ALASKA v. UNITED STATES on exceptions to report of special master

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ALASKA v. UNITED STATES
on exceptions to report of special master
No. 128, Orig. Argued January 10, 2005—Decided June 6, 2005
States are generally entitled “under both the equal footing doctrine and
the Submerged Lands Act to submerged lands beneath tidal and inland
navigable waters, and under the Submerged Lands Act alone to sub
merged lands extending three miles seaward of [their] coastline[s].”
United States v. Alaska, 521 U. S. 1, 6 (Alaska (Arctic Coast)). The
Federal Government can overcome the presumption of title and defeat
a future State’s claim, however, by setting submerged lands aside before
statehood in a way that shows an intent to retain title. Id., at 33–34.
Here, Alaska and the United States dispute title to two areas of sub
merged lands. The first consists of pockets and enclaves of submerged
lands underlying waters in the Alexander Archipelago that are more
than three nautical miles from the coast of the mainland or any individ
ual island. Alaska can claim these pockets and enclaves only if the
archipelago waters themselves qualify as inland waters. The second
area consists of submerged lands beneath the inland waters of Glacier
Bay, a well-marked indentation into the southeastern Alaskan coast.
To claim them, the United States must rebut Alaska’s presumption of
title. The Special Master recommended that summary judgment be
granted to the United States with respect to both areas, concluding that
the Alexander Archipelago waters do not qualify as inland waters either
under a historic inland waters theory or under a juridical bay theory,
and concluding that the United States had rebutted the presumption
that title to the disputed submerged lands beneath Glacier Bay passed
to Alaska at statehood. Alaska filed exceptions to these conclusions.
Held: Alaska’s exceptions are overruled. Pp. 81–110.
(a) The Alexander Archipelago’s waters are not historic inland
waters. To make a historic waters claim, a State must show that the
United States exercises authority over the area, has done so continu
ously, and has done so with the acquiescence of foreign nations. This
“exercise of sovereignty must have been, historically, an assertion of
power to exclude all foreign vessels and navigation,” United States v.
Alaska, 422 U. S. 184, 197, including vessels engaged in “innocent pas
sage,” i. e., passage that does not prejudice the coastal State’s peace,
good order, or security. Based on his examination of five different peri
ods from 1821 to the present, the Special Master found that Russia and
the United States historically have not asserted the requisite authority

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76 ALASKA v. UNITED STATES
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over the waters of the Alexander Archipelago. The evidence that
Alaska points to—including incidents during Russian and early United
States sovereignty, and the United States’ litigating position during a
1903 arbitration proceeding—is insufficient to demonstrate the continu
ous assertion of exclusive authority, with acquiescence of foreign na
tions, necessary to support a historic inland waters claim. Pp. 81–92.
(b) Nor do the Alexander Archipelago’s waters qualify as inland wa
ters under the juridical bay theory Alaska advances in the alternative.
The claimed juridical bays would exist only if, at minimum, four of the
archipelago’s islands were deemed to form a constructive peninsula ex
tending from the mainland and dividing the archipelago’s waters in two.
Yet even assuming, arguendo, that each of the islands should be assimi
lated one to another, Alaska’s hypothetical bays still would not meet the
criteria for juridical bays set forth in Article 7(2) of the Convention on
the Territorial Sea and the Contiguous Zone (hereinafter Convention).
In particular, the resulting bodies of water north and south of Alaska’s
constructive peninsula do not qualify as well-marked indentations under
the Convention, for they do not possess physical features that would
allow a mariner looking at navigational charts that do not depict bay
closing lines nonetheless to perceive the bays’ limits in order to avoid
illegal encroachment into inland waters. Pp. 92–96.
(c) The United States has rebutted Alaska’s presumed title to the sub
merged lands underlying the waters of Glacier Bay National Monument
(now Glacier Bay National Park). The United States can defeat a fu
ture State’s presumed title to submerged lands by, inter alia, setting
the lands aside as part of a federal reservation “such as a wildlife
refuge.” Idaho v. United States, 533 U. S. 262, 273. To determine
whether Congress has used that power, this Court first asks whether
the United States clearly intended to include the submerged lands
within the reservation. If the answer is yes, the Court then asks
whether the United States expressed its intent to retain federal title to
the lands within the reservation.
The Special Master’s conclusion that the monument, at the time of
Alaska’s statehood, included the submerged lands underlying Glacier
Bay has strong support in the precedents and whole record of the case,
and Alaska does not take exception to it. As for the second question,
the Alaska Statehood Act’s (ASA) provisions suffice to overcome Alas
ka’s ownership presumption arising from the equal-footing doctrine and
the Submerged Lands Act (SLA) and to reserve Glacier Bay’s sub
merged lands to the United States.
Under the ASA, Alaska acquired title to any property previously be
longing to the Territory of Alaska and the United States retained title
to its property located within Alaska’s borders, subject to exceptions set

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forth in ASA § 6. The first clause of § 6(e) directs a transfer to Alaska
of any United States property used “for the sole purpose of conservation
and protection of [Alaska’s] fisheries and wildlife” under three specified
federal laws. The second proviso following that clause made clear that
the initial clause’s directive did not apply to “lands withdrawn or other
wise set apart as refuges or reservations for [wildlife] protection.” In
Alaska (Arctic Coast), this Court held that the proviso expressed con
gressional intent to retain title to a reservation such as the Arctic Na
tional Wildlife Refuge, and that intent was sufficient to defeat Alaska’s
presumed title under both the equal-footing doctrine and the SLA.
Alaska cannot avoid that result here.
Alaska’s narrow reading—that the proviso applies only to federal
property covered by § 6(e)’s initial clause, which does not include Glacier
Bay—is neither necessary nor preferred. A proviso may refer only to
things covered by a preceding clause, but it can also state a general,
independent rule. The Court agrees with the United States that the
proviso is best read, in light of the interpretation given to it in Alaska
(Arctic Coast), as expressing an independent and general rule uncoupled
from the initial clause. Under the initial clause the United States obli
gated itself to transfer to Alaska equipment and other property used
for general fish and wildlife management responsibilities Alaska was
to undertake upon acquiring statehood. Under the proviso the United
States expressed its intent, notwithstanding this property transfer, to
retain ownership over all federal refuges and reservations set aside for
the protection of wildlife, regardless of the specific statutory authority
enabling the set-aside. This expression of intent encompassed Glacier
Bay National Monument, which was set aside “for the protection of wild
life” within the meaning of § 6(e). The text thus defeated the presump
tion that the new State of Alaska would acquire title to the submerged
lands underlying the monument’s waters, including the inland waters of
Glacier Bay. Pp. 96–110.
Exceptions overruled.
Kennedy, J., delivered the opinion for a unanimous Court with respect
to Parts I, II, III, and IV, the opinion of the Court with respect to Part V,
in which Stevens, O’Connor, Souter, Ginsburg, and Breyer, JJ.,
joined, and the opinion of the Court with respect to Part VI, in which
Stevens, O’Connor, Souter, Ginsburg, and Breyer, JJ., joined, and
in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined except as
to those portions related to Part V. Scalia, J., filed an opinion concurring
in part and dissenting in part, in which Rehnquist, C. J., and Thomas, J.,
joined, post, p. 113.

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78 ALASKA v. UNITED STATES
Opinion of the Court
Jonathan S. Franklin argued the cause for plaintiff.
With him on the brief were Gregg D. Renkes, Attorney Gen
eral of Alaska, Joanne M. Grace and Laura C. Bottger, As
sistant Attorneys General, and G. Thomas Koester.
Jeffrey P. Minear argued the cause for the United States.
With him on the briefs were Acting Solicitor General Clem
ent, Assistant Attorney General Sansonetti, Deputy Soli
citor General Kneedler, Michael W. Reed, and Bruce M.
Landon.*
Justice Kennedy delivered the opinion of the Court.
The State of Alaska has invoked our original jurisdiction
to resolve its dispute with the United States over title to
certain submerged lands underlying waters located in south
east Alaska. Alaska initiated the action by filing a com
plaint with leave of the Court. 530 U. S. 1228 (2000). We
appointed Professor Gregory E. Maggs to act as Special Mas
ter in this matter. 531 U. S. 941 (2000). The Special Mas
ter gave thorough consideration to the written and oral
submissions of the parties. In a detailed report he now
recommends the grant of summary judgment to the United
States with respect to all the submerged lands in dispute.
Report of Special Master 1 (hereinafter Report or Special
Master’s Report). We set the case for oral argument on
Alaska’s exceptions to the Special Master’s Report. 543
U. S. 953 (2004). For the reasons we discuss, Alaska’s excep
tions are overruled.
I
We begin by reviewing the general principles elaborated
in the resolution of similar submerged lands disputes in our
earlier cases.
States enjoy a presumption of title to submerged lands
beneath inland navigable waters within their boundaries and
*Louis R. Cohen filed a brief for the National Parks Conservation Asso
ciation as amicus curiae.

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beneath territorial waters within three nautical miles of
their coasts. This presumption flows from two sources.
Under the established rule known as the equal-footing doc
trine, new States enter the Union “on an ‘equal footing’ with
the original 13 Colonies and succeed to the United States’
title to the beds of navigable waters within their bound
aries.” United States v. Alaska, 521 U. S. 1, 5 (1997)
(Alaska (Arctic Coast)). Under the Submerged Lands Act
(SLA), 67 Stat. 29, 43 U. S. C. § 1301 et seq., which applies to
Alaska through an express provision of the Alaska Statehood
Act (ASA), § 6(m), 72 Stat. 343, the presumption of state title
to “lands beneath navigable waters within the boundaries of
the respective States” is “confirmed” and “established.” 43
U. S. C. § 1311(a); see also Alaska (Arctic Coast), 521 U. S.,
at 5–6. The SLA also “establishes States’ title to sub
merged lands beneath a 3-mile belt of the territorial sea,
which would otherwise be held by the United States.” Id.,
at 6. “As a general matter, then, Alaska is entitled under
both the equal footing doctrine and the Submerged Lands
Act to submerged lands beneath tidal and inland navigable
waters, and under the Submerged Lands Act alone to sub
merged lands extending three miles seaward of its coast
line.” Ibid.
The Federal Government can overcome the presumption
and defeat a future State’s title to submerged lands by set
ting them aside before statehood in a way that shows an
intent to retain title. Id., at 33–34. The requisite intent
must, however, be “ ‘definitely declared or otherwise made
very plain.’ ” Id., at 34 (quoting United States v. Holt State
Bank, 270 U. S. 49, 55 (1926)).
With these principles in mind, we discuss the two areas of
submerged land at issue here.
II
The first area of submerged land in dispute, claimed by
Alaska under alternative theories in counts I and II of its

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amended complaint to quiet title (hereinafter Amended Com
plaint), consists of pockets and enclaves of submerged lands
underlying waters in between and fringing the southeastern
Alaska islands known as the Alexander Archipelago. These
disputed submerged lands, shown in red and dark blue on
the map in Appendix A, infra, share a common feature: All
points within the pockets and enclaves are more than three
nautical miles from the coast of the mainland or of any indi
vidual island of the Alexander Archipelago.
For these pockets and enclaves, the dispositive question is
whether the Alexander Archipelago’s waters qualify as in
land waters. If they do, Alaska’s coastline would begin at
the outer bounds of these inland waters as marked by the
black line drawn on the map in Appendix A, infra. See 43
U. S. C. § 1301(c) (“The term ‘coast line’ means the line of
ordinary low water along that portion of the coast which is
in direct contact with the open sea and the line marking the
seaward limit of inland waters”); see also United States v.
Alaska, 422 U. S. 184, 187–188, and n. 5 (1975) (Alaska (Cook
Inlet)). Under the equal-footing doctrine and the SLA, a
presumption of state title would then arise as to all the sub
merged lands underlying both the inland waters landward of
this coastline, and also the territorial sea within three nauti
cal miles of it. Because the United States concedes it could
not rebut the presumption of state title as to this aspect of
the case, Alaska would have title to all the pockets and en
claves of submerged lands in dispute.
If the Alexander Archipelago’s waters do not qualify as
inland, then they instead qualify as territorial sea. In that
case Alaska would have no claim of title to the disputed pock
ets and enclaves, as these lands are beyond three nautical
miles from the coast of the mainland or any individual island.
The second area of submerged land in dispute, claimed by
Alaska in count IV of its Amended Complaint, consists of the
submerged land beneath Glacier Bay, a well-marked indenta
tion into the coast of the southeast Alaskan mainland. See

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Appendixes C, D, infra (maps of Glacier Bay). There is
no question that Glacier Bay’s waters are inland. For the
submerged lands underlying these waters, the controlling
question is whether the United States can rebut Alaska’s
presumption of title.
After receiving the parties’ written submissions and con
ducting a hearing, the Special Master recommended that this
Court grant summary judgment to the United States with
respect to Alaska’s claims of title to both areas of submerged
land in dispute. Report 1. As to the pockets and enclaves,
the Special Master concluded that the waters of the Alexan
der Archipelago do not qualify as inland waters either under
the historic inland waters theory advanced in count I of Alas
ka’s Amended Complaint or under the juridical bay theory
advanced in count II. Id., at 137–138, 226. As to the sub
merged lands underlying Glacier Bay and claimed by Alaska
in count IV, the Special Master concluded that the United
States has rebutted the presumption that title passed to
Alaska at statehood. Id., at 276. Alaska filed exceptions to
each of these three conclusions. We address them in turn.
III
In count I of its Amended Complaint, Alaska alleges that
the waters of the Alexander Archipelago are historic inland
waters. As this Court has recognized, “where a State
within the United States wishes to claim submerged lands
based on an area’s status as historic inland waters, the State
must demonstrate that the United States: (1) exercises au
thority over the area; (2) has done so continuously; and
(3) has done so with the acquiescence of foreign nations.”
Alaska (Arctic Coast), supra, at 11. “For this showing,” we
have elaborated, “the exercise of sovereignty must have
been, historically, an assertion of power to exclude all foreign
vessels and navigation.” Alaska (Cook Inlet), supra, at 197.
Nations may exclude from inland waters even vessels en
gaged in so-called “innocent passage”—passage that “is not

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prejudicial to the peace, good order or security of the coastal
State,” Arts. 14(1), 14(4) of the Convention on the Territorial
Sea and the Contiguous Zone, Apr. 29, 1958, [1964] 15 U. S. T.
1607, 1610, T. I. A. S. No. 5639 (hereinafter Convention).
See United States v. Louisiana, 470 U. S. 93, 113 (1985) (Ala
bama and Mississippi Boundary Case); United States v.
Louisiana, 394 U. S. 11, 22 (1969). To claim a body of water
as historic inland water, it is therefore important to establish
that the right to exclude innocent passage has somehow been
asserted, even if never actually exercised. See Alabama
and Mississippi Boundary Case, 470 U. S., at 113, and n. 13.
The Court also has considered the “vital interests of the
United States” in designating waters as historic inland wa
ters. Id., at 103.
The Special Master recommended that the Court grant
summary judgment to the United States on this count. The
Special Master first made a thorough examination of histor
ical documents, from 1821 to the present, bearing on the
status of the Alexander Archipelago’s waters. The Special
Master sorted these documents into five distinct periods:
(1) Russian sovereignty (1821–1867), Report 23–38; (2) early
American sovereignty (1867–1903), id., at 38–55; (3) the 1903
U. S.-Britain Boundary Arbitration, id., at 56–63; (4) later
American sovereignty (1903–1959), id., at 63–89; and (5) the
poststatehood era (1959–present), id., at 89–107. Based on
his examination of the record evidence from all of these pe
riods, the Special Master concluded that “Russia and the
United States historically did not assert authority to exclude
vessels from making innocent passage through the waters
of the Alexander Archipelago.” Id., at 109. In the Special
Master’s view, Alaska had at best “uncovered and presented
only ‘questionable evidence’ that the United States exercised
the kind of authority over the waters of the Archipelago that
would be necessary to prove a historic waters claim.” Id.,
at 129.

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Though Alaska’s failure to demonstrate that the waters of
the Alexander Archipelago had historically been treated as
inland waters would by itself justify granting summary judg
ment to the United States on count I, the Special Master also
addressed other relevant factors, such as the acquiescence of
other nations and the vital interests of the United States.
In the Special Master’s view these factors only strengthened
the case for granting summary judgment to the United
States.
Excepting to the Special Master’s recommendation on
count I, Alaska contends the Special Master gave too little
weight to historical events that tend to support Alaska’s po
sition. By the same token Alaska argues the Special Master
gave too much weight to historical events that tend to under
mine its position. Alaska also asserts that foreign nations
have acquiesced in the treatment of the waters of the Alex
ander Archipelago as inland waters, and that the interests of
the United States support such treatment. We find Alaska’s
arguments unconvincing.
Rather than canvassing the entire historical record dis
cussed by the Special Master in his thorough, commendable
report, we turn our attention to the events Alaska presents
as its best evidence that the Alexander Archipelago’s waters
qualify as historic inland waters.
A
First in time among the events to which Alaska points
are incidents from the period of Russian sovereignty. These
incidents are pertinent to the inquiry because, as we have
held, when Russia ceded the territory of Alaska to the
United States in 1867, “the United States thereby acquired
whatever dominion Russia had possessed.” Alaska (Cook
Inlet), 422 U. S., at 192, n. 13.
In 1824, the United States and Russia entered into a treaty
that, inter alia, granted United States vessels the right, over

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the next 10 years, to “frequent, without any hindrance what
ever, the interior seas, gulphs, harbours, and creeks [of the
Alexander Archipelago], for the purpose of fishing and trad
ing with the natives of the country.” See Convention Be
tween the United States of America and Russia, Art. 4, 8
Stat. 304 (1825) (hereinafter 1824 Treaty or Treaty). In
Alaska’s view this Treaty demonstrates that “the Russian
claim extended to the entire Archipelago” and thus that Rus
sia treated the archipelago waters as inland waters. Excep
tions to Report of Special Master and Brief in Support for
Plaintiff 29 (hereinafter Exceptions and Brief for Plaintiff
Alaska). The principal problem with Alaska’s assertion is
that the 1824 Treaty by its terms did not address navigation
for the purpose of innocent passage, but rather addressed
only navigation “for the purpose of fishing and trading with
the natives.” Even on the questionable assumption that the
Treaty’s reference to “interior seas” included all the waters
of the Alexander Archipelago and not just waters within
three nautical miles of the coast of the mainland or any par
ticular island, but see Report 27–28 (refuting this assump
tion), the Treaty simply does not provide evidence that
Russia asserted a right to exclude innocent passage. Yet
evidence of the assertion of this right—not some lesser
right—must be provided to support a historic inland waters
claim. See Alaska (Cook Inlet), supra, at 197.
Upon the expiration of the 10-year right granted to United
States vessels by virtue of the 1824 Treaty, Russia stationed
a brig, the Chichagoff, at the southern border of Russian
America. Alaska implies that Russia’s purpose in stationing
the brig there was to exclude any foreign vessels from enter
ing the Alexander Archipelago’s waters. See Exceptions
and Brief for Plaintiff Alaska 30–31. Were we to accept this
interpretation of the Chichagoff incident, we would acknowl
edge it as some evidence that Russia treated the Alexander
Archipelago’s waters as inland waters.

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As the Special Master noted, however, a report prepared
for the 1903 Alaskan Boundary Tribunal (a tribunal we will
discuss further) described the Chichagoff incident as follows:
“Governor Wrangell sent the brig Chichagoff, under
command of Lieutenant Zarembo, to Tongas, near the
southern boundary line at 54� 40�, for the purpose of
intercepting foreign vessels entering the inland waters
of the colony, to the masters of which he was to deliver
written notice of the expiration of the treaty provisions,
being furnished with six copies for American and three
for British vessels.” 1 Proceedings of the Alaskan
Boundary Tribunal, S. Doc. No. 162, 58th Cong., 2d Sess.,
pt. 2, p. 70 (1904) (hereinafter ABT Proceedings) (foot
note omitted).
Like the Special Master, we see nothing in this passage to
indicate that Russia, through its actions with respect to the
Chichagoff, asserted a right to exclude from the Alexander
Archipelago waters foreign vessels engaged only in innocent
passage. By giving written notice of the expiration of the
1824 Treaty rights, the Chichagoff reminded American mari
ners that they were no longer free to trade with the natives,
or to approach within cannon shot of the Russian lands
“without any hindrance whatever.” 1824 Treaty, Art. 4, 8
Stat. 304. Russia did not assert thereby the more sweep
ing right to exclude even vessels engaged only in innocent
passage.
Alaska also points to evidence that in 1836 Russian forces
apprehended and boarded the American vessel Loriot while
it was within the Alexander Archipelago waters, and then
ordered it “ ‘to leave the waters of His Imperial Majesty.’ ”
Exceptions and Brief for Plaintiff Alaska 30; see also Letter
from John Forsyth to G. M. Dallas (May 4, 1837), reprinted
in Report of Secretary of State Thomas F. Bayard upon the
Seal Fisheries in the Bering Sea, S. Exec. Doc. No. 106, 50th
Cong., 2d Sess., 232–233 (1889). Even this incident does not

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constitute evidence that Russia viewed the archipelago wa
ters as inland waters, however, because the Loriot was
not engaged in innocent passage. The Loriot’s mission, as
freely admitted in a contemporary letter written by a State
Department official to a member of the United States lega
tion in St. Petersburg, was to visit “the northwest coast of
America, for the purpose of procuring provisions, and also
Indians to hunt for sea otter on the said coast.” Id., at 232.
By excluding the Loriot, which evidently had tried to exceed
the limits of mere “innocent passage,” Russia did not, and
could not, assert a right to exclude vessels engaged solely in
innocent passage.
In sum, none of the incidents Alaska cites from the period
of Russian sovereignty support the proposition that Russia
treated the waters of the Alexander Archipelago as inland
waters prior to ceding Alaska to the United States in 1867.
B
For the period of early U. S. sovereignty between 1867 and
1903, Alaska cites not a single incident demonstrating that
the United States acted in a manner consistent with an un
derstanding that the Alexander Archipelago waters were in
land. Alaska thus leaves itself with at most 56 years to
demonstrate continuous prestatehood treatment of the Alex
ander Archipelago as inland waters. This alone constitutes
a substantial weakness in Alaska’s position.
As to the years between 1867 and 1903, Alaska does at
tempt to explain away a significant event which undercuts
its claim, but this attempt is unsuccessful. In 1886, Secre
tary of State Thomas F. Bayard wrote a letter to Secretary
of Treasury Daniel Manning concerning the limits of the ter
ritorial waters of the United States on both the northeastern
and the northwestern coasts. See 1 J. Moore, Digest of In
ternational Law 718–721 (1906). The State Department’s
position with respect to waters surrounding fringing islands
on both coasts was that the sovereigns of those islands could

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only claim a territorial sea of three miles from the coast of
each island. Secretary Bayard explained that, in asserting
the 3-mile belt of territorial sea, the United States denied
neither “the free right of vessels of other nations to pass, on
peaceful errands, through this zone” nor the right “of relief,
when suffering from want of necessaries, from the shore.”
Id., at 720–721 (internal quotation marks omitted).
According to Secretary Bayard, the State Department’s
position was a well-considered one, rooted in principles of
reciprocity and consistent practice:
“These rights we insist on being conceded to our fish
ermen in the northeast, where the mainland is under the
British sceptre. We can not refuse them to others on
our northwest coast, where the sceptre is held by the
United States. We asserted them . . . against Russia,
thus denying to her jurisdiction beyond three miles on
her own marginal seas. We can not claim greater juris
diction against other nations, of seas washing territories
which we derived from Russia under the Alaska pur
chase.” Id., at 721 (internal quotation marks omitted).
The Special Master singled out this letter as “unambiguously
support[ing] the United States’ position that the United
States and Russia historically did not assert the right to ex
clude foreign vessels from the waters of the Archipelago.”
Report 109. Emphasizing the statements in the letter that
the United States could not “ ‘claim greater jurisdiction’ ”
than three miles of marginal seas and that foreign vessels
had the right to make “ ‘free transit,’ ” the Special Master
concluded that “[o]fficials who held this belief could not, and
evidently did not, claim that the United States could exclude
innocent passage through the waters.” Id., at 110.
Alaska argues that Secretary Bayard’s letter is of minimal
relevance because “it was internal correspondence that pri
marily addressed a dispute on the East coast” and thus “did
not announce to any foreign nation that the United States

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had abandoned a claim to the Archipelago.” Exceptions and
Brief for Plaintiff Alaska 31–32. Alaska’s arguments are un
persuasive. That Secretary Bayard’s letter referred to the
east coast in no way diminishes the unequivocal nature of its
statements with respect to the Alaskan coast. It may be
true that no foreign nation ever became aware of Secretary
Bayard’s letter (though the subsequent publication of the let
ter in the United States’ Digest of International Law gives
us reason to believe the contrary). Regardless, Secretary
Bayard’s letter still provides strong evidence that the United
States, as of 1886, did not claim a right to exclude all foreign
vessels from the Alexander Archipelago waters and had no
intention of doing so. We do not need to parse the letter to
see whether it “announce[d] to any foreign nation that the
United States had abandoned a claim to the Archipelago,”
for Alaska can muster no proof that the United States as of
1886 had made any such claim in the first place.
C
A stronger piece of evidence Alaska identifies to support
its historic inland waters claim is a litigating position taken
by the United States during an arbitration proceeding in
1903. This proceeding was before the Alaskan Boundary
Tribunal, a body convened to resolve a dispute between the
United States and Britain regarding the land boundary
between southeastern Alaska and Canada. Report 56–63,
116–119.
In a written submission to the tribunal, the United States
described its view of the “political coast” of Alaska as enclos
ing all of the Alexander Archipelago waters, as shown on
the map in Appendix A, infra. 4 ABT Proceedings, pt. 1,
pp. 31–32 (1903). According to the United States’ submis
sions, “[t]he boundary of Alaska,—that is, the exterior
boundary from which the marine league [of the territorial
sea] is measured,—runs along the outer edge of the Alaskan
or Alexander Archipelago, embracing a group composed of

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hundreds of islands.” 5 id., pt. 1, at 15–16. At oral argu
ment before the tribunal, moreover, counsel for the United
States made explicit that the recognition of such a “political
coast” would render all waters landward of it “just as much
interior waters as the interior waters of Loch Lomond.” 7
id., at 611 (1904).
Before the Special Master in the instant case, the United
States sought to discount as mere hypothetical statements
the submissions it had made at the tribunal a full century
prior. The Special Master rejected this view and instead
agreed with Alaska that in its submissions to the tribunal
the United States “was expressing a considered analysis of
the [Alexander Archipelago] area, not merely speaking hypo
thetically for the purpose of showing a flaw in Britain’s argu
ment.” Report 61. Ultimately, however, the Special Mas
ter still concluded that the United States’ submissions to the
tribunal were “not an adequate assertion of authority over
the waters of the Alexander Archipelago.” Id., at 118. The
Special Master noted that the issue before the 1903 tribunal
was not “[t]he status of the waters of the Alexander Archi
pelago,” ibid., but rather the land boundary between south
east Alaska and Canada; that the United States’ declarations
regarding the status of the Alexander Archipelago took up
“only a few paragraphs in a seven volume record”; and that
“[f]or these reasons, it would be unrealistic to conclude that
counsel’s assertions at the tribunal should have made foreign
nations (other than Britain) aware that the United States
was asserting a right to exclude them,” ibid.
Alaska responds that the Special Master was incorrect to
conclude that the United States’ submissions in 1903 could
not have made foreign nations other than Britain aware of
its claim. Alaska argues that Norway became aware of the
United States’ submissions and then relied on them in its
dispute with the United Kingdom in the well-known Fisher
ies Case (U. K. v. Nor.), 1951 I. C. J. 116 (Judgment of Dec.
18). As the Special Master explained, however, “[t]he abil

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ity of one foreign nation to discover the United States’ argu
ment when litigating a related issue . . . does not mean that
foreign nations should have known of the United States’ posi
tion.” Report 118, n. 34. This reasoning carries particular
force in light of the precedent a contrary conclusion would
create. If this Court were to recognize historic inland wa
ters claims based on arguments made by counsel during liti
gation about nonmaritime boundaries, “the United States
would itself become vulnerable to similarly weak claims by
other nations that would restrict the freedom of the seas.”
Reply Brief for United States in Response to Exceptions of
the State of Alaska 15–16 (hereinafter Reply Brief for
United States). We are reluctant to create a precedent that
would have this effect.
D
The litigating position taken by the United States at the
ABT Proceedings at best would provide weak support for
inland status of the Alexander Archipelago waters even were
we to accept it as signaling a significant change from the
view expressed in Secretary Bayard’s letter of 1886; for
there is little evidence that the United States later acted in a
manner consistent with this litigating position. Alaska says
that the United States asserted control over the waters by
enacting and enforcing fishery regulations in the Alexander
Archipelago during the first half of the 20th century. Ex
ceptions and Brief for Plaintiff Alaska 25–29. In particular,
Alaska cites the 1906 Alien Fishing Act, 34 Stat. 263, which
prohibited foreign, but not domestic, commercial fishing “in
any of the waters of Alaska.” As its sole evidence that the
Act was enforced even in the pockets and enclaves at issue,
Alaska cites the seizure by the United States Coast Guard
in 1924 of the Canadian vessel Marguerite, whose captain
was fined $100 for fishing in contravention of the Act.
Assuming, arguendo, that the Marguerite was seized in
one of the disputed pockets or enclaves, a point which the
Special Master found unclear, Report 67–68, this one incident

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hardly suffices to demonstrate a continuous policy. Indeed,
contrary authority exists. In 1934 the Departments of State
and Commerce exchanged letters expressing their shared
understanding that the United States lacked the power to
enforce the Act more than three miles from the shore of any
island or the mainland. Id., at 70–71 (quoting Letter from
Daniel C. Roper, Secretary of Commerce, to Secretary of
State 1 (Sept. 5, 1934) (“ ‘Canadian fishermen may operate [in
the Alexander Archipelago waters] so long as they remain out
side the three mile limit’ ”); and Letter from William Phillips,
Under Secretary of State, to Secretary of Commerce 1 (Sept.
13, 1934) (expressing appreciation for the assurance “ ‘that
the Fishery laws and regulations will be enforced by the Bu
reau of Fisheries in conformity with the view that Canadian
fishermen may operate [in the Alexander Archipelago wa
ters] so long as they remain outside the three-mile limit’ ”)).
This understanding was inconsistent with a view of the Alex
ander Archipelago waters as inland. Report 70–71, 110–111.
Even were the seizure of the Marguerite taken as evidence
of a right asserted by the United States in 1924, the official
correspondence cited by the Special Master establishes that
by 1934 the United States had reverted to the position taken
in Secretary Bayard’s 1886 letter. As the United States ob
serves, furthermore, the fact that Britain protested the sei
zure of the Marguerite indicates that any claim of right im
plied from that seizure was not one in which foreign nations
acquiesced. Reply Brief for United States 17, n. 10.
Alaska also refers to various poststatehood events which,
in its view, confirm the status of the Alexander Archipelago
waters as inland waters. We find insufficient prestatehood
evidence to establish inland waters status in the first place,
and so we find it unnecessary to discuss these further events.
At best, Alaska’s submissions before this Court establish
that the United States made one official statement—in the
1903 Alaska Boundary Arbitration—describing the Alexan
der Archipelago waters as inland, and that the United States

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seized one foreign vessel—the Marguerite—in a manner ar
guably consistent with the status of those waters as inland.
These incidents are insufficient to demonstrate the con
tinuous assertion of exclusive authority, with acquiescence
of foreign nations, necessary to support a historic inland
waters claim. Alaska’s exception to the Special Master’s
recommendation on count I of the Amended Complaint is
overruled.
IV
In count II of its Amended Complaint, Alaska presents an
alternative theory to justify treating the Alexander Archi
pelago’s waters as inland. Alaska’s alternative theory is
that the waters of the Alexander Archipelago in truth consist
of two vast, but as yet unnoticed, juridical bays. Waters
within a juridical bay would be deemed inland waters. Art.
5(1) of the Convention, 15 U. S. T., at 1609. Thus, if ac
cepted, Alaska’s theory would render all the Alexander Ar
chipelago’s waters inland waters to the extent they lie within
the limits of the bays Alaska identifies. For this reason, and
because the United States would not be able to rebut the
presumption of title that would arise from inland waters sta
tus, Alaska’s alternative theory would require the Court to
accept Alaska’s claim of title to the pockets and enclaves in
dispute.
The parties agree that Alaska’s claimed juridical bays
would exist only if four of the Alexander Archipelago’s is
lands—Kuiu Island, Kupreanof Island, Mitkof Island, and
Dry Island—were deemed to be connected to each other and
to the mainland. We have recognized that such “assimila
t[ion]” of islands fringing the mainland is possible, albeit only
in “exceptional case[s]” in which “an island or group of is
lands . . . ‘are so integrally related to the mainland that they
are realistically parts of the “coast.” ’ ” United States v.
Maine, 469 U. S. 504, 517 (1985) (quoting United States v.
Louisiana, 394 U. S., at 66). If the assimilation Alaska
urges were accepted, the four islands Alaska has identified

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would form a constructive peninsula extending from the
mainland and dividing the Alexander Archipelago’s waters
in two. To bolster its case, Alaska labels the waters north
and south of this hypothetical peninsula the “North Bay” and
the “South Bay.” See Appendix B, infra (map showing
Alaska’s hypothetical peninsula and the resulting bays).
Were we to accept Alaska’s hypothetical peninsula, we
would then be required to determine whether North Bay
and South Bay in fact qualify as juridical bays under the
Convention, which we have customarily consulted for pur
poses of “determining the line marking the seaward limit
of inland waters of the States.” United States v. Maine,
supra, at 513. Article 7(2) of the Convention sets forth the
following geographic criteria for deciding whether a body of
water qualifies as a bay:
“For the purposes of these articles, a bay is a well
marked indentation whose penetration is in such propor
tion to the width of its mouth as to contain landlocked
waters and constitute more than a mere curvature of the
coast. An indentation shall not, however, be regarded
as a bay unless its area is as large as, or larger than,
that of the semi-circle whose diameter is a line drawn
across the mouth of that indentation.” 15 U. S. T., at
1609.
This definition can be understood to comprise a number of
elements. To apply the definition to a given body of water,
one must first determine whether the body of water satisfies
the descriptive test of being a “well-marked indentation.”
One must then determine, among other things, whether the
indentation’s area satisfies the mathematical “semi-circle”
test set forth in the second sentence of Article 7(2).
After due consideration of the parties’ arguments, the Spe
cial Master recommended that the Court reject Alaska’s al
ternative theory. The Special Master first conducted a de
tailed assessment of the propriety of assimilating the four

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islands in question in order to form the constructive penin
sula so critical to Alaska’s theory. Report 147–197. Apply
ing the principles set forth in United States v. Maine, supra,
at 514–520, and United States v. Louisiana, supra, at 60–66,
the Special Master concluded that assimilation would be un
warranted save for two inconsequential channels that “do not
suffice to create the juridical bays alleged by Alaska.” Re
port 197. In the alternative, the Special Master concluded
that, even were Alaska’s hypothetical peninsula accepted,
neither “North Bay” nor “South Bay” could satisfy the de
scriptive test that a proposed bay constitute a “ ‘well-marked
indentation.’ ” Id., at 222.
Excepting to the Special Master ’s recommendations,
Alaska makes a detailed argument that this Court’s prece
dents regarding assimilation of islands support recognition
of the constructive peninsula Alaska has identified. Excep
tions and Brief for Plaintiff Alaska 39–45. Alaska further
contends that, once this peninsula is recognized, the result
ing bodies of water satisfy all the criteria set forth in the
Convention. Id., at 45–49.
We overrule Alaska’s exception. For the sake of brevity
we assume, arguendo, that each of the islands in Alaska’s
hypothetical peninsula should be assimilated one to another
(though we are aware of, and Alaska itself cites, no precedent
foreign or domestic in which such a massive amount of suc
cessive assimilation has been accepted for the purpose of
identifying a juridical bay). Even with the benefit of this
daunting doubt Alaska could not prevail, for its hypothetical
bays do not satisfy the Convention’s descriptive requirement
of being well-marked indentations.
To qualify as a well-marked indentation, a body of water
must possess physical features that would allow a mariner
looking at navigational charts that do not depict bay closing
lines nonetheless to perceive the bay’s limits, and hence to
avoid illegal encroachment into inland waters. See G. West
erman, The Juridical Bay 82–85 (1987). Alaska’s hypotheti

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cal bays do not possess these features. We have been re
ferred to no authority which indicates that a mariner looking
at an unadorned map of the southeast Alaskan coast has ever
discerned the limits of Alaska’s hypothetical bays. So subtle
are these limits that even Alaska itself did not discover them
until after it had filed its first complaint in this action. Com
pare Complaint to Quiet Title (Nov. 24, 1999) with Amended
Complaint (Dec. 14, 2000). The test is what mariners see,
not what litigators invent. Alaska’s hypothetical bays
would not be discernible to the eye of the mariner.
A comparison to United States v. Maine, 469 U. S., at 514–
520, makes clear the force of our conclusion. In that case
the Court considered whether Long Island Sound and Block
Island Sound together qualify as a juridical bay. In deter
mining that they do, the Court held that Long Island itself
should be assimilated to the mainland. Id., at 517–520.
The Court then determined that the resulting indentation
formed by Long Island Sound and Block Island Sound satis
fied the requirements of Article 7(2) of the Convention, in
cluding the descriptive requirement of being a “well-marked
indentation.” Id., at 515, 519.
There is a critical difference between this body of water
and the bodies of water Alaska has christened as North Bay
and South Bay. Even before this Court held that Long Is
land Sound and Block Island Sound qualified together as a
juridical bay, mariners and geographers had recognized Long
Island Sound and Block Island Sound as adjacent, cohesive
bodies of water—indeed, as “sound[s],” which itself is a term
used to describe a wide and deep bay, or a strait connecting
other bodies of water. See Webster’s Third New Interna
tional Dictionary 2176 (1981) (defining “sound” as “a long and
rather broad inlet of the ocean generally with its larger part
extending roughly parallel to the coast”; “a long passage of
water connecting two larger bodies but too wide and exten
sive to be termed a strait”). Nothing of the sort can be said
of Alaska’s claimed bays. It is not just that no mariner and

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no geographer (and not even Alaska’s litigators) before this
action recognized Alaska’s claimed bays as bays or sounds.
It appears that no one before this action recognized Alaska’s
claimed bays as constituting cohesive bodies of water at all.
Even accepting the constructive peninsula Alaska has
crafted out of four separate islands within the Alexander Ar
chipelago, Alaska’s claimed bays still fail to qualify as “well
marked indentation[s]” for purposes of the Convention. For
this reason, we reject the alternative theory Alaska urges
in count II of its Amended Complaint. Alaska’s exception
to the Special Master’s recommendation on this count is
overruled.
V
In count IV of its Amended Complaint, Alaska claims title
to the submerged lands underlying the waters of Glacier Bay
National Monument (now known as Glacier Bay National
Park), located at the northern end of the Alexander Archi
pelago. Concluding that the United States had rebutted
Alaska’s presumed title to these lands, the Special Master
recommended granting summary judgment to the United
States. As with the other aspects of this case, the Special
Master was correct in his interpretation and application of
the controlling precedents and principles, and we overrule
Alaska’s exception to his recommendation.
A
The centerpiece of Glacier Bay National Park is Glacier
Bay itself. By contrast to the bays Alaska claims in count
II, Glacier Bay is a textbook example of a juridical bay. Its
waters mark a dramatic indentation within the coastline of
the Alaskan mainland. While the width of Glacier Bay’s
mouth measures 5 miles at most, the bay’s waters stretch
more than 60 miles into the mainland. See Appendix C,
infra (map of Glacier Bay).
Glacier Bay National Park is one of the Nation’s largest
national parks, embracing over 3.2 million acres, an area

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larger than the State of Connecticut. Rennicke, North to
Wild Alaska, National Geographic Traveler 48, 55 (July/Aug.
1994). John Muir, who first saw the bay and its surround
ings in 1879, described it as a “ ‘solitude of ice and snow and
newborn rocks.’ ” Id., at 56. One way to comprehend the
solitude is to note that in the area of Glacier Bay there are
still not more than 10 miles of established hiking trails. See
id., at 50. As the world’s largest marine sanctuary, it is, in
one sense, a water park.
A ship in the waters of the Pacific in the Gulf of Alaska
reaches Glacier Bay by heading shoreward to the east
through Cross Sound and to Bartlett Cove, there turning to
proceed through the bay in a generally northwest direction.
See Appendix D, infra. The entrance to the bay near Bart
lett Cove is about 100 miles northwest of Juneau and still
600 miles southeast of Anchorage.
The bay owes its name to Captain Beardslee of the United
States Navy, who, upon first entering the bay in 1880, was
so impressed by the ice formations surrounding it that he
called it Glacier Bay. 5 New Encyclopaedia Britannica 290
(15th ed. 2003). A glacier is a large formation of perennial
ice. The definition used by the Special Master was a “ ‘mix
ture of ice and rock that moves downhill over a bed of solid
rock or sediment under the influence of gravity.’ ” Report
246. Some of the glaciers in the region are tidewater gla
ciers, so called because they end at the water’s edge. Even
large ships must take precautions near these glaciers, for ice
can break off (a process called calving); and when a large
segment plunges to the sea, it becomes an iceberg. Ibid.
The weight of a glacier can cause it to move, either advanc
ing to crush the life before it or receding to allow life forms
to begin anew. At Glacier Bay some of the glaciers are ad
vancing, some are receding, and others seem to be stable.
See id., at 246–247.
At least in Glacier Bay, the extreme slowness suggested
by the term “glacial” is inapt, for the ice once present where

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the bay now extends receded with (in a geological context)
astounding speed. When Captain George Vancouver visited
in 1794, the bay was but 5 miles inward from Bartlett Cove,
while today it penetrates inland for over 60 miles. This re
treat of the ice is “considered the fastest glacial withdrawal
in recorded history. ‘Unzipping,’ the geologists call it. The
landscape dancing in geologic time.” Rennicke, supra, at 56.
The advance and retreat of the glaciers are of great interest
to scientists, and in the areas of glacial recession the sub
merged floor of the bay is contoured or sculptured in ways
that can be studied to learn more of glacial movement and
geologic formations. See Report 246–248.
The immense scene is one of remarkable beauty, and the
waters, which accommodate large vessels, can be calm
enough so that kayaks can be used to explore the bay and its
surroundings. Where glaciers have retreated either in the
bay or on shore, the retreat reveals how a new life cycle
begins. Plant succession is of absorbing interest. “It can
be almost like a chant: lichens and algae, moss and dryas,
fireweed, willows, alder, and spruce.” Rennicke, supra,
at 56.
The bay and the surrounding shore and forest areas of the
park sustain a chain of fish, bird, and animal life. Over 200
avian species have been noted, most of these in or near the
marine environment. Glacier Bay: A Guide to Glacier Bay
National Park and Preserve, Alaska 78 (1983). There are
mussels and crabs on the shore, and in the bay’s waters there
are numerous fish, including herring and salmon. The light
in the long days of summer, and the oxygen-rich waters, ac
celerate phytoplankton populations, and this is part of the
food chain working up to the herring and salmon, then por
poises, seals, and sea lions. The bay also has whales, includ
ing the humpback whale. K. Jettmar, Alaska’s Glacier Bay:
A Traveler’s Guide 53 (1997).
In the 1930’s, when naturalists and other observers were
supporting the movement to expand Glacier Bay National

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Monument beyond its initial boundaries, the brown bear be
came the flagship species for the cause. Declaration of The
odore R. Catton 51, Exhibits to Reply of United States in
Support of Motion for Partial Summary Judgment on Count
IV of Amended Complaint, Tab No. 3 (Exh. U. S. IV–3).
One of the largest of omnivores, the brown bear’s food in
estuarine areas includes “vegetation, invertebrates (clams,
mussels, worms, barnacles, amphipods), carcasses of fish and
marine mammals washed onto the beach, and winter-killed
ungulates . . . .” Declaration of Victor Barnes 3 (Exh. U. S.
IV–6). Brown bears find salmon in streams, and (with dis
tressing frequency) they can swim to the small islands to
raid the nesting places of birds and water fowl. Id., at 9.
When bears swim in the bay, they are particularly vulnera
ble to hunters. When he was considering the proposal to
extend the boundaries of the Glacier Bay National Monu
ment, President Franklin Roosevelt was angered by accounts
of bears being shot from pleasure yachts. Id., at 16.
Reference to the complex ecosystem of Glacier Bay and
the surrounding land is important for understanding the pur
poses that led the United States to create Glacier Bay Na
tional Monument. These purposes, in turn, inform the in
quiry whether title to the submerged land underlying the
waters of Glacier Bay National Monument passed to Alaska
at statehood. See Idaho v. United States, 533 U. S. 262, 274
(2001) (describing the inquiry as encompassing the question
whether “the purpose of the reservation would have been
compromised if the submerged lands had passed to the
State”); Alaska (Arctic Coast), 521 U. S., at 42–43 (noting
that “defeating state title . . . was necessary to achieve
the United States’ objective [of] securing a supply of oil and
gas that would necessarily exist beneath uplands and sub
merged lands”).
B
Owing to Glacier Bay’s status as a juridical bay, its waters
qualify as inland navigable waters. All the remaining wa

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ters within the boundaries of Glacier Bay National Monu
ment as it existed at statehood, moreover, lie less than three
nautical miles from the coastline. Under both the equal
footing doctrine and the SLA, therefore, a strong presump
tion arises that title to the lands underlying all the waters
in dispute in count IV of Alaska’s Amended Complaint
passed to Alaska at statehood. See id., at 5–6; see also id.,
at 33–36. The controlling question here is whether the
United States can rebut this presumption.
It is now settled that the United States can defeat a future
State’s presumed title to submerged lands not only by con
veyance to third parties but also by setting submerged lands
aside as part of a federal reservation “such as a wildlife ref
uge.” Idaho v. United States, supra, at 273; Alaska (Arctic
Coast), 521 U. S., at 33–34. To ascertain whether Congress
has made use of that power, we conduct a two-step inquiry.
We first inquire whether the United States clearly intended
to include submerged lands within the reservation. If the
answer is yes, we next inquire whether the United States
expressed its intent to retain federal title to submerged
lands within the reservation. Id., at 36; Idaho v. United
States, supra, at 273. “We will not infer an intent to defeat
a future State’s title to inland submerged lands ‘unless the
intention was definitely declared or otherwise made very
plain.’ ” Alaska (Arctic Coast), supra, at 34 (quoting Holt
State Bank, 270 U. S., at 55).
After careful consideration of the parties’ arguments, the
Special Master recommended granting summary judgment
to the United States on Alaska’s claim of title to the sub
merged lands underlying Glacier Bay. Report 227–276.
His recommendation rested on two conclusions that track the
two-part test developed in our precedents. First, he con
cluded that in creating Glacier Bay National Monument the
United States had reserved the submerged lands underlying
Glacier Bay and the remaining waters within the monu
ment’s boundaries. Id., at 264. Second, he concluded that

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§ 6(e) of the ASA, 72 Stat. 340–341, note preceding 48 U. S. C.
§ 21, pp. 320–321, expressed congressional intent to retain
those submerged lands in federal ownership. Report 276.
Alaska takes exception only to the Special Master’s second
conclusion. We nonetheless explain the Special Master’s
first conclusion (and our own), for it is a necessary part of
the reasoning for the second step of the analysis.
C
We need not detain ourselves long with the first part of the
test regarding title to submerged lands. In 1925, President
Calvin Coolidge invoked the Antiquities Act of 1906, ch. 3060,
34 Stat. 225, 16 U. S. C. § 431 et seq., to create Glacier Bay
National Monument. Presidential Proclamation No. 1733,
43 Stat. 1988 (1925 Proclamation). In 1939, President
Franklin D. Roosevelt issued a proclamation expanding the
monument to include all of Glacier Bay’s waters and to ex
tend the monument’s western boundary three nautical miles
out to sea. Presidential Proclamation No. 2330, 3 CFR 28
(Supp. 1939) (1939 Proclamation). See Appendix C, infra
(depicting both the initial boundaries established by the 1925
Proclamation and the expanded boundaries established by
the 1939 Proclamation). In 1955, President Dwight D. Ei
senhower issued a proclamation slightly altering the monu
ment’s boundaries, but leaving the bay’s waters within them.
Presidential Proclamation No. 3089, 3 CFR 36 (1954–1958
Comp.) (1955 Proclamation). In 1980, Congress designated
the monument as part of Glacier Bay National Park and Pre
serve and expanded the resulting reservation’s boundaries.
16 U. S. C. § 410hh–1(1); see Appendix D, infra (map of Gla
cier Bay National Park). For present purposes, however,
the important point is that by the time Alaska achieved
statehood in 1959, the Glacier Bay National Monument had
already existed for 34 years as a federal reservation.
After considering the evidence submitted by both parties,
the Special Master concluded that “the Glacier Bay National

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Monument, as it existed at the time of statehood, clearly in
cluded the submerged lands within its boundaries.” Report
263–264. According to the Special Master, the descriptions
of the monument in the 1925, 1939, and 1955 Proclamations
themselves showed that the monument embraced submerged
lands. Id., at 232–242. The Special Master also considered
it significant that exclusion of the submerged lands would
have undermined at least three of the purposes that led the
United States to create Glacier Bay National Monument.
Exclusion of the submerged lands would impair scientific
study of the majestic tidewater glaciers surrounding the bay.
Id., at 245–251. It would also impair efforts both to study
and to preserve the remnants of “ ‘interglacial forests,’ ”
which can be found both above and below the tideline. Id.,
at 251–253. Finally, exclusion of the submerged lands would
compromise the goal of safeguarding the flora and fauna that
thrive in Glacier Bay’s complex and interdependent ecosys
tem. Id., at 253–263.
The Special Master, in our view, had ample support for his
conclusions that all of these were purposes for creation of
the monument, and each would be compromised were it to
be determined that submerged lands were not included in
the monument. His ultimate determination, that Glacier
Bay National Monument included the submerged lands
within its boundaries, has strong support in the precedents
and in the whole record of the case. Alaska has not filed
a formal exception to this determination, and the four
sentence footnote in Alaska’s brief which expresses disagree
ment with it, Exceptions and Brief for Plaintiff Alaska 10–11,
n. 4, does not in our view suffice to impeach its validity.
D
Having established the proposition that the Glacier Bay
National Monument, at the time of Alaska’s statehood, in
cluded the submerged lands underlying Glacier Bay, we
turn to the remaining question: whether the United States

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“ ‘definitely declared or otherwise made very plain’ ” its in
tent to defeat Alaska’s title to these submerged lands.
Alaska (Arctic Coast), 521 U. S., at 34 (quoting Holt State
Bank, 270 U. S., at 55).
1
The requisite expression of intent might conceivably reside
in the very proclamations that invoked the Antiquities Act
of 1906 to create and then expand Glacier Bay National Mon
ument. It is clear, after all, that the Antiquities Act empow
ers the President to reserve submerged lands. United
States v. California, 436 U. S. 32, 36 (1978). An essential
purpose of monuments created pursuant to the Antiquities
Act, furthermore, is “to conserve the scenery and the natural
and historic objects and the wild life therein and to provide
for the enjoyment of the same in such manner and by such
means as will leave them unimpaired for the enjoyment of
future generations.” 16 U. S. C. § 1. From these two prem
ises it would require little additional effort to reach a holding
that the Antiquities Act itself delegated to the President suf
ficient power not only to reserve submerged lands but also
to defeat a future State’s title to them. Given the reasons
motivating the creation of Glacier Bay National Monument
and the overall complexity of the Glacier Bay ecosystem, it
would be unsurprising to find that the relevant proclama
tions manifested intent to retain federal title.
One amicus has advanced this argument at length, and the
United States foreshadows it in a footnote. See Brief for
National Parks Conservation Association as Amicus Curiae
6–7, 13–16; Reply Brief for United States 32, n. 20. If true,
this argument would provide a powerful alternative basis for
agreeing with the Special Master’s recommendation to grant
summary judgment to the United States with respect to
Alaska’s claim of title to the submerged lands underlying
Glacier Bay.
We need pursue this alternative basis no further, however.
In our view the provisions of the ASA themselves suffice to

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104 ALASKA v. UNITED STATES
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overcome the state ownership presumption arising from the
equal-footing doctrine and the SLA and to reserve the sub
merged lands in Glacier Bay to the United States.
2
The Special Master agreed with the United States that
Congress expressed an intent to retain title to all of Glacier
Bay National Monument, including the submerged lands
within it, in § 6(e) of the ASA. Report 276. To understand
§ 6(e), we begin by considering its context within the ASA,
its text, and the construction we have given to it in an ear
lier case.
Section 5 of the ASA sets forth a guiding principle regard
ing title to property within Alaska’s boundaries:
“The State of Alaska and its political subdivisions, re
spectively, shall have and retain title to all property, real
and personal, title to which is in the Territory of Alaska
or any of the subdivisions. Except as provided in sec
tion 6 hereof, the United States shall retain title to all
property, real and personal, to which it has title, includ
ing public lands.” 72 Stat. 340.
Based on this provision, the new State of Alaska acquired
title to any property previously belonging to the Territory
of Alaska. The United States, in turn, retained title to its
property located within Alaska’s borders, “including public
lands,” subject to certain exceptions set forth in § 6 of
the ASA.
One of those exceptions is contained in § 6(e), which pro
vides in pertinent part:
“All real and personal property of the United States sit
uated in the Territory of Alaska which is specifically
used for the sole purpose of conservation and protection
of the fisheries and wildlife of Alaska, under the provi
sions of the Alaska game law of July 1, 1943 (57 Stat.
301; 48 U. S. C., secs. 192–211), as amended, and under

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the provisions of the Alaska commercial fisheries laws
of June 26, 1906 (34 Stat. 478; 48 U. S. C., secs. 230–239
and 241–242), and June 6, 1924 (43 Stat. 465; 48 U. S. C.,
secs. 221–228), as supplemented and amended, shall be
transferred and conveyed to the State of Alaska by the
appropriate Federal agency: . . . Provided, That such
transfer shall not include lands withdrawn or otherwise
set apart as refuges or reservations for the protection
of wildlife nor facilities utilized in connection therewith,
or in connection with general research activities relating
to fisheries or wildlife.” Id., at 340–341.
The first quoted part of § 6(e), the initial clause, directs a
transfer to Alaska of any federal property located in Alaska
and used “for the sole purpose of conservation and protection
of the fisheries and wildlife of Alaska” under three particular
federal game and wildlife laws. The next quoted part, the
proviso, makes clear that the transfer directive in the initial
clause has no application to “lands withdrawn or otherwise
set apart as refuges or reservations for the protection of
wildlife.”
In Alaska (Arctic Coast), we held that the proviso of § 6(e)
expressed congressional intent to retain title to a reservation
such as the Arctic National Wildlife Refuge (ANWR), and
that the statute’s declaration of intent was sufficient to de
feat Alaska’s presumed title under both the equal-footing
doctrine and the SLA. “In § 6(e) of the Statehood Act, Con
gress clearly contemplated continued federal ownership of
certain submerged lands—both inland submerged lands and
submerged lands beneath the territorial sea—so long as
those submerged lands were among those ‘withdrawn or oth
erwise set apart as refuges or reservations for the protection
of wildlife.’ ” 521 U. S., at 56–57 (quoting § 6(e)). If the pro
viso of § 6(e) applies to Glacier Bay National Monument, as
we held it applied to the ANWR in Alaska (Arctic Coast),
then it follows that title to the submerged lands underlying
Glacier Bay did not pass to Alaska at statehood.

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To avoid this reasoning, Alaska first argues that the pro
viso is limited in scope to federal property already covered
by the initial clause; because Glacier Bay is not covered by
the initial clause, the State contends, it is not covered by the
proviso either. Alaska next argues that even assuming the
scope of the proviso is broader than the initial clause, Glacier
Bay was not “set apart” “for the protection of wildlife.” We
reject both of Alaska’s arguments.
a
Regarding the relationship between the initial clause and
the proviso, Alaska contends the proviso applies only to wild
life refuges or reservations set aside under the three particu
lar federal game and wildlife statutes named in the initial
clause. Glacier Bay National Monument was not set aside
under any of these particular statutes, of course; so Alaska
says that omission from the initial clause dictates omission
from the proviso. The United States counters that the ini
tial clause is confined to specific property but that the pro
viso is a statement of intent to retain federal title which ex
tends to all reservations thus described without regard to
the specific statutory authority under which the reservations
were set aside.
As the Special Master noted, generalizations about the re
lationship between a proviso and a preceding clause prove to
be of little help in resolving the parties’ disagreement about
the scope of § 6(e)’s proviso. Report 268. Though it may be
customary to use a proviso to refer only to things covered
by a preceding clause, it is also possible to use a proviso to
state a general, independent rule. “[A] proviso is not always
limited in its effect to the part of the enactment with which
it is immediately associated; it may apply generally to all
cases within the meaning of the language used.” McDonald
v. United States, 279 U. S. 12, 21 (1929); see also 2A N.
Singer, Statutes and Statutory Construction § 47:08, p. 238
(rev. 6th ed. 2000).

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We conclude that Alaska’s narrow reading of the proviso
is neither necessary nor preferred. Section 6(e) begins with
specificity. It covers “[a]ll real and personal property” “spe
cifically used for the sole purpose of conservation and protec
tion of the fisheries and wildlife of Alaska” as identified
under three particular federal game and wildlife laws.
Those provisions, in turn, make clear that the initial clause’s
transfer requirement applies to facilities such as certain fish
hatcheries, and likely would include specific types of equip
ment or even vehicles.
Having thus transferred the identified “property,” the sec
tion proceeds to state a more general reservation, using the
word “lands.” “Provided, [t]hat such transfer shall not in
clude lands withdrawn or otherwise set apart as refuges or
reservations for the protection of wildlife nor facilities . . . .”
The lands here in question were in fact “withdrawn or other
wise set apart,” that is to say by the proclamations which
created the monument. Though it may not be the usual
style, it does not strike us as illogical for the draftsperson of
a statute to write it so that it transfers some specific real
and personal property and then proceeds to reserve lands in
a much larger classification.
Alaska’s insistence that the proviso must be limited to
what is contained at the outset is foreclosed as well by the
decision in Alaska (Arctic Coast). In the proceedings lead
ing up to that decision, Alaska had argued that § 6(e)’s pro
viso did nothing more than to except lands from the transfer
effected in § 6(e)’s initial clause. In Alaska’s view, even lands
covered by the proviso could still be transferred by virtue of
the SLA made applicable to Alaska via § 6(m) of the ASA.
See Reply Brief for State of Alaska in United States v.
Alaska, O. T. 1996, No. 84, Orig., pp. 44–45. The Court re
jected Alaska’s view:
“If [the Arctic National Wildlife Range is covered by
§ 6(e)’s proviso], then the United States retained title to
submerged lands as well as uplands within the Range.

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This is so despite § 6(m) of the Statehood Act, which ap
plied the Submerged Lands Act of 1953 to Alaska. The
Submerged Lands Act operated to confirm Alaska’s title
to equal footing lands and to transfer title to submerged
lands beneath the territorial sea to Alaska at statehood,
unless the United States clearly withheld submerged
lands within either category prior to statehood. In
§ 6(e) of the Statehood Act, Congress clearly contem
plated continued federal ownership of certain sub
merged lands—both inland submerged lands and sub
merged lands beneath the territorial sea—so long as
those submerged lands were among those ‘withdrawn or
otherwise set apart as refuges or reservations for the
protection of wildlife.’ ” 521 U. S., at 56–57 (emphasis
in original).
Thus we have held that § 6(e)’s proviso operates not just neg
atively and parasitically, only to except refuges or reserva
tions “set apart” for “the protection of wildlife” from the
transfer effected by § 6(e)’s main clause, but also affirma
tively and independently, as an expression of Congress’ in
tent to retain federal ownership over all lands within such
reservations.
This affirmative and independent expression of intent logi
cally applies with just as much force to reservations that fall
within § 6(e)’s initial clause as to those that do not. It would
have made little sense for Congress to differentiate between
those two sets of reservations in making the broad statement
of intent we have construed § 6(e)’s proviso to set forth. It
would have made even less sense to differentiate in such a
way as to exclude reservations set aside pursuant to the An
tiquities Act, like Glacier Bay National Monument. The dif
ferentiation suggested by Alaska’s reading, moreover, cannot
be discerned from the text of § 6(e)’s proviso, which covers
all reservations set aside “for the protection of wildlife,” re
gardless of the specific authority under which those reserva
tions were set aside.

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Alaska is correct to note that our decision in Alaska (Arc
tic Coast) did not directly address the relationship between
the initial clause and the proviso in § 6(e). As Alaska ob
serves, it appears that we assumed the ANWR would fall
within § 6(e)’s initial clause were it not for the proviso. Id.,
at 60–61. For the reasons we have explained, however, the
broad construction we gave to the proviso in Alaska (Arctic
Coast) of necessity carries consequences for the relationship
between it and the initial clause.
b
Anticipating the possibility that its narrow interpretation
of the proviso might be rejected, Alaska raises one last argu
ment. The proviso does not reach Glacier Bay even under
a broad view of the proviso’s scope, Alaska contends, because
Glacier Bay was not set apart “for the protection of wildlife”
within the meaning of § 6(e).
This argument can be rejected without extended discus
sion. As the Special Master noted and as we have recog
nized, Congress has made clear that one of the fundamental
purposes of wildlife reservations set apart pursuant to the
Antiquities Act is “to conserve the scenery and the natural
and historic objects and the wild life therein and to provide
for the enjoyment of the same in such manner and by such
means as will leave them unimpaired for the enjoyment of
future generations.” 16 U. S. C. § 1. Because Glacier Bay
National Monument serves as habitat for many forms of
wildlife, it was set aside in part for its preservation. Any
doubt as to this conclusion is dispelled by reference to the
Presidential proclamations setting aside the monument, for
the proclamations identify the study of flora and fauna as one
of the express purposes of the reservation. 1925 Proclama
tion, 43 Stat. 1988; 1939 Proclamation, 3 CFR 28 (Supp. 1939).
As the Special Master observed, the study of flora and fauna
necessarily requires their preservation. Report 274.

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110 ALASKA v. UNITED STATES
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In sum we agree with the United States that the proviso
is best read, in light of our prior interpretation of it in
Alaska (Arctic Coast), as expressing an independent and
general rule uncoupled from the initial clause. Under the
initial clause the United States obligated itself to transfer to
Alaska equipment and other property used for general fish
and wildlife management responsibilities Alaska was to un
dertake upon acquiring statehood. Under the proviso the
United States expressed its intent, notwithstanding this
property transfer, to retain ownership over all federal ref
uges and reservations set aside for the protection of wildlife,
regardless of the specific statutory authority enabling the
set-aside. This expression of intent encompassed Glacier
Bay National Monument, which was set aside “for the pro
tection of wildlife” within the meaning of § 6(e). The text
thus defeated the presumption that the new State of Alaska
would acquire title to the submerged lands underlying the
monument’s waters, including the inland waters of Glacier
Bay.
Alaska’s exception to the Special Master’s recommen
dation on count IV of Alaska’s Amended Complaint is
overruled.
VI
For the foregoing reasons, we overrule each of Alaska’s
exceptions to the Special Master ’s recommendations.
Alaska shall take title neither to the submerged lands under
lying the pockets and enclaves of water at issue in counts I
and II of its Amended Complaint nor to the submerged lands
underlying the waters of Glacier Bay at issue in count IV.
As to count III of Alaska’s Amended Complaint, the parties
and the Special Master are in agreement that this Court
should confirm the United States’ proposed disclaimer of
title. The proposed disclaimer is hereby accepted.
The parties are directed to prepare and submit to the Spe
cial Master an appropriate proposed decree for the Court’s
consideration. The Court retains jurisdiction to entertain

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such proceedings, enter such orders, and issue such writs as
may become necessary or advisable to effect and supplement
the forthcoming decree and the respective rights of the
parties.
It is so ordered.
[Appendixes A, B, C, and D to opinion of the Court follow
this page.]

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Opinion of Scalia, J.
Justice Scalia, with whom The Chief Justice and Jus
tice Thomas join, concurring in part and dissenting in part.
I join all of the Court’s opinion, except for Part V and
the related portions of Part VI. I do not agree with the
conclusion that the United States expressly retained title
to submerged lands within Glacier Bay National Monument
(Monument) at the time of Alaskan statehood.
The Court holds that the United States has rebutted the
“strong presumption” that submerged lands passed to Alaska
when it became a State. Ante, at 100, 110. That presump
tion inheres in the equal-footing doctrine, but is given partic
ular strength and specificity in this case by § 6(m) of the
Alaska Statehood Act, 72 Stat. 343, which incorporated the
Submerged Lands Act of 1953, including the confirmation
that a State owns all “lands beneath navigable waters within
[its] boundaries” unless (as relevant here) they were “ex
pressly retained by or ceded to the United States when the
State entered the Union,” 43 U. S. C. §§ 1311(a), 1313(a) (em
phasis added). The Court acknowledges that state title to
submerged lands cannot be defeated “ ‘ “unless the intention
was definitely declared or otherwise made very plain.” ’ ”
Ante, at 100 (quoting United States v. Alaska, 521 U. S. 1, 34
(1997) (Alaska (Arctic Coast)), in turn quoting United States
v. Holt State Bank, 270 U. S. 49, 55 (1926)). Though the
Court makes a dictal feint toward the Antiquities Act of
1906, ante, at 103, its holding relies on only a single proviso
to § 6(e) of the Alaska Statehood Act, ante, at 104–110.
That proviso seems to me anything but a “ ‘very plain’ ”
or “clear” retention of the Monument’s submerged lands.
Alaska (Arctic Coast), supra, at 34, 57. Indeed, the Court’s
own evaluation of the parties’ textual arguments is candidly
lukewarm toward the United States’ position. Alaska’s
doomed construction of the proviso is deemed to be “nei
ther necessary nor preferred,” ante, at 107—not exactly a
death knell when Alaska’s opponent is subject to the clear
statement requirement. The Court applauds the United

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114 ALASKA v. UNITED STATES
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States’ construction—the victorious, allegedly “clear” one—
just for being “not . . . illogical,” and admits that that con
struction means the statute was not written in “the usual
style.” Ibid.
The statutory text fully justifies this lack of exuberance.
Section 5 of the Alaska Statehood Act established a general
rule that “the United States shall retain title to all prop
erty . . . to which it has title . . . .” 72 Stat. 340. Section
6(m), by incorporating the Submerged Lands Act, generally
excepted submerged lands from that rule. Id., at 343. An
other exception to the rule of U. S. retention was § 6(e),
which consisted of two relevant parts: the main clause, which
required the “transfe[r] and conve[yance] to the State of
Alaska” of “[a]ll real and personal property of the United
States . . . specifically used for the sole purpose of conserva
tion and protection of the fisheries and wildlife of Alaska,
under [certain statutory provisions],” id., at 340; and the pro
viso, which said “[t]hat such transfer shall not include lands
withdrawn or otherwise set apart as refuges or reservations
for the protection of wildlife,” id., at 341. The short of the
matter is that if the proviso created only an exception from
the preceding main clause, it did not reserve Glacier Bay
(which was not covered by the main clause) for the United
States; whereas if it was an independent and freestanding
reservation, it did.
The Court unconvincingly attempts to sever the proviso
from its statutory text and context. It is true enough that
by accumulation of sloppy usage a proviso need not, simply
by reason of its introductory words (“provided that”), always
be taken as a limitation only upon the preceding clause.
Ante, at 106. But the Court fatally fails to cope with the
actual text of this particular proviso. It claims, ante, at 107,
that § 6(e) moves from a specific main clause (“[a]ll real and
personal property” under three statutes) to a general proviso
(“lands withdrawn . . . as refuges”). But “lands” is not in
herently more general than “real . . . property” and there is

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no reason whatever why the qualified former (“lands with
drawn . . . as refuges”) cannot be a subset of the qualified
latter (“real . . . property” under three statutes). Moreover,
the Court disregards obvious clues to the relationship be
tween these two parts of § 6(e). It makes no attempt to
identify the antecedent for the proviso’s reference to “such
transfer.” (Emphasis added.) As it happens, the main
clause of § 6(e) contains the only mention of a “transfe[r]” in
the Statehood Act that precedes the proviso,1 making it the
only logical antecedent. Thus, the word “such” indicates the
natural, structural tie between § 6(e)’s main clause and its
proviso, making it quite clear that the proviso does not re
serve to the United States all “lands withdrawn or other
wise set apart as refuges or reservations for the protection
of wildlife,” but rather only the lands of that description cov
ered by the preceding main clause. Moreover, the proviso
is phrased as a carveout (“such transfer shall not include
lands”) rather than a freestanding rule (e. g., “no transfer
shall include lands” or “lands shall not be transferred”). In
sum, the text amply supports Alaska’s claim that the proviso
operates as an exception to the main clause, and not the
Court’s conclusion that it is “an independent and general rule
uncoupled from [that] clause,” ante, at 110.
The Court also contends that its 1997 decision in Alaska
(Arctic Coast) “foreclose[s]” Alaska’s argument that the pro
viso operates as an exception to the main clause of § 6(e).
Ante, at 107. That conclusion follows from neither the hold
ing of Alaska (Arctic Coast) nor any reasonable extension of
its underlying rationale. As the Court acknowledges, ante,
at 109, “Alaska (Arctic Coast) did not directly address the
relationship between the initial clause and the proviso in
§ 6(e).” It quoted them as if they were a single, unitary rule,
521 U. S., at 55, and, as the United States concedes, the Court
1 The only other mention of a “transfe[r]” in § 6 appeared in subsection
(k), which “confirmed and transferred” all grants previously made to the
Territory of Alaska. 72 Stat. 343.

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“assum[ed] with no briefing,” Tr. of Oral Arg. 34, that the
refuge at issue fell within the scope of the main clause of
§ 6(e). Given that assumption, the case does not stand for
the proposition that the proviso is a freestanding provision;
a proviso limited to the main clause would have the same
effect. Or to put the point differently: Alaska (Arctic
Coast) holds that what the proviso takes out of § 6(e) it also
takes out of § 6(m). In the present case, however, it is undis
puted that Glacier Bay is not within § 6(e), and so is not
removed from § 6(e) by the proviso. Nothing in Alaska
(Arctic Coast) suggests that the proviso alone operated “af
firmatively and independently,” ante, at 108, to trump § 6(m).
The Court is thus knocking down a straw man when it says
that, if the proviso can trump § 6(m), it would make “little
sense” to cabin it with the main clause of § 6(e), ibid. It was
not the proviso that trumped § 6(m), but the proviso’s re
moval of land from the exception of § 6(e). There is no such
removal here.
The only part of the Court’s opinion on Glacier Bay that
displays genuine enthusiasm is its Ursine Rhapsody, which
implies that federal ownership of submerged lands is critical
to ensuring that brown bears will not be shot from the decks
of pleasure yachts during their “distressing[ly] frequen[t]”
swims to islands where they feast on seabirds and seabird
eggs.2 Ante, at 99. Surely this is irrelevant to interpreta
tion of the Alaska Statehood Act, unless there is some princi
ple of construction that texts say what the Supreme Court
thinks they ought to have said. But besides being irrele
vant, it is not even true. Many (though perhaps not all)
means of fulfilling the Monument’s purposes could be
achieved without federal ownership of the submerged lands
within the Monument. If title to submerged lands passed
to Alaska, the Federal Government would still retain
2 It is presumptively true that the seabirds consider these visits distress
ingly frequent, and demonstrably true that the brown bears do not. It is
unclear why this Court should take sides in the controversy.

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significant authority to regulate activities in the waters of
Glacier Bay by virtue of its dominant navigational servitude,
other aspects of the Commerce Clause, and even the treaty
power.3 See, e. g., 43 U. S. C. § 1314(a) (under the Sub
merged Lands Act, the United States retains “powers of reg
ulation and control of . . . navigable waters for the consti
tutional purposes of commerce [and] navigation”); United
States v. Morrison, 529 U. S. 598, 609 (2000) (Congress may
“regulate the use of the channels of interstate commerce”
and “protect the instrumentalities of interstate commerce,
or persons or things in interstate commerce” (internal quota
tion marks omitted)); United States v. Alaska, 503 U. S. 569,
577–583 (1992) (the Secretary of the Army may consider ef
fects upon recreation, fish and wildlife, natural resources,
and other public interests when refusing to permit struc
tures or discharges in navigable waters that have “no effect
on navigation”); United States v. California, 436 U. S. 32, 41,
and n. 18 (1978) (noting that the United States retained “its
navigational servitude” even when California took the “pro
prietary and administrative interests” in submerged lands
surrounding islands in a national monument); Douglas v.
Seacoast Products, Inc., 431 U. S. 265, 284–287 (1977) (finding
3 The United States presented evidence that, even before the Monument
was established, some scientists had studied the bottom of Glacier Bay
and its relationship with the glaciers by taking soundings of the water’s
depth. Memorandum in Support of Motion of the United States for Par
tial Summary Judgment on Count IV of the Amended Complaint 13. Sim
ilar but more sophisticated studies, involving acoustic mapping and sonar
imaging of gouges in the floor of the bay, are conducted today. App. 5 to
Declaration of Tomie Patrick Lee, Exhibits to Reply of United States in
Support of Motion for Partial Summary Judgment on Count IV of
Amended Complaint, Tab No. 8, pp. 93–94 (Exh. U. S. IV–8). Alaska’s
ownership of submerged lands should not hinder such studies, generally
conducted from vessels on the water’s surface. But the United States
also noted that other, newer means of scientific study—such as withdraw
ing core samples from submerged lands and installing listening devices
on the surface of submerged lands—would require Alaska’s cooperation.
Tr. of Oral Arg. 40.

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state regulation of commercial fishing partially pre-empted
by federal statute); Letter from W. C. Henderson, Acting
Chief, Bureau of Biological Survey, Dept. of Agriculture, to
Stephen T. Mather, Director, National Park Service (Nov. 4,
1926), Alaska Exh. AK–405 (noting that a colony of eider
ducks in and near the Monument was “protected at all times
by the Migratory Bird Treaty Act and Regulations thereun
der”). It is thus unsurprising that States own submerged
lands in other federal water parks, such as the California
Coastal National Monument and the Boundary Waters Canoe
Area in Minnesota. See California, supra, at 37; Brief
for National Parks Conservation Association as Amicus
Curiae 30.
I would probably find for Alaska on the Glacier Bay issue
even if the United States did not have to overcome the obsta
cle of “very plain” retention. With the addition of that
well-established requirement, the case is not even close.
Because neither text, nor context, nor precedent compels the
conclusion that the Alaska Statehood Act expressly retained
the Monument’s submerged lands for the United States,
I cannot agree with the Court’s conclusion that the United
States deserves summary judgment on count IV of Alaska’s
amended complaint.