                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
           ___________

           No. 99-4288
           ___________

United States of America,             *
                                      *
             Appellee,                *
                                      *
      v.                              *
                                      *
David Jon Gotchnik,                   *
                                      *
             Appellant.               *
           ___________
                                          Appeals from the United States
           No. 99-4289                    District Court for the
           ___________                    District of Minnesota.

United States of America,             *
                                      *
             Appellee,                *
                                      *
      v.                              *
                                      *
Mark Francis Stepec,                  *
                                      *
             Appellant.               *
           ___________

           No. 99-4290
           ___________

United States of America,             *
                                      *
             Appellee,                *
                            *
      v.                    *
                            *
Terry Lee Anderson,         *
                            *
             Appellant.     *
           ___________

           No. 99-4292
           ___________

United States of America,   *
                            *
             Appellee,      *
                            *
      v.                    *
                            *
Thomas Jay Anderson,        *
                            *
             Appellant.     *
           ___________

           No. 99-4293
           ___________

United States of America,   *
                            *
             Appellee,      *
                            *
      v.                    *
                            *
David Jon Gotchnik,         *
                            *
             Appellant.     *




                            -2-
                                     ___________

                              Submitted: May 11, 2000

                                   Filed: August 21, 2000
                                    ___________

Before WOLLMAN, Chief Judge, FAGG, Circuit Judge, and HENDREN,1 District
      Judge.
                             ___________

WOLLMAN, Chief Judge.

       In this consolidated appeal, David Jon Gotchnik, Mark Francis Stepec, Terry Lee
Anderson, and Thomas Jay Anderson (appellants) appeal from their convictions in
district court2 for using motorboats and motor vehicles in a wilderness area in violation
of 36 C.F.R. § 261.16(a). We affirm.

                                           I.

       Appellants are members of the Bois Forte Band of Chippewa Indians, a
federally-recognized tribe that was a signatory to the Treaty with the Chippewa of
September 30, 1854 (the Treaty), 10 Stat. 1109. Under the terms of the Treaty, the
Bois Forte and other Chippewa Bands (collectively, the Bands) ceded to the United
States a large tract of land located in northern Minnesota, a portion of which has
become the Boundary Waters Canoe Area Wilderness of the Superior National Forest
(Boundary Waters Area). In return, the signatory Bands retained usufructuary rights


      1
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas, sitting by designation.
      2
        The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.

                                          -3-
in the ceded lands pursuant to Article 11 of the Treaty, which provides that “such of
[the Chippewa Indians] as reside in the territory hereby ceded, shall have the right to
hunt and fish therein, until otherwise ordered by the President.”3 The Bands have
continued to hunt and fish throughout the ceded territory since the adoption of the
Treaty, and in 1988 were granted formal authority to regulate their members’ use of the
ceded lands for these purposes. See Grand Portage Band of Chippewa of Lake
Superior v. Minnesota, Civ. No. 4-85-90 (D. Minn. 1988) (approving consent decree
requiring Bands to regulate hunting and fishing in ceded territory).

       At various times in 1998 and 1999, each appellant was cited for violating 36
C.F.R. § 261.16(a). Section 261.16(a), which is made applicable to the Boundary
Waters Area by the Boundary Waters Canoe Area Wilderness Act of 1978 (Boundary
Waters Act), Pub. L. No. 95-495, § 4, 92 Stat. 1649, 1651, prohibits the possession or
use of a “motor vehicle, motorboat, or motorized equipment” in a national forest
wilderness area “except as authorized by federal law.” In each instance, an appellant
operated a motor vehicle or motorboat in an off-reservation “no-motor” zone of
Basswood Lake in order to reach an off-reservation fishing location within the
Boundary Waters Area. Appellants Gotchnik, Terry Anderson, and Thomas Anderson
used boats equipped with outboard motors. Appellant Stepec, who traversed
Basswood Lake’s frozen waters, used an all-terrain vehicle. In addition, Stepec was
cited for possessing a motorized ice augur.

       Gotchnik and Stepec moved the district court for a judgment of acquittal,
contending that their actions were within the scope of their rights under the Treaty and
thus that section 261.16 does not apply to them. The court denied the motion as it

      3
        Usufructuary rights include the right to “live off the land,” or to make a modest
living by hunting and gathering from the resources of the land. See United States v.
Bresette, 761 F. Supp. 658, 660 (D. Minn. 1991). Article 11 of the Treaty has been
construed to provide the Bands with full usufructuary rights in the ceded territory. See
id. at 661.
                                          -4-
pertained to Gotchnik’s and Stepec’s use of motorized means of transportation,
reasoning that the original parties to the Treaty would not have understood it to include
the use of modern transportation methods to access off-reservation hunting and fishing
areas and, alternatively, that the Boundary Waters Act’s restriction on motor vehicles
is a permissible conservation measure. As for Stepec’s possession of an ice auger,
however, the district court granted the motion. The court cited cases upholding the use
of modern hunting and fishing implements under the Treaty and further found that there
was no sufficient conservation interest to prohibit the use of an ice augur. Gotchnik
and Stepec appealed the court’s partial denial of their motion, and their appeal was
consolidated with the appeals of Terry and Thomas Anderson.

                                          II.

                                           A.

        As a preliminary matter, we note, and the government concedes, that Congress
has not abrogated the Bands’ Treaty right to hunt and fish in the ceded territory located
within the Boundary Waters Area. Although Indian treaties are treated like federal
statutes and can be abrogated or modified by Congress, Congress must clearly express
its intent to do so. See Washington v. Washington State Commercial Passenger Fishing
Vessel Ass’n, 443 U.S. 658, 690 (1979). Thus, an act of Congress abrogates or
modifies a specific treaty right only when there “is clear evidence that Congress
actually considered the conflict between its intended action on the one hand and the
Indian treaty rights on the other, and chose to resolve that conflict by abrogating the
treaty.” United States v. Dion, 476 U.S. 734, 739-40 (1986).

       Here, the Boundary Waters Act does not purport to abrogate or modify the
Treaty. To the contrary, section 17 of the Act expressly provides that “[n]othing in this
Act shall affect the provisions of any treaty now applicable to lands and waters which
are included in the mining protection and the wilderness.” Furthermore, the legislative

                                          -5-
history of the Boundary Waters Act belies any intent by Congress to abrogate the
Bands’ rights under the Treaty. See Rep. of House Comm. on Interior and Insular Aff.
(Rpt. No. 95-1117, Part I) (1978) (“Section 17 makes clear that the legislation is not
to affect the provisions of any treaty which is now in effect. The Boundary Waters are
affected by . . . certain Indian treaties. All these existing agreements are to remain
unaffected by the enactment of this legislation.”).

       Appellants thus clearly possess the right to hunt and fish in the ceded territory
encompassed within the Boundary Waters Area. The question, then, is whether the
Boundary Water Act’s prohibition of the use of motorboats and motor vehicles in this
area, and the government’s prosecution of appellants under this prohibition, offends
appellants’ rights under the Treaty.

                                            B.

       Our interpretation of the Treaty, like all Indian treaties, is guided by special rules
of construction. See Washington State Commercial Passenger Fishing Vessel Ass’n,
443 U.S. at 675-76. We must give effect to the terms of the Treaty as the Indian
signatories themselves would have understood them. See Minnesota v. Mille Lacs
Band of Chippewa Indians, 119 S. Ct. 1187, 1201 (1999); Jones v. Meehan, 175 U.S.
1, 11 (1899). We must also liberally construe any ambiguous term in favor of tribal
interests. See Mille Lacs Band of Chippewa Indians, 119 S. Ct. at 1205; Alaska
Pacific Fisheries v. United States, 248 U.S. 78, 89 (1918). When a term is
unambiguous when reasonably interpreted, however, we may not ignore this
interpretation even if it is against Indian interests. See United States v. Choctaw
Nation, 179 U.S. 494, 535 (1900).

        Appellants argue that the Treaty, by securing their right to hunt and fish, also
secures their right to use modern transportation methods to move about the ceded
territory whenever they are exercising their hunting and fishing rights. First, they

                                            -6-
contend that the signatory Bands understood their hunting and fishing rights to
encompass the use of evolving transportation methods and not to be limited to then-
existing methods. To support their position, appellants cite cases involving treaties
with similar usufructuary right provisions in which courts held that tribal members were
not confined to the use of hunting and fishing implements that existed at the time of the
Treaty signing. See Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp.
784, 838 (D. Minn. 1994), Lac Courte Oreilles Band of Lake Superior Chippewa
Indians v. Wisconsin, 653 F. Supp. 1420, 1430 (W.D. Wis. 1987). The government,
in response, concedes that the Treaty protects appellants’ right to use modern hunting
and fishing techniques, but asserts that it does not similarly authorize the use of modern
means of transportation to reach the most desirable hunting and fishing locations.

        We agree with the government that there is a consequential distinction between
appellants’ use of evolving hunting and fishing implements and their use of modern
means of transportation. The Treaty secures appellants’ right to subsistence hunt and
fish in the ceded territory. The use of modern gaming instruments and techniques goes
to the very essence of these protected activities, whereas the use of the most advanced
means of transportation to reach desired hunting and fishing areas is merely peripheral
to them. A motorboat, all-terrain vehicle, or helicopter for that matter, may make it
easier to reach a preferred fishing or hunting spot within the Boundary Waters Area,
but the use of such motorized conveyances is not part and parcel of the protected act
of hunting or fishing, as is the use of a rifle, ice augur, or other hunting or fishing
instrument.

      That hunting and fishing are distinct from preparatory travel is evidenced by the
provisions of the Boundary Waters Act. Congress included within this Act both section
17, which provides that nothing in the Act shall affect existing treaties, and section 4,
which sets forth extensive limitations on the use of motorized transportation within the
Boundary Waters Area. The juxtaposition of these two provisions indicates that
Congress did not consider motor vehicle use to be part of the Bands’ right to hunt and

                                           -7-
fish. Cf. United States v. Gullickson, 981 F.2d 344, 349 (8th Cir. 1992) (“When
general and specific statutory provisions apparently contradict, it is well-established
that the two may exist together, the specific provision qualifying or limiting the
general.” (citation omitted)). Of course, Congress’s understanding of the Treaty cannot
be substituted for that of the signatory Bands, but we believe that Congress’s
understanding represents a reasonable and unambiguous interpretation of the Treaty
and the Bands have presented no evidence, historical or otherwise, to suggest that the
signatories adhered to a different understanding. See Choctaw Nation, 179 U.S. at 535.

      Thus, we conclude that although the use of evolving hunting and fishing
implements may have been within the understanding of the signatory Bands, the same
cannot reasonably be said of the use of modern modes of transportation to reach
desired hunting and fishing areas.

       Appellants also contend that, even if the signatory Bands did not contemplate the
use of modern transportation methods to access hunting and fishing areas, appellants
must be accorded such a right in order to effectuate their undisputed right to hunt and
fish. As support for their argument, appellants rely on United States v. Winans, 198
U.S. 371 (1905), and Grand Traverse Band of Ottawa and Chippewa Indians v.
Director, Michigan Dep’t of Natural Resources, 141 F.3d 634 (6th Cir. 1998), in which
the Supreme Court and the Sixth Circuit, respectively, held that treaty fishing rights
included an “easement of access” to treaty fishing areas.

       We find that the facts that necessitated a right of access in Winans and Grand
Traverse are not present in this case and therefore that appellants are not entitled to the
“access” to hunting and fishing areas that motorboats and motor vehicles can provide.
In Winans, Yakima Indians sought to obtain access to fishing areas in which they
possessed treaty fishing rights but from which they had been barred by private
individuals who had come to own the land fronting these areas. Finding that the
Yakima had no other reasonable way to access these areas, the Supreme Court granted

                                           -8-
the desired access because “[n]o other conclusion would give effect to the treaty.”
Winans, 198 U.S. at 381. In Grand Traverse, tribal members similarly sued to obtain
access to two of the eight fishing areas in which they possessed the treaty right to
engage in commercial fishing. Tribal members were unable to access these areas
because small boats could not safely reach them and because the municipalities that
owned marinas capable of mooring larger vessels were prohibited by state law from
using the marinas for commercial use. The Sixth Circuit granted the tribe the right to
moor their commercial ships on the municipal marinas, reasoning that the tribe’s fishing
rights included the right to access the designated fishing waters and that without use of
the marinas their fishing right would be “destroy[ed].” See Grand Traverse Band, 141
F.3d at 640.

        Both Winans and Grand Traverse thus involved an impediment that arose after
the treaties were signed and which effectively barred tribal members from exercising
their treaty fishing rights. Neither condition is present here. First, appellants have
precisely the same access to all parts of the Boundary Waters Area that the Bands had
at the time the treaty was signed. There has been no intervening sale of adjoining lands
to obstructive private parties, see Winans, 198 U.S. at 380, nor has the state
subsequently prohibited tribal members from using adjoining lands to access protected
hunting or fishing areas, see Grand Traverse, 141 F.3d at 637 n.2, 638. The prohibition
that does exist--a restriction on the use of motorboats and motor vehicles--limits only
appellants’ use of modern forms of transportation, and such conduct, as we have
already found, was not within the signatories’ understanding of the Treaty.

       Second, the Boundary Water Act’s prohibition on the use of motorboats and
motor vehicles does not effectively preclude appellants from exercising their hunting
and fishing rights, as did the impediments in Winans and Grand Traverse.4 Indeed,


       4
        Appellants argue that the tribal members in Grand Traverse were not, in fact,
effectively denied access to their fishing areas, but rather that the state’s prohibition of
                                            -9-
thousands of non-Band members fish in the Boundary Waters Area in compliance with
this restriction each year, and although appellants possess the right to fish for
subsistence and not merely for sport, they have failed to show how their subsistence
fishing is any more burdened by this prohibition than is non-Band members’
recreational fishing. To be sure, the prohibition on motorboat and motor vehicle use
may make it somewhat less convenient for appellants to reach the most remote regions
of the Boundary Waters Area, but we do not think this inconvenience impermissibly
infringes upon their Treaty rights. See Wisconsin v. Big John, 432 N.W.2d 576, 581
(Wisc. 1988) (finding that boat registration requirement, although a burden, does not
improperly impinge upon tribe’s treaty fishing rights).

       In sum, we conclude that the Boundary Water Act’s prohibition of the use of
motorboats and motor vehicles in the Boundary Waters Area does not offend
appellants’ rights under the Treaty. Having so found, we need not consider whether
the Boundary Waters Act and section 261.16 constitute conservation measures
sufficiently important to abridge appellants’ Treaty rights.

      The judgments are affirmed.


the tribe’s use of the municipal marinas merely made it less convenient for them to
exercise their rights, just as appellants’ access to portions of the Boundary Waters Area
has been made less convenient. As a basis for this argument, appellants point to a
footnote in which the Grand Traverse court noted that the tribe could have reached the
fishing areas at issue from a marina that, by round trip, was five to ten hours away. See
Grand Traverse Band, 141 F.3d at 640 n.10. We disagree that a mere inconvenience
was at issue in Grand Traverse. The court’s footnote merely reinforced its conclusion
that no other marina was available from which the tribe could feasibly exercise its
treaty rights. See id. at 640 (“[T]here simply is no material dispute of fact that [tribal]
fishers reasonably require the ability to occasionally moor their vessels at [the
municipal marinas].” (citation omitted)). Moreover, the court unequivocally stated that
denying the tribe access to the municipal marinas would “destroy [their] rights to
commercially fish.” Id.
                                           -10-
A true copy.

Attest:

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




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