Idaho v. United States, 533 U.S. 262, 7 (2001)

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Opinion of the Court

or otherwise disposed of without the consent of the Indians residing on said reservation." Id., at 379.

As before, the agreement was not binding on either party until ratified by Congress. Id., at 382.

In January 1888, not having as yet ratified any agreement with the Tribe, the Senate expressed uncertainty about the extent of the Tribe's reservation and adopted a resolution directing the Secretary of the Interior to "inform the Senate as to the extent of the present area and boundaries of the Coeur d'Alene Indian Reservation in the Territory of Idaho," and specifically, "whether such area includes any portion, and if so, about how much of the navigable waters of Lake Coeur d'Alene, and of Coeur d'Alene and St. Joseph Rivers." S. Misc. Doc. No. 36, 50th Cong., 1st Sess., 1 (1888). The Secretary responded in February 1888 with a report of the Commissioner of Indian Affairs, stating that "the reservation appears to embrace all the navigable waters of Lake Coeur d'Alene, except a very small fragment cut off by the north boundary of the reservation," and that "[t]he St. Joseph River also flows through the reservation." S. Exec. Doc. No. 76, 50th Cong., 1st Sess., 3 (1888). Based largely, it appears, on this report, Idaho conceded in the Court of Appeals (as it does here) that the 1873 Executive Order reservation included submerged lands. See Opening Brief for Appellant in No. 98-35831 (CA9), p. 17 ("Certainly, the State concedes that by 1888, the executive branch had construed the 1873 Coeur d'Alene Reservation as including submerged lands"); Brief for Petitioner 17.

In May 1888, shortly after receiving the Secretary's report, Congress passed an Act granting a right-of-way to the Washington and Idaho Railroad Company "for the extension of its railroad through the lands in Idaho Territory set apart for the use of the Coeur d'Alene Indians by executive order, commonly known as the Coeur d'Alene Indian Reservation." Act of May 30, 1888, ch. 336, 1, 25 Stat. 160. Notably, the Act directed that the Tribe's consent be obtained and that

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