Cite as: 526 U. S. 172 (1999)
Rehnquist, C. J., dissenting
IV
Finally, I note my disagreement with the Court's treatment of the equal footing doctrine, and its apparent overruling sub silentio of a precedent of 103 years' vintage. In Ward v. Race Horse, 163 U. S. 504 (1896), we held that a Treaty granting the Indians "the right to hunt on the unoccupied lands of the United States, so long as game may be found thereon, and so long as peace subsists among the whites and the Indians on the borders of the hunting districts," did not survive the admission of Wyoming to the Union since the treaty right was "temporary and precarious." Id., at 515.
But the Court, in a feat of jurisprudential legerdemain, effectively overrules Race Horse sub silentio. First, the Court notes that Congress may only abrogate Indian treaty rights if it clearly expresses its intent to do so. Next, it asserts that Indian hunting rights are not irreconcilable with state sovereignty, and determines that "because treaty rights are reconcilable with state sovereignty over natural resources, statehood by itself is insufficient to extinguish Indian treaty rights to hunt, fish, and gather on land within state boundaries." Ante, at 205. And finally, the Court hints that Race Horse rested on an incorrect premise—that Indian rights were inconsistent with state sovereignty.
Without saying so, this jurisprudential bait-and-switch effectively overrules Race Horse, a case which we reaffirmed as recently as 1985 in Oregon Dept. of Fish and Wildlife v. Kla-math Tribe, 473 U. S. 753 (1985). Race Horse held merely that treaty rights which were only "temporary and precarious," as opposed to those which were "of such a nature as to imply their perpetuity," do not survive statehood.3 163 U. S.,
3 The Court maintains that this reading of Race Horse is overbroad and would render any right created by operation of federal law "temporary and precarious." Ante, at 206. Nothing could be further from the truth. The outer limit of what constitutes a "temporary and precarious" right is not before the Court (nor, since Race Horse is apparently overruled, will it ever
219
Page: Index Previous 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 NextLast modified: October 4, 2007