Cite as: 533 U. S. 262 (2001)
Rehnquist, C. J., dissenting
not necessarily follow that Congress intended to reserve title in submerged lands by authorizing negotiations leading to the cession of portions of the reservation established by the 1873 Executive Order.
It is perfectly consistent with the assumption that Congress wanted to preserve the Coeur d'Alene Indians' way of life to conclude that, if Congress meant to grant the Tribe any interest in Lake Coeur d'Alene, it was more likely a right to fish and travel the waters rather than withholding for the Tribe's benefit perpetual title in the underlying lands. See Montana, 450 U. S., at 554 ([Although the treaty] gave the Crow Indians the sole right to use and occupy the reserved land, and, implicitly, the power to exclude others from it, the respondents' reliance on that provision simply begs the question of the precise extent of the conveyed lands to which this exclusivity attaches"); see also ibid. ("The mere fact that the bed of a navigable water lies within the boundaries described in the treaty does not make the riverbed part of the conveyed land, especially when there is no express reference to the riverbed that might overcome the presumption against its conveyance").
For this reason, Congress' decision in 1888 to grant a right-of-way to the Washington and Idaho Railroad Company across a part of the Coeur d'Alene Reservation is not clear evidence of Congress' intent with respect to submerged lands. All but a miniscule portion of the right-of-way passes along surface lands, and it crosses the lake only at one of its narrowest points. There is no mention of submerged lands in the authorizing resolution, and it seems obvious that Congress required the company to pay
an open question whether Executive action alone is sufficient to withhold title to submerged lands. Id., at 43-45; cf. U. S. Const., Art. IV, § 3, cl. 2 ("The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States" (emphasis added)). Thus, the majority rests far too much weight on Idaho's concession regarding the 1873 reservation.
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