216
Rehnquist, C. J., dissenting
the treaty privileges should be sustained unless the Chippewa are able to clearly demonstrate that President Taylor would not have terminated them without a removal order. But there is no such evidence, and in the absence of evidence challenging the "strongest of presumptions and the widest latitude of judicial interpretation" that we are required to afford President Taylor's actions, we have only the Court's misguided excursion into historiographical clairvoyance. Accordingly, I would conclude, if necessary, that the termination portion of the Executive Order is severable.
Rather than engage in the flawed analysis put forward by the Court, I would instead hold that the Executive Order constituted a valid revocation of the Chippewa's hunting and fishing privileges. Pursuant to a Treaty, the President terminated the Indians' hunting and fishing privileges in an Executive Order which stated, in effect, that the privilege to come onto federal lands and hunt was terminated, and that the Indians move themselves from those lands.
No party has questioned the President's power to terminate the hunting privilege; indeed, the only other evidence in the record of a President's intent regarding the Executive Order is a 1938 letter from President Franklin Roosevelt to one of the Chippewa, in which he stated his understanding that the Indians had "temporarily" enjoyed "the right to hunt and fish on the area ceded by them until such right was revoked by the President" in the 1850 Executive Order. App. to Pet. for Cert. 575 (letter from President Roosevelt to Whitebird, Mar. 1, 1938). President Roosevelt went on to add that since the right to hunt and fish was terminated in 1850, the Chippewa "now have no greater right to hunt or fish on the ceded area . . . than do the other citizens of the State. Therefore, the Indians who hunt or fish . . . are amenable to the State game laws and are subject to arrest and conviction [f]or violation thereof." Id., at 576.
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