Full opinion text
LAY, Circuit Judge. I. BACKGROUND A. Introduction One hundred sixty years ago, near Fort Snelling, Minnesota, representatives of the United States and representatives of twelve bands of the Chippewa Nation negotiated a treaty which ceded Indian title to certain lands in the Upper Midwest. Historical documents demonstrate that the government was interested in purchasing the land for purposes of harvesting its pine timber. See 1837 Treaty Journal 131; Letter from Commissioner of Indian Affairs Carey A Harris to Henry Dodge, Wisconsin Territorial Governor, and General W.R. Smith (May 13, 1837). On July 29, 1837, the Bands signed a treaty ceding over thirteen million acres of land in present-day Wisconsin and Minnesota to the United States in exchange for money, goods, and supplies. Treaty with the Chippewas, July 29,1837, 7 Stat. 536. Article V of the Treaty provided, “[T]he privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to the Indians, during the pleasure of the President of the United States.” These usufructuary rights form the subject matter of the present litigation. In 1990, the Mille Lacs Band of Chippewa Indians and some of its individual members (the Mille Lacs Band), later joined by the Fond du Lac Band of Chippewa Indians and some of its individual members (the Fond du Lac Band) and several Wisconsin Bands of Chippewa Indians (the Wisconsin Bands) (collectively “the Bands”) sought a declaratory judgment in federal district court as to the continued existence of their usufructuary rights in the Minnesota portion of the territory they ceded in the 1837 Treaty. The Bands also sought injunctive relief to enforce these treaty rights to hunt, fish, and gather in the ceded lands free of state regulation. 1. Mille Lacs I (Mille Lacs Band of Chippewa Indians v. Minnesota, 853 F.Supp. 1118 (D.Minn.1994)) In the Mille Lacs case, the Mille Lacs Band initially sued the State, the Minnesota Department of Natural Resources, and the Commissioner of Natural Resources (collectively “the State”). Nine Minnesota counties and six Minnesota landowners intervened as defendants, and the United States intervened as a plaintiff. Mille Lacs I, 853 F.Supp. at 1123. The district court bifurcated the Mille Lacs case into two phases. Phase I was to decide whether the Mille Lacs Band’s rights to hunt, fish, and gather under the 1837 Treaty continue to exist and the general nature of any such rights, including whether they extend to lands now or previously in private ownership. Phase II was to decide resource allocation issues and the validity of particular measures to regulate the exercise of the rights. Id. In Mille Lacs I, on cross-motions for summary judgment, the district court held that (1) various delay-based defenses do not bar the Mille Lacs Band’s claims, id. at 1124-26, 1127-28, 1138-39, (2) the Mille Lacs Band and the Commissioner of Natural Resources are persons within the meaning of 42 U.S.C. § 1983, id. at 1126-27, (3) the suit is not barred by the Eleventh Amendment, id. at 1128-29, (4) the Commissioner of Natural Resources is not exempt from suit under the doctrine of qualified immunity and other parties urged by the State are not indispensable, id. at 1129-31, and (5) the Band’s claims are not precluded by res judicata or collateral estoppel, id. at 1132-38. The court also rejected the State’s motion for summary judgment which argued that an 1850 Executive Order and an 1855 Treaty extinguished the Band’s usufructuary rights. Id. at 1142-43. Finally, the court dismissed counterclaims the six Minnesota landowners brought against the United States. Id. at 1143-46. 2. Mille Lacs II (Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F.Supp. 784 (D.Minn.1994)) After a trial held on Phase I issues, the district court ruled that the Mille Lacs Band had a continuing right to hunt, fish, and gather pursuant to the 1837 Treaty. Mille Lacs II, 861 F.Supp. at 841. Specifically, the court held that neither the 1850 Executive Order nor the 1855 Treaty extinguished the usufructuary rights reserved in the 1837 Treaty. Id. at 823-35. In addition, the court held that the usufructuary rights reserved by the Band included the rights to harvest resources for commercial purposes, and were not limited to use of any particular techniques, methods, devices or gear. Id. at 838. Finally, it ruled that any regulation imposed by the State must be necessary to ensure public health and safety, and that the State could not impose its own regulations if the Chippewa could establish tribal regulations adequate to meet conservation, public health and public safety needs. Id. at 838-39. 3. Mille Lacs III (Mille Lacs Band of Chippewa Indians v. Minnesota, No. 3-94-1226 (D.Minn. Mar. 29,1996)) After the Phase I order in Mille Lacs II, several Wisconsin Bands of Chippewa were allowed to intervene as plaintiffs. The State moved for summary judgment against the Wisconsin Bands, arguing that previous litigation before the Court of Claims and the Indian Claims Commission barred their claims, and that a treaty signed by the Wisconsin Bands in 1854 extinguished any usu-fructuary rights guaranteed in the 1837 Treaty. Mille Lacs III, slip op. at 7. The Counties moved for summary judgment against the Wisconsin Bands as well, arguing that at the time of the 1837 Treaty, the Wisconsin Bands did not occupy lands or exercise hunting and fishing rights in Minnesota, and that this fact barred their claim. The Counties also argued, despite the ruling in Mille Lacs I, that the 1850 Executive Order extinguished the Wisconsin Bands’ rights. Id. The six Minnesota landowners also moved for summary judgment against the Wisconsin Bands, and the Wisconsin Bands and the Mille Lacs Band moved for summary judgment dismissing various defenses. Id. at 7-8. The district court issued summary judgment in favor of the Wisconsin Bands, and denied the defendants’ motions for summary judgment. Id. at 41-42. 4.Fond du Lac (Fond du Lac Band of Chippewa Indians v. Carlson, No. 5-92-159 (D.Minn. Mar. 18, 1996)) In 1992, the Fond du Lac Band brought a separate suit against state officials, also claiming continuing rights to hunt, fish, and gather pursuant to the 1837 Treaty and its 1854 Treaty. Two Minnesota landowners intervened as defendants. The district court issued a bifurcation order similar to the order signed in the Mille Lacs case. In October 1994, the court held that the Fond du Lac Band’s claims were not barred by Eleventh Amendment, indispensable parties or statute of limitations defenses. This court affirmed the rejection of the Eleventh Amendment defense in an interlocutory appeal. Fond du Lac Band of Chippewa Indians v. Carlson, 68 F.3d 253 (8th Cir.1995). In March 1996, the district court issued a ruling on Phase I issues, holding that the Fond du Lac Band retains hunting, fishing, and gathering rights under both the 1837 Treaty and the 1854 Treaty. 5. Mille Lacs IV (Mille Lacs Band of Chippewa Indians v. Minnesota, 952 F.Supp. 1362 (D.Minn.1997)) In June 1996, the district court consolidated Phase II of the Mille Lacs case with the portion of the Fond du Lac case relating to the 1837 Treaty. In the consolidated Phase II, the State and the Bands stipulated to a Conservation Code and Management Plan, under which tribal hunting, fishing, and gathering would be regulated. Though the State and the Bands were able to resolve many issues through this stipulation, some issues remained unresolved, and were submitted to the district court on motions for summary judgment. On January 29, 1997, the district court issued an order resolving these issues. It approved the Conservation Code and Management Plan and rejected defendants’ arguments to make a further allocation of the resources affected by the Code and Plan. Mille Lacs IV, 952 F.Supp. at 1385-94. The court also held that exercise of treaty rights on private lands would be limited to those open to the public by operation of state law, but that the Bands may not hunt on unposted, unenclosed, nonagricultural lands open to public hunting pursuant to state statute. Id. at 1376-79. The Fond du Lac case and the Mille Lacs case were consolidated on appeal. The basic issues presented on appeal are (1) whether the suit is barred in federal court under the Eleventh Amendment; (2) whether the 1850 Executive Order issued by President Zachary Taylor revoked the Bands’ usufruc-tuary rights; (3) whether subsequent treaties of 1854 and 1855 have extinguished the usu-fructuary rights; (4) whether the claims asserted by the Bands have been precluded by prior litigation; (5) whether the Bands’ rights were repealed, under the equal footing doctrine, by Minnesota’s admission into the Union; (6) whether the rights, if they still exist, are limited by the “moderate living” doctrine; (7) whether several other affirmative defenses were erroneously rejected by the district court; and (8) in the Bands’ cross-appeal, whether the district court erred in barring the Bands from hunting on un-posted, unenclosed, nonagricultural lands open to public hunting. II. Eleventh Amendment We turn initially to the Landowners’ arguments that these suits are barred in federal court because of the sovereign immunity of the State of Minnesota. The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The Bands are accorded the same status as a foreign sovereign. Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 2581, 115 L.Ed.2d 686 (1991). In Mille Lacs, the State raised the defense of sovereign immunity before the district court, which rejected it on two grounds. First, the court noted that the claims by the United States are not barred by the Eleventh Amendment, citing Blatchford, 501 U.S. at 782-83, 111 S.Ct. at 2582-83, and United States v. Minnesota, 270 U.S. 181, 195, 46 S.Ct. 298, 301, 70 L.Ed. 539 (1926). Mille Lacs I, 853 F.Supp. at 1128. Therefore, the court held that because “the Band and the United States seek the same relief in this action, Minnesota’s sovereign immunity is not compromised.” Id. (citing Arizona v. California, 460 U.S. 605, 613-14, 103 S.Ct. 1382, 1388-89, 75 L.Ed.2d 318 (1983)). Second, the court ruled that the Band’s claim for prospective relief against the Commissioner of Natural Resources in his official capacity falls within the Eleventh Amendment exception set out in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Mille Lacs I, 853 F.Supp. at 1128-29. As to the court’s first holding, the Landowners urge that the United States did not initiate the suit and appears only as a trustee intervening in the action. This observation, while true, is not controlling. The United States has fully participated in all proceedings on behalf of the Bands. As an intervenor, it has the right to continue the suit even without the presence of the Bands. See Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 1706-07, 90 L.Ed.2d 48 (1986). Therefore, because the United States has the right to bring these claims in federal court, the State’s sovereign immunity is not compromised and the Eleventh Amendment does not bar these claims. See Arizona v. California, 460 U.S. at 614, 103 S.Ct. at 1388-89 (“Nothing in the Eleventh Amendment has ever been seriously supposed to prevent a State [from] being sued by the United States.”) (internal quotations omitted). In Fond du Lac, the district court denied the defendant state officials’ motion for summary judgment based on Eleventh Amendment immunity. Our affirmance rejected this defense on the ground that the claims fell within the Ex parte Young exception to the Eleventh Amendment. Fond du Lac, 68 F.3d at 256-57. As such, that ruling is the law of the ease in Fond du Lac, unless superseded by an intervening Supreme Court case. See Uhl v. Swanstrom, 79 F.3d 751, 755 (8th Cir.1996) (noting that the “ ‘law of the case’ doctrine does not apply when an intervening decision from a higher tribunal renders a prior determination erroneous”). The Landowners filed a 28(j) letter, with which the State concurred, asserting that this court’s ruling in Fond du Lac was in error and has now been superseded by the Supreme Court’s decision in Idaho v. Coeur dAlene Tribe of Idaho, — U.S. -, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). We disagree. In Coeur dAlene, the Coeur d’Alene Tribe and several individual tribe members sued the State of Idaho and various state officials and agencies in federal court “[a]l-leging ownership in the submerged lands and bed of Lake Coeur d’Alene and of the various navigable rivers and streams that form part of its water system.” Id. at-, 117 S.Ct. at 2032. The Court held that the action was barred in federal court because it was the “functional equivalent of a quiet title action which implicates special sovereignty interests” and therefore did not fall within the Ex parte Young exception to the Eleventh Amendment. Id. at-, 117 S.Ct. at 2040. The principal decision, written by Justice Kennedy, espouses a case-by-case balancing approach for applying the Ex parte Young exception. See id. at-, 117 S.Ct. at 2038-40. However, the majority of the Court, including the four dissenters and the concurring opinion signed by three Justices, rejects Justice Kennedy’s balancing test. Regardless, Coeur d’Alene does not make the Ex parte Young exception inapplicable to this case. Our conclusion that this ease falls within the exception is supported by the concurring opinion’s appraisal of Ex parte Young: “[A] Young suit is available where a plaintiff alleges an ongoing violation of federal law, and where the relief sought is prospective rather than retrospective.” Id. at -, 117 S.Ct. at 2046 (O’Connor, J., concurring) (emphasis omitted). Moreover, the principal opinion reaffirmed the Young principle, noting that “where prospective relief is sought against individual state officers in a federal forum based on a federal right, the Eleventh Amendment, in most eases, is not a bar.” Id. at-, 117 S.Ct. at 2038 (citation omitted). Neither the State nor the Landowners present factors from this case which would counsel against applying the Ex parte Young exception even under Justice Kennedy’s balancing approach. Justice O’Connor, in the concurring opinion, distinguished Coeur d’Alene from Ex parte Young as follows: First, as the Tribe concedes, the suit is the functional equivalent of an action to quiet its title to the bed of Lake Coeur d’Al-ene ____ Second, the Tribe does not merely seek to possess land that would otherwise remain subject to state regulation, or to bring the State’s regulatory scheme into compliance with federal law. Rather, the Tribe seeks to eliminate altogether the State’s regulatory power over the submerged lands at issue — to establish not only that the State has no right to possess the property, but also that the property is not within Idaho’s sovereign jurisdiction at all. Id. at-, 117 S.Ct. at 2043-44 (emphasis added). We hold that the Eleventh Amendment does not bar any of the claims before us. In Mille Lacs, where the State is a party, the United States has intervened and seeks the same relief as the Bands. The remaining claims in Mille Lacs and the claims in Fond du Lac seek prospective injunctive relief against state officials in their official capacities for continuing violations of the Bands’ federal treaty rights. As such, they fall squarely within the Ex parte Young exception to the Eleventh Amendment. III. 1850 Executive Order On February 6, 1850, President Zachary Taylor issued the following Executive Order: The privileges granted temporarily to the Chippewa Indians of the Mississippi by the Fifth Article of the Treaty made with them on the 29th of July 1837, “of hunting, fishing and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded” by that treaty to the United States ... are hereby revoked; and all of the said Indians remaining on the lands ceded as aforesaid, are required to remove to their unceded lands. The district court in Mille Lacs II rejected the defendants’ argument that this order validly terminated usufructuary rights reserved by the Bands in the 1837 Treaty. First, the court held that President Taylor did not have authority to order the Bands to remove, and that the portion of the Executive Order revoking the Bands’ usufructuary rights was not severable from the portion of the document ordering removal. Mille Lacs II, 861 F.Supp. at 824-26. In the alternative, the court held that even if the Order were backed by the necessary authority or if the revocation portion were severable, the Order did not effect a revocation because the 1837 Treaty did not grant the President unfettered discretion to revoke the usufructuary rights it preserved. Id. at 826-27. The Seventh Circuit had used this approach in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341 (7th Cir.1983) (LCO), where it held that the 1837 Treaty conferred upon the President discretion to revoke the usufructuary rights only if the Bands misbehaved. See id. at 357 (interpreting the 1837 Treaty and a separate treaty signed in 1842 to allow revocation of usu-fructuary rights “only if the Indians were instrumental in causing disturbances with white settlers”). Again in the alternative, the district court held that the entire 1850 Order was unlawful because it violated the United States’ duty to act in good faith in its dealings with Indians. Mille Lacs II, 861 F.Supp. at 826-27. Finally, the court determined that even if the 1850 Order were valid and gave the President unfettered discretion, it was repealed by implication because it was never enforced. Id. at 829-30. The State, the Counties, and the ■ Landowners argue that the district court erred in each of these holdings. They advocate that the Executive Order is valid because the 1837 Treaty gave the President unfettered discretion to revoke the Bands’ rights. Before we can analyze the 1837 Treaty and the scope of the President’s discretion, it is necessary to determine whether President Taylor had the power to issue the 1850 Executive Order. The rule to be followed in examining executive orders is that “[t]he President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” Youngstown, 343 U.S. at 585, 72 S.Ct. at 866. An executive order without congressional or constitutional authority is unconstitutional. Id. ‘When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. at 637, 72 S.Ct. at 871 (Jackson, J., concurring), adopted in Dames & Moore v. Regan, 453 U.S. 654, 669, 101 S.Ct. 2972, 2981, 69 L.Ed.2d 918 (1981). The Bands argue that Congress required Indian consent as a prerequisite to removal, that it was not present here, and that the Order was therefore against congressional will and the dictates of Youngstown. The 1830 Removal Act authorized the President to convey lands west of the Mississippi to “such tribes or nations of Indians as may choose to exchange the lands where they now reside, and remove there.” 1830 Removal Act, ch. 148, 4 Stat. 411 (emphasis added). Though President Jackson advocated an aggressive policy, including possible use of force to achieve Indian removal, it is clear the Removal Act was “entirely permissive.” Wilcomb E. Washburn, 3 The American Indian and the United States: A Documentary History 2169 (1973). The requirement of Indian consent is easily drawn from the language of the statute. It is buttressed, however, by the statements and actions of congresses and presidents in and after 1830. For example, President Jackson, in his 1829 State of the Union Address, proffered a removal policy and urged that it “should be voluntary, for it would be as cruel as unjust to compel the aborigines to abandon the graves of then-fathers and seek a home in a distant land.” 1 The State of the Union Messages of the Presidents, 1790-1966, at 310 (Fred L. Israel ed., 1966). In his 1835 State of the Union Address, President Jackson advocated further Indian removal “as fast as their consent can be obtained.” Id. at 438, quoted in Mille Lacs II, 861 F.Supp. at 824. Indian consent is also exemplified by the many treaties between the United States and various Indian tribes made after 1830 where removal was negotiated. See Mille Lacs II, 861 F.Supp. at 794 n. 7 (listing four such treaties). In 1837, Congress passed an appropriations act specifically to fund the negotiations that led to the 1837 Treaty and others like it. Act of March 3, 1837, ch. 31, 5 Stat. 158. If removal could have been effected through a simple executive order, the difficult process of treaty negotiation would have been unnecessary. The Removal Act did not authorize the President to achieve removal through unilateral means; rather, it “authorized the President to negotiate with selected tribes and to induce them, if possible, to exchange their eastern and southern homelands for substitute reserves lying across the Mississippi____” John W. Ragsdale, Jr., Indian Reservations and the Preservation of Tribal Culture, 59 U.M.K.C. L.Rev. 503, 509 (1991) (emphasis added). The defendants do not cite to any evidence indicating that the President was authorized to remove the Bands without then-consent. The State argued below that the Executive Order was valid because “[b]y the 1830s, the policy of both Congress and the President was clear: to remove the Indians to locations west of the Mississippi, by treaty if possible, by force if necessary.” However, such unilateral and unlawful action cannot control the clear meaning and intent of the Treaty. It is clear to us that the Bands in this litigation did not give consent for removal. Defendants do not point to a single document indicating that the 1837 treaty negotiations included discussion of removal. In 1837, before negotiations began, Commissioner of Indian Affairs Carey A. Harris sent a letter to Wisconsin Territorial Governor Henry Dodge instructing him on the object of the treaty, which was to “procure from [the] Indians a tract [of land] ... valuable for its pine woods which cover it.” Letter from Commissioner of Indian Affairs Carey A. Harris to Henry Dodge and General W.R. Smith (May 13, 1837). As the district court noted, “The letter did not contain any reference to the removal of the Chippewa, the 1830 Removal Act, or the 1837 appropriations act.” Mille Lacs II, 861 F.Supp. at 794. The district court concluded, “Neither Dodge nor the Chippewa intended or understood that any provision of the 1837 Treaty was to provide for removal from the ceded territory.” Id. at 798. Given the evidence, most prominently the treaty itself, that the Bands did not approve removal, we cannot conclude that the finding that the Bands did not consent to removal is clearly erroneous. If Congress required consent for removal, and the Bands did not consent, then President Taylor had no authority for his 1850 Executive Order of removal. This conclusion does not, however, end our inquiry into the matter of the Executive Order. Defendants argue that the portion of the Order extinguishing the 1837 usufructuary rights is separate and severable from the portion of the Order requiring removal. The test for whether a valid portion of an otherwise unconstitutional statute can be severed also applies to executive orders. Matter of Reyes, 910 F.2d 611, 613 (9th Cir. 1990). In the early case of Champlin Ref v. Corporation Comm’n, 286 U.S. 210, 234, 52 S.Ct. 559, 564-65, 76 L.Ed. 1062 (1932), the Court established its test for severability: The unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions. Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law. See also New York v. United States, 505 U.S. 144, 186, 112 S.Ct. 2408, 2434, 120 L.Ed.2d 120 (1992) (using this test); Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 1479-80, 94 L.Ed.2d 661 (1987) (same). On its face, the Order contains two provisions that seem separate — one ordering revocation of treaty rights, and one ordering removal. However, the test for severability requires us to look at more than the text of the Order. As is the ease with a court’s construetion of statutory law, the bottom line in assessing severability turns on the intent of the drafter, in this case President Taylor, and the purpose of the text, in this case the Executive Order. See EEOC v. CBS, Inc., 743 F.2d 969, 971 (2d Cir.1984) (“Whether or not we should sever an unconstitutional provision from the remainder of the statute in which it appears is primarily an issue of legislative intent.”); Scheinberg v. Smith, 659 F.2d 476, 481 (5th Cir.1981). (“[T]he question is ... whether, at the time the statute was enacted, the legislature would have passed it absent the constitutionally objectionable provision.”), overruled on other grounds by Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). The task before us, therefore, is to determine whether President Taylor would have issued an executive order revoking the Bands’ treaty rights -without also ordering removal. The district court found that the revocation portion of the Order was included in order “to encourage removal.” Mille Lacs II, 861 F.Supp. at 826. While the court determined that this observation argues against sever-ability, the observation could cut the other way. A strong argument could be made (although it is not) that the President would have issued a revocation order without the removal provision, because it would have “encouraged” Bands to remove from the ceded territory without actually ordering them to do so. If the Bands were denied their rights to hunt, fish, and gather, they would be deprived of their sustenance to exist on the ceded lands, and thus would be forced to remove. As such, a revocation order standing alone would have allowed the President to attempt to do indirectly what he could not do directly. Notwithstanding these arguments, on the basis of the record before us, we agree with the district court that the revocation portion of the Order cannot be severed. from its companion provision. The purpose of the Order was to mandate removal, and this purpose was integral to the entire Order. See Zbaraz v. Hartigan, 763 F.2d 1532, 1545 (7th Cir.1985) (“Severance is improper if the unconstitutional provision is an integral part of the statutory enactment viewed in its entirety.”) (internal quotation omitted), aff'd by an equally divided court, 484 U.S. 171, 108 S.Ct. 479, 98 L.Ed.2d 478 (1987). Other than our above-stated conjecture, there is no evidence that revocation of usufructuary rights would have been made independently of the removal mandate. We may envision a scenario where this indirect method of removal could have been followed, but we have in the record no statement by anyone indicating such a plan had ever been considered, much less employed. All of the historical evidence surrounding the Order relates to removal. Without evidence that the scenario we have outlined had even been contemplated, we cannot sever the revocation portion of the Order and hold that it is valid standing alone. See Scheinberg, 659 F.2d at 482 (“[W]e cannot judicially sever a portion of an enactment on the authority of a wholly speculative, and insupportable, interpretation of legislative intent.”). We hold that the entire 1850 Executive Order is invalid because it was issued without presidential authority. IV. 185Jr Treaty By 1854, Congress began to pursue a reservation policy to replace its failing removal policy. Commissioner Manypenny indicated in his 1854 Annual Report that reservations should be established for the Chippewa still living in the lands ceded by ■ the 1837 and 1842 Treaties. An authorization act for this purpose was debated in May 1854, but it failed to pass the Senate. Nonetheless, negotiations went forward, and a treaty resulted. Treaty with the Chippewas, Sept. 30, 1854, 10 Stat. 1109. The Wisconsin Bands and the Fond du Lac Band, but not the Mille Lacs Band, were signatories to the Treaty, which created reservations within the lands ceded in the 1837 and 1842 Treaties in exchange for cession of title to various other tracts of land. The Landowners and the State argued below that the 1854 Treaty, through the creation of reservations, extinguished the 1837 Treaty rights of the Wisconsin Bands. This argument does not apply to the Mille Lacs Band, because it was not a signatory to the Treaty, nor to the Fond du Lac Band, because defendants have not pursued this argument against that Band. The district court rejected the State’s and the Landowners’ arguments and held that the 1854 Treaty did not extinguish the usufructuary rights reserved under the 1837 Treaty. Mille Lacs III, slip op. at 33. On appeal, the Landowners urge us to reverse the district court. The Landowners rely on United States v. Santa Fe Pac. R.R., 314 U.S. 339, 62 S.Ct. 248, 86 L.Ed. 260 (1941), where the Supreme Court determined that creation of a reservation by the United States and acceptance of it by the Walapai Indians “amounted to a relinquishment of any tribal claims to lands which they might have had outside that reservation.” Id. at 357-58, 62 S.Ct. at 257 (footnote omitted). The Court made it clear that mere establishment of a reservation does not automatically extinguish rights to lands outside the reservation, but it determined that the facts and circumstances of the case indicated extinguishment of title. In 1865, Congress had established a reservation for the Walapai Indians in an effort to induce them to abandon their ancestral lands. Id. at 351-53, 62 S.Ct. at 253-55. The Tribe did not accept the reservation at that time, and the Court determined that its rights to the land were not extinguished by the mere passage of the act creating the reservation. Id. at 353-54, 62 S.Ct. at 255. In 1881, however, the Tribe accepted the reservation. The Court determined that “[i]n view of this historical setting, it cannot now be fairly implied that tribal rights of the Walapais in lands outside the reservation were preserved.” Id. at 358, 62 S.Ct. at 257. The district court distinguished Santa Fe: “Not only is the historical context completely different, the Court’s analysis was based upon aboriginal title whereas in this case, the usufructuary rights at issue have been found to be treaty rights.” Mille Lacs III, slip op. at 28. We agree. The circumstances involved in Santa Fe, where the argument was over aboriginal title rather than usufructuary rights reserved by treaty, are not present here. See LCO, 700 F.2d at 351-52 (explaining the legally significant differences between aboriginal title and treaty-recognized rights). Most importantly, however, the evidence is overwhelming that neither party intended the 1854' Treaty to disturb usufruc-tuary rights. The Treaty established reservations and ceded lands different from the lands ceded in the 1837 Treaty, and explicitly preserved usufructuary rights on the newly ceded lands. See id. at 364 (“[T]he inclusion in the 1854 treaty of a reservation of usufruc-tuary rights by the Minnesota Chippewas suggests, in our view, that the LCO band believed their usufructuary rights [reserved in the 1837 and 1842 Treaties] to be secure and unaffected by the treaty.”); Mille Lacs II, 861 F.Supp. at 815 (concluding that the government did not intend to extinguish usu-fructuary rights in a different treaty with the Chippewa in part because the Treaty does not contain references to the rights, and “[wjhen the United States extinguished reserved rights of fishing in other treaties, it included explicit language ending those rights and providing monetary compensation”). V. 1855 Treaty In December 1854, Congress passed the previously rejected bill establishing authority for treaty negotiations. The bill provided retroactive authority for the 1854 Treaty, and authority to negotiate a follow-up treaty. On January 4, 1855, Commissioner Manypenny directed Governor Gorman to begin the negotiation process for a new treaty with the Chippewa “respecting their claim to lands in Minnesota.” Mille Lacs II, 861 F.Supp. at 812 (citation omitted). The new treaty was negotiated from February 12 to February 22, 1855. It was signed by the Mississippi, Pillager, and Lake Winnibigoshish Bands of Chippewa, a group which includes the Mille Lacs Band but not the Fond du Lac Band or the Wisconsin Bands. Article 1 of the Treaty ceded a ten million acre tract of land located north and northwest of the 1837 ceded territory. Treaty with the Chippewas, Feb. 22, 1855, art. 1, 10 Stat. 1165. Article 1 also states, “And the said Indians do further fully and entirely relinquish and convey to the United States, any and all right, title, and interest, of whatsoever nature the same may be, which they may now have in, and to any other lands in the Territory of Minnesota or elsewhere.” The Treaty established the Mille Lacs reservation in the 1837 ceded territory, but it does not mention hunting, fishing, and gathering rights at all, and the usufructuary rights in the 1837 Treaty were never mentioned in treaty negotiations. Mille Lacs II, 861 F.Supp. at 815. The State, the Counties and the Landowners contend that the language in the 1855 Treaty conveying “all right, title, and interest, ... in, and to any other lands in the Territory of Minnesota or elsewhere” extinguished the Mille Lacs Band’s usufructuary rights on off-reservation lands. The district court in Mille Lacs II, after “a careful examination of the historical record established at trial,” made the following findings: (1) the government did not intend for the 1855 Treaty to extinguish the usufructuary rights reserved in the 1837 Treaty, 861 F.Supp. at 815-16, 821; (2) the Chippewa did not intend to give up their 1837 Treaty privilege and they did not understand the 1855 Treaty to have that effect, id. at 816-18; and (3) both the Band and the United States believed that the 1837 Treaty rights continued to exist after the 1855 Treaty was signed, id. at 818-821. The 1855 Treaty is void of explicit language extinguishing the Band’s usufructuary rights, nor does it mention the 1837 Treaty. In analyzing the broad language of the 1855 Treaty, we must view it in its historical context to determine whether the parties meant it to revoke usufructuary rights. The circumstances surrounding the Treaty do not indicate that either side intended or understood the treaty to work such a revocation. We look first at the interpretation understood by the Bands. See Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 676, 99 S.Ct. 3055, 3069-70, 61 L.Ed.2d 823 (1979) (A “treaty must ... be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.”). The historical evidence demonstrates that the Bands signing the 1855 Treaty did not intend to give up their usu-fructuary rights. During the negotiations, a Chippewa representative repeatedly indicated that he understood that the purpose of the Treaty was to purchase land. Mille Lacs II, 861 F.Supp. at 813. Chippewa representatives also indicated during negotiations that they would continue to hunt, fish, and gather after the Treaty was negotiated. Id. at 814. Indeed, the district court found that in the years after the Treaty was signed, the Chippewa complained to federal officials that state enforcement of game regulations violated their rights under the 1837 Treaty. Id. at 831-32. As to the United States, we note first that the United States knew how to draft a treaty to revoke usufructuary rights, and did not do so in this case. See, e.g., Treaty with the Middle Oregons, Nov. 15, 1865, art. I, 14 Stat. 751 (“[T]he right to take fish, erect houses, hunt game, gather roots and berries, and pasture animals upon lands without the reservation set apart by the treaty aforesaid — [is] hereby relinquished.”); Treaty with Chippewas of Sault St. Marie, Aug. 2, 1855, art. I, 11 Stat. 631 (“The said Chippewa Indians surrender to the United States the right of fishing at the falls of St. Mary’s, and of encampment, convenient to the fishing-ground, secured to them by the treaty of June 16,1820.”); Treaty with the Winnebago Indians, Oct. 13, 1846, art. IV, 9 Stat. 878 (paying “forty thousand dollars for release of hunting privileges, on the lands adjacent to their present home”); Treaty with the Sacs and Foxes, Oct. 21, 1837, art. I, 7 Stat. 543 (revoking “the right to locate, for hunting or other purposes, on the land ceded in the first article of the treaty of July 15th 1830”). In addition, the authorization act for the 1855 Treaty directed the President to negotiate a treaty with the Chippewa “for the extinguishment of their title to all the lands owned and claimed by them in the Territory of Minnesota and State of Wisconsin.” The United States was clearly concerned about extin-guishment of title, not usufructuary rights. The district court’s factual findings regarding the intention of the parties to the 1855 Treaty are well supported, and we cannot conclude they are clearly erroneous. Given the absence of any mention of the 1837 Treaty or its usufructuary rights in the 1855 Treaty or its negotiation process, and the lack of evidence that the parties intended to extinguish these rights, we conclude that the 1855 Treaty did not revoke the 1837 Treaty’s usufructuary rights. Defendants argue, however, that Oregon Dept, of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 105 S.Ct. 3420, 87 L.Ed.2d 542 (1985) compels a different result. The Klamath Indian Tribe (the Tribe) had signed an 1864 Treaty ceding lands in Oregon to the United States. The Treaty also created a reservation for the Tribe and secured to them “the exclusive right of taking fish in the streams and lakes, included in said reservation.” Id. at 755, 105 S.Ct. at 3422. The Treaty did not expressly reserve Indian rights to hunt or fish outside the reservation. A large portion of the intended reservation was excluded as a result of survey error. In 1901, the Tribe agreed to “cede, surrender, grant, and convey to the United States all their claim, right, title and interest in and to” the land mistakenly excluded from the 1864 Treaty. Id. at 760, 105 S.Ct. at 3425. The 1901 Agreement did not contain any reference to hunting and fishing rights. When the State of Oregon enforced its conservation laws against the Tribe on the lands ceded in the 1901 Agreement, the Tribe brought suit. The Supreme Court interpreted the 1864 Treaty and the 1901 Agreement to extinguish hunting and fishing rights on ceded lands. Id. at 770, 105 S.Ct. at 3430. In coming to its decision, the Klamath Court considered that the 1864 Treaty established an exclusive right to hunt and fish on the reservation. Thus the hunting and fishing rights “did not exist independently of the reservation itself’ and were ceded in 1901 when the reservation was diminished. Id. at 768,105 S.Ct. at 3429. The 1864 Treaty rights in Klamath were exclusive and on-reservation rights, and thus logically extinguished with a relinquishment of a portion of the reservation. The rights at issue in this litigation are non-exclusive and ojf-reservation rights, reserved in a treaty not mentioned in the 1855 Treaty or its negotiations. The situations are not analogous and do not compel the same outcome. We hold that Klamath does not require reversal, and affirm the district court’s holding that the 1855 Treaty did not extinguish the usu-fructuary rights that are the subject of this litigation. VI. Preclusive Effect of Prior Litigation A. Court of Claims (Mole Lake) Litigation In 1940, several Wisconsin Chippewa Bands, including some of the Bands which are plaintiffs in this action, brought a claim against the United States in the Court of Claims. The action was brought pursuant to an ad hoc jurisdictional statute waiving federal sovereign immunity, which was designed to enable Indian claims for loss of aboriginal title. Mole Lake Band.v. United States, 126 Ct.Cl. 596, 598 (Ct.Cl.1953); Act of August 30, 1935, Pub.L. No. 74-410, 49 Stat. 1049. The Fond du Lae Band intervened in the Mole Lake litigation on August 30, 1940. Mole Lake, 126 Ct.Cl. at 598-99. Neither the Mille Lacs Band nor the State was a party to the ease. The original Mole Lake petition set forth multiple claims under various treaties, mostly seeking compensation for lands ceded under the treaties. A portion of the petition included claims contending that federal officials had violated the plaintiffs’ usufructuary rights under the treaties. Severed from the original petition were causes of action relating to certain tracts of swamp land and causes of action relating to “public school sections” of land. The swamp land claims were resolved in Mole Lake Band v. United States, 134 Ct.Cl. 478, 139 F.Supp. 938 (1956). The school land claims were dismissed in Mole Lake Band v. United States, 113 Ct.Cl. 16, 82 F.Supp. 342 (1949). The remainder of the petition was narrowed to include only seven claims. Mole Lake, 126 Ct.Cl. at 597. The Court of Claims stated that the reason for the narrowing of claims was the severance of the swamp land and school land claims, the “institution of suits before the Indian Claims Commission,” and the “abandonment of some of the claims not severed out of the petition.” Id. None of the swamp land claims, the school land claims, or the seven remaining claims included allegations of the denial of usufructuary rights. The defendants argued to the district court that the Mole Lake litigation collaterally estops the Bands’ claims in this action. In order for collateral estoppel (issue preclusion) to bar litigation of an issue, (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) the issue must have been litigated in the prior action; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the prior judgment. Stoebner v. Parry, 91 F.3d 1091, 1094 (8th Cir.1996). In addition, the estopped party . must be a party or in privity with a party to the prior litigation. Wellons, Inc. v. T.E. Ibberson Co., 869 F.2d 1166, 1168 (8th Cir. 1989). The district court in Mille Lacs I found that although the Mille Lacs Band was a signatory to the 1837 Treaty, it was not in privity with the Bands in the Mole Lake litigation. The court then found in the alternative that Mole Lake did not adjudicate whether the Bands retained their usufructu-ary rights under the 1837 Treaty. In Mille Lacs III, the district court considered whether issue preclusion barred the Wisconsin Bands’ claims. In determining that the Wisconsin Bands were not barred by the issues tried in Mole Lake, the court adhered to the earlier alternate ruling in Mille Lacs I that the issues were not identical and therefore could not serve as a bar under principles of collateral estoppel. Mille Lacs III, slip op. at 25. The district court also considered collateral estoppel in Fond du Lac, and determined that the Fond du Lac Band was not given a full and fair opportunity to litigate the issue of usufructuary rights in Mole Lake. The court concluded, “There is no evidence that a resolution of the usufructuary rights issue was necessary to the final judgment rendered by the Court of Claims in Mole Lake.” Fond du Lac, slip op. at 16. Thus, collateral estoppel did not bar the Fond du Lac Band’s claims. Id. On appeal, the Landowners, the Counties, and the State challenge all three of these decisions. They argue that the original petition in the Mole Lake proceeding collaterally estops the Bands from bringing their elaims in this litigation. A close review of the petition refutes their argument. While the parties dispute whether the usufructuary rights claims in the petition were later litigated, they overlook the fact that the petition does not include any claims under the 1837 Treaty that underlies the Bands’ claims here. The petition lists twenty-six treaties which form the basis of the plaintiffs’ claims in Mole Lake. The list does not include the July 29, 1837 Treaty at issue in this case. We can end our collateral estoppel analysis as to the original petition here. Even if the petition can be read to include usufructuary rights claims, it cannot collaterally estop the Bands from later bringing claims for usufructuary rights under a different treaty. This is what they have done here, and we hold that they are not barred by the original Mole Lake petition from doing so. We come to the same conclusion when we examine the swamp land cause of action. Under the elements of collateral estoppel set out above, the issue to be barred must have been actually litigated and necessary to the final judgment in the prior action. Stoebner, 91 F.3d at 1094. The cause of action in the swamp land proceeding was for damages for the value of land and timber within reservations established in the 1854 Treaty discussed in this opinion. Plaintiffs did not seek relief, as they do here, for the denial of usufructuary rights reserved in the 1837 Treaty. Mole Lake, 139 F.Supp. at 939-40; see also United States v. Gurley, 43 F.3d 1188, 1196 (8th Cir.1994) (“In the final analysis the test would seem to be whether the wrong for which redress is sought is the same in both actions.”) (quotations and citations omitted; emphasis by the Gurley court) cert. denied, — U.S.-, 116 S.Ct. 73, 133 L.Ed.2d 33 (1995). Though the swamp land decision discussed the 1850 Executive Order, it did not decide any issues relating to it, because the court had no reason to do so. See Mole Lake, 139 F.Supp. at 939-40; see also LCO, 700 F.2d at 360 (“Although the judge discussed the Removal Order in the context of the historical events which culminated in the grant of the reservations lands in 1854 ... he neither expressed nor had reason to consider the validity of the Removal Order.”) (emphasis in original). The general discussion of the Executive Order in the swamp land decision cannot support the conclusion that the Order presented an issue necessary to that decision. We hold that the usufructuary rights issue was not actually litigated in the swamp land proceeding. The elements of collateral es-toppel are not met, and the doctrine does not work to bar the Bands’ claims. The Landowners also urge this court to apply judicial estoppel to various claims made by the Bands in the Mole Lake proceedings. The Bands argue that the Landowners did not assert this claim in the district court, and that we should therefore reject it here. None of the district court opinions include a discussion of judicial estoppel, nor can we find the argument in the record. Thus, the Landowners are precluded from raising it on appeal. See Bursch v. Beardsley & Piper, 971 F.2d 108, 113 (8th Cir.1992) (refusing to discuss an argument not raised before the district court). B. Indian Claims Commission Litigation In 1946, Congress created the Indian Claims Commission (ICC) to hear tribal claims arising under the Constitution, laws, treaties, or executive orders, and accruing before August 13,1946. Indian Claims Commission Act of 1946, ch. 959, 60 Stat. 1049 (formerly codified at 25 U.S.C. § 70(a)). In January 1948, many Minnesota Bands of Chippewa, including the Fond du Lac Band but not, initially, the Mille Lacs Band, brought claims for compensation for lands ceded under the 1837, 1842, 1854, and 1855 Treaties discussed earlier in this opinion. The original petition before the ICC stated that usufructuary rights were “a material consideration” for ceding the lands. It also alleged, “The United States has deprived the plaintiffs and other Indians of the right to hunt and fish upon the ceded lands and upon the land retained by them.... ” This original petition was assigned to the ICC’s Docket 18, which was then severed into three parts: Docket 18-C included claims under the 1837 Treaty and additional treaties; Docket 18-B included claims under the 1855 Treaty; and Docket 18-U included claims under the 1854 Treaty. On August 9,1949, the plaintiffs drew up a new petition for Docket 18-C. The complaint alleged that “there was reserved for the various parties to said treaties, and the defendant [the United States] undertook to conserve the same, hunting, fishing and other rights in various lands, all of which were a material consideration for the ceding thereof.” In the United States’ answer to the complaint, it admitted that the treaties reserved hunting and fishing rights, but denied that it had violated the rights in any way. On October 23, 1957, the ICC issued an order severing Docket 18-C further, separating causes of action based on treaties other than the 1837 Treaty. The ICC then required the plaintiffs to file a new Docket 18-C complaint, asserting only their claims under the 1837 Treaty. The order provided that the amended complaint “shall be considered as having been filed on August 9, 1949, and shall take the place of said original petition.” On August 5, 1959, the Mille Lacs Band joined the existing plaintiffs to file an amended complaint pursuant to the court’s order. This amended complaint alleged that the amount paid by the United States for the land ceded in the 1837 Treaty was “grossly inadequate and unconscionable.” The complaint did not refer to any hunting, fishing, or gathering rights. The ICC adjudication of the claims in Docket 18-C spanned several decades and resulted in three different decisions, found at 19 Ind. Cl. Comm. 514 (1968), 26 Ind. Cl. Comm. 22 (1971), and 32 Ind. Cl. Comm. 192 (1973). The ICC responded to the Bands’ claims for compensation by valuing the land ceded in the 1837 Treaty for its “highest and most valuable uses,” which, the Bands’ experts determined, were pine timber and agriculture. The ICC found that the fair market value of the land at the time of the Treaty was $9,875,000. 26 Ind. Cl. Comm, at 59. It subtracted the $847,440 that the United States paid the Bands for the land and awarded the Bands $9,027,560 in full satisfaction of their claims. 32 Ind. Cl. Comm, at 200. The ICC did not, in any of its opinions, mention the hunting, fishing, and gathering rights reserved under Article V of the 1837 Treaty. In Mille Lacs I, the district court analyzed the ICC proceedings under the collateral es-toppel doctrine, examined the pleadings and the record of the ICC litigation, and determined that the issue of usufructuary rights was not actually litigated and necessary to the outcome of the case. Mille Lacs I, 853 F.Supp. at 1137. The court concluded that the ICC’s award of compensation for the lands based on their highest and best valuation “does not indicate that the ICC concluded that the usufructuary rights had been extinguished.” Id. Therefore, it rejected the defendants’ argument that the Mille Lacs Band was collaterally estopped by the ICC litigation. As to the Wisconsin Bands, the court followed the Mille Lacs I ruling, and held that the Bands “are not precluded under the doctrine of collateral estoppel from asserting their claims in this litigation by the prior litigation before the ICC in Docket 18C because the issue of the continued existence of the 1837 privileges were [sic] not litigated.” Mille Lacs III, slip op. at 25. As to the Fond du Lac Band, the court again held that the Band is not collaterally estopped by the ICC litigation. First, it determined that the original Docket 18 petition does not provide a bar, because “[o]nce a pleading has been amended, the old pleading serves no function in the litigation.” Fond du Lac, slip op. at 16-17. Second, it concluded that the ICC’s valuation of the land for “highest and best use” did not settle the issue of usufructuary rights. Id. at 17. The court distinguished Klamath, which the defendants argued necessitated a contrary conclusion, by noting that the Klamath decision involved a treaty that was silent as to off-reservation hunting and fishing rights, whereas the Treaty here explicitly reserved off-reservation hunting and fishing rights. Fond du Lac, slip op. at 20 n. 12. This second issue is the one on which both the State and the Landowners concentrate on appeal. They argue that the value of usufructuary rights was subsumed in the ICC award, because the award was based on the highest and best use of the land. This measurement, according to the State and the Landowners, represents the total value of the land. If the measurement was not intended to include usufructuary rights, these parties contend, the ICC would have made a specific deduction from the calculated value of the land for the value of still-existing usufructu-ary rights. Since it did not, the argument goes, the ICC award includes payment for the 1837 Treaty rights, and they are extinguished, thus collaterally estopping the Bands from bringing their claims here. The defendants urge that the Supreme Court’s decision in Klamath supports their collateral estoppel argument. They contend that Klamath stands for the proposition that an ICC award that is silent as to usufructu-ary rights automatically subsumes and estops future usufructuary rights claims. In Klamath, the ICC had awarded in 1969 over four million dollars to the Tribe as additional compensation for the lands ceded by the 1901 Agreement. 473 U.S. at 762,105 S.Ct. at 3425-26. The amount of the award “was based on the estimated value of the land for stock grazing and timber harvesting, which the parties had agreed constituted the ‘highest and best uses’ for the land.” Id. The ICC opinion in Klamath did not mention hunting or fishing rights. Part of the Tribe’s argument that its usufructuary rights survived the 1901 Agreement was that the absence of any ICC payment for hunting and fishing rights demonstrated that the parties did not intend for them to be extinguished. Id. at 773, 105 S.Ct. at 3431-32. The Supreme Court rejected the Tribe’s contention, holding that “had the parties actually intended to preserve independent hunting and fishing rights for the Tribe on the ceded lands, the [ICC] presumably would have computed the value of such rights and explicitly subtracted that amount from the price to be paid for land so encumbered.” Id. The State and the Landowners seize upon this language, asserting that it requires this court to interpret the ICC’s silence as to usufructuary rights as extinguishment of those rights. Their argument, however, fails to appreciate crucial distinctions between the treaty here and the treaty involved in Kla-math. Here, the 1837 Treaty explicitly reserves off-reservation usufructuary rights. In Klamath, the treaty at issue was silent as to off-reservation usufructuary rights. As the district court herein observed: The critical distinction of whether the rights to hunt and fish were reserved in a prior treaty leads to a critical difference in the way the ICC’s silence on those rights should be treated. If the rights were reserved in a treaty, the ICC would have had to find that the rights had been extinguished; thus, silence implies no determination as to those rights. If the rights were not reserved, silence would imply that the rights were determined to have been disposed of by the cession of the land. Klamath deals with the latter situation; this case presents the former. Fond du Lac, slip op. at 20 n. 12. The ICC opinions in this case are not cursory. We cannot accept the conclusion that they extinguished an important body of rights bargained for and explicitly reserved in a treaty without any mention of those rights. Cf. Swim v. Bergland, 696 F.2d 712, 718 (9th Cir.1983) (rejecting the contention that a party could rely, for collateral estoppel purposes, “solely on general language of [ICC] settlement documents to sweep in Article IV grazing rights” where “all specific language in the pertinent documents, including the original petition, refers only to the low compensation paid for lands ceded in Article J”). The defendants’ argument also fails to appreciate another difference between this case and Klamath. In Klamath, the Supreme Court used the ICC’s silence on the issue of hunting and fishing rights as one factor indicating that the 1901 Agreement extinguished hunting and fishing rights on ceded lands. 473 U.S. at 773, 105 S.Ct. at 3431-32. The Court concluded, “The absence of specific compensation for the rights at issue is entirely consistent with our interpretation of the 1901 Agreement.” Id. at 774, 105 S.Ct. at 3432. The ICC’s silence was used by the Court to buttress its conclusion as to the interpretation of the Tribe’s agreement with the United States. To view the ICC’s silence in this case to mandate preclusion of hunting and fishing rights claims is to give Klamath an interpretation it simply cannot bear. We therefore hold that the ICC proceedings do not collaterally estop the Bands from bringing usufructuary rights claims here. VII. Equal Footing Doctrine The defendants argue that any rights the Bands acquired under the 1837 Treaty were extinguished upon Minnesota’s admission into the Union in 1858. They assert that under the “equal footing doctrine,” those rights became void when Minnesota was granted statehood and acquired the sovereign trust and police power over its natural resources. The district court rejected this as a basis for defeating the Bands’ usufructuary rights. We affirm. On May 11, 1858, the thirty-fifth Congress passed legislation admitting the State of Minnesota into the Union. Minnesota was admitted “on an equal footing with the original states in all respects,” and there was no reservation or exception made for rights secured to the Bands. An Act for the Admission of the State of Minnesota into the Union, ch. 31, 11 Stat. 285 (1858). The equal footing doctrine, a reflection of Congress’ language admitting the states, “requires that all states admitted into the Union after the original thirteen states be admitted on ‘equal-footing’ with the original states; the newly admitted states must have the same rights and sovereignty at the time of admission as the original states.” Crow Tribe of Indians v. Repsis, 73 F.3d 982, 990-91 (10th Cir.1995) (citations omitted), cert. denied,U.S. -, 116 S.Ct. 1851, 134 L.Ed.2d 951 (1996). The basis for the defendants’ argument for applying the doctrine herein is an amalgamation of two related points: (1) any rights conferred by the federal government in the 1837 Treaty were extinguished when Minnesota became a state and acquired the same rights and sovereignty reserved under the Tenth Amendment to the original thirteen states, and (2) in the act admitting Minnesota into the Union, Congress’ silence regarding the Bands’ usufructuary rights constituted an abrogation of those rights. The defendants argue that the controlling law is found in Ward v. Race Horse, 163 U.S. 504, 16 S.Ct. 1076, 41 L.Ed. 244 (1896), and Repsis, 73 F.3d 982. In Ward, the relevant treaty provision secured to the Bannock Indians the “right to hunt on the unoccupied lands of the United States, so long as game may be found thereon, and so long as peace subsists among t