237

BRENNAN, J., dissenting

The Court's notion of deference to agency expertise in an Indian case, then, appears to go something like this: where a proffered construction of a statute was not followed for two years but was then advocated by private attorneys and "acquiesce[d]" in by the Government as a matter of convenience; where that construction was then used to avoid the fiduciary safeguards of other legislation but withered away after a decade or two; where the construction was followed in less than 10% of the cases to which it could have been applied; where the construction was rejected by the agency more than 40 years ago and branded "irrational" by the agency's top legal officer just last year; and where the Government has urged that the construction be given a narrow compass at most, this Court as a matter of deference to such a "uniform" construction will adopt the most extreme version of that construction as the law of the land."

D. Canons of Construction

Finally, even if the Court's interpretation of § 17 had some plausible basis in the structure of the Pueblo Lands Act or its

over $6.00 an acre," although the Pueblo Lands Board's "own appraisals valued most of it at several hundred dollars an acre." Id., at 44.

"The Court's "deference" to Fraser's 1926 interpretation of § 17's second clause, ante, at 254, n. 29, is unconvincing for an additional reason. At various times Fraser interpreted § 17's first clause as either (1) literally prohibiting any acquisition of interests in Pueblo lands unless Congress "hereafter" authorized such acquisitions, or (2) prohibiting involuntary transfers of such interests without prior congressional approval. See, e. g., Letter from George A. H. Fraser to Attorney General, at 4 (Nov. 4, 1925), reprinted in 2 Kelly 151 (Ex. 35); Letter from George A. H. Fraser to Attorney General, at 3 (Feb. 27, 1926), reprinted in 2 Kelly 164 (Ex. 39). See also App. to Brief for Petitioner 3a-4a. Today the Court rejects both of these interpretations sub silentio, adopting instead a novel interpretation of the first clause of § 17 that no one has ever followed. Ante, at 252-253. The Court's principle of deference to a prior administrative construction therefore appears to be that such deference is appropriate only to the extent that the prior construction accords with the Court's desired interpretation.

BRENNAN, J., dissenting

472 U. S.

62

legislative history, the canons of construction that this Court has followed since early in the 19th century nevertheless should compel its rejection given that other interpretations of § 17 more faithfully hew to the terms of the Nonintercourse Act. The Constitution grants Congress-not this Courtthe power to set national policy respecting Indian lands, and since the 19th century the cornerstone of Congress' policy has been to impose strict restraints on alienation of Indian title-a policy grounded on the federal trust responsibility toward Indian tribes. In accordance with general fiduciary principles, departures from this policy against alienation are not to be "lightly implied." United States ex rel. Hualpai Indians v. Santa Fe Pacific R. Co., 314 U. S. 339, 354 (1941). Ambiguous language in Indian statutes therefore always has been construed in favor of restrictions on alienation. See, e. g., Northern Cheyenne Tribe v. Hollowbreast, 425 U. S. 649, 656 (1976); Starr v. Long Jim, 227 U. S. 613, 622-623 (1913). Congressional intent to authorize the extinguishment of Indian title must be "plain and unambiguous," United States ex rel. Hualpai Indians v. Santa Fe Pacific R. Co., supra, at 346—that is, it either "must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history," Mattz v. Arnett, 412 U. S. 481, 505 (1973) (termination of reservation). Just this

64

2U. S. Const., Art. I, §8, cl. 3: "The Congress shall have Power... To regulate Commerce . . . with the Indian Tribes. . . ." The authority to control tribal property is "one of the most fundamental expressions, if not the major expression, of the constitutional power of Congress over Indian affairs." Delaware Tribal Business Committee v. Weeks, 430 U. S. 73, 86 (1977).

"See, e. g., County of Oneida v. Oneida Indian Nation of New York, 470 U. S. 226, 247-248 (1985); Oneida Indian Nation of New York v. County of Oneida, 414 U. S., at 667-670; United States v. Creek Nation, 295 U. S. 103, 109-111 (1935); Cherokee Nation v. Georgia, 5 Pet., at 17; Johnson and Graham's Lessee v. McIntosh, 8 Wheat. 543, 591, 604 (1823). See generally Cohen 220-228, 508-528.

"See also Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 676 (1979); Bryan v. Itasca County,

237

BRENNAN, J., dissenting

Term, we followed these principles in concluding that various congressional enactments had neither authorized nor ratified sales of land by the Oneida Indian Nation of New York; the congressional language, we found, "far from demonstrates a plain and unambiguous intent to extinguish Indian title." County of Oneida v. Oneida Indian Nation of New York, 470 U. S. 226, 248 (1985). Cf. Montana v. Blackfeet Tribe of Indians, 471 U. S. 759, 765-766 (1985) (state taxation of Indian lands).

Section 17's "puzz[ling]" language, ante, at 253, n. 27, can hardly be characterized as a "plain and unambiguous" statement of congressional intent to enable the Pueblos, unlike any other Indian tribe holding unallotted lands, to alienate their property. The language itself is phrased entirely in the negative ("No right, title or interest shall... be acquired . . . and no sale, grant, lease.... shall be of any validity" (emphasis added)), and is more plausibly read as simply declaratory of restraints already in effect. See supra, at 261-262. When Congress intends affirmatively to authorize Indian tribes or the Secretary to convey interests in Indian lands, it consistently has done so in clear, express language (e. g., "[t]he Secretary... is authorized to grant permission"; "restricted Indian lands... may be leased by the Indian owners")." Congress therefore was "fully aware of the means" by which alienation could have been authorized, Mattz v. Arnett, supra, at 504, and not to employ those means in §17. Moreover, if § 17 was intended to have the broad operative significance that the Court unearths, it is curious why Congress never

426 U. S. 373, 392 (1976); Menominee Tribe v. United States, 391 U. S. 404, 412-413 (1968); Alaska Pacific Fisheries v. United States, 248 U. S. 78, 89 (1918).

"See, e. g., 25 U. S. C. §§ 311–312, 319–321, 322a, 323, 350, 352, 352a, 352b, 373, 373a, 373b, 378-380, 391a, 392-393, 393a, 394-396, 396a, 396e, 396g, 397-398, 398a, 398e, 399-400, 400a, 401-402, 402a, 403, 403a, 403a-1, 403a-2, 403b, 404-409, 409a, 415, 415a, 416, 416c, 463e, 464, 483, 483a, 487, 564c, 564g, 564w-1(b), (e), 564w-2, 574, 593, 608, 610, 610a, 610c, 622, 635, 677h, 6770, 721, 745-746, 953, 958, 973-974.

BRENNAN, J., dissenting

472 U. S.

has seen fit to have it codified in Title 25 of the United States Code. For these reasons, and because the Court's contrary interpretation so clearly flouts the structure of the Pueblo Lands Act, the legislative history, and the significance of subsequent legislation, I must conclude that § 17 can only be read as having attempted to set forth a broad declaratory reaffirmation of the Nonintercourse Act as Congress believed that Act applied to the Pueblos."

It might be argued, however, that the Court's construction treats the Pueblos with a greater degree of respect by giving them broader automony in disposing of tribal lands, and that a contrary reading simply reflects a view that the Pueblos are somehow incapable of managing their own affairs. There is no question that the federal policy against alienation at one time embodied paternalistic notions of "protecting Indians from their own improvidence."" But the federal policy now rests on much different grounds. Congress' policy reflects its determination that restraints on alienation are necessary to "insulate Indian lands from the full impact of market forces" and thereby to preserve "a substantial tribal land base [that is] essential to the existence of tribal society and

"The Court's interpretation stands in violation of other canons of construction as well. Under the interpretation I suggest, Pueblo conveyancing is subject to the full range of procedural and financial safeguards set forth in the statutes governing such conveyances by Indian tribes generally. Under the Court's interpretation, Pueblo conveyancing is not. Yet it is well established that, when faced with two such conflicting interpretations, courts must resolve ambiguities in favor of preserving Indian rights and safeguards-a course dictated by "the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people." Seminole Nation v. United States, 316 U. S. 286, 296 (1942). See United States v. Mitchell, 463 U. S., at 225; McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 174 (1973); Choctaw Nation of Indians v. United States, 318 U. S. 423, 431-432 (1943); Carpenter v. Shaw, 280 U. S. 363, 367 (1930). See generally Cohen

221-225.

67 Id., at 509.

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culture." 68 argued:

BRENNAN, J., dissenting

As the respondent Pueblo of Santa Ana has

"There is no inconsistency in the Pueblos wanting to insure the applicability to their lands of the full array of federal restrictions on alienation. Like other tribes, the Pueblos as communities take the long view in wanting to preserve their homelands. Bitter experience prior to the Pueblo Lands Act, and even more recently . . . has shown that tribal councils can be induced to agree to unwise conveyances. A single such transaction could cause the total loss of the land base, and the ultimate disappearance of the tribal entity. Reposing an unconditioned, delegable power of approval in the Secretary, moreover, may not provide adequate protection against improvident transactions. . . . Characteristically, it is non-Indian entities such as Petitioner and amici who argue for 'emancipation' of the Pueblos.""

The federal policy against alienation, and this Court's longstanding canons of construction deferring to that policy, may or may not ultimately be sound. But that is a question for Congress, and it is not for this Court to indulge in unsupportable statutory analysis simply to further its own views on the proper management of Indian affairs."

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Ibid. "The continued enforcement of federal restrictions, in this view, derives not from a perceived incompetence of the 'ward,' but from a perceived value in the desirability of a separate Indian culture and polity." Id., at 510. See also S. Rep. No. 93-604 (1973) (re Menominee Tribe). "Brief for Respondent 29, n. 25. See also Chambers & Price, Regulating Sovereignty: Secretarial Discretion and the Leasing of Indian Lands, 26 Stan. L. Rev. 1061 (1974).

"The Court repeatedly tries to justify its decision by reference to the so-called "unique status" and "unique and interesting history of the Pueblo Indians.'" Ante, at 240, 242; see also ante, at 251. Yet Congress' consistent judgment-to which some deference is due has since 1851 been that the Pueblo Tribes should be in "the same position . . . as other federally recognized Indian tribes." H. R. Conf. Rep. 94-1439, at 4. Simi