United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1757

___________ Mille Lacs Band of Chippewa Indians; * Arthur Gahbow; Walter Sutton; Carleen * Benjamin; Joseph Dunkley; * * Plaintiffs-Appellees, * * United States of America; St. Croix * Chippewa Indians of Wisconsin; Lac du * Flambeau Band of Lake Superior * Chippewas; Bad River Band of Lake * Superior Chippewa Indians; Lac Courte * Oreilles Band of Lake Superior * Chippewa Indians of Wisconsin; * Sokaogan Chippewa Community; Red * Cliff Band of Lake Superior Chippewa; * * Intervenors-Plaintiffs-Appellees, * * Appeal from the United States v. * District Court for the * District of Minnesota. State of Minnesota; Minnesota * Department of Natural Resources; * Rodney Sando, Commissioner of * Natural Resources; * * Defendants, * * County of Aitkin; County of Benton; * County of Sherburne; County of Crow * Wing; County of Isanti; County of * Kanabec; County of Mille Lacs; County *-2-

of Morrison; County of Pine; * Intervenors-Defendants- * Appellants, * ------------------------------------------------ * Fond du Lac Band of Chippewa * Indians; Robert Peacock; Peter Defoe; * Clifton Rabideaux; Herman Wise; * George Dupuis; * * Plaintiffs-Appellees, * * v. * * Arne Carlson, Governor of Minnesota; * Rodney Sando, Commissioner of the * Minnesota Department of Natural * Resources; Raymond B. Hitchcock, * Assistant Commissioner of Operations, * Minnesota Department of Natural * Resources; * * Defendants, * * County of Aitkin; County of Benton; * County of Sherburne; County of Crow * Wing; County of Isanti; County of * Kanabec; County of Mille Lacs; * County of Morrison; County of Pine; * * Movants-Appellants. *

___________ No. 97-1764

___________ Mille Lacs Band of Chippewa Indians; *-3--4-

Arthur Gahbow; Walter Sutton; Carleen * Benjamin; Joseph Dunkley; * * Plaintiffs-Appellees, * * United States of America; St. Croix * Chippewa Indians of Wisconsin; Lac du * Flambeau Band of Lake Superior * Chippewas; Bad River Band of Lake * Superior Chippewa Indians; Lac Courte * Oreilles Band of Lake Superior * Chippewa Indians of Wisconsin; * Sokaogan Chippewa Community; Red * Cliff Band of Lake Superior Chippewa; * * Intervenors-Plaintiffs-Appellees, * * v. * * State of Minnesota; Minnesota * Department of Natural Resources; * * Defendants, * * County of Aitkin; County of Benton; * County of Sherburne; County of Crow * Wing; County of Isanti; County of * Kanabec; County of Mille Lacs; County * of Morrison; County of Pine; * * Intervenors-Defendants, * * John W. Thompson; Jenny Thompson; * Joseph Karpen; Leroy Burling; Glenn * Thompson; Gary Kiedrowski; * * Intervenors-Defendants- *-5--6-

Appellants. *

___________ No. 97-1768

___________ Fond du Lac Band of Chippewa * Indians; Robert Peacock; Peter Defoe; * Clifton Rabideaux; Herman Wise; * George Dupuis; * * Plaintiffs-Appellees, * * v. * * John Thompson; Jenny Thompson; * Glenn Thompson; Joseph Karpen; * Leroy Burling; Gary Kiedrowski; * * Movants-Appellants, * * Robert J. Edmonds; Michael Sheff; * * Movants, * * Arne Carlson, Governor of Minnesota; * Rodney Sando, Commissioner of the * Minnesota Department of Natural * Resources; Raymond B. Hitchcock, * Assistant Commissioner of Operations, * Minnesota Department of Natural * Resources; * * Defendants, * * County of Aitkin; County of Benton; * County of Sherburne; County of Crow *-7--8-

Wing; County of Isanti; County of * Kanabec; County of Mille Lacs; County * of Morrison; County of Pine; * * Movants. *

___________

___________ No. 97-1770

___________ Fond du Lac Band of Chippewa * Indians; Robert Peacock; Peter Defoe; * Clifton Rabideaux; Herman Wise; * George Dupuis; * * Plaintiffs-Appellees, * * v. * * John Thompson; Jenny Thompson; * Glenn Thompson; Joseph Karpen; * Leroy Burling; Gary Kiedrowski; * * Movants, * * Arne Carlson, Governor of Minnesota; * Rodney Sando, Commissioner of the * Minnesota Department of Natural * Resources; Raymond B. Hitchcock, * Assistant Commissioner of Operations, * Minnesota Department of Natural * Resources; * * Defendants, * * County of Aitkin; County of Benton; *-9--10-

County of Sherburne; County of Crow * Wing; County of Isanti; County of * Kanabec; County of Mille Lacs; County * of Morrison; County of Pine; * * Movants, * * Robert J. Edmonds; Michael Sheff, * * Intervenors-Defendants- * Appellants. *

___________ No. 97-1771

___________ Fond du Lac Band of Chippewa * Indians; Robert Peacock; Peter Defoe; * Clifton Rabideaux; Herman Wise; * George Dupuis; * * Plaintiffs-Appellees, * * v. * * John Thompson; Jenny Thompson; * Glenn Thompson; Joseph Karpen; * Leroy Burling; Gary Kiedrowski; * * Movants, * * Arne Carlson, Governor of Minnesota; * Rodney Sando, Commissioner of the * Minnesota Department of Natural * Resources; Raymond B. Hitchcock, * Assistant Commissioner of Operations, * Minnesota Department of Natural *-11--12-

Resources; * * Defendants-Appellants, * * County of Aitkin; County of Benton; * County of Sherburne; County of Crow * Wing; County of Isanti; County of * Kanabec; County of Mille Lacs; County * of Morrison; County of Pine; * * Movants, * * Robert J. Edmonds; Michael Sheff, * * Intervenors-Defendants. *

___________ No. 97-1772

___________ Mille Lacs Band of Chippewa Indians; * Arthur Gahbow; Walter Sutton; Carleen * Benjamin; Joseph Dunkley; * * Plaintiffs-Appellees, * * United States of America; St. Croix * Chippewa Indians of Wisconsin; Lac du * Flambeau Band of Lake Superior * Chippewas; Bad River Band of Lake * Superior Chippewa Indians; Lac Courte * Oreilles Band of Lake Superior * Chippewa Indians of Wisconsin; * Sokaogan Chippewa Community; Red * Cliff Band of Lake Superior Chippewa; * *-13--14-

Intervenors-Plaintiffs-Appellees, * * v. * * State of Minnesota; Minnesota * Department of Natural Resources; * Rodney Sando, Commissioner of * Natural Resources; * * Defendants-Appellants, * * County of Aitkin; County of Benton; * County of Sherburne; County of Crow * Wing; County of Isanti; County of * Kanabec; County of Mille Lacs; County * of Morrison; County of Pine; * * Intervenors-Defendants. *

___________ No. 97-1774

___________ Mille Lacs Band of Chippewa Indians; * Arthur Gahbow; Walter Sutton; Carleen * Benjamin; Joseph Dunkley; * * Plaintiffs-Appellees, * * United States of America; St. Croix * Chippewa Indians of Wisconsin; Lac du * Flambeau Band of Lake Superior * Chippewas; Bad River Band of Lake * Superior Chippewa Indians; Lac Courte * Oreilles Band of Lake Superior * Chippewa Indians of Wisconsin; *-15--16-

Sokaogan Chippewa Community; Red * Cliff Band of Lake Superior Chippewa; * * Intervenors-Plaintiffs-Appellees, * * v. * * State of Minnesota; Minnesota * Department of Natural Resources; * Rodney Sando, Commissioner of * Natural Resources; * * Defendants, * * County of Aitkin; County of Benton; * County of Sherburne; County of Crow * Wing; County of Isanti; County of * Kanabec; County of Mille Lacs; County * of Morrison; County of Pine; * * Intervenors-Defendants- * Appellants. *

___________ No. 97-1937

___________ Mille Lacs Band of Chippewa Indians; * * Plaintiffs-Appellants, * * Arthur Gahbow; Walter Sutton; Carleen * Benjamin; Joseph Dunkley; * * Plaintiffs, * * United States of America; *-17- *-18- * Intervenors-Plaintiffs, * * St. Croix Chippewa Indians of * Wisconsin; Lac du Flambeau Band of * Lake Superior Chippewas; Bad River * Band of Lake Superior Chippewa * Indians; Lac Courte Oreilles Band of * Lake Superior Chippewa Indians of * Wisconsin; Sokaogan Chippewa * Community; Red Cliff Band of Lake * Superior Chippewa; * * Intervenors-Plaintiffs-Appellants, * * v. * * State of Minnesota; Minnesota * Department of Natural Resources; * County of Aitkin; County of Benton; * County of Sherburne; County of Crow * Wing; County of Isanti; County of * Kanabec; County of Mille Lacs; County * of Morrison; County of Pine; * * Defendants-Appellees, * * John W. Thompson; Jenny Thompson; * Joseph Karpen; Leroy Burling; Glenn * Thompson; Gary Kiedrowski; * * Intervenor-Defendant-Appellees. *

___________-19- No. 97-1938

___________ Fond du Lac Band of Chippewa * Indians; Robert Peacock; Peter Defoe; * Clifton Rabideaux; Herman Wise; * George Dupuis; * * Plaintiffs-Appellants, * * v. * * John Thompson; Jenny Thompson; * Glenn Thompson; Joseph Karpen; * Leroy Burling; Gary Kiedrowski; * * Movants-Appellees, * * Arne Carlson, Governor of Minnesota; * Rodney Sando, Commissioner of the * Minnesota Department of Natural * Resources; Raymond B. Hitchcock, * Assistant Commissioner of Operations, * Minnesota Department of Natural * Resources; * * Defendants-Appellees, * * Robert J. Edmonds; Michael Sheff, * * Intervenors-Defendants- * Appellees. *

___________ Submitted: June 12, 1997 Filed: August 26, 1997-20-The plaintiff Bands in this case have referred to themselves th roughout as Bands 1 of Chippewa Indians, though, as the district court noted, “Chippewa,” “Ojibwa,” o r “Ojibwe” are all terms “used by experts and others to refer to the same group of Native American people.” Mille Lacs Ban d of Chippewa Indians v. Minnesota , 861 F. Supp. 784, 790 n.5 (D. Minn. 1994). We echo and adopt the district court’s conclusion : “Sincethe words Chippewa and Indians are those which have been used legally [and by the parties], they are adopted in this opinion.” Id.
-21- ___________ Before McMILLIAN, LAY, and JOHN R. GIBSON, Circuit Judges.

___________
LAY, Circuit Judge.

I. BACKGROUND

A. Introduction

One hundre d sixty years ago, near Fort Snelling, Minnesota, representatives of the Un ited States and representatives of twelve bands of the Chippewa Natio n negotiated a treaty which ceded Indian title to certain lands in the Upper Midwest

. 1 Historical documents demonstrate that the government was interested in purchasing the landfor purposes of harvesting its pine timber. See 1837 Treaty Journal 131; Letter fr om Commissioner of Indian Affairs Carey A. Harris to Henry Dodge, Wisconsi n Territorial Governor, and General W.R. Smith (May 13, 1837). On July 29, 1837, the Bands signe d a treaty ceding over thirteen million acres of land in present-da y Wi sconsin and Minnesota to the United States in exchange for money, goods, an d supplies. Tre aty with the Chippewas, July 29, 1837, 7 Stat. 536 . Article V of th e Treaty provided, “[T]he privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to theThe Fond d u Lac Band and its members filed suit separately, under both th e 2 1837 Treaty and a separate treaty signed in 1854. The Wisconsin Bands include the St. Croix Chippewa Indians, Lac du Flambeau 3 Band, B ad River Band of Lake Superior, Lac Corte Oreilles Indians, Sokaoga n Chippewa Community, and Red Cliff Band of Lake Superior. The Wisconsin Bands’ treaty rights in the Wisconsin portion of the 1837 ceded territo ry have been adjudicated in litigation in federal courts in Wisconsin. See Lac Cour te Oreilles Band of Chippewa Indians v . Voigt , 700 F.2d 341 (7th Cir. 1983) ( LCO ); see also infra note 1 9 (explaining the LCO litigation). The cou nties are Aitkin, Benton, Crow Wing, Isanti, Kanabec, Mille Lacs , 4 Morrison, Pine, and Sherburne; they will be referred to throughout this opinion as “the Counties.”
-22- Indians, during the pleasure of the President of the United States.” These usufructuary rights form the subject matter of the present litigation.

In 1990, the Mille Lacs Band of Chippewa Indians and some of its individua l members (the Mille Lacs Band), later joined by the Fond du Lac Band of Chippew a In dians and some of its individual members (the Fond du Lac Band) and severa l 2 Wiscons in

Bands of Chippewa Indians (the Wisconsin Bands) (collectively “th e 3 Ba nds”) sought a declaratory judgment in federal district court as to the continue d existe nce of their usufructuary rights in the Minnesota portion of the territory the y ceded in the 1837 Treaty. The Bands also sought injunctive relief to enforce thes e treaty rights to hunt, fish, and gather in the ceded lands free of state regulation.

1. Mille Lacs I ( Mille Lacs Band of Chippewa Indians v. Minnesota , 853 F. Supp. 1118 (D. Minn. 1994))
In the Mill e Lacs case, the Mille Lacs Band initially sued the State, th e Minneso taDepartment of Natural Resources, and the Commissioner of Natura l Resources (collectively “the State”). Nine Minnesota counties and six Minnesota 4The landowners a re John W. Thompson, Jenny Thompson, Joseph N. Karpen, 5 LeRoy Burling, Glenn E. Thompson, and Gary M. Kiedrowski. The Honorable Diana E. Murphy, then-Chief United States District Judge for 6 the District of Minnesota.
-23- landowners intervened as defendants, and the United States intervened as a plaintiff.

5 Mille Lacs I , 853 F. Supp. at 1123.

T he district court bifurcated the Mille Lacs case into two phases. Phase I was to decide whether the Mille Lacs Band’s rights to hu nt, fish, and gather under the 1837 Trea ty continue to exist and the general nature of any such rights, including whethe r they extend to lands now or previously in private ownership. Phase II was to decide
resource allocation issues and the validity of particular measures to regulate th e exercise of the rights. Id.

In Mille Lacs I , on cross-motions for summary judgment , the district court held 6 that (1) various delay-based defenses do not bar the Mille Lacs Band’s claims, id. at 1124-26, 1127-28, 1138-39, (2) the Mille Lacs Ba nd and the Commissioner of Natural Resources are persons within the meanin g of 42 U.S.C. § 1983, id. at 1126-27, (3) the suit is not barred by the Eleventh Amendment, id. at 1128-29, (4) the Commissioner of Natural Resources is n ot exempt from suit under the doctrine of qualified immunity and other parties urged by the State are not indispensable, id. at 1129-31, and (5) the Band’s claims are not precluded by res judicata or collateral estoppel, id. at 1132-38. The court also rejected the State’s motion for summary judgment which argued that an 1850 Executive Order and an 1855 Treaty extinguished the Band’s usufructuary rights. Id. at 114 2-43. Finally, the court dismissed counterclaims the six Minnesot a landowners brought against the United States. Id. at 1143-46.

2. Mille Lacs II ( Mille Lacs Band of Chippewa Indians v. Minnesota , 861 F. Supp. 784 (D. Minn. 1994))-24-Afterthe Phase I trial, the State, the Counties, and the six Minnesot a 7 landowners immediately appealed the Mille Lacs II dec ision. See 861 F. Supp. at 840. This court dismissed the appeals from the district court’s Phase I order as premature. 48 F.3 d 373 (8th Cir. 1995). The Counties and the six Minnesota landowners als o moved for a preliminary injunction to pr event the Mille Lacs Band from violating state and federal conservation laws pending resolution of the case. The district court denied their request, 864 F. Supp. 102 (D.Minn. 1994), and this court affirmed, 66 F.3d 332 (8th Cir. 1995) (unpublished table decision). See supra n.2. 8
-25- Aftera t rial held on Phase I issues, the district court ruled that the Mille Lac s Band had a continuing right to hunt, fish, and gather pursuant to th e 1837 Treaty. Mille Lacs II , 861 F. Supp. at 841. Specifically, the court held that neither the 185 0 Execu tive Order nor the 1855 Treaty extinguished the usufructuary rights reserved in the 1837 Treaty. Id. at 823-35. In addition, the court held that the usufructuary rights reserved by the Band included the rights to harvest re sources for commercial purposes, and were not limited to use of any parti cular techniques, methods, devices or gear. Id. at 838. Finally, it rule d that any regulation imposed by the State must be necessary to ensure public health and safety, and that the State could not impose its own regulations if the Chippewa could establish tribal regulations adequate to me et conservation, public health and public safety needs. Id. at 838-39. 7

3. Mille Lacs III ( Mille Lacs Band of Chippewa Indians v. Minnesota , No. 3-94-1226 (D. Minn. Mar. 29, 1996)) After the Phase I order in Mille Lac s II , several Wisconsin Bands of Chippewa 8 were allowed to intervene as plaintiffs. The State moved for summary judgme nt against the Wisconsin Bands, arguing that previous litigation before the Court of Claims and the Indian Claims Commission barred their claims, and that a treaty signed by th e Wisconsin Bands in 1854 extin guished any usufructuary rights guaranteed in the 1837 Treaty. Mille Lacs III , slip op. at 7. The Counties moved for summary judgmentThe Honorable Michael J. Davis, United States District Judge for the District 9 of Minnesota. The se landowners are Robert J. Edmonds and Michael Sheff. All eigh t 10 land owners (the two in Fond du Lac and the six in Mille Lacs ) will be referred t o throughout this opinion as “the Landowners.” The Honorable Richard H. Kyle, United States District Judge for the District 11 of Minnesota.
-26- against the Wisconsin Bands as well, arguing that at the time of the 1837 Treaty, the Wisconsin Bands did not occupy lands or exercise hunting and fishing rights i n Minnesota, and that this fact barred t heir claim. The Counties also argued, despite the ruling in Mille Lacs I , that the 1850 Executive Order extinguished the Wisconsi n Bands’ rights. I d. The six Minnesota landowners also moved for summary judgment against the Wisconsin Bands, and the Wisconsin Bands and the Mille Lacs Ban d
mo vedfor summary judgment dismissing various defenses. Id. at 7-8. The distric t court issued summary judgment in favor of the Wisconsin Bands, and denied th e 9 defendants’ motions for summary judgment. Id. at 41-42.

4. Fond du Lac ( Fond du Lac Band of Chippewa Indians v. Carlson , No. 5-92-159 (D. Minn. Mar. 18, 1996))
In 19 92, the Fond du Lac Band brought a separate suit against state officials , also claiming continuing rights to hunt, fish, and gather pursuant to the 1837 Treaty and its 1854 Treaty . Two Minnesota landowners intervened as defendants. The district 10 court issued a bifurcation order similar to the order signed in the Mille Lacs case. In October 1994, the court held that the Fond du Lac Band’s claims were not barred by 11 Eleve nthAmendment, indispensable parties or statute of limitations defenses. Thi s
cou rt affirmed the rejection of the Eleventh Amendment defense in an interlocutory app eal. Fond du Lac Band of Chippewa Indians v. Carlson , 68 F.3d 253 (8th Cir

. 1995). In March 1996, the district court issued a ruling on Phase I issues, holding thatThe Hon orable Michael J. Davis, United States District Judge for the District 12 of Minnesota. Jurisdiction of this appeal is authorized under 28 U.S.C. § 1291. 13
-27- the Fond du Lac Band retains hunting, fishing, and gathering rig hts under both the 1837 Treaty and the 1854 Treaty.

5. Mille Lacs IV ( Mille Lacs Band of Chippewa Indians v. Minnesota , 952 F. Supp. 1362 (D. Minn. 1997)) In June 1996, the district court consolidated Phase II of the Mille Lacs case with the portion of the Fond du Lac case relating to the 1837 Treaty. In the consolidate d Phase II, the State a

nd the Bands stipulated to a Conservation Code and Management Plan, under which tribal hunting, fishing, and gathering would be regulated. Though the State and the Bands were able to resolve many issues through this stipulation, some issues rema ined unresolved, and were submitted to the district court on motions fo r summary judgment. On January 29, 1997, the dist rict court issued an order resolving

12 these issues. It approved the Conservation Code and Management Plan and rejected defend ants’ arguments to make a further allocation of the resources affected by th e Code and Plan. Mille Lacs IV , 952 F. Supp. at 1385-94. The court also held tha t
e x ercise of treaty rights on private lands would be limited to those open to the public by o peration of state law, but that the Bands may not hunt on unposted, unenclosed , nonagricultural lands open to public hunting pursuant to state statute. Id. at 1376-79.

The Fon d du Lac case and the Mille Lacs case were consolidated on appeal. 13 The basic issues presented on ap peal are (1) whether the suit is barred in federal court under th e Eleventh Amendment; (2) whether the 1850 Executive Order issued b y Pres ident Zachary Taylor revoked the Bands’ usufructuary rights; (3) whethe r subsequent

treaties of 1854 and 1855 have extinguished the usufructuary rights; (4 ) whether the claims a sserted by the Bands have been precluded by prior litigation; (5)The State does not raise the Eleventh Amendment defense in its brief, and we 14 question whether the Landowners have standing to raise the defense on behalf of the State. Howev er, the Landowners filed a letter pursuant to F.R.A.P. 28(j) asserting as addit ional authority to support the Eleventh Amendment claim the Supreme Court’ s recent decision of Idaho v. Coeur d’Alene Tribe of Idaho , 117 S.Ct. 2028 (1997). In response, the State filed a letter joining in the Landowners’ defense. Normally, if an iss ue is not raised in the brief itself, nor argued at the time of oral argument, it i s deemed waived. Bechtold v. City of Rosemount , 104 F.3d 106 2, 1068 (8th Cir. 1997). Nonetheless, assuming wi thout deciding that the issue is properly before us, we reject it on the merits.
-28- whether the Bands’ rights were repealed, under the equal footing doctrine, b y Minnesot a’s admission into the Union; (6) whether the rights, if they still exist, ar e limited by the “moderate living” doctrine; (7) whether several other affirmativ e defenses were erroneously rejected by the district court; and (8) in the Bands’ crossappeal, whether the district court erred in barring the Bands from hunting on unposted, unenclosed, nonagricultural lands open to public hunting.

II.

Eleventh Amendment

We turn ini tially to the Landowners’ arguments that these suits are barred i n federal court because of the sovereign immunity of the State of Minnesota. Th e 14 Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of an y Foreign S tate.” The Bands are accorded the same status as a foreign sovereign

. Blatchford v. Native Village of Noatak , 501 U.S. 775, 780 (1991).The State is a defendant in the Mil le Lacs suit, but not in the Fond du Lac suit. 15 The Ex parte Youn g doctrine excepts from the Eleventh Amendment bar suits 16 “broug ht in federal court against state officials in their official capacities fo r prospective injunctive relief to prev ent future violations of federal law.” Fond du Lac , 68 F.3d at 255. The district court in Mille Lacs III similarly rejected the argument by the State 17 and the Landowners that the Wisconsin Bands’ claims must be dismissed on Eleventh Amen dment grounds. The court relied on the earlier decision in Mille Lacs I , and on this court’s opinion in Fond du Lac

. Mille Lacs III , slip op. at 11.
-29- In Mil le Lacs , the State raised the defense of sovereign immunity before th e district court, which rejected it on two grounds. First, the court noted that the claims

15 by the United States are not barred by the Eleventh Amendment, citing Blatchford , 501 U.S. at 782-83, and United States v. Minnesota , 270 U.S. 181 , 195 (1926). Mille Lacs I , 85 3 F. Supp. at 1128. Therefore, the court held that because “the Band and th e United States seek the same relief in this action, Minnesota’s sov ereign immunity is not comprom ised.” Id. (citing Arizona v. California , 460 U.S. 605, 613-14 (1983))

. Second, the court ruled that the Band’s claim for prospective relief against th e Commissi oner

of Natural Resources in his official capacity falls within the Eleventh Amendm ent exception set out in Ex parte Young , 209 U.S. 123 (1908). Mille Lacs 16 I , 853 F. Supp. at 1128-29. 17

As to the court’s first holding, the Landowners urge that the United States did not ini tiate the suit and appears only as a trustee intervening in the action. Thi s observation, while true, is not controlling. The United States has fully participated in all proceedings on behalf of the Bands. As an intervenor, it has the right to continue the suit even without the presence of the Bands. See Diamond v. Ch arles , 476 U.S. 54, 68 (1986). Therefo re, because the United States has the right to bring these claims in feder al court, the State’s sovereign immunity is not compromised and the Eleventh Amendment does not bar these claims. See Arizona v. California , 460 U.S. at 614-30-

(“Nothi ng in the Eleventh Amendment has ever been seriously supposed to prevent a State [from] being sued by the United States.”) (internal quotations omitted).

In Fond du Lac , the district court denied the defen dant state officials’ motion for summary judgment based on Eleventh Amendment immunity. Our affirmance rejected this defense on

the ground that the claims fell within the Ex parte Young exception to the Eleventh Amendment. Fond du Lac , 68 F.3d at 256-57. As such, that ruling is the law of the case in Fond du Lac , unless superseded by an intervening Supreme Court
case. See Uhl v. Swanstrom , 79 F.3d 751, 755 (8th Cir. 1996) (noting that the “‘law of the case’ doctrine does not apply when an intervening decision from a higher tribunal renders a prior determination erroneous”).

Th e Landowners filed a 28(j) letter, with which the State concurred, assertin g that this court’s ruling in Fond du Lacwas in error and has now been superseded by the Supreme Court’s decision in Idaho v. Coeur d’Alene Tribe of Idaho , 117 S.Ct. 2028 (1997). We disagree. In Coeur d’Alene , the Coeur d’Alene Tribe and severa l individual tribe members sued the State of Idaho and various state officials an d agencies in federal court “[a]lleging ownership in the submerg ed lands and bed of Lake Coeur d’ Alene and of the various navigable rivers and streams that form part of it s water system.” Id. at 2032. The Court hel d that the action was barred in federal court because it was the “functional equivalent of a quiet title act ion which implicates special sovereignty interests” and therefore did not fall within the Ex parte Young exception to the Eleventh Amendment. Id. at 2040.

The p rincipal decision, written by Justice Kennedy, espouses a case-by-cas e balancing approach for applying the Ex parte Young exception. See id. at 2038-40. Howe ver, the majority of the Court, including the four dissenters and the concurrin g opinion signed by three Justices, rejects Justic e Kennedy’s balancing test. Regardless, Coeur d’Alene

does not m ake the Ex parte Young exception inapplicable to this case. Our conclusion that thi s case falls within the exception is supported by the concurring-31-

opinion’s appr aisal of Ex parte Young : “[A] Young suit is available where a plaintiff alleges an ongoin g violation of federal law, and where the relief sought is prospective rather than retrospective.” Id. at 2046 (O’Connor, J., concurring) (emphasis omitted). Mor eover, the principal opinion reaffirmed the Young principle, noting that “wher e prospective relief is sought against individua l state officers in a federal forum based on
a feder al right, the Eleventh Amendment, in most cases, is not a bar.” Id. at 203 8 (citation omitted). Neither the State nor the Landowners present factors from this case which would counsel against applying the Ex parte Youngexception eve n under Justice Kennedy’s balancing approach.
Justice O’Connor, in the c oncurring opinion, distinguished Coeur d’Alene from Ex parte Young as follows:

First , as the Tribe concedes, the suit is the functional equivalent of a n action to quiet its title to the bed of Lake Coeur d’Alene. . . . Second, the Tribe doe s not merely seek to possess land that would otherwise remain subject to state regulation, or to bring the State’s regulatory scheme into comp liance with federal law . Rather, the Tribe seeks to eliminat e al together the State’s regulatory power over the submerged lands a t iss ue—to establish not only that the State has no right to possess th e pr operty, but also that the property is not within Idaho’s sovereig n jurisdiction at all.

Id. at 2043-44 (emphasis added).

We hold that the Eleventh Amendment does not bar any of the claims before us. In Mille Lacs , where the State is a party, the United States has intervened and seeks the same relief as the Bands. The remaining claims in Mille Lacs and the claims i n Fond du Lac seek prospective injunctive relief against state officials in their officia l
c a pacities for continuing violations of the Bands’ federal treaty rights. As such, they fall squarely within the Ex parte Young exception to the Eleventh Amendment.In the years in and around the execution of the 1837 Treaty, removal of tribes 18 was the official policy of the United States government. President Andrew Jackson, one of the most vigorous proponents of the policy, began pushing for remova l legislation shor

tly after his election in 1829. “After one of the bitterest debates in the history of Congress,” the Remova l Act was enacted into law on May 28, 1830. Grant Foreman, Indian Removal 21 (1932). The Act authorized the President to enter int o treaties ex changing lands for compensation and removal. Many removal treaties (not including the 1837 Treaty at issue here) followed.
-32- III.

1850 Executive Order
On February 6, 1 850, President Zachary Taylor issued the following Executive Order:

The p rivileges granted temporarily to the Chippewa Indians of th e Mississippi by the Fifth Article o f the Treaty made with them on the 29th of Jul y 1837, “of hunting, fishing and gathering the wild rice, upon th e lands, the rivers and the lakes included in the territory ceded” by tha t treaty to the United States . . . are hereby revoked; and all of the sai d Indians remaining on the lands ceded as aforesai d, are required to remove to their unceded lands. 18

The d istrict court in Mille Lacs II rejected the defendants’ argument that this orde r validly terminated usufructuary rights re served by the Bands in the 1837 Treaty. First, the c ourt held that President Taylor did not have authority to order the Bands t o remove, and that the po rtion of the Executive Order revoking the Bands’ usufructuary ri ghts was not severable from the portion of the document ordering removal. Mill e Lacs II , 861 F. Supp. at 824-26. In the alternative, the co urt held that even if the Order were backed by the necessary authority or if the revoc ation portion were severable, the Order did not effect a revocation because the 1837 Treaty did not grant the PresidentIn the LCO litigation, the Lac Courte Oreilles Band of Chippewa Indians , 19 whic h signed the 1837 Treaty, brought suit against the State of Wisconsin and stat e officials seeking a declaratory judgment that it retained usufructuary rights under the 1837 Treaty and a separate1842 Treaty. Id. at 343-44. The court held that the rights continue to exist. The scope of the LCO Band’s rights has been the subject o f co ntinued litigation in federal district court and the Seventh Circuit. See, e.g. , La c Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin , 760 F.2d 177 (7th Cir. 1985) ( LCO II ); 653 F. Supp. 1420 (W.D. Wis. 1987) ( LCO III ), 66 8 F. Supp. 1223 (W.D. Wis. 1988) ( LCO IV ); 686 F. Supp. 226 ( W.D. Wis. 1988) ( LCO V ); 707 F. Supp. 1034 (W.D. Wis. 1989) ( LCO VI ); 740 F. Supp. 1400 (W.D. Wis. 1990 ) ( LCO VI I ); 775 F. Supp. 321 (W.D. Wis. 1991) ( LCO VIII ); see also Kenneth D

. Nelson, Comment, Wisconsin, Walleye, and the Supreme Law of the Land: A n Overview of the Chippewa Indian Treaty Rights Dispute in Northern Wisconsin , 1 1 Hamline J. Pub. L. & Pol’y 381 (1990).
-33- unfettered discretion to revoke the usufructuary r ights it preserved. Id. at 826-27. The Seventh Circuit h ad used this approach in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt , 700 F.2d 341 (7th Cir. 19 83) ( LCO ), where it held that the 1837 Treaty c onferred upon the President discretion to revoke the usufructuary rights only if the Ba nds misbehaved. See id. at 357 (interpreting the 1837 Treaty and a separ ate treaty signed in 1842 to allow revocation of usufructuary rights “only if th e Indians were instrumental in causing disturbances with white settlers”). 19
Again in the alternative, the district court held that the entire 1850 Order wa s unlawful because it v iolated the United States’ duty to act in good faith in its dealings with Indians. Mille Lacs II , 861 F. Supp. at 826- 27. Finally, the court determined that even if the 1850 O rder were valid and gave the President unfettered discretion, it was repealed by implication because it was never enforced. Id. at 829-30.

The S tate, the Counties, and the Landowners argue that the district court erred in each of these holdings. They advocate that the Executive Order is valid because the 1837 Treaty gave the President unfettered discretion to revoke the Bands’ rights.Th e Counties have argued that judicial review of the 1850 Order is barred by 20 the political question doctrine. We find this argument to be foreclosed by Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 (1952), which sets out the standards b y which courts review executiv e orders. In addition, review of the 1850 Order does not fall within any of the categories of nonjus ticiable political questions set out in Baker v. Carr , 369 U.S. 186, 217 (1962).
-34- Before we can analyze the 1837 Treaty and the scope of the President’s discretion, it is necessary to determine whether President Taylor had the power to issue the 1850 Executive Order. 20

The rule to be follo wed in examining executive orders is that “[t]he President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitutio n

itself.” Youngstown , 343 U.S. at 585. An executive order withou t congressional or constitutional author ity is unconstitutional. Id. “When the President takes measures incompatible with the expressed or implie d will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any con stitutional powers of Congress over the matter.” Id. at 637 (Jackson, J. , concur ring), adopted in Dames & Moore v. Regan , 453 U.S. 654, 669 (1981). Th e Bands argue that Congress required Indian consent as a prerequisite to removal, that it was not present here, and that the Order was therefo re against congressional will and the dictates of Youngstown

.
The 1830 Removal Act authorized the President to convey lands west of th e Mississippi to “such tribes or nations of Indians as may choose to exchange the lands where they now reside, and remove there.” 1830 Removal Act, ch. 148, 4 Stat. 411 (emp hasis added). Though President Jackson advocated an aggressive policy , including possible use of force to achieve Indian removal, it is clear the Removal Act
wa s “entirely permissive.” Wilcomb E. Washburn, 3 The American Indian and th e United States: A Documentary History 2169 (1973).-35-

The requirement of Indian consent is easily drawn from the language of th e stat ute. It is buttressed, however, by the statements and actions of congresses an d presidents in and after 1830. For example, President Jackson, in his 1829 State of the Union Address, proffered a removal policy and urged that it “should be voluntary, for it would be as cruel as unjust to compel the aborigines to abandon the graves of their fathers and s eek a home in a distant land.” 1 The State of the Union Messages of the Presi dents, 1790-1966 , at 310 (Fred L. Israel ed., 1966). In his 1835 State of th e UnionAddress, President Jackson advocated further Indian removal “as fast as their consent c an be obtained.” Id. at 438, quoted in Mille Lacs II , 861 F. Supp. at 824

. Indian consent is also exem plified by the many treaties between the United States and various Indian trib es made after 1830 where removal was negotiated. See Mille Lacs II , 861 F. S upp. at 794 n.7 (listing four such treaties). In 1837, Congress passed a n appropriations act speci fically to fund the negotiations that led to the 1837 Treaty and others l ike it. Act of March 3, 1837, ch. 31, 5 Stat. 158. If removal could have been effec ted through a simple executive order, the difficult process of treaty negotiatio n would h ave been unnecessary. The Removal Act did not authorize the President t o achieve r emoval through unilateral means; rather, it “authorized the President t o negotiate with selected tribes and to induce them, if possible , to exchange their eastern and southern homelands for substitute reserves lying across the Mississippi . . . .” John W. R agsdale, Jr., Indian Reservations and the Preservation of Tribal Culture , 5 9 U.M.K.C. L. Rev. 503, 509 (1991) (emphasis added).

Th e defendants do not cite to any evidence indicating that the President wa s authorized to remove the Bands without their consent. The State argued below that the E x ecutive Order was valid because “[b]y the 1830s, the policy of both Congress and the President was clear: to remove the Indians to locations west of the Mississippi, byT he State is partially correct. Scholars have noted that the law of voluntary 21 removal was not always faithfully followed. See, e.g. , Jill Norgren, Protection of What Rights They Have: O riginal Principles of Federal Indian Law , 64 N.D. L. Rev. 73, 98 (1988) (noting that the “Re moval Act articulated a voluntary process of removal to be agreed upon through a process of law, ” but that the reality of removal was “something qui te the contrary”); Siegfried Wiessner, American Indian Treaties and Moder n International Law , 7 St. Thomas L. Rev. 567, 578-79 (1995) (“Generally speaking , treaties of r emoval appear to often have been imposed by force or fraud, tainted b y cor ruption or lack of authority by Indian representatives.”); see also Carol Chomsky, The United States-Dakota War Trials: A Study in Military Injustice , 43 Stan. L. Rev. 13, 38 n.150 (1990) (observing that a removal act passed in 1863 “was the first time the United States had chosen to remove Indians unilaterally by statute, without even the semblance of agreement by treaty”). J ustice Jackson’s three categories of presidential authority set forth in hi s 22 concu rring opinion in Youngstown indicate that where, as here, an executive orde r contrav enes congressional will, the order can stand if the President can draw on hi s constitutional powers. Youngstown , 343 U.S. at 637 (Jackson, J., concu rring); see also Rega n , 453 U.S. at 668-69 (adopting Justice Jackson’s categories as “analyticall y use ful”). The Constitution does not help President Taylor here, however, because i t confers upon Congress, not the President, authority over Indian affairs. U.S. Const. art II, § 2, cl. 2 (conferring treaty power to the President but only with the advice an d consent of the Senate); id. at art. I, § 8, cl. 3 (Indian commerce clause); see also LCO , 700 F.2d at 361 n.14.
-36- treaty if possible, by force if necessary.” However, such unilateral and unlawfu l 21 action cannot control the clear meaning and intent of the Treaty. It is clear to us that the Bands in this litigation did not give consent for removal. Defendan ts do not point to a single document indicating that the 1837 treaty negotiations included discussion of removal. In 1837, before negotiations began , 22 Commissio ner of Indian Affairs Carey A. Harris sent a letter to Wisconsin Territorial Governor Henry Dodge instructing him on the object of the treaty, which was t o “procure from [ the] Indians a tract [of land] . . . valuable for its pine woods whic h cover it.” Letter from Commissioner of Indian Affairs Carey A. Harr is to Henry DodgeN either did the Bands consent to removal after the 1837 Treaty was signed

. 23 The defendants do not point to any cond uct indicating as much, nor can we find any in the record.
-37- and General W. R. Smit

h (May 13, 1837). As the district court noted, “The letter did
no t contain any reference to the removal of the Chippewa, the 1830 Removal Act, or the 18 37 appropriations act.” Mille Lacs II , 861 F. Supp. at 794. The district cour t conclud ed, “Neither Dodge nor the Chippewa intended or understood that an y provision of the 1837 Treaty was to provid e for removal from the ceded territory.” Id. at798. Given the evidence, most prominently the treaty itself, that the Bands did not approve removal, we cannot conclude that the finding that the Bands did not consent to removal is clearly erroneous. 23

If Congress required consent for removal, and the Bands did not consent, then Presid ent Taylor had no authority for his 1850 Executive Order of removal. Thi s conclusion does not, however, end our inquiry into the matter of the Executive Order. Defendants argue that the portion of the Order extinguishing the 1837 usufructuary rights is separate and severable from the portion of the Order requiring removal.

The test for whether a vali d portion of an otherwise unconstitutional statute can be severed also ap plies to executive orders. Matter of Reyes , 910 F.2d 611, 613 (9th Cir. 1990). In the early case of Cham plin Rfg. Co. v. Commission , 286 U.S. 210, 234 (1932), the Court established its test for severability:

The unconstitut

ionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions. Unless it is evident that the legisl ature would not have enacted those provisions which are within its powe r, independently of that which is not, the invalid part may b e dropped if what is left is fully operative as a law.-38-

See also New York v. United States , 505 U.S. 144, 186 (1992) (using this test); Alaska Airlines, Inc. v. Brock , 480 U.S. 678, 684 (1987) (same).
On its face, the Order contains two provisions tha t seem separate—one ordering revocation of treaty rights, and one ordering removal. However, the test fo r severability requires us to look at mo re than the text of the Order. As is the case with a court’s construction of statutory law, the bottom line in assessing severability turns
onthe intent of the drafter, in this case President Taylor, and the purpose of the text, in this case the Executive Order. See EEOC v. CBS, Inc. , 743 F.2d 969, 971 (2d Cir. 1984) (“ Whether or not we should sever an unconstitutional provision from th e remainder of the statute in which it appears is pri marily an issue of legislative intent.”); Scheinberg v. Smith , 659 F.2d 476, 481 (5th Cir. 1981) (“[T]he question is . .

. whether, at the time the statute was enacted, the legislature would h ave passed it absent the constitutionally object

ionable provision.”), overruled on other grounds by Planned Pa renthoodv. Casey , 505 U.S. 833 (1992). The task before us, therefore, is t o determine whether President Taylor would have issued an executive order revoking the Ban ds’ treaty rights without also ordering removal. The district court found that th e revocation portion of the Ord er was included in order “to encourage removal.” Mille Lacs II , 861 F. S upp. at 826. While the court determined that this observation argues against severability, the observation could cut the other way. A strong argument could be made (although it is not) that the President would have issued a revocation orde r without the removal

provision, because it would have “encouraged” Bands to remove fromthe ceded territory without actually ordering them to do so. If the Bands wer e denied their rights to hunt, fish, and gather, they would be deprived of their sustenance to exist on the ceded lands, and thus would be forced to remove. As such, a
revo cation order standing alone would have allowed the President to attempt to d o indirectly what he could not do directly.
Notwithstanding these arguments, on the basis of the record before us, we agree with the district

court that the revocation portion of the Order cannot be severed fromIndeed, even the direct order of removal and the corresponding revocation of 2 4 usufruct ary rights were never implemented. On August 23, 1851, the Actin g Commissioner of Indian Affairs wrote to the Secretary of the Interior and recommended abandoni ng the removal policy and modifying the Executive Order. Thereafter , Commissioner of Indian Affairs Luke Lea ordered suspension of the Order. The new Commi ssioner

of Indian Affairs, George Manypenny, adopted this policy o f abandoning removal in his 1854 report. When President Franklin Pierce took office in 185 3, his administration “replaced the old removal policy with a policy of creatin g reservations for the Chippewa on lands ceded in earlier treaties.” Mille Lacs II , 861 F. Supp. at 808. In 1854 and 1855, the government negotiated treaties which followed this new policy creating Chippewa reservations sti ll in place today. See infra Parts IV, V (discussing the 1854 and 1855 Treaties). As to the revocation order, Minnesota Territorial Governor Wil lis Gorman wrote to Commiss ioner Manypenny in 1855 regarding a dispute over a dam, and stated that the Bands reta ined hunting and fishing rights in the area of the dam. See id. at 810

. Annuity pa yments made after the 1850 Order included equipment for hunting an d trapping. See id. at 808 (listing lead, shot, powder, guns, and traps as provisions paid to the Bands). The district court found that “[g]overnment policy between 1851 and 1860 indicates that the government no longer expected the Chippewa to remove an d that it expected the Chippewa to continue to hunt, fish, and gather on their ceded lands with the assistance of goods provided by the government.” Id.
-39- its companion pro vision. The purpose of the Order was to mandate removal, and this purpose was integral to the entire Order. See Zbaraz v. Hartigan , 763 F.2d 1532, 1545 (7th Cir. 1985) (“Severa

nce is improper if the unconstitutional provision is an integral part of the statutory enactment viewed in its entirety.”) (internal quotation omitted) , aff’dby an equally divided court , 484 U.S. 171 (1986). Other than our above-stated conjecture, there is no evidence that revocation o f usufructuary rights would have been made independently of the removal mandate. We may envision a scenario where this indir ectmethod of removal could have been followed, but we have in the record n o statement by anyone indicating such a plan had ever been considered, much les s empl oyed. All of the historical evidence surrounding the Order relates to removal

.

24 Without evidence that t

he scenario we have outlined had even been contemplated, weAs we noted previously, the defendants challenge each of the district court’s 25 alternative ruling s on this issue. Our holding as to the validity of the Order, however, obviates any need to consider the district court’s alternative rulings and the defendants’ remaini ng arguments. We therefore decline to discuss the misbehavior standard read into the 1837 Treaty by the LCO and Mille Lacs II courts, the good faith doctrin e whichthe district court held was violated by the United States in issuing the 185 0 Order, and the alleged repeal by implication.
-40- cannot sever the revocation portion of the Order and hold that it is valid standing alone. See Scheinberg , 659 F.2d at 482 (“[W]e cannot judicially sever a portion of a n
en actment

on the authority of a wholly speculative, and insupportable, interpretatio n of legislative intent.”). We hold that the entire 1850 Executive Ord er is invalid because it was issued without presidential authority. 25

IV.
1854 Treaty
By 1854, Congress began to pursue a reservation policy to replace its failin g removal policy. Commissioner Manypenny indicated in his 1854 Annual Report that reservations should be established for the Chippewa still living in the lands ceded by the 1837 and 1842 Treaties. An authorization act f or this purpose was debated in May 185 4, but it failed to pass the Senate. Nonetheless, negotiations went forward, and a treaty re sulted. Treaty with the Chippewas, Sept. 30, 1854, 10 Stat. 1109. Th e Wisconsin Bands and the Fond du Lac Band, but not the Mille Lacs Band, wer e signatories to the Treaty, which created reservations within the lands ceded in the 1837 and 1842 Treaties in exchange for cession of title to various other tracts of land. The Landowners and the State argued below that the 1854 Treaty, through the creation of reservat ions, extinguished the 1837 Treaty rights of the Wisconsin Bands. Thi s argument does not apply tothe Mille Lacs Band, because it was not a signatory to theThe 1 854 Treaty also reserved to various Bands, including the Fond du La c 26 Band, a right to hunt and fish on the new ly ceded lands. Claims for these usufructuary rights were brought by the Fond du Lac Band, but are not a part of this consolidated ca se. See Fond du Lac , slip op. at 22-34 (determining that the 1854 Treaty grante d usufructuary rights in

Minnesota to the Fond du Lac Band, but declining to decide the scope of those rights until Phase II of the case). The State has not addressed the 1854 Treaty in this court. 27
-41- Treaty, nor to the Fond du Lac Band, because defendants have not pursued thi s
ar gument against that Band. The district court rejected the State’s and th e 26 Lan downers’ arguments and held that the 1854 Treaty did not extinguish th e usufructuary rights reserve d under the 1837 Treaty. Mille Lacs III , slip op. at 33. On appeal, the Landowners urge us to reverse the district court. 27

The Landowne rs rely on United States v. Santa Fe Pac. R.R. , 314 U.S. 33 9 (1941), where the Supreme Court determined that creation of a reservation by th e United St ates and acceptance of it by the Walapai Indians “amounted to a reli nquishment

of any tribal claims to lands which they might have had outside that reservatio n.” Id. at 357-58 (footnote omitted). The Court made it clear that mer e establishment of a reservation does not au tomatically extinguish rights to lands outside the reservation, but it determined that the fac ts and circumstances of the case indicated ext inguishment

of title. In 1865, Congress had established a reservation for th e Walapai Indi ans in an effort to induce them to abandon their ancestral lands. Id. a t 351-53. The Tribe did not accept the reservation at that time, and the Court determined that its rights to the land were not ex tinguished by the mere passage of the act creating the reservati on. Id. at 353-54. In 1881, however, the Tribe accepted the reservation. The Court determined that “[i]n view of this historical setting, it cannot now be fairly implied that tribal rights of the Walapais in lands outside the reservation wer e preserved.” Id. at 358.-42-We note also the distinction in the law between usufructuary rights, at issu e 28 here, and title or occupancy, at issue in Santa Fe

. See LCO , 700 F.2d at 35 2 (“[T]reaty -recognizedrights of use depend neither on title nor right of permanen t occupancy.”).
-43- The district court distinguished Santa Fe : “Not only is the historical contex t completely different, the Court’s analysis was based upon aboriginal title whereas in this case, the usufructuary rights at issue have been found to be treaty rights.” Mille Lacs III , slip op. at 28. We agree. The c ircumstances involved in Santa Fe , where the
ar gument was over aboriginal title rather than usufructuary rights reserved by treaty , are not present here. See LCO , 700 F.2d at 3 51-52 (explaining the legally significant 28 differences between aboriginal title and treaty-recognized rights). Most importantly, however, the evidence is overwhelming that neither party intended the 1854 Treaty to disturb usufructuary rights. The Treaty established reservations and ceded land s different from the lands ceded in the 1837 Treaty, and explicit ly preserved usufructuary rights on the newly ceded lands

. See id. at 364 (“[T]he inclusion in the 1854 treaty of a reservation of usufructuary rights by the Minnesota Chippewas suggests, in our view, th atthe LCO band believed their usufructuary rights [reserved in the 1837 and 184 2 Treati es] to be secure and unaffected by the treaty.”); Mille Lacs II , 861 F. Supp. a t 815 (concluding that the government did no t intend to extinguish usufructuary rights in
a differe nt treaty with the Chippewa in part because the Treaty does not contai n references to the rights, and “[w]hen the United States extinguished reserved rights of fishing in other treaties, it included explicit language ending those rights and providing monetary compensation”).

V.
1855 Treaty-44-

In December 1854, Congress passed the previously rejected bill establishin g authorit yfor treaty negotiations. The bill provided retroactive authority for the 185 4 Tre aty, and authority to negotiate a follow-up treaty. On January 4, 1855 , Commissioner Manypenny directed Governor Gorman to begi n the negotiation process fora n ew treaty with the Chippewa “respecting their claim to lands in Minnesota. ” Mille Lacs II , 861 F. Supp. at 812 (citation omitted). The new treaty was negotiated from February 12 to February 22, 1855. It was signed bythe Mississippi, Pillager, and Lake Winnibigoshish Bands of Chippewa, a group which in cludes the Mille Lacs Band but not the

Fond du Lac Band or the Wisconsin Bands. Article 1 of the Treaty ceded a ten million acre tract of land located nor th and northwest of the 1837 ceded territory. Treaty with the Chippewas, Feb. 22, 1855, art. 1, 10 Stat. 1165. Article 1 also states, “And the said Indians do further fully and entirely relinquish and convey to the United States, an y and all right, title, and interest, of whatsoever nature the same may be , whichthey may now have in, and to any other lands in the Territory of Minnesota or elsewhere .” The Treaty established the Mille Lacs reservation in the 1837 cede d territo ry, but it does not mention hunting, fishing, and gathering rights at all, and th e usufructu ary rights in the 1837 Treaty were never mentioned in treaty negotiations

. Mille Lacs II , 861 F. Supp. at 815.

The State , the Counties and the Landowners contend that the language in th e 1855 Treaty conveying “all right, title, and interest, . . . in, and to any other lands in the Territory of Minnesota or elsewhere” extingu ished the Mille Lacs Band’s usufructuary rights on off

-reservation lands. The district court in Mille Lacs II , after “a carefu l examination of

the historical record established at trial,” made the following findings: (1) the government did not intend for the 1855 Treaty to extinguish the usufructuary rights reserved in the 1837 Treaty, 861 F. Supp. at 815-16, 821; (2) the Chippewa did not intend to give up the ir 1837 Treaty privilege and they did not understand the 1855 Treaty to have that effect, id. at 816-18; and (3) both the Band and the United States believed that the 1837 Treaty rights continued to exist after the 1855 Treaty wa s signed, id. at 818-821.-45-

The 1855 Treaty is void of explicit language extinguishing the Band’ s usufructuary rights, nor does it mention the 1837 Treaty. In analyzing the broa d language o f the 1855 Treaty, we must view it in its historical context to determin e wheth er the parties meant it to revoke usufructuary rights. The circumstance s surrounding the Treaty do not indicate that either side intend ed or understood the treaty to work such a revocation. We look first at the interpretation understood by the Bands. See Washington v. Washington State Commercial Passenger Fishing Ves sel Ass’n , 443 U.S. 658, 676 (1979) (A “treaty must . . . be construed, not according to the technical meaning of its words to learned lawyers, but in the sens e in which they would naturally be understood by the

Indians.”). The historical evidence demonstrates that the Bands signing the 1855 Treaty did not intend to give up their usufructuary rights. During the negotiations, a Chippewa representative repeatedly indicated that he understood that the purpo se of the Treaty was to purchase land. Mille Lacs II , 861 F. Supp. at 813

. Chippewa represen tatives also indicated during negotiations that they would continue to hunt, fish, and gather after the Treaty was negotiated. Id. at 8 14. Indeed, the district court found that in the ye ars after the Treaty was signed, the Chippewa complained to federal officials that state enforcement of game regulations violated their rights under the 1837 Treaty. Id. at 831-32.
As to the United States, we note first that the United States knew how to draft a treaty to revoke usuf

ructuary rights, and did not do so in this case. See, e.g. , Treaty with the Middle Oregons, Nov. 15, 1 865, art. I, 14 Stat. 751 (“[T]he right to take fish, erecthouses, hunt game, gather roots and berries, and pasture animals upon land s without the reservation set apart by the treaty aforesaid—[is] hereby relinquished.”); Treaty with Chippewas of Sault St. Marie, Aug. 2, 185 5, art. I, 11 Stat. 631 (“The said C h ippewa Indians surrender to the United States the right of fishing at the falls of St. Mary’s, and of encampment, convenient to the fishing-ground, secured to them by the treaty of June 16, 1820.”); Tre aty with the Winnebago Indians, Oct. 13, 1846, art. IV, 9 Stat. 878 (paying “forty thousand dollars for release of hunting privileges, on th e lands adjacent to their present home”); Tre aty with the Sacs and Foxes, Oct. 21, 1837,The Landowners argue that the usufructuary rights were not mentioned because 29 “the 1850 Order h ad already been issued revoking the privilege, negating any need to reference it in 1855.” If anything, this point indicates that the parties did not intend for the 1855 Treaty to revoke usufructuary rights that were, in their minds, nonexistent.
-46- art. I, 7 Stat. 543 (revoking “the right to locate, for hunting or other purposes, on the land ceded in t he first article of the treaty of July 15th 1830”). In addition, th e authorization act for the 1855 Treaty directed the President to negotiate a treaty with the Chippewa “for the e xtinguishment of their title to all the lands owned and claimed by them in the Territory of Minnesota and State of Wiscons in.” The United States was clearly concerned about extinguishment of title , not usufructuary rights.

The district court’s factual findings regarding the intention of the parties to the 185 5 Treaty are well supported, and we cannot conclude they are clearly erroneous

. Giventhe absence of any mention of the 1837 Treaty or its usufructuary rights in the 1855 Treaty or its negotiation process, and the lack of evidence that the partie s intended to extinguish these rights, we conclude that the 1855 Treaty did not revoke the 1837 Treaty’s usufructuary rights. 29

Defend ants argue, however, that Oregon Dept. of Fish & Wildlife v. Klamath Indi an Tribe , 473 U.S. 753 (1985) compels a different result. The Klamath India n Tri be (the Tribe) had signed an 1864 Treaty ceding lands in Oregon to the Unite d States. The Treaty also created a reservation for the Tribe and secured to them “th e exclusive right of taking fish in the streams and lakes, included in said reservation. ” Id. at 755. The Treaty did not expressly reserve Indian rights to hunt or fish outside the
reserv ation. A large portion of the intended reservation was excluded as a result o f survey error.

In1901, the Tribe agreed to “cede, surrender, grant, and convey to the United States all their claim, right, title and interest in and to” the land mistakenly excluded-47-

from the 1864 Treaty. Id

. at 760. The 1901 Agreement did not contain any reference to hunting and fishing rights. When the State of Oreg on enforced its conservation laws against the Tribe on the lands ceded in the 1901 Agreement, the Tribe brought suit. The Supreme C ourt interpreted the 1864 Treaty and the 1901 Agreement to extinguis h hunting and f

ishing rights on ceded lands. Id. at 770. In coming to its decision, th e KlamathCourt considered that the 1864 Treaty established an exclusive right to hunt and f ish on the reservation. Thus the hunting and fishing rights “did not exis t inde pendently of the reservation itself” and were ceded in 1901 when the reservation was diminished. Id. at 768.
The 1864 Treaty rights in Klamath were exclusive

and on- reservation rights, and thus lo gically extinguished with a relinquishment of a portion of the reservation. The rights at issue in this litigation are non-exclusive and off-reservation rights, reserved in
a treaty not mentioned in the 1855 Treaty or its negotiations. The situations are no t analogous and do not compel the same outcome. We hold that Klamathdoes no t requi re reversal, and affirm the district court’s holding that the 1855 Treaty did no t extinguish the usufructuary rights that are the subject of this litigation.

VI.
Preclusive Effect of Prior Litigation

A. Court of Claims (Mole Lake ) Litigation In 1940, several Wisconsin Chippewa Bands, including some of the Bands whi ch
are plaint iffs in this action, brought a claim against the United States in the Court o f Cl aims. The action was brought pursuant to an ad hoc jurisdictional statute waivin g federal sovereign immunity, which was designed to enable Indian claims for loss ofThe Mole Lake lit igation was against the United States. The Bands could not 30 have joined the officers of the State of Minnesota, its counties, or the Landowners in th e Court of Claims litigation. The Court of Claims had exclusive jurisdiction ove r claims agai nst the United States. We note that the United States supports the Bands’ argument that the Mole Lake litigation does not serve to bar the present litigation under the rules of issue preclusion. For example, the pe tition alleged that the United States destroyed “the natural 31 habitat of fish, g ame and fur bearing animals,” and thus “deprived plaintiffs of a great part of the consideration” due them for cessions of land. It also alleged that the United States “failed to protect” the plaintiffs’ rights to “unrestricted use [of ceded lands] for hunting, fishing, trapping and camping.”
-48- aboriginal tit le. Mole Lake Band v. United States , 126 Ct. Cl. 596, 598 (Ct. Cl

. 30 1953); Act of August 30, 1935, Pub. L. No. 74-410, 49 Stat. 1049. The Fond du Lac Band intervened in the M ole Lake litigation on August 30, 1940. Mole Lake , 126 Ct. Cl. at 598-99. Neither the Mille Lacs Band nor the State was a party to the case.
The original Mole Lake

petitio n set forth multiple claims under various treaties,
mo stly seeking compensation for lands ceded under the treaties. A portion of th e petition included claims contending that federal officials had violated the plaintiffs ’ usufructuary rights under the treaties. Severed from the original petition were causes 31 of acti on relating to certain tracts of swamp land and causes of action relating t o “public school sections” of land. Th e swamp land claims were resolved in Mole Lake Band v. United States , 139 F. Supp. 938 (Ct. Cl. 1956). The school land claims were dismissedin Mole Lake Band v. United States , 82 F. Supp. 342 (Ct. Cl. 1949). The remainder of the petition was narrow ed to include only seven claims. Mole Lake , 126 Ct. Cl. at 597. The Court of Claims stated that the reason for the narrowing of claims
was the severance of the swamp land and school land claims, the “institution of suits be fore the Indian Claims Commission,” and the “abandonment of some of the claims not sev ered out of the petition.” Id. None of the swamp land claims, the school landThe Landowners argued that the Mille Lacs Band was in privi ty with the Bands 32 in the Mole Lake litigation by way of membership in a common tribe. The State’s brief is not helpful in this regard since it merges the Mole Lak e 33 litigation with the later Indian Claims Commission claims. As our discussion indicates, these are separate questions requiring separate resolution.
-49- claims, or the seven remaining claims included alle gations of the denial of usufructuary rights.

The defend ants argued to the district court that the Mole Lake litigatio n collaterall yestops the Bands’ claims in this action. In order for collateral estoppe l (issue preclusion) to bar litigation of an issue,
(1) the issue sought

to be precluded must be the same as that involved in the prior action; (2) the i ssue must have been litigated in the prior action; (3) the iss ue must have been determined by a valid and final judgment ; and (4) the determination must have been essential to the prior judgment.

Stoebner v. Parry , 91 F.3d 1091, 1094 (8th Cir. 1996). In addition, the estopped party must be a party or in privity with a party to the prior litigation. Wellons, Inc. v. T.E. Ibberson Co. , 869 F.2d 1166, 1168 (8th Cir. 1989).

The district court in Mille Lacs I found that although the Mille Lacs Band was
asignatory to the 1837 Treaty, it was not in privity with the Bands in the Mole Lake litigatio n. The court then found in the alternative that Mole Lake did not adjudicate

32 whether the Bands retained their usufructuary rights under the 1837 Treaty. 33

In Mille Lacs III , the district court considered whether issue preclusion barred the Wiscons in Bands’ claims. In determining that the Wisconsin Bands were no t barred by the issues tried in Mole Lake , the court adhered to the earlier alternate rulingUnlike the Mille Lacs Band, the Fond du Lac Band had intervened in the Mole 34 Lake litigation, and thus privity was not an issue. The two re maining decisions of the Court of Claims mention neither the 1837 35 Treaty nor the 1850 Executive Order. See Mole Lake , 12 6 Ct. Cl. 596; Mole Lake , 82
-50- in Mille Lacs I

that the issues werenot identical and therefore could not serve as a bar under principles of collateral estoppel. Mille Lacs III , slip op. at 25. The district court also considered collateral estoppel in Fond du Lac , and determined that the Fond d u Lac Band was not give n a full and fair opportunity to litigate the issue of usufructuary righ ts in Mole Lake . The court concluded, “There is no evidence that a resolution of the usufructuary rights issue was necessary to the fi nal judgment rendered by the Court of Claims in Mole Lake .” Fond du Lac , slip op. at 16. Thus, collateral estoppel did not bar the Fond du Lac Band’s claims. Id. 34

On appeal , the Landowners, the Counties, and the State challenge all three o f these decisions. They argue that the original petition in the Mole Lake proceedin g collate rally estops the Bands from bringing their claims in this litigation. A clos e review of the petition refutes their argument. While the parties dispute whether th e usufructuary rights claims in the petition were later li tigated, they overlook the fact that the petition does not include any claims under the 1837 Treaty that underlie s the Bands’ claims here. The petition lists twenty-six treaties which form the basis of the plaintiffs’ claims in Mole Lake . The list does not include the July 29, 1837 Treaty at issue in this case. We can end our collateral estoppel analysis as to theoriginal petition here. Even if the petition can be read to include usufructuary rights claims, it cannot collaterally est op the Bands from later bringing claims for usufructuary rights under a differen t trea ty . This is what they have done here, and we hold that they are not barred by the original Mole Lake petition from doing so.

We come to the same conclusion when we examine the swamp land cause o f action . Under the elements of collateral estoppel set out above, the issue to be barred 35F. Supp. 342.

Res judicata (claim preclusion) bars a subsequent suit betw een the same parties 36 or their privies based on the same cause of action

. Parklane Hosiery Co. v. Shore , 439 U.S. 322, 326 n.5 (1979). The district court noted in Mille Lacs I that the Stat e abandoned its res judicata defense because in this case there are different parties than were in the Mole Lake and Indian Claims Commission proceedings.
-51- must have been actually litigated and necessary to the final judgment i n the prior action. Stoebner , 91 F.3d at 1094. The caus e of action in the swamp land proceeding was for damages for the value of land and timber within reservations established in the 1854 Treaty discussed in this opinion. Plaintiffs did not seek relief, as they do here, for the denial of usufructuary rights reserved in the 1837 Treaty. Mole Lake , 139 F. Supp. at 939-40; see also Unit

ed States v. Gurley , 43 F.3d 1188, 1196 (8th Cir. 1994) (“In the final analysis the test would seem to be whether the wrong for which redress is sought is the same in both actions.”) (quotations and citations omitted; emphasis by the Gurley court) cert. denied , 116 S.Ct. 73 (1995).
Though the swamp land decision discussed the 1850 Executive Order, it did not decide any issues relating to it, because the court had no reason to do so. See Mole Lak e , 139 F. Supp. at 939-40; see also LCO , 700 F.2d at 360 (“Although the judg e discussed th e Removal Order in the context of the historical events which culminated in the grant of the reservations lands in 1854 . . . he neither expressed nor had reason to consider the validity of the Removal Order.”) (emphasis in original). The genera l discus sionof the Executive Order in the swamp land decision cannot support th e conclusion that the

Order presented an issue necessary to that decision. We hold that the u sufructuary rights issue was not actually litigated in the swamp land proceeding. The elements of collateral estoppel are not met, and the doctrine does not work to bar the Bands’ claims. 36For

example, in their brief to the Court of Claims on the swamp land claims , 37 the Wisconsin Bands involved in the litigation stated, “The right of o ccupancy provided in the Treaties of 1837 and ‘42 was terminated by an executive order of February 6 , 1850 .” The Landowners argue on appeal that the doctrines of judicial estoppel an d collateral estoppel bar the Bands from arguing otherwise here.
-52- The Landowners also urge this court to appl y judicial estoppel to various claims made by the Bands in the Mole Lake proceedings. The Bands argue that th e 37 Landowners did not assert this claim in the district court, and that we should therefore reject ithere. None of the district court opinions includes a discussion of judicia l estopp el, nor can we find the argument in the record. Thus, the Landowners ar e precluded from raising it on appeal. See Bursch v. Beardsley & Piper , 971 F.2d 108, 113 (8th Cir. 1992) (refusing to discuss an argument not raised before the distric t court).

B. Indian Claims Commission Litigation

In 1946, Congress created the Indian Claims Commission (ICC) to hear triba l claims arising under th e Constitution, laws, treaties, or executive orders, and accruing before Au gust 13, 1946. Indian Claims Commission Act of 1946, ch. 959, 60 Stat

. 1049 (formerly codified at 25 U.S.C. § 70(a)). In January 1948, many Minnesot a Bands of Chipp ewa, including the Fond du Lac Band but not, initially, the Mille Lacs Band, brought claims for compensation for lands ceded under the 1837, 1842, 1854, and 1855 Treaties discussed earlier in this opinion. The original petition before th e ICC stated that usufructuary rights were “a material consideration” for cedi ng the lands. It also alleged, “The United States has deprived the plaintiffs and other Indians of the right to hunt and fish upon the ceded lands and upon the land retained by them . . . .” Th is original petition was assigned to the ICC’s Docket 18, which was then severe d into three parts: Docket 18-C included claims under the 1837 Treaty and additiona l tr eaties; Docket 18-B included claims under the 1855 Treaty; and Docket 18- U included claims under the 1854 Treaty.-53-

On August 9, 1949, the plainti ffs drew up a new petition for Docket 18-C. The complaint all eged that “there was reserved for the various parties to said treaties, and the defendant [the United States] under took to conserve the same, hunting, fishing and other rights in va

rious lands, all of which were a material consideration for the ceding th ereof.” In the United States’ answer to the complaint, it admitted that the treatie s reserved hunting and fishing rights, but denied that it had violated the rights in any way.

On October 23, 1957, the ICC issued an order severing Docket 18-C further , separating causes of action based on treaties other than t he 1837 Treaty. The ICC then required the plaintiffs to file a new Docket 18-C complaint, asserting only their claims
un der the 1837 Treaty. The order provided that the amended complaint “shall b e considered as having been filed on August 9, 1949, and shall take the place of sai d original pe tition.” On August 5, 1959, the Mille Lacs Band joined the existin g plaintiffs to file an amended complaint pursuant to the court’s order. This amende d complaint alleged that the amount paid by the United States for the land ceded in the 1837 Treaty was “grossly inadequate and unconscionable.” The complaint did no t refer to any hunting, fishing, or gathering rights

. The ICC adjudication of the claims in Docket 18-C spanned sev eral decades and resultedin three different decisions, found at 19 Ind. Cl. Comm. 514 (1968), 26 Ind. Cl. Comm. 22 (1971), and 32 Ind. Cl. Comm. 192 (1973). The ICC responded to the Ba nds’ claims for compensation by valuing the land ceded in the 1837 Treaty for it s “highe stand most valuable uses,” which, the Bands’ experts determined, were pin e timber and agriculture. The ICC found that the fair marke t value of the land at the time of the Treaty was $9,875,000. 26 Ind. Cl. Comm. at 59. It subtracted the $847,440 that the Unite d States paid the Bands for the land and awarded the Bands $9,027,560 in full satisfaction of their cl aims. 32 Ind. Cl. Comm. at 200. The ICC did not, in any of its opinions, mention the hunting, fishing, and gathering ri ghts reserved under Article V of the 1837 Treaty.-54-

In Mi lle Lacs I , the district court analyzed the ICC proceedings under th e collater al estoppel doctrine, examined the pleadings and the record of the IC C litigation, and determined that the issue of usufruc tuary rights was not actually litigated andnecessary to the outcome of the case. Mille Lacs I , 853 F. Supp. at 1137. The court co ncluded that the ICC’s award of compensation for the lands based on thei r highe stand best valuation “does not indicate that the ICC concluded that th e usufructuary rights had been extinguished.” Id. There fore, it rejected the defendants’ argument that the Mille Lacs Band was collaterally estopped by the ICC litigation.
As to the Wisconsin Bands, the court followed the Mille Lacs I ruling, and held th atthe Bands “are not precluded under the doctrine of collateral estoppel fro m asserting their claims in this litigation by the prior litigation before the ICC in Docket 18C because the issue of th e continued existence of the 1837 privileges were [sic] not litigated.” Mille Lacs III , slip op. at 25.
As to the Fond du Lac Band, the court again held that the Band is no t collaterally estopped by the ICC litigation. First, it determined that the original Docket 18 petition does not provide a bar, because “[o]nce a pleading has be en amended, the old pleading
serves no fun ction in the litigation.” Fond du Lac , slip op. at 16-17. Second, i t concluded that the ICC’s valuation of the land for “highest and best use” did not settle the issue of usufructuary rights. Id. at 17. The court distinguished Klamath , which the defe ndants argued necessitated a contrary conclusion, by noting that the Klamat h decision i nvolved a treaty that was silent as to off-reservation hunting and fishin g rights, wh ereas the Treaty here explicitly reserved off-reservation hunting and fishing rights. Fond du Lac , slip op. at 20 n.12.

This second issue is the one on which both the State and the Landowner s concentrate on appeal. They argue that the value of usufructuary rights was subsumed in the ICC award, because the award was based on the highest and best use of theTo the extent that the State and the Landowners rely on the original IC C 38 petition to provide a bar, we agree with the district court’s d ecision in Fond du Lac that acomplaint that has been amended cannot be revived for purposes of res judicata or collateral estoppel. See Fond du Lac , slip op. at 16-17.
-55- land. This measurement, according to the State and the Landowners, represents the 38 total value of the land. If the measurement was not intended to include usufructuary rights, th ese parties contend, the ICC would have made a specific deduction from the calculated value of the land for the value of still-existing usufructuary rights. Since it did not, the argument goes, the ICC award includes payment for the 1837 Treaty rights, and they are extinguished, thus collaterally estopping the Bands from bringing thei r claims here.
The defendants urge that the Supreme Court’s decision in Klamath s upports their collateral estoppel argument. They contend that Klamath stands for the p roposition that an ICC award that is silent as to usufructuary rights au tomatically subsumes and estops future usufructuary rights claims.

In Klamath , the ICC had awarded in 1969 over four million dollars to the Tribe
as additional compensation for the lands ceded by the 1901 Agreement. 473 U.S. at 762. The amount of the award “was based on the es timated value of the land for stock grazing and timber harvesting, which the parties had agreed constituted the ‘highest and best uses’ for the land.” Id. The ICC opinion in Klamathdid not mention hunting or fish ing rights. Part of the Tribe’s argument that its usufructuary rights survived th e 1901 A greement was that the absence of any ICC payment for hunting and fishin g
r i ghts demonstrated that the parties did not intend for them to be extinguished

. Id. at 773. The Supreme Court rejected the Tr ibe’s contention, holding that “had the parties actually intended to preserve independent hunting and fishing rights for the Tribe on the ceded lands, the [ICC] presumably would have computed the value of such rights andT his conclusion applies equally to the defendants’ arguments under Wester n 39 Shoshone Nat’l Council v. Molini , 951 F.2d 200 (9th Cir. 1991). There, the Ninth Circuit dete rmined that claims for hunting and fishing rights did not survive an IC C extinguishment of title and correl ating award, but it emphasized that the treaty at issue
-56- expli citly subtracted that amount from the price to be paid for land so encumbered. ” Id.
The State and the Landowners seize upon this language, asser ting that it requires this co urt to interpret the ICC’s silence as to usufructuary rights as extinguishment of those rights. Their argument, however, fails to appreciate crucial distinctions between the treaty here and the treaty involved in Klamath . Here, the 1837 Treaty explicitl y reserves off-reserv ation usufructuary rights. In Klamath , the treaty at issue was silent as to off-reservation usufructuary rights. As the district court herein observed:

The critical disti nction of whether the rights to hunt and fish were reserved in a prior treaty leads to a critical difference in the way the ICC’s silence on those righ ts should be treated. If the rights were reserved in a treaty, the ICC would have had to find that the rights had been extinguished; thus, silence implies no determ ination as to those rights. If the rights were not reserved, silence would implythat the rights were determined to have been disposed of by the cession of the land. Klamath

deals with the latter situation; this case presents the former.

F o nd du Lac , slip op. at 20 n.12. The ICC opinions in this case are not cursory. We
canno t accept the conclusion that they extinguished an important body of right s bargainedfor and explicitly reserved in a treaty without any mention of those rights. Cf. Swim v. Bergland , 696 F.2d 712, 718 (9 th Cir. 1983) (rejecting the contention that
a p arty could rely, for collateral estoppel purposes, “solely on general language o f [ICC] settlement documents to sweep in Article IV grazing rights” where “all specific language in the pertinent documents, including the original petition, refers only to the low compensation paid for lands ceded in Article I”). 39did not expressly reserve hunting and fishing rights

. Id. at 202-03.

The “equal footing” defense was p resented below in Fond du Lac and in Mille 40 Lacs with respect to the Wisconsin Bands, but not with respec t to the Mille Lacs Band. However, becaus e this is a question of law, fully briefed by the parties and addressed twice by the district court, we think the issue is properly before us as to all of th e Bands. See Shannon v. Ford Motor Co. , 72 F.3d 678, 684 (8th Cir. 1996).
-57- The defendants’ argument also fails to appreciate another difference betw een this case and Klamath . In Klamath , the Supreme Cour t used the ICC’s silence on the issue of hunting and fishing rights as one factor indicating that the 1901 Agreemen t extinguished

hunting and fishing rights on ceded lands. 473 U.S. at 773. The Court conclud ed, “The absence of specific compensation for the rights at issue is entirel y consis tent

with our interpretation of the 1901 Agreement.” Id. at 774. The ICC’ s sile nce was used by the Court to buttress its conclusion as to the interpretation of the Tribe’s a greement with the United States. To view the ICC’s silence in this case t o mandate preclusion of hunting and fishing rights claims is to give Klamatha n interpretation it simply cannot bear. We therefore hold that the ICC p roceedings do not collaterally estop the Bands from bringing usufructuary rights claims here.

VII.
Equal Footing Doctrine
The defendants argue

that any rights the Bands acquired under the 1837 Treaty were extinguished upon

Minnesota’s admission into the Union in 1858. They assert 40 that under the “equal footing doctrine,” thos e rights became void when Minnesota was granted statehood and acquired the sovereign trust and police power over its natura l
reso urces. The district court rejected this as a basis for defeating the Bands ’ usufructuary rights. We affirm.-58-The Tenth Amendment to the Constitution provides, “The powers not d elegated 41 to the United States by the Constitution, no r prohibited by it to the States, are reserved to the States respectively, or to the people.”
-59- On May 11, 1858, the thirty-fifth Congress passed legislatio n admitting the State of Minnes ota into the Union. Minnesota was admitted “on an equal footing with the original states in all respects,” and there was no reservation or exception made fo r rights secured to the Bands. An Act for the Admission of the State of Minnesota into the Uni on, ch. 31, 11 Stat. 285 (1858). The equal footing doctrine, a reflection o f Congre ss’ language admitting the states, “requires that all states admitted into th e Union after the original thirt een states be admitted on ‘equal-footing’ with the original states; the newly admitted states must ha ve the same rights and sovereignty at the time of admission as the original states.” Crow Tribe of Indians v. Repsis , 73 F.3d 982, 990- 91 (10th Cir. 1995) (citations omi tted), cert. denied , 116 U.S. 1851 (1996). The basis for the defendants’ argument for applying the doctrine herein is an amalgam ation of two relate d points: (1) any rights conferred by the federal government in the 1837 Treaty
were extinguished when Minnesota became a state and acquired the same rights and sovereignty reserved under the Tenth Amendment to the original thirteen states, and 41 (2) in the act admitting Minnesota into the Union, Congress’ silence regarding th e Bands’ usufructuary rights constituted an abrogation of those rights.

Th e defendants argue that the controlling law is found in Ward v. Race Horse , 163 U.S. 504 (1896), and Repsi s , 73 F.3d 982. In Ward , the relevant treaty provision secured to the Bannock Indians the “right to hunt on the unoccupied land s of the United States, so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts.” 163 U.S. at 507. The Court described this right as “temporary a nd precarious,” noted that the legislation admitting Wyoming into the

Union did not reserve any rights for the Indians, and held the right to hunt did not survive Wyoming’s statehood. Id. at 515. In Repsis , the Tenth Circuit analyzedan 1868 Treaty with the same relevant language as Ward

. Repsis , 73 F.3d-60-

at 987. The Tenth

Circuit affirmed the dismissal of the Tribe’s action based on rights under the 1868 Treaty, holdi ng that the Supreme Court’s interpretation in Ward of the same treaty language controlled and therefore the Tribe’s rights were “repealed by the act admitting Wyoming into the Union.” Id. at 992 (c iting Ward , 163 U.S. at 514). The Tenth Circuit found important the distinction between treaty-based rights which ar e temporary and those which are continuing:
[T]he equal-footing doctrine does not prevent the United States fro m creating a right in a territory which would be binding on the state upon its admission i nto the Union. However, in order for such a right to b e bind ing on the state, it must be a continuing or perpetual right—a righ t that is intended at its formation to b e continuing against the United States and its grantees, including the state.
Repsis , 73 F.3d at 991.
The State argues that in

applying the equal footing doctrine, this court must use a two-part analysis to determine whether the 1837 Treaty rights survived Minnesota’s admission into the Union: first, we must decide w hether the rights were intended to be “temporary” or “permanent”; second, if the right is temporary, we must decide whether it conflict s with the state’s sovereignty. As to the first question, the State asserts that the right is temporary because the phrase “during the pleasure of the President ” expressly provides for the potential revocation of the right. Whether or not a misbe havior

standard was understood to modify the President’s discretion, the Stat e contends that the simple fact that under some scenario the rights could be revoke d proves t hat they were intended to be temporary in nature. As to the second question, th e State argues that the rights are irreconcilable with its sovereignty, and therefor e
we re extinguished, because any right to hunt and fish off-reservation in violation o f state law conflicts with its right to control the natural resources within its borders.The defendants argue that because the rights could be revoked by the President 42 under some standard, they are similar to the “temporary and precarious” rights analyzed in Ward and Repsis . However, the fact that the rights could be revoked by th e President, or abrogated by Congress like any other treaty right, does not deprive them of their “continuing” nature.
-61- We re ject the application of the equal footing doctrine defense for severa l
reasons. Fi rst, the district court noted the language in the 1837 Treaty securing th e Bands’ usufructuary rights must be dis tinguished from the “temporary and precarious” rights addressed in Ward and Repsis

. Mille Lacs III , slip op. at 22; see also Fond du Lac , slip op. at 31 (analyzing similar usufructuary rights in the 1854 Treaty). Th e tr eaties in Ward and Repsis reserved rights on the “unoccupied lands of the Unite d States.” The standard of when “unoccupied” lands become “occupied” is certainl y vague, and could logically include th e granting of sovereignty to a newly formed state. See Fond du Lac , slip op. at 31. Moreover, in Ward , the Court interpreted the treaty rights th erein to secure the right to hunt in hunting districts on lands owned by th e UnitedStates. See Ward , 163 U.S. at 509-10. Therefore, the Court found the rights to be tied to the U nited States’ ownership of the lands. In contrast, the rights secured to the Bands in Article 5 of the 1837 Treaty are in no way tied to ownership, bu t instead were intended to be continuing rights. 42
Second, the Bands’ usufructuary rights are not irreconcilable with the State’ s sovereignty. This second part of the two-part analysis poses the important question of whether in our constitutional system of dual sovereignty the rig hts secured to the Bands in a treaty with the federal government can bind the State. In United States v. Winans , 19 8 U.S. 371 (1905), the Supreme Court analyzed a treaty which reserved on cede d lands the “r ight of taking fish at all usual and accustomed places, in common with citizens of the Territory.” Id. at 378. The Court rejected the argument that these rights were repealed upon Washington’s admission into the Union, concluding:Though the State has stipulated to the applicability of a Conservation Code and 43 Managem ent

Plan, the Counties and Landowners argue that the Bands should b e -62- The extinguishment of the Indian title, opening the land for settlement and preparing the way for future States, were appropriate to the objects fo r which the U nited States held the Territory. And surely it was within the compe tency of the Nation to secure to the Indians such a remnant of the grea t rights they possessed as “taking fish at all usual and accustome d places.” No r does it restrain the State unreasonably, if at all, in th e regulation of the right. It only fixes in the land such easements as enables the right to be exercised.

Id. An important part of the Court’s analysis was recognition of the fact that th e United States had not granted usufructuary rights to the Indians in the territory. “[T]he trea ty was not a grant of rights to the Indians, but a grant of rights from them— a
re servation of those not granted.” Id. at 381. As such, the United States did no t
conve yto the Indians anything which the State could claim the right to control, bu t rat her the United States secured title to vast areas of land for the benefit of the future state in exchange for the Indians’ reservation of usufructuary rights. Cf. United States
v. Forty -Three Gallons of Whiskey , 93 U.S. 188, 197-98 (1876) (rejecting th e argument that Minnesota’s sovereignty is infringed by enforcement of a t reaty provision
ma king federal law prohibiting the sale or introduction of liquor applicable to land s ceded in the treaty).

In Tulee v. Washington , 315 U.S. 681 (1942), the Court followed Winans and
recon ciledsimilar off-reservation usufructuary rights with the state’s regulatory authority. The Court upheld an Indian’s right to rely on off-reservation treaty right s that con flict with state law unless the state regulations are necessary for conservation of the res ource in question. Id. at 684. We think Winans and Tulee show tha t usufruct uary rights reserved by the Bands on lands ceded to the United States in a treaty are not hopelessly in conflict with Mi nnesota’s regulatory authority. Because 43subject to e xisting state regulation rather than writing their own. The district court

held, “The State may not impose its own regulations if the Band can effectively selfregulate and if tribal regulations are adequate to meet conservation, public health, and public safety n eeds.” Mille Lacs II , 861 F. Supp. at 839. The Supreme Court ha s con sistently rejected arguments that Indian treaties reserve to the Indians no mor e fishing r ights than those enjoyed by non-Indian citizens. Instead, the Court ha s es tablisheda “conservation necessity” standard, under which “nontreaty fisherme n might b e subjected to any reasonable state fishing regulation serving any legitimat e purpose, [but] treaty fishermen are immune from all regulation save that required for con servation.” Fishing Vessel , 443 U.S. at 682 (citing Antoine v. Washington , 42 0 U.S. 194, 207-08 ( 1975); Puyallup Tribe v. Department of Game , 391 U.S. 392, 398 (1968); Tulee , 315 U.S. at 684; Winans , 198 U.S. at 384; Ward , 163 U.S. at 504). We will not decide today whether, as the district court held, th ese cases mean that the State must allow treaty fishers to establish their own code. However, the stipulation between the Bands and the State a

ppears to meet the conservation necessity standard, and thus we will not disturb it at this time. The Landowners called our a ttention to the Supreme Court’s recent opinion in 44 Printz v . United States , 117 S.Ct. 2365 (1997). In Printz , the Court struck down a portion of the Brady Act which required state officers to implement a federal regulatory program as violative of the Tenth Amendment. Printz is not relevant to the decision in this case. There is no federal law com manding state regulation here. In fact, the State voluntarily stipulated to the Bands’ Conservation Code and Management Pla n regarding regulatory issues. In addition, this is a case about state law infringing o n rights guaranteed by federal law, and there is no question that federal courts have the power to order state officials to comply with federal law. Printz , 117 S.Ct. at 2382 n.16 (citing New York

v. United States , 505 U.S. 144, 179 (1992)); see also Fond du Lac , 68 F.3d at 256 n.3.
-63- the federal government clearly had the power to enter into the 1837 Treaty, an d b e cause the Bands’ rights can be reconciled with the State’s regulation of the natural resources within its borders, we conclude that upholding the Bands’ usufructuary rights does not offend the State’s sovereignty. 44-64-

Finally, the rule that Congress can abrogate treaty rights with the Indians only
w hen its intention is expressed clearly and plainly counsels against application of the equal foo ting doctrine herein. In United States v. Dion , 476 U.S. 734 (1986), a unanimous opinion, the Supreme Court stated that “[w]hat is essential is clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indi an treaty rights on the other, and chose to resolve that conflict b y abrogating the treaty.” Id. at 739-40. The defendants have presented no evidenc e surrounding the legislation admitting Minnesota into the Union from which we could conclude that Congress intended to abrogate the 1837 Treaty rights.

VIII.
Moderate Living Doctrine

In Fishi ng Vessel , the Supreme Court first articulated the “moderate livin g doctrine.” The Court held that certain treaty language entitled the plaintiff Indian tribes to a presump tive fifty percent share of all harvestable fish passing through “usual and
accu stomed” fishing runs. 443 U.S. at 670. The Court then limited its holding b y stating that this pre sumptive fifty percent take is a maximum, not a minimum, and can be reduced “if tribal needs may be satisfied by a lesser amount.” Id. at 685. The Court emphasized that “the central principle here must be that Indian treaty rights to a natural resource that once was thoroughl y and exclusively exploited by the Indians secures so much as, but no more than, is necessary to provide the Indians with a livelihood—that is to say, a moderate living.” Id. at 686.

The Land owners and the Counties contend that this language from Fishin g Vessel should be applied in this litigation to mean that “the level of treaty harves t allowable is measur

ed by the Bands’ economic need.” These parties contend that the court should take

all sources of income to the Bands into account, find that the BandsThe Landowners connect this argument to an equal protect ion argument, urging 45 tha t economic need is the only “compelling interest” that might justify “differen t treatment” between “two classes of citizens.” Even if this argument were otherwis e properly raised and applicable, it ignores the obvious fact that the “class of citizens” with treaty rights is not Native Americans generally, but only those B ands which signed the 1837 Treaty.
-65- hav e achieved a moderate standard of living, and hold that the treaty right has eithe r been extinguished or limited to exercise for ceremonial purposes only. 45
The district court addressed these arguments in Mille Lacs IV , splitt ing them into two separate issues. 952 F. Supp. at 1385-94. First, the court assessed whethe r
resource allocation was necessary at all. See id. at 1385-89. It determined, agreeing withthe Bands, that “before a party can receive the equitable relief of allocation, the party seeking an allocation must establish that their right to a fair share of a particular harvestable resource has been substantially or irreparably injured as a re sult of the other party’s harvest of such resource.” Id. at 1389.

The court then addre ssed the moderate living doctrine. According to the court, all d efendants below argued that “before the allocation of a resource should b e quantifie d, the Court must first determine whether or not the Bands have achieved a
mo derate standard of living,” looking to all sources of income to make thi s determination. Id. The court concluded, examining Fishing Vessel , that
[w]hat P assenger Fishing Vessel and its predecessors establish is this: if an alloc ation of a resource must be made, such allocation should b e quan tified

to fulfill the purposes of the treaty, while at the same tim e recognizing the rights of non-Indian harvesters to a resource. Thus, the thresholdissue is not whether the Bands have achieved a moderat e standard of living, but what was the purpose and intent of the treaty, and what amount of resources are needed to fulfill such purpose and intent.Belo w, the State had asserted that allocation was necessary because th e 46 demand for certain resources exceeded the available supply. Mille Lacs IV , 952 F

. Supp. at 1386. The State was following the reasoning of LCO VII , 740 F. Supp. a t 1414, which allocated harvest of antlerless deer because of heavy competition for the species. See Mille Lacs IV , 952 F. Supp. at 1386-88. On appeal, the State does not challenge the district court’s decision not to make an allocati on on this basis. Although the Landowners and the Counties term their arguments as driven bythe moderate living doctrine, they hit upon the initial allocation issue. There is of co urse significant overlap bet ween the issue of allocation and the moderate living doctrine issue; therefore, w e sh all address them both. We do not, however, express an opinion on th e appropriateness of the allocation made in LCO VII . For further explanati on of the LCO lit igation and its numerous district court opinions, see Mille Lacs IV , 952 F. Supp. at 1388.
-66- Where it is determined that the resource cannot meet the needs of both the non-Indians and the Bands, an allocation should be made.

Mille Lacs IV , 952 F. Supp. at 1393. It then determined that the 1837 Treat y provides the Bands “the right to continue a way of life based on hunting, fishing and gath ering.” Id. (emphasis omitted). Since the Bands had not yet had the opportunity to choo se to continue with such a way of life, the court declined to address th e moderate living doctrine. Id. at 1394.

We first address whether the district court erred in refusing to make a n alloc ation, beginning with a discussion of Fishing Vessel , which is crucial to ou r understa nding of the issue. The litigation which led to the Fishing Vessel decisio n 46 was a dispute over tribal fishing rights in the Pacific N orthwest, obtained under various treaties negotiated by Isaac Stevens , Governor and Superintendent of Indian Affairs in Washington Territory in the 1850s (the Stevens Treaties). The signatory tribes ceded lands to the United States, but reserved “the right of taking fish, at all usual an d accustomed grounds and stations . . . in common with all citizens of the Territory.” In 1970, the United States, on its own and as tr ustee for seven Indian Tribes, brought suit-67-

agains t the State of Washington, seeking an interpretation of the treaties and a n inj unction requiring the State to protect the Tribes’ share of runs of anadromous fish. Fishing Vessel , 443 U.S. at 669-70. The Supreme Court rejected the State’s argument that the language in the Stevens Treaties reserves to the Tribes only an equa l opportunityt o take fish passing through traditional tribal fishing areas. Id. at 681-83. It held instead that the treaties secured the right to take a share of each run of fish. See id. at 683 (“[T]he treaty secured the Tribe’s right to a substantial port ion of the run, and
no t merely a right to compete with nontreaty fishermen on an individual basis.”). I t thennoted that “an equitable measure of the common right should initially divide the harvestable portion of each run that passes through a ‘usual an d accustomed’ place into ap proximately equal treaty and non-treaty shares, and should then reduce the treat y share if tribal needs may be satisfied by a lesser amount.” Id. at 6 85. The district court “start[ed] with a 50-50 divi sion and adjust[ed] slightly downward on the Indians’ side when it be came clear that they did not need a full 50%.” Id. The Supreme Court affirmed this apportionment.

The Court’s discussion o f apportionment and the context of the Fishing Vessel li tigationmake it clear that the Court’s concern in apportioning the fish harvest wa s twofold. First, it saw the district court’s apportionment as necessary to protect th e scarce natural resources at stake

. See id. at 669 (“[N]either party realized or intended that their agreement would determine whether, and if so how, a resource that ha d always been thought

inexhaustible would be allocated between the native Indians and the incoming settlers when it later became scarce.”); id. at 686 (noting that the district court “r ealized that some ceiling should be placed on the Indians’ apportionment t o prevent th eir needs from exhausting the entire resource and thereby frustrating th e tre aty rights of ‘all [other] citizens of the Territory’”); see also Dana Johnson , Comment, Native

American Treaty Rights to Scarce Natural Resources , 43 U.C.L.A. L. Rev. 547, 5 49 (1995) (asserting that the Fishing Vessel litigation began because in the period preceding the institution of the suit, the anadromous fish stock i n Washington had drastically declined). Second, the Court interpreted the Stevens-68-

Treaties as securing to “ both sides . . . a ri ght to take a fair share of the available fish.” Fishing Vessel , 443 U.S. at 684-85 (emphasis added). Accordi ng to this interpretation, the “in common with” language in cluded in the treaty guarantees fishing rights to both treaty and nontreaty fishers. Thus, the Court was concerned that its decision ensure that “neither party . . . deprive the other of a ‘fair share’ of the runs.” Id. at 684. Such deprivation was possible and even had begun to happen in Fishing Vessel , because of th e migratory nature of anadromous fish, which hatch in fresh water, migrate to th e
oce an where they reach mature size, and eventually complete their life cycle b y returning to the fresh -water place of their origin to spawn. Id. at 662. This life cycle, and the mod ern fishing practices of nontreaty fishers, meant that the nontreaty fishers “had the p otential to harvest all of the steelhead and salmon before they ever reached the Indians’ fishing grounds.” LCO III , 653 F. Supp. at 1434. Nontreaty fishers had domin ated the fisheries and excluded most treaty fishers from participation. Fishin g Vessel , 443 U.S. at 668-69. Thus, Indian treaty rights which had once been exercised freely ha d become significantly impinged, leading to the lawsuit and ultimately, t o allocation.

The dua l concerns of the Fishing Vessel Court which led to an equitabl e apport ionment

(and subsequent reduction under the moderate living doctrine) ar e simply not present in the litigation at bar. First, there has been no showing here that any resource at issue is in ecological danger. See LCO III , 653 F. Supp. at 143 4 (refusing allocation because “[n]either part y has presented evidence that any particular species is endangered in the ceded territory”). The State and the Bands have agreed to a Con servation Code and Management Plan which will govern the Bands ’ management

of their members’ hunting, fishing, and gathering activities. Mille Lacs IV , 952 F. Su pp. at 1366. The State and the Bands have also agreed to “a series o f Protocols to coordinate harvest management and resource assessment. ” Id. at 1366-67. At oral argument, the State conceded that its position was that under the Code, there
was no danger of depletion of resources. It appears to us that the parties have taken careful steps to ensure conservation of Minnesota’s natural resources, and should be-69-

commended for doing so. The Conservation Code and Management Plan they hav e drawn up is in effect an allocation of resources between treaty and nontre aty harvesters. It is understandable that the Counties and Landowners, neither of which was a part y to the stipulation agreeing to the Code and Plan, dispute the de facto allocation made therein. However, the Counties and Landowners have not made a showing of scarcity of a resource under the Code and Plan that convinces this court that the district court should have used its equitable powers and mandated a further allocation.

The secon d concern of the Court in Fishing Vessel was the infringement of the treaty rights of the Indians. This concern was noted by the district court in this case, which held that “befo re a party can receive the equitable relief of allocation, the party seek ing an allocation must establish that their right to a fair share of a particular harvestable resource has been substantially or irreparably injured as a re sult of the other party’s harvest of such resource.” Mille Lacs IV , 952 F. Supp. at 1389. We agree that thi s rule, when combined with an allowance for apportionment for conservatio n necessity, is the standard set by Fishing Vessel

.
It must be remembered, however, that the standard was applied only after a determinationthat each party had a right to a fair share of the resource, based on the Court’s interpretation of the treaty language. See Fishing Vessel , 443 U.S. at 680-85. There has been no argument or ruling here regarding the existence and nature o f nontreaty fishers’ rights under the language of this treaty. I n addition, the Counties and Landowners have not made a showing that their right, whatever it may be, to an y
resource has been harmed. For these reasons, we must reject their pleas fo r apportionment. The above discussion of apportionment, however, does not entirely answer the d e fendants’ arguments in this area. The Counties and Landowners contend that the moderate living doctrine establ ishes a separate right to apportionment whenever it can be proven that holders of a treaty right have achieved a moderate standard of livingWe note that a portion of Mille Lacs IVcould be read to indicate otherwise. At 47 one point in that opinion the court states that the moderate living doctrine should b e applied to fulfill the purpose and intent of a t reaty, “while at the same time recognizing the rights of non-Indian harvesters to a resource.” 952 F. Supp. at 1393. The court then acknowledges the Mille Lacs I ’s determination as to the purpose of the treaty , which was to prov ide the Bands “the right to continue a way of life based on hunting, fishing and gathering.” Id. at 1393. Finally, the court holds that
the Bands must be given the opportunity to choose whether or not t o continue with a way of life that is based on hunting , fishing and gathering. At this time, the Bands have not had the opportunity to make that choice, as the State has not allowed them to exercise their rights without th e -70- throughany source or sources of income. We agree with the Bands’ assertion to the court below—that this analysis is “a serious misconception about the function of the moderate stand ard of living doctrine.” Mille Lacs IV , 952 F. Supp. at 1389. Th e doctrine was applied by the Supreme Court in Fishing Vessel after the district court had made an apportionment of a natural resource between treatyand nontreaty users of that resource. The moderate living doctrine does not establ ish a right to apportionment, but is rather a p art of the methodof apportionment once a court has determined tha t division of a resource is necessary. See Fishin g Vessel , 443 U.S. at 685-86. Since we hav e determined that apportionment is not necessary in this case, we, like the district court, have no occasion to consider the moderate living doctrine.
In sum, we hold that under Fishing Vessel , an equitable apportionment i n a treaty
case such as this is not appropriate unless one of two conditions is met: (1 ) conservation of the reso urce makes apportionment necessary; or (2) the existence and
sco pe of a party’s right to the resource has been determined, and that right i s substantially harmed due to another party’s harvest of that resource. Further, we hold that the moderate living doctrine itself cannot be applied to require apportionment

. Rather, the doctrine may be appropriate to consider if in the future an allocation under the above standard is necessary. 47threat of state regulation. Until the Bands have had a reasonabl e

opportunity to exercise their treaty rights, this Court will not address the moderate standard of living doctrine.
Id. at 1 394. We are concerned that this portion of this discussion could b e misconstrued to al low reduction of the Bands’ portion of a harvestable resource if the Bands choose not to continue a way of life based on hunting, fishing, and gathering

. We therefore emphasize that th e district court states clearly that it will not address the allocation issue until a showing has been made under “Section III, A” of its opinion, whichdetermines that allocation is appropriate only where a party’s fair share of a resource has been substantially or irreparably injured. Id. at 1389. As noted above , we add to this holding by reading Fishing Vessel to require allocation when a n allocation is nec essary to conserve a natural resource or a party’s right to a portion of the resource at issue.
-71- IX.
Additional Defenses Claimed by the Counties

The Counties appeal the denial of two additional defenses. First, they contend that be cause the Wisconsin Bands sued Wisconsin officials for violating their 183 7 Treaty rights in LCO , they are barred by res judicata from su ing Minnesota officials for violating the same rights. They contend that Nevada v. United States , 463 U.S. 11 0 (1983), where the Supreme Court carved out a narrow exception to the mutuality rule, applies he re to bar the Bands’ suit. We disagree. The proceedings in Nevadawer e unique; they involved comprehensive water rights adjudication, in which many non

part ywater appropriators had relied on a prior decree as much as the parties to th e action, making res judicata appropriate because of the special need to finally quantify reservedwater rights. See Nevada , 463 U.S. at 143-44. The district court wa s correct in holding that res judicata does not apply. See Mille Lacs III , slip op. at 34-36.Th e Landowners’ briefs do not help us to sort out the substantive argument s 48 they make. While their combined briefs deal substantively with approximately twentythree issues, the briefs list forty-seven issues in a “Statement of Issues” spannin g thirt een pages not numbered to be included in the page count. This technique is, o f course, an attempt to avoid reasonab le page limitations imposed by this court. For the sak e of brevity, we have not mentioned each and every argument raised by th e Landowners, but those we do not mention, we have considered and reject.
-72- Second, the Counties argue that the Wisconsin and Fond du Lac Bands do not hold usufructuary right s in the Minnesota portion of the 1837 ceded territory because, allegedl y, none of these Bands used and occupied the area at the time of the Treaty

. The district court rejected the argument. See Mille Lacs III , slip op. at 39; Fond d u Lac , slip op. at 36-37. All of the cases cited by the Counties in support of its argument include treaty language which supports a limitation on the s cope of the right. The 1837 Treaty does not tie usufructuary rights to historic use or occupancy, and thus th e Counties’ urgings defy the plain language of the Treaty. We affirm the district court on this issue.

X.
Additional Defenses Claimed by the Landowners

The Land owners make myriad additional arguments, including (but not limited to) the following: (1) the Bands’ claims are barred by various statutes of limitations; 48 (2) t he district court lacked § 1983 jurisdiction; (3) Landowners are entitled to a new Pha se I trial because the district court exhibited a “pattern of unfairness” whic h pre judicedthe Landowners; (4) the government’s survey and sale of land to settler s constituteda revocation of the 1837 Treaty rights; (5) treaties of 1863 and 1864 and the Nelson Act establish state regulation over the hunting and fishing activities of the Bands; and (6) this court should reinstate the Landowners’ counterclaims against the-73-

United States if we determine that the 1837 Treaty rights exist. We have given these arguments full consideration and have determined them to be without merit.

XI.
The Bands’ Cross-Appeal

In Phase I of the Mille Lacs case, the district court held that since the 183 7 Treaty rights do not include a right of access, Band members may exercise their rights only on public lands and private lands open to public hunting, fishing, and gathering. Mille Lacs I I , 861 F. Supp. at 836. In Phase II, the parties sought a definition o f

“ p rivate lands open to public hunting, fishing, and gathering.” Mille Lacs IV , 952 F. Supp. at 1376. The Bands argued that the phrase included “private lands that ar e undeveloped, non-agricultural and non-posted lands, which, according to statute, are open to the public for hunting.” Id. at 1377 (citing Minn. Stat. § 97B.001). Minn. Stat. § 97 B.001 provides that any person may hunt on private land that fits the abov e description if such person

has not been notified orally that they may not enter the land by the owner, occupant, or lessee of the private land. The court in Phase II held that the lands falling under Minn. Stat. § 97B.001 are not lands upon which the Bands may exercise their rights, because “allowing the exercise of the usufruct uary rights by owner
con sent would potentially provide individual Band members more rights than othe r Band members.” Mille Lacs IV , 952 F. Supp. at 1378-79. The Bands challenge this ruling on appeal, arguing that it is inconsistent with the Phase I decision. In response, the State argues that the second ruling merely clarified the first, and that the two rulings are consistent. We affirm. The Phase I and Phase II decisions are not inconsistent. In Phase I, the district court held that generally, the rights extend to “private lands open to public hunting, fishing, and gathering.” Mille Lacs II , 861 F. Supp. at 836. The court, interpreting this holding in Phase II, accepted the State’s argument that a “distinction between private lands open to the public-74-

genera lly and indiscriminately and private lands to which owner consent is necessary is crucial.” Mille Lacs IV , 952 F. Supp. at 1378. The distinction is well-reasoned and should not be disturbed by this court. See id . at 1378-79 (noting that if the Bands were al lowedto fish and hunt on private lands subject to the discretion of the privat e landow ners, law enforcement officers “would have the undue burden of having t o contact private land owners to determine if consent was provided to certain individuals before being able to determine whether laws were violated”).

XII.

Conclusion

Forthe r easons set forth above, we affirm the district court’s rulings in Mill e Lacs I , Mille Lacs II , Mille Lacs III , Mille Lacs IV , and Fond du Lac . These fiv e district court opinions, as well as this appeal, represent only a fraction of the effort extendedby the parties and their counsel. We commend all of these participants for their work in presenting the important and complex issues involved in this expedited appeal.
Despite the 160 years that have passed since the signing of th e Treaty, it remains good law. One of the hallmarks of our constitutional system is respect for the law , regardless of changing circumstances or the inevitable passage of time. This court is fully cognizant of the s ignificant rights and interests maintained by all of the parties in this litigation. The parti es have attempted in good faith by negotiation to resolve their differences. Failing to do so, the courts have the responsibility to decide the issue s under prevai ling rules of law. We are aware of the professed hardships an d
co mpromises all litigants on both sides of this litigation must endure. Yet we ar e confident that all parties recognize that we are a court of limited juri sdiction, and do not poss ess the power to rewrite the treaties or interpret them contrary to principles o f settled law to accommodate one group over the other.-75-

We commend particularly the State of Minnesota and the var ious Bands for their willi ngness to reach agreement regarding the valuable resources in the Conservatio n Code and Management Plan. We can only express hope tha t such spirit of cooperation will conti nue to prevail and that all parties will recognize the mutual rights of on e another as now declared in this opinion.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.