(dissenting).
Today the majority holds that the 1795 Treaty of Greenville granted the Chippewa no common rights to hunt, fish and rice in the Indian lands of the Northwest Territory because by its language it extends to the Indians no rights “in relation to other tribes,” and because the Chippewa tribe did not “control the Ned’s Lake area.” The court holds, further, that the Chippewa enjoy no hunting and fishing rights by virtue of the 1825 Treaty of Prairie du Chien, partly because “[t]he Sioux could only give the Chippewa hunting rights which were dependent upon their occupancy of the land,” and, since 1837, the Sioux no longer have a right of occupancy in the Ned’s Lake area. Because I believe these conclusions result from culturally-bounded conceptions of property rights, and because I believe the majority has failed to observe the canons of construction which it recognized in Part I of its opinion, I must respectfully dissent.
Article III of the Treaty of Greenville, a peace treaty between the United States and a number of Indian tribes, established a “general boundary line” between the lands of the United States and the lands of the signatory tribes. The United States “relinquished” its claims to Indian lands beyond this line in Article IV of the treaty. The U. S. Supreme Court has, however, made it clear that a treaty is not a relinquishment of rights to Indians, but instead is a grant from the Indians and reserves to the Indians rights not expressly granted. United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905); see also United States v. Washington, 520 F.2d 676, 684 (9th Cir. 1975), cert. denied 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976); United States v. Cutler, 37 F.Supp. 724 (D.Idaho 1941). Since Winans, in which this principle of construction was first articulated, it has never been limited to land cession provisions, as the majority suggests. Nor is it fair to consider Article V in isolation from the whole of the treaty in which it appears, a treaty in which the signatory Indian tribes “ceded” to the United States that land south and east of the boundary line. Thus, we are bound to give effect to the principle that the Treaty of Greenville is a grant from the Indians.
In light of this principle, it is difficult to imagine that by the language of Article V of the treaty — “The Indian tribes who have a right to those lands, are quietly to enjoy them, hunting, planting, and dwelling thereon so long as they please, * * ” — each Indian tribe intended to bind itself to “hunting, planting, and dwelling” on particular tracts of land which are not even identified in the treaty. Such an intention would be utterly contrary to Indian notions of hunting and fishing and ricing rights as arising from ancient tribal economic custom and practice, not, as under Anglo-American real property concepts, as incidents of title or ownership.
As the majority opinion recognizes, the Treaty of Greenville established a boundary line separating Indian land from land claimed by the United States, but it did not divide the Indian land among the individual tribes.1 No inter-tribal boundaries were *723defined until later — in the case of the Chippewa, not until the 1825 Treaty of Prairie du Chien. Moreover, even if such boundaries had been established in 1795, there is no clear indication that they would limit the rights of the individual tribes to hunt and fish and rice on land “belonging” to their neighbors. Indeed, it seems highly unlikely that the individual tribes would have been willing to impose such a limitation with respect to Indian land by this treaty, which in Article VII provides: “The said tribes of Indians, parties to this treaty, shall be at liberty to hunt within the territory and lands which they have now ceded to the United States * * .
The majority places great emphasis on the fact that the Treaty of Greenville did not establish a “reservation” having the same technical characteristics of reservations established in other treaties, but merely granted recognition of the Indians’ “right of occupancy.” Regardless of whether the Indians themselves considered the Northwest Territory a reservation, however, it is clear they considered the land theirs. Government lawyers, who drafted the treaties, could declare “fee title” in the United States, impose it against the Indians, who were unlettered and innocent of Anglo-American concepts of law, and call their rightful claim a “right of occupancy.” This formalistic characterization of the Indians’ rights, and the conclusion that the treaty could not have contemplated common hunting and ricing rights because those rights would intrude on the individual tribes’ occupancy rights, reflect western notions of territoriality and exclusivity of property ownership, a tradition in which the concept of communal use of land is quite foreign. To insist that the treaty must be interpreted to square with these concepts is to ignore the principle of interpretation that “[t]he extent of [the grant of land from the Indians] will be construed as understood by the Indians at that time, * * United States v. Washington, 520 F.2d at 684.2
I would hold that the rights involved in this matter — the rights of the Chippewa Indians to hunt, fish, and harvest wild rice, originally aboriginal rights — ripened into treaty rights when the Treaty of 1795 expressly recognized and guaranteed them. Articles V and VII of the Greenville Treaty expressly recognized and sanctioned these rights both with respect to the land areas explicitly ceded by the signatory tribes to the United States and with respect to the land areas expressly “relinquished” by the United States to the Indians.
These treaty rights tp hunt, fish, and gather rice on Indian land were held in common by the Indian tribes, as recognized in the 1825 Treaty of Prairie du Chien. The 1825 Treaty established boundaries within the Indian lands between the signatory tribes and provided, in Article 13: “[T]he Chiefs of all the tribes have expressed a determination, cheerfully to allow a reciprocal right of hunting on the lands of one another, permission being' first asked and obtained, as before provided for.” The majority opinion finds no establishment of reciprocal hunting rights in these words “[a]s we read [them],” but the language is at *724least ambiguous.3 The opinion states that the presumption in favor of the Indians in the case of such ambiguity need not be exercised here because the real parties to the 1825 treaty were the tribes themselves, with the United States involved only as negotiator. Thus the presumption need not be exercised in favor of one of the signatory tribes against another. The conflict in this case, however, is not between Sioux and Chippewa, but between the State of Minnesota and two Chippewa Indians. The fact that warfare continued between the Sioux and the Chippewa even after the 1825 treaty has no bearing on the question whether reciprocal rights were exchanged at that time. The Journal of Proceedings makes clear that the Indians did understand the 1825 treaty as a peace treaty, but fully expected to go on sharing with each other the fish, game, and wild rice on all tribes’ lands. Journal of Proceedings, Treaty of Prairie du Chien, Clark Papers, typeset copies Vols. 2-3, Manuscript Department, Kansas State Historical Society, at 178.
The notion expressed in the majority opinion that rights to hunt and fish are exclusive and cannot be enjoyed simultaneously without conflict reflects the same cultural limitation which is reflected in the conception that rights the Chippewa enjoy now can only arise from the Sioux’s present ownership of the Ned’s Lake land, as though hunting and fishing rights were easements and originated in the land rather than in economic practice. Both the state and defendants here recognize in their briefs that the land reserved to the Chippewa by the 1825 treaty was vastly inadequate to support their population. This fact in itself persuades me that the Chippewa could not willingly and voluntarily have signed an agreement which would have left them without sufficient food and game to survive. I would interpret the treaties, as I believe the Indians interpreted them, to acknowledge hunting and fishing and ricing rights as separate from rights of ownership of the land itself, not dependent upon, or incident to, fee title.
I would hold, further, that these hunting and fishing and ricing rights were not relinquished by the treaties of 1837 and 1855 because not explicitly surrendered. Citing United States v. Minnesota, 466 F.Supp. 1382 (D.Minn.1979), aff’d sub nom. Red Lake Band of Chippewa Indians v. Minnesota, No. 79-1420, 614 F.2d 1161 (8th Cir. Jan. 31, 1980), the majority opinion concludes that these treaties, by which the Chippewa ceded all “right, title, and interest” to land in Minnesota, extinguished their “aboriginal rights” to hunt, fish or harvest wild rice on such land. In Leech Lake Band of Chippewa Indians v. Herbst, 334 F.Supp. 1001 (D.Minn.1971), however, the district court considered the same language appearing in the Nelson Act, and held that it did not abrogate hunting and fishing rights which “while perhaps in fact dating back many years to an aboriginal right were established in law by treaty ***.*** The United States Supreme Court has counseled us that the abrogation of treaty rights is not to be lightly inferred.” Id. at 1004. It is noteworthy that the Leech Lake Band court found that Chippewa hunting and fishing rights were not extinguished by the 1855 treaty, in which the Indians conveyed “all right, title, and interest * * * in, and to any other lands in the Territory of Minnesota or elsewhere.” Treaty of February 22, 1855, 10 Stat. 1165, Article I. (Emphasis supplied.)
The United States v. Minnesota decision relies, again, on the assumption that hunting and fishing rights are mere incidents of Indian title, extinguished once such title is extinguished. The court cited no authority for that proposition; rather, it relied on two recent United States Supreme Court decisions which construed similar treaty language as effecting the disestablishment of a *725specific Indian reservation.4 However, in Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705,20 L.Ed.2d 697 (1968), the Supreme Court considered statutory language which unequivocally terminated a reservation, and held that it did not abrogate hunting and fishing rights. See Leech Lake Band of Chippewa Indians v. Herbst, 334 F.Supp. at 1005. I would hold the Menominee Tribe decision controlling here: the hunting and fishing rights recognized in the treaty of 1795 and reciprocally exchanged between Sioux and Chippewa in the treaty of 1825 have never been expressly extinguished, and cannot be said to have been terminated by implication.
I would affirm the well-reasoned decision of the district court appeals panel and would hold that while the state may regulate the exercise of the Chippewa Indians’ right to harvest wild rice to the extent reasonable and necessary to conserve the state’s wild rice resources, Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115 (1942), the state may not require them to purchase a license. To affirm the decision of the district court is not to hold that Chippewa Indians may hunt, fish or rice wherever they choose. The relationship of the rights vested in tribal members by the appeals panel decision and the rights of private property owners who have titles traceable to patents granted by the United States government is not presented in this case. As Mr. Justice Todd noted in his concurring opinion in Minnesota v. Clark, 282 N.W.2d at 909, it is doubtful that such private property rights can be affected where there was no specific grant or abrogation of hunting, fishing and ricing rights in the treaties construed, and thus no notice to persons acquiring title to property now possibly subject to rights vested by affirmance of the appeals panel decision. Other cases in which Indians’ hunting and fishing rights were held to survive the claims of private owners involved treaties which expressly guaranteed to the Indians the right to hunt and fish on non-Indian land “in common with [all] citizens of the Territory.” United States v. Winans, 198 U.S. 371, 379, 25 S.Ct. 662, 663, 49 L.Ed. 1089 (1905); Puyallup Tribe v. Dep’t of Game, 391 U.S. 392, 395, 88 S.Ct. 1725,1726, 20 L.Ed.2d 689 (1968); Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 675, 99 S.Ct. 3055, 3069, 61 L.Ed.2d 823 (1979). Thus, private owners having title traceable back to the original patent in those cases were on notice of the Indians’ claims of hunting, fishing and ricing rights on their land. The most we would hold by affirmance is that in areas governed by the circumstances presented here, where individuals generally may hunt, fish or rice and the public water of Ned’s Lake is one such place, Chippewa Indians may hunt, fish or rice without a license.
OTIS, Justice. I join in the dissent of Justice WAHL.. Although the majority recognizes that the Treaty of Greenville did not establish boundaries among the Indian tribes themselves, it nevertheless observes that the Ned’s Lake area was “part of Sioux, not Chippewa, territory.” In Miami Tribe v. United States, 175 F.Supp. 926, 146 Ct.Cl. 421 (1959), the United States Court of Claims described the history of the 1795 treaty and stated:
In 1794, in pursuance of the policy expressed in the above quoted provision of the Northwest Ordinance, General Anthony Wayne was appointed a commissioner to negotiate a treaty with the hostile tribes of the Northwest Territory. In his treaty instructions it was emphasized that he should attempt to bring about an agreement concerning a dividing boundary line between lands used and occupied by the Indian tribes in the territory and the lands which belonged to the United States. He was also instructed to establish the boundry [sic] lines between the lands owned by the separate tribes in the territory. He was authorized to guarantee to *723the Indian tribes the right to the soil in the lands owned by them as against any citizens or inhabitant of the United States. During the course of the negotiations with the Wyandots, Delawares, Shawnees, Ottawas, Chippewas, Pottawatamies, Miamis, Eel River, Weas, Kickapoos, Piankishaws and the Kaskakias, it became apparent that it would not at that time be possible to persuade the tribes to agree to defínite boundaries between their separate areas of occupation and accordingly his treaty instructions were altered to permit him to make a single treaty with all of the tribes establishing the overall boundaries of the land owned by all of them without defining inter-tribal boundaries. (Emphasis added.)
175 F.Supp. at 930. The Miami Tribe court concluded, further, contrary to the majority’s holding here, that the Treaty of Greenville “acknowledged in the Indians the right to permanently occupy and use land.” 175 F.Supp. 936, 937 (Emphasis added.).
. It should also be noted that the treaties were drawn by government lawyers, while the Indians, ignorant of Anglo-American law, were unrepresented by counsel.
. This ambiguity is demonstrated most plainly by the opinion of the district court appeals panel in this case, which discussed Article 13 and concluded: “A fair construction of Article 13 indicates a reciprocal right to hunt was granted at the time of the signing of the treaty.”
. In Minnesota v. Clark, 282 N.W.2d 902 (Minn. 1979), petition for cert, denied, - U.S. -, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980), likewise, we considered language of the Nelson Act and held that it did not disestablish the White Earth Indian Reservation because the Act did not clearly manifest Congressional intent to effect such a disestablishment. Id. at 907, 908. We noted there that “the treaty of 1855 extinguished the Indians’ aboriginal hunting and fishing rights” (emphasis supplied), but hunting and fishing rights were reacquired in the treaty of 1867, despite the fact that it “made no express reference” to such rights. The record revealed that the White Earth Indians relied on hunting and fishing for their basic sustenance, and “undoubtedly” interpreted the 1867 treaty as granting them hunting and fishing rights within the White Earth Reservation which the treaty established.