## Facts

- Several Lake Superior Chippewa tribes asserted off-reservation treaty usufructuary rights on ceded lands under the 1837 and 1842 treaties.
- The case was a subphase of long-running litigation addressing the scope of treaty rights and permissible state regulation, focusing here on timber.
- The tribes claimed the treaties reserved a right to harvest timber on ceded lands for commercial sale.
- Wisconsin and county entities maintained comprehensive forest-management systems governing commercial timber cutting and sales on public forests.
- The evidentiary record showed historical Chippewa use of trees for traditional purposes (e.g., wood, bark, sap), but no practice of commercial-scale timber harvesting at the time of the treaties.
- Due to Eleventh Amendment sovereign immunity doctrine, the case proceeded primarily for declaratory and injunctive relief rather than monetary damages against the state and officials in their official capacities.

## Issues

1. Whether the 1837 and 1842 treaty-reserved usufructuary rights included a right to engage in modern commercial timber harvesting on ceded lands.
2. If any timber-related treaty right existed, what limits applied to state and county authority to regulate tribal timber harvesting through forest-management rules.

## Decision

- Judgment was entered for Wisconsin and the intervening county defendants.
- The court held the treaties did not reserve a right to engage in commercial timber harvesting as claimed.
- Because no commercial timber right existed, Wisconsin’s prohibition and regulatory regime restricting tribal commercial timber harvesting on ceded lands was upheld as enforceable.
- The court noted remedial limits from Eleventh Amendment immunity that foreclosed monetary damages against the state and state officials sued in their official capacities.

## Legal Principles

- Treaty-reserved usufructuary rights are defined by what the parties would have understood the tribes to be reserving at the time of the treaties, informed by historical practice and context.
- Traditional, subsistence-type uses of natural resources may be protected as usufructuary rights, but courts will not extend such rights to modern commercial exploitation absent evidence that comparable activities were practiced or contemplated at treaty time.
- Even when treaty rights exist, states may impose nondiscriminatory regulations necessary for conservation, public safety, and resource management; where no treaty right applies, generally applicable prohibitions and management regimes may be enforced.
- Sovereign immunity limits retrospective monetary relief against a state and officials in their official capacities, channeling such disputes toward prospective declaratory and injunctive remedies.

## Conclusion

The court concluded that the Chippewa treaties reserved rights to traditional uses of ceded lands but not modern commercial timber harvesting, and it therefore upheld Wisconsin’s and the counties’ ability to prohibit and regulate tribal commercial timber cutting under their forest-management systems.


Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 758 F. Supp. 1262 (W.D. Wis. 1991)