210
Rehnquist, C. J., dissenting
Articles 3 and 4 of the Treaty deal with cash payments to persons not parties to this suit, but Article 5 is involved here. As the Court notes, there was some discussion during the treaty negotiations that the Chippewa wished to preserve some right to hunt in the ceded territory. See ante, at 176. The United States agreed to this request to some extent, and the agreement of the parties was embodied in Article 5 of the Treaty, which provides that:
"The 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." 7 Stat. 537.
As the Court also notes, the Chippewa were aware that their right to come onto the ceded land was not absolute— the Court quotes the statement of Governor Dodge to the Chippewa that he would " 'make known to your Great Father, your request to be permitted to make sugar, on the lands; and you will be allowed, during his pleasure, to hunt and fish on them.' " Ante, at 176; App. 46 (1837 Journal of Treaty Negotiations).
Thus, the Treaty by its own plain terms provided for a quid pro quo: Land was ceded in exchange for a 20-year annuity of money and goods. Additionally, the United States granted the Chippewa a quite limited "privilege" to hunt and fish, "guarantied . . . during the pleasure of the President." Art. 5, 7 Stat. 537.
II
In 1850, President Taylor expressly terminated the 1837 Treaty privilege by Executive Order. The Executive Order provides:
"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
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