Full Opinion

In the United States Court of Appeals For the Seventh Circuit ____________________ Nos. 23-2309 and 23-2467 BAD RIVER BAND OF THE LAKE SUPERIOR TRIBE OF CHIPPEWA INDIANS OF THE BAD RIVER RESERVATION, Plaintiff-Appellee, Cross-Appellant, v. ENBRIDGE ENERGY COMPANY, INC. and ENBRIDGE ENERGY, L.P., Defendants-Appellants, Cross-Appellees. ______________________________________________________ ENBRIDGE ENERGY COMPANY, INC. and ENBRIDGE ENERGY, L.P., Counter-Plaintiffs, Appellants/Cross-Appellees, v. BAD RIVER BAND OF THE LAKE SUPERIOR TRIBE OF CHIPPEWA INDIANS OF THE BAD RIVER RESERVATION, and NAOMI TILLISON, Counter-Defendants, Appellees/Cross-Appellants. ____________________ Appeals from the United States District Court for the Western District of Wisconsin. No. 3:19-cv-00602-wmc — William M. Conley, Judge. ____________________ 2 Nos. 23-2309 & 23-2467 ARGUED FEBRUARY 8, 2024 — DECIDED JULY 30, 2026 ____________________ Before EASTERBROOK, SCUDDER, and ST. EVE, Circuit Judges. SCUDDER, Circuit Judge. Enbridge Energy Company, Inc. owns and operates Line 5, a pipeline carrying oil and natural gas liquids between the United States and Canada. In north- ern Wisconsin, the pipeline runs under 12 miles of land within the Bad River Reservation. In 2013, Enbridge’s rights-of-way across certain parcels of Reservation land expired, but the company has not removed Line 5 or altered its route. In 2019, the Bad River Band, which holds ownership inter- ests in these parcels, sued Enbridge in federal court for tres- pass. The Band also brought a federal common law claim of nuisance, pointing to the risk of Line 5 rupturing (and then spilling oil) in an area where the Bad River has rapidly eroded the land supporting the pipeline. The district court found for the Band on both claims. Based on the trespass, it awarded the Band $5,151,668 in past restitution and ordered Enbridge to remove Line 5 from the affected parcels by June 2026. To abate the nuisance, the district court ordered Enbridge to adopt a proactive plan for monitoring and responding to the risk of pipeline exposure. Both parties appealed. Do not let this summarized retelling mask the complexity of this case, or the magnitude of the interests on both sides— all of which has the ongoing attention of both the United States and Canada given the tribal, environmental, and com- mercial issues at stake. In the final analysis, we agree that Enbridge is trespassing. We remand, however, to the district court to refashion the remedies it imposed for this violation. Nos. 23-2309 & 23-2467 3 Finally, we conclude that federal statutory law has displaced the Band’s nuisance claim. I A. Legal and Historical Background We begin with the legal and historical backdrop that gives rise to the conflict before us. “Indian tribes are ‘separate sovereigns pre-existing the Constitution.’” Lac Courte Oreilles Band of Lake Superior Chip- pewa Indians of Wisc. v. Evers, 46 F.4th 552, 555 (7th Cir. 2022) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978)). And they retain sovereign status to this day, even as the United States has expanded across their historical territory. See Puerto Rico v. Sanchez Valle, 579 U.S. 59, 70 (2016). The na- ture of this sovereignty is qualified, however, because tribes are “‘domestic dependent nations,’ subject to plenary control by Congress.” Id. (quoting Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831)). This plenary authority comprehends “full power to legislate concerning … tribal property.” Winton v. Amos, 255 U.S. 373, 391 (1921); see also Haaland v. Brackeen, 599 U.S. 255, 275 (2023) (affirming that Congress’s “well established and broad” power to legislate “with respect to Indians” en- compasses “a wide range of areas, including … property”). Over time, the federal government has taken different ap- proaches to Indian land policy. While early “tribal relations were mostly a matter for the President’s Article II treatymak- ing powers,” Lac Courte Oreilles Band, 46 F.4th at 556, Congress took the helm during the “Allotment Era” beginning in the late nineteenth century, see Davilla v. Enable Midstream Part- ners L.P., 913 F.3d 959, 963 (10th Cir. 2019); see also County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 4 Nos. 23-2309 & 23-2467 502 U.S. 251, 253–56 (1992) (describing the history of allot- ment). During this period, “Congress carved reservations into allotments and assigned the land parcels to tribal members,” initially permitting allottees to freely alienate the land upon receiving it. Pub. Serv. Co. of N.M. v. Barboan, 857 F.3d 1101, 1104 (10th Cir. 2017). When this policy led to the rapid and extensive loss of Indian lands, Congress opted for a “trust- based model” in which “the United States retained legal title of allotted parcels while Indian allottees received equitable ti- tle.” Davilla, 913 F.3d at 963. Allotment came to an end with the passage of the Indian Reorganization Act of 1934, ch. 576, 48 Stat. 984 (codified as amended at 25 U.S.C. §§ 5101–5144). The Act “halted further allotments,” “extended indefinitely the existing periods of trust” for many allotted lands, and authorized the acquisition in trust of certain lands for tribes. Yakima, 502 U.S. at 255. The effects of the Allotment Era are long-enduring, however, with many reservations left a “checkerboard of tribal, individual Indian, and individual non-Indian interests.” Barboan, 857 F.3d at 1105. Meanwhile, Congress sought to ensure that “conduits of modern commerce … could span the continent without en- cumbrance.” Davilla, 913 F.3d at 964 (cleaned up). To that end, it enacted a series of “right-of-way statutes” in the first half of the twentieth century. Id. In two places in the U.S. Code, Con- gress delegated to the Secretary of the Interior the exclusive authority to grant easements for pipeline operation over In- dian lands. Congress empowered the Secretary “to grant rights-of-way for all purposes, subject to such conditions as he may prescribe, over and across any lands now or hereafter held in trust by the United States for individual Indians or In- Nos. 23-2309 & 23-2467 5 dian tribes.” 25 U.S.C. § 323. Congress also authorized the Secretary “to grant a right-of-way in the nature of an ease- ment for the construction, operation, and maintenance of pipe lines for the conveyance of oil and gas through any Indian reservation” limited to a term of 20 years. Id. § 321. With each provision, Congress subjected the Secretary’s authority to the same key limitation: “No grant of a right-of- way over and across any lands belonging to a tribe … shall be made without the consent of the proper tribal officials.” Id. § 324. For “[r]ights-of-way over and across lands of individ- ual Indians,” the Secretary generally needs the consent of a majority of the equitable interest holders. Id. B. The Parties and Line 5 The parties to this appeal inherit this legacy of history and law. In 1854, the United States entered a treaty with several Ojibwe (anglicized to Chippewa) tribes that “set apart” land as their permanent homes. See Treaty with the Chippewa, Chippewa-U.S., arts. 2, 11, Sept. 30, 1854, 10 Stat. 1109; see also Lac Courte Oreilles Band, 46 F.4th at 559–60 (describing the 1854 Treaty). This 1854 Treaty created the Bad River Reservation, which spans some 125,000 acres in northern Wisconsin and abuts Lake Superior. The Reservation is home to the plaintiffs here, the Bad River Band of the Lake Superior Tribe of Chippewa Indians. The Reservation is no exception to the checkerboarding of ownership that characterizes much post- Allotment Era Indian land. This means that the United States holds some parcels of Reservation land in trust for the Band and some for individual Indians. 6 Nos. 23-2309 & 23-2467 Running underground through 12 miles of the Reserva- tion is Line 5, a pipeline that transports over 20 million gallons of crude oil and natural gas liquids each day from Superior, Wisconsin to Sarnia, Ontario. Enbridge Energy Company, Inc. owns Line 5, which is part of a larger network of pipelines carrying petroleum products from Western Canada to refin- eries in the Midwest, Ontario, and Quebec. Line 5’s path through the Reservation is approximately 60 feet wide, and the 12-mile span makes up less than 2% of the pipeline’s total length of 645 miles. Where Line 5 crosses land held by the United States for the Band or individual Indians, the right-of-way statutes dictate that Enbridge needs approved easements from the Depart- ment of the Interior to operate. See 25 U.S.C. §§ 321, 323. For some time, this requirement posed no major obstacle for Enbridge or its predecessor. In 1953, when Line 5 was first constructed, Enbridge obtained from the Bureau of Indian Af- fairs a single 20-year easement covering all Indian lands within the Line 5 pipeline corridor across the Reservation. When that easement expired in the 1970s, the Bureau renewed it for another 20 years. In the early 1990s, however, negotiations to renew the easement a second time became more complicated. By then, the pipeline corridor included 13 parcels held in trust by the United States for the sole beneficial ownership of the Band. We will call these the “Tribal Parcels.” But this land, spanning about 2.8 miles, did not comprise the entire pipeline corridor. Line 5 also crossed 15 parcels of allotment land—interspersed between the Tribal Parcels—held in trust by the United States for the benefit of individual Indian owners with fractional ownership shares. Nos. 23-2309 & 23-2467 7 With the 1970s easement set to expire in June 1993, the Bu- reau of Indian Affairs directed Enbridge to negotiate with the Band for its consent to a renewed easement across the 13 Tribal Parcels. See 25 U.S.C. § 324; 25 C.F.R. § 169.3(a) (1992). The Bureau also indicated that it would work with Enbridge to obtain the landowner consent necessary for the allotted lands. In June 1992, Enbridge submitted multiple easement renewal applications to the Bureau: one application listing the 13 Tribal Parcels and 15 separate applications for the plots of allotment land. Enbridge and the Band proceeded to negotiate. Six months later, in December, they signed the 1992 Agreement, a con- tract conferring the Band’s consent to a 50-year right-of-way over the Tribal Parcels in exchange for $800,000. The Band’s Tribal Council, its governing body, also passed two resolu- tions authorizing and supporting the 1992 Agreement. In Feb- ruary 1993, after reviewing this documentation, the Bureau of Indian Affairs granted Enbridge a 50-year easement to oper- ate its pipeline over the Tribal Parcels. This right-of-way will not expire until June 2, 2043, and the issues before us do not include the Tribal Parcels. With an easement over the Tribal Parcels secured, Enbridge turned its attention to the 15 parcels of allotment land. It negotiated directly with the Bureau of Indian Affairs, which as early as spring 1992 had communicated its intention to grant only 20-year easements over these parcels. True to its word, in May 1993, the Bureau issued 20-year easements over the 15 plots of allotted land after obtaining the consent of the requisite Indian landowners. By their terms, these easements came to an end on June 2, 2013, and obligated Enbridge to re- 8 Nos. 23-2309 & 23-2467 move the pipeline and restore the affected lands within six months of expiration. An important development occurred between 1993 and 2013. During that period, the Band acquired ownership inter- ests in 11 of the 15 allotted parcels by participating in a land reacquisition program made possible by the Indian Land Consolidation Act, Pub. L. No. 97-459, 96 Stat. 2515 (1983) (codified as amended at 25 U.S.C. §§ 2201–2221). In the Con- solidation Act, Congress sought to “help tribes buy back lost land” after the fractionalization wrought by allotment. Bar- boan, 857 F.3d at 1106. By 2016, the Band had at least a frac- tional ownership interest in 12 of the formerly allotted parcels in the pipeline corridor. We will call these 12 trust parcels in which the Band has obtained some ownership interest the “Allotted Parcels.” In 2013, then, Enbridge faced a foreseeable predicament. Its 50-year easement over the Tribal Parcels continued for an- other 30 years, but its rights-of-way over the Allotted Parcels were set to expire in June 2013. The predicament came from the mismatch in these expiration dates: Line 5 cannot operate on the Tribal Parcels without crossing the Allotted Parcels. Accordingly, in March 2013, Enbridge submitted renewal ap- plications to the Bureau of Indian Affairs. These applications, however, contained no documentation showing Indian land- owner consent, still a statutory prerequisite for agency ap- proval. See 25 U.S.C. § 324; 25 C.F.R. § 169.19 (2013). And, given the Band’s new ownership interests, the right-of-way statutes now compelled Enbridge to obtain tribal consent to renewed easements across the Allotted Parcels. See 25 C.F.R. § 169.3(a) (2013). Nos. 23-2309 & 23-2467 9 These circumstances led Enbridge and the Band to enter a multi-year negotiation for tribal consent. The Band sought de- tailed environmental and pipeline safety information from the company, influenced by a 2010 incident in which a differ- ent Enbridge pipeline had spilled over 1 million gallons of crude oil into a tributary of the Kalamazoo River in Michigan. While Enbridge provided information in response, the parties were unable to come to an agreement. In 2017, and again in 2019, the Band’s Tribal Council issued a resolution indicating it would not consent to renewed rights-of-way across the Al- lotted Parcels. Enbridge, however, has not removed Line 5 from the Allotted Parcels or ceased its operation in the Bad River Reservation. This stalemate led to litigation. C. The District Court Proceedings In 2019, the Band sued Enbridge in federal court in Wis- consin. It brought claims of trespass and unjust enrichment under federal common law based on the company’s contin- ued operation of Line 5 across the 12 Allotted Parcels. The Band also brought a federal common law claim of nuisance, focusing on the risk of pipeline rupture at a bend of the Bad River known as “the meander.” Enbridge responded with several counterclaims, including a breach-of-contract claim alleging that the 1992 Agreement compels the Band to consent to renewed easements over the Allotted Parcels. Outside the courtroom, Enbridge began working on a plan to reroute Line 5 around the Bad River Reservation—a lengthy and as yet in- complete process requiring both state and federal permits. In September 2022, the district court entered summary judgment for the Band on its trespass and unjust enrichment 10 Nos. 23-2309 & 23-2467 claims and on Enbridge’s breach-of-contract counterclaim, concluding that the company has no legal right to operate across the Allotted Parcels. The case then proceeded to a bench trial on the appropriate remedies for the trespass and the merits of the Band’s nuisance claim. In June 2023, the district court awarded the Band $5,151,668 in restitution for the past trespass and unjust en- richment and, on a forward-looking basis, ordered Enbridge to continue disgorging a portion of its profits while Line 5 re- mains in operation over the Allotted Parcels. The district court also issued an injunction, ordering Enbridge to cease operation of Line 5 over the Allotted Parcels by June 16, 2026—in other words, in three years from the date of its deci- sion. The district court further found that Enbridge’s contin- ued operation of Line 5 at the Bad River meander was a public nuisance and, as part of its injunctive relief, directed Enbridge to adopt a more robust monitoring and shutdown plan. Both parties have appealed aspects of the district court’s rulings. We have also received submissions from Canada and, at our invitation, the United States. While this appeal was un- der advisement in our court, the district court stayed the por- tion of its injunction ordering a June 16, 2026, shutdown of Line 5 on the Allotted Parcels. II We begin with Enbridge’s challenge to the district court’s entry of summary judgment in favor of the Band on its tres- pass claim and, by the same token, on the company’s breach- of-contract claim. We review the district court’s decisions by undertaking our own independent review of the facts and the law. See Sig- Nos. 23-2309 & 23-2467 11 nal Funding, LLC v. Sugar Felsenthal Grais & Helsinger LLP, 136 F.4th 718, 726 (7th Cir. 2025). Summary judgment is appropri- ate when, construing the facts and drawing all reasonable in- ferences in favor of Enbridge, the Band is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). A. The Law Governing the Trespass Claim We start by clarifying the law governing the Band’s tres- pass claim. The Supreme Court has recognized that “Indians have a federal common-law right to sue to enforce their abo- riginal land rights.” Oneida County v. Oneida Indian Nation of N.Y. State, 470 U.S. 226, 235 (1985). Neither party disputes that this cause of action extends to the Band’s suit to vindicate its ownership interest in the Allotted Parcels or that federal com- mon law supplies the rule of decision. See id. at 236 (“[A]bsent federal statutory guidance, the governing rule of decision would be fashioned by the federal court in the mode of the common law.” (quoting Oneida Indian Nation of N.Y. State v. Oneida County, 414 U.S. 661, 674 (1974))); see also United States v. Milner, 583 F.3d 1174, 1182 (9th Cir. 2009) (“Federal com- mon law governs an action for trespass on Indian lands.”). This leaves us to determine the content of that federal common law. We often look to general principles of tort law, as reflected in the Restatement of Torts, to inform the content of federal common law. See Milner, 583 F.3d at 1182 (“[Federal common law] generally comports with the Restatement of Torts ….”). At times, our fellow circuits have borrowed from state tort law for trespass claims involving Indian land. See, e.g., Davilla, 913 F.3d at 965; Nahno-Lopez v. Houser, 625 F.3d 1279, 1282 (10th Cir. 2010); see also Milner, 583 F.3d at 1182 n.6 (acknowledging that “it may be appropriate to borrow from state law for the rule of decision”). 12 Nos. 23-2309 & 23-2467 Our decision here is made easier because Wisconsin law tracks the Restatement’s definition of trespass. See Movrich v. Lobermeier, 905 N.W.2d 807, 813 (Wis. 2018) (referencing Re- statement (Second) of Torts (A.L.I. 1965) §§ 158, 160 to explain general principles of trespass under Wisconsin law); Grygiel v. Monches Fish & Game Club, Inc., 787 N.W.2d 6, 18 (Wis. 2010) (similar). Both bodies of law counsel that a person is liable for trespass who enters or remains upon land in the possession of another without the possessor’s consent or another legal privilege. See Restatement (Second) of Torts §§ 158, 329; Grygiel, 787 N.W.2d at 18. B. Enbridge’s Trespass on the Allotted Parcels With this law in mind, we turn to the merits of the Band’s trespass claim and Enbridge’s counterclaim for breach of con- tract. The basic facts underlying the Band’s contentions are undisputed. By their terms, Enbridge’s rights-of-way over the Allotted Parcels—land in which the Band owns interests—ex- pired on June 2, 2013. The company nonetheless continues to transport crude oil and natural gas liquids through Line 5 across the Allotted Parcels. Enbridge does not contest that the Band’s fractional own- ership interests in the Allotted Parcels satisfy the possession element of a federal common law trespass action. Nor does it quibble with whether Line 5’s ongoing operation across the Allotted Parcels is an entry upon the land. See Restatement (Second) of Torts § 160 (recognizing that the failure to remove a structure or other thing from the land can be a trespass). The parties’ disagreement comes on only one element of the Band’s trespass claim, whether Enbridge has consent or another privilege to remain on the Allotted Parcels despite the Nos. 23-2309 & 23-2467 13 presumptive expiration of its easements in June 2013. The company offers two bases to conclude that it may continue legally operating Line 5 over this land: the Band’s consent and the protection of 5 U.S.C. § 558(c), a provision of the Admin- istrative Procedure Act. Neither contention persuades us. 1. The Band’s Consent “Consent to entry onto the land is a defense to an action for trespass.” Grygiel, 787 N.W.2d at 18 (cleaned up); see also Restatement (Second) of Torts § 158 cmt. e (recognizing that “[c]onduct which would otherwise constitute a trespass is not a trespass if it is privileged,” including privilege “deriv[ing] from the consent of the possessor”). “Consent is willingness in fact for conduct to occur,” Restatement (Second) of Torts § 892, and “[t]he burden of establishing the possessor’s con- sent is upon the person who relies upon it,” id. § 167 cmt. c; see also Grygiel, 787 N.W.2d at 18. Start with the obvious. The Band has not affirmatively provided either written or verbal consent to easements per- mitting Enbridge to operate Line 5 across the 12 Allotted Par- cels post-June 2013. Indeed, the Band’s Tribal Council for- mally resolved in 2017 and 2019 not to renew Enbridge’s in- terests in the land. Presumptively, then, Enbridge is trespass- ing. The company resists this conclusion, directing our atten- tion further back in time to the 1992 Agreement in which the Band provided Enbridge a 50-year easement over the Tribal Parcels. Enbridge contends that this same 1992 Agreement ob- ligates the Band to consent to renewed rights-of-way over the Allotted Parcels. As the company sees it, the Band’s failure to agree to such easements constitutes a breach of the Band’s ex- 14 Nos. 23-2309 & 23-2467 press and implied contractual commitments and, without this breach, Enbridge would have the consent it needs to defeat the Band’s trespass claim. See Restatement (Second) of Torts § 892A(1) (“One who effectively consents to conduct of an- other intended to invade his interests cannot recover in an ac- tion of tort for the conduct or for harm resulting from it.”). We therefore proceed to the 1992 Agreement, with another preliminary comment on choice of law. The parties again agree that “federal law” governs Enbridge’s contract claim, but we see some ambiguity in this term. On the one hand, this likely refers to federal common law, which often controls when the United States—a sovereign like the Band—is a con- tracting party. See, e.g., United States v. Segal, 938 F.3d 898, 904 n.3 (7th Cir. 2019). On the other hand, we do not readily apply federal common law whenever contracting parties invoke it. See Downey v. State Farm Fire & Cas. Co., 266 F.3d 675, 680–81 (7th Cir. 2001) (surveying recognized grounds for applying federal common law to contracts). And Enbridge and the Band seem to agree that we can also look to Wisconsin law, perhaps recognizing that state law may supply the content of federal common law. See Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 690–92 (2006). Here again, though, we see no daylight between federal contract principles and Wis- consin law that would alter our analysis. See First Bank & Trust v. Firstar Info. Servs., Corp., 276 F.3d 317, 322 (7th Cir. 2001) (canvassing principles of contract interpretation under Wisconsin law). Nor do the parties devote time to identifying differences in or disputing the relevant contracting principles. Under either view of the governing law, our task is to as- certain whether the 1992 Agreement, by its terms, obligates the Band to consent to renewed easements for rights-of-way Nos. 23-2309 & 23-2467 15 permitting Line 5’s operation across the Allotted Parcels. See 11 Richard A. Lord, Williston on Contracts § 32:2 (4th ed. 1999) (“[T]he cardinal principle of contract interpretation is that the intention of the parties must prevail …. [These inten- tions] are first and foremost[] determined by the language used in their agreement.”); First Bank, 276 F.3d at 322 (“When interpreting an agreement [under Wisconsin law], the court’s objective is to ascertain the true intentions of the parties as ex- pressed by the contractual language.” (cleaned up)). Although a difficult question, we do not read the 1992 Agreement to reflect such a commitment by the Band. The contract’s provisions address a straightforward exchange of Enbridge’s funds for the Band’s consent over the 13 Tribal Parcels, not the Allotted Parcels. Specifically, in Section 1, the Band agreed that: The Secretary [of the Interior] may grant to the Company a right of way for the construction, operation and maintenance of a pipeline for fifty (50) years within the Existing Right of Way. Said pipeline right of way shall be granted pur- suant to and in accordance with the Tribal Council’s Resolution Granting Pipeline Right of Way, the form of which is attached and marked Exhibit “A.” The consideration and damages to be paid by the Company for such pipeline oper- ation and right of way and associated damages is the sum of Eight Hundred Thousand Dollars ($800,000.00), which sum shall be paid as set forth herein. Other portions of the 1992 Agreement shed light upon the meaning of this provision. The Agreement defines the “Exist- 16 Nos. 23-2309 & 23-2467 ing Rights of Way” as “that portion of the Original Rights of Way in which the Tribe now”—meaning as of December 1992—“has a legal interest.” The contract also defines “Origi- nal Rights of Way” to encompass both the tribal and “allotted lands” over which the pipeline was originally constructed in 1953. Putting these pieces together, the 1992 Agreement acknowledges the varied ownership of the swath of parcels running under the pipeline. But it then limits the Band’s con- sent to a right-of-way over only that subset in which it had a known legal interest in 1992—the Tribal Parcels. The Tribal Council’s Resolution, attached to the 1992 Agreement as Exhibit A, reinforces this understanding. See Williston on Contracts § 30:25 (recognizing that “the parties to a contract may incorporate terms by reference to a separate, noncontemporaneous document”). The Resolution, dated just two days before the execution of the 1992 Agreement, de- scribes how Enbridge had requested consent: [F]or a fifty (50) year right of way easement for a pipeline over and across any lands in which the Tribe has a legal interest within the Com- pany’s existing rights of way, all as is described more fully in the Company’s Application for Right of Way dated June 10, 1992. The Tribal Council then resolved to “consent[] to the Com- pany’s requests and Application,” asking the Secretary of the Interior “to approve and grant the Application and the rights of way.” Following the thread, Enbridge’s Tribal Lands Ap- plication, dated June 10, 1992, attached a “Tribal Land Sched- ule” listing and precisely describing the 13 Tribal Parcels. Nos. 23-2309 & 23-2467 17 Considering these documents together, we agree with the district court’s assessment that the Band’s consent reflected in the 1992 Agreement began and ended with easements over the Tribal Parcels. Read this way, the Agreement obligates the Band to provide the consent needed under 25 U.S.C. § 324 for Enbridge to obtain an approved right-of-way over only spe- cific, identified parcels of land. This the Band has done, and this easement over the Tribal Parcels continues in place through 2043. Enbridge urges a different interpretation, focusing on lan- guage in Section 3 of the 1992 Agreement that commits the parties to action beyond the four corners of the contract: The Tribe and the Company will do whatever they can reasonably do to ensure that all of the objectives of the Tribe and the Company, as those objectives are expressed in this Agree- ment, are achieved, even if it means that one or both of the parties must do something which is not expressly described herein. One of the Com- pany’s objectives under this Agreement is to ob- tain from the Tribe all consents and authoriza- tions it is possible for the Company to obtain, whether necessary or not to obtain a fifty (50) year easement for Right of Way for a pipeline over the Company’s existing pipeline Right of Way in which the Tribe has an interest. Enbridge seizes on this language to insist that its “objec- tives” included securing Line 5’s uninterrupted operation for 50 years across the Reservation as a whole or, at a minimum, across the Tribal Parcels. Even more, Enbridge reads the last sentence to commit the Band to providing any consent or au- 18 Nos. 23-2309 & 23-2467 thorization it might possibly give the company, whether re- lated to the Tribal Parcels or other land in which the tribe holds an interest. Enbridge, in short, sees Section 3 as requir- ing the Band to approve easements over later-acquired par- cels in the pipeline corridor to avoid thwarting these objec- tives. No doubt the language in Section 3 is broad. But we do not think it sweeps as far as Enbridge presents. Recall that our task is to discern what the parties intended at the time of con- tracting. We are therefore reluctant to read the set of promises embodied in Section 3 as limitless. Beginning with the final sentence of Section 3, which Enbridge highlights, we do not see this as a promise from the Band to confer upon Enbridge any consent or authorization within its power during the life of the 1992 Agreement. Such an interpretation would produce the absurd result of commit- ting the Band to provide an unspecified set of consents, po- tentially sweeping far beyond the scope of the contract. See BKCAP, LLC v. CAPTEC Franchise Tr. 2000-1, 572 F.3d 353, 359–60 (7th Cir. 2009) (declining to rely on the plain language of the contract if doing so would be absurd). It is far more plausible to see the “consents and authorizations” language within Section 3 as limited by the language coming after the comma that ties these approvals to the “existing Pipeline Right of Way in which the Tribe has an interest,” or said an- other way, the Tribal Parcels. Considering Section 3 overall, we also doubt that the pro- vision encompasses a promise from the Band to consent to rights-of-way over any parcel in the pipeline corridor it might acquire in the future. We read the 1992 Agreement as a whole, see Restatement (Second) of Contracts § 202(2) (A.L.I. 1981), Nos. 23-2309 & 23-2467 19 and the precise focus of its other provisions on the Tribal Par- cels advises against reading Section 3 to indirectly impose ob- ligations on the Band that stretch beyond that land. Remem- ber, too, that at the time of contracting, Enbridge was a so- phisticated commercial party negotiating an important con- tract. The company was also well aware that the Tribal Parcels did not span the entire portion of Line 5 on the Reservation. If it intended Section 3 to secure the Band’s consent over fu- ture acquisitions in the pipeline corridor, Enbridge could have insisted on more explicit language and provided consid- eration for such a promise. And clear language matters here, as we heed the Supreme Court’s instruction to proceed with caution before reading a contract to restrict a tribe’s sovereign control over its own ter- ritory. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 148 (1982) (“Without regard to its source, sovereign power, even when unexercised, is an enduring presence that governs all contracts subject to the sovereign’s jurisdiction, and will re- main intact unless surrendered in unmistakable terms.”). The Court has long endorsed “the canon of construction” that “an ambiguous term of a grant or contract” will not “be construed as a conveyance or surrender of sovereign power.” United States v. Winstar Corp., 518 U.S. 839, 876 (1996) (plurality opin- ion) (collecting cases). “The application of the [canon] thus turns on whether enforcement of the contractual obligation alleged would block the exercise of a sovereign power of the Government.” Id. at 879 (plurality opinion). Tribal sovereignty is deeply tied to control over land. See Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991) (“Indian tribes … exercise inherent sovereign authority over their members and 20 Nos. 23-2309 & 23-2467 territories.”); Cohen’s Handbook of Federal Indian Law § 18.01 (Nell Jessup Newton & Kevin K. Washburn, eds., 2024) (“Land forms the basis for social, cultural, religious, political, and economic life for American Indian nations.”). Indeed, “a hallmark of Indian sovereignty is the power to exclude non- Indians from Indian lands.” Merrion, 445 U.S. at 141; see also Cohen’s Handbook § 5.01[2][d] (“Because the exclusionary power is a fundamental sovereign attribute intimately tied to a tribe’s ability to protect the integrity and order of its territory and the welfare of its members, it is an internal matter over which the tribes retain sovereignty.”). “Tribes possess inherent sovereign authority to determine who may enter the reservation; to define the conditions upon which they may enter; to prescribe rules of conduct; and to expel those who enter the reservation without proper authority.” Swinomish Indian Tribal Community v. BNSF Ry. Co., 951 F.3d 1142, 1153 (9th Cir. 2020) (cleaned up). By virtue of the 1854 Treaty, the Band exercises its sover- eign power over the Bad River Reservation—a point of em- phasis for the United States in its amicus submission. See Brief of the United States as Amicus Curiae Supporting Partial Re- versal at 31 (“[The Band’s sovereign land rights] stem from the Band’s treaty with the United States and include a treaty right of occupancy on the Reservation with all its beneficial incidents, including the power to exclude others from the Band’s lands.” (cleaned up)); see also 1854 Treaty, arts. 2, 11 (conferring the Band permanent occupancy rights). The Band’s sovereign authority extends to the Allotted Parcels, in which the Band acquired ownership under the auspices of a federal program designed to restore tribal sovereignty in the post-Allotment Era. See Barboan, 857 F.3d at 1106 (discussing federal efforts to assist tribes with repurchasing land); Indian Nos. 23-2309 & 23-2467 21 Land Consolidation Act Amendments of 2000, Pub. L. No. 106-462, § 102 note (describing a goal of the Indian land reac- quisition program as “consolidat[ing] fractional interests in a manner that enhances tribal sovereignty”). All of this leaves us unwilling to accept Enbridge’s claim that the Band intended in the 1992 Agreement to restrict its sovereign authority to exclude the company from later- acquired parcels in the Line 5 pipeline corridor. To grant Enbridge the relief it seeks—a declaration that the Band must consent to easements over the Allotted Parcels—we would need to mandate that the Tribal Council take an affirmative act affecting the terms upon which the company may remain on the Reservation. See Winstar, 518 U.S. at 879 (instructing us to look at “the effect of a contract’s enforcement”). Such a judicial directive would strike at the heart of tribal sovereignty. We cannot read Section 3 of the 1992 Agreement to bind the Band’s current governing body in this way without clear, even unmistakable, contractual language. The language in Section 3 is not clear enough to cross this high threshold. Enbridge disagrees, telling us that the Band’s power to grant or deny an easement over the Allotted Parcels is not an exercise of sovereign authority, but instead the act of a private landowner. But this perspective “confuse[s] the Tribe’s role as commercial partner with its role as sovereign.” Merrion, 455 U.S. 145–46 & n.12 (“Over tribal lands, the tribe has the rights of a landowner as well as the rights of a local government, dominion as well as sovereignty.” (quoting F. Cohen, Hand- book of Federal Indian Law 439 (1942)) (cleaned up)). Indeed, we view the tribal consent requirement codified in 25 U.S.C. § 324 as recognizing tribal sovereign power to dictate the terms 22 Nos. 23-2309 & 23-2467 upon which non-tribal entities can enter tribal land. See Rights-of-Way on Indian Land, 80 Fed. Reg. 72,492, 72,505–06 (Nov. 19, 2015) (“Consenting to rights-of-way on trust or re- stricted land is one of several tools, including entering into leases, that animate the traditional notions of sovereignty ….” (cleaned up)). Given all this, we decline to read the contract to impliedly restrict the Band’s power to deny Enbridge rights- of-way over the Allotted Parcels. A similar analysis resolves Enbridge’s claim that the Band’s refusal to approve renewed easements on the Allotted Parcels breaches the implied duty of good faith and fair deal- ing. We recognize that “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” Restatement (Second) of Contracts § 205; see also Betco Corp., Ltd. v. Peacock, 876 F.3d 306, 310 (7th Cir. 2017) (describing Wisconsin law). This includes contracts involving a sovereign entity. Cf. Metcalf Const. Co., Inc. v. United States, 742 F.3d 984, 991 (Fed. Cir. 2014) (recognizing the implied duty applies to contracts with the United States). The implied duty requires each party to honor the spirit of an agreement by performing consistently with the other’s “justified expectations.” Restatement (Second) of Contracts § 205 cmt. a; see also Betco, 876 F.3d at 310 (“A party may breach its implied duty of good faith when it follows the letter but not the spirit of an agreement ….” (cleaned up)). While it may hold parties to actions beyond those named expressly in the contract, “[t]he implied duty of good faith and fair dealing is limited by the original bargain: it prevents a party’s acts or omissions that … are inconsistent with the contract’s purpose and deprive the other party of the contemplated value.” Metcalf, 742 F.3d at 991. Nos. 23-2309 & 23-2467 23 With the Supreme Court’s direction in Merrion in mind, we are hesitant to apply the implied duty of good faith and fair dealing imposed by the 1992 Agreement so expansively as to hinder the Band’s sovereign power over the Allotted Parcels. It is,