concurring.
Today we apply the Williams rationale and conclude that whatever fishing rights the Tribe retained under the Treaty of Greenville were extinguished when the Tribe abandoned northwestern Ohio. I write separately only to express my view that the Williams decision need not have been dispositive had the Tribe provided sufficient evidence to raise a genuine issue of material fact as to the nature of the Tribe’s usufructuary rights, i.e., hunting, *641fishing and gathering rights. The Williams Court held that the Treaty of Greenville only “conveyed to the tribes a right of continued occupancy to the lands located in the treaty-reserved territories and that all legal right or interest the tribe had in the land came to an end when it abandoned the territory.” Williams v. City of Chicago, 242 U.S. 434, 438, 37 S.Ct. 142, 61 L.Ed. 414 (1917). The majority reasons that under Williams, whatever the nature of the Tribe’s fishing rights, those rights were extinguished when occupancy ended. I, however, am not convinced that we are fully bound by Williams in all cases dealing with usufructuary rights under the Treaty of Greenville. To the extent that our decision may be read to advance that proposition, I disagree.
I am not persuaded that Williams compels the conclusion that regardless of the nature of the Tribe’s fishing rights, all of the Tribe’s usufructuary rights were automatically abrogated when the Tribe abandoned the territory. Supreme Court precedent explains that treaty-reserved nonexclusive rights of use are not dependent on title or the right of occupancy. See Kennedy v. Becker, 241 U.S. 556, 562, 36 S.Ct. 705, 60 L.Ed. 1166 (1916); United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 49 L.Ed. 1089 (1905). Therefore, usufructuary rights may exist even where a tribe no longer has the right to occupy the land associated with those rights. See Minn. v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 201-202, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999) (holding that tribe held nonexclusive-usufructuary rights, which were not linked to land ownership, were not extinguished when the tribe ceded the land on which those rights were associated). To determine whether the Greenville Treaty language abrogates the Tribe’s usufructuary rights when their occupancy ended, the Supreme Court instructs us “to look beyond the written words of the Treaty to the larger context that frames the Treaty, including ‘the history of the treaty, the negotiations, and the practical construction adopted by the parties.’ ” Minn., 526 U.S. at 196, 119 S.Ct. 1187 (quoting Choctaw Nation v. United States, 318 U.S. 423, 432, 63 S.Ct. 672, 87 L.Ed. 877 (1943) and citing El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999)). We must also interpret treaty terms as the Tribe would have understood them. Id.
Here, we could have, as the Tribe argued, distinguished Williams because there the Court did not conduct an inquiry into each Indian tribe’s understanding of the Treaty’s terms when reaching its decision. In particular, the Williams Court did not analyze the historical record and the parties’ understanding of fishing rights. So, even if the Williams Court found that the Pottawatomie Tribe’s usufructuary rights were inextricably linked to their right of occupancy, and that such rights were abrogated when the Pottawatomie Tribe left the territory, we could have reached the opposite conclusion with respect to the Tribe. It is conceivable that, based on the Tribe’s understanding of the Greenville Treaty and the historical record, their understanding of the Treaty language differed from the Pottawatomie Tribe’s. But that leaves a question before us: does the historical record suggest that the Tribe’s fishing rights were a distinct bundle of rights separate from its right to occupy the land associated with those rights. If the Tribe’s fishing rights were a separate bundle of property rights, we would not be bound by Williams.
However, we cannot reach this issue because the historical record provided by the parties includes scant evidence of the Tribe’s understanding of the Treaty terms or usufructuary rights. We have some evidence that some Tribe members were *642reluctant to leave the territory, and that some may have remained in Ohio for a time after the majority of the Tribe left the area. (ROA Vol. 1, pp. 456-57; 459; 464-65.) There is also evidence that the remaining Tribe members continued to hunt on land ceded by treaty. (ROA Vol. 1, p. 465.) But none of this evidence touches upon the. Tribe’s fishing rights, nor does the Tribe make any effort to make a connection between this evidence and the Tribe’s understanding of their usufructuary rights. Further, none of the expert evidence examines the Tribe’s understanding of the Tribe’s fishing rights in relation to the their right to occupy the ceded land. Given this dearth of evidence, it is impossible to parse the Tribe’s right to occupancy from their usufructuary rights, or to raise a genuine issue of material fact on the issue. Thus, I believe, on the record before us, we are bound by Williams.