220
Thomas, J., dissenting
at 515. Here, the hunting privileges were clearly, like those invalidated in Race Horse, temporary and precarious: The privilege was only guaranteed "during the pleasure of the President"; the legally enforceable annuity payments themselves were to terminate after 20 years; and the Indians were on actual notice that the President might end the rights in the future, App. 78 (1837 Journal of Treaty Negotiations).
Perhaps the strongest indication of the temporary nature of the treaty rights is presented unwittingly by the Court in its repeated (and correct) characterizations of the rights as "usufructuary." As noted supra, at 218, usufructuary rights are by definition "of limited duration." Black's Law Dictionary, supra, at 1544. Thus, even if the Executive Order is invalid; and even if the 1855 Treaty did not cover the usufructuary rights: Under Race Horse, the temporary and precarious treaty privileges were eliminated by the admission of Minnesota to the Union on an equal footing in 1858. Today the Court appears to invalidate (or at least substantially limit) Race Horse, without offering any principled reason to do so.
V
The Court today invalidates for no principled reason a 149-year-old Executive Order, ignores the plain meaning of a 144-year-old treaty provision, and overrules sub silentio a 103-year-old precedent of this Court. I dissent.
Justice Thomas, dissenting.
I join The Chief JusticeTMs dissent, but also write separately because contrary to the majority's assertion, in dicta,
be), but the hunting privileges granted in Race Horse and by the 1837 Treaty in this case reveal themselves to be "temporary and precarious" by their plain text: The privilege in Race Horse ended upon occupation of the hunting districts or the outbreak of hostilities, while the privilege in this case lasted only during the pleasure of the President. Both rights were temporary and precarious, as neither was guaranteed, either expressly or impliedly, in perpetuity.
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