Full opinion text
DECISION AND ORDER WARREN, Senior District Judge. Before the Court are the defendants’ motions for summary judgment. Specifically at issue is the plaintiffs right to possess and occupy 12 mile by 12 mile tract of land in Northern Wisconsin (“the subject territory”). Each of the named defendants has legal title to portions of the subject territory, and the plaintiff has petitioned this Court for declaratory relief upholding their rights in the land, which they allege are protected by treaties more than a century old. I. FACTUAL BACKGROUND A. Chronology The Sokaogon Chippewa Community (“Sokaogon”) is a Native American tribe which has been known in the past as the Sokaogon Band, the Mole Lake Band, the Post Lake Band, the Rice Lake Band, the Pelican Lake Band, the Lake Bands, and the Lost Band. Complaint at 111. The Sokaogon are descendants of the Lake Superior Chippewa tribes that roamed the Northern Wisconsin area before the settling of Wisconsin occurred in the early to mid-1800’s. The members of the tribe currently live on a Federal reservation in Forest County, Wisconsin (the “Mole Lake Reservation”). Complaint at 111. In the middle of the nineteenth century, the United States was rapidly expanding its boundaries. Settlers moved westward relentlessly, and the federal government encouraged this expansion through land grants and homesteading. Clearings sprung up on land that had formerly been inhabited only by Native Americans. When the rights of the settlers and Native Americans conflicted, the government responded by pushing the tribes further west, out of the paths of the settlers. This was accomplished by a series of treaties and Congressional and executive orders, through which the Native Americans ceded their rights to the land in exchange for annuities and small reservations. Brown, Bury My Heart at Wounded Knee, Ch. 1. During this period of expansion, Native Americans already occupying land were deemed as possessing two types of interests in non-reservation land. “Aboriginal title” was the term given to the tribe’s right to occupy land claimed by settlers in fee title and was based upon the “actual, exclusive and continuous occupancy” of the land prior to white settlement. United States v. Bouchard (“Bouchard”), 464 F.Supp. 1316, 1347 (W.D.Wis.1978), citing Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314 (1955); Strong v. United States, 518 F.2d 556, 207 Ct.Cl. 254 (1975). Aboriginal title was good against any other claims to the land except for those of the United States, which could extinguish Native Americans’ title without the payment of compensation normally required by the Fifth Amendment. Bouchard, 464 F.Supp. at 1347; Tee-Hit-Ton, 348 U.S. at 284-85, 75 S.Ct. at 319-20 (aboriginal title is not compensa-ble, since it is a right of occupancy rather than a property right). In comparison, “treaty-recognized title” meant that Congress had recognized the Native Americans’ right to occupy the land as a legally protectible interest, which could be extinguished only by payment of compensation. Lac Courte Oreilles Band v. Voigt (LCO I), 700 F.2d 341, 352 (7th Cir.1983), citing United States v. Sioux Nation, 448 U.S. 371, 415 n. 29, 100 S.Ct. 2716, 2740 n. 29, 65 L.Ed.2d 844 (1980). In the early to mid-19th century, much of this country’s expansion was accomplished through treaties in which Native Americans ceded land to which they had aboriginal title in exchange for treaty-recognized title to smaller portions of that land. Wilkinson, To Feel The Summer In The Spring: The Treaty Fishing Rights of the Wisconsin Chippewa, 1991 Wis.L.Rev. 375, 385. One such treaty was the Treaty of the Chippewa, signed in 1842 (“the 1842 Treaty”), in which Native Americans conveyed a vast tract of land in Northern Wisconsin and the Upper Peninsula of Michigan to the United States. This area began to attract white settlers in the mid-1800’s, as rich mineral deposits had recently been discovered both on and underneath the land. Keller, An Economic History of Indian Treaties in the Great Lakes Region, American Indian Journal, February 1978, 2, 16. The 1842 Treaty was intended to facilitate the settlement of this land and encourage mineral development. Due to its underlying purpose, the 1842 Treaty was commonly called “the Miners’ Treaty.” Exxon, App. at 298. The treaty effectively extinguished any aboriginal title or treaty-recognized title the Lake Superior Chippewa had formerly held over the land. However, the Chippewa retained their “usual privileges of occupancy” until they were “required to remove by the President of the United States.” Article VI of the 1842 Treaty provides that “[t]he Indians residing on the Mineral district shall be subject to removal therefrom at the pleasure of the President of the United States.” Nevertheless, the government did not anticipate a rapid settlement of the area or a need for early removal and both the Chippewa and the Indian agents in the area probably believed that the usual privileges of occupancy could be exercised without interference for generations to follow. United States v. Bouchard, 464 F.Supp. at 1327. The Post Lake Band, designated as the “Lake Bands” by the 1842 Treaty, accepted these terms through Chief Ke-che-Wabishashi, or Chief Martin. The Post Lake Band had used the land ceded under the 1842 Treaty for hunting, fishing, trapping, harvesting wild rice, and collecting maple sugar. Exxon, App. at 1387. They knew that there were copper deposits under the ground, and there is evidence that some earlier tribes had mined the copper near Lake Superior before the eighteenth century. Exxon, App. at 503-29, 536-39. However, there is no indication that the Chippewa had ever mined the land, although they did occasionally collect surface copper and may have used it for religious purposes. Exxon, App. at 441. Apparently, the Chippewa understood that their rights to live, hunt and fish upon the land did not override the United States’ rights to the minerals underneath. One of the objectives of the 1842 Treaty was to reserve the mineral wealth of Wisconsin and Michigan for the government. Witnesses to the treaty negotiations have confirmed the government’s records that the Chippewa were informed that the “principal benefit your great Father expects from your lands at present is, the removal of the minerals which are said to be on them; and not that the whites intend to settle on them at present.” Exxon, App. at 1141, 1007. Many of the tribes with representatives at the negotiations for the 1842 Treaty indicated that the purpose of the treaty was to convey mineral rights to the government. Exxon’s Proposed Findings of Fact, ¶¶ 43-54. Nevertheless, the Chippewa were assured that they would be able to use the land for an indefinite period of time until mining commenced or until white settlers came on to the lands. Exxon, App. at 938, 948, 961, 982, 1007-08. Moreover, they were told that they could remain on the land even after whites had settled there if they were “not in the way of the whites, and live[d] on terms of friendship with them.” Exxon, App. at 938. Development in the ceded territory occurred at an unforeseeable pace and it soon became clear that the Chippewa would not be able to exercise their rights on the land without disturbing the white settlers. In 1850, President Zachary Taylor sought to revoke the Chippewa’s privileges of occupancy and attempted to remove them from the ceded territory completely through the Presidential Removal Order of 1850. He intended to relocate them in Minnesota, west of the Mississippi and far from the proposed paths of westward settlers. In an effort to enforce the Removal Order and lure the Lake Superior bands west of the Mississippi, the Indian Office announced that the annuities due under the 1842 Treaty would be paid on October 15, 1850 in Sandy Lake, Minnesota, rather than at La Pointe in Wisconsin. Although the Chippewa did not wish to leave their homelands, many made the arduous journey to Minnesota to collect supplies. Unfortunately, the Indian agent was delayed in St. Louis and did not arrive in Minnesota until late November. In the meantime, many Native Americans had perished from malnutrition and disease. When the supplies were finally distributed on December 3, the waterways used by the Chippewa were frozen and the tribes were forced to walk all the way back to their camps in Wisconsin. This bitter experience strengthened their resolve to stay in Wisconsin. Danziger, They Would Not Be Moved, Minnesota History, Spring 1973, 175, 177-78 (Exxon App. at 283-284). The plight of the Chippewa garnered national attention, and both whites and Native Americans protested the President’s Removal Order. A band of Chippewa chiefs even travelled to Washington, D.C. in 1852 to secure President Millard Fillmore’s promise not to enforce the order. The President kept his word, and the order was never enforced. However, the Chippewa had become fearful of losing their right to live upon their ancestral homelands. See e.g., United States v. Bouchard, 464 F.Supp. at 1329. In 1853, leaders from several of the Northern Wisconsin tribes wrote a petition to the government in which they explained: We are at last convinced, that the perpetuity of our nation can only be secured by permanent settlements. We are awakened to the necessity of acquiring a possession which shall be our own and may not be overflowed by the multitudes who come from your cities and towns to dwell in the forests. Exxon App. at 1179. In the 1850’s, federal policy toward Native Americans shifted from the westward relocation of Eastern tribes to the setting aside of smaller parcels of land as reservations. Wisconsin’s citizens and legislature did not object to the Lake Superior Chippewa remaining in Wisconsin, as they were “a peaceable, quiet, and inoffensive people.” Bouchard, 464 F.Supp. at 1330. As a result of these events, the Chippewa and the United States negotiated the Treaty of the Chippewa in 1854 (“the 1854 Treaty”). Even though the government may have hoped to remove all of the Lake Superior Chippewa to Minnesota, it soon became evident that this would be impossible. Indian Agent Henry C. Gilbert, who had warned the government in 1853 that the Chippewa would “sooner submit to extermination than comply” with the 1850 Removal Order, was able to negotiate the treaty only by promising the Chippewa reservations in their homeland. “Without yielding these points,” he wrote in October of 1854, “it was idle for us to talk about a treaty.” Bouchard, 464 F.Supp. at 1331; see also Danziger, They Would Not Be Moved, Minnesota History, Spring 1973 at 178. The government hoped that consolidation of Native Americans on reservations would hasten their assimilation into American society and better enable Indian agents to oversee the tribes’ development. Apparently, it had been difficult for the agents to contact tribe members when necessary, due to their nomadic habits. By keeping them on defined parcels of land, Indian agents would know where their charges were at any given time. Concentrating Native Americans on reservations would “induce them to adopt the habits and pursuits of civilized life” as well. Exxon, App. at 698, citing from the Report of the Commissioner of Indian Affairs, November 30, 1857. To allow this policy of concentration and “civilization” to take effect, the 1854 Treaty “set apart, and [withheld] from sale, for the use of the Chippewas of Lake Superior ... tracts of land.” 1854 Treaty, Art. II. The government manifested its intent that the Chippewa should settle upon these reservations by referring to them as “homes hereby set apart for them” in Article XI. The treaty also spoke of the land or points set aside for the Chippewa in Articles V and VIII. Three reservations of land were set aside for the exclusive benefit of the Lake Superior Chippewa in Northern Wisconsin. One of these reservations was for the La Pointe band “and such other Indians as may see fit to settle with them.” 1854 Treaty, Art. II, § 2. There were another two parcels of land near Lac de Flambeau and Lac Courte Oreilles set aside for “the other Wisconsin bands.” 1854 Treaty, Art. II, § 3. A copy of the treaty shows that Chief Me-gee-see and Chief Ne-gig, both of the Post Lake Chippewa, were present at the 1854 Treaty negotiations and signed the treaty as members of the Lac de Flam-beau Band by making their “X” mark. 1854 Treaty (Exxon, App. at 120). Therefore, under the 1854 Treaty, the Post Lake Band became entitled to live at the reservations at La Pointe, Lac de Flambeau, or Lac Courte Oreilles. Regardless of whatever rights the Post Lake Band kept or lost after the ratification of the 1854 Treaty, they maintained approximately the same nomadic lifestyle as they had previously. Contrary to the government’s hopes and expectations, they did not establish a permanent residence at any of these reservations, although they would travel to Lac de Flambeau to collect their annuity payments. Their history throughout the decades following the 1854 Treaty is marked with objections to the government’s attempts to place them on the Lac de Flambeau reservation. D.C. Leach, a government agent, reported in 1863 that several bands of Chippewa refused to move to the Lac de Flambeau reservation. Exxon, App. at 754. In 1879, the Post Lake Band’s council sent a letter to the Commissioner for Indian Affairs, stating: We do not want to move to the Lake Flambeau reservation to which we were apportioned by the treaty of 1854, as this is no agricultural land, but mostly pine, which is coveted now by whites, and it will be only a short time before we will be obliged to sell out then. Exxon, App. at 1455-56. In fact, there was only one instance in which the Post Lake Chippewa even offered to relocate to the reservation, and that was conditioned upon receiving substantial government aid. Exxon, App. at 1346-47. At the same time, the Post Lake Band was demanding a reservation of its own. In 1869, Chiefs Me-gee-see and Ne-gig wrote to the Commissioner of Indian Affairs, stating that they had been induced to sign the 1854 Treaty by promises that they “were not signing away our homes, but that we would have a reservation in the vicinity of Post Lake, where we could fish, gather Rice and make sugar.” Exxon, App. at 1387-88. There are other letters in the record where the Post Lake Chippewa implored the government to set out metes and bounds of the land that was promised to them under the 1854 Treaty. Exxon, App. at 1311, 1452. From this history evolved the saga of a “lost reservation” which had been promised to the Post Lake Chippewa by the government, and a “lost map” that had set forth the metes and bounds of the reservation. Although there are many different versions of this history, they all have a common thread — the Post Lake Chippewa deny signing away their rights of occupancy in 1854 in the land ceded by the 1842 Treaty without indications that they would receive some consideration in the form of land. Some versions state that Chief Me-gee-see was not present at the 1854 Treaty negotiations; others state that his approval of the treaty was contingent upon promises of a reservation for his people that he received from government agents. The Sokaogon believe that an agent met with Chief Me-gee-see within fifteen years after the ratification of the 1854 Treaty and negotiated a reservation for the Post Lake Chippewa. The reservation was set out on a map and a copy was made. En route to Washington, D.C. with a copy of the map, the agent perished in a shipwreck on Lake Michigan and the map disappeared with him. The Chippewa had given the other map to a trader named William Johnson for safekeeping. Johnson either stole it, refused to return it or held it as security for some unknown debts. Apparently, another white trader stole the map from Johnson and demanded money from the Post Lake Band for its return. They did not pay the ransom, for they were convinced that the other copy was safe in Washington, D.C. In any case, there is no tangible document today, but many Sokaogon still believe that this map existed and entitles them to a reservation encompassing the entire subject territory. See Exxon’s Findings of Fact Iflf 84-147 and references therein. Beginning in the late 1880’s, the government began dividing up the Wisconsin reservations into 80 acre allotments, in accordance with the 1854 Treaty. When the Post Lake Bands went up to Lac de Flam-beau to receive their allotments, they were turned away by Chief May-diva ah sung of the Lac de Flambeau Band. Exxon, App. at 1859. Other government documents indicate that the Lac de Flambeau tribes believed that the Rice Lake Chippewa (or the Chippewas living near Crandon) belonged to the L’Anse band in Michigan. Exxon, App. at 1534-1552. Whatever the reason the Post Lake Band did not relocate to the Lac de Flambeau reservation, it is clear that they owned no land at the turn of the century. Until 1934, the members of the Post Lake Band had no designated place of residence. Some of them were assimilated into other tribes through marriage and lived on reservations in Wisconsin and Michigan. Exxon, App. at 1642-44, 1688, 1699-1704, 1804-05,1811. Others crowded onto small tracts of land that had been bought by individual members of the tribe. Id. at 1692, 1858-59. Still others became squatters, living in abandoned lumber camps and other desolate areas. Id. at 1613-14. These Native Americans were forced to move whenever white settlers came along to claim the land. They invariably left quietly and quickly and moved on to find another deserted piece of land. In 1934, the Indian Reorganization Act authorized the Secretary of the Interior to purchase new lands and turn them into Indian reservations. 25 U.S.C. § 465, 467. The Sokaogon received 1,437 acres in 1939 and additional land in 1982. 4 Fed.Reg. 3431-32 (Exxon, App. at 178-79); 47 Fed. Reg. 17337-38 (Exxon, App. at 180-81); 48 Fed.Reg. 343 (Exxon, App. at 182). This is the area known today as the Mole Lake Reservation, which is adjacent to the western edge of the subject territory. Prior to the mid-1970’s, the Sokaogon continued to use the land within the subject territory consistent with the “usual privileges of occupancy.” They would harvest berries in the summer, gather wild rice, hunt and fish. They also conducted tribal rituals near Post Lake. Affidavit of Fred Ackley, Jr. (Exxon, App. at 25-28). B. Exxon’s Mineral Rights Exxon’s predecessors began to acquire their mineral rights to lands in the subject territory in 1850 through a series of statutes. One statute was enacted “for the purpose of aiding in the construction of a railroad,” 11 Stat. 20 § 1, and another “to aid in the construction of a military wagon-road.” 12 Stat. 797, § 1 (Exxon, App. at 138, 142). The remainder of Exxon’s property had been sold initially to private settlers by the United States or the State of Wisconsin under Homestead Acts. Exxon, App. at 131-32,140-41. All but two of the ninety-three land parcels in question have been privately owned since 1884. Exxon’s present interests in publicly-owned land extend to certain subsurface rights under roads owned by the Town of Nashville and an option to buy 880 acres of land from Forest County. Exxon has exercised this option, but as of November 12, 1991, there had been no closing on the land. The Sokaogon currently have the right to exercise their usufructuary privileges upon this land, but these privileges will presumably cease once the land becomes privately-owned. See e.g., Lac Courte Oreilles Band v. State of Wisconsin, 775 F.Supp. 321 (W.D.Wis.1991) (final judgment). Exxon purchased its interests in the subject territory in connection with its “Cran-don Project,” a mine expected to yield tons of zinc, copper, and lead ore. Exxon, App. at 563. While the focus of the project is on the minerals lying under the earth’s surface, a substantial mining operation like the Crandon Project requires surface development as well. Exxon anticipates adding a mine-mill complex, a mine waste disposal facility, a rail spur, two roads, and a waste-water discharge pipeline to its property. Exxon’s Findings of Fact If 6. Although there has been a great deal of money invested in the project for exploration and development, no actual mining has begun. At present, Exxon claims that it is waiting for an economically opportune time to begin harvesting mineral deposits from this land. A favorable environmental impact statement was issued by the Wisconsin Department of Natural Resources in 1986. Exxon, App. at 556-594. Therefore, Exxon is prepared to begin mining once the economic conditions warrant a more significant investment. Affidavit of Fred Ackley, Jr. (Exxon, App. at 25-28). Sometime in the mid-1970’s, Exxon’s land within the subject territory was fenced, which curtailed the Sokaogon from carrying out their activities on the land. In 1986, the tribe filed its first complaint and embarked on the tortuous path which has led to today’s decision. II. PROCEDURAL HISTORY The Sokaogon set forth its original causes of action in a complaint filed on June 6, 1986 in the Eastern District of Wisconsin. It named as defendants the United States of America, the State of Wisconsin, Forest County, Langlade County, and Oneida County. The defendants answered the complaint, and the United States of America moved to dismiss the charges against it on September 3, 1986. Shortly thereafter, the plaintiff moved to amend its complaint to include as defendants others with interests in the subject territory. Exxon was among these additional defendants. The United States’ motion to dismiss was granted as to the original complaint. The plaintiff’s request to amend its complaint was denied, but it was given leave to file a second amended complaint and did so on January 23, 1987. The second amended complaint also included Exxon as a defendant, as well as the United States. Once again, the United States filed a motion to dismiss for lack of subject matter jurisdiction, which was denied without prejudice. At this juncture, the judge presiding over this matter recused himself, and the case was randomly reassigned to this Court. The United States filed a motion for reconsideration of its motion to dismiss. This Court found that the plaintiff was time-barred from pursuing its complaint against the government under section 70K of the Indian Claims Commission Act (25 U.S.C. §§ 70-70n), 28 U.S.C. § 2401(a), and the Quiet Title Act (28 U.S.C. § 2409a(f)). The statutory waiver of its sovereign immunity was ineffective, and consequently, this Court lacked jurisdiction over the United States. After determining that the United States was an “indispensable party” to the litigation under Fed.R.Civ.P. 19(b), this Court found that it did not have jurisdiction over the remainder of the complaint. Furthermore, it held that to continue the action in the absence of the United States would be contrary to equity and good conscience. For these reasons, this Court sua sponte dismissed the entire complaint on August 9, 1988. The plaintiff appealed to the Seventh Circuit, which held that even though the dismissal of the United States as a defendant was proper, the case could proceed in its absence. On July 24, 1990, the case was remanded back to this Court with instructions to proceed in the absence of the United States as a defendant. After engaging in extensive discovery, the State of Wisconsin and Exxon have filed motions for summary judgment based on substantive and procedural arguments. Once the motions were fully briefed, this Court reviewed them and concluded that oral argument could clarify the issues presented. The parties presented their oral arguments on November 12, 1991, and this matter is now ripe for summary judgment review. III. LEGAL FRAMEWORK A.Summary Judgment The standard for summary judgment, was set forth by the Seventh Circuit in Howland v. Kilquist, 833 F.2d 639 (1987). Fed.R.Civ.P. 56(c) provides that a district court shall grant summary judgment ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ When the facts are disputed, the parties must produce proper documentary evidence to support their contentions, and may not rest on mere allegations in the pleadings, Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983), or upon conclusory statements in affidavits. First Commodity Traders v. Heinold Commodities, 766 F.2d 1007, 1011 (7th Cir.1985). In reviewing a grant of summary judgment, all reasonable inferences from the evidence presented must be drawn in favor of the opposing party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 [106 S.Ct. 1348, 1356, 89 L.Ed.2d 538] (1986) ... The mere existence of a factual dispute will not bar summary judgment unless ‘the disputed fact is outcome determinative under governing law.’ Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.1983) {en banc). Id. at 642. The United States Supreme Court further clarified the scope of Fed.R.Civ.P. 56 in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In Celotex, the Court held that the initial burden is on the moving party to demonstrate “with or without affidavits” the absence of genuine issues of material fact and that judgment should be granted as a matter of law in the moving party’s favor. Id., 477 U.S. at 323, 106 S.Ct. at 2552. Once the moving party has met its burden, the opposing party must “go beyond the pleadings” and designate specific facts to support each element of its cause of action, showing there is a genuine issue for trial. Id. at 322-23, 106 S.Ct. at 2552-53. In Anderson, the Court stated that the presence of a genuine issue of fact is to be determined by the substantive law controlling that case or that issue. Id., 477 U.S. at 252, 106 S.Ct. at 2512. The Court added that for purposes of Rule 56, a genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. at 248, 106 S.Ct. at 2510. The evidence must be evaluated in the light most favorable to the nonmovant in that all justifiable or reasonable inferences are to be drawn in its favor. Id. at 255, 106 S.Ct. at 2513. However, a court need not draw every inference in the non-moving party’s favor unless there are facts presented which reasonably support these inferences. LCO I, 700 F.2d at 349. B. Native American Law Because Native Americans were put at a disadvantage in their negotiations with the government, their treaties should be interpreted liberally to compensate for their lack of bargaining power. See e.g., Choctaw Nation v. Oklahoma, 397 U.S. 620, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970); Choctaw Nation v. United States, 318 U.S. 423, 63 S.Ct. 672, 87 L.Ed. 877 (1943); United States v. Shoshone Tribe, 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213 (1938). In Worcester v. Georgia, the Supreme Court held that treaties with Native Americans must be construed as the Native Americans understood them at the time. Worcester, 31 U.S. (6 Pet.) 515, 528, 8 L.Ed. 483 (1832). This general rule was refined and expanded throughout the nineteenth and twentieth centuries as Native Americans ceded more and more of their land to the government, which in turn gave or sold it to white settlers. For instance, in Choctaw Nation v. United States, 119 U.S. 1, 7 S.Ct. 75, 30 L.Ed. 306 (1886), the Supreme Court noted the disparity of bargaining power between the government and the Indians. Jones v. Meehan, 175 U.S. 1, 20 S.Ct. 1, 44 L.Ed. 49 (1899) reminds courts that Native Americans relied upon government-employed translators to inform them of the conditions of the treaties and were not familiar with the white man’s legal system. This is not to say that nonexistent rights should be read into treaties when it is clear that no such rights were intended. Treaties and Congressional acts involving Native Americans are meant to be construed to effect the purposes for which they were executed or enacted. “The underlying premise is that Congressional intent will control.” Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586, 97 S.Ct. 1361, 1363, 51 L.Ed.2d 660 (1977), citing DeCoteau v. District County Court, 420 U.S. 425, 444, 95 S.Ct. 1082, 1092, 43 L.Ed.2d 300 (1975). A court may look to the words of the treaties and the surrounding circumstances in determining the government’s intent. Mattz v. Arnett, 412 U.S. 481, 505, 93 S.Ct. 2245, 2258, 37 L.Ed.2d 92 (1973). If ambiguities exist in the wording of the treaties, they are to be resolved in the Native Americans’ favor, but this “general rule does not command a determination that reservation status survives in the face of congressionally manifested intent to the contrary.” Rosebud Sioux Tribe, 430 U.S. at 587, 97 S.Ct. at 1363. Once Native Americans have treaty-recognized title, it cannot be extinguished by the United States unless compensation is paid. LCO I, 700 F.2d at 352. “[Abrogation of treaty-recognized title requires an explicit statement by Congress or, at least, it must be clear from the circumstances and legislative history surrounding a Congressional act.” Id., citing Mattz v. Arnett, 412 U.S. 481, 505, 93 S.Ct. 2245, 2258, 37 L.Ed.2d 92 (1973). In LCO I, the law was extended to apply to treaty-recognized rights. Because destruction of treaty-recognized rights would also subject the United States to a claim for compensation, Menominee Tribe v. United States, 391 U.S. 404, 413, 88 S.Ct. 1705, 1711, 20 L.Ed.2d 697 (1968), the Seventh Circuit concluded that extinguishing these rights necessitated the same clear showing of Congressional intent that is used for disputes involving treaty-recognized title. LCO I, 700 F.2d at 354 (treaty-recognized rights may not be extinguished by implication). C. The LCO Cases The Western District of Wisconsin, in a series of cases (“the LCO cases”) beginning with United States v. Bouchard, 464 F.Supp. 1316 (1978) and becoming final in March, 1991 with Lac Courte Oreilles Band, et al. v. State of Wisconsin, et al., 775 F.Supp. 321 (W.D.Wis.1991), determined the modern-day usufructuary rights of the descendants of the Lake Superior Chippewa. The Sokaogon joined as plaintiffs in 1983, after the matter was remanded to the district court for the second time in LCO II. State of Wisconsin’s Brief in Support of Summary Judgment at 5. The resulting law and dicta from this string of cases is instructive, and in some situations, controlling. In Bouchard, the court was confronted with three separate complaints requesting essentially the same relief — a declaration of the Lac Courte Oreilles (“LCO”) Band’s rights to hunt, fish and harvest on lands that had been ceded by the treaties of 1842 and 1854. In the portion of the ruling that dealt with the LCO Band’s claim to hunting and fishing rights, the court found that the band’s “usual privileges of occupancy” reserved in the 1842 Treaty had been extinguished on lands other than those reserved specifically under the 1854 Treaty. Because the Chippewa had explicitly retained these rights in earlier treaties, the court found the silence of the 1854 Treaty significant. It concluded, that the Chippewa had ceded nearly all of their rights of permissive occupation that had been reserved in earlier treaties and the usufructuary privileges which accompanied these rights. The only properties on which these rights could be exercised after 1854 were the reservations named in the treaty. The Seventh Circuit reversed the portion of the lower court’s decision pertaining to the tribes’ usufructuary rights. Lac Courte Oreilles Band, etc. v. Voigt (“LCO I”), 700 F.2d 341 (7th Cir.1983). First, the Court concluded that the 1842 Treaty gave the Chippewa the rights of use for a period of time that would be determined by their behavior. If they harassed white settlers, they would lose their rights to the land. However, if there was no breach of the treaty, the government could extinguish the Chippewa’s usufructuary rights only by compensating them, since that would have been a taking under the Fifth Amendment. Because the rights were treaty-recognized rights, a Congressional act would “be construed as extinguishing [them] only if the legislation expressly stated that such was the intent of Congress or if the legislative history and surrounding circumstances made clear that abrogation of treaty-recognized rights was intended by Congress.” LCO I, 700 F.2d at 358. Next, the Seventh Circuit concurred with the lower court’s finding that the Chippewa’s usufructuary rights were not affected by the Removal Order of 1850, since there was never a showing that the Chippewa had harassed any white settlers. The Removal Order was also invalid; President Taylor did not have the power to enforce it because it exceeded the scope of both of the earlier treaties. Id. at 362. Therefore, in 1851, the Chippewa still retained their treaty-recognized rights of occupancy reserved by the 1842 Treaty. In its discussion of the 1854 Treaty’s impact on modern tribes, however, the Seventh Circuit noted that there was no express statement in the 1854 Treaty extinguishing the usual privileges of occupancy. Instead, “the Chippewas believed that they had been promised the right to remain on and use the ceded land unless they misbehaved.” Id. at 364. Further examination revealed that there was no clear Congressional intent to extinguish the privileges. The Chippewa had entered into two earlier treaties in which their usufructuary rights were specifically reserved. Since the Chippewa probably construed the 1854 Treaty as the same type of treaty, the Seventh Circuit found that they had every reason to believe they retained the usual rights. Therefore, the 1854 Treaty could at most imply that the Chippewa’s rights were abrogated. Since “treaty-recognized rights [could not] ... be abrogated by implication,” id. at 365, the LCO Band continued to retain their rights. In remanding the matter back to the Western District of Wisconsin, the Seventh Circuit assumed that the LCO Band’s argument could not be extended to lands that were privately owned. Although LCO I did not set forth any direct guidance as to the Chippewa’s usufructuary rights on privately owned land, the Court opined that the LCO Band’s claim would be inconsistent with evidence showing their knowledge that the land would eventually be used for white settlement. LCO I, 700 F.2d at 365, n. 14. On remand, the district court ruled in part that any usufructuary rights that continued to exist were limited to “those portions of the ceded lands that were not privately owned as of March 8, 1983.” Lac Courte Oreilles Band. v. State of Wisconsin (“LCO II”), 760 F.2d 177, 179 (7th Cir.1985). The judge’s literal interpretation of LCO I was criticized upon appellate review. Apparently, the Seventh Circuit had never meant to lock in the LCO Band’s right to their land use to a designated time. It had found that the land was ceded in 1854 for the eventual purposes of settlement. Although the publicly-owned lands had not been settled as of March 8, 1983, there was no guarantee that they would never be settled. Therefore, the LCO Band’s right to the land was not a perpetual right. It could be extinguished when the land became “privately owned.” Id. at 182. LCO II then clarified LCO Fs discussion of “privately-owned” land. The State of Wisconsin had suggested that once land was privately owned, it should keep that status as per the LCO Band’s usufructuary rights, even if it had been bought back by a public entity. The Seventh Circuit repudiated this contention and stated that usu-fructuary rights could not be “laundered out” of publicly owned land by a mere “passing through.” Id. In Wisconsin, there are parcels of privately-owned land upon which non-Indians may hunt or fish. The Seventh Circuit realized it would be unfair to exclude the Chippewa from this land when others with no treaty-protected rights could freely exercise the same type of privileges. It also recognized problems which might arise if claims were made on “quasi-public” lands, such as those properties on which schools, hospitals or highways were located. However, the Court did not provide specific guidance for these situations, and suggested that a district court should engage in a detailed factual examination in such cases. Id. In its third opinion in this matter, the district court expressed its discomfiture with the Seventh Circuit’s factual finding that the Chippewa had understood that white settlement would extinguish their usufructuary rights. However, bound by the higher court’s decision, it concluded that the Chippewa should at least be able to “enjoy a moderate living” by exercising their reserved rights on the ceded land, regardless of the land’s ownership. Lac Courte Oreilles Chippewa Ind. v. State of Wisconsin, 653 F.Supp. 1420, 1432 (W.D.Wis.1987). Therefore, if the Chippewa could not enjoy a modest living off publicly owned land as a result of a diminution in their usufructuary rights, “appropriate measures must be taken for Chippewa activity on privately owned land to permit the Chippewa to enjoy a modest living.” Id. The final judgment in this string of cases was entered by Chief Judge Crabb on March 19, 1991. Lac Courte Oreilles Band v. State of Wisconsin, 775 F.Supp. 321 (W.D.Wis.1991). While the Native Americans retained their rights to hunt, fish and gather with minimal state regulation, the court clearly limited these activities to lands either owned by public entities or privately-owned lands which were “enrolled in the forest cropland or open managed forest lands program under Wis.Stat. ch. 77 at the time of the contemplated or actual attempted exercise of such rights.” Id. at 323-24. The Sokaogon tribe and its members are bound by this judgment. Id. at 325. The focus of the LCO decisions was on usufructuary privileges rather than the right to possess and occupy land, and the Seventh Circuit bifurcated the general right of occupancy into these two components in LCO I, 700 F.2d 341. There is a limited right to occupy land implicit in the exercise of usufructuary activities since the right to harvest or hunt is meaningless if a person cannot be physically present upon land. In the present action, the Sokaogon have asserted that they are entitled to more than a limited right of permissive occupation. Although the extent to which they wish to occupy and possess the land has not been made clear to this Court, it is apparent that they wish to assert more control over the subject territory than they do at present. IV. DISCUSSION A. Exxon’s ARguments In a voluminous motion for summary judgment, Exxon has set forth various defenses to the Sokaogon’s claims. First, it states that the privileges of occupancy reserved by the 1842 Treaty never extended to Exxon’s surface or mineral interests within the subject territory, because that land will be used for mining or for activities associated with mining. In addition, Exxon argues that the “usual privileges of occupancy” do not extend to land that is privately owned. Exxon further asserts that any rights in the land that the Chippewa retained after 1842 were relinquished in the 1854 Treaty. In its second argument, Exxon points to the fact that the United States had never made the subject territory into a reservation or even treated it like one. The 1854 Treaty did not, by its explicit language, reserve a discrete portion of land for the Post Lake Band. The tenor of communications sent to Washington D.C. by agents in Wisconsin indicated that the Chippewa living in the Post Lake and Rice Lake area were one of the “lost tribes” without a reservation of their own. Although the Sokaogon have claimed that they were promised a reservation by their “lost reservation” and “lost map” arguments, Exxon points to the factual discrepancies contained in the record which show that this claim is not historically consistent. Furthermore, even if the Sokaogon were entitled at one time to retain these privileges, Exxon contends that they must be precluded now because of their failure to bring their claims in a timely fashion. Exxon has also put forth several procedural bases for dismissal pursuant to Federal Rule of Civil Procedure 19. First, it claims that the United States is the only party against whom the Sokaogon have a claim for relief and that Rule 19 also prohibits an adverse judgment against Exxon when there are numerous other third parties with interests in the subject territory who have not been joined as defendants in this matter. B. State of Wisconsin’s Arguments The State of Wisconsin has moved for summary judgment on several additional grounds. First, it argues that the Chippewa’s privileges of occupancy in the land ceded by the 1842 Treaty were extinguished when the United States issued patents for the land to “non-Indian settlers.” Since the land was once privately owned, the rights that were terminated when the land was originally conveyed to the settlers should remain terminated even if the state subsequently receives title from a private entity. Wisconsin also claims that it is immune from suit under the Eleventh Amendment, which precludes a party from bringing an action against a state in federal court unless that state has consented to the court’s jurisdiction. C. The Sokaogon’s Rebuttal In addition to responding to most of the defendants’ specific arguments in support of summary judgment, the Sokaogon have claimed that the nature of the evidence relied upon by Exxon necessitates a trial. Most of the Lake Superior Chippewa could not speak or read English, and yet the record is replete with statements attributed to various Native Americans. The Sokao-gon suggest that these interpretations are tainted and should be subject to cross-cultural analysis by an ethno-historian. First, the Sokaogon point out that many interpreters were presumably “interested parties,” such as traders to whom the Native Americans may have owed money. Next, even if the interpreter was unbiased, the fact remains that there was a cultural gap between the Chippewa and the government agents, and certain nuances and implications may have been lost in the translation. Exxon’s use of the documents is criticized, and the Sokaogon have incorporated expert testimony from one of the LCO cases in its response to illustrate the different meanings various interpretations may give to the “unambiguous” words of a petition or a letter. The Sokaogon have cited to several cases where summary judgment was denied based upon the need for expert testimony at trial. Technograph Printed Circuits v. Methode Electronics, Inc., 356 F.2d 442 (7th Cir.1966); Sonobond Corp. v. Uthe Technology, 314 F.Supp. 878 (N.D.Cal.1970). Since Exxon has not shown that it has relied on an expert in its interpretation of the ancient documents in the record, the Sokaogon claim that it has not met its burden under the summary judgment standard. D. Matters No Longer In Dispute In its response brief, the Sokaogon have conceded that some of the issues raised in the complaint have been resolved conclusively and on the merits. Exxon has suggested that this Court enter judgment in its favor to prevent the possibility of future litigation about these matters. This Court shall examine the facts presented and determine whether Exxon has shown that there are no genuine issues of material fact that would necessitate a trial. (1). The Treaty of 1854 Did Not Provide The Sokaogon With a Reservation of Their Own, Nor Was It Intended to do so Count Two of the Second Amended Complaint alleged that the government had mapped out and delineated a reservation for the Post Lake Band by 1860, and that dispossession of this land deprived the Sok-aogon of the rights and property guaranteed by the 1854 Treaty. The Sokaogon did not dispute the fact that the 1854 Treaty only provides for three reservations in Wisconsin, none of which were granted exclusively to the Post Lake Band. Instead, they claimed that the government induced the Post Lake chiefs to sign the 1854 Treaty by promising them a separate reservation of their own. The subsequent actions of government officials, the Sokaogon added, are in accord with this promise. Thus the “lost reservation” and “lost map” claims arose. Exxon has acknowledged that these claims are a part of the Sokaogon’s lore and are made in good faith; however, it states that the claims are completely contradicted by the actions and intent of United States policymakers at the time the promises were allegedly made and has moved for summary judgment on this claim. Pointing out all the inconsistencies surrounding legends of a “lost reservation” or “lost map,” Exxon argues that the Sok-aogon’s allegations are supported by “a self-contradictory jumble of hearsay, speculation, and conjecture, ... [which] collapse^] when analyzed against the historical record.” Exxon’s Brief at 44. First, Exxon notes that the 1854 Treaty did not, on its face, provide a reservation for the Post Lake Band. One reservation was clearly set aside along Lake Superior for the La Pointe Band and “such other Indians as may see fit to settle with them.” 1854 Treaty, Art. II, § 2. The plain terms of the treaty call for “the other Wisconsin bands” to live on tracts of land set aside near Lac de Flambeau and Lac Courte Oreilles. Id. at § 3. There are no ambiguities in the treaty’s language that could be construed in favor of the Sokao-gon. Furthermore, the alleged promises made by the Commissioner of Indian Affairs, George Manypenny, to Chiefs Me-gee-see and Ne-gig to induce them to sign the treaty should not be accorded great weight, since the 1854 Treaty was executed by two different Indian agents, and Commissioner Manypenny was in Washington, D.C. during the summer of 1854. Finally, even if the Post Lake Band received promises of a reservation, no such promises were clear from the terms of the 1854 Treaty; thus Exxon cannot be subject to these promises. In addition, Exxon argues that the actions of the United States cannot be construed as setting aside a separate reservation for the Sokaogon. While acknowledging the limited existence of de facto reservations, Spalding v. Chandler, 160 U.S. 394, 16 S.Ct. 360, 40 L.Ed. 469 (1896), Exxon has pointed out that the Sokaogon must show “that from what has been done there results a certain defined tract appropriated to certain purposes.” Minnesota v. Hitchcock, 185 U.S. 373, 390, 22 S.Ct. 650, 657, 46 L.Ed. 954 (1902). The United States must have “affirmatively intend[ed]” to treat the tract as a reservation, Strong v. United States, 518 F.2d 556, 563, 207 Ct.Cl. 254 (1975), and must have “approved” the treatment of the land as a reservation. Northern Pacific Ry. Co. v. Wismer, 246 U.S. 283, 288, 38 S.Ct. 240, 242, 62 L.Ed. 716 (1918). The government authority establishing a de facto reservation must be competent, and the boundaries of such a reservation must be defined precisely by writing “or by long continued and consented to occupation within well understood contours.” Bouchard, 464 F.Supp. at 1354. Exxon has claimed that the Sokaogon have failed to show that the United States has treated the subject territory as a reservation. First, the Sokaogon’s claim is contradicted by government policy during the latter half of the nineteenth century. The purposes behind the 1854 Treaty were to open up the interior of Wisconsin for settlement and mining and to “civilize” the Native Americans occupying this land. Although initially, the government intended to situate all the tribes in Northern Wisconsin along the shores of Lake Superior, it finally compromised with the Chippewa and created two interior reservations in response to the demands of the tribes living there. The easiest way for the government to accomplish its goals was to concentrate the Native American population into these relatively small reservations. This would facilitate agents’ contact with the tribes, and at the same time reserve the bulk of land in Wisconsin for settlers and miners. In addition, there is evidence that Indian agents tried to convince the interior tribes to relocate to La Pointe and “colonize” with the other Chippewa along Lake Superior. Exxon contends that any arguments by the Sokaogon concerning negotiations for an interior reservation at that point in time are implausible based upon the government’s conduct and clear intentions. Furthermore, Exxon has set forth evidence showing that Indian agents would not have promised the Post Lake Band a separate reservation, since many agents believed the tribe belonged on an established reservation. In any case, no one with authority ever approved the Post Lake Band’s numerous requests for a reservation. In fact, these requests were rejected expressly at least twice. Exxon’s Brief at 70-71. The government never took any steps in recognizing the subject territory as a reservation, such as providing a blacksmith or teachers. Leaders of the Post Lake Band often commented that the government had never set aside a reservation for them. Finally, Exxon has demonstrated that not even the Sokaogon have presented a consistent set of facts and pleadings. The alleged reservation has never been defined by static boundaries. The size and location of the disputed territory has not remained constant over the years, and there have been times when the “lost reservation” did not include any of Exxon’s land. Throughout this case’s history, the plaintiff’s claims have changed as well. In the original complaint, which did not name Exxon as a defendant, the Sokaogon claimed that they had been promised a reservation, but that one had never been surveyed, nor had boundaries ever been established. Complaint at ¶ 11. The Second Amended Complaint alleged that the reservation “was delimited and mapped by federal officials by the year 1860.” Second Amended Complaint at 1124. Because of these inconsistencies and lack of factual support for the Sokaogon’s claims, Exxon has moved for summary judgment dismissing the entire portion of Count II. The Court finds that the Post Lake Band was characterized by Indian agents as a “lost tribe,” “stragglers,” or “squatters,” indicating that the Sokaogon were viewed as trespassers on the lands they occupied, even though they may have claimed this land as their reservation. They never formally received a reservation, nor have they been able to show that one was set aside for them. The clear words of the 1854 Treaty, as well as its intended purpose, have convinced the Court that the only reservations that the government meant to establish were the ones named in the treaty itself. The Sokaogon have not attempted to rebut the evidence put forth by Exxon and have conceded that they no longer have a cause of action on this count. From the undisputed facts presented, the Court finds that the 1854 Treaty did not confer any rights to a reservation upon the Sokao-gon and enters summary judgment in favor of the defendants on Count II of the Second Amended Complaint. (2). The Sokaogon Have a Limited, But Protectible, Interest in Harvesting Minerals Consistent With Their Usu-fructuary Priviléges Defined in the LCO Litigation Exxon has also asked the Court to find that the Chippewa did not retain any mineral rights under the 1842 Treaty. It claims that the Sokaogon initially asserted that its occupancy rights encompassed the mineral estate under the land, and then later denied these assertions. However, in reading the statements that Exxon has attributed to the Sokaogon, this Court finds that the plaintiffs’ claims have been consistent. The “usual privileges of occupancy” retained by the Post Lake Band included mineral rights as long as the Band was making use of those minerals at the time of the treaty. There is some evidence that copper would occasionally be used in religious ceremonies. Although the Post Lake Band was clearly not engaged in extensive commercial mining operations, it is uncon-troverted that surface minerals played a part, however minimal, in the tribe’s activities. Contrary to Exxon’s assertions, the Sok-aogon’s answers to interrogatories are consistent with this definition of the “usual privileges of occupancy.” In 1987, the Sok-aogon claimed an interest in minerals “that were in use or trade amongst the Chippewa before or at the time of the treaty.” Exxon’s App. at 23. Apparently, these were the minerals that had risen to the surface and were picked up and used by the Chippewa. In another set of interrogatories, the Sokaogon asserted: a right of use of minerals, consistent with the needs of occupancy and its traditional usages. To the extent a reservation was or should have been established under the 1854 treaty, it would have vested in the plaintiff beneficial title to the full mineral estate in the twelve mile square area. Exxon, App. at 74. Although the Sokao-gon’s asserted interest in minerals is negligible compared to Exxon’s, the Court cannot dismiss their rights merely because they were not actively mining and selling copper. Instead, if the Sokaogon’s “usual privileges of occupancy” have survived the 1854 Treaty, then it must follow that they have retained whatever rights to the minerals that they had at the time the treaty was signed. For the purposes of this action, the Court will view the existing “usual privileges of occupancy” as including whatever use of surface copper the Chippewa may have exercised circa 1842. Y. ANALYSIS Having narrowed the issues considerably, Exxon claims that it is entitled to summary judgment on any of a number of grounds. The State of Wisconsin may be entitled to summary judgment on several of Exxon’s grounds, and has set forth two additional grounds upon which summary judgment may be granted for it. The Court finds that summary judgment may be granted in favor of all the defendants on the grounds that the 1854 Treaty abrogated the Sokaogon’s right to possess and occupy the subject territory. Alternative grounds upon which summary judgment may also have been granted for some or all of the defendants will also be addressed. A. The Sokaogon’s Right to Occupy and Possess the Subject Territory At issue is whether the 1854 Treaty extinguished that portion of the Chippewa’s “usual privileges of occupancy” that permitted them to “possess and occupy” the ceded land. This Court finds that those rights have indeed been extinguished and that summary judgment should be granted to all of the defendants. The Court is guided in its decision by the Seventh Circuit’s analysis in LCO I. When reviewing the district court’s decision in Bouchard, the Court looked to the circumstances surrounding the 1854 Treaty to determine whether it was intended to abrogate the LCO Band’s rights under the 1842 Treaty, since there was no direct guidance from the actual wording of the 1854 Treaty. Id. at 362. When this analysis is applied to the facts in the present case, it is apparent that there is a distinction between usufructuary privileges and the right to possess and occupy land under the 1854 Treaty. In LCO I, the Seventh Circuit noted that “the Treaty of 1854 should be held to have abrogated these treaty-recognized rights only if the 1854 Treaty enactment expressly refers to termination of the usufructu-ary rights or if the circumstances and legislative history surrounding the treaty make clear that Congress intended such an abrogation.” Id. at 362. The district court had originally concluded: that by the treaty of 1854, the Chippewa surrendered their rights of permissive occupation in the territory ceded in 1837 and 1842, except to the extent that portions of the territory so ceded were to become parts of the reservations provided for in the treaty of 1854. Bouchard, 464 F.Supp. at 1352. However, the Seventh Circuit reversed this portion of the district court’s order and held that the LCO Band’s usufructuary rights were unaffected by the 1854 Treaty. In finding that the Chippewa’s usufruc-tuary rights survived the 1854 Treaty, the Seventh Circuit examined the nature of treaty-reserved rights. It noted that usu-fructuary rights “depend neither on title nor right of permanent occupancy; rather, they are similar to a profit a prendre.” Id. at 352, citing Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). Although the Chippewa realized that they were relinquishing legal title to the land, it was possible that they did not intend to give up all of their treaty-recognized rights and privileges as well. For these reasons, the Seventh Circuit found that the LCO Band did not know that signing the 1854 Treaty would abrogate these usufructuary rights. It also concluded that the government did not clearly intend to extinguish these rights completely. LCO I, 700 F.2d at 364. The Seventh Circuit cited four factors in support of its conclusion. First, while some Lake Superior Chippewa were practicing agricultural techniques used by the white settlers, the majority of Native Americans survived by hunting and gathering, not farming. There was no evidence that the Chippewa would adopt an agrarian lifestyle as soon as the treaty was ratified. In fact, the Chippewa continued to hunt and gather for years after the treaty’s provisions were enacted, which the Seventh Circuit cited as its second factor. Third, the Chippewa believed that they were free to exercise their usufructuary privileges as long as they did not harass white settlers, and this belief was supported by the events occurring after the abortive 1850 Removal Order. Finally, the fact that the Minnesota Chippewa had received a reservation of usufructuary rights in the 1854 Treaty suggested that the Lake Superior Chippewa felt that their rights were protected as well. LCO I, 700 F.2d at 364. Usufructuary rights like hunting and fishing imply temporary presence and minimal physical occupation of the land. A person may pass over another’s land or use the fruits of that land without asserting any rights to the land.. The products taken from the land through hunting, fishing, and harvesting are renewable and will be available on the land for an infinite time as long as those taking the products exercise a certain degree of restraint. Therefore, this Court agrees that the exercise of usu-fructuary activities is not contingent upon actual ownership of land, since the fee owner retains title and can reap the fruits of his land as well. In contrast, there is a limited amount of land in the world, and in Wisconsin in the mid-1800’s, it appeared to the Native Americans as if they would lose their privileges when others settled upon the land. The Chippewa, including Chief Me-gee-see, recognized that the mere right to occupy would not be sufficient as Wisconsin became more and more crowded with white settlers. In 1853, they sent a “memorial” to the Commissioner of Indian Affairs expressing their desire for reservations of land in order to preserve their nation. The Chippewa expressed their belief that this was the only way for them to acquire “a possession which shall be our own and may not be overflowed by the multitudes who come from your cities and towns to dwell in the forests.” Exxon, App. at 1179. The letter also supports the conclusion that they understood that the right to possess and occupy was inconsistent with public and private settlement of land. The 1842 Treaty did not direct the Chippewa to live in a pa