Montana v. United States

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 *568 by the United States of land under navigable waters in the territories is not applicable to Indian reservations. However, for the following reasons, I do not so read the Choctaw Nation opinion.

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.

*569 Finally, it is significant for me that Justice Stewart, who joined the Choctaw Nation opinion, is the author of the Court’s opinion today. Just as he is, I am satisfied that the circumstances of the Choctaw Nation case differ significantly from the circumstances of this case. Whether I would have voted differently in the two cases if I had been a Member of the Court when Choctaw Nation was decided is a question I cannot answer. I am, however, convinced that unless the Court is to create a broad exception for Indian reservations, the Holt State Bank presumption is controlling. I therefore join the Court’s opinion.

Tbe Court described this rule of construction, and explained the reasoning underlying it:

“[Tjhese 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 favour-ably 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.

Before reviewing the history of the Cherokee and Choctaw Reservations, Justice Douglas wrote:

“[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 ns 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.

When Choctaw Nation was decided, the Court consisted of only eight active Justices. Justice Harlan did not participate in the consideration or decision of Choctaw Nation.