OCTOBER TERM, 2000
Syllabus
IDAHO
v. UNITED STATES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 00-189. Argued April 23, 200l-Decided June 18,2001
This suit involves a dispute between the United States and Idaho
over the ownership of submerged lands underlying portions of Lake
Coeur d'Alene and the St. Joe River. The Coeur d'Alene Tribe once
inhabited vast acreage in and about what is now Idaho, and
traditionally used Lake Coeur d'Alene and the St. Joe River for
food, fiber, transportation, recreation, and cultural activities.
In 1873, the Tribe agreed to relinquish for compensation all claims
to its aboriginal lands outside the bounds of a specified
reservation that included part of the river and virtually all of
the lake. The agreement required congressional approval, but
President Grant set the land aside in an 1873 Executive Order,
which set the reservation's northern boundary directly across the
lake. An 1883 Government survey indicated that the reservation
included submerged lands. When Congress neither ratified the
agreement nor compensated the Tribe, the Tribe petitioned the
Government to make a proper treaty and Congress authorized
negotiations. In 1887, the Tribe agreed to cede its rights to all
land except that within the Executive Order reservation, and the
Government promised to compensate the Tribe and agreed to hold the
land forever as Indian land. Still, Congress did not ratify the
agreement. In 1888, the Interior Secretary responded to a Senate
enquiry about the reservation's boundaries, reporting that the
reservation appeared to embrace all but a small fragment of the
lake's navigable waters and that the St. Joe River flowed through
the reservation. Also in 1888, Congress approved a railroad
right-of-way that crossed the reservation's navigable waters, but
directed that the Tribe's consent be obtained and that the Tribe be
compensated. Responding to a growing desire to obtain for the
public an interest in portions of the reservation, Congress
authorized negotiations that produced a new agreement in 1889, in
which the Tribe agreed to cede the reservation's northern portion,
including two-thirds of the lake, for compensation. In 1890, the
Senate passed a bill ratifying the 1887 and 1889 agreements, but
while the bill was pending in the House, Congress passed the Idaho
Statehood Act, admitting Idaho to the Union. In 1891, Congress
ratified the 1887 and 1889 agreements. The United States initiated
this action against Idaho to quiet title in the United States, in
trust for the Tribe, to the sub-
263
merged lands within the current reservation. The Tribe
intervened to assert its interest in those lands, and Idaho
counterclaimed to quiet title in its favor. The District Court
quieted title in the United States as trustee, and the Tribe as
beneficiary, to the bed and banks of the lake and the river within
the reservation. The Ninth Circuit affirmed.
Held: The National Government holds title, in trust for
the Tribe, to lands underlying portions of Lake Coeur d'Alene and
the St. Joe River. Pp. 272-281.
(a) Armed with the strong presumption against defeat of a
State's title to land under navigable waters,
United States
v.
Alaska, 521
U. S. 1, 34, the Court looks to Congress's declarations and
intent when resolving conflicts over submerged lands claimed to be
reserved or conveyed by the United States before statehood,
e. g., id., at 36. The twostep enquiry used in reservation
cases asks whether Congress intended to include submerged lands
within the federal reservation, and, if so, whether Congress
intended to defeat the future State's title to those lands.
Ibid. Where, as here, the Executive Branch initially
reserved the land, the two-step test is satisfied when an Executive
reservation clearly includes submerged lands, and Congress
recognizes that reservation in a way that demonstrates its intent
to defeat state title.
Id., at 41-46, 55-61. Here, Idaho has
conceded that the Executive Branch intended, or interpreted, the
1873 Executive Order reservation to include submerged lands.
Pp.272-274.
(b) Congress recognized the full extent of the Executive Order
reservation and it intended to bar passage to Idaho of title to the
submerged lands at issue. Idaho's concession, in the Ninth Circuit,
that the Executive Order reservation included submerged lands and
that Congress was on notice regarding the scope of the reservation
was prudent in light of the District Court's findings of facts.
That court concluded that the submerged lands and related water
rights had been continuously important to the Tribe throughout the
period prior to congressional action confirming the reservation and
granting Idaho statehood, and that the Federal Government could
only achieve its goals of promoting settlement in the Tribe's
aboriginal area, avoiding hostilities with the Tribe, and
extinguishing aboriginal title by agreeing to a reservation that
included the submerged lands. That is the background of the 1873
Executive Order's inclusion of such lands, which in turn were the
subject of the Senate's 1888 request to the Interior Secretary,
whose response was consistent with the 1883 survey results. The
manner in which Congress then proceeded to deal with the Tribe
shows clearly that preservation of the reservation's land, absent
contrary agreement with the Tribe, was central to Congress's
complementary objectives
264
Syllabus
of dealing with pressures of white settlement and establishing
the reservation by permanent legislation. Congress made it
expressly plain that its object was to obtain tribal interests only
by tribal consent. When it sought to extinguish aboriginal title to
lands outside the 1873 reservation and to reduce the reservation's
size, it did so by authorizing negotiations with the Tribe to cede
title for compensation. It also honored the reservation's
boundaries by requiring that the Tribe be compensated for the
railroad right-of-way. The intent was that anything not
consensually ceded by the Tribe would remain for the Tribe's
benefit, an objective flatly at odds with Idaho's view that
Congress meant to transfer the balance of submerged lands to the
State in what would have amounted to an act of bad faith
accomplished by unspoken operation of law. Idaho's position is also
at odds with later manifestations of congressional understanding
that statehood had not affected the submerged lands. Pp.
275-281.
210 F.3d
1067, affirmed.
SOUTER, J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C.
J., filed a dissenting opinion, in which SCALIA, KENNEDY, and
THOMAS, JJ., joined,
post, p. 281.
Steven W Strack, Deputy Attorney General of Idaho, argued
the cause for petitioner. With him on the briefs were
Alan
G.
Lance, Attorney General, and
Clive J.
Strong, Deputy Attorney General.
Raymond C. Givens argued the cause for respondent Coeur d' Alene
Tribe. With him on the brief were Brian J. Cleary and Joseph D.
Kearney. David C. Frederick argued the cause for the United States.
With him on the brief were Acting Solicitor General Underwood,
Acting Assistant Attorney General Cruden, Deputy Solicitor General
Kneedler, James C. Kilbourne, and Hank Meshorer.*
*Dennis Molenaar, Jerry K. Boyd, Douglas P. Payne, and Nancy
A.
Wolff filed a brief of
amici curiae urging
reversal for Benewah County et al.
A brief of
amici curiae was filed for the State of
California et al. by
Bill Lockyer, Attorney General of
California,
Richard M. Frank, Chief Assistant Attorney
General, and J.
Matthew Rodriquez and
Jan S.
Stevens, Assistant Attorneys General, and by the Attorneys
General for their
265
JUSTICE SOUTER delivered the opinion of the Court.
The United States brought this quiet title action against the
State of Idaho. The question is whether the National Government
holds title, in trust for the Coeur d'Alene Tribe, to lands
underlying portions of Lake Coeur d'Alene and the St. Joe River. We
hold that it does.
I
The Coeur d'Alene Tribe once inhabited more than 3.5 million
acres in what is now northern Idaho and northeastern Washington,
including the area of Lake Coeur d'Alene and the St. Joe River. 95
F. Supp. 2d 1094, 1095-1096, 1099-1100 (Idaho 1998).1 Tribal
members traditionally used the lake and its related waterways for
food, fiber, transportation, recreation, and cultural activities.
Id., at 1099-1102. The Tribe depended on submerged lands for
everything from water potatoes harvested from the lake to fish
weirs and traps anchored in riverbeds and banks.
Id., at
1100.
Under an 1846 treaty with Great Britain, the United States
acquired title to the region of Lake Coeur d'Alene, see Treaty in
Regard to Limits Westward of the Rocky Mountains, 9 Stat. 869,
subject to the aboriginal right of possession held by resident
tribes, see generally
Oneida Indian Nation of N.
Y.
v.
County of Oneida, 414 U. S. 661, 667
(1974); F. Cohen, Handbook of Federal Indian Law 486493 (1982 ed.).
In 1867, in the face of immigration into the Tribe's aboriginal
territory, 95 F. Supp. 2d, at 1102, President Johnson issued an
Executive Order setting aside a reservation of comparatively modest
size, although the Tribe was
respective States as follows:
Bill Pryor of Alabama,
Bruce M. Botelho of Alaska,
Mark Pryor of Arkansas,
Wayne Stenehjem of North Dakota,
Hardy Myers of
Oregon,
Mark W Barnett of South Dakota,
Mark L.
Shurtleff of Utah,
William H. Sorrell of Vermont,
Christine O.
Gregoire of Washington, and
Gay
Woodhouse of Wyoming.
1 Petitioner, the State of Idaho, did not challenge the District
Court's factual findings on appeal. See
210 F.3d
1067, 1070 (CA9 2000).
266
apparently unaware of this action until at least 1871, when it
petitioned the Government to set aside a reservation, id., at
1102-1103. The Tribe found the 1867 boundaries unsatisfactory, due
in part to their failure to make adequate provision for fishing and
other uses of important waterways. When the Tribe petitioned the
Commissioner of Indian Affairs a second time, it insisted on a
reservation that included key river valleys because "we are not as
yet quite up to living on farming" and "for a while yet we need
have some hunting and fishing." App. 27.
Following further negotiations, the Tribe in 1873 agreed to
relinquish (for compensation) all claims to its aboriginal lands
outside the bounds of a more substantial reservation that
negotiators for the United States agreed to "set apart and secure"
"for the exclusive use of the Coeur d'Alene Indians, and to protect
... from settlement or occupancy by other persons."
Id., at
33. The reservation boundaries described in the agreement covered
part of the St. Joe River (then called the St. Joseph), and all of
Lake Coeur d'Alene except a sliver cut off by the northern
boundary.
Id., at 33-34; 95 F. Supp. 2d, at 1095-1096.
Although by its own terms the agreement was not binding without
congressional approval, App. 36-37, later in 1873 President Grant
issued an Executive Order directing that the reservation specified
in the agreement be "withdrawn from sale and set apart as a
reservation for the Cur d'Alene Indians." Exec. Order of Nov. 8,
1873, reprinted in 1 C. Kapler, Indian Affairs: Laws and Treaties
837 (1904). The 1873 Executive Order set the northern boundary of
the reservation directly across Lake Coeur d'Alene, which, the
District Court found, was contrary "to the usual practice of
meandering a survey line along the mean high water mark." 95 F.
Supp. 2d, at 1108; App. 14,20 (expert trial testimony).2
2 Although the State did not challenge the District Court's
factual findings below, it claims in its reply brief to us that it
was "commonplace" for reservation boundaries to cross navigable
waters. Reply Brief for
267
An 1883 Government survey fixed the reservation's total area at
598,499.85 acres, which the District Court found necessarily
"included submerged lands within the reservation boundaries." 95 F.
Supp. 2d, at 1108.
As of 1885, Congress had neither ratified the 1873 agreement nor
compensated the Tribe. This inaction prompted the Tribe to petition
the Government again, to "make with us a proper treaty of peace and
friendship ... by which your petitioners may be properly and fully
compensated for such portion of their lands not now reserved to
them; [and] that their present reserve may be confirmed to them."
App.350-351. In response, Congress authorized new negotiations to
obtain the Tribe's agreement to cede land outside the borders of
the 1873 reservation. Act of May 15, 1886, ch. 333, 24 Stat. 44. In
1887, the Tribe agreed to cede
"all right, title, and claim which they now have, or ever had,
to all lands in said Territories [Washington, Idaho, and Montana]
and elsewhere, except the portion of land within the boundaries of
their present reservation in the Territory of Idaho, known as the
Coeur d'Alene Reservation." App. 378.
The Government, in return, promised to compensate the Tribe, and
agreed that
"[i]n consideration of the foregoing cession and agreements ...
the Coeur d'Alene Reservation shall be held forever as Indian land
and as homes for the Coeur d'Alene Indians ... and no part of said
reservation shall ever be sold, occupied, open to white
settlement,
Petitioner 9. Ultimately, this factual dispute is of little
consequence; the District Court found that the boundary and acreage
calculations showed the understanding of the Government and the
Tribe that submerged lands were included, 95 F. Supp. 2d, at 1108,
and the State conceded on appeal that "[cJertainly, ... by 1888,
the executive branch had construed the 1873 Coeur d'Alene
Reservation as including submerged lands." Opening Brief for
Appellant in No. 98-35831 (CA9), p. 17.
268
or otherwise disposed of without the consent of the Indians
residing on said reservation." Id., at 379.
As before, the agreement was not binding on either party until
ratified by Congress.
Id., at 382.
In January 1888, not having as yet ratified any agreement with
the Tribe, the Senate expressed uncertainty about the extent of the
Tribe's reservation and adopted a resolution directing the
Secretary of the Interior to "inform the Senate as to the extent of
the present area and boundaries of the Coeur d'Alene Indian
Reservation in the Territory of Idaho," and specifically, "whether
such area includes any portion, and if so, about how much of the
navigable waters of Lake Coeur d'Alene, and of Coeur d'Alene and
St. Joseph Rivers." S. Misc. Doc. No. 36, 50th Cong., 1st Sess., 1
(1888). The Secretary responded in February 1888 with a report of
the Commissioner of Indian Affairs, stating that "the reservation
appears to embrace all the navigable waters of Lake Coeur d'Alene,
except a very small fragment cut off by the north boundary of the
reservation," and that "[t]he St. Joseph River also flows through
the reservation." S. Exec. Doc. No. 76, 50th Cong., 1st Sess., 3
(1888). Based largely, it appears, on this report, Idaho conceded
in the Court of Appeals (as it does here) that the 1873 Executive
Order reservation included submerged lands. See Opening Brief for
Appellant in No. 98-35831 (CA9), p. 17 ("Certainly, the State
concedes that by 1888, the executive branch had construed the 1873
Coeur d'Alene Reservation as including submerged lands"); Brief for
Petitioner 17.
In May 1888, shortly after receiving the Secretary's report,
Congress passed an Act granting a right-of-way to the Washington
and Idaho Railroad Company "for the extension of its railroad
through the lands in Idaho Territory set apart for the use of the
Coeur d'Alene Indians by executive order, commonly known as the
Coeur d'Alene Indian Reservation." Act of May 30, 1888, ch. 336, §
1, 25 Stat. 160. Notably, the Act directed that the Tribe's consent
be obtained and that
269
the Tribe alone (no one else being mentioned) be compensated for
the right-of-way, a part of which crossed over navigable waters
within the reservation.
Id., § 3, 25 Stat. 161; see also
Reply Brief for Petitioner 16.
Congress was not prepared to ratify the 1887 agreement, however,
owing to a growing desire to obtain for the public not only any
interest of the Tribe in land outside the 1873 reservation, but
certain portions of the reservation itself. The House Committee on
Indian Affairs later recalled that the 1887 agreement was not
promptly ratified for
"sundry reasons, among which was a desire on the part of the
United States to acquire an additional area, to wit, a certain
valuable portion of the reservation specially dedicated to the
exclusive use of said Indians under an Executive order of 1873, and
which portions of said lands, situate[d] on the northern end of
said reservation, is valuable and necessary to the citizens of the
United States for sundry reasons. It contains numerous, extensive,
and valuable mineral ledges. It contains large bodies of valuable
timber .... It contains a magnificent sheet of water, the Coeur
d'Alene Lake .... " H. R. Rep. No. 1109, 51st Cong., 1st Sess., 4
(1890).
But Congress did not simply alter the 1873 boundaries
unilaterally. Instead, the Tribe was understood to be entitled
beneficially to the reservation as then defined, and the 1889
Indian Appropriations Act included a provision directing the
Secretary of the Interior "to negotiate with the Coeur d'Alene
tribe of Indians," and, specifically, to negotiate "for the
purchase and release by said tribe of such portions of its
reservation not agricultural and valuable chiefly for minerals and
timber as such tribe shall consent to sell." Act of Mar. 2, 1889,
ch. 412, § 4, 25 Stat. 1002. Later that year, the Tribe and
Government negotiators reached a new agreement under which the
Tribe would cede
270
the northern portion of the reservation, including approximately
two-thirds of Lake Coeur d'Alene, in exchange for $500,000. App.
198; see also 95 F. Supp. 2d, at 1113. The new boundary line, like
the old one, ran across the lake, and General Simpson, a negotiator
for the United States, reassured the Tribe that "you still have the
St. Joseph River and the lower part of the lake." App. 183. And,
again, the agreement was not to be binding on either party until
both it and the 1887 agreement were ratified by Congress.
Id., at 199.
On June 7, 1890, the Senate passed a bill ratifying both the
1887 and 1889 agreements. S. 2828, 51st Cong., 1st Sess. (1890); 21
Congo Rec. 5769-5770 (1890). On June 10, the Senate bill was
referred to the House, where a parallel bill had already been
reported by the House Committee on Indian Affairs. H. R. Rep. No.
1109, 51st Cong., 1st Sess. (1890); see 21 Congo Rec. 2775
(1890).
On July 3, 1890, while the Senate bill was under consideration
by the House Committee on Indian Affairs, Congress passed the Idaho
Statehood Act, admitting Idaho into the Union "on an equal footing
with the original States," Act of July 3, 1890, ch. 656, 26 Stat.
215. The Statehood Act "accepted, ratified, and confirmed" the
Idaho Constitution, ibid., which "forever disclaim[ed] all right
and title to ... all lands lying within [Idaho] owned or held by
any Indians or Indian tribes" and provided that "until the title
thereto shall have been extinguished by the United States, the same
shall be subject to the disposition of the United States, and said
Indian lands shall remain under the absolute jurisdiction and
control of the congress of the United States," Idaho Const., Art.
XXI, § 19 (1890).
A little over a month later, on August 19, 1890, the House
Committee on Indian Affairs reported that the Senate bill ratifying
the 1887 and 1889 agreements was identical to the House bill that
it had already recommended. H. R. Rep. No. 2988, 51st Cong., 1st
Sess. (1890). On March 3, 1891, Congress "accepted, ratified, and
confirmed" both the 1887
271
and 1889 agreements with the Tribe. Act of Mar. 3, 1891, ch.
543, §§ 19, 20, 26 Stat. 1027, 1029. The Act also directed the
Secretary of the Interior to convey to one Frederick Post a
"portion of [the] reservation," id., at 1031, that the Tribe had
purported to sell to Post in 1871.3 The property, located on the
Spokane River and known as Post Falls, was described as "all three
of the river channels and islands, with enough land on the north
and south shores for water-power and improvements."
Ibid.
In 1894, Congress approved yet another agreement with the Tribe,
this time for the cession of a lakeside townsite called Harrison,
within the boundary of the ratified reservation. Act of Aug. 15,
1894, ch. 290, 28 Stat. 322, agreement reprinted in App. 389; see
also 95 F. Supp. 2d, at 1117. The agreement with the Tribe
described the cession as covering "all the land" embraced within a
tract that included a portion of the lake. App. 392. Like the
earlier railroad cession, this one was subject to compensation to
the Tribe and no one else.
The United States, acting in its own capacity and as trustee for
the Tribe, initiated this action against the State of Idaho to
quiet title (in the United States, to be held for the use and
benefit of the Tribe) to the submerged lands within the exterior
boundaries of the Tribe's current reservation, which encompass the
lower third of Lake Coeur d'Alene and part of the St. Joe River.4
The Tribe inter-
3 See generally,
e. g.,
Oneida Indian Nation of N.
Y. v.
County of Oneida, 414 U. S. 661, 667-668
(1974) (under common law and various Nonintercourse Acts, Indian
title can only be extinguished with federal consent).
4 Because this action was brought by the United States, it does
not implicate the Eleventh Amendment bar raised when the Tribe
pressed its own claim to the submerged lands in
Idaho v.
Coeur d'Alene Tribe of Idaho, 521 U. S. 261 (1997). See
Arizona v.
California, 460 U. S. 605, 614
(1983).
The United States's complaint was apparently motivated by
Idaho's issuance of permits for the construction of "docks, piers,
floats, pilings, breakwaters, boat ramps and other such aids to
navigation within the
272
vened to assert its interest in the submerged lands, and Idaho
counterclaimed, seeking to quiet title in its own favor.
Ibid. Following a 9-day trial, the District Court quieted
title "in favor of the United States, as trustee, and the Coeur d'
Alene Tribe of Idaho, as the beneficially interested party of the
trusteeship, to the bed and banks of the Coeur d'Alene Lake and the
St. Joe River lying within the current boundaries of the Coeur
d'Alene Indian Reservation." 95 F. Supp. 2d, at 1117. The Court of
Appeals for the Ninth Circuit affirmed.
210 F.3d
1067 (2000). We granted certiorari, 531 U. S. 1050 (2000), and
we now affirm.
II
Due to the public importance of navigable waterways, ownership
of the land underlying such waters is "strongly identified with the
sovereign power of government."
M on
tana v.
United
States, 450 U. S.
544, 552 (1981). See generally
Idaho v.
Coeur d'Alene
Tribe of Idaho, 521 U. S. 261, 284
(1997);
United States v.
Alaska, 521 U. S. 1, 5 (1997). In
order to allow new States to enter the Union on an "equal footing"
with the original States with regard to this important interest,
"the United States early adopted and constantly has adhered to the
policy of regarding lands under navigable waters in acquired
territory ... as held for the ultimate benefit of future States."
United States v.
Holt State Bank, 270 U. S. 49, 55 (1926);
see also
Shively v.
Bowlby, 152 U. S. 1, 48-50 (1894).
Therefore, in contrast to the law governing surface land held by
the United States, see
Scott v.
Lattig, 227 U. S. 229, 244
(1913), the default rule is that title to land under navigable
waters passes from the United States to a newly admitted State.
Shively, supra, at 26-50. Specifically, although Congress
has the power before statehood to convey land beneath navigable
waters, and to reserve such land for the United States, "'[a]
court
southern one-third of Coeur d'Alene Lake." Complaint in
CIV94-0328N-EJL (D. Idaho), pp. 6-7.
273
deciding a question of title to the bed of navigable water must
... begin with a strong presumption' against defeat of a State's
title."
Alaska, supra, at 34 (quoting
Montana, supra,
at 552).
Armed with that presumption, we have looked to Congress's
declarations and intent when we have had to resolve conflicts over
submerged lands claimed to have been reserved or conveyed by the
United States before statehood.
Alaska, supra, at 36
("Whether title to submerged lands rests with a State, of course,
is ultimately a matter of federal intent");
Utah Div. of State
Lands v.
United States, 482 U. S. 193,201-202
(1987);
Montana, supra, at 550-557;
Holt State Bank,
supra, at 57-59;
Alaska Pacific Fisheries v.
United
States, 248 U. S.
78, 87-90 (1918);
Shively, supra, at 48-51.
The issue of congressional intent is refined somewhat when
submerged lands are located within a tract that the National
Government has dealt with in some special way before statehood, as
by reserving lands for a particular national purpose such as a
wildlife refuge or, as here, an Indian reservation. Because
reserving submerged lands does not necessarily imply the intent "to
defeat a future State's title to the land,"
Utah Div. of State
Lands, supra, at 202, we undertake a two-step enquiry in
reservation cases. We ask whether Congress intended to include land
under navigable waters within the federal reservation and, if so,
whether Congress intended to defeat the future State's title to the
submerged lands.
Alaska, supra, at 36;
Utah, supra,
at 202.
Our most recent case of this sort,
United States v.
Alaska, supra, addressed two parcels of land initially
reserved not by Congress but, as here, by the Executive Branch. We
explained that the two-step test of congressional intent is
satisfied when an Executive reservation clearly includes submerged
lands, and Congress recognizes the reservation in a way that
demonstrates an intent to defeat state title.
Id., at 41-46,
55-61. We considered whether Congress was
274
on notice that the Executive reservation included submerged
lands, see id., at 42, 45, 56, and whether the purpose of the
reservation would have been compromised if the submerged lands had
passed to the State, id., at 42-43, 45-46, 58. Where the purpose
would have been undermined, we explained, "[i]t is simply not
plausible that the United States sought to reserve only the upland
portions of the area," id., at 39-40.
Here, Idaho has conceded that "the executive branch had
intended, or by 1888 had interpreted, the 1873 Executive Order
Reservation to include submerged lands." Brief for Petitioner 17.
The concession is a sound one. A right to control the lakebed and
adjacent waters was traditionally important to the Tribe, which
emphasized in its petition to the Government that it continued to
depend on fishing. Cf.
Montana, supra, at 556 (finding no
intent to include submerged lands within a reservation where the
tribe did not depend on fishing or use of navigable water). The
District Court found that the acreage determination of the reserved
area in 1883 necessarily included the area of the lakebed within
the unusual boundary line crossing the lake from east to west. Cf.
Alaska, supra, at 39 (concluding that a boundary following
the ocean side of offshore islands necessarily embraced submerged
lands shoreward of the islands). In light of those findings and
Idaho's concession, the parties here concentrate on the second
question, of Congress's intent to defeat Idaho's title to the
submerged lands.5
5 The District Court and Court of Appeals accepted the United
States's position that it had reserved the submerged lands, and
that Congress intended that reservation to defeat Idaho's title.
They did not reach the Tribe's alternative theory that,
notwithstanding the scope of any reservation, the Tribe retained
aboriginal title to the submerged lands, which cannot be
extinguished without explicit action by Congress, see
Oneida
Indian Nation, 414 U. S., at 667-668; cf.
United States
v.
Winans, 198
U. S. 371, 381 (1905) (explaining that a treaty ceding some
aboriginal lands to the United States and setting apart other lands
as a reservation "was not a grant of rights to the Indians, but a
grant of rights from
275
In the Court of Appeals, Idaho also conceded one point covered
in this second part of the enquiry. It agreed that after the
Secretary of the Interior's 1888 report that the reservation
embraced nearly "all the navigable water of Lake Coeur d'Alene," S.
Exec. Doc. No. 76, 50th Cong., 1st Sess., at 3, Congress was on
notice that the Executive Order reservation included submerged
lands. Opening Brief for Appellant in No. 98-35831 (CA9), at 11
("[Congress was] informed that the Coeur d'Alene Reservation
embraced submerged lands"). Again, Idaho's concession was prudent
in light of the District Court's findings of facts. 95 F. Supp. 2d,
at 1114 ("The evidence shows that prior to Idaho's statehood,
Congress was on notice that the Executive Order of 1873 reserved
for the benefit of the Tribe the submerged lands within the
boundaries of the Coeur d'Alene Reservation").
The District Court did not merely impute to Congress knowledge
of the land survey, but also explained how the submerged lands and
related water rights had been continuously important to the Tribe
throughout the period prior to congressional action confirming the
reservation and granting Idaho statehood. And the District Court
made the following findings about the period preceding negotiations
authorized by Congress:
"The facts demonstrate that an influx of non- Indians into the
Tribe's aboriginal territory prompted the Federal Government to
negotiate with the Coeur d' Alenes in an attempt to confine the
Tribe to a reservation and to obtain the Tribe's release of its
aboriginal lands for settlement. Before it would agree to these
conditions, however, the Tribe demanded an enlarged reservation
that included the Lake and rivers. Thus, the Federal Government
could only achieve its goals of promoting
them-a reservation of those not granted"). The Tribe does not
press its unextinguished-aboriginal-title argument here. See Brief
for Respondent Coeur d'Alene Tribe 25, n. 12.
276
settlement, avoiding hostilities and extinguishing aboriginal
title by agreeing to a reservation that included the submerged
lands." Id., at 1107.6
This, in summary, was the background for the 1873 Executive
Order's inclusion of submerged lands, which in turn were the
subject of the 1888 request by the Senate to the Secretary of the
Interior for advice about the Tribe's rights over the "navigable
waters of Lake Coeur d'Alene and the Coeur d'Alene and St. Joseph
Rivers," S. Misc. Doc. No. 36, 50th Cong., 1st Sess., at 1. As
noted, the Secretary answered in the affirmative, S. Exec. Doc. No.
76, 50th Cong., 1st Sess., at 3, consistently with the survey
indicating that the submerged lands were within the reservation.
Thus, the District Court remarked that it would be difficult to
imagine circumstances that could have made it more plain to
Congress that submerged lands were within the reservation. 95 F.
Supp. 2d, at 1114.
The manner in which Congress then proceeded to deal with the
Tribe shows clearly that preservation of the land within the
reservation, absent contrary agreement with the Tribe, was central
to Congress's complementary objectives of dealing with pressures of
white settlement and establishing the reservation by permanent
legislation. The Tribe had shown its readiness to fight to preserve
its land rights when in 1858 it defeated a force of the United
States military, which it misunderstood as intending to take
aboriginal lands. See H. R. Rep. No. 1109, 51st Cong., 1st Sess.,
at 2-3. The concern with hostility arose again in 1873 before the
reservation boundaries were established, when a surveyor on the
6 See also Commissioner of Indian Affairs, Annual Report (1873),
reprinted in App. 45 (explaining that Tribe was dissatisfied with a
previous reservation and that the 1873 agreement was required
"[f]or the purpose of extinguishing [the Tribe's] claim to all the
tract of country claimed by them"). See generally
Montana v.
United States, 450 U. S. 544, 556 (1981)
(creation of Indian reservation is appropriate public purpose
justifying defeat of state title to submerged lands).
277
scene had warned the Surveyor General that "[s]hould the
fisheries be excluded there will in my opinion be trouble with
these Indians." App. 30.
Hence, although the goal of extinguishing aboriginal title could
have been achieved by congressional fiat, see
Tee-HitTon
Indians v.
United States, 348 U. S. 272, 279-282
(1955), and Congress was free to define the reservation boundaries
however it saw fit, the goal of avoiding hostility seemingly could
not have been attained without the agreement of the Tribe. Congress
in any event made it expressly plain that its object was to obtain
tribal interests only by tribal consent. When in 1886 Congress took
steps toward extinguishing aboriginal title to all lands outside
the 1873 boundaries, it did so by authorizing negotiation of
agreements ceding title for compensation. Soon after that, when
Congress decided to seek a reduction in the size of the 1873
reservation itself, the Secretary of the Interior advised the
Senate against fiddling with the scope of the reservation without
the Tribe's agreement. The report of February 1888 likewise urged
that any move to diminish the reservation "should be done, if done
at all, with the full and free consent of the Indians, and they
should, of course, receive proper compensation for any land so
taken." App. 129. Accordingly, after receiving the Secretary's
report, Congress undertook in the 1889 Act to authorize negotiation
with the Tribe for the consensual, compensated cession of such
portions of the Tribe's reservation "as such tribe shall consent to
sell," Act of Mar. 2, 1889, ch. 412, § 4, 25 Stat. 1002. In the
meantime it honored the reservation's recently clarified boundaries
by requiring that the Tribe be compensated for the Washington and
Idaho Railroad Company right-of-way, Act of May 30, 1888, ch. 336,
§ 1, 25 Stat. 160.
The facts, including the provisions of Acts of Congress in 1886,
1888, and 1889, thus demonstrate that Congress understood its
objective as turning on the Tribe's agreement to the abrogation of
any land claim it might have and to any
278
reduction of the 1873 reservation's boundaries. The explicit
statutory provisions requiring agreement of the Tribe were
unchanged right through to the point of Congress's final 1891
ratification of the reservation, in an Act that of course contained
no cession by the Tribe of submerged lands within the reservation's
outer boundaries. Nor, it should be added, is there any hint in the
evidence that delay in final passage of the ratifying Act was meant
to pull a fast one by allowing the reservation's submerged lands to
pass to Idaho under a legal presumption, by virtue of the Statehood
Act approved eight months before Congress took final action on the
reservation. There is no evidence that the Act confirming the
reservation was delayed for any reason but comparison of the
respective House and Senate bills, to assure that they were
identical prior to the House's passage of the Senate version.7
The record thus answers the State's argument that, because the
1889 Act indicates that Congress sought to obtain portions of the
reservation "valuable chiefly for minerals and timber," Congress
was not necessarily thinking one thing or another about the balance
of the reservation land. Reply Brief for Petitioner 6-7; see also
Tr. of Oral Arg. 12-13. The argument simply ignores the evidence
that Congress did know that the reservation included submerged
lands, and that it authorized the reservation's modification solely
by agreement. The intent, in other words, was that anything not
consensually ceded by the Tribe would remain for the Tribe's
benefit, an objective flatly at odds with Idaho's view that
Congress meant to transfer the balance
7 Given the preceding discussion of, among other things, the
earlier congressional Acts, it should go without saying that this
reference to the fact that the Senate passed the ratification Act
before statehood is not intended to suggest that the Senate action
constituted the enactment of an expression of intent on behalf of
the whole Congress, let alone that it was sufficient of itself to
defeat Idaho's title to the submerged lands. But cf.
post,
at 285 (REHNQUIST, C. J., dissenting).
279
of submerged 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 current position is
underscored by the fact that it made a contrary argument in the
Court of Appeals, where it emphasized the District Court's finding
that the 1889 Act was an authorization "to negotiate with the Tribe
for a release of the submerged lands," and recognized that
"[Congress was] informed that the Coeur d'Alene Reservation
embraced submerged lands." Opening Brief for Appellant in No.
98
35831 (CA9), at 11, 31.
Idaho's position is at odds not only with evidence of
congressional intent before statehood, but also with later
congressional understanding that statehood had not affected the
submerged lands in question. Eight months after passing the
Statehood Act, Congress ratified the 1887 and 1889 agreements in
their entireties (including language in the 1887 agreement that
"the Coeur d'Alene Reservation shall be held forever as Indian
land"), with no signal that some of the land over which the parties
to those agreements had negotiated had passed in the interim to
Idaho. The ratification Act suggested in a further way Congress's
understanding that the 1873 reservation's submerged lands had not
passed to the State, by including a provision confirming the
Tribe's sale of river channels to Frederick Post. Confirmation
would have been beyond Congress's power if title to the submerged
riverbed had already passed to the State.8 Finally, the Act of
Congress ceding the portion of
8 The State says that the conveyance to Post included land that
was outside the boundary of the 1873 reservation. Reply Brief for
Petitioner 18. That merely suggests the possibility that Congress
intended to defeat the State's title to even more territory than
the United States is claiming here.
The State also hypothesizes that the relevant portions of the
Spokane River may not have been considered navigable at the time of
the conveyance, ibid., in which case the equal footing doctrine
would not apply and the conveyance would say nothing about
Congress's intent with regard to
280
reservation land for the townsite of Harrison confirms
Congress's understanding that the lakebed within the reservation's
boundaries was part of the reservation. Only three years after the
Act confirming the reservation, the townsite cession was treated
just as the right-of-way for the railroad had been treated before
statehood. The Tribe (and no one else) was compensated for a
cession whose bounds suggested inclusion of submerged lands; the
boundary lines did not stop at the water's edge and meander the
entire shore, but continued into the area of the lake to encompass
submerged territory that the National Government simply could not
have conveyed if it had passed to Idaho at the time of
statehood.9
In sum, Congress undertook to negotiate with the Coeur d'Alene
Tribe for reduction in the territory of an Executive Order
reservation that Idaho concedes included the submerged lands at
issue here. Congress was aware that the submerged lands were
included and clearly intended to redefine the area of the
reservation that covered them only by consensual transfer, in
exchange for the guarantee that the Tribe would retain the
remainder. There is no indica-
submerged lands underlying navigable waters. We need not resolve
this factual question, which was not addressed below. Suffice it to
say that Congress's actions in 1891 were consistent with an
understanding that the State did not have title to the riverbeds
conveyed to Post, which, along with the later Harrison cession of
part of the concededly navigable lake, is consistent with an
understanding that no submerged lands within the reservation's
stated boundaries had passed to Idaho.
9 Here, we agree with the dissent,
post, at 284, that
Congress cannot, after statehood, reserve or convey submerged lands
that "ha[ve] already been bestowed" upon a State. See
Shively v.
Bowlby, 152 U. S. 1, 26-28 (1894)
(citing
Lessee of Pollard v.
Hagan, 3 How. 212
(1845)). Our point in mentioning Congress's actions after statehood
is merely to confirm what Congress's prestatehood actions already
make clear: that the lands at issue here were not bestowed upon
Idaho at statehood, because Congress intended that they remain
tribal reservation lands barring agreement to the contrary.
281
tion that Congress ever modified its objective of negotiated
consensual transfer, which would have been defeated if Congress had
let parts of the reservation pass to the State before the
agreements with the Tribe were final. Any imputation to Congress
either of bad faith or of secrecy in dropping its express objective
of consensual dealing with the Tribe is at odds with the evidence.
We therefore think the negotiating history, not to mention
subsequent events, "ma[k]e [it] very plain,"
Holt State
Bank, 270 U. S., at 55, that Congress recognized the full
extent of the Executive Order reservation lying within the stated
boundaries it ultimately confirmed, and intended to bar passage to
Idaho of title to the submerged lands at issue here.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA, JUSTICE
KENNEDY, and JUSTICE THOMAS join, dissenting.
The Court makes out a plausible case for the proposition that,
on the day Idaho was admitted to the Union, the Executive Branch of
the Federal Government had intended to retain in trust for the
Coeur d'Alene Indian Tribe the submerged lands under a portion of
Lake Coeur d'Alene. But the existence of such intent on the part of
the Executive Branch is simply not enough to defeat an incoming
State's title to submerged lands within its borders. Decisions of
this Court going back more than 150 years establish this
proposition beyond a shadow of a doubt.
"[T]he ownership of land under navigable waters," it bears
repeating, "is an incident of sovereignty."
Montana v.
United States, 450 U. S. 544, 551
(1981). Recognizing this important relationship, this Court
"announced the principle that the United States held the lands
under navigable waters in the Territories 'in trust' for the future
States that would
282
be created."
Utah Div. of State Lands v.
United
States, 482 U. S. 193, 196 (1987) (quoting
Lessee of
Pollard v.
Hagan, 3 How. 212, 230 (1845)). That duty may
not lightly be disregarded, and, as the Court rightly observes, our
inquiry "begin[s] with a strong presumption against defeat of a
State's title."
Ante, at 273 (internal quotation marks and
citations omitted). Accordingly, "disposals [of submerged lands] by
the United States during the territorial period ... should not be
regarded as intended unless the intention was definitely declared
or otherwise made very plain."
United States v.
Holt
State Bank, 270 U.
S. 49, 55 (1926); see also
Montana, supra, at 552 ("[The
Court] must not infer such a conveyance unless the intention was
definitely declared or otherwise made very plain, or was rendered
in clear and especial words, or unless the claim confirmed in terms
embraces the land under the waters of the stream" (internal
quotation marks and citations omitted)).
The Court makes three critical mistakes in its application of
the equal footing doctrine here-errors that significantly dilute
the doctrine. First and foremost, the Court misconceives the scope
of historical events directly relevant to the question whether
Congress
had, by July 3, 1890, acted to withhold title to
submerged lands from the entering State of Idaho. At the very
moment that Idaho entered the Union "on an equal footing with the
original States," Act of July 3, 1890, ch. 656, 26 Stat. 215,
Congress and the President vested in Idaho the accoutrements of
sovereignty, including title to submerged lands. It is therefore
improper for the Court to look to events after Idaho's admission in
order to discern whether Congress had months or years previously
intended to divest the entering State of its submerged lands.
Indeed, I am aware of no case applying the equal footing doctrine
to determine title to submerged lands in which this Court has
looked beyond the moment of statehood for evidence of federal
intent.
283
Our decision in
United States v.
Alaska, 521 U. S. 1 (1997), is
particularly illustrative of the timeframe relevant to our inquiry.
That case concerned in part Alaska's assumption of title to
submerged lands within the National Petroleum Reserve-Alaska
(Reserve) and the Arctic National Wildlife Refuge (Refuge). See
id., at 4. In stark contrast to to day's decision, the Court in its
lengthy discussion in
Alaska resisted entirely the
temptation to delve into the treatment of the lands in question in
the months and years following Alaska's admission to the Union in
1959. And the invitation to do so hardly could have been more
obvious with respect to the Refuge, which had been "set apart" as a
wildlife reservation but had not yet been formally approved by the
Secretary of the Interior.
Id., at 46-47. "This
application," the Court observed, "was still pending in July 1958,
when Congress passed the Alaska Statehood Act, and in January 1959,
when Alaska was formally admitted to the Union."
Id., at 46.
Although the Court noted that the application was approved several
months after Alaska's admission, the Court considered the pending
application as relevant only insofar as it put Congress on notice
of the action. See
id., at 56. The
Alaska Court did
not givecontrary to the Court's reasoning in the present case-any
import to the fact that the application ultimately was approved.
Indeed,
Alaska's focus on the instant of statehood as the
crucial moment of inquiry could hardly be more clear. See,
e. g., id., at 42 ("The conclusion that Congress was aware
when it passed the Alaska Statehood Act that the Reserve
encompassed submerged lands is reinforced by other legislation,
enacted just before Alaska's admission to the Union,
granting certain offshore lands to the Territory of Alaska");
id., at 55 ("We now consider whether,
prior to Alaska's
admission to the Union, the United States defeated the future
State's title to the submerged lands included within the proposed
Range" (emphases added)). Other cases indicate
284
a similar emphasis. See, e. g., Utah Div. of State Lands, supra,
at 195; Montana, 450 U. S., at 551.1
Accordingly, insofar as the submerged lands at issue here are
concerned, it is of no moment that Congress ultimately ratified the
1887 and 1889 negotiations. See
ante, at 279. Well before it
took such action, Congress had given its assent to Idaho's entry
into the Union as a sovereign State and thereby joined with the
Executive to extinguish the Federal Government's right to withhold
title to submerged lands. It follows that Congress' acceptance of
the fact that "the Coeur d'Alene Reservation shall be held forever
as Indian land," ibid., does nothing to explain whether submerged
lands were within that reservation at the time of-much less eight
months after-Idaho's admission. By the same token, our inquiry is
not illuminated by Congress' attempt in 1891 to affirm Chief
Seltice's purported conveyance of certain lands to Frederick Post,
see
ante, at 271, 279, or by Congress' approval in 1894 of
the so-called "Harrison cession," see
ante, at 279-280.
Simply put, the consequences of admission are instantaneous, and it
ignores the uniquely sovereign character of that event for the
Court to suggest that subsequent events somehow can diminish what
has already been bestowed.
Second, all agree (at least in theory) that the question before
us is "whether
Congress intended to include land under
navigable waters within the federal reservation and, if so, whether
Congress intended to defeat the future State's title to the
submerged lands,"
ante, at 273 (emphasis added). But the
Court proceeds to determine this "intent" by considering what
obviously are
not Acts of Congress. Congress
1 The Court of Appeals stated that "we are aware of no rule
forbidding consideration of such [post-statehood] events. Indeed,
the case law may suggest the contrary. See
Alaska Pacific
Fisheries v.
United States, 248 U. S. 78,89-90
(1918)."
210 F.3d
1067, 1079, n. 17 (CA9 2000). This citation is puzzling indeed,
for Alaska was not admitted to the Union until some 40 years after
the Court's decision in
Alaska Pacific Fisheries.
285
itself did authorize negotiations with the Tribe in 1886 and
1889, but those Acts expressly provided that any resulting
agreements were not binding "until ratified by Congress." Act of
May 15, 1886, 24 Stat. 44, App. 51; Act of Mar. 2, 1889, 25 Stat.
1002, App. 144. And it is undisputed that ratification did not
occur before Idaho gained admission. The Court, however, is willing
to divine congressional intent to withhold submerged lands from the
State from what are best described as inchoate prestatehood
proceedings. In the Court's view it is sufficient that one House of
Congress had acted to approve the agreements and that the other was
in the process of considering similar legislation. See
ante,
at 278. The Court thus speaks of the "final" ratification of the
1887 and 1889 negotiations as if the official approval of both
Houses of Congress was but a mere formality.
Ibid. But see
U. S. Const., Art. I, § 7, cl. 2. But the indisputable fact remains
that, as of July 3, 1890, "Congress" had passed the Idaho Statehood
Act but had not ratified the 1887 and 1889 agreements.
Nor do our prior decisions in this area support the Court's
decision to wander so far afield. In
Alaska, we evaluated
the impact of an express provision in the Alaska Statehood Act,
Pub. L. 85-508, 72 Stat. 347, reserving certain lands for the
United States. 521 U. S., at 41-42. There the evidence that
"Congress expressed a clear intent to defeat state title" to
submerged lands came in the form of a duly passed federal statute
rather than as inferences drawn from preludes to future
congressional Acts.
Id., at 41. Indeed, that Statehood Act
abounds in specificity, in § l1(b) directly identifying the
Reserve, and in § 6(e) defining other reserved lands in some
detail.2 So, too, in
Utah Division of State
2 Again, the Court's reliance on language contained in the Idaho
Statehood Act affirming the Idaho Constitution is unavailing. See
ante, at 270. Clauses indicating that the entering State
"forever disclaims all right and title to ... all lands ... owned
or held by any Indians or Indian tribes" were boilerplate
formulations at the time, and the inclusion of
286
Lands we evaluated prestatehood federal statutes without
reference to inchoate proceedings lacking the force of law. 482 U.
S., at 198-200 (discussing the impact on Utah's claim to certain
submerged lands of the Sundry Appropriations Act of 1888, 25 Stat.
505, and the Sundry Appropriations Act of 1890, ch. 837, 26 Stat.
371). Cf.
Montana, supra, at 550555 (considering whether
certain treaties vested property rights in the Crow Indians). We
thus wisely have not relied on this sort of evidence in the past,
and it is unfortunate that we embark upon that route today.
Third, despite the critical relationship between submerged lands
and sovereignty, the Court makes the unwarranted assumption that
any use granted with respect to navigable waters must necessarily
include reserving title to the submerged lands below them. As the
Court previously has explained, the purpose underlying a
reservation of territorial lands is often probative of federal
intent. See,
e. g., Alaska, 521 U. S., at 39. Even accepting
the District Court's conclusions regarding the Tribe's dietary
habits, and further accepting this Court's inference that Congress
was concerned with the Tribe's access to navigable waters,3 it
does
this language hardly compares to the precision employed in the
Alaska Statehood Act. Indeed, every State admitted between the
years 1889 and 1912 entered with such a disclaimer. See N. D.
Const., Art. 16, § 2 (1889); S. D. Const., Art. XXII, § 18 (1889);
Mont. Const., Ordinance I (1889); Wash. Const., Art. XXVI, § 2
(1889); Wyo. Const., Ordinance § 3 (1889); Utah Const., Art. III
(1894); Okla. Const., Art. I, § 3 (1906); N. M. Const., Art. XXI, §
2 (1910); Ariz. Const., Art. XX, par. 4 (1910). Tellingly, in each
of these Constitutions save Oklahoma's, the relevant language is
identical to that in the Idaho Constitution. This disclaimer, in
any event, simply begs the question whether submerged lands were in
fact "owned or held" by the Coeur d'Alene Tribe upon Idaho's
admission.
3 This inference may not be justified. Although Idaho apparently
has conceded that the 1873 Executive Order included submerged lands
within the reservation, that fact hardly confirms that Congress
made a similar statement in simply authorizing negotiations with
the Tribe.
United States v.
Alaska, 521 U. S. 1 (1997),
moreover, indicates that it is at best
287
not necessarily follow that Congress intended to reserve title
in submerged lands by authorizing negotiations leading to the
cession of portions of the reservation established by the 1873
Executive Order.
It is perfectly consistent with the assumption that Congress
wanted to preserve the Coeur d'Alene Indians' way of life to
conclude that, if Congress meant to grant the Tribe any interest in
Lake Coeur d'Alene, it was more likely a right to fish and travel
the waters rather than withholding for the Tribe's benefit
perpetual title in the underlying lands. See Montana, 450 U. S., at
554 ([Although the treaty] 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"); see also ibid. ("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").
For this reason, Congress' decision in 1888 to grant a
right-of-way to the Washington and Idaho Railroad Company across a
part of the Coeur d'Alene Reservation is not clear evidence of
Congress' intent with respect to submerged lands. All but a
miniscule portion of the rightof-way passes along surface lands,
and it crosses the lake only at one of its narrowest points. There
is no mention of submerged lands in the authorizing resolution, and
it seems obvious that Congress required the company to pay
an open question whether Executive action alone is sufficient to
withhold title to submerged lands.
Id., at 43-45; cf. U. S.
Const., Art. IV, § 3, cl. 2 ("The
Congress shall have Power
to dispose of and make all needful Rules and Regulations respecting
the Territory or other Property belonging to the United States"
(emphasis added)). Thus, the majority rests far too much weight on
Idaho's concession regarding the 1873 reservation.
288
compensation to the Tribe because of the significant impact the
railroad would have upon surface lands:
"[T]he right of way hereby granted to said company shall be
seventy-five feet in width on each side of the central line of said
railroad as aforesaid[;] and said company shall also have the right
to take from said lands adjacent to the line of said road material,
stone, earth, and timber necessary for the construction of said
railroad; also, ground adjacent to such right of way for
station-buildings, depots, machine-shops, side-tracks, turnouts,
and water-stations, not to exceed in amount three hundred feet in
width and three thousand feet in length for each station, to the
extent one station for each ten miles of road." App. 138.
Thus, I do not think it just to infer any intent regarding
submerged lands from Congress' requirement of compensation for what
was to be primarily an intrusion-and a significant one at that-upon
surface lands.
In sum, the evidence of congressional intent properly before the
Court today fails to rise to anywhere near the level of certainty
our cases require. Congress' desire to divest an entering State of
its sovereign interest in submerged lands must be "definitely
declared or otherwise made very plain,"
Montana, supra, at
552. That standard has not been met here.
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