 Basically repeating his earlier dissent, Souter noted that the presumption was that the state had ownership of all submerged lands, unless it was clear that the United States had reserved those lands for itself.Souter observed that the 1873 executive order implicitly included the submerged lands and also noted that the 1888 report to Congress indicated that all of the submerged lands were retained in trust for the tribe, and that Congress knew this when they passed the Idaho statehood act.He also noted the trial court's finding that the federal government had consistently treated with the tribe over the submerged lands, including compensating the tribe for the railroad right of way.