Cite as: 518 U. S. 839 (1996)
Breyer, J., concurring
opinion contains language of "unmistakability," the Court was not called upon in Merrion to decide whether a sovereign's promise not to change the law (or to pay damages if it did) was clear enough to justify liability, because there was no evidence of any such promise in the "contracts" in that case. Yet, that is the effect the Government asks us to give the "unmistakability" language in Merrion here.
The Court in Merrion cited Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398 (1934), and St. Louis v. United Railways Co., 210 U. S. 266 (1908), which in turn referred to a line of cases in which the Court held that a government's grant of a bank charter did not carry with it a promise not to tax the bank unless expressed "in terms too plain to be mistaken." Jefferson Branch Bank v. Skelly, 1 Black 436, 446 (1862). These cases illustrate the same point made above: Where a state-granted charter, or franchise agreement, did not implicate a promise not to tax, the Court held that no such promise was made. See Providence Bank v. Billings, 4 Pet. 514, 560, 561 (1830) (promise not to tax "ought not to be presumed" where "deliberate purpose of the state to abandon" power to tax "does not appear"); St. Louis, supra, at 274 (right to tax "still exists unless there is a distinct agreement, clearly expressed, that the sums to be paid are in lieu of all such exactions"). But, where the sovereign had made an express promise not to tax, the Court gave that promise its intended effect. See Jefferson, supra, at 450; Piqua Branch of State Bank of Ohio v. Knoop, 16 How. 369, 378 (1854) (same); New Jersey v. Yard, supra, at 115-117 (same).
Similarly, in the second "unmistakability" case, United States v. Cherokee Nation of Okla., 480 U. S., at 706-707, a Government treaty granted the Tribe title to a riverbed, but it said nothing about the Government's pre-existing right to navigate the river. The Court held that it was most unlikely that a treaty silent on the matter would have conveyed the Government's navigational rights to the Tribe, particularly
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