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Opinion of Thomas, J.
National Petroleum Reserve were retained for the United States. It may well be, as the majority concludes, that Congress can retain lands by ratification of or reference to an earlier instrument describing those lands (the majority points here to President Harding's 1923 Executive Order). But, congressional ratification of an instrument that does not—as President Harding's order does not—"in terms embrac[e] the land under the waters" cannot, anymore than a statute that fails to do so, constitute an express retention as required by the Submerged Lands Act.3
Absent an express retention of submerged lands, the Submerged Lands Act effected the transfer of all submerged lands within the Territory of Alaska to the State of Alaska— including those within the boundaries of National Petroleum Reserve Number 4. I dissent from the Court's contrary conclusion.
II
The majority rejects the Master's recommendation that Alaska be found to hold title to the submerged lands within the Arctic National Wildlife Refuge. Although I acknowledge that the question is close, I agree with the Master and would overrule the United States' exception.4
3 The majority points to a prestatehood enactment, Pub. L. 85-303, § 2(a), 71 Stat. 623, granting certain offshore lands to the Territory of Alaska, but excepting from that grant " 'oil and gas deposits located in the submerged lands' " along the Arctic coast of the Reserve. See ante, at 42 (emphasis in original). This statute is said to "reinforc[e]" the "conclusion that Congress was aware when it passed the Alaska Statehood Act that the Reserve encompassed submerged lands." Ibid. But the statute proves little more than that Congress was, circa Alaska's statehood, capable of expressly referring to submerged lands. It does not—and the majority does not claim that it could—operate as an express retention.
4 This conclusion arises out of my review of the United States' exception to the Master's recommendation on Question 9. Before I turn to it, I must admit some bafflement as to why the majority undertakes a review of the Master's recommendation on Question 10. See ante, at 51-55. In answer to Question 10, the Special Master, using reasoning parallel to that of his discussion of National Petroleum Reserve No. 4, concluded that the
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