Full opinion text
OPINION AND ORDER NO. 2 CRABB, District Judge. Plaintiff Menominee Indian Tribe of Wisconsin brings this action for declaratory and injunctive relief, asserting that it enjoys off-reservation rights to hunt, fish and gather without state restriction on the lands it ceded to the United States in 1831, 1836 and 1848; that it has unextinguished aboriginal rights, derived from long uninterrupted use, to hunt and fish in various Wisconsin waters, including Lakes Winnebago and Michigan, the bay of Green Bay and portions of the Wisconsin River; and that it has the right to harvest Wolf River sturgeon in off-reservation, downstream portions of the Wolf River/Lake Winnebago ecosystem. Defendants have moved to dismiss the ease on the grounds of failure to state a claim upon which relief can be granted, judicial estoppel and issue and claim preclusion. Defendants raised lack of subject matter jurisdiction as another ground for dismissal but plaintiff cured the problem by amending its complaint to delete any claim against the state of Wisconsin or the Wisconsin Natural Resources Board, both of which are immune from suit under the Eleventh Amendment. With respect to counts I through Y of the complaint, I conclude that plaintiff has alleged facts sufficient to state a claim, that questions of fact preclude a decision on defendants’ motion to dismiss on the ground of judicial estoppel and that plaintiff’s suit is not barred by the doctrine of nonmutual issue preclusion. With respect to the last claim relating to the sturgeon harvest, however, I conclude that plaintiff has failed to state a claim upon which it could obtain the relief it is seeking. Courts cannot rewrite treaties in the manner plaintiff has requested, which would permit the tribe to harvest sturgeon outside its reservation free of state regulation as an equitable accommodation for the manmade obstructions that prevent the sturgeon from reaching plaintiff’s reservation. As to this count, defendants’ motion to dismiss will be granted. FACTS ALLEGED IN COMPLAINT Plaintiff Menominee Indian Tribe of Wisconsin is a federally recognized sovereign Indian tribe with a tribal government organized under the Indian Reorganization Act, 25 U.S.C. §§ 461-479, and the Menominee Restoration Act, 25 U.S.C. §§ 903-903L The tribe is self-governing and has the capacity to regulate the usufructuary (hunting, fishing and gathering) activities of its members. It is suing for itself and its members. Defendant Tommy G. Thompson is the governor and chief executive officer of the state of Wisconsin. He is named as representative of all legislative, executive, judicial and administrative bodies of the state and of all citizens of the state. Defendants Herbert F. Behnke, Trygbe A. Solberg, Neal W. Schneider, Betty Jo Nelsen, Mary Jane Nelson, James E. Tiefenthaler, Jr. and Stephen D. Willett are members of the Wisconsin Natural Resources Board, charged by state law with the direction and supervision of the Wisconsin Department of Natural Resources, or DNR. These defendants establish the administrative rules and policies through which the department carries out its natural resource management and regulatory programs. Defendant George E. Meyer is Secretary of the Department of Natural Resources and is responsible for the agency’s management under state statutes and regulations. He is charged with supervising the department’s natural resource management and regulatory programs. Defendant James T. Addis is Administrator of the department’s Division of Resource Management and is responsible for planning and coordinating the development, protection and use of Wisconsin’s forest, fish and wildlife resources through agency programs, policies and regulations. Defendant John E. Fryatt is Administrator of the department’s Division of Enforcement and is charged with planning and directing a coordinated program of law enforcement encompassing all DNR enforcement activities. From time immemorial, plaintiff and its members occupied the shores of Lake Winnebago and the shores and islands of Lake Michigan from the mouth of the Eseanaba River to the mouth of the Milwaukee River, including all of Green Bay. This occupancy continued until well after the establishment of plaintiffs reservation in 1854. Plaintiff and its members hunted, fished and collected plant foods on Lakes Winnebago and Michigan. For a number of years, defendants and their agents, employees, representatives and predecessors in office have adopted natural resource regulations and enforced them against members of the plaintiff tribe. Tribal members attempting to exercise their usu-fructuary rights on lands outside their reservation have suffered confiscation of personal property, the imposition of fines and other money penalties, the imposition of state license fees as a condition for exercising their usufructuary rights and have been subject to threats of such actions. Plaintiff and its members have been deterred and prevented from exercising their usufructuary rights for purposes of subsistence and commerce. As a result, their ability to earn a living from the natural resources outside their reservation has been disrupted and impaired. The area within which plaintiff claims the right to hunt, fish and gather without state restriction is shown in Map 1 below. The area in dispute does not include 1) any of the area plaintiff ceded to the United States for the benefit of the New York Indians in Article First of the Treaty of February 8, 1831, 7 Stat. 342, except for that portion of the ceded lands that is within the boundaries of the Menominee Indian Reservation; 2) any area ceded by the Chippewa Indians in the Treaty of July 29,1837, 7 Stat. 536, or the Treaty of October 4,1842, 7 Stat. 591; and 3) any area ceded by the Stoek-bridge-Munsee Indian Tribe in the Treaty of February 11, 1856, 11 Stat. 679. (Plaintiff reserves for future resolution any issue involving these areas.) Plaintiffs claim to usu-fructuary rights extends to all waters within the area affected by its claims and those lands within this same area that are publicly or privately owned if they are open to the public for the usufructuary activities at issue. On February 8, 1831, plaintiff signed the first treaty of significance to this lawsuit. 7 Stat. 342. In addition to ceding certain land to the United States for the benefit of the New York Indians, in Article Third of the 1831 treaty, the tribe ceded a large tract of land located on the east side of the Fox River and Green Bay in the state of Wisconsin, as shown in Map 2 below. The boundaries of the cession are expressly meandered along the shorelines of Lakes Winnebago and Michigan, from the mouth of the Milwaukee River to the mouth of the Fox River. The ceded area includes all of the Door Peninsula but does not include the waters of either Lakes Michigan or Winnebago. Article Sixth of the 1831 Treaty provided that The Menomonee [sic] Tribe of Indians shall be at liberty to hunt and fish on the lands they have now ceded to the United States, on the east side of the Fox river and Green bay, with the same privileges they at present enjoy, until it be surveyed and offered for sale by the President; they conducting themselves peaceably and orderly. The second paragraph of the same treaty described by metes and bounds the boundaries of the tribe’s lands on the west side of the Fox River. The second paragraph of Article Sixth provided that the boundary, as stated and defined in this agreement, of the Menomonee country, with the exception of the cessions herein before made to the United States, the Me-nomonee claim as their country; that part of it adjoining the farming country, on the west side of Fox river, will remain to them as heretofore, for a hunting ground, until the President of the United States, shall deem it expedient to extinguish their title. In that ease, the Menomonee tribe promise to surrender it immediately, upon being notified of the desire of [the] Government to possess it. In treaties executed on September 3,1836, 7 Stat. 506, and October 18,1848, 9 Stat. 952, plaintiff ceded additional lands in Wisconsin. In Article First of the Treaty of 1836, plaintiff ceded to the United States land on the northwestern shore of Lake Winnebago and on the shore of Lake Michigan from the mouth of the Fox River to the mouth of the Escanaba River, as shown in Map 2 above. In the same article, plaintiff ceded to the United States an area along the Wisconsin River, three miles in width on either side and described as follows: Beginning at a point upon said Wisconsin river two miles above the grant or privilege heretofore granted by said nation and the United States, to Amable Grignon; thence running up and along said river forty-eight miles in a direct line: and being three miles in width on each side of said river; this tract to contain eight townships or one hundred and eighty four thousand three hundred acres of land. On May 12, 1854, plaintiff signed the Treaty of Wolf River with the United States that established the Menominee Reservation in Wisconsin. 10 Stat. 1064. See Map 2 above. This treaty established the Menominee Reservation as “a permanent home ... to be held as Indian lands are held,” for plaintiffs exclusive use and perpetual enjoyment. At the time of the treaty, the harvest of sturgeon from the reservation waters of the Wolf River was an important and integral part of plaintiffs subsistence and figured prominently in plaintiffs cultural and religious practices. The Treaty of 1854 reserved the sturgeon resource of the reservation for the exclusive use of the tribe. Around the turn of the century, obstructions in the form of dams were constructed on the Wolf River downstream of the reservation, preventing the sturgeon from returning to the reservation waters of the river. Although sturgeon still inhabit the Wolf River, Fox River and Lake Winnebago ecosystem, they can migrate upstream only so far as the Shawano Paper Mill dam, a few miles downstream from the reservation. ADDITIONAL TREATY PROVISIONS In addition to the facts alleged in plaintiffs complaint, certain facts drawn from the treaties at issue are relevant to a determination of defendants’ motion. These are summarized below. In the 1831 treaty, plaintiff set out the area of land it claimed as its own, as shown in Map 3 below. [Editor’s Note: Map 3 appears on page 194] On the east side of Green bay, Fox river, and Winnebago lake; beginning at the south end of Winnebago lake; thence southeastwardly to the Milwauky or Man-wauky river; thence down said river to its mouth at lake Michigan; thence north, along the shore of lake Michigan, to the mouth of Green bay; thence up Green bay, Fox river, and Winnebago lake, to the place of beginning. And on the west side of Fox river as follows: beginning at the mouth of Fox river, thence down the east shore of Green bay, and across its mouth so as to include all the islands of the “Grand Traverse;” thence westerly, on the highlands between the lake Superior and Green bay, to the upper forks of the Meno-monee river; thence to the Plover portage of the Wisconsin river; thence up the Wisconsin river, to the Soft Maple river; thence to the source of the Soft Maple river; thence west to the Plume river, which falls into the Chippeway river; thence down said Plume river ... In return for the approximately three million acres plaintiff ceded to the United States in the 1831 treaty (including about 500,000 acres for the use of the New York Indians), it received, among other things, lump sum cash payments, annuities for thirteen years and the promise of the United States to employ persons to teach farming and housewifery, to erect houses for the tribe, to supply implements for farming and husbandry, to support schools, to erect and support a gun and blacksmith shop, to build a saw and grist mill, to employ a miller and to instruct interested young men in the miller’s trade. In the 1836 treaty, the tribe agreed to “cede and relinquish to the United States” more than four million acres in northeastern Wisconsin (as shown in Map 2 above) and to “remove from the country ceded, within one year after ratification of this treaty” and to relieve the United States of certain promises made in the 1831 treaty, such as the payment of fanners, blacksmiths and millers, the appropriations for education, the improvements promised for the reservation and the cattle, and the provision of farming utensils and other miscellaneous tools, utensils and other articles. In return, the tribe received annuities for twenty years and payment of its debts to certain named persons (presumably traders), as well as $3000 worth of unspecified provisions, two thousand pounds of tobacco, thirty barrels of salt and the appointment and payment of two blacksmiths. Twelve years later, plaintiff entered into the Treaty of 1848, under which it agreed to “cede, and do hereby cede, sell, and relinquish to the United States all [its] lands in the State of Wisconsin wherever situated.” 9 Stat. 952. In return, the United States agreed to “give and do hereby give, to said Indians for a home, to be held as Indians lands are held,” a tract of land in west-central Minnesota, consisting of 600,000 acres. The government agreed to pay the tribe $350,000, $200,000 of which was to be paid in annuities to the tribe when the annuities promised in previous treaties had expired. The remainder was to be used for the costs of removal, resettlement and subsistence during the first year following removal; the operation of a grist mill, blacksmith shop and manual labor school; the cost of an investigatory trip to the new lands by a delegation of the tribe; and the tribe’s expenses in arranging to move and to resettle on the new lands. The treaty provided that the tribe would be permitted to stay in Wisconsin on the ceded lands for two more years “until the President shall notify them that the same are wanted.” The tribe’s delegation traveled to Minnesota and found the new lands unsuitable. Its “manifestation of great unwillingness ... to remove to the country west of the Mississippi river, upon Crow Wing, which had been assigned them, and a desire to remain in the State of Wisconsin,” Treaty of 1854, Preamble, 10 Stat. 1064, led to negotiations with the United States for the Treaty of Wolf River of May 12,1854, that was explicitly “supplementary and amendatory to the [1848 treaty].” Id. The tribe agreed to “cede, sell and relinquish to the United States” all the Minnesota lands assigned to it under the 1848 treaty in exchange for the Wisconsin lands along the Wolf and Oconto rivers in east-central Wisconsin that became its reservation, “to be held as Indians lands are held.” Id. In addition to the grant of the reservation lands, the 1854 treaty retained the removal and subsistence payment guarantees provided in the 1848 treaty. FACTS SUBJECT TO JUDICIAL NOTICE I take judicial notice of the following public records and documents filed in public offices. Oneida Indian Nation of New York v. New York, 691 F.2d 1070, 1086 (2d Cir.1982) (even on motion to dismiss, judicial notice may be taken of incontrovertible facts from materials whose authenticity is not in question). According to the Annual Report of the Commissioner of Indian Affairs for 1851, in 1850, R.W. Thompson, a lawyer representing plaintiff, wrote to the United States Secretary of the Interior, advising him of plaintiffs position that it had conveyed more land under the treaty of 1848 than the federal government had acknowledged. Thompson asked that a new treaty be made because the old one was the product of fraud and violence employed by the federal government against the Menominee and a new treaty was the “only legal mode of redressing the wrongs and grievances of which they complain.” Annual Report of the Commissioner of Indian Affairs for 1851, Appendix to Brief of Wisconsin Paper Council at 62. In proceedings before the Indian Claims Commission in 1951, plaintiff asserted that in the treaty it signed in 1848, it had “relinquished and ceded ... all its right, title and interest in and to all its remaining lands in Wisconsin.” Menominee Petition to Indian Claims Commission, June 26, 1951, ¶ 7(i), Defs.’ App. at 260. On July 10, 1951, plaintiff recovered $8,500,000 in separate proceedings before the United States Court of Claims through a settlement. Defs.’ App. at 239-40. Paragraph 3 of the stipulation with the United States provided: 3. In consideration of ... $8,500,000 ... the plaintiff Tribe hereby releases all other claims, whether legal, equitable or moral and whether or not specifically mentioned or referred to herein, which the said Tribe may have against the United States up to the present time, including land claims arising under the Treaties of [1831, 1836, 1848, and 1854]. Defs.’ App. at 242. The July 13, 1951 order of dismissal by the Court of Claims provided that the parties had “compromised and settled their differences” in settlement of both those Court of Claims cases “and other liabilities.” Defs.’ App. at 243. On December 10, 1951, a joint stipulation and motion to dismiss the Indian Claims Commission matter was submitted by the parties with the statement that “this was a result of a compromise of Menominee litigation.” Defs.’ App. at 264-65. The Indian Claims Commission matter was dismissed “with prejudice” on April 24,1952. Defs.’ App. at 276. A memorandum report filed with the Court of Claims recited that the settlement related to claims asserted in seven different proceedings before the court, covering such matters as lost interest on trust funds and improper taking of timber. Defs.’ App. at 247-50. The memorandum makes no reference to land claims. OPINION A. Plaintiff’s Claims In the first count of its complaint, plaintiff contends that it retains treaty-reserved usu-fructuary rights in the territory it ceded under Article Sixth of the Treaty of 1831 on the east side of the Fox River and Green Bay, including “all waters within the area.” In count II, plaintiff contends that under the second paragraph of Article Sixth, it retains treaty-reserved usufructuary rights in that part of Menominee country “adjoining the farming country, on the west side of the Fox river” and all waters within the area. In count III, plaintiff contends that it has aboriginal usufructuary rights in the waters of Lake Michigan and Winnebago and in and along a portion of the Wisconsin River and that these rights derive from its occupancy of the adjacent land and the use of the lakes. Plaintiff contends also that when it ceded the land on the eastern shore of Lake Winnebago and along part of the shore of Lake Michigan in the Treaty of 1831 and the land on the northwestern shore of Lake Winnebago and the remainder of the shoreline of Lake Michigan in the Treaty of 1836, the boundaries of its cession were meandered expressly along the shoreline and did not include any of the waters of either lake. Accordingly, plaintiff contends, it did not relinquish any of its aboriginal rights in the two lakes. In count IV, plaintiff contends that the federal government recognized plaintiffs usufructuary rights in the Wisconsin waters of Green Bay in paragraph second of Article Sixth of the Treaty of 1831 and that neither the Treaty of 1831 nor the Treaty of 1836 extinguished these treaty-reserved rights. In count V, plaintiff contends that it retains aboriginal usufructuary rights to a specific portion of the Wisconsin River recognized by the government in Article First of the Treaty of 1836 and that the treaty does not contain any release or relinquishment of the tribe’s usufructuary rights in the ceded area. In count VI, plaintiff contends that it has a treaty-based right to fish downstream of the obstructions on the Wolf River in order to enjoy its 1854 reservation rights that have been violated by the obstruction of the upstream migration of sturgeon. B. Posture of Case In the majority of cases involving interpretation of treaties, courts have decided the treaties’ meaning either after trial or on a well developed record prepared in connection with a motion for summary judgment. See, e.g., Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F.Supp. 784, 840 (D.Minn.1994) (canons of construction for Indian treaties require “careful examination of the historical record to determine the intent of the parties”), appeal dismissed in part and briefing ordered in part, 48 F.3d 373 (8th Cir.1995); United States v. Bouchard, 464 F.Supp. 1316, 1357 (W.D.Wis.1978) (Indians’ understanding of treaty determined on cross-motions for summary judgment), rev’d on other grounds sub nom. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341 (7th Cir.1983). Defendants contend, however, that there is no prohibition against deciding a treaty ease on a motion to dismiss when the only issues are ones of law or when the plaintiffs have failed to allege facts sufficient to state a claim and they cite United States v. Santa Fe Pacific Railroad, 314 U.S. 339, 344, 62 S.Ct. 248, 250, 86 L.Ed. 260 (1941) (grant of motion to dismiss affirmed for government’s failure to state a claim on which equitable relief could be granted) and Sokaogon Chippewa Community v. Wisconsin, 879 F.2d 300, 301-03 (7th Cir.1989) (affirming grant of motion to dismiss on ground that statute of limitations had run on tribe’s suit against United States). See also Choctaw Nation v. United States, 318 U.S. 423, 430-33, 63 S.Ct. 672, 677-78, 87 L.Ed. 877 (1943) (reversing Court of Claims, which had taken evidence of parties’ understanding of treaty, and holding that findings were inadequate to justify departure from unambiguous language of agreement); United States v. Choctaw & Chickasaw Nations, 179 U.S. 494, 532-542, 552, 21 S.Ct. 149, 164-68, 171, 45 L.Ed. 291 (1900) (same). I agree with defendants that this case can be treated like any other, giving due regard to the canons of construction that govern Indian treaty interpretation. If defendants can show that plaintiff has failed to allege facts sufficient to state a claim on which relief can be granted or that plaintiff is barred as a matter of law from prosecuting the case, they are entitled to prevail on their motion to dismiss. C. Treaty-Reserved Usufructuary Rights — Counts I and II Plaintiff rests its interpretation of the treaties on two arguments. The first is that the construction of the treaties cannot be determined on a motion to dismiss because the court cannot know without taking evidence how the Menominee understood the language. and- import of those treaties at the time they were signed. Thus, although the 1831 treaty appears to contain specific temporal limits on the tribe’s right to hunt and fish on its lands (on the lands it was ceding on the east side of the Fox River and Green Bay until those lands were surveyed and offered far sale by the President and on the lands it was retaining on the west side of the Fox until the President of the United State 's should deem it expedient to extinguish the tribe’s title), the court cannot assume that the Menominee understood their hunting and fishing rights to be limited in duration. To the contrary, plaintiff asserts in its brief, its leaders understood that the treaty allowed the tribe to hunt, fish and gather on the lands and waters in both the ceded and un-ceded territory so long as these activities did not conflict with the settlers on the land. Plaintiff does not explain the historical basis for the tribe’s understanding or attempt to tie its interpretation to any particular treaty provision or extrinsic event. However, plaintiff maintains it should have an opportunity to adduce evidence on such matters as the tribe’s cultural circumstances, its leaders’ ability to understand what they were agreeing to, their intent in signing the treaties and their subsequent actions to the extent they are reflective of the tribe’s understanding of the treaties. Plaintiff’s second argument is that once the federal government reserved usufructuary rights in the ceded lands to the tribe, as it did in the 1831 treaty, it could not extinguish those rights except by explicit provision in a treaty or by other congressional action that evidenced an intent to abrogate these rights. In a variant of this argument, to be taken up in Part D, infra, plaintiff asserts that the government could abrogate aboriginal usu-fructuary rights only in the same manner that it extinguished treaty-reserved usufruc-tuary rights, that is, by explicit provision in a treaty or by congressional action. According to plaintiff, none of the treaties the tribe executed after 1831 contained any explicit reference to the extinguishment of its usu-fructuary rights, either treaty-retained or aboriginal; plaintiff ceded title and occupancy rights in the treaties but did not give up its separate and distinct usufructuary rights. Therefore, it argues, the tribe’s members may continue to exercise those rights, free of any restrictions imposed by the state of Wisconsin. In response to plaintiffs arguments, defendants maintain that plaintiffs treaty-reserved rights were unambiguously temporary and the conditions for extinguishment have been met; the 1836 treaty extinguished the 1831 temporary rights west of the Fox River because it ceded title to those lands and required removal from them; statehood extinguished any and all temporary rights throughout Wisconsin; the 1848 removal treaty extinguished any and all other interests plaintiff had in all Wisconsin lands wherever situated; the United States Supreme Court has ruled that the tribe has lost all its off-reservation usufructuary rights; and plaintiff is judicially estopped from denying extinguishment of its treaty rights because it has taken a prior inconsistent position in formal legal proceedings and is now bound by that position. 1. Factual sufficiency of plaintiffs allegations It is a close question whether plaintiffs allegations in support of counts I and II are sufficient to state a claim. Plaintiffs assertion of the tribe’s understanding of the duration of its usufructuary rights is not fleshed out with supporting detail. It has not explained why its members thought the usu-fructuary rights would continue indefinitely in the face of language that provided that the activities would last only until the lands were offered for sale or until title was extinguished. Plaintiff does not suggest that the tribe understood the phrase, “they conducting themselves peaceably and orderly” to mean that its usufructuary rights (on the east side of the Fox River at least) might continue indefinitely. The tribe does not describe any statements made to its leaders during negotiations that might have led them to such an understanding or cite any specific language in the treaty that might have conveyed such an understanding to the tribe. Plaintiff refers to “hundreds, perhaps thousands, of documents which surround the treaty transactions,” and adds that “[i]t is from these documents as explained by persons steeped in the history of the age and the culture and world view of the Tribe that the Indians’ understanding may be gathered.” PL’s Brief, dkt #25, .at 25. Presumably, plaintiff is familiar with these documents and the opinions of the experts and has grounds for its claims. It would have been helpful had plaintiff revealed these grounds to the court and to defendants. In its brief in opposition to defendants’ motion to dismiss, plaintiff has added some factual allegations to flesh out the spare allegations of its complaint. Plaintiff says that it is necessary to assume that at the time the treaties were signed, the Menominee met their subsistence needs through a mixed agrarian, hunting and gathering economy that focused on the rivers, lakes and upland marshes in the area; that the tribe took a variety of fish species from the rivers and lakes, hunted and trapped inland and collected food plants, including wild rice; that its primary territory was the area along the shore of Green Bay and around Lake Winnebago; that identifiable bands of the Menominee lived on the Wolf, Menominee, Peshtigo, Fox and other smaller rivers, and on Lake Winnebago and Green Bay; and that in entering into treaties with the United States, the Menominee sought to protect a constellation of resources upon which the tribe relied for its subsistence, cultural integrity, political autonomy and land tenure. Defendants do not dispute the importance of the land to plaintiff or plaintiffs desire to obtain the most beneficial result for its members in each of the treaty negotiations. However, the question is not what plaintiff wanted or needed when it entered into negotiations with the United States; it is what plaintiff actually agreed to in its treaty negotiations. On that question, plaintiff is noticeably reticent. Nevertheless, I believe it would be improper to dismiss all of plaintiffs claims at this stage of the litigation. It is well known that Indian treaties must be interpreted as the Indians understood them, that doubtful expressions are to be resolved in favor of the Indians and that treaties must be construed liberally in favor of the signatory tribes. These venerable canons of construction reflect the unequal bargaining positions of the parties that entered into the treaties. The United States was represented by persons “skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves.” Jones v. Meehan, 175 U.S. 1, 11, 20 S.Ct. 1, 5, 44 L.Ed. 49 (1889). The “Indians, on the other hand, [were] a weak- and dependent people, who [had] no written language and [were] wholly unfamiliar with the forms of legal expression_” Id. Accordingly, treaties are not to be construed by “the technical meaning of [their] words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.” Id. Determining the Indians’ understanding may require expert testimony to explain the historical and cultural context in which the Indians viewed the treaty provisions. See, e.g., McClanahan v. State Tax Comm’n of Arizona, 411 U.S. 164, 174, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973) (treaties are not to be read as ordinary contracts agreed upon by parties with equal bargaining positions); Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 122, 74 L.Ed. 478 (1930) (“Doubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good, faith.”); Winters v. United States, 207 U.S. 564, 576-77, 28 S.Ct. 207, 211, 52 L.Ed. 340 (1908) (“ambiguities occurring [in treaties] will be resolved from the standpoint of the Indians”). It is true that “[t]he canon of construction regarding the resolution of ambiguities ... does not permit reliance on ambiguities that do not exist; nor does it permit disregard of the clearly expressed intent of Congress.” South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 506, 106 S.Ct. 2039, 2044, 90 L.Ed.2d 490 (1986). See also Amoco Production Co. v. Gambell, 480 U.S. 531, 555, 107 S.Ct. 1396, 1409, 94 L.Ed.2d 542 (1987) (citing Catawba Indian Tribe); Choctaw Nation, 318 U.S. at 432, 63 S.Ct. at 678 (“even Indian treaties cannot be rewritten or expanded beyond their clear terms to remedy a claimed injustice or to' achieve the asserted understanding of the -parties”). As I have noted, plaintiff has not identified any provision of the treaties it believes to be ambiguous. It may well be that it will be unable to do so even after the record has been developed. However, the treaties are not models of clarity or good draftsmanship. I cannot say with certainty that plaintiff will not be able to demonstrate that the treaties could have been understood reasonably by plaintiffs leaders to mean something other than what they seem to say. .The three major cases involving treaty rights of Indians of the upper Midwest teach the important lesson that ambiguities in treaties are often subtle and not obvious to modem readers. See, e.g., Mille Lacs Band of Chippewa Indians, 861 F.Supp. 784; Lac Courte Oreilles, 700 F.2d 341, United States v. Michigan, 471 F.Supp. 192 (W.D.Mich.1979); aff'd in relevant part, 653 F.2d 277 (6th Cir.), cert. denied, 454 U.S. 1124, 102 S.Ct. 971, 71 L.Ed.2d 110 (1981). In both the Mille Lacs and Lac Courte Oreilles litigation, the courts determined that the Chippewa retained usufructuary rights under a provision in an 1837 treaty that provided that the Chippewa signatory bands could continue to enjoy usufructuary rights on the land they ceded to the United States “during the pleasure of the President of the United States,” a term the courts found to be ambiguous. It could mean an “at ■will” kind of occupancy in which the President was free to order the Chippewa out of the territory at any time for any reason or it could mean he was free to do so only if the Chippewa misbehaved and in.curred his displeasure. The Lac Courte Oreilles produced contemporary reports that supported^ their contention that when the tribes had signed treaties in 1837 and 1842, they understood that “the pleasure of the President” meant their right to hunt, fish and gather would continue undisturbed unless they misbehaved. Lac Courte Oreilles, 700 F.2d at 356; Bouchard, 464 F.Supp. at 1348-49. The Lac Courte Oreilles and other Chippewa bands entered into another treaty in 1842 under which they could continue to exercise their usufructuary rights “until required to remove by the President of the United States.” In 1850, President Zachary Taylor issued an executive order requiring the tribes’ removal. All of the courts that have considered the matter have concluded that the President issued the order without any evidence that the Chippewa had misbehaved. The order was illegal: neither authorized by the treaties nor within the scope of the President’s power. Mille Lacs, 861 F.Supp. at 826; Lac Courte Oreilles, 700 F.2d at 362; Bouchard, 464 F.Supp. at 1350. The Court of Appeals for the Seventh Circuit concluded that without a lawful order of removal, and without any showing that the treaty negotiated in 1854 extinguished the tribes’ usufructu-ary rights, the state of Wisconsin had faded to show that the Wisconsin Chippewa had lost their right to hunt, fish and gather in the ceded territory. Lac Courte Oreilles, 700 F.2d at 364-65. The district court in Minnesota reached the same conclusion with respect to the Mille Lacs band after finding that an 1855 treaty signed did not explicitly extinguish the tribe’s usufructuary rights. In United States v. Michigan, 471 F.Supp. 192, the district court found that certain Michigan Ottawa and Chippewa tribes’ right to fish in the Great Lakes had not been extinguished by white settlement, despite language in a treaty signed in 1836 setting a temporal limit on the Indians’ right of hunting on the ceded lands and other privileges of occupancy “until the land is required for settlement.” The district court held that this language would not have been understood by the Indians as restricting their right to fish in the Great Lakes “because these large bodies of water could not possibly be settled by homes, barns and tilled fields.” Id. at 253. In the court’s view, the Indians might have understood that they were giving up their right to hunt as the land became settled but they would not have understood that their right to fish would be lost; the “western movement of non-Indian settlers could be accommodated without requiring the Indians to relinquish their aboriginal and treaty rights to fish.” Id. Although it does not follow ineluctably from the fact that the treaties with the Chippewa were ambiguous that the treaties the Menominee signed were ambiguous, the sophistication of the analyses in the cited cases sounds a cautionary note against deciding the meaning of the Menominee treaties without a more complete record. Of course, it is not enough for plaintiff simply to assert that because the Michigan Chippewa would have thought the Great Lakes unnecessary for “settlement,” the Menominee would have had the same understanding about the far smaller lakes and rivers in their territory. Plaintiff will have to adduce facts to show why the Menominee would have had such an understanding under the very different circumstances of their tribal culture, their location and the terms of the treaties they executed. However, I cannot say at this stage of the litigation that plaintiff cannot make this showing. Defendants are concerned, and rightly so, about the expense of lengthy and wide-ranging discovery they may have to conduct if this ease is not dismissed at this time. I suspect that the discovery can be narrowed by a prompt determination of the facts upon which plaintiff will rely to support its assertion that its leaders would have reasonably understood the 1831 treaty to mean they had an indefinite usufructuary privilege on the ceded and unceded land described in the treaty. Submission of contention interrogatories to plaintiff should be sufficient to learn the factual basis for its claims. Certainly, plaintiff would not have brought this suit had it lacked a reasonable factual basis for its claims, knowing of the requirements Fed. R.Civ.P. 11 imposes upon parties litigating in federal court. More to the point, a premature dismissal of plaintiffs action would only increase the parties’ ultimate expenditure of time and money. It is a better use of the parties’ and court’s resources to defer decision until a proper record has been developed. Plaintiff points to the Menominee’s continued fishing and hunting in Wisconsin as an indication of its members’ belief that the tribe retained permanent usufructuary rights under the various treaties. Plaintiff alleges, and defendants do not dispute, that the tribe continued to travel and use resources in Wisconsin following the signing of the 1848 treaty and after the establishment of the Menominee reservation in 1854. Although in and of itself such activity is not sufficient to show the understanding of the tribe in signing the various treaties, it could lend support to other evidence showing that the tribe believed it had retained its usufructuary rights. See Lac Courte Oreilles, 700 F.2d at 364 (that Chippewa tribes continued to hunt and fish on ceded territory long after their reservations were created is evidence of Indians’ understanding of treaty). Cf. Sokaogon Chippewa Community v. Exxon Corporation, 805 F.Supp. 680, 689-90, 698-700, 703 (E.D.Wis.1992) (“whatever rights the [Sokao-gon Chippewa] kept after the ratification of the 1854 treaty, they maintained approximately the same nomadic lifestyle they had previously,” but such activity did not give them any right of occupancy in the land), aff'd 2 F.3d 219, 222 (7th Cir.1993) (Sokaogon could not rely on their use of off-reservation lands to establish right to occupy those lands when government had never acknowledged tribe’s right to remain where members were living). See also Bouchard, 464 F.Supp. at 1359 (hunting and fishing on public and undeveloped land was part of frontier way of life for Indians and white people alike; thus, Indians’ practice of roaming on non-reservation lands is not persuasive evidence they were exercising special treaty rights); Healing v. Jones, 210 F.Supp. 125, 147-48, 174 (D.Ariz.1962) (failure to use force to eject Indians from area does not constitute implied agreement to allow Indian settlement; “Actual use and occupancy of land, without more, has no connotation of rightful possession. A trespasser may have actual use and occupancy of land.”), aff'd, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963). However, it is too early in the litigation to assess the nature and weight of the evidence of continued use that plaintiff will introduce to support its claims. This is another reason why dismissal of the ease would be premature without a fully developed record. 2. Legal status of use rights Plaintiffs second argument is based entirely on legal grounds. It relates to the separability of use and occupancy rights and the endurance of use rights. Much of what plaintiff says is indisputable: if a tribe has a treaty-reserved usufructuary right of indefinite duration, that right can continue to exist even if the tribe cedes its right of occupancy in the same land on which the use right runs. United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089(1905); Lac Courte Oreilles, 700 F.2d 341. Such a right can be terminated or abrogated only by explicit language in a later treaty or by congressional action evidencing governmental intent to end the right. Id. at 356 (citing Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968) (articulating for first time requirement that treaty-protected use rights require explicit language for extinguishment). If plaintiff can establish that its leaders would have understood reasonably from the provisions of the 1831 treaty that the Menominee’s usufructuary rights would last indefinitely so long as their activities did not conflict with the settlers, then it would follow that the tribe retains those rights unless defendants can show either that the rights were terminated expressly by a later treaty or that Congress intended and achieved their abrogation. On the other hand, unless plaintiff can prove that the plain language of the treaty does not control the duration of the rights, the question of explicit extinguishment of the usufructuary rights does not arise. It would be unnecessary for the government to provide expressly for the extin-guishment of rights that were to expire of their own accord. The rights would be extinguished by the occurrence of the terminating events, as provided. Plaintiff does not agree with the proposition that recognized use rights may terminate of their own accord under specific provisions of the treaty in which they were recognized. It contends that once the government recognizes a usufructuary right, that right is “severed” from the rights of title and occupancy and can be terminated only by explicit extinguishment in a subsequent treaty or by other congressional action, even if the right recognized by the government is expressly intended to be of a limited duration. As I understand plaintiffs argument, it is that it is not sufficient to provide that a tribe will retain rights until the occurrence of a particular event such as surveying and offering for sale; rather, the government must provide explicitly that the rights will continue until the occurrence, of the particular event at which time the hunting and fishing rights will be extinguished. Moreover, plaintiff argues, defendants seem to be unaware that rights of use and occupancy are separable and that the whole idea of usufructu-ary rights is that they do not depend upon occupancy rights or title to the underlying land. See PL’s Brief, dkt. # 25, at 3 (“[A] critical defect in the State defendants’ argument relates to their failure to understand and accept that use rights are separate and distinct from occupancy rights and title to land.”) Plaintiff has cited no support for its contention that any recognition of a use right severs it from rights of title and occupancy and requires explicit language for extinguishment. It is inconsistent with the law, which recognizes that extinguishment of use rights can occur in accordance with treaty provisions. See Felix S. Cohen, Handbook of Federal Indian Law 468 (1982) (“Indian hunting and fishing rights can be terminated in the same way as other treaty rights. They can be extinguished by the terms of the treaty itself, by Act of Congress, or by a subsequent inconsistent treaty.”) (citing Ward v. Race Horse, 163 U.S. 504, 16 S.Ct. 1076, 41 L.Ed. 244 (1896) (treaty right to hunt on unoccupied lands of United States so long as peace exists between whites and Indians expired when United States conveyed lands to state of Wyoming)). 3. Effect of 1848 treaty Defendants contend that even if plaintiff could show that its usufructuary rights did not expire by their own terms, the tribe would have to show that the 1848 treaty did not extinguish those rights, which is something plaintiff cannot do. Defendants characterize the 1848 treaty as an “obligatory removal” treaty unlike the permissive removal treaties entered into by the Chippewa tribes and one that took effect immediately upon signing, thereby making it an “in prae-senti” treaty, that is, one taking effect immediately. Defendants maintain that the sweeping language of the 1848 treaty would have been understood by the Menominee as a relinquishment of all rights, including those of hunting and fishing. Moreover, even if the tribe did not understand from the words of the treaty that it was relinquishing its usufructuary rights, it would have understood that this would follow from the treaty’s requirement that the tribe leave the area it had occupied for centuries and move hundreds of miles west to an area beyond the Mississippi. In response, plaintiff asserts that the 1848 treaty was null and void because it was the product of fraud and coercion, that it never took effect because the tribe never moved to the new reservation lands and that it was nullified by the 1854 treaty that allowed the tribe to remain in Wisconsin. In addition, plaintiff maintains that the significance of the treaty cannot be determined without exploring the tribe’s understanding of it. Enough questions persist about how the tribe perceived its obligations and cessions under the 1848 treaty to make it improper to hold as a matter of law that plaintiff could never show that the tribe understood the treaty as something far different from what it appears to be, that is, an in praesenti treaty of obligatory removal that by its nature would have had the effect of extinguishing all rights possessed by the tribe, including those of hunting and fishing. For example, the provisions giving the tribe an opportunity to make an exploratory trip to the new reservation and the right to remain in Wisconsin for two more years or “until the President shall notify [the tribe] that the [lands in Wisconsin] are wanted” raise questions about the alleged obligatory nature of the treaty. I cannot say whether the Menominee would have understood it as terminating their occupancy rights on the land, let alone their usufructuary rights. However, I agree with defendants that plaintiff cannot prevail on its assertions that the 1848 treaty can be ignored because it is the product of feud and coercion or because it was nullified by the 1854 treaty. The first of these assertions is wrong as a matter of law; the inaccuracy of the second can be determined by reading the language of the 1854 treaty, the plain meaning of which has not been challenged by plaintiff. It is well settled law that courts may not look behind a treaty to evaluate its legitimacy. Even if a treaty is the product of bribery, feud or duress or executed by representatives of minority factions of the signatory tribes, it is considered the law of the land, subject to the same respect as any law passed by Congress and any treaty signed with a foreign nation. See Cohen, supra, at 68 (citing United States v. New York Indians, 173 U.S. 464, 469-70, 19 S.Ct. 487, 489-90, 43 L.Ed. 769 (1899); Fellows v. Blacksmith, 60 U.S. (19 How.) 366, 372, 15 L.Ed. 684 (1857)). See also Lone Wolf v. Hitchcock, 187 U.S. 553, 567-68, 23 S.Ct. 216, 222, 47 L.Ed. 299 (1903) (Court could not consider contentions that 1892 treaty with Kiowa and Comanche was obtained by fraudulent misrepresentations and concealment, that requisite number of male Indians had not signed and that treaty had been amended by Congress without submitting such amendments to the Indians because these matters were “solely within the domain of the legislative authority and its action is conclusive upon the courts”); Choctaw & Chickasaw Nations, 179 U.S. at 535-36, 21 S.Ct. at 165 (if treaty of 1866 did injustice to Choctaws and Chickasaws, remedy is not with courts, but "with political department of government). Whatever improper or even illegal acts induced the Menominee to sign the 1848 treaty, the treaty cannot be ignored when determining the Menominee’s understanding of the rights they did or did not retain. Plaintiffs suggestion that the 1854 treaty “nullified” the 1848 treaty is not borne out by anything in the language of the later treaty, in which plaintiff ceded all of the Minnesota territoiy granted it in 1848 in return for the twelve townships of land on the Wolf and Oconto Rivers that were to constitute its reservation. The 1854 treaty says explicitly that it is intended to be amen-datory and supplementary to the 1848 treaty. Moreover, it retains many of the guarantees given in 1848, carries over payments that were to have been made under the earlier treaty and makes no reference to rescinding the earlier cession of land. In fact, the treaty provides additional compensation to plaintiff for the lands ceded in the 1848 treaty (presumably in response to R.W. Thompson’s 1850 entreaty to the Commissioner of Indian Affairs on behalf of the Menominee). Both the Supreme Court of Wisconsin and the United States Supreme Court have read the 1854 treaty as making an entirely new grant of rights to plaintiff, rather than as rescinding the 1848 treaty and restoring plaintiff to its prior position and previous rights. See State v. Sanapaw, 21 Wis.2d 377, 382, 124 N.W.2d, 41, 43 (1963) (“1848 treaty ceded all lands in Wisconsin to the United States, and the 1854 treaty did not abrogate this cession, but made an entirely new cession”); Menominee Tribe, 391 U.S. at 405, 88 S.Ct. at 1707 (“By [1854] treaty the Menomi-nees retroceded certain lands they had acquired under an earlier treaty and the United States confirmed to them the Wolf River Reservation.”). Plaintiff may be able to prove that the 1848 treaty did not have the effect defendants say it had, but the tribe cannot show that it was nullified by the 1854 treaty. 4. Acceptance of payments, annuities and supplies In return for signing the 1848 treaty ceding all remaining land in Wisconsin to the federal government and agreeing to remove to western Minnesota, the Menominee were to receive 600,000 acres of land in western Minnesota and various cash payments of more than $350,000. Defendants suggest that such payments are evidence that the tribe knew it was giving up all its usufructuary rights. Why else, they ask, would the government have made such payments if not to reimburse plaintiff for the loss of its usufructuary rights and to provide alternative means of subsistence? Cf. Sokaogon Chippewa Community, 2 F.3d at 225 (acceptance of annual payments provided under treaty of 1842 implies that Sokaogon Chippewa accepted burdens of treaty as well as its benefits and that they surrendered their right of occupancy). The answer to this question is not as obvious as defendants suggest. The offer and acceptance of such payments are ambiguous, at least on the present record. Given that the government expected (and certainly implied to the tribe) that the new Minnesota lands would provide hunting and fishing opportunities, it is not evident that the payments were intended to make up for the loss of usufructuary rights in Wisconsin. It is just as likely that the payments were made to cover the costs of moving to a new location and establishing a new community. It is even more likely that the payments were intended to encourage the tribes to develop agricultural interests to replace their nomadic hunting and fishing existence. Defendants’ argument is not a sufficient reason to dismiss plaintiffs first and second claims. 5. Effect of statehood Defendants contend that Wisconsin’s admission to statehood in 1848 had the effect of extinguishing all of the Menominee’s temporary, title-dependent rights, including the usufructuary rights at issue. Citing Ward v. Race Horse, 163 U.S. 504, 16 S.Ct. 1076, defendants argue that permanent treaty-reserved rights outlast admission to the Union, but temporary rights do not; if it were otherwise, no state would enter into the Union on an “equal footing” with the other states. In Race Horse, the question was whether the state of Wyoming could prosecute a member of the Bannock tribe for killing elk off the reservation in violation of the state’s game laws. The Court concluded that the state could prosecute, despite the language of the treaty entered into with the Bannocks under which a reservation was set aside for the tribe and the members were guaranteed “the right to hunt upon the unoccupied lands of the United States so long as game may be found thereon.” Id. at 505, 16 S.Ct. at 1076. To reach a different conclusion, said the court, would mean that Wyoming would be unable to regulate the killing of game within its borders and to that extent, would have been admitted to the Union, “not as an equal member, but as one shorn of a legislative power vested in all the other States of the Union, a power resulting from the fact of statehood and incident to its plenary existence.” Id. at 514, 16 S.Ct. at 1080. As plaintiff points out, the Race Horse decision has been criticized frequently and has been limited in its scope by subsequent decisions. See, e.g., United States v. Winans, 198 U.S. at 382-84, 25 S.Ct. at 664-65 (sustaining off-reservation treaty fishing rights against “equal footing” arguments). See also Cohen, supra, at 469-70. But see Crow Tribe of Indians v. Repsis, 73 F.3d 982 (10th Cir.1995) (although 1868 treaty reserved right to tribes “to hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts,” court found that tribe’s hunting rights did not survive Montana’s admission to statehood, relying on decision in Race Horse that addressed identical treaty language). Defendants acknowledge the criticism of Race Horse, but maintain that the holding continues to apply to rights that are only temporary. This argument begs the question. It is the nature and scope of the rights that are in dispute. If, in fact, the rights granted plaintiff in the 1831 treaty are temporary in nature, as defendants contend, then the rights expired on their own terms and the equal footing doctrine has no relevance. If, as plaintiff contends, the rights are permanent, then the equal footing doctrine does not affect them. See generally Cohen, supra, at 268 n. 73: “Indian rights depend on determination of the scope of federal treaties and laws, and the Equal Footing Doctrine is irrelevant to that determination.” Whether the rights reserved by plaintiffs were temporary or permanent and whether the Race Horse opinion has any relevance are issues whose resolution must await further development of the factual record. 6. Interrelationship of all treaties Defendants argue that the interrelationship of the treaties reveals a pattern that undermines plaintiffs claims to a continuing usufructuary right.. It is true that the treaties reveal the United States’ pursuit of the goal of securing all of the tribe’s land in Wisconsin for the use of white settlers. Thus, in the 1831 treaty, the government laid out the boundaries of the tribe’s land claim and secured a cession of hundreds of thousands of acres of land in northeastern Wisconsin, while reserving to plaintiff a temporary right to continue to hunt and fish in the ceded territory. In the 1836 treaty, the government secured a second cession of land on the west side of the Fox River, reserving nothing for the tribe, and in 1848, the government secured a cession of the remaining land in Wisconsin that plaintiff occupied, reserving nothing for the tribe and requiring its complete removal to west-central Minnesota. Each treaty built upon its predecessor by continuing forward the obligations undertaken in the previous agreements. The signing of a new treaty did not discharge the parties from their obligations unless specific provision was made for doing so. Having established that a pattern existed, however, defendants have not shown that plaintiff cannot prove that it retained usu-fructuary rights in its land in Wisconsin. This depends on the proof that plaintiff can adduce of its members’ understanding of the treaties, primarily those signed in 1831 and 1848. D. Usufructuary Rights in Waters of Wisconsin 1. Count III — aboriginal rights to hunt and fish in Wisconsin waters Aboriginal title derives from a native people’s occupancy of a specified area continuously from a time preceding the arrival of white settlers. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279, 75 S.Ct. 313, 317, 99 L.Ed. 314 (1955). Aboriginal usufructuary claims to hunt, fish and gather “are founded on immemorial custom and practice.” Cohen, supra, at 442. As the law developed in the United States, native tribes were held to have the right of occupancy of land but title resided in the occupying Europeans. Felix S. Cohen, Original Indian Title, 32 Minn.L.Rev. 28, 48 (1947) (citing Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681 (1823)). This means that as occupying sovereign, the United States may grant third parties title to Indian land but only after terminating the possessory title of the Indians. Id. The federal government grants and protects aboriginal rights “against intrusion by third parties,” Tee-Hit-Ton Indians, 348 U.S. at 279, 75 S.Ct. at 317, and it alone has the power to extinguish aboriginal title by treaty, agreement, or other authorized action of Congress or the Indians. Cohen, 32 Minn.L.Rev. at 53. “[E]xtin-guishment [of aboriginal title] cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards.” United States v. Santa Fe Pacific Railroad, 314 U.S. at 354, 62 S.Ct. at 255. In Santa Fe, the Court held that the Walapai were not divested of their title when a series of congressional and executive actions treated their lands as publicly owned by mistake but that President Arthur’s subsequent order creating a reservation at the request of the Walapai Indians and its acceptance by them “amounted to a relinquishment of any tribal claims to lands based on aboriginal occupancy.” Id. at 357-58, 62 S.Ct. at 257. In support of its claim in count III of the complaint that it has unextinguished aboriginal rights to hunt and fish within the waters of Lake Michigan, Green Bay, Lake Winnebago and part of the Wisconsin River, plaintiff makes the following arguments. Before any white settlers came to Wisconsin and long before any treaties were signed, the tribe occupied the shorelines and used the resources of these waters. This occupancy and use gave the tribe both aboriginal title and separate aboriginal use rights. Although many courts have held that the sovereign can abrogate aboriginal rights at any time and by any means, the situation is different in those parts of the country to which the Northwest Ordinance of 1789 applies. When this ordinance was adopted, it incorporated the promise of the United States government to observe the utmost good faith in its dealings with the Indians and never to take their lands or property from them without their consent. These provisions gave special protection to aboriginal rights, making them subject to extinguishment only by explicit provision. None of the treaties with the Menominee includes any provision extinguishing the tribe’s aboriginal use rights explicitly and, with respect to Lakes Winnebago and Michigan, plaintiff never ceded the waters included w