Appeal from the United States District Court for the Western District of Wisconsin. No. 74 C 313 - James E. Doyle, Judge.
Cummings, Chief Judge, Cudahy, Circuit Judge, and Pell, Senior Circuit Judge.
PELL, Senior Circuit Judge
This is an interlocutory appeal from an order of the district court following a remand in which the District Judge was instructed to enter judgment for the plaintiffs and to give further consideration to the permissible scope of State regulation over the rights found to be possessed by the plaintiffs.
The underlying controversy resulting in the litigation was the claim of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians that they retained treaty-reserved hunting, fishing, trapping and gathering wild rice and maple sap on non-reservation lands (usufructuary) rights in ceded lands in the northern third of Wisconsin and that the exercise of such rights could not be regulated by the State. Since the filing of the original suit other bands of Lake Superior Chippewa Indians have intervened by stipulation as plaintiffs, but for convenience of reference the plaintiffs will be referred to as LCO. The defendants include the State of Wisconsin, its Natural Resources Board, and various State officials sued both in their individual and official capacities who will be designated as the State.
The threshold question prior to the first appeal in this case and that with which this Court was basically and primarily concerned on appeal, was not with defining the scope and extent of such rights but whether they continued to exist subsequent to the Presidential Removal Order of 1850 or the Treaty of 1854. The district court in a carefully thorough analysis of the somewhat meager historical information available, the meagerness being in a large extent attributable to the time and place of various treaty conferences there being no 20th century reporting process, granted summary judgment, finding that the President's Removal Order of 1850 was not authorized by previous treaties, was beyond the scope of the President's powers and was without legal effect but that the 1854 treaty terminated the Chippewa's rights of permissive occupation in territory ceded in 1837 and 1842 and not included in the reservation contemplated by the 1854 treaty. The ultimate holding was that the Chippewa Indians did not have the right to exercise their claimed usufructuary rights without State regulation or control in the non-reservation areas ceded by the Indians in the 1837 and 1842 treaties. United States v. Bouchard, 464 F. Supp. 1316 (W.D. Wis. 1978).
Upon appeal by both parties, this Court, however, did not agree with Judge Doyle on the second prong of his decision but held that the LCO rights established by the 1837 and 1842 treaties were neither terminated nor released by the 1854 treaty. Lac Courte Oreilles Band v. Voigt, 700 F.2d 341 (7th Cir. 1983) (LCO I). This Court, although disagreeing with the district court, did as it did and concentrated its attention on the historical aspects of the national governmental action and examined the various treaties as the Indians would have understood them as disclosed by the practices and customs of the Indians at the time the treaties were negotiated.
The matter which has precipitated the present appeal is contained in less than one page, being the final page, of this Court's opinion, 700 F.2d at 365. In the original slip opinion the next to the final paragraph read as follows:
Having considered all the arguments urged by the parties, the district court's summary judgment in favor of the defendants as to the continued existence of the LCO's usufructuary rights is reversed. The case is remanded to the district court with instructions to enter judgment for the LCO band on that aspect of the case and for further consideration as to the permissible scope of State regulation over the LCO's exercise of their usufructuary rights.
Subsequent to the filing of this Court's opinion, the State filed a petition for rehearing and suggestion of rehearing en banc, which included a request for clarification as to the existence of the ability to exercise usufructuary rights on private lands. It was averred that the exercise of such rights on land which had been patented to private persons would constitute an encumbrance on title to such property and that it was not the intent of the United States to convey, nor the purchasers to acquire, less than full and clear title. In its order denying rehearing the Court amended the slip opinion by adding a sentence in the next to the last paragraph of the opinion and a footnote pertinent thereto, the two reading as follows:
Having considered all the arguments urged by the parties, the district court's summary judgment in favor of the defendants as to the continued existence of the LCO's usufructuary rights is reversed. The exercise of these rights is limited to those portions of the ceded lands that are not privately owned.*fn14 The case is remanded to the district judge with instructions to enter judgment for the LCO band on that aspect of the case and for further consideration as to the permissible scope of State regulation over the LCO's exercise of their usufructuary rights.
[The added sentence in the text is italicized.]
Following remand, Judge Doyle directed the parties to submit to the court proposed judgments complying with this Court's directive. Both parties submitted proposed judgments. The district court thereafter entered its order, denominated "Partial Judgment" reading in part as follows:
1. The Lac Courte Oreilles Band of Lake Superior Chippewa Indians reserved for its members usufructuary rights within the territory ceded by the Lake Superior Chippewa to the United States in the Treaty of ...