Cite as: 521 U. S. 1 (1997)
Opinion of Thomas, J.
has retained title to inland submerged lands. Section 3(a) lands include those beneath both inland and territorial waters. In the case of a State, like Alaska, that received title to all of its submerged lands by virtue of the Submerged Lands Act, there is no need to consult conflicting presumptions, two-part tests, or anything other than the stated policy on which Congress has finally settled.1
The Court seems to agree with me that the Act is now the expression of Congress' policy on submerged lands retention. But, the Court also seems to view the phrase "expressly retained" in the Act as shorthand for the test we employed in Utah Div. of State Lands, a case decided three decades after passage of the Act. That is, to determine whether submerged lands have been "expressly retained," we must determine whether Congress "clearly intended to include land under navigable waters within the federal reservation," and whether Congress "affirmatively intended to defeat the future State's title to such land." 482 U. S., at 202 (emphases added). I find the Court's reading of the "expressly retained" language curious. First, as I discuss below, the language does not lend itself to the Court's construction. Second, it is not the case that the test set forth in Utah Div. of State Lands was simply a restatement of the test employed by the Court before the enactment of the Submerged Lands Act. Were it so, then the majority's assertion that the standard in the Act was described in pre-Act cases and simply "carried forward," ante, at 36, into Utah Div. of State Lands might be colorable. As it happens, in Utah Div. of
1 It is, I think, an open question whether the Submerged Lands Act has any operation as to land beneath inland waters in States that entered the Union prior to its enactment, thus initially obtaining title to submerged lands independently of the Act. Determining whether and how the Act applies to pre-existing States involves, at the least, complex retroactivity questions not presented by this case, given that Alaska became a State after the enactment of the Submerged Lands Act, which Alaska's State-hood Act expressly incorporates.
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