ann. Rep. 3-4 (1889); Commissioner of Indian Affairs Ann. Rep. VI, XXXIX (1890); Commissioner of Indian Affairs Ann. Rep., vol. 1, pp. 3-9, 26 (1891); Commissioner of Indian Affairs Ann. Rep. 5 (1892); Secretary of the Interior Ann. Rep., vol. 1, p. IV (1894). And throughout the congressional debates on the subject of allotment, it was assumed that the “civilization” of the Indian population was to be accomplished, in part, by the dissolution of tribal relations. See, e. g., 11 Cong. Rec. 779 (Sen. Vest), 782 (Sen. Coke), 783-784 (Sen. Saunders), 875 (Sens. Morgan and Hoar), 881 (Sen. Brown), 905 (Sen. Butler), 939 (Sen. Teller), 1003 (Sen. Morgan), 1028 (Sen. Hoar), 1064, 1065 (Sen. Plumb), 1067 (Sen. Williams) (1881).
There is simply no suggestion in the legislative history that Congress intended that the non-Indians who would settle upon alienated allotted lands would be subject to tribal regulatory authority. Indeed, throughout the congressional debates, allotment of Indian land was consistently equated with the dissolution of tribal affairs and jurisdiction. See, e. g.,
The policy of allotment and sale of surplus reservation land was, of course, repudiated in 1934 by the Indian Reorganization Act,
The Court of Appeals also held that the federal trespass statute,
“Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States, or upon any lands of the United States that are reserved for Indian use, for the purpose of hunting, trapping, or fishing thereon, or for the removal of game, peltries, or fish therefrom, shall be fined . . . .”
The statute is thus limited to lands owned by Indians, held in trust by the United States for Indians, or reserved for use
B
Beyond relying on the Crow treaties and
This Court most recently reviewed the principles of inherent sovereignty in United States v. Wheeler, 435 U. S. 313. In that case, noting that Indian tribes are “unique aggregations possessing attributes of sovereignty over both their members and their territory,” id., at 323, the Court upheld the power of a tribe to punish tribal members who violate tribal criminal laws. But the Court was careful to note that, through their original incorporation into the United States as well as through specific treaties and statutes, the Indian tribes have lost many of the attributes of sovereignty. Id.,
present law for the protection of their property.” 435 U. S., at 206. (Emphasis added.)
Before the Court of Appeals decision, several other courts interpreted § 1165 to be confined to lands owned by Indians, or held in trust for their benefit. State v. Baker, 464 F. Supp. 1377 (WD Wis.); United States v. Bouchard, 464 F. Supp. 1316 (WD Wis.); United States v. Pollmann, supra; Donahue v. California Justice Court, 15 Cal. App. 3d 557, 93 Cal. Rptr. 310. Cf. United States v. Sanford, 547 F. 2d 1085, 1089 (CA9) (holding that § 1165 was designed to prevent encroachments on Indian lands, rejecting the argument that § 1165 makes illegal the unauthorized killing of wildlife on an Indian reservation, and noting that “the application of Montana game laws to the activities of non-Indians on Indian reservations does not interfere with tribal self-government on reservations“).
“The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. . . .
These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe‘s dependent status.” Ibid. (Emphasis added.)
Thus, in addition to the power to punish tribal offenders, the Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members. Id., at 322, n. 18. But exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148; Williams v. Lee, 358 U.S. 217, 219-220; United States v. Kagama, 118 U.S. 375, 381-382; see McClanahan v. Arizona State Tax Comm‘n, 411 U.S. 164, 171. Since regulation of hunting and fishing by nonmembers of a tribe on lands no longer owned by the tribe bears no clear relationship to tribal self-government or internal relations,13
The Court recently applied these general principles in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, rejecting a tribal claim of inherent sovereign authority to exercise criminal jurisdiction over non-Indians. Stressing that Indian tribes cannot exercise power inconsistent with their diminished status as sovereigns, the Court quoted Justice Johnson‘s words in his concurrence in Fletcher v. Peck, 6 Cranch 87, 147—the first Indian case to reach this Court—that the Indian tribes have lost any “right of governing every person within their limits except themselves.” 435 U.S., at 209. Though Oliphant only determined inherent tribal authority in criminal matters,14 the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe. To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. Williams v. Lee, supra, at 223; Morris v. Hitchcock, 194 U.S. 384; Buster v. Wright, 135 F. 947, 950 (CA8); see Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152-154. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. See Fisher v. District Court, 424 U.S. 382, 386; Williams v. Lee, supra, at 220; Montana Catholic Missions v. Missoula County, 200 U.S. 118, 128-129; Thomas v. Gay, 169 U.S. 264, 273.15
No such circumstances, however, are involved in this case. Non-Indian hunters and fishermen on non-Indian fee land do not enter any agreements or dealings with the Crow Tribe so as to subject themselves to tribal civil jurisdiction. And nothing in this case suggests that such non-Indian hunting and fishing so threaten the Tribe‘s political or economic security as to justify tribal regulation. The complaint in the District Court did not allege that non-Indian hunting and fishing on fee lands imperil the subsistence or welfare of the Tribe.16 Furthermore, the District Court made express findings, left unaltered by the Court of Appeals, that the Crow Tribe has traditionally accommodated itself to the State‘s “near exclusive” regulation of hunting and fishing on fee lands within the reservation. 457 F. Supp., at 609-610. And the District Court found that Montana‘s statutory and regulatory scheme does not prevent the Crow Tribe from limiting
IV
For the reasons stated in this opinion, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings.
It is so ordered.
JUSTICE STEVENS, concurring.
In its opinion in Choctaw Nation v. Oklahoma, 397 U.S. 620, the Court repeatedly pointed out that ambiguities in the governing treaties should be resolved in favor of the Indian tribes.1 That emphasis on a rule of construction favoring the tribes might arguably be read as having been intended to indicate that the strong presumption against dispositions
In United States v. Holt State Bank, 270 U.S. 49, the Court unanimously and unequivocally had held that the presumption applied to Indian reservations. Although the references to Holt State Bank in the Court‘s opinion in Choctaw Nation can hardly be characterized as enthusiastic, see 397 U.S., at 634, the Choctaw Nation opinion did not purport to abandon or to modify the rule of Holt State Bank. Indeed, Justice Douglas, while joining the opinion of the Court, wrote a separate opinion to explain why he had concluded that the Choctaw Nation record supplied the “exceptional circumstances” required under the Holt State Bank rule.2
Only seven Justices participated in the Choctaw Nation decision.3 JUSTICE WHITE, joined by THE CHIEF JUSTICE and Justice Black in dissent, relied heavily on the Holt State Bank line of authority, see 397 U.S., at 645-648, and, as I noted above, Justice Douglas, in his concurrence, also appears to have accepted the Holt State Bank rule. Because only four Justices, including Justice Douglas, joined the Court‘s opinion, I do not believe it should be read as having made a substantial change in settled law.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting in part.
Only two years ago, this Court reaffirmed that the terms of a treaty between the United States and an Indian tribe must be construed “in the sense in which they would naturally be understood by the Indians.” Washington v. Fishing Vessel Assn., 443 U.S. 658, 676 (1979), quoting from Jones v. Meehan, 175 U.S. 1, 11 (1899). In holding today that the bed of the Big Horn River passed to the State of Montana upon its admission to the Union, the Court disregards this settled rule of statutory construction. Because I believe that the United States intended, and the Crow Nation understood, that the bed of the Big Horn was to belong to the Crow Indians, I dissent from so much of the Court‘s opinion as holds otherwise.1
I
As in any case involving the construction of a treaty, it is necessary at the outset to determine what the parties in-
The Court concedes that the establishment of an Indian reservation can be an “appropriate public purpose” justifying a congressional conveyance of a riverbed. Ante, at 556. It holds, however, that no such public purpose or exigency could have existed here, since at the time of the Fort Laramie Treaties the Crow were a nomadic tribe dependent chiefly upon buffalo, and fishing was not important to their diet or way of life. Ibid. The factual premise upon which the Court bases its conclusion is open to serious question: while the District Court found that fish were not “a central part of the Crow diet,” 457 F. Supp. 599, 602 (Mont. 1978), there was evidence at trial that the Crow ate fish both as a supplement to their buffalo diet and as a substitute for meat in time of scarcity.2
Even if it were true that fishing was not important to the Crow Indians at the time the Fort Laramie Treaties came into being, it does not necessarily follow that there was no public purpose or exigency that could have led Congress to
First: It was the intent of the United States that the Crow Indians be converted from a nomadic, hunting tribe to a settled, agricultural people.3 The Treaty of Fort Laramie of Sept. 17, 1851, see
The intent of the United States to provide alternative means of subsistence for the Plains Indians is demonstrated even more clearly by the subsequent Fort Laramie Treaty of May 7, 1868, between the United States and the Crow Nation.
Second: The establishment of the Crow Reservation was
Finally, like the Cherokee Reservation, see 397 U.S., at 628, the Crow Reservation created by Art. II of the 1868 treaty consisted of “one undivided tract of land described merely by exterior metes and bounds.”
Since essentially the same “public purpose” led to the creation of both reservations, it is highly appropriate that the analysis of Choctaw Nation be applied in this case. As the State of Montana does here, the State of Oklahoma in Choctaw Nation claimed a riverbed that was surrounded on both sides by lands granted to an Indian tribe. This Court in Choctaw Nation found Oklahoma‘s claim to be “at the least strained,” and held that all the land inside the reservation‘s exterior metes and bounds, including the riverbed, “seems clearly encompassed within the grant,” even though no mention had been made of the bed. 397 U.S., at 628. The Court found that the “natural inference” to be drawn from the grants to the Choctaws and Cherokees was that “all the land within their metes and bounds was conveyed, including the banks and bed of rivers.” Id., at 634. See also Donnelly v. United States, 228 U.S. 243, 259 (1913). The
In Choctaw Nation, the State of Oklahoma also laid claim to a portion of the Arkansas River at the border of the Indian reservation. The Court‘s analysis of that claim lends weight to the conclusion that the bed of the Big Horn belongs to the Crow Indians. Interpreting the treaty language setting the boundary of the Cherokee Reservation “down the main channel of the Arkansas river,” the Choctaw Court noted that such language repeatedly has been held to convey title to the midpoint of the channel, relying on Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77 (1922).12 397 U.S., at 631-633. Here, Art. II of the 1868 Treaty of
II
But even assuming, arguendo, that the United States intended to retain title to the bed of the Big Horn River for the benefit of the future State of Montana, it defies common sense to suggest that the Crow Indians would have so understood the terms of the Fort Laramie Treaties.14 In negotiating the 1851 treaty, the United States repeatedly referred to the territories at issue as “your country,” as “your land,” and as “your territory.” See Crow Tribe of Indians v. United States, 151 Ct. Cl. 281, 287-291, 284 F. 2d 361, 364-367 (1960). Further, in Art. 3 of the treaty itself the Government undertook to protect the signatory tribes “against the commission of all depredations by the people of the said United States,” and to compensate the tribes for any damages
The history of the treaty of 1868 is even more telling. By this time, whites were no longer simply passing through the Indian territories on their way to California. Instead, in the words of United States Commissioner Taylor, who addressed the Crow representatives gathered at Fort Laramie in 1867:
“We learn that valuable mines have been discovered in your country which in some instances are taken possession of by the whites. We learn that roads are laid out and travelled through your land, that settlements have been made upon your lands, that your game is being driven away and is fast disappearing. We know also that the white people are rapidly increasing and are taking possession of and occupying all the valuable lands. Under these circumstances we are sent by the great Father and the Great Council in Washington to arrange some plan to relieve you, as far as possible, from the bad consequences of this state of things and to protect you from future difficulties.” Proceedings, at 86. (Emphasis added.)
It is hardly credible that the Crow Indians who heard this declaration would have understood that the United States meant to retain the ownership of the riverbed that ran through the very heart of the land the United States promised to set aside for the Indians and their children “forever.” Indeed, Chief Blackfoot, when addressed by Commissioner Taylor, responded: “The Crows used to own all this Country including all the rivers of the West.” Id., at 88. (Emphasis added.) The conclusion is inescapable that the Crow Indians understood that they retained the ownership of at least those rivers within the metes and bounds of the reservation
In fact, any other conclusion would lead to absurd results. Gold had been discovered in Montana in 1858, and sluicing operations had begun on a stream in western Montana in 1862; hundreds of prospectors were lured there by this news, and some penetrated Crow territory. N. Plummer, Crow Indians 109-110 (1974). As noted, Commissioner Taylor remarked in 1867 that whites were mining in Indian territory, and he specifically indicated that the United States intended to protect the Indians from such intrusions. Yet the result reached by the Court today indicates that Montana or its licensees would have been free to enter upon the Big Horn River for the purpose of removing minerals from its bed or banks; further, in the Court‘s view, they remain free to do so in the future. The Court‘s answer to a similar claim made by the State of Oklahoma in Choctaw Nation is fully applicable here: “We do not believe that [the Indians] would have considered that they could have been precluded from exercising these basic ownership rights to the river bed, and we think it very unlikely that the United States intended otherwise.”16 397 U.S., at 635.
III
In Choctaw Nation, the Court was confronted with a claim almost identical to that made by the State of Montana in this case. There, as here, the argument was made that the silence of the treaties in question with regard to the ownership of the disputed riverbeds was fatal to the Indians’ case. In both cases, the state claimant placed its principal reliance on this Court‘s statement in United States v. Holt State Bank, 270 U.S. 49, 55 (1926), that the conveyance of a riverbed “should not be regarded as intended unless the intention was definitely declared or otherwise made very plain.” The Court flatly rejected this argument in Choctaw Nation, pointing out that “nothing in the Holt State Bank case or in the policy underlying its rule of construction . . . requires that courts blind themselves to the circumstances of the grant in determining the intent of the grantor.”17 397 U.S., at 634.
Since I believe that the Court has so blinded itself today, I respectfully dissent from its holding that the State of Montana has title to the bed of the Big Horn River.18
Notes
“[T]hese 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. Rather, treaties were imposed upon them and they had no choice but to consent. As a consequence, this Court has often held that treaties with the Indians must be interpreted as they would have understood them, see, e. g., Jones v. Meehan, 175 U. S. 1, 11 (1899), and any doubtful expressions in them should be resolved in the Indians’ favor. See Alaska Pacific Fisheries v. United States, 248 U. S. 78, 89 (1918). Indeed, the Treaty of Dancing Rabbit Creek itself provides that ‘in the construction of this Treaty wherever well founded doubt shall arise, it shall be construed most favourably towards the Choctaws.’ 7 Stat. 336.” 397 U. S., at 630-631.
The Court went on to base its decision on this rule of construction:
“[T]he court in [United States v.] Holt State Bank [270 U. S. 49] itself examined the circumstances in detail and concluded ‘the reservation was not intended to effect such a disposal.’ 270 U. S., at 58. We think that the similar conclusion of the Court of Appeals in this case was in error, given the circumstances of the treaty grants and the countervailing rule of construction that well-founded doubt should be resolved in petitioners’ favor.” Id., at 634. While the complaint in this case sought to quiet title only to the bed of the Big Horn River, see ante, at 550, n. 1, I think it plain that if the bed of the river was reserved to the Crow Indians before statehood, so also were the banks up to the high-water mark.
“[W]hile the United States holds a domain as a territory, it may convey away the right to the bed of a navigable river, not retaining that property for transfer to a future State, though as stated in Holt State Bank that purpose is ‘not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain.’ 270 U. S., at 55. Such exceptional circumstances are present here.” 397 U. S., at 639. See 1 App. 39-40 (testimony of Joe Medicine Crow, Tribal Historian). See also id., at 90, 97 (testimony of Henry Old Coyote). Thus, while one historian has stated that “I have never met a reference to eating of fish” by the Crow Indians, R. Lowie, The Crow Indians 72 (1935), it is clear that such references do exist. See 457 F. Supp., at 602. See also n. 7, infra.
Those circumstances arose from the unusual history of the treaties there at issue, a history which formed an important basis of the decision. Id., at 622-628. Immediately after the Revolutionary War, the United States had signed treaties of peace and protection with the Cherokee and Choctaw Tribes, reserving them lands in Georgia and Mississippi. In succeeding years, the United States bought large areas of land from the Indians to make room for white settlers who were encroaching on tribal lands, but the Government signed new treaties guaranteeing that the Indians could live in peace on those lands not ceded. The United States soon betrayed that promise. It proposed that the Tribes be relocated in a newly acquired part of the Arkansas Territory, but the new territory was soon overrun by white settlers, and through a series of new cession agreements the Indians were forced to relocate farther and farther west. Ultimately, most of the Tribes’ members refused to leave their eastern lands, doubting the reliability of the Government‘s promises of the new western land, but Georgia and Mississippi, anxious for the relocation westward so they could assert jurisdiction over the Indian lands, purported to abolish the Tribes and distribute the tribal lands. The Choctaws and Cherokees
According to an account published in the Saint Louis Republican, Oct. 26, 1851, Treaty Commissioner Mitchell stated:“The ears of your Great Father are always open to the complaints of his Red Children. He has heard and is aware that your buffalo and game are driven off and your grass and timber consumed by the opening of roads and the passing of emigrants through your countries. For these losses he desires to compensate you.” Quoted in Crow Tribe of Indians v. United States, 151 Ct. Cl., at 290, 284 F. 2d, at 366.
The same concern was expressed in internal communications of the Government. See, e. g., id., at 287-288, 284 F. 2d, at 365 (letter of W. Medill, Commissioner of Indian Affairs to the Secretary of the Interior).
That those fishing rights would have been valuable to the Crow Indians is suggested by the statement of Chief Blackfoot at the 1867 Fort Laramie Conference:
“There is plenty of buffalo, deer, elk, and antelope in my country. There is plenty of beaver in all the streams. There is plenty of fish too. I never yet heard of any of the Crow Nation dying of starvation. I know that the game is fast decreasing, and whenever it gets scarce, I will tell my Great Father. That will be time enough to go farming.” Proceedings, at 91. (Emphasis added.)
Edwin Thompson Denig, a white fur trader who resided in Crow territory from approximately 1833 until 1856, also remarked:
“Every creek and river teems with beaver, and good fish and fowl can be had at any stream in the proper season.” E. Denig, Of the Crow Nation 21 (1980).
“While neither of these Acts, nor any other to which our attention has been called, explicitly qualifies the Tribe‘s rights over hunting and fishing, it defies reason to suppose that Congress intended that non-members who reside on fee patent lands could hunt and fish thereon only by consent of the Tribe. So far as the record of this case reveals, no efforts to exclude completely non-members of the Crow Tribe from hunting and fishing within the reservation were being made by the Crow Tribe at the time of enactment of the Allotment Acts.” 604 F. 2d 1162, 1168 (footnote omitted).
But nothing in the Allotment Acts supports the view of the Court of Appeals that the Tribe could nevertheless bar hunting and fishing by nonresident fee owners. The policy of the Acts was the eventual assimilation of the Indian population, Organized Village of Kake v. Egan, 369 U. S. 60, 72, and the “gradual extinction of Indian reservations and Indian titles.” Draper v. United States, 164 U. S. 240, 246. The Secretary of That the Choctaws and Cherokees were forced to leave their original homeland entirely, while the Crow were forced to accept repeated diminishments of their territory, does not distinguish Choctaw Nation from this case; indeed, if anything, that distinction suggests that the Crow Indians would have had an even greater expectancy than did the Choctaws and Cherokees that the rivers encompassed by their reservation would continue to belong to them. The “public purpose” behind the creation of these reservations in each case was the same: “to provide room for the increasing numbers of new settlers who were encroaching upon Indian lands during their westward migrations.” Choctaw Nation v. Oklahoma, 397 U. S., at 623. While the Fort Laramie Treaty of 1851 may have been designed primarily to assure safe passage for settlers crossing Indian lands, by 1868 settlers and miners were remaining in Montana. See N. Plummer, Crow Indians 109-114 (1974). Accordingly, whereas the signatory tribes, by Art. 5 of the 1851 treaty, did not “abandon or prejudice any rights or claims they may have to other lands,” see 2 Kappler, at 595, by Art. II of the 1868 treaty the Crow Indians “relinquish[ed] all title, claims, or rights in and to any portion of the territory of the United States, except such as is embraced within the [reservation] limits aforesaid.”In any event, as the Court concedes, ante, at 553, it is beyond dispute that the 1868 treaty set apart a reservation “for the absolute and undisturbed use and occupation” of the Crow Indians. Cf. United States v. Sioux Nation of Indians, 448 U. S., at 374-376 (discussing the similar provisions of the Fort Laramie Treaty of April 29, 1868,
“Indian property owners should have the same protection as other property owners, for example, a private hunting club may keep nonmembers off its game lands or it may issue a permit for a fee. One who comes on such lands without permission may be prosecuted under State law but a non-Indian trespasser on an Indian reservation enjoys immunity.
“Non-Indians are not subject to the jurisdiction of Indian courts and cannot be tried in Indian courts on trespass charges. Further, there are no Federal laws which can be invoked against trespassers.” H. R. Rep. No. 2593, 85th Cong., 2d Sess., at 2. As noted above, neither the “special historical origins” of the Choctaw and Cherokee treaties, nor the provisions of those treaties granting Indian lands in fee simple, serve to distinguish this case from Choctaw Nation. Equally unpersuasive is the suggestion that in Choctaw the Court placed “special emphasis on the Government‘s promise that the reserved lands would never become part of any State.” Ante, at 556, n. 5. Rather than placing “special emphasis” on this promise, the Choctaw Court indicated only that the promise reinforced the conclusion that the Court drew from an analysis of the language of conveyance contained in the treaties. 397 U. S., at 635.Moreover, a critical distinction between this case and Holt State Bank arises from the questionable status of the Red Lake Reservation before Minnesota became a State. The Court in Holt State Bank concluded that in the treaties preceding statehood there had been, with respect to the Red Lake area—unlike other areas—“no formal setting apart of what was not ceded, nor any affirmative declaration of the rights of the Indians therein . . . .” 270 U. S., at 58 (footnote omitted). Thus, Holt State Bank clearly does not control a case, such as this one, in which, prior to
Finally, the Court fails to recognize that it is Holt State Bank, not Choctaw Nation, that stands as “a singular exception” to this Court‘s established line of cases involving claims to submerged lands adjacent to or encompassed by Indian reservations. See Choctaw Nation; Brewer-Elliott; Alaska Pacific Fisheries; Donnelly v. United States, all supra.