                        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 *
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;               *

                                                   -2-
-3-
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-           *

                                        -4-
-5-
      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 *

                                        -6-
-7-
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;   *

                                        -8-
-9-
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       *

                                        -10-
-11-
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; *
                                      *

                                    -12-
-13-
     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;        *

                                         -14-
-15-
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;             *

                                       -16-
 *




-17-
                                          *
       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. *


                                   ___________



                                        -18-
                                 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

                                        -19-
-20-
                                     ___________

Before McMILLIAN, LAY, and JOHN R. GIBSON, Circuit Judges.
                             ___________


LAY, Circuit Judge.

I. BACKGROUND

A. Introduction

       One hundred sixty years ago, near Fort Snelling, Minnesota, representatives of
the United States and representatives of twelve bands of the Chippewa Nation
negotiated a treaty which ceded Indian1 title to certain lands in the Upper Midwest.
Historical documents demonstrate that the government was interested in purchasing the
land for purposes of harvesting its pine timber. See 1837 Treaty Journal 131; Letter
from Commissioner of Indian Affairs Carey A. Harris to Henry Dodge, Wisconsin
Territorial Governor, and General W.R. Smith (May 13, 1837). On July 29, 1837, the
Bands signed a treaty ceding over thirteen million acres of land in present-day
Wisconsin and Minnesota to the United States in exchange for money, goods, and
supplies. Treaty with the Chippewas, July 29, 1837, 7 Stat. 536 . Article V of the
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 the


      1
       The plaintiff Bands in this case have referred to themselves throughout as Bands
of Chippewa Indians, though, as the district court noted, “Chippewa,” “Ojibwa,” or
“Ojibwe” are all terms “used by experts and others to refer to the same group of Native
American people.” Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp.
784, 790 n.5 (D. Minn. 1994). We echo and adopt the district court’s conclusion:
“Since the words Chippewa and Indians are those which have been used legally [and
by the parties], they are adopted in this opinion.” Id.
                                          -21-
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 individual
members (the Mille Lacs Band), later joined by the Fond du Lac Band of Chippewa
Indians and some of its individual members2 (the Fond du Lac Band) and several
Wisconsin Bands of Chippewa Indians (the Wisconsin Bands)3 (collectively “the
Bands”) sought a declaratory judgment in federal district court as to the continued
existence of their usufructuary rights in the Minnesota portion of the territory they
ceded in the 1837 Treaty. The Bands also sought injunctive relief to enforce these
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 Mille Lacs case, the Mille Lacs Band initially sued the State, the
Minnesota Department of Natural Resources, and the Commissioner of Natural
Resources (collectively “the State”). Nine Minnesota counties4 and six Minnesota


      2
      The Fond du Lac Band and its members filed suit separately, under both the
1837 Treaty and a separate treaty signed in 1854.
      3
         The Wisconsin Bands include the St. Croix Chippewa Indians, Lac du Flambeau
Band, Bad River Band of Lake Superior, Lac Corte Oreilles Indians, Sokaogan
Chippewa Community, and Red Cliff Band of Lake Superior. The Wisconsin Bands’
treaty rights in the Wisconsin portion of the 1837 ceded territory have been adjudicated
in litigation in federal courts in Wisconsin. See Lac Courte Oreilles Band of Chippewa
Indians v. Voigt, 700 F.2d 341 (7th Cir. 1983) (LCO); see also infra note 19
(explaining the LCO litigation).
      4
       The counties are Aitkin, Benton, Crow Wing, Isanti, Kanabec, Mille Lacs,
Morrison, Pine, and Sherburne; they will be referred to throughout this opinion as “the
Counties.”
                                          -22-
landowners5 intervened as defendants, and the United States intervened as a plaintiff.
Mille Lacs I, 853 F. Supp. at 1123.

       The district court bifurcated the Mille Lacs case into two phases. Phase I was
to decide whether the Mille Lacs Band’s rights to hunt, fish, and gather under the 1837
Treaty continue to exist and the general nature of any such rights, including whether
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 the
exercise of the rights. Id.

        In Mille Lacs I, on cross-motions for summary judgment, the district court 6 held
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 Band and the Commissioner of Natural
Resources are persons within the meaning 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 not 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 1142-43. Finally, the court dismissed counterclaims the six Minnesota
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))


      5
     The landowners are John W. Thompson, Jenny Thompson, Joseph N. Karpen,
LeRoy Burling, Glenn E. Thompson, and Gary M. Kiedrowski.
      6
       The Honorable Diana E. Murphy, then-Chief United States District Judge for
the District of Minnesota.
                                          -23-
-24-
        After a trial held on Phase I issues, the district court ruled that the Mille Lacs
Band had a continuing right to hunt, fish, and gather pursuant to the 1837 Treaty. Mille
Lacs II, 861 F. Supp. at 841. Specifically, the court held that neither the 1850
Executive 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 resources for commercial purposes,
and were not limited to use of any particular techniques, methods, devices or gear. Id.
at 838. Finally, it ruled 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 meet 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 Lacs II, several Wisconsin Bands8 of Chippewa
were allowed to intervene as plaintiffs. The State moved for summary judgment 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 the
Wisconsin Bands in 1854 extinguished any usufructuary rights guaranteed in the 1837
Treaty. Mille Lacs III, slip op. at 7. The Counties moved for summary judgment



      7
        After the Phase I trial, the State, the Counties, and the six Minnesota
landowners immediately appealed the Mille Lacs II decision. See 861 F. Supp. at 840.
This court dismissed the appeals from the district court’s Phase I order as premature.
48 F.3d 373 (8th Cir. 1995). The Counties and the six Minnesota landowners also
moved for a preliminary injunction to prevent 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).
      8
       See supra n.2.
                                           -25-
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 in
Minnesota, and that this fact barred their claim. The Counties also argued, despite the
ruling in Mille Lacs I, that the 1850 Executive Order extinguished the Wisconsin
Bands’ rights. Id. The six Minnesota landowners also moved for summary judgment
against the Wisconsin Bands, and the Wisconsin Bands and the Mille Lacs Band
moved for summary judgment dismissing various defenses. Id. at 7-8. The district
court9 issued summary judgment in favor of the Wisconsin Bands, and denied the
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 1992, 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.10 The district
court issued a bifurcation order similar to the order signed in the Mille Lacs case. In
October 1994, the court 11 held that the Fond du Lac Band’s claims were not barred by
Eleventh Amendment, indispensable parties or statute of limitations defenses. This
court affirmed the rejection of the Eleventh Amendment defense in an interlocutory
appeal. 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 that


      9
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
      10
       These landowners are Robert J. Edmonds and Michael Sheff. All eight
landowners (the two in Fond du Lac and the six in Mille Lacs) will be referred to
throughout this opinion as “the Landowners.”
      11
       The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
                                          -26-
the Fond du Lac Band retains hunting, fishing, and gathering rights 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 consolidated
Phase II, the State and 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 remained unresolved, and were submitted to the district court on motions for
summary judgment. On January 29, 1997, the district court12 issued an order resolving
these issues. It approved the Conservation Code and Management Plan and rejected
defendants’ arguments to make a further allocation of the resources affected by the
Code and Plan. Mille Lacs IV, 952 F. Supp. at 1385-94. The court also held that
exercise of treaty rights on private lands would be limited to those open to the public
by operation 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 Fond du Lac case and the Mille Lacs case were consolidated on appeal. 13
The basic issues presented on appeal are (1) whether the suit is barred in federal court
under the Eleventh Amendment; (2) whether the 1850 Executive Order issued by
President Zachary Taylor revoked the Bands’ usufructuary rights; (3) whether
subsequent treaties of 1854 and 1855 have extinguished the usufructuary rights; (4)
whether the claims asserted by the Bands have been precluded by prior litigation; (5)


      12
       The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
      13
           Jurisdiction of this appeal is authorized under 28 U.S.C. § 1291.
                                            -27-
whether the Bands’ rights were repealed, under the equal footing doctrine, by
Minnesota’s admission into the Union; (6) whether the rights, if they still exist, are
limited by the “moderate living” doctrine; (7) whether several other affirmative
defenses were erroneously rejected by the district court; and (8) in the Bands’ cross-
appeal, 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 initially to the Landowners’ arguments that these suits are barred in
federal court because of the sovereign immunity of the State of Minnesota.14 The
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 any
Foreign State.” The Bands are accorded the same status as a foreign sovereign.
Blatchford v. Native Village of Noatak, 501 U.S. 775, 780 (1991).




      14
         The State does not raise the Eleventh Amendment defense in its brief, and we
question whether the Landowners have standing to raise the defense on behalf of the
State. However, the Landowners filed a letter pursuant to F.R.A.P. 28(j) asserting as
additional 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
issue is not raised in the brief itself, nor argued at the time of oral argument, it is
deemed waived. Bechtold v. City of Rosemount, 104 F.3d 1062, 1068 (8th Cir. 1997).
Nonetheless, assuming without deciding that the issue is properly before us, we reject
it on the merits.
                                         -28-
        In Mille Lacs, the State raised the defense of sovereign immunity before the
district court,15 which rejected it on two grounds. First, the court noted that the claims
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, 853 F. Supp. at 1128. Therefore, the court held that because “the Band and the
United States seek the same relief in this action, Minnesota’s sovereign immunity is not
compromised.” 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 the
Commissioner of Natural Resources in his official capacity falls within the Eleventh
Amendment exception set out in Ex parte Young, 209 U.S. 123 (1908).16 Mille Lacs
I, 853 F. Supp. at 1128-29.17

       As to the court’s first holding, the Landowners urge that the United States did
not initiate the suit and appears only as a trustee intervening in the action. This
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. Charles, 476 U.S. 54,
68 (1986). Therefore, because the United States has the right to bring these claims in
federal 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


      15
        The State is a defendant in the Mille Lacs suit, but not in the Fond du Lac suit.
      16
       The Ex parte Young doctrine excepts from the Eleventh Amendment bar suits
“brought in federal court against state officials in their official capacities for
prospective injunctive relief to prevent future violations of federal law.” Fond du Lac,
68 F.3d at 255.
      17
        The district court in Mille Lacs III similarly rejected the argument by the State
and the Landowners that the Wisconsin Bands’ claims must be dismissed on Eleventh
Amendment 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-
(“Nothing 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 defendant 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”).

        The Landowners filed a 28(j) letter, with which the State concurred, asserting
that this court’s ruling in Fond du Lac was 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 several
individual tribe members sued the State of Idaho and various state officials and
agencies in federal court “[a]lleging ownership in the submerged lands and bed of Lake
Coeur d’Alene and of the various navigable rivers and streams that form part of its
water system.” Id. at 2032. The Court held that the action was barred in federal court
because it was the “functional equivalent of a quiet title action which implicates special
sovereignty interests” and therefore did not fall within the Ex parte Young exception
to the Eleventh Amendment. Id. at 2040.

      The principal decision, written by Justice Kennedy, espouses a case-by-case
balancing approach for applying the Ex parte Young exception. See id. at 2038-40.
However, the majority of the Court, including the four dissenters and the concurring
opinion signed by three Justices, rejects Justice Kennedy’s balancing test. Regardless,
Coeur d’Alene does not make the Ex parte Young exception inapplicable to this case.
Our conclusion that this case falls within the exception is supported by the concurring

                                           -30-
opinion’s appraisal of Ex parte Young: “[A] Young suit is available where a plaintiff
alleges an ongoing violation of federal law, and where the relief sought is prospective
rather than retrospective.” Id. at 2046 (O’Connor, J., concurring) (emphasis omitted).
Moreover, the principal opinion reaffirmed the Young principle, noting that “where
prospective relief is sought against individual state officers in a federal forum based on
a federal right, the Eleventh Amendment, in most cases, is not a bar.” Id. at 2038
(citation omitted). Neither the State nor the Landowners present factors from this case
which would counsel against applying the Ex parte Young exception even under Justice
Kennedy’s balancing approach.

      Justice O’Connor, in the concurring opinion, distinguished Coeur d’Alene from
Ex parte Young as follows:

      First, as the Tribe concedes, the suit is the functional equivalent of an
      action to quiet its title to the bed of Lake Coeur d’Alene. . . . Second, the
      Tribe does not merely seek to possess land that would otherwise remain
      subject to state regulation, or to bring the State’s regulatory scheme into
      compliance with federal law. Rather, the Tribe seeks to eliminate
      altogether the State’s regulatory power over the submerged lands at
      issue—to establish not only that the State has no right to possess the
      property, but also that the property is not within Idaho’s sovereign
      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 in
Fond du Lac seek prospective injunctive relief against state officials in their official
capacities for continuing violations of the Bands’ federal treaty rights. As such, they
fall squarely within the Ex parte Young exception to the Eleventh Amendment.


                                           -31-
                                           III.

1850 Executive Order

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

      The privileges granted temporarily to the Chippewa Indians of the
      Mississippi by the Fifth Article of the Treaty made with them on the 29th
      of July 1837, “of hunting, fishing and gathering the wild rice, upon the
      lands, the rivers and the lakes included in the territory ceded” by that
      treaty to the United States . . . are hereby revoked; and all of the said
      Indians remaining on the lands ceded as aforesaid, are required to remove
      to their unceded lands.18

The district court in Mille Lacs II rejected the defendants’ argument that this order
validly terminated usufructuary rights reserved by the Bands in the 1837 Treaty. First,
the court held that President Taylor did not have authority to order the Bands to
remove, and that the portion of the Executive Order revoking the Bands’ usufructuary
rights was not severable from the portion of the document ordering removal. Mille
Lacs II, 861 F. Supp. at 824-26. In the alternative, the court held that even if the Order
were backed by the necessary authority or if the revocation portion were severable, the
Order did not effect a revocation because the 1837 Treaty did not grant the President


      18
         In the years in and around the execution of the 1837 Treaty, removal of tribes
was the official policy of the United States government. President Andrew Jackson,
one of the most vigorous proponents of the policy, began pushing for removal
legislation shortly after his election in 1829. “After one of the bitterest debates in the
history of Congress,” the Removal Act was enacted into law on May 28, 1830. Grant
Foreman, Indian Removal 21 (1932). The Act authorized the President to enter into
treaties exchanging lands for compensation and removal. Many removal treaties (not
including the 1837 Treaty at issue here) followed.
                                           -32-
unfettered discretion to revoke the usufructuary rights it preserved. Id. at 826-27. The
Seventh Circuit had used this approach in Lac Courte Oreilles Band of Lake Superior
Chippewa Indians v. Voigt, 700 F.2d 341 (7th Cir. 1983) (LCO), where it held that the
1837 Treaty conferred upon the President discretion to revoke the usufructuary rights
only if the Bands misbehaved. See id. at 357 (interpreting the 1837 Treaty and a
separate treaty signed in 1842 to allow revocation of usufructuary rights “only if the
Indians were instrumental in causing disturbances with white settlers”).19

       Again in the alternative, the district court held that the entire 1850 Order was
unlawful because it violated 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 Order were valid and gave the President unfettered discretion, it was
repealed by implication because it was never enforced. Id. at 829-30.

       The State, 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.


      19
         In the LCO litigation, the Lac Courte Oreilles Band of Chippewa Indians,
which signed the 1837 Treaty, brought suit against the State of Wisconsin and state
officials seeking a declaratory judgment that it retained usufructuary rights under the
1837 Treaty and a separate 1842 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 of
continued litigation in federal district court and the Seventh Circuit. See, e.g., Lac
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), 668 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 VII); 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: An
Overview of the Chippewa Indian Treaty Rights Dispute in Northern Wisconsin, 11
Hamline J. Pub. L. & Pol’y 381 (1990).
                                          -33-
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 followed 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
Constitution itself.” Youngstown, 343 U.S. at 585. An executive order without
congressional or constitutional authority is unconstitutional. Id. “When the President
takes measures incompatible with the expressed or implied will of Congress, his power
is at its lowest ebb, for then he can rely only upon his own constitutional powers minus
any constitutional powers of Congress over the matter.” Id. at 637 (Jackson, J.,
concurring), adopted in Dames & Moore v. Regan, 453 U.S. 654, 669 (1981). The
Bands argue that Congress required Indian consent as a prerequisite to removal, that
it was not present here, and that the Order was therefore against congressional will and
the dictates of Youngstown.

      The 1830 Removal Act authorized the President to convey lands west of the
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
(emphasis added). Though President Jackson advocated an aggressive policy,
including possible use of force to achieve Indian removal, it is clear the Removal Act
was “entirely permissive.” Wilcomb E. Washburn, 3 The American Indian and the
United States: A Documentary History 2169 (1973).



      20
         The Counties have argued that judicial review of the 1850 Order is barred by
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 by
which courts review executive orders. In addition, review of the 1850 Order does not
fall within any of the categories of nonjusticiable political questions set out in Baker v.
Carr, 369 U.S. 186, 217 (1962).
                                           -34-
       The requirement of Indian consent is easily drawn from the language of the
statute. It is buttressed, however, by the statements and actions of congresses and
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 seek a home in a distant land.” 1 The State of the Union Messages of the
Presidents, 1790-1966, at 310 (Fred L. Israel ed., 1966). In his 1835 State of the
Union Address, President Jackson advocated further Indian removal “as fast as their
consent can be obtained.” Id. at 438, quoted in Mille Lacs II, 861 F. Supp. at 824.
Indian consent is also exemplified by the many treaties between the United States and
various Indian tribes made after 1830 where removal was negotiated. See Mille Lacs
II, 861 F. Supp. at 794 n.7 (listing four such treaties). In 1837, Congress passed an
appropriations act specifically to fund the negotiations that led to the 1837 Treaty and
others like it. Act of March 3, 1837, ch. 31, 5 Stat. 158. If removal could have been
effected through a simple executive order, the difficult process of treaty negotiation
would have been unnecessary. The Removal Act did not authorize the President to
achieve removal through unilateral means; rather, it “authorized the President to
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. Ragsdale, Jr., Indian Reservations and the Preservation of Tribal Culture, 59
U.M.K.C. L. Rev. 503, 509 (1991) (emphasis added).

       The defendants do not cite to any evidence indicating that the President was
authorized to remove the Bands without their consent. The State argued below that the
Executive 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, by




                                          -35-
treaty if possible, by force if necessary.”21 However, such unilateral and unlawful
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.
Defendants do not point to a single document indicating that the 1837 treaty
negotiations included discussion of removal.22 In 1837, before negotiations began,
Commissioner 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 to
“procure from [the] Indians a tract [of land] . . . valuable for its pine woods which
cover it.” Letter from Commissioner of Indian Affairs Carey A. Harris to Henry Dodge



       21
        The State is partially correct. Scholars have noted that the law of voluntary
removal was not always faithfully followed. See, e.g., Jill Norgren, Protection of What
Rights They Have: Original Principles of Federal Indian Law, 64 N.D. L. Rev. 73, 98
(1988) (noting that the “Removal Act articulated a voluntary process of removal to be
agreed upon through a process of law,” but that the reality of removal was “something
quite the contrary”); Siegfried Wiessner, American Indian Treaties and Modern
International Law, 7 St. Thomas L. Rev. 567, 578-79 (1995) (“Generally speaking,
treaties of removal appear to often have been imposed by force or fraud, tainted by
corruption 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”).
       22
         Justice Jackson’s three categories of presidential authority set forth in his
concurring opinion in Youngstown indicate that where, as here, an executive order
contravenes congressional will, the order can stand if the President can draw on his
constitutional powers. Youngstown, 343 U.S. at 637 (Jackson, J., concurring); see also
Regan, 453 U.S. at 668-69 (adopting Justice Jackson’s categories as “analytically
useful”). The Constitution does not help President Taylor here, however, because it
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 and
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-
and General W. R. Smith (May 13, 1837). As the district court noted, “The letter did
not contain any reference to the removal of the Chippewa, the 1830 Removal Act, or
the 1837 appropriations act.” Mille Lacs II, 861 F. Supp. at 794. The district court
concluded, “Neither Dodge nor the Chippewa intended or understood that any
provision of the 1837 Treaty was to provide for removal from the ceded territory.” Id.
at 798. 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
President Taylor had no authority for his 1850 Executive Order of removal. This
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 valid portion of an otherwise unconstitutional statute can
be severed also applies to executive orders. Matter of Reyes, 910 F.2d 611, 613 (9th
Cir. 1990). In the early case of Champlin Rfg. Co. v. Commission, 286 U.S. 210, 234
(1932), the Court established its test for severability:

      The unconstitutionality of a part of an Act does not necessarily defeat or
      affect the validity of its remaining provisions. Unless it is evident that the
      legislature would not have enacted those provisions which are within its
      power, independently of that which is not, the invalid part may be
      dropped if what is left is fully operative as a law.




      23
        Neither did the Bands consent to removal after the 1837 Treaty was signed.
The defendants do not point to any conduct indicating as much, nor can we find any in
the record.
                                           -37-
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 that seem separate—one ordering
revocation of treaty rights, and one ordering removal. However, the test for
severability requires us to look at more 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
on the 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 the
remainder of the statute in which it appears is primarily 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 have passed it absent
the constitutionally objectionable provision.”), overruled on other grounds by Planned
Parenthood v. Casey, 505 U.S. 833 (1992). The task before us, therefore, is to
determine whether President Taylor would have issued an executive order revoking the
Bands’ treaty rights without also ordering removal. The district court found that the
revocation portion of the Order was included in order “to encourage removal.” Mille
Lacs II, 861 F. Supp. 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 order
without the removal provision, because it would have “encouraged” Bands to remove
from the ceded territory without actually ordering them to do so. If the Bands were
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
revocation order standing alone would have allowed the President to attempt to do
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 from

                                            -38-
its companion provision. 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) (“Severance is improper if the unconstitutional provision is an integral
part of the statutory enactment viewed in its entirety.”) (internal quotation omitted),
aff’d by an equally divided court, 484 U.S. 171 (1986). Other than our above-stated
conjecture, there is no evidence that revocation of usufructuary rights would have been
made independently of the removal mandate. We may envision a scenario where this
indirect method of removal could have been followed, but we have in the record no
statement by anyone indicating such a plan had ever been considered, much less
employed.24 All of the historical evidence surrounding the Order relates to removal.
Without evidence that the scenario we have outlined had even been contemplated, we


      24
        Indeed, even the direct order of removal and the corresponding revocation of
usufructary rights were never implemented. On August 23, 1851, the Acting
Commissioner of Indian Affairs wrote to the Secretary of the Interior and recommended
abandoning the removal policy and modifying the Executive Order. Thereafter,
Commissioner of Indian Affairs Luke Lea ordered suspension of the Order. The new
Commissioner of Indian Affairs, George Manypenny, adopted this policy of
abandoning removal in his 1854 report. When President Franklin Pierce took office in
1853, his administration “replaced the old removal policy with a policy of creating
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 still in place today. See infra Parts IV,
V (discussing the 1854 and 1855 Treaties).

        As to the revocation order, Minnesota Territorial Governor Willis Gorman wrote
to Commissioner Manypenny in 1855 regarding a dispute over a dam, and stated that
the Bands retained hunting and fishing rights in the area of the dam. See id. at 810.
Annuity payments made after the 1850 Order included equipment for hunting and
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 and
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-
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 an
enactment on the authority of a wholly speculative, and insupportable, interpretation
of legislative intent.”). We hold that the entire 1850 Executive Order 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 failing
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 for this purpose was debated in May
1854, but it failed to pass the Senate. Nonetheless, negotiations went forward, and a
treaty resulted. Treaty with the Chippewas, Sept. 30, 1854, 10 Stat. 1109. The
Wisconsin Bands and the Fond du Lac Band, but not the Mille Lacs Band, were
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
reservations, extinguished the 1837 Treaty rights of the Wisconsin Bands. This
argument does not apply to the Mille Lacs Band, because it was not a signatory to the


      25
         As we noted previously, the defendants challenge each of the district court’s
alternative rulings 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’
remaining 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 doctrine
which the district court held was violated by the United States in issuing the 1850
Order, and the alleged repeal by implication.
                                           -40-
Treaty, nor to the Fond du Lac Band, because defendants have not pursued this
argument against that Band.26 The district court rejected the State’s and the
Landowners’ arguments and held that the 1854 Treaty did not extinguish the
usufructuary rights reserved under the 1837 Treaty. Mille Lacs III, slip op. at 33. On
appeal, the Landowners urge us to reverse the district court.27

        The Landowners rely on United States v. Santa Fe Pac. R.R., 314 U.S. 339
(1941), where the Supreme Court determined that creation of a reservation by the
United States and acceptance of it by the Walapai Indians “amounted to a
relinquishment of any tribal claims to lands which they might have had outside that
reservation.” Id. at 357-58 (footnote omitted). The Court made it clear that mere
establishment of a reservation does not automatically extinguish rights to lands outside
the reservation, but it determined that the facts and circumstances of the case indicated
extinguishment of title. In 1865, Congress had established a reservation for the
Walapai Indians in an effort to induce them to abandon their ancestral lands. Id. at
351-53. The Tribe did not accept the reservation at that time, and the Court determined
that its rights to the land were not extinguished by the mere passage of the act creating
the reservation. 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 were
preserved.” Id. at 358.




      26
        The 1854 Treaty also reserved to various Bands, including the Fond du Lac
Band, a right to hunt and fish on the newly ceded lands. Claims for these usufructuary
rights were brought by the Fond du Lac Band, but are not a part of this consolidated
case. See Fond du Lac, slip op. at 22-34 (determining that the 1854 Treaty granted
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).
      27
           The State has not addressed the 1854 Treaty in this court.
                                           -41-
-42-
       The district court distinguished Santa Fe: “Not only is the historical context
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 circumstances involved in Santa Fe, where the
argument was over aboriginal title rather than usufructuary rights reserved by treaty,
are not present here.28 See LCO, 700 F.2d at 351-52 (explaining the legally significant
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 lands
different from the lands ceded in the 1837 Treaty, and explicitly 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,
that the LCO band believed their usufructuary rights [reserved in the 1837 and 1842
Treaties] to be secure and unaffected by the treaty.”); Mille Lacs II, 861 F. Supp. at
815 (concluding that the government did not intend to extinguish usufructuary rights in
a different treaty with the Chippewa in part because the Treaty does not contain
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




      28
       We note also the distinction in the law between usufructuary rights, at issue
here, and title or occupancy, at issue in Santa Fe. See LCO, 700 F.2d at 352
(“[T]reaty-recognized rights of use depend neither on title nor right of permanent
occupancy.”).
                                           -43-
       In December 1854, Congress passed the previously rejected bill establishing
authority for treaty negotiations. The bill provided retroactive authority for the 1854
Treaty, and authority to negotiate a follow-up treaty. On January 4, 1855,
Commissioner Manypenny directed Governor Gorman to begin the negotiation process
for a new 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 by the Mississippi, Pillager, and
Lake Winnibigoshish Bands of Chippewa, a group which includes 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 north 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, any and all right, title, and interest, of whatsoever nature the same may be,
which they 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 ceded
territory, but it does not mention hunting, fishing, and gathering rights at all, and the
usufructuary 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 the
1855 Treaty conveying “all right, title, and interest, . . . in, and to any other lands in the
Territory of Minnesota or elsewhere” extinguished the Mille Lacs Band’s usufructuary
rights on off-reservation lands. The district court in Mille Lacs II, after “a careful
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 their 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 was
signed, id. at 818-821.

                                            -44-
       The 1855 Treaty is void of explicit language extinguishing the Band’s
usufructuary rights, nor does it mention the 1837 Treaty. In analyzing the broad
language of the 1855 Treaty, we must view it in its historical context to determine
whether the parties meant it to revoke usufructuary rights. The circumstances
surrounding the Treaty do not indicate that either side intended 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 Vessel 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 sense 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 purpose of the Treaty was to purchase land. Mille Lacs II, 861 F. Supp. at 813.
Chippewa representatives also indicated during negotiations that they would continue
to hunt, fish, and gather after the Treaty was negotiated. Id. at 814. Indeed, the district
court found that in the years 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 usufructuary rights, and did not do so in this case. See, e.g., Treaty
with the Middle Oregons, Nov. 15, 1865, art. I, 14 Stat. 751 (“[T]he right to take fish,
erect houses, hunt game, gather roots and berries, and pasture animals upon lands
without the reservation set apart by the treaty aforesaid—[is] hereby relinquished.”);
Treaty with Chippewas of Sault St. Marie, Aug. 2, 1855, art. I, 11 Stat. 631 (“The said
Chippewa 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.”); Treaty with the Winnebago Indians, Oct. 13, 1846, art. IV,
9 Stat. 878 (paying “forty thousand dollars for release of hunting privileges, on the
lands adjacent to their present home”); Treaty with the Sacs and Foxes, Oct. 21, 1837,

                                           -45-
art. I, 7 Stat. 543 (revoking “the right to locate, for hunting or other purposes, on the
land ceded in the first article of the treaty of July 15th 1830”). In addition, the
authorization act for the 1855 Treaty directed the President to negotiate a treaty with
the Chippewa “for the extinguishment of their title to all the lands owned and claimed
by them in the Territory of Minnesota and State of Wisconsin.” 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
1855 Treaty are well supported, and we cannot conclude they are clearly erroneous.
Given the 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 parties
intended to extinguish these rights, we conclude that the 1855 Treaty did not revoke the
1837 Treaty’s usufructuary rights.29

        Defendants argue, however, that Oregon Dept. of Fish & Wildlife v. Klamath
Indian Tribe, 473 U.S. 753 (1985) compels a different result. The Klamath Indian
Tribe (the Tribe) had signed an 1864 Treaty ceding lands in Oregon to the United
States. The Treaty also created a reservation for the Tribe and secured to them “the
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
reservation. A large portion of the intended reservation was excluded as a result of
survey error.

       In 1901, 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


       29
        The Landowners argue that the usufructuary rights were not mentioned because
“the 1850 Order had 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-
from the 1864 Treaty. Id. at 760. The 1901 Agreement did not contain any reference
to hunting and fishing rights. When the State of Oregon enforced its conservation laws
against the Tribe on the lands ceded in the 1901 Agreement, the Tribe brought suit. The
Supreme Court interpreted the 1864 Treaty and the 1901 Agreement to extinguish
hunting and fishing rights on ceded lands. Id. at 770. In coming to its decision, the
Klamath Court considered that the 1864 Treaty established an exclusive right to hunt
and fish on the reservation. Thus the hunting and fishing rights “did not exist
independently 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 logically 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 not
analogous and do not compel the same outcome. We hold that Klamath does not
require reversal, and affirm the district court’s holding that the 1855 Treaty did not
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 which
are plaintiffs in this action, brought a claim against the United States in the Court of
Claims. The action was brought pursuant to an ad hoc jurisdictional statute waiving
federal sovereign immunity, which was designed to enable Indian claims for loss of




                                            -47-
aboriginal title.30 Mole Lake Band v. United States, 126 Ct. Cl. 596, 598 (Ct. Cl.
1953); Act of August 30, 1935, Pub. L. No. 74-410, 49 Stat. 1049. The Fond du Lac
Band intervened in the Mole 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 petition set forth multiple claims under various treaties,
mostly seeking compensation for lands ceded under the treaties. A portion of the
petition included claims contending that federal officials had violated the plaintiffs’
usufructuary rights under the treaties.31 Severed from the original petition were causes
of action relating to certain tracts of swamp land and causes of action relating to
“public school sections” of land. The swamp land claims were resolved in Mole Lake
Band v. United States, 139 F. Supp. 938 (Ct. Cl. 1956). The school land claims were
dismissed in Mole Lake Band v. United States, 82 F. Supp. 342 (Ct. Cl. 1949). The
remainder of the petition was narrowed 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
before the Indian Claims Commission,” and the “abandonment of some of the claims
not severed out of the petition.” Id. None of the swamp land claims, the school land




      30
        The Mole Lake litigation was against the United States. The Bands could not
have joined the officers of the State of Minnesota, its counties, or the Landowners in
the Court of Claims litigation. The Court of Claims had exclusive jurisdiction over
claims against 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.
      31
         For example, the petition alleged that the United States destroyed “the natural
habitat of fish, game 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-
claims, or the seven remaining claims included allegations of the denial of usufructuary
rights.

       The defendants argued to the district court that the Mole Lake litigation
collaterally estops the Bands’ claims in this action. In order for collateral estoppel
(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 issue must have been litigated in the prior action;
      (3) the issue 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
a signatory to the 1837 Treaty, it was not in privity with the Bands in the Mole Lake
litigation.32 The court then found in the alternative that Mole Lake did not adjudicate
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 Wisconsin Bands’ claims. In determining that the Wisconsin Bands were not
barred by the issues tried in Mole Lake, the court adhered to the earlier alternate ruling


      32
        The Landowners argued that the Mille Lacs Band was in privity with the Bands
in the Mole Lake litigation by way of membership in a common tribe.
      33
         The State’s brief is not helpful in this regard since it merges the Mole Lake
litigation with the later Indian Claims Commission claims. As our discussion indicates,
these are separate questions requiring separate resolution.
                                           -49-
in Mille Lacs I that the issues were not 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 du
Lac Band was not given a full and fair opportunity to litigate the issue of usufructuary
rights in Mole Lake. The court concluded, “There is no evidence that a resolution of
the usufructuary rights issue was necessary to the final 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 of
these decisions. They argue that the original petition in the Mole Lake proceeding
collaterally estops the Bands from bringing their claims in this litigation. A close
review of the petition refutes their argument. While the parties dispute whether the
usufructuary rights claims in the petition were later litigated, they overlook the fact that
the petition does not include any claims under the 1837 Treaty that underlies 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 the original petition here. Even
if the petition can be read to include usufructuary rights claims, it cannot collaterally
estop the Bands from later bringing claims for usufructuary rights under a different
treaty. 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 of
action35. Under the elements of collateral estoppel set out above, the issue to be barred


       34
        Unlike the Mille Lacs Band, the Fond du Lac Band had intervened in the Mole
Lake litigation, and thus privity was not an issue.
       35
        The two remaining decisions of the Court of Claims mention neither the 1837
Treaty nor the 1850 Executive Order. See Mole Lake, 126 Ct. Cl. 596; Mole Lake, 82
                                           -50-
must have been actually litigated and necessary to the final judgment in the prior action.
Stoebner, 91 F.3d at 1094. The cause 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 United 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
Lake, 139 F. Supp. at 939-40; see also LCO, 700 F.2d at 360 (“Although the judge
discussed the 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 general
discussion of the Executive Order in the swamp land decision cannot support the
conclusion that the Order presented an issue necessary to that decision. We hold that
the usufructuary 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.36




F. Supp. 342.
      36
         Res judicata (claim preclusion) bars a subsequent suit between the same parties
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 State
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-
       The Landowners also urge this court to apply judicial estoppel to various claims
made by the Bands in the Mole Lake proceedings.37 The Bands argue that the
Landowners did not assert this claim in the district court, and that we should therefore
reject it here. None of the district court opinions includes a discussion of judicial
estoppel, nor can we find the argument in the record. Thus, the Landowners are
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 district
court).

B. Indian Claims Commission Litigation

        In 1946, Congress created the Indian Claims Commission (ICC) to hear tribal
claims arising under the Constitution, laws, treaties, or executive orders, and accruing
before August 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 Minnesota
Bands of Chippewa, 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 the
ICC stated that usufructuary rights were “a material consideration” for ceding 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 . . . .”
This original petition was assigned to the ICC’s Docket 18, which was then severed
into three parts: Docket 18-C included claims under the 1837 Treaty and additional
treaties; Docket 18-B included claims under the 1855 Treaty; and Docket 18-U
included claims under the 1854 Treaty.

      37
        For example, in their brief to the Court of Claims on the swamp land claims,
the Wisconsin Bands involved in the litigation stated, “The right of occupancy 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 and
collateral estoppel bar the Bands from arguing otherwise here.
                                          -52-
       On August 9, 1949, the plaintiffs drew up a new petition for Docket 18-C. The
complaint alleged that “there was reserved for the various parties to said treaties, and
the defendant [the United States] undertook to conserve the same, hunting, fishing and
other rights in various lands, all of which were a material consideration for the ceding
thereof.” In the United States’ answer to the complaint, it admitted that the treaties
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 the 1837 Treaty. The ICC then
required the plaintiffs to file a new Docket 18-C complaint, asserting only their claims
under the 1837 Treaty. The order provided that the amended complaint “shall be
considered as having been filed on August 9, 1949, and shall take the place of said
original petition.” On August 5, 1959, the Mille Lacs Band joined the existing
plaintiffs to file an amended complaint pursuant to the court’s order. This amended
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 not
refer to any hunting, fishing, or gathering rights.

       The ICC adjudication of the claims in Docket 18-C spanned several decades and
resulted in 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
Bands’ claims for compensation by valuing the land ceded in the 1837 Treaty for its
“highest and most valuable uses,” which, the Bands’ experts determined, were pine
timber and agriculture. The ICC found that the fair market 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 United States paid the Bands for the land and awarded the Bands $9,027,560
in full satisfaction of their claims. 32 Ind. Cl. Comm. at 200. The ICC did not, in any
of its opinions, mention the hunting, fishing, and gathering rights reserved under Article
V of the 1837 Treaty.

                                           -53-
        In Mille Lacs I, the district court analyzed the ICC proceedings under the
collateral estoppel doctrine, examined the pleadings and the record of the ICC
litigation, and determined that the issue of usufructuary rights was not actually litigated
and necessary to the outcome of the case. Mille Lacs I, 853 F. Supp. at 1137. The
court concluded that the ICC’s award of compensation for the lands based on their
highest and best valuation “does not indicate that the ICC concluded that the
usufructuary rights had been extinguished.” Id. Therefore, 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
that the Bands “are not precluded under the doctrine of collateral estoppel from
asserting their claims in this litigation by the prior litigation before the ICC in Docket
18C because the issue of the 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 not 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 been amended, the old pleading
serves no function in the litigation.” Fond du Lac, slip op. at 16-17. Second, it
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
defendants argued necessitated a contrary conclusion, by noting that the Klamath
decision involved a treaty that was silent as to off-reservation hunting and fishing
rights, whereas 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 Landowners
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 the


                                           -54-
land.38 This measurement, according to the State and the Landowners, represents the
total value of the land. If the measurement was not intended to include usufructuary
rights, these 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 their
claims here.

       The defendants urge that the Supreme Court’s decision in Klamath supports their
collateral estoppel argument. They contend that Klamath stands for the proposition that
an ICC award that is silent as to usufructuary rights automatically 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 estimated 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 Klamath did not mention hunting or
fishing rights. Part of the Tribe’s argument that its usufructuary rights survived the
1901 Agreement was that the absence of any ICC payment for hunting and fishing
rights demonstrated that the parties did not intend for them to be extinguished. Id. at
773. The Supreme Court rejected the Tribe’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 and




      38
         To the extent that the State and the Landowners rely on the original ICC
petition to provide a bar, we agree with the district court’s decision in Fond du Lac that
a complaint 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-
explicitly subtracted that amount from the price to be paid for land so encumbered.”
Id.

       The State and the Landowners seize upon this language, asserting that it requires
this court 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 explicitly
reserves off-reservation usufructuary rights. In Klamath, the treaty at issue was silent
as to off-reservation usufructuary rights. As the district court herein observed:

      The critical distinction 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
      rights 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
      determination as to those rights. If the rights were not reserved, silence would
      imply that 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.


Fond du Lac, slip op. at 20 n.12. The ICC opinions in this case are not cursory. We
cannot accept the conclusion that they extinguished an important body of rights
bargained for and explicitly reserved in a treaty without any mention of those rights.
Cf. Swim v. Bergland, 696 F.2d 712, 718 (9th Cir. 1983) (rejecting the contention that
a party could rely, for collateral estoppel purposes, “solely on general language of
[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”).39


      39
        This conclusion applies equally to the defendants’ arguments under Western
Shoshone Nat’l Council v. Molini, 951 F.2d 200 (9th Cir. 1991). There, the Ninth
Circuit determined that claims for hunting and fishing rights did not survive an ICC
extinguishment of title and correlating award, but it emphasized that the treaty at issue
                                          -56-
       The defendants’ argument also fails to appreciate another difference between this
case and Klamath. In Klamath, the Supreme Court used the ICC’s silence on the issue
of hunting and fishing rights as one factor indicating that the 1901 Agreement
extinguished hunting and fishing rights on ceded lands. 473 U.S. at 773. The Court
concluded, “The absence of specific compensation for the rights at issue is entirely
consistent with our interpretation of the 1901 Agreement.” Id. at 774. The ICC’s
silence was used by the Court to buttress its conclusion as to the interpretation of the
Tribe’s agreement with the United States. To view the ICC’s silence in this case to
mandate preclusion of hunting and fishing rights claims is to give Klamath an
interpretation it simply cannot bear. We therefore hold that the ICC proceedings 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 1858.40 They assert
that under the “equal footing doctrine,” those rights became void when Minnesota was
granted statehood and acquired the sovereign trust and police power over its natural
resources. The district court rejected this as a basis for defeating the Bands’
usufructuary rights. We affirm.




did not expressly reserve hunting and fishing rights. Id. at 202-03.
      40
       The “equal footing” defense was presented below in Fond du Lac and in Mille
Lacs with respect to the Wisconsin Bands, but not with respect to the Mille Lacs Band.
However, because 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 the
Bands. See Shannon v. Ford Motor Co., 72 F.3d 678, 684 (8th Cir. 1996).
                                          -57-
-58-
        On May 11, 1858, the thirty-fifth Congress passed legislation admitting the State
of Minnesota 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 for
rights secured to the Bands. An Act for the Admission of the State of Minnesota into
the Union, ch. 31, 11 Stat. 285 (1858). The equal footing doctrine, a reflection of
Congress’ language admitting the states, “requires that all states admitted into the
Union after the original thirteen states be admitted on ‘equal-footing’ with the original
states; the newly admitted states must have 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 omitted), cert. denied, 116 U.S. 1851 (1996). The basis
for the defendants’ argument for applying the doctrine herein is an amalgamation of two
related 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 Amendment41 to the original thirteen states, and
(2) in the act admitting Minnesota into the Union, Congress’ silence regarding the
Bands’ usufructuary rights constituted an abrogation of those rights.

       The defendants argue that the controlling law is found in Ward v. Race Horse,
163 U.S. 504 (1896), and Repsis, 73 F.3d 982. In Ward, the relevant treaty provision
secured to the Bannock Indians the “right to hunt on the unoccupied lands 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 and 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
analyzed an 1868 Treaty with the same relevant language as Ward. Repsis, 73 F.3d


      41
        The Tenth Amendment to the Constitution provides, “The powers not delegated
to the United States by the Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.”
                                           -59-
at 987. The Tenth Circuit affirmed the dismissal of the Tribe’s action based on rights
under the 1868 Treaty, holding 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 (citing Ward, 163 U.S. at 514). The
Tenth Circuit found important the distinction between treaty-based rights which are
temporary and those which are continuing:

      [T]he equal-footing doctrine does not prevent the United States from
      creating a right in a territory which would be binding on the state upon its
      admission into the Union. However, in order for such a right to be
      binding on the state, it must be a continuing or perpetual right—a right
      that is intended at its formation to be 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 whether the rights were intended to be
“temporary” or “permanent”; second, if the right is temporary, we must decide whether
it conflicts 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
misbehavior standard was understood to modify the President’s discretion, the State
contends that the simple fact that under some scenario the rights could be revoked
proves that they were intended to be temporary in nature. As to the second question,
the State argues that the rights are irreconcilable with its sovereignty, and therefore
were extinguished, because any right to hunt and fish off-reservation in violation of
state law conflicts with its right to control the natural resources within its borders.




                                           -60-
        We reject the application of the equal footing doctrine defense for several
reasons. First, the district court noted the language in the 1837 Treaty securing the
Bands’ usufructuary rights must be distinguished 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). The
treaties in Ward and Repsis reserved rights on the “unoccupied lands of the United
States.” The standard of when “unoccupied” lands become “occupied” is certainly
vague, and could logically include the 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 therein to secure the right to hunt in hunting districts on lands owned by the
United States. See Ward, 163 U.S. at 509-10. Therefore, the Court found the rights
to be tied to the United 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, but
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 rights secured to the Bands
in a treaty with the federal government can bind the State. In United States v. Winans,
198 U.S. 371 (1905), the Supreme Court analyzed a treaty which reserved on ceded
lands the “right 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:




      42
         The defendants argue that because the rights could be revoked by the President
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 the
President, or abrogated by Congress like any other treaty right, does not deprive them
of their “continuing” nature.
                                          -61-
      The extinguishment of the Indian title, opening the land for settlement and
      preparing the way for future States, were appropriate to the objects for
      which the United States held the Territory. And surely it was within the
      competency of the Nation to secure to the Indians such a remnant of the
      great rights they possessed as “taking fish at all usual and accustomed
      places.” Nor does it restrain the State unreasonably, if at all, in the
      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 the
United States had not granted usufructuary rights to the Indians in the territory. “[T]he
treaty was not a grant of rights to the Indians, but a grant of rights from them—a
reservation of those not granted.” Id. at 381. As such, the United States did not
convey to the Indians anything which the State could claim the right to control, but
rather 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 the
argument that Minnesota’s sovereignty is infringed by enforcement of a treaty provision
making federal law prohibiting the sale or introduction of liquor applicable to lands
ceded in the treaty).

       In Tulee v. Washington, 315 U.S. 681 (1942), the Court followed Winans and
reconciled similar off-reservation usufructuary rights with the state’s regulatory
authority. The Court upheld an Indian’s right to rely on off-reservation treaty rights
that conflict with state law unless the state regulations are necessary for conservation
of the resource in question. Id. at 684. We think Winans and Tulee show that
usufructuary rights reserved by the Bands on lands ceded to the United States in a
treaty are not hopelessly in conflict with Minnesota’s regulatory authority.43 Because

      43
     Though the State has stipulated to the applicability of a Conservation Code and
Management Plan, the Counties and Landowners argue that the Bands should be
                                           -62-
the federal government clearly had the power to enter into the 1837 Treaty, and
because 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




subject to existing state regulation rather than writing their own. The district court
held, “The State may not impose its own regulations if the Band can effectively self-
regulate and if tribal regulations are adequate to meet conservation, public health, and
public safety needs.” Mille Lacs II, 861 F. Supp. at 839. The Supreme Court has
consistently rejected arguments that Indian treaties reserve to the Indians no more
fishing rights than those enjoyed by non-Indian citizens. Instead, the Court has
established a “conservation necessity” standard, under which “nontreaty fishermen
might be subjected to any reasonable state fishing regulation serving any legitimate
purpose, [but] treaty fishermen are immune from all regulation save that required for
conservation.” Fishing Vessel, 443 U.S. at 682 (citing Antoine v. Washington, 420
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, these cases mean that the State
must allow treaty fishers to establish their own code. However, the stipulation between
the Bands and the State appears to meet the conservation necessity standard, and thus
we will not disturb it at this time.
      44
         The Landowners called our attention to the Supreme Court’s recent opinion in
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 commanding state regulation here. In fact, the State
voluntarily stipulated to the Bands’ Conservation Code and Management Plan
regarding regulatory issues. In addition, this is a case about state law infringing on
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-
      Finally, the rule that Congress can abrogate treaty rights with the Indians only
when its intention is expressed clearly and plainly counsels against application of the
equal footing 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 Indian treaty rights on the other, and chose to resolve that conflict by
abrogating the treaty.” Id. at 739-40. The defendants have presented no evidence
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 Fishing Vessel, the Supreme Court first articulated the “moderate living
doctrine.” The Court held that certain treaty language entitled the plaintiff Indian tribes
to a presumptive fifty percent share of all harvestable fish passing through “usual and
accustomed” fishing runs. 443 U.S. at 670. The Court then limited its holding by
stating that this presumptive 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 thoroughly 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 Landowners and the Counties contend that this language from Fishing
Vessel should be applied in this litigation to mean that “the level of treaty harvest
allowable is measured 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 Bands


                                           -64-
have achieved a moderate standard of living, and hold that the treaty right has either
been extinguished or limited to exercise for ceremonial purposes only.45

       The district court addressed these arguments in Mille Lacs IV, splitting them into
two separate issues. 952 F. Supp. at 1385-94. First, the court assessed whether
resource allocation was necessary at all. See id. at 1385-89. It determined, agreeing
with the 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 result of the other
party’s harvest of such resource.” Id. at 1389.

      The court then addressed the moderate living doctrine. According to the court,
all defendants below argued that “before the allocation of a resource should be
quantified, the Court must first determine whether or not the Bands have achieved a
moderate standard of living,” looking to all sources of income to make this
determination. Id. The court concluded, examining Fishing Vessel, that

      [w]hat Passenger Fishing Vessel and its predecessors establish is this: if
      an allocation of a resource must be made, such allocation should be
      quantified to fulfill the purposes of the treaty, while at the same time
      recognizing the rights of non-Indian harvesters to a resource. Thus, the
      threshold issue is not whether the Bands have achieved a moderate
      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.



      45
        The Landowners connect this argument to an equal protection argument, urging
that economic need is the only “compelling interest” that might justify “different
treatment” between “two classes of citizens.” Even if this argument were otherwise
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 Bands which signed
the 1837 Treaty.
                                           -65-
       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 Treaty
provides the Bands “the right to continue a way of life based on hunting, fishing and
gathering.” Id. (emphasis omitted). Since the Bands had not yet had the opportunity
to choose to continue with such a way of life, the court declined to address the
moderate living doctrine. Id. at 1394.

        We first address whether the district court erred in refusing to make an
allocation, beginning with a discussion of Fishing Vessel, which is crucial to our
understanding of the issue.46 The litigation which led to the Fishing Vessel decision
was a dispute over tribal fishing rights in the Pacific Northwest, 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 and
accustomed grounds and stations . . . in common with all citizens of the Territory.” In
1970, the United States, on its own and as trustee for seven Indian Tribes, brought suit


       46
         Below, the State had asserted that allocation was necessary because the
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. at
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 allocation on this basis. Although
the Landowners and the Counties term their arguments as driven by the moderate living
doctrine, they hit upon the initial allocation issue. There is of course significant overlap
between the issue of allocation and the moderate living doctrine issue; therefore, we
shall address them both. We do not, however, express an opinion on the
appropriateness of the allocation made in LCO VII. For further explanation of the LCO
litigation and its numerous district court opinions, see Mille Lacs IV, 952 F. Supp. at
1388.
                                            -66-
against the State of Washington, seeking an interpretation of the treaties and an
injunction 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 equal
opportunity to 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 portion of the run, and
not merely a right to compete with nontreaty fishermen on an individual basis.”). It
then noted that “an equitable measure of the common right should initially divide the
harvestable portion of each run that passes through a ‘usual and accustomed’ place into
approximately equal treaty and non-treaty shares, and should then reduce the treaty
share if tribal needs may be satisfied by a lesser amount.” Id. at 685. The district court
“start[ed] with a 50-50 division and adjust[ed] slightly downward on the Indians’ side
when it became clear that they did not need a full 50%.” Id. The Supreme Court
affirmed this apportionment.

        The Court’s discussion of apportionment and the context of the Fishing Vessel
litigation make it clear that the Court’s concern in apportioning the fish harvest was
twofold. First, it saw the district court’s apportionment as necessary to protect the
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 had
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 “realized that some ceiling should be placed on the Indians’ apportionment to
prevent their needs from exhausting the entire resource and thereby frustrating the
treaty 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, 549 (1995) (asserting that the Fishing Vessel litigation began because in
the period preceding the institution of the suit, the anadromous fish stock in
Washington had drastically declined). Second, the Court interpreted the Stevens

                                           -67-
Treaties as securing to “both sides . . . a right to take a fair share of the available fish.”
Fishing Vessel, 443 U.S. at 684-85 (emphasis added). According to this interpretation,
the “in common with” language included 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
the migratory nature of anadromous fish, which hatch in fresh water, migrate to the
ocean where they reach mature size, and eventually complete their life cycle by
returning to the fresh-water place of their origin to spawn. Id. at 662. This life cycle,
and the modern fishing practices of nontreaty fishers, meant that the nontreaty fishers
“had the potential 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
dominated the fisheries and excluded most treaty fishers from participation. Fishing
Vessel, 443 U.S. at 668-69. Thus, Indian treaty rights which had once been exercised
freely had become significantly impinged, leading to the lawsuit and ultimately, to
allocation.

       The dual concerns of the Fishing Vessel Court which led to an equitable
apportionment (and subsequent reduction under the moderate living doctrine) are
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 1434
(refusing allocation because “[n]either party has presented evidence that any particular
species is endangered in the ceded territory”). The State and the Bands have agreed
to a Conservation Code and Management Plan which will govern the Bands’
management of their members’ hunting, fishing, and gathering activities. Mille Lacs
IV, 952 F. Supp. at 1366. The State and the Bands have also agreed to “a series of
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

                                            -68-
commended for doing so. The Conservation Code and Management Plan they have
drawn up is in effect an allocation of resources between treaty and nontreaty harvesters.
It is understandable that the Counties and Landowners, neither of which was a party
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 second 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 “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 result of the other
party’s harvest of such resource.” Mille Lacs IV, 952 F. Supp. at 1389. We agree
that this rule, when combined with an allowance for apportionment for conservation
necessity, is the standard set by Fishing Vessel.

      It must be remembered, however, that the standard was applied only after a
determination that 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 of
nontreaty fishers’ rights under the language of this treaty. In addition, the Counties and
Landowners have not made a showing that their right, whatever it may be, to any
resource has been harmed. For these reasons, we must reject their pleas for
apportionment.
      The above discussion of apportionment, however, does not entirely answer the
defendants’ arguments in this area. The Counties and Landowners contend that the
moderate living doctrine establishes a separate right to apportionment whenever it can
be proven that holders of a treaty right have achieved a moderate standard of living


                                           -69-
through any 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 standard of living doctrine.” Mille Lacs IV, 952 F. Supp. at 1389. The
doctrine was applied by the Supreme Court in Fishing Vessel after the district court had
made an apportionment of a natural resource between treaty and nontreaty users of that
resource. The moderate living doctrine does not establish a right to apportionment, but
is rather a part of the method of apportionment once a court has determined that
division of a resource is necessary. See Fishing Vessel, 443 U.S. at 685-86. Since we
have 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 in a treaty
case such as this is not appropriate unless one of two conditions is met: (1)
conservation of the resource makes apportionment necessary; or (2) the existence and
scope of a party’s right to the resource has been determined, and that right is
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.47


      47
        We note that a portion of Mille Lacs IV could be read to indicate otherwise. At
one point in that opinion the court states that the moderate living doctrine should be
applied to fulfill the purpose and intent of a treaty, “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 provide 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 to
      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 the
                                           -70-
                                           IX.

Additional Defenses Claimed by the Counties

       The Counties appeal the denial of two additional defenses. First, they contend
that because the Wisconsin Bands sued Wisconsin officials for violating their 1837
Treaty rights in LCO, they are barred by res judicata from suing Minnesota officials for
violating the same rights. They contend that Nevada v. United States, 463 U.S. 110
(1983), where the Supreme Court carved out a narrow exception to the mutuality rule,
applies here to bar the Bands’ suit. We disagree. The proceedings in Nevada were
unique; they involved comprehensive water rights adjudication, in which many non-
party water appropriators had relied on a prior decree as much as the parties to the
action, making res judicata appropriate because of the special need to finally quantify
reserved water rights. See Nevada, 463 U.S. at 143-44. The district court was
correct in holding that res judicata does not apply. See Mille Lacs III, slip op. at 34-36.




      threat of state regulation. Until the Bands have had a reasonable
      opportunity to exercise their treaty rights, this Court will not address the
      moderate standard of living doctrine.

Id. at 1394. We are concerned that this portion of this discussion could be
misconstrued to allow 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 the 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,
which determines 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 an
allocation is necessary to conserve a natural resource or a party’s right to a portion of
the resource at issue.
                                           -71-
       Second, the Counties argue that the Wisconsin and Fond du Lac Bands do not
hold usufructuary rights in the Minnesota portion of the 1837 ceded territory because,
allegedly, 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 du
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 scope of the right. The 1837
Treaty does not tie usufructuary rights to historic use or occupancy, and thus the
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 Landowners make myriad additional arguments, including (but not limited
to) the following:48 (1) the Bands’ claims are barred by various statutes of limitations;
(2) the district court lacked § 1983 jurisdiction; (3) Landowners are entitled to a new
Phase I trial because the district court exhibited a “pattern of unfairness” which
prejudiced the Landowners; (4) the government’s survey and sale of land to settlers
constituted a 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



      48
        The Landowners’ briefs do not help us to sort out the substantive arguments
they make. While their combined briefs deal substantively with approximately twenty-
three issues, the briefs list forty-seven issues in a “Statement of Issues” spanning
thirteen pages not numbered to be included in the page count. This technique is, of
course, an attempt to avoid reasonable page limitations imposed by this court. For the
sake of brevity, we have not mentioned each and every argument raised by the
Landowners, but those we do not mention, we have considered and reject.
                                          -72-
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 1837
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 II, 861 F. Supp. at 836. In Phase II, the parties sought a definition of
“private 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 are
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.
§ 97B.001 provides that any person may hunt on private land that fits the above
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 usufructuary rights by owner
consent would potentially provide individual Band members more rights than other
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


                                           -73-
generally 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
allowed to fish and hunt on private lands subject to the discretion of the private
landowners, law enforcement officers “would have the undue burden of having to
contact private land owners to determine if consent was provided to certain individuals
before being able to determine whether laws were violated”).

                                           XII.

Conclusion

       For the reasons set forth above, we affirm the district court’s rulings in Mille
Lacs I, Mille Lacs II, Mille Lacs III, Mille Lacs IV, and Fond du Lac. These five
district court opinions, as well as this appeal, represent only a fraction of the effort
extended by 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 the 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 significant rights and interests maintained by all of the parties in
this litigation. The parties have attempted in good faith by negotiation to resolve their
differences. Failing to do so, the courts have the responsibility to decide the issues
under prevailing rules of law. We are aware of the professed hardships and
compromises all litigants on both sides of this litigation must endure. Yet we are
confident that all parties recognize that we are a court of limited jurisdiction, and do not
possess the power to rewrite the treaties or interpret them contrary to principles of
settled law to accommodate one group over the other.

                                           -74-
      We commend particularly the State of Minnesota and the various Bands for their
willingness to reach agreement regarding the valuable resources in the Conservation
Code and Management Plan. We can only express hope that such spirit of cooperation
will continue to prevail and that all parties will recognize the mutual rights of one
another as now declared in this opinion.

      A true copy.

             Attest:

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




                                        -75-
