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Excerpt from John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed. (1999), pages 115-123 Reproduced with permission of the publisher, Kluwer Law International, The Hague.
(2)	Other Agreements: The "Parol Evidence Rule"
�104 Article 7 dealt with interpretation of the Convention; the present Article deals with the interpretation of the statements and conduct of the parties.
"(1) For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was.
"(2) If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances.
In preparing the present article, UNCITRAL had to face and reconcile conflicting theories about the fundamental nature of the process of contracting. According to one early theory, a person should be bound by contract only when he subjects his "will" to the terms of the contract. In some legal systems this contributed to the view that one�s obligation was defined by his "intent" or "consent," or that making a contract required a "meeting of the minds."
The image of a meeting of two minds is attractive but it raises practical difficulties. When a dispute arises over the "meaning" of a contract, the contending parties are scarcely reliable witnesses as to what was in their minds when they made the contract. Moreover, language is such an imprecise medium that shades of differences of understanding are latent in many of the agreements on which commerce depends; a purely "subjective" approach could undermine protection for reasonable reliance on expectations created by another.
Paragraph (1) is built on the "subjective" approach: Interpretation is to be based on a speaker�s "intent"�but only "where the other party knew or could not have been unaware" of the intent. However, because of the practical barriers to proving identity between the intent of the two parties (particularly when they are involved in a controversy) most problems of interpretation will be governed by paragraph (2) which follows the "objective" approach: Statements by a speaker (Party A) "are to be interpreted according to the understanding that a reasonable person of the same kind as the other party " (Party B) " would have had in the same circumstances."
FR. CA Grenoble, RG/3275, 22 February 1995. SARL Bri. "Bonaventure" v. SPAE. S "could not have been unaware" of B�s intent to resell in France; consequently, S was bound to follow French standards. CLOUT 154, UNILEX D. 1995�7. See: Schlechtriem, Com. (1998) 71�72.
Article 8(2) has interesting points of contrast and similarity in relation to various types of domestic protective laws. Some of these laws apply only to sales to consumer as defined in Article 2(a), �50, supra, and consequently are outside the scope of the Convention. However, some protective legislation may overlap with CISG. See ��232, 236, infra. Hence a preliminary analysis of these laws in relation to Article 8(2) can provide helpful background for problems that we shall meet later.
One type of domestic legislation denies effect to contract terms on the ground that they impose excessively harsh consequences even though these contract terms were (or should have been) understood by the other party. Article 8(2) is quite different for it is concerned only with the interpretation of the contract. A second type of domestic law denies full effect to standard terms and form contracts prepared by one party on the ground that the other party may not grasp their full import; this type is closely related to Article 8(2). A third type restricts the effect of standard terms or forms on the ground that their use is so widespread that they deny contractual freedom to the other party. Other laws are difficult to classify for they may reflect concern for both clarity and fairness, or the basis for the law may be unclear.
Determining the basis and impact of these laws is important in deciding whether they are displaced by the Convention. The first and third types, above, do not invade the area of interpretation occupied by Article 8 and are preserved by Article 4 which states that the Convention "is not concerned with: (a) the validity of the contract or of any of its provisions..." The relationship between the second type of domestic law and the Convention will be explored in more detail in discussing Article 35 on conformity of goods to the contract (��230�234, infra ).
The above suggestion that under Article 8(2) ambiguity in a statement [page 119] is to be resolved against the party who formulated this statement has considerable significance in view of the wide disparities between the modes of expression and expectations in the different areas and types of enterprises that may meet in international trade. Although this interpretation of Article 8(2) may be disputed, it will at least be prudent for a party in formulating a proposal or other statement to take care that it not be given a different understanding by (Art. 8(2)) "a reasonable person of the same kind as the other party".
Following are decisions applying Art. 8(2): (1) GER. LG Hamburg, 5 O 543/88, 25 September 1990: B claimed not obligated to pay S, on the ground that B was acting on behalf of a third party, X. The court rejected this defense: There was no reason for S to understand that B was acting for X. CLOUT 5; UNILEX D. 1990�6. Cf. GER. OLG Karlsruhe, 15 U 29/92, 20 November 1992; GER. LG Oldenburg, 12 O 2943/94, 28 February 1996. UNILEX D. 1996�3.2.0. (2) GER. OLG Hamm, 11 U 206/93, 8 February 1992 (application of trade usages under Art. 8(2) & (3)). See: Rider, C., Who Bears the Cost of Misunderstanding? 61 NY State Bar. J. (Oct. �89) 56�61. Cf.: General provisions on trade usages in Art. 9, infra.
Paragraph (3) (unlike Paragraph (2)) states rules of interpretation that, inter alia, apply to statements embodied in an agreement formulated by both parties. (See �105, n. 3, supra. ) Article 8(3) cuts through technical rules that might bar access to relevant materials: "Due consideration" is to be given to " all relevant circumstances of the case," including (a) negotiations, (b) practices established between the parties (Art. 9(1)), (c) usages (Art. 9(2)) and (d) the parties� subsequent conduct.
Let us suppose that one party contends that the agreement, although not expressing result "X," should be construed to reach this result. May a tribunal consider evidence that this party proposed that the contract state result "X" but that this proposal was rejected? Under Article 8(3), such negotiations are "relevant" to the interpretation of the agreement and should be given "due consideration"; of course, they are not conclusive.
Party�s Standard Terms: AUSTRIA, [page 120] ObG (Sup. Ct.), 10 Ob 578/95, 6 February 1996. A German buyer (B) ordered goods from an Austrian seller (S). S refused to deliver; B sued for loss of profit (Art. 74, infra). S claimed that there was no valid contract since a clause in S�s standard terms required contracts to be in writing. S�s claim was rejected: there was no express or implied agreement concerning the clause in S�s standard terms. UNILEX D.1996�3.1. See Bonell/Ligouri, ULR (1997�3) 583, n. 66.
�110 (1) Other Agreements: The "Parol Evidence Rule"
A lawyer preparing for trial at common law may note that the parol evidence rule has its greatest significance in restricting the role of juries in the field of contract interpretation. The Convention, of course, does not interfere with domestic rules on the allocation of authority between the judge and jury, and would not interfere with the decision to exclude from a jury evidence of prior or contemporaneous agreements if (in the apparently circular language of UCC 2�202) "the court finds" (after giving due consideration to all relevant circumstances) that the writing was "intended also as a complete and exclusive statement of the terms of the agreement."
"Parol evidence rule", decisions: (1) U.S. Court of Appeals (11th Cir. 29 June 1998) 47�4250; MCC-Marble Ceramics (US; B) v. Ceramica Nova...(Ital.; S). In October 1990, following an oral agreement by S and B on terms, at S�s request B signed one of S�s standard order forms, on which the agreements, noted above, were entered. The front of the form, in Italian, stated that the buyer "is aware of the sales conditions stated on the reverse and approves them". B did not understand Italian. In February 1991 S and B agreed on a requirements contract; B signed a number of S�s standard order forms for deliveries under this agreement. B sued S for breach of the 1991 contract; S counter-claimed on the ground, inter alia, that B had defaulted on payment for prior shipments. The District (lower) Court, relying in part on the printed provisions in S�s standard forms, entered summary judgment (i.e. without further examination of facts offered by B) in favor of S.
The Court of Appeals ruled that the domestic "parol evidence rule" was inconsistent with the CISG, Article 8(3) of which provided that, in [page 122] determining an intent or understainding, "due consideration" must be given to "all relevant circumstances...including negotiations..." (See the full text of Article 8, supra.) In this decision, the court relied on the approach of the present author (�110, supra) and the conclusions of other writers, including: Del Duca, Lookofsky, Flechtner, Murray and Winship (op. cited supra, I. OVERVIEW at 2(b). See also: U.S. Dist. Ct. (S.D.N.Y. 6 April 1998) 96 Civ. 3253, C. Claudia v. Olivieri F., Dicta: Contracts under CISG are free from the parol evidence rule (1998 U.S. Dist. LEXIS 4586); U.S. Filanto S. v. Chilewich I. Corp., 789 F. Supp. 1229 (S.D.N.Y. 1992), id. at 1238 n. 7. CLOUT 23, UNILEX D. 1992�9.
Parol Evidence Rule: Law or Procedure. In MCC-Marble Ceramics (29 June 1998), supra, S argued that the parol evidence rule was a rule of procedure (i.e., like exclusion of hearsay) rather than of law, and therefore was not governed by legal rules under CISG. The Court of Appeals rejected this argument, citing Farnsworth on Contracts, �7.2 at 194 & 196 n. 16, citing cases (1990).
1. Art. 8 is substantially the same as Art. 7 of the 1978 Draft Convention, which was closely based on a provision in the Working Group�s 1977 "Formation" draft. W/G 8 paras. 155�168 and Annex I (Art. 14), VIII Yearbook 86�87, 90, Docy. Hist. 287�288, 291; W/G 9 paras 11�47 and Annex (Arts. 4 of Formation Draft), IX Yearbook 62�64, Docy. Hist. 294�296;. In 1978 the Commission merged the "Formation" and "Sales" drafts, and placed the present provision in Part I of the Convention. As a consequence, the rules on interpretation of the offer and acceptance became applicable to statements and conduct after formation of the contract. UNCITRAL XI, Annex I paras. 38�41 (summary of discussion of Art. 4 of Formation Draft, renumbered Art. 7 of the 1978 Draft Convention), IX Yearbook 33�34, Docy. Hist. 367�368. Cf. ULF 4(2) and 1972 UNIDROIT Draft of a Law on Validity of Contracts (LUV) Arts. 3�5. See VIII Yearbook, 104�105 (text of LUV with Secretariat analysis), Docy. Hist. 268�269.
2. Some domestic rules for sales of goods were designed to counteract patterns of interpretation that developed under a pre-commercial static economy typified by transactions in land�unusual and important arrangements prepared cautiously and in detail; at that stage, sales of goods involved simple items purchased after inspection. Steps toward relaxing rigid patterns for construing such contracts are found (e.g.) in the English Sale of Goods Act 1893, �14 (implied obligations of merchantable quality). See Benjamin (3d ed.) �779�790; Llewellyn, 52 Harv. L. Rev. 725 and 873 (1939); Honnold, Sales (5th ed. 1984) 33�35.
3. Often an instrument executed by the parties is prepared by one party and, in effect, accepted by the other. In this setting paragraph (2) applies; the party who prepared the instrument is the one who "made" the statement. When both parties participate fully in preparing the instrument, paragraph (2) is not applicable since it distinguishes between one who makes a statement and the one who receives it, but such an instrument is subject to the general rules of interpretation in paragraph (3).
4. Communications mentioned in the Convention include: notification of avoidance (Art. 26, infra at �187); modification or termination of an agreement (Art. 29, infra at �200); notification that goods are defective or that performance will be interrupted (Arts. 39, 48, 68, 71, 72, 79, 88). Communication that call for interpretation also may occur in settings not mentioned in the Convention.
5. Corbin �106; von Mehren & Gordley 850�872; Hoff, Error in the Formation of Contracts in Louisiana; A Comparative Analysis, 53 Tul. L. Rev. 329, 335 (1979) (comparison of civil law of Louisiana and France, and of common law).
6. Holmes, The Common Law 242 (Howe ed. 1963). Corbin (�106) was less unqualified: when a common intent or meaning can be found, it should be given effect. See also Farnsworth, "Meaning" in the Law of Contracts, 76 Yale L.J. 939, 947 (1967). For David Hume�s criticism of the "intent" or "will" theory, see Atiyah, Freedom of Contract 53.
7. Hoff, supra note 4 at 338, 342�353 (error in corpore, error in substantia), 374 (French law may call for compensation of an unerring party for loss based on reliance). "Speaker" refers to one who makes a statement, whether written or oral; "hearer" is the one to whom the statement is made.
8. Ludwig Raiser in The Law of Standard Terms of Business (Das Recht der ABG) 284 (1935) as quoted in II Zweigert & Kötz (1987) 12. Concern over the danger of meanings unclear to one of the parties underlay UNCITRAL�s rejection (�118, infra) of proposals based on ULIS 9(3) to give binding effect to the meaning "usually" given to expressions "commonly used in the trade concerned".
9. E.g. (U.S.A.) UCC 2�718(1): A term in a sales contract "fixing unreasonably large liquidated damages" for breach of contract "is void as a penalty".
10. (U.S.A.) UCC 2�302, authorizing courts to refuse to enforce "unconscionable" contracts or clauses, is accompanied by an Official Comment that states that the provision is directed at "one-sided" contracts but adds: "The principle is one of the prevention of oppression and unfair surprise...and not of disturbance of allocation of risks because of superior bargaining power". This lack of clarity has been sharply criticized. Leff, Unconscionability�The Emperor�s New Clause, 115 U. Pa. L. Rev. 485 (1967). Cf. Hillman, 67 Cornell L. Rev. I (1981).
11. As we shall see, the Convention�s statement in Article 4(1) that it " is not concerned, with (a) validity" must be construed to avoid conflict with express provisions (such as Article 8(2)) that might otherwise be considered as dealing with questions of "validity".
12. This interpretation of Article 8(2) apparently is not accepted by Farnsworth in B-B Commentary 99�100, ��2.4�2.5.
13. The problems of interpretation that have arisen under (U.S.A.) UCC 2�202 are discussed in White & Summers ��2�9-2�12, and in law review articles cited therein. For case law apart from the UCC see Corbin �573 et seq.; Treitel, Contract 150 et seq.
14. The English Law Commission has recommended abolition of the parol evidence rule. Law Commission, Working Paper No. 70, Law of Contract, The Parol Evidence Rule (1976). Accord; Ont. L. Ref. Com., I Sales 110�117. For a comparative study see II Zweigert & Kötz II (1987) 91�93 (French Civil Code Rule similar to the "parol evidence rule" is inapplicable to commercial transactions; no comparable rule in Germany). For indications of increasing flexibility in American law see Farnsworth, Contracts 451�474.
15. See McCormick, The Parol Evidence Rule as a Procedural Device for Control of the Jury, 41 Yale L. J. 365 (1932).
16. Ont. L. Ref. Com., I Sales 117�118, supporting Friedman 251 and Lord Denning, M. R., in Port Soudan Cotton Co. v. Chettiar and Sons  2 Ll. Rep. 5, 11 (C.A.).

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When it comes to colleges and universities admitting students, individual establishments rely heavily on the methodology utilized by their school's admission committee in order to ensure the fair and optimal inclusion of students who will be ushered in as their approved candidates. Affirmative action in the collegiate environment was put in place with the lofty ideal of creating a diverse, multi-cultural and balanced student body for the campus and in the classroom. It is "rooted in Equity, the branch of Anglo-American jurisprudence that provided discretionary remedies in situations where the rigid application of common law rules would yield manifestly unjust results." Over time, the practice has been called into question from both a legal and political/social perspective. Recent years have seen a substantial increase in the number of individuals fighting against affirmative action with respect to higher education and, as a result, a number of states have ceased to practice race-based affirmative action with respect to their admission processes.
It is the aim of this paper to illustrate that affirmative action as a strictly race-based promotion is becoming antiquated. At the same time, this does not mean that diversity would occur naturally in such settings. Affirmative action as a platform for the equality of all socio-economic groups would be a much more modern and applicable interpretation of the concept, one which would be much more beneficial and useful to college admission programs. Such interpretation and consideration in terms of application approval methodologies would likely garner less backlash and criticism from those opposed to race-based affirmative action and would force higher education environments to consider the future of applicants and their potential backgrounds.
Affirmative action was designed to protect minorities and ensure equality following the thirteenth amendment. Diversity in education is important and beneficial. "A range of experiences and backgrounds improves class discussions, better prepares students for diversity in the workplace, and encourages a general understanding or people who think and feel differently on a variety of issues." Affirmative action based on race was, and in many ways still is, important and valuable in that it allows for the breakdown of stereotypes through a critical mass level being reached with respect to diversity. Diversity has also been noted to allow for a class "stronger than the sum of its parts", prevent the isolation or token status mentality of minority students and to help make minority students feel comfortable in class when discussing their individual experiences with the group.
Legally, affirmative action, race-based affirmative action in particular, is being tested in court. It has been argued through court systems around the nation, culminating in cases being presented to the Supreme Court of the United States of America. While the prominent case on the issue as it has become manifested in recent years continues to be the 2003 Supreme Court case of Grutter v. Bollinger, the issue remains extremely pervasive and is likely to evolve in terms of specifics as the years continue on.
When Justice O'Connor wrote on the opinion for Grutter v. Bollinger, her rationale was heavily influenced by another case from the past, the 1978 case of Regents of the University of California v. Bakke. In the 1978 case, Justice O'Connell's Supreme Court mentor, Justice Powell rejected the university's quota system. However, he did acknowledge in the presentation of his opinion that the system should continue to allow for race to be used as a consideration for admissions because of the benefits which would be feasible for the entirety of the school and not just the individual. In the 2003 case, which took place 25 years later, the same basic sentiment was echoed in Justice O'Conner's opinion. She wrote that "diversity was at the heart of the school's proper institutional mission and...acting in good faith." As such, race-based affirmative action "appears to hinge at least partly on the extent to which universities are able to successfully achieve racial diversity using alternate policies."
Even more current cases, such as Fisher v. University of Texas at Austin, defer to the important and influential ruling of Grutter v. Bollinger wherein "universities should receive deference in identifying diversity as a compelling interest, but not in selecting the means by which they achieve that interest". This notion is promoted further by Jason Blokhuis. The scholar from Roehampton University explains, "Universities can and must predicate admissions on indices of merit that are liked to their institutional missions. Merit is relative to the particular ends at stake, however, and applicants who claim a right of admission based on grades or test scores alone overlook this." For affirmative action to continue to be legal, it will be important to investigate the specifics of potential merit for affirmative action, specifically it will be important to consider attributes outside of race.
Diversity does not need to be based solely on race. It is important to consider a number of other qualities and experiences, which cumulatively could add to the diversity of a student body and even potentially increase diversity to an even greater extent than the current application of race in higher education applications and admissions. Minorities are important and their perspectives, values, beliefs and contributions help to educate and enrich the lives of the majority, and vice versa. In higher education settings, increased numbers of minorities offer to the majority a sense of vitality, stimulation and potential for improved and more expansive educational opportunities for all students present in the higher education environments. Such a unique experience is far less likely to present itself when compared to homogenous environments in higher education. It is important, however, to clarify the term minority and the understandings that people may take for granted when it comes to understanding the term.
"While the United States was 83% white in 1996, researchers now project that the United States' minority population will rise from one in every four Americans to one in every two Americans by 2050" (Richman). As such, many people likely consider the majority race of the United States of America to be white. However, the statistics simultaneously predict that this will not be the case in the future, as the population of the nation continues to grow. The "post-racial society" of the future, as it has been referred to by some scholars, will likely lessen the need for affirmative action to be present with respect to race, but not in terms of those who experience and practice less-common lifestyles, beliefs and perspectives. There will still be a minority of the people of the United States of America, it will just likely present itself in a less obvious manner.
There are some programs in place which function outside race-based inclusion in the higher education environment. For example, there is the percent plan. Percent plan options exist in states such as Texas, California and Florida. They are the first of the race-neutral policies to become practical in higher education environments and allow for applicants who score in the top percentage of their high school to automatically be approved as applicants for state funded schools.
These types of understandings and policies potentially stem from the fact that affirmative action based on race is being upheld in court, but it is nonetheless being challenged from a political perspective. In such areas, the people are voting to ban race-based affirmative action despite the legal upholding of the Supreme Court. Another option being touted by individuals such as Professor Richard Sanders is the notion of class-based affirmative action. Class diversity in higher education is a concept which is promoted by a number of individuals, including Angela Onwuachi-Willig and Amber Fricke; however, the two argue that the two concerns are not "mutually exclusive of and incompatible with each other."
Finding a functional manner by which to measure and calculate socioeconomic status and the conclusions of such considerations may need some fine-tuning, but this does not mean it would be a completely unviable option for ensuring diversity for future generations applying to higher education environments through a specialized affirmative action. While Professor Sanders relies on the level of education of the applicant's parents and the occupation of the parents of the applicant, Onwuachi-Willig and Fricke argue that the accumulation of data for determining the socioeconomic status of the applicant neglects racial implications. This and other concerns have been brought forth and, reasonably, would have to be rectified in order to establish a fully-functional form of class-based affirmative action for the higher education application process before it could be widely implemented in a sustainable manner. Careful consideration would need to be applied, particularly with respect to the specific methodology utilized to calculate an applicant's socioeconomic status, their tools of measurement and assurance of a socioeconomic scheme which is not weighted, as Sanders is criticized by Onwuachi-Willig and Fricke as being. The interaction of race in American society would need to be particularly well-discussed, as race, for all of its social and economic benefits and disadvantages" is expected to evolve so extensively and dramatically in the coming decades.
Although Onwuachi-Willig and Fricke support an overhaul of the considerations used for students seeking admission to law schools and not an overhaul of affirmative action in general, it is the belief of this paper that the authors neglect the changes which will be coming forth with respect to race and race-makeup in the United States of America. An overhaul of any process is lengthy and intensive in order to insure optimal effectiveness and efficiency. To focus so much on race when the minorities and majorities of the current times are expected to be roughly equal by 2050 seems unnecessary and could be perceived as continuing to focus on issues which are slowly losing their relevancy in the United States of America. "Plus factors" and "contextual review", for example, are options capable of being considered by higher education admission committees which allow for a broad understanding and interpretation of race, class, and attributes which would bring diversity to the campus. Diversity, the Supreme Court tells us, within a student body can vary in interpretation, which is a notion fundamental to considerations for affirmative action in higher education for both modern and future applicants.
In this respect, such considerations would likely be applicable in the present to allow for race when necessary, but is malleable enough to allow for class and other unique attributes of applicants in the future. It is the belief of this author that such considerations for affirmative action in higher education must consider not only current situations, but the likely situations of the future as well in order to make the most informed and applicable decision. In this case, there is overwhelming evidence that affirmative action as a whole allows for improved and beneficial diversity in the higher education setting. However, it is not necessary to exclusively focus on race in the admission process utilizing affirmative action. There are many other options to consider, and methodologies to adopt, for the preservation of diversity in higher education environments in the United States of America. These considerations would likely be more relevant to the preservation not only of diversity, but of equality as it pertains to the pursuit of higher education for American citizens. However, in the end and until the higher education providers are legally prohibited from considering race, it remains a viable option for merit in the admission process. Each establishment or entity individually will be most aware of what will or will not contribute to their diversity on campus and in the classrooms. If race will significantly contribute to a campus' diversity it should be a consideration. It is merely worth acknowledging that race will likely cease to be the predominant characteristic of the so-called minorities in coming years and generations. Considering the other characteristics and attributes which can affect diversity in these new environments will be progressive in terms of coming up with legally and socially appropriate and approved policies as they pertain to equality, diversity and affirmative action in higher education admission processes.
Antonovics, K., & Backes, B. The effect of banning affirmative action on college admissions policies and student quality. Journal of Human Resources, 49(2), 295-322.
Blokhuis, J. Defending the defenders of affirmative action in higher education. Philosophy of Education Archive, 301-304.
Dunleavy, E., & Gutman, A. Supreme Court to rule on Fisher v. University of Texas: Is Grutter in trouble?. The Industrial-Organizational Psychologist, 50(1), 105-113.
Foley, L. From comparing plus factors to context review: the future of affirmative action in higher education. JL & Educ.
Harvard Law Review. Fourteenth Amendment - Equal Protection Clause - Public-University Affirmative Action - Fisher v. University of Texas at Austin.
Onwuachi-Willig, A., & Fricke, A. Class, classes, and classic race-baiting: what's in a definition. Denver University Law Review, 88(4), 807-834.
Richman, A. End of affirmative action in higher education: twenty-five years in the making, The. Depaul Journal for Social Justice, 4(1), 61-96.
Tanabe, C. From the courtroom to the voting booth: defending affirmative action in higher education admissions. Philosophy of Education Archive, 291-300.
College admissions student editor and an lifetime academic affirmative action proponent.
Anomie, Society, and Scholar Findings "Critical Thinking" - the Buzzword of the Modern Society?

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By a tribal regulation, the Crow Tribe of Montana sought to prohibit hunting and fishing within its reservation by anyone who is not a member of the Tribe. Relying on its purported ownership of the bed of the Big Horn River, on treaties which created its reservation, and on its inherent power as a sovereign, the Tribe claimed authority to prohibit hunting and fishing by nonmembers of the Tribe even on lands within the reservation owned in fee simple by non-Indians. Montana, however, continued to assert its authority to regulate hunting and fishing by non-Indians within the reservation. The First Treaty of Fort Laramie of 1851, in which the signatory tribes acknowledged various designated lands as their respective territories, specified that, by making the treaty, the tribes did not "surrender the privilege of hunting, fishing, or passing over" any of the lands in dispute. In 1868, the Second Treaty of Fort Laramie established the Crow Reservation, including land through which the Big Horn River flows, and provided that the reservation "shall be . . . set apart for the absolute and undisturbed use and occupation" of the Tribe, and that no non-Indians except Government agents "shall ever be permitted to pass over, settle upon, or reside in" the reservation. To resolve the conflict between the Tribe and the State, the United States, proceeding in its own right and as fiduciary for the Tribe, filed the present action, seeking a declaratory judgment quieting title to the riverbed in the United States as trustee for the Tribe and establishing that the Tribe and the United States have sole authority to regulate hunting and fishing within the reservation, and an injunction requiring Montana to secure the Tribe's permission before issuing hunting or fishing licenses for use within the reservation. The District Court denied relief, but the Court of Appeals reversed. It held that the bed and banks of the river were held by the United States in trust for the Tribe; that the Tribe could regulate hunting and fishing within the reservation by nonmembers, except for hunting and fishing on fee lands by resident nonmember owners of those lands; and that nonmembers permitted by the Tribe to hunt or fish within the reservation remained subject to Montana's fish and game laws.
1. Title to the bed of the Big Horn River passed to Montana upon [450 U.S. 544, 545] its admission into the Union, the United States not having conveyed beneficial ownership of the riverbed to the Crow Tribe by the treaties of 1851 or 1868. As a general principle, the Federal Government holds lands under navigable waters in trust for future States, to be granted to such States when they enter the Union, and there is a strong presumption against conveyance of such lands by the United States. The 1851 treaty failed to overcome this presumption, since it did not by its terms formally convey any land to the Indians at all. And whatever property rights the 1868 treaty created, its language is not strong enough to overcome the presumption against the sovereign's conveyance of the riverbed. Cf. United States v. Holt State Bank, 270 U.S. 49 . Moreover, the situation of the Crow Indians at the time of the treaties presented no "public exigency" which would have required Congress to depart from its policy of reserving ownership of beds under navigable waters for the future States. Pp. 550-557.
2. Although the Tribe may prohibit or regulate hunting or fishing by nonmembers on land belonging to the Tribe or held by the United States in trust for the Tribe, it has no power to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe. Pp. 557-567.
(a) The 1851 treaty nowhere suggested that Congress intended to grant such power to the Tribe. And while the 1868 treaty obligated the United States to prohibit most non-Indians from residing on or passing through reservation lands used and occupied by the Tribe, thereby arguably conferring upon the Tribe authority to control fishing and hunting on those lands, that authority can only extend to land on which the Tribe exercises "absolute and undisturbed use and occupation" and cannot apply to subsequently alienated lands held in fee by non-Indians. Cf. Puyallup Tribe v. Washington Game Dept., 433 U.S. 165 . Nor does the federal trespass statute, 18 U.S.C. 1165, which prohibits trespassing to hunt or fish, "augment" the Tribe's regulatory powers over non-Indian lands. That statute is limited to lands owned by Indians, held in trust by the United States for Indians, or reserved for use by Indians, and Congress deliberately excluded feepatented lands from its scope. Pp. 557-563.
(b) The Tribe's "inherent sovereignty" does not support its regulation of non-Indian hunting and fishing on non-Indian lands within the reservation. 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, particularly as to the relations between a tribe and nonmembers of the tribe. United States v. Wheeler, 435 U.S. 313 . Exercise of tribal power beyond what [450 U.S. 544, 546] 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. Here, regulation of hunting and fishing by nonmembers of the Tribe on lands no longer owned by the Tribe bears no clear relationship to tribal self-government or internal relations. Non-Indian hunters and fishermen on non-Indian fee land do not enter any agreements or dealings with the Tribe so as to subject themselves to tribal civil jurisdiction. And nothing suggests that such non-Indian hunting and fishing so threaten the Tribe's political or economic security as to justify tribal regulation. Pp. 563-567.
604 F.2d 1162, reversed and remanded.
STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, POWELL, REHNQUIST, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 567. BLACKMUN, J., filed an opinion dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 569.
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.
[ Footnote * ] 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; [450 U.S. 544, 547] 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.
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.
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 [450 U.S. 544, 548] signatory tribes acknowledged various designated lands as their respective territories. See 11 Stat. 749 and 2 C. Kappler, Indian Affairs: Laws and Treaties 594 (1904) (hereinafter Kappler). The treaty identified approximately 38.5 million acres as Crow territory and, in Article 5, specified that, by making the treaty, the tribes did not "surrender the privilege of hunting, fishing, or passing over" any of the lands in dispute. In 1868, the Second Treaty of Fort Laramie established a Crow Reservation of roughly 8 million acres, including land through which the Big Horn River flows. 15 Stat. 649. By Article II of the treaty, the United States agreed that the reservation "shall be . . . set apart for the absolute and undisturbed use and occupation" of the Crow Tribe, and that no non-Indians except agents of the Government "shall ever be permitted to pass over, settle upon, or reside in" the reservation.
Several subsequent Acts of Congress reduced the reservation to slightly fewer than 2.3 million acres. See 22 Stat. 42 (1882); 31, 26 Stat. 1039-1040 (1891); ch. 1624, 33 Stat. 352 (1904); ch. 890, 50 Stat. 884 (1937). In addition, the General Allotment Act of 1887, ch. 119, 24 Stat. 388, and the Crow Allotment Act of 1920, 41 Stat. 751, authorized the issuance of patents in fee to individual Indian allottees within the reservation. Under these Acts, an allottee could alienate his land to a non-Indian after holding it for 25 years. Today, roughly 52 percent of the reservation is allotted to members of the Tribe and held by the United States in trust for them, 17 percent is held in trust for the Tribe itself, and approximately 28 percent is held in fee by non-Indians. The State of Montana owns in fee simple 2 percent of the reservation, the United States less than 1 percent.
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 [450 U.S. 544, 549] Council has passed several resolutions respecting hunting and fishing on the reservation, including Resolution No. 74-05, the occasion for this lawsuit. That resolution prohibits hunting and fishing within the reservation by anyone who is not a member of the Tribe. The State of Montana, however, has continued to assert its authority to regulate hunting and fishing by non-Indians within the reservation.
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 solve 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 [450 U.S. 544, 550] that the Tribe could not exercise such authority except by granting or withholding authority to trespass on tribal or Indian land. All other authority to regulate non-Indian hunting and fishing resided concurrently in the State of Montana and, under 18 U.S.C. 1165 (which makes it a federal offense to trespass on Indian land to hunt or fish without permission), the United States.
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.
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 [450 U.S. 544, 551] conveyed beneficial ownership of the riverbed to the Crow Tribe by the treaties of 1851 or 1868, and therefore continues to hold the land in trust for the use and benefit of the Tribe, or whether the United States retained ownership of the riverbed as public land which then passed to the State of Montana upon its admission to the Union. Choctaw Nation v. Oklahoma, 397 U.S. 620, 627 -628.
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; 33 U.S.C. 10; 43 U.S.C. 931. Rather, the ownership of land under navigable waters is an incident of sovereignty. Martin v. Waddell, 16 Pet. 367, 409-411. As a general principle, the Federal Government holds such lands in trust for future States, to be granted to such States when they enter the Union and assume sovereignty on an "equal footing" with the established States. Pollard's Lessee v. Hagan, 3 How. 212, 222-223, 229. After a State enters the Union, title to the land is governed by state law. The State's power over the beds of navigable waters remains subject to only one limitation: the paramount power of the United States to ensure that such waters remain free to interstate and foreign commerce. United States v. Oregon, 295 U.S. 1, 14 . It is now established, however, that Congress may sometimes convey lands below the high-water mark of a navigable water.
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, 10 Stat. 1109, and to convey "a sufficient quantity of land for the permanent homes" of the Indians, Treaty of Feb. 22, 1855, 10 Stat. 1165. See Minnesota v. Hitchcock, 185 U.S. 373, 389 . 3 The Court concluded that there was nothing in the treaties "which even approaches a grant of rights in lands underlying navigable waters; nor anything evincing a purpose [450 U.S. 544, 553] to depart from the established policy . . . of treating such lands as held for the benefit of the future State." United States v. Holt State Bank, 270 U.S., at 58 -59. Rather, "[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.
"[T]he United States now solemnly agrees that no persons, except those herein designated and authorized to [450 U.S. 544, 554] do so, and except such officers, agents, and employes of the Government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article for the use of said Indians . . . ." Ibid.
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.
Moreover, even though the establishment of an Indian reservation can be an "appropriate public purpose" within the meaning of Shively v. Bowlby, 152 U.S., at 48 , justifying a congressional conveyance of a riverbed, see, e. g., Alaska Pacific Fisheries v. United States, 248 U.S. 78, 85 , the situation of the Crow Indians at the time of the treaties presented no "public exigency" which would have required Congress to depart from its policy of reserving ownership of beds under navigable waters for the future States. See Shively v. Bowlby, supra, at 48. As the record in this case shows, at the time of the treaty the Crows were a nomadic tribe dependent chiefly on buffalo, and fishing was not important to their diet or way of life. 1 App. 74. Cf., Alaska Pacific Fisheries v. United States, supra, at 88; Skokomish Indian Tribe v. France, 320 F.2d 205, 212 (CA9).
For these reasons, we conclude that title to the bed of the Big Horn River passed to the State of Montana upon its [450 U.S. 544, 557] admission into the Union, and that the Court of Appeals was in error in holding otherwise.
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 non-members 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 18 U.S.C. 1165, and "inherent" Indian sovereignty. We believe that neither source supports the court's conclusion.
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 identifying [450 U.S. 544, 558] Indians who committed depredations against non-Indians. As noted earlier, the treaty did not even create a reservation, although it did designate tribal lands. See Crow Tribe v. United States, 151 Ct. Cl. 281, 285-286, 289, 292, 293, 284 F.2d 361, 364, 366, 368. Only Article 5 of that treaty referred to hunting and fishing, and it merely provided that the eight signatory tribes "do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described." 2 Kappler 595. 6 The treaty nowhere suggested that Congress intended to grant authority to the Crow Tribe to regulate hunting and fishing by nonmembers on nonmember lands. Indeed, the Court of Appeals acknowledged that after the treaty was signed non-Indians, as well as members of other Indian tribes, undoubtedly hunted and fished within the treaty-designated territory of the Crows. 604 F.2d. at 1167.
In Puyallup Tribe v. Washington Game Dept., 433 U.S. 165 (Puyallup III), the relevant treaty included language virtually identical to that in the 1868 Treaty of Fort Laramie. The Puyallup Reservation was to be "set apart, and, so far [450 U.S. 544, 561] as necessary, surveyed and marked out for their exclusive use . . . [and no] white man [was to] be permitted to reside upon the same without permission of the tribe . . . ." See id., at 174. The Puyallup Tribe argued that those words amounted to a grant of authority to fish free of state interference. But this Court rejected that argument, finding, in part, that it "clashe[d] with the subsequent history of the reservation . . .," ibid., notably two Acts of Congress under which the Puyallups alienated, in fee simple, the great majority of the lands in the reservation, including all the land abutting the Puyallup River. Thus, "[n]either the Tribe nor its members continue to hold Puyallup River fishing grounds for their `exclusive use.'" Ibid. Puyallup III indicates, therefore, that treaty rights with respect to reservation lands must be read in light of the subsequent alienation of those lands. Accordingly, the language of the 1868 treaty provides no support for tribal authority to regulate hunting and fishing on land owned by non-Indians.
"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 [450 U.S. 544, 562] by Indians. 10 If Congress had wished to extend tribal jurisdiction to lands owned by non-Indians, it could easily have done so by incorporating in 1165 the definition of "Indian country" in 18 U.S.C. 1151: "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation." Indeed, a Subcommittee of the House Committee on the Judiciary proposed that this be done. But the Department of the Interior recommended against doing so in a letter dated May 23, 1958. The Department pointed out that a previous congressional Report, H. R. Rep. No. 2593, 85th Cong., 2d Sess. (1958), 11 had made clear that the bill contained no implication that it would apply to land other than that held or controlled by Indians or the United States. 12 [450 U.S. 544, 563] The Committee on the Judiciary then adopted the present language, which does not reach fee-patented lands within the boundaries of an Indian reservation.
Beyond relying on the Crow treaties and 18 U.S.C. 1165 as source for the Tribe's power to regulate non-Indian hunting and fishing on non-Indian lands within the reservation, the Court of Appeals also identified that power as an incident of the inherent sovereignty of the Tribe over the entire Crow Reservation. 604 F.2d, at 1170. But "inherent sovereignty" is not so broad as to support the application of Resolution No. 74-05 to non-Indian lands.
"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. . . .
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 [450 U.S. 544, 565] the general principles of retained inherent sovereignty did not authorize the Crow Tribe to adopt Resolution No. 74-05.
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 [450 U.S. 544, 567] or forbidding non-Indian hunting and fishing on lands still owned by or held in trust for the Tribe or its members. Id., at 609.
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.
[ Footnote î ] ERRATA: Insert "very" after "made".
[ Footnote 1 ] According to the respondents, the Crow Tribe's interest in restricting hunting and fishing on the reservation focuses almost entirely on sports fishing and duck hunting in the waters and on the surface of the Big Horn River. The parties, the District Court, and the Court of Appeals have all assumed that ownership of the riverbed will largely determine the power to control these activities. Moreover, although the complaint in this case sought to quiet title only to the bed of the Big Horn River, we note the concession of the United States that if the bed of the river passed to [450 U.S. 544, 551] Montana upon its admission to the Union, the State at the same time acquired ownership of the banks of the river as well.
[ Footnote 2 ] Congress was, of course, aware of this presumption once it was established by this Court. See Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 588 .
[ Footnote 3 ] The Hitchcock decision expressly stated that the Red Lake Reservation was "a reservation within the accepted meaning of the term." 185 U.S., at 389 .
[ Footnote 4 ] "[C]ommencing where the 107th degree of longitude west of Greenwich crosses the south boundary of Montana Territory; thence north along said 107th meridian to the mid-channel of the Yellowstone River; thence up said mid-channel of the Yellowstone to the point where it crosses the said southern boundary of Montana, being the 45th degree of north latitude; and thence east along said parallel of latitude to the place of beginning . . . ." Second Treaty of Fort Laramie, May 7, 1868, Art. II, 15 Stat. 650.
[ Footnote 5 ] In one recent case, Choctaw Nation v. Oklahoma, 397 U.S. 620 , this Court did construe a reservation grant as including the bed of a navigable water, and the respondents argue that this case resembles Choctaw Nation more than it resembles the established line of cases to which Choctaw Nation is a singular exception. But the finding of a conveyance of the riverbed in Choctaw Nation was based on very peculiar circumstances not present in this case.
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 [450 U.S. 544, 556] 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, 7 Stat. 333-334, quoted in Choctaw Nation v. Oklahoma. 397 U.S., at 625 . In 1835, the Cherokees signed a treaty containing similar provisions granting reservation lands in fee simple and promising that the tribal lands would not become part of any State or Territory. Id., at 626. In concluding that the United States had intended to convey the riverbed to the Tribes before the admission of Oklahoma to the Union, the Choctaw Court relied on these circumstances surrounding the treaties and placed special emphasis on the Government's promise that the reserved lands would never become part of any State. Id., at 634-635. Neither the special historical origins of the Choctaw and Cherokee treaties nor the crucial provisions granting Indian lands in fee simple and promising freedom from state jurisdiction in those treaties have any counterparts in the terms and circumstances of the Crow treaties of 1851 and 1868.
[ Footnote 6 ] The complaint in this case did not allege that non-Indian hunting and fishing on reservation lands has impaired this privilege.
[ Footnote 7 ] Article IV of the treaty addressed hunting rights specifically. But that Article referred only to "unoccupied lands of the United States," viz., lands outside the reservation boundaries, and is accordingly not relevant here.
[ Footnote 8 ] The 1920 Crow Allotment Act was one of the special Allotment Acts Congress passed from time to time pursuant to the policy underlying the General Allotment Act. See S. Rep. No. 219, 66th Cong., 1st Sess., 5 (1919). The Senate Committee Report on the Crow Allotment bill stated that it "is in accordance with the policy to which Congress gave its adherence many years ago, and which found expression in the [General Allotment Act]." Ibid.
"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 [450 U.S. 544, 560] 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., id., at 785 (Sen. Morgan), 875 (Sen. Hoar), 876 (Sen. Morgan), 878 (Sens. Hoar and Coke), 881 (Sen. Brown), 908 (Sen. Call), 939 (Sen. Teller), 1028 (Sen. Hoar), 1067 (Sens. Edmunds and Williams). It defies common sense to suppose that Congress would intend that non-Indians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government. And it is hardly likely that Congress could have imagined that the purpose of peaceful assimilation could be advanced if feeholders could be excluded from fishing or hunting on their acquired property.
The policy of allotment and sale of surplus reservation land was, of course, repudiated in 1934 by the Indian Reorganization Act, 48 Stat. 984, 25 U.S.C. 461 et seq. But what is relevant in this case is the effect of the land alienation occasioned by that policy on Indian treaty rights tied to Indian use and occupation of reservation land.
[ Footnote 10 ] See United States v. Bouchard, 464 F. Supp. 1316, 1336 (WD Wis.); United States v. Pollmann, 364 F. Supp. 995 (Mont.).
"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.
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").
[ Footnote 13 ] Any argument that Resolution No. 74-05 is necessary to Crow tribal self-government is refuted by the findings of the District Court that the State of Montana has traditionally exercised "near exclusive" jurisdiction over hunting and fishing on fee lands within the reservation, and that the [450 U.S. 544, 565] parties to this case had accommodated themselves to the state regulation. 457 F. Supp. 599, 610. The Court of Appeals left these findings unaltered and indeed implicitly reaffirmed them, adding that the record reveals no attempts by the Tribe at the time of the Crow Allotment Act to forbid non-Indian hunting and fishing on reservation lands. 604 F.2d, at 1168, and n. 11A.
[ Footnote 14 ] By denying the Suquamish Tribe criminal jurisdiction over non-Indians, however, the Oliphant case would seriously restrict the ability of a tribe to enforce any purported regulation of non-Indian hunters and fishermen. Moreover, a tribe would not be able to rely for enforcement on the federal criminal trespass statute, 18 U.S.C. 1165, since that statute does not apply to fee patented lands. See supra, at 561-563, and nn. 10-12.
[ Footnote 15 ] As a corollary, this Court has held that Indian tribes retain rights to river waters necessary to make their reservations livable. Arizona v. California, 373 U.S. 546, 599 .
[ Footnote 16 ] Similarly, the complaint did not allege that the State has abdicated or abused its responsibility for protecting and managing wildlife, has established its season, bag, or creel limits in such a way as to impair the Crow Indians' treaty rights to fish or hunt, or has imposed less stringent hunting and fishing regulations within the reservation than in other parts of the State. Cf. United States v. Washington, 384 F. Supp. 312, 410-411 (WD Wash.), aff'd, 520 F.2d 676 (CA9).
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 [450 U.S. 544, 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.
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.
"[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.
"[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.
"[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 .
[ Footnote 3 ] 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.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting in part.
As in any case involving the construction of a treaty, it is necessary at the outset to determine what the parties intended. [450 U.S. 544, 570] 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.
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 [450 U.S. 544, 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 specified [450 U.S. 544, 572] 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.
Second: The establishment of the Crow Reservation was [450 U.S. 544, 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 [450 U.S. 544, 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.
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 [450 U.S. 544, 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.
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 [450 U.S. 544, 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.
[ Footnote 1 ] 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.
[ Footnote 2 ] 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.
[ Footnote 3 ] See generally United States v. Sioux Nation of Indians, 448 U.S. 371, 380 , n. 11 (1980) (discussing federal reservation policy).
[ Footnote 4 ] 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).
"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 [450 U.S. 544, 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).
[ Footnote 6 ] 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. VI, VIII, and IX of the treaty, 15 Stat. 650-652.
[ Footnote 7 ] 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, ch. 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 . . . ."
"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).
[ Footnote 8 ] 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 Metlakahtla 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.
[ Footnote 9 ] 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.
[ Footnote 10 ] 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 [450 U.S. 544, 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).
[ Footnote 11 ] 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 .
[ Footnote 12 ] 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." 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.
[ Footnote 13 ] 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.
[ Footnote 14 ] 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.
[ Footnote 15 ] 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").
[ Footnote 16 ] The Court suggests that the fact the United States retained a navigational easement in the Big Horn River indicates that the 1868 treaty [450 U.S. 544, 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.
[ Footnote 17 ] 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 [450 U.S. 544, 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.

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