214
Rehnquist, C. J., dissenting
west Oil Co., 236 U. S. 459 (1915). Dealing with persons whose legal right to come onto the lands and hunt had been extinguished would appear to fall squarely under this power. Whether the President chose to enforce his revocation through an order to leave the land or the ambiguous lesser "measures to make sure that the Chippewa were not hunting, fishing, or gathering" proposed by the Court, ante, at 194, n. 5, is not ours to second-guess a century and a half later. Indeed, although the Court appears to concede that the President had the power to enforce the revocation order, it is difficult to imagine what steps he could have taken to prevent hunting other than ordering the Chippewa not to come onto the land for that purpose. The ceded lands were not a national park, nor did the President have an army of park rangers available to guard Minnesota's wildlife from Chippewa poachers. Removal was the only viable option in enforcing his power under the Treaty to terminate the hunting privilege. Thus, in my view, the final part of the Executive Order discussing removal was lawful.1
1 The Court's assumption that "any general presumption about the legality of executive action runs into the principle that treaty ambiguities are to be resolved in favor of the Indians," ante, at 194, n. 5, illogically confuses the difference between executive authority and a principle of treaty construction. The principle of Winters v. United States, 207 U. S. 564, 567-577 (1908), and County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, 269 (1992), that ambiguities in treaties are to be resolved in favor of the Indians, is only relevant to determining the intent of the parties to a treaty (that is the United States and the Indian tribe), and stems from the idea that in determining the intent of the parties, Indian tribes should be given the benefit of the doubt as against the United States in cases of ambiguous treaty provisions because the United States was presumptively a more sophisticated bargainer. See Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 675-676 (1979). But the determination of whether the President has power to enforce his revocation by removal is irrelevant to the intent of the parties to the treaty (the United States and the Chippewa in this case) and presents instead an issue of separation of powers (between the President and the Congress).
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