Page:United States Reports 502 OCT. TERM 1991.pdf/431

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Cite as: 502 U. S. 251 (1992)

273

Opinion of Blackmun, J.

2. And so the Court turns to § 5 of the Dawes Act for support. The majority claims that “the proviso reaffirmed for such ‘prematurely’ patented land what § 5 of the [Dawes Act] implied with respect to patented land generally: subjection to state real estate taxes.” Ante, at 264 (emphasis added). Because § 5 renders fee-patented lands alienable and encumberable, the majority suggests that “ ‘it would seem strange to withdraw [the] protection [of the restriction on alienation] and permit the Indian to dispose of his lands as he pleases, while at the same time releasing it [sic] from taxation.’ ” Ante, at 263 (quoting Goudy v. Meath, 203 U. S., at 149). The majority concedes that § 5 only “implied” this conclusion. Ante, at 263. In my view, a “mere implication” falls far short of the “unmistakably clear” intent standard. Cf. EEOC v. Arabian American Oil Co., 499 U. S. 244, 260 (1991) (Scalia, J., concurring in part and concurring in judgment) (“Given the presumption against extraterritoriality . . . and the requirement that the intent to overcome it be ‘clearly expressed,’ it is in my view not reasonable to give effect to mere implications from the statutory language as the EEOC has done”). Nor can what this Court finds “strange” substitute for the “unmistakably clear” intent of Congress. To impute to Congress an intent to tax Indian land because the Court thinks it “strange” not to do so overlooks the countervailing presumption that “Congress has. . . acted consistently upon the assumption that the States have no power to regulate the affairs of Indians on a reservation.” Williams v. Lee, 358 U. S. 217, 220 (1959). I need not pass upon the wisdom of the majority’s fiscal theory that if land is alienable and encumberable, it must be taxable. I pause only to comment that Congress has made its own agreement with this particular economic theory less than “unmistakably clear.” Cf. Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting) (“This case is decided upon an economic theory which a large part of the country does not entertain”).