692
Opinion of the Court
dian Reorganization Act, 45 Stat. 984, 25 U. S. C. § 461 et seq. 450 U. S., at 559-560, n. 9. However, at the end of this discussion, the Court unequivocally stated that "what is relevant . . . is the effect of the land alienation occasioned by that policy on Indian treaty rights tied to Indian use and occupation of reservation land." 450 U. S., at 560, n. 9 (emphasis added). Thus, regardless of whether land is conveyed pursuant to an Act of Congress for homesteading or for flood control purposes, when Congress has broadly opened up such land to non-Indians, the effect of the transfer is the destruction of pre-existing Indian rights to regulatory control.13 Although Montana involved lands conveyed in fee to non-Indians within the Crow Reservation, Montana's framework for examining the "effect of the land alienation" is applicable to the federal takings in this case.
The takings at issue here do differ from the conveyances of fee title in Montana, however, in that the terms of the
13 The dissent argues that our reliance on Montana v. United States and Brendale is misplaced and insists that in Montana we did not reject the relevance of congressional purpose, but merely "specifie[d] which congressional purpose is relevant—i. e., its purpose at the time Indian land is alienated." Post, at 702. We are unable to wring such meaning out of Montana's simple statement that "what is relevant . . . is the effect of the land alienation." 450 U. S., at 560, n. 9 (emphasis added).
Moreover, even when the dissent engages in the congressional purpose inquiry that Montana eschews, it errs in stating that Congress "simply wished to build a dam." Post, at 698. In fact, as the dissent acknowledges, post, at 702, Congress in the Flood Control Act also mandated that the water projects serve as recreational facilities for the general public for activities such as "boating, swimming, bathing, [and] fishing," subject to such "rules and regulations as the Secretary of the Army may deem necessary." 16 U. S. C. § 460d. Contrary to the dissent's reasoning, see post, at 700, that Congress vested the Secretary of the Army with broad regulatory authority over the management of these lands is explicit evidence that Congress "considered the possibility that by taking the land . . . it would deprive the Tribe of its authority to regulate non-Indian hunting and fishing on that land." Ibid.
Page: Index Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 NextLast modified: October 4, 2007