Montana v. United States

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 “ fin 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 *570 tended. Washington v. Fishing Vessel Assn., 443 U. S., at 675 . With respect to an Indian treaty, the Court has said that “the United States, as the party with the presumptively superior negotiating skills and superior knowledge of the language in which the treaty is recorded, has a responsibility to avoid taking advantage of the other side.” Id., at 675-676 . Obviously, this rule is applicable here. But before determining what the Crow Indians must have understood the Treaties of Fort Laramie to mean, it is appropriate to ask what the United States intended, for our inquiry need go no further if the United States meant to convey the bed of the Big Horn River to the Indians.

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 *571 convey the riverbed to the Crow. Indeed, history informs us that the very opposite was true. In negotiating these treaties, the United States was actuated by two somewhat conflicting purposes: the desire to provide for the Crow Indians, and the desire to obtain the cession of all Crow territory not within the ultimate reservation’s boundaries. Retention of ownership of the riverbed for the benefit of the future State of Montana would have been inconsistent with each of these purposes.

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 11 Stat. 749 , and 2 C. Kappler, Indian Affairs: Laws and Treaties 594 (1904) (hereinafter Kappler), was precipitated by the depletion of game, timber, and forage by the constantly increasing number of settlers who crossed the lands of the Plains Indians on their way to California. Aggrieved by these depredations, the Indians had opposed that passage, sometimes by force. 4 In order to ensure safe passage for the settlers, the United States in 1851 called together at Fort Laramie eight Indian Nations, including the Crow. The pronouncement made at that time by the United States Commissioner emphasized the Government’s concern over the destruction of the game upon which the Indians depended. 5 The treaty’s Art. 5, which set speci *572 fied boundaries for the Indian Nations, explicitly provided that the signatory tribes “do not surrender the privilege of hunting, fishing, or passing over any of the tracts” described in the treaty, 2 Kappler, at 595 (emphasis added), and, further, its Art. 7 stated that the United States would provide an annuity in the form of “provisions, merchandise, domestic animals, and agricultural implements.” Ibid.

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. 15 Stat. 649 . United States Commissioner Taylor, who met with the Crow Indians in 1867, had acknowledged to them that the game upon which they relied was “fast disappearing,” and had stated that the United States proposed to furnish them with “homes and cattle, to enable you to begin to raise a supply or stock with which to support your families when the game was disappeared.” 6 Proceedings of the Great Peace Commission of 1867-1868, pp. 86-87 (Institute for the Development of Indian Law (1975)) (hereinafter Proceedings). Given this clear recognition by the United States that the traditional mainstay of the Crow Indians’ diet was disappearing, it is inconceivable that the United States intended by the 1868 treaty to deprive the Crow of “potential control over a source of food on their *573 reservation/’ 7 United States v. Finch, 548 F. 2d 822, 832 (CA9 1976), vacated on other grounds, 433 U. S. 676 (1977). See Alaska Pacific Fisheries v. United States, 248 U. S. 78 (1918). 8

Second: The establishment of the Crow Reservation was *574 necessitated by the same “public purpose” or “exigency” that led to the creation of the Choctaw and Cherokee Reservations discussed in Choctaw Nation v. Oklahoma, 397 U. S. 620 (1970). In both cases, Congress responded to pressure for Indian land by establishing reservations in return for the Indians’ relinquishment of their claims to other territories. 9 Just as the Choctaws and the Cherokees received their reservation in fee simple “ 'to inure to them while they shall exist as a nation and live on it,’ ” id., at 625 , so the Crow were assured in 1867 that they would receive “a tract of your country as a home for. yourselves and children forever, upon which your great Father will not permit the white man to trespass.” Proceedings, at 86. Indeed, during the negotiations of both the 1851 and 1868 Treaties of Fort Laramie the United States repeatedly referred to the land as belonging to the Indians, and the treaties reflect this understanding. 10 *575 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.” 15 Stat. 650 .

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 *576 Court offers no plausible explanation for its failure to draw the same “natural inference” here. 11

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 *577 Fort Laramie established the boundary of the Crow Reservation as running in part up the “mid-channel of the Yellowstone river.” 15 Stat. 650 . Thus, under Brewer-Elliott and Choctaw Nation , it is clear that the United States intended to grant the Crow the bed of the Yellowstone to the midpoint of the channel; it follows a fortiori that it was the intention of the United States to grant the Crow Indians the bed of that portion of the Big Horn that was totally encompassed by the reservation. 13

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 *578 they suffered thereby; in return, in Art. 2, the United States received the right to build roads and military posts on the Indians’ territories. 2 Kappler, at 594.

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 *579 granted them. 15 This understanding could only have been strengthened by the reference in the 1868 treaty to the mid-channel of the Yellowstone River as part of the boundary of the reservation; the most likely interpretation that the Crow could have, placed on that reference is that half the Yellowstone belonged to them, and it is likely that they accordingly deduced that all of the rivers within the boundary of the reservation belonged to them.

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 .

*580 Ill

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 *581 634 . 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

While the complaint in this case sought to quiet title only to the bed of the Big Horn River, sec 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.

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.

See generally United States v. Sioux Nation of Indians, 448 U. S. 371, 380, n. 11 (1980) (discussing federal reservation policy).

The history of the events leading up to the Fort Laramie Treaty of 1851 is recounted in detail in Crow Tribe of Indians v. United States, 151 Ct. Cl. 281 , 284 F. 2d 361 (1960), cert. denied, 366 U. S. 924 (1961); Crow Nation v. United States, 81 Ct. Cl. 238 (1935); and Fort Berthold Indians v. United States, 71 Ct. Cl. 308 (1930).

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 *572 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).

The 1868 treaty provided that members of the Crow Tribe who commenced farming would be allotted land and given agricultural supplies; it also provided that subsistence rations for a period of four years would be supplied to every Indian who agreed to settle on the reservation. See Arts. YI, VIII, and IX of the treaty, 15 Stat. 650 -652.

It is significant that in 1873 the United States Commissioners who sought to negotiate a further diminishment of the Crow Reservation were instructed by the very Act of Mar. 3, 1873, eh. 321, 17 Stat. 626 , that “if there is upon such reservation a locality where fishing could be valuable to the Indians, [they should] include the same [in the diminished reservation] if practicable . . .

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 fanning.” 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).

In Alaska Pacific Fisheries , the United States sued to enjoin a commercial fishing company from maintaining a fish trap in navigable waters off the Annette Islands in Alaska, which had been set aside for the Met-lakahtla Indians. The lower courts granted the relief sought, and this Court affirmed. The Court noted: “That Congress had power to make the reservation inclusive of the adjacent waters and submerged land as well as the upland needs little more than statement.” 248 U. S., at 87 . This was because the reservation was a setting aside of public property “for a recognized public purpose — that of safe-guarding and advancing a dependent Indian people dwelling within the United States.” Id., at 88 . The Court observed that “[t]he Indians naturally looked on the fishing grounds as part of the islands,” and it found further support for its conclusion “in the general rule that statutes passed for the benefit of dependent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians.” Id., at 89 .

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.” 15 Stat. 650 .

See Crow Tribe of Indians v. United States, 151 Ct. CL, at 288-291, 284 F. 2d, at 365-367 ; Proceedings, at 86. The Court suggests that the *575 1851 treaty was simply “a covenant among several tribes which recognized specific boundaries for their respective territories.” Ante, at 553. But this interpretation of the treaty consistently has been rejected by the Court of Claims, which has held that the treaty recognized title in the signatory Indian Nations. See Crow Tribe of Indians, 151 Ct. Cl., at 291 , 284 F. 2d, at 367 ; Crow Nation v. United States, 81 Ct. Cl., at 271-272 ; Fort Berthold Indians v. United States, 71 Ct. Cl. 308 (1930). Further, the Court’s interpretation is contrary to the analysis of the 1851 treaty made in Shoshone Indians v. United States, 324 U. S. 335, 349 (1945) (“the circumstances surrounding the execution of the Fort Laramie treaty [of 1851] indicate a purpose to recognize the Indian title to the lands described”).

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, 15 Stat. 635 , between the United States and the Sioux Nation).

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 .

In Brewer-Elliott, the United States established a reservation for the Osage Indians that was bounded on one side “by . . . the main channel of the Arkansas river.” 260 U. S., at 81 . This Court held that the portion of the Arkansas River in question was nonnavigable and that “the title of the Osages as granted certainly included the bed of the river as far as the main channel, because the words of the grant expressly carry the title to that line.’1 Id., at 87. (Emphasis added.) While the Court purported to reserve the question whether vesting ownership of the riverbed in the Osage Indians would have constituted an appropriate “public purpose” within the meaning of Shively v. Bowlby, 152 U. S. 1 (1894), if the stream had been navigable, that question essentially had been resolved four years earlier in Alaska Pacific Fisheries . See n. 8, supra. In any event, Choctaw Nation clearly holds, and the Court concedes, ante, at 556, that the establishment of an Indian reservation can be an “appropriate public purpose” within the meaning of Shively v. Bowlby .

Later events confirm this conclusion. In 1891, the Crow Indians made a further cession of territory. See Act of Mar. 3, 1891, § 31, 26 Stat. 1040 . This cession was bounded in part by the Big Horn River. Significantly, the Act described the boundary of the cession as the "mid-channel” of the river; that language necessarily indicates that the Crow owned the entire bed of the Big Horn prior to the cession, and that by the Act they were ceding half the bed in the affected stretch of the river, while retaining the other half in that stretch and the whole of the bed in the portion of the river that remained surrounded by their lands.

Counsel for the State of Montana acknowledged at oral argument that the Crow Indians did not understand the meaning of the equal-footing doctrine at the times they entered into the Fort Laramie Treaties. Tr. of Oral Arg. 13-14.

Statements made by Chief Blackfoot during the treaty negotiations of 1873 buttress this conclusion. See, e. g., 3 App. 136 (“The Great Spirit made these mountains and rivers for us, and all this land”); id., at 171 (“On the other side of the river all those streams belong to the Crows”).

The Court suggests that the fact the United States retained a navigational easement in the Big Horn River indicates that the 1868 treaty *580 could not have granted the Crow the exclusive right to occupy all the territory within the reservation boundary. Ante, at 555. But the retention of a navigational easement obviously does not preclude a finding that the United States meant to convey the land beneath the navigable water. See, e. g., Choctaw Nation, supra; Alaska Pacific Fisheries, supra.

The Court's reliance on Holt State Bank is misplaced for other reasons as well. At issue in that case was the bed of Mud Lake, a once navigable body of water in the Red Lake Reservation in Minnesota. Prior to the case, most of the reservation, and all the tracts surrounding the lake, had been “relinquished and ceded” by the Indians and sold off to homesteaders. 270 U. S., at 52-53 . No such circumstances are present here. See n. 18, infra.

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 *581 statehood, the United States set apart by formal treaty a reservation that included navigable waters. See n. 10, supra.

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.

1 agree with the Court’s resolution of 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. I note only that nothing in the Court’s disposition of that issue is inconsistent with the conclusion that the bed of the Big Horn River belongs to the Crow Indians. There is no suggestion that any parcels alienated in consequence of the Indian General Allotment Act of 1887, 24 Stat. 388 , or the Crow Allotment Act of 1920, 41 Stat. 751 , included portions of the bed of the Big Horn River. Further, the situation here is wholly unlike that in Puyallup Tribe v. Washington Game Dept., 433 U. S. 165 (1977). As the Court recognizes, ante, at 561, the Puyallups alienated, in fee simple, the great majority of the lands in the reservation, including all the land abutting the Puyallup River. 433 U. S., at 173-174, and n. 11. This is not such a case.