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Rehnquist, C. J., dissenting
language,2 it perhaps did not intend to extinguish those rights, thus creating an interpretation at odds with the Treaty's language. Then, using our canons of construction that ambiguities in treaties are often resolved in favor of the Indians, it concludes that the Treaty did not apply to the hunting rights.
I think this conclusion strained, indeed. First, the language of the Treaty is so broad as to encompass "all" interests in land possessed or claimed by the Indians. Second, while it is important to the Court that the Treaty "is devoid of any language expressly mentioning—much less abrogating—usufructuary rights," ibid., the definition of "usufructuary rights" explains further why this is so. Usufructuary rights are "a real right of limited duration on the property of another." See Black's Law Dictionary 1544 (6th ed. 1990). It seems to me that such a right would fall clearly under the sweeping language of the Treaty under any reasonable interpretation, and that this is not a case where "even 'learned lawyers' of the day would probably have offered differing interpretations of the [treaty language]." Cf. Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 677 (1979). And third, although the Court notes that in other treaties the United States sometimes expressly mentioned cessions of usufructuary rights, there was no need to do so in this case, because the settled expectation of the United States was that the 1850 Executive Order had terminated the hunting rights of the Chippewa. Thus, rather than applying the plain and unequivocal language of the 1855 Treaty, the Court holds that "all" does not in fact mean "all."
2 One notices the irony that where the President chose to explicitly eliminate the 1837 Treaty rights, the Court finds this specificity subsumed in the "removal order," and invalidates it as well.
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