BOOCHEVER, Circuit Judge:
Lewis and Clark encountered the following scene at an Indian fishing village in 1805:
From time immemorial the junction of the Snake and Columbia rivers had been a favorite gathering place for Indians from throughout the Columbian Plain [T]he river teemed each summer with salmon coming in repeated hordes to the forks....
When the Corps of Discovery reached the confluence, the last of that year’s migration was ending.... The Indians, too, were leaving_ But, like the living salmon, many still remained, the men busy with spears, nets, and weirs, while the women dexterously slit in half and disemboweled, one by one, the fish brought to them and then laid the pieces on wooden scaffolds to dry. Amazed by the number of the structures, Clark tried to find out how far the people had rafted the timbers used in their building.... Meanwhile both captains took note of the unusual houses. They were simple rectangles, fifteen to sixty feet long. Forked timbers supported the ridgepoles; the roof slopes and walls were covered with large mats made of rushes.... Several families, each with its own fireplace, occupied each house.
D. Lavender, The Way to the Western Sea 280-81 (1988). This case requires us to determine whether, in the Treaties of 1855, the Indians ceded their right to maintain structures of the same general type. Now, more than a century after the treaty was negotiated, the government contends for the first time that they may only maintain camping facilities and must remove them when not actively engaged in fishing and fish processing.
The plaintiffs are individual members of the Yakima or Umatilla Indian Tribes and the Chiefs and Council of the Columbia River Indians. They appeal from the district court’s entry of summary judgment and an injunction against them and in favor of the government. The district court held that a regulation of the Department of Interior authorizing the Bureau of Indian Affairs (BIA) to evict the plaintiffs from Indian fishing sites on federally owned land was valid, and entered an injunction requiring the plaintiffs when not engaged in fishing to remove their dwellings from the land. The court dismissed for lack of jurisdiction the plaintiffs’ claim for replacement of fishing lands and buildings flooded by the Bonneville Dam Pool.
FACTS
In 1855, pursuant to a government policy to extinguish Indian title to land in the Pacific Northwest, Isaac Stevens, the Governor of the Washington Territory and Superintendent of Indian Affairs in the Territory, negotiated treaties with the various Indian tribes in the area. See Washington v. Washington State Commercial Passenger Fishing Vessel Ass ’n, 443 U.S. 658, 661-62, 99 S.Ct. 3055, 3062-63, 61 L.Ed.2d 823 (1979); United States v. Washington, 520 F.2d 676, 682 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976); Settler v. Lameer, 507 F.2d 231, 235 (9th Cir.1974); Appropriation Act of March 3, 1853, 10 Stat. 226, 238.
Each treaty concluded as a result of these negotiations contains similar language. The government agreed to set apart certain land as an Indian reservation, pay money, and provide education, medical care, agricultural supplies and tools for the Indians. The Indians agreed to “cede to the United States all their right, title, and claim to all and every part of the country claimed by them” and to “remove to and settle upon the [reservation] within one year after the ratification of [the] treaty” provided “[t]hat the exclusive right of taking fish in the streams running through and bordering said reservation is hereby secured to said Indians; and at all other [1315]*1315usual and accustomed stations, in common with the citizens of the United States, and of erecting [suitable houses or temporary buildings] for curing the same.... ” Treaty With Indians in Middle Oregon, June 25, 1855, 12 Stat. 963-64 (1859); Treaty With the Yakima, 1855, 12 Stat. 951 (1859). Some treaties used the words “suitable houses” or “suitable buildings” while others used the words “temporary houses” or “temporary buildings.” See 12 Stat. 927-980.
The plaintiffs have produced evidence, which will be discussed in detail below, that the Indians continued to maintain the customary structures year-round at these sites until the 1930s. In the 1930s the pool resulting from the construction of the Bonneville Dam submerged many of the Indians’ usual and accustomed fishing stations. The plaintiffs have produced evidence that the pool also flooded wooden houses, removable dwellings, drying sheds, and fishing platforms, and that the Corps of Engineers told the Indians that the government would replace the land and buildings. The replacement land was to consist of approximately 400 acres.
In 1945 Congress appropriated $50,000 for the acquisition of land in Oregon and Washington to replace these fishing grounds. The land acquired was. to be transferred to the Secretary of the Interior for the use and benefit of the Indians, and was to be “subject to the same conditions, safeguards, and protections as the treaty fishing grounds submerged or destroyed.” Act of March 2, 1945, eh. 19, 59 Stat. 10, 22 (1945 Act). The amount available for the acquisition was later increased to $185,000. Act of June 8, 1955, 69 Stat. 85. Slightly more than 40 acres were acquired. These sites are known as the “in-lieu” sites.
The Indian plaintiffs in this case occupy these sites year-round. Some live in houses or trailers which remain year-round, while others use the sites for year-round storage of trailers and other personal property. There is evidence that the Indians fish year-round. The Department of Interi- or issued a regulation effective April 9, 1967 requiring prior approval for placing or maintaining structures on the sites. The regulation also provided:
No permit may be issued for any permanent or semi-permanent structure used for dwelling purposes or for parking any house trailer to be occupied on any such site as a dwelling if such structure or trailer installation does not conform to the health, sanitation, and safety requirements of State or local law.
25 C.F.R. § 255.6 (1968). The regulation clearly implied that year-round dwellings were contemplated. In 1969, however, the Department of Interior promulgated a regulation prohibiting many of the structures then existing. The current version of the regulation provides:
' Sec. 248.6 Structures.
No dwellings or structures shall be erected, placed, or maintained upon the sites, except that camping facilities may be placed thereon only as herein described and fish drying facilities and fishing platforms may be erected by Indians for use during the fishing season. Facilities for camping on the sites shall be limited to tents, tepees, campers, and mobile trailers. All such tents, tepees, campers, and mobile trailers shall be removed from the sites at any time the owners thereof are not actively engaged in fishing, drying fish, or processing fish by other means.
25 C.F.R. § 248.6 (1987). No evictions were threatened until 1984 when the BIA served eviction notices on several of the plaintiffs.
On November 1, 1988, after this case was briefed, Congress appropriated $2,000,-000 for the acquisition and improvement of up to 360 acres of additional land adjacent to the Bonneville Pool to provide fishing access and facilities for the Indians. Act of Nov. 1, 1988, Pub.L. No. 100-581, § 401, 102 Stat. 2938, 2944 (1988).
PROCEDURAL HISTORY
The plaintiffs filed an administrative appeal, arguing that the evictions were based on a misinterpretation of the regulation and that the regulation was invalid. The Interior Board of Indian Appeals (IBIA) determined that the BIA had correctly in[1316]*1316terpreted the regulation and that the IBIA did not have authority to determine the validity of the regulation.
The plaintiffs then filed this suit in the district court. They sought review of the IBIA’s decision that it lacked the authority to determine the validity of the regulation, requesting a remand to the IBIA. They also sought review of the agency’s eviction action and a declaration that the regulation is invalid because it contradicts the 1855 treaties, the subsequent agreements between the Indians and the Corps of Engineers, and the 1945 Act. In addition, the plaintiffs sought either damages for the value of the land and buildings which the government agreed to acquire to replace the lands submerged by the Bonneville Dam, or an order requiring the government to replace them.
The government counterclaimed, seeking to enjoin the plaintiffs from unlawfully occupying the sites and to require them to remove their dwellings, trailers and other structures. The government then filed a motion for summary judgment.
The district court, adopting the recommendation of a magistrate, held that the court should determine the validity of the regulation rather than remand to the IBIA, and that the regulation was valid and enforceable. It granted the government’s motion for summary judgment against the plaintiffs on their claims and in favor of the government on its counterclaim, and entered an injunction requiring the plaintiffs to remove all structures except those permitted by the regulation. The court found it did not have jurisdiction to determine the plaintiffs’ claims for affirmative relief.
DISCUSSION
I. The Jurisdiction of the IBIA to Determine the Validity of the Regulation
We affirm the part of the district court’s order ruling that there was no need to remand to the IBIA because the court could determine the validity of the regulation. The regulations establishing the authority of the IBIA are silent on the issue of whether the IBIA may rule on the validity of a duly promulgated regulation. The IBIA, however, has consistently taken the position that it cannot. See Jones v. Acting Sacramento Area Director, 13 IBIA 124, 125 (1985); Zarr v. Acting Deputy Director, Office of Indian Education Programs, 11 IBIA 174, 177 (1983). We agree that the IBIA was authorized to determine that its jurisdiction did not extend to ruling on the validity of the regulation. See 3 K. Davis, Administrative Law Treatise, § 14.19 (1980).
II. Standard of Review
We review the district court’s grant of summary judgment de novo to determine whether there is a genuine issue of material fact. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 629-30 (9th Cir.1987). A fact is material if it is “relevant to an element of a claim or defense” and if its “existence might affect the outcome of the suit.” Id. at 630. A genuine issue of fact exists if a rational trier of fact might resolve the issue in favor of the party opposing the summary judgment. Id. at 631.
The legality of the evictions in this case depends on the validity of the regulation prohibiting the placement or maintenance of any - dwellings or structures except for certain prescribed types of temporary camping facilities, fish drying facilities and fishing platforms for use during the fishing season, 25 C.F.R. § 248.6 (1987). The validity of the regulation depends on whether it is consistent with the treaties of 1855 and the 1945 Act by which the in-lieu sites were acquired. That Act provided that the land would be “subject to the same conditions, safeguards, and protections as the treaty fishing grounds submerged or destroyed.” 59 Stat. at 22. If the treaties or the 1945 Act reserved the Indians’ right to maintain the structures prohibited by the regulation, then the regulation conflicts with the statute and is invalid.
We review the BIA regulation implementing the treaties and the 1945 Act under the Administrative Procedure Act. United States v. Eberhardt, 789 F.2d 1354, [1317]*13171362 (9th Cir.1986). “The reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; ... [or] in excess of statutory jurisdiction, authority, or limitations, or short of statutory right_” 5 U.S.C. § 706(2)(A), (C) (1988). When reviewing an agency’s construction of a statute or treaty it administers, we first must determine “whether Congress has directly spoken to the precise question at issue.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). “If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Id. at 843 n. 9, 104 S.Ct. at 2782 n. 9; accord Dole v. United Steelworkers of America, — U.S. -, 110 S.Ct. 929, 938, 108 L.Ed.2d 23 (1990). It is only in the absence of clear congressional intent that we review the agency’s interpretation to determine if that interpretation “is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782; See United Steelworkers, 110 S.Ct. at 938.
III. The Validity of the Regulation
We first must determine whether in enacting the 1945 Act, Congress expressed a clear intent to allow year-round dwellings on the in-lieu sites. Employing traditional tools of statutory construction to ascertain the intent of Congress, we look first to the language of that Act. United Steelworkers, 110 S.Ct. at 934. The 1945 Act provides that the lands and facilities replacing those flooded as a result of the construction of the Bonneville Dam were to be transferred to the Secretary of the Interior for the use and benefit of the Indians “subject to the same conditions, safeguards, and protections as the treaty fishing grounds submerged or destroyed.” 59 Stat. at 22. We note initially that Congress did not limit the “conditions, safeguards, and protections” to those afforded by the treaties, but assured preservation of the same conditions as were present on the “fishing grounds submerged or destroyed.” We believe the language of the Act expresses the clear intent of Congress that the in-lieu sites were to be subject to the same conditions and rights the Indians enjoyed on their former lands. “Conditions” is defined as “attendant circumstances: existing state of affairs.” Webster’s Third New International Dictionary 473 (1976). Thus we believe Congress clearly intended that the prior existing state of affairs on the submerged lands was to be duplicated on the in-lieu sites.
The undisputed evidence presented in opposition to the motion for summáry judgment establishes that one of the conditions under which the submerged lands were used by the Indians was maintenance of year-round structures. It is a truism that a picture is worth a thousand words. The record contains photographs of a fishing station shortly before the creation of the Bonneville Dam pool. The photographs show wooden houses and drying sheds as well as tepees and other camping structures. The wooden dwellings obviously are of a type that remained on the land year-round. Before construction of the dam began, the Army Corps of Engineers was advised by the BIA and by the Indians that at least 40 families had houses on the lands that would be flooded. The Corps agreed to rebuild the. houses for the Indians if money was available for this purpose. This conduct further demonstrates that the intent of Congress in the 1945 Act, and the contemporary understanding of those who requested and implemented that Act, was that the Indians would be allowed to maintain their customary, year-round dwellings on the in-lieu sites.
Moreover, by allowing year-round dwellings on the original lands and the in-lieu sites until 1969, the BIA impliedly construed the treaties to allow such structures. "It is well established that ‘where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it [1318]*1318affects the new statute.’ ” St. Regis Mohawk Tribe, New York v. Brock, 769 F.2d 37, 50 (2nd Cir.1985) (quoting Lorillard v. Pons, 434 U.S. 575, 581, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978)), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). Similarly, in Ward v. Commissioner, 784 F.2d 1424 (9th Cir.1986), we held that “long standing court or agency interpretations of a statute are deemed to have been approved by Congress if the statute to which they apply are reenacted by Congress unchanged. When this occurs, those interpretations have the force of law and can only be changed by Congress.” Id. at 1430. While the 1945 Act was not a reenactment of a statute, we must presume that Congress had knowledge of the existing state of affairs on the treaty fishing grounds, including the BIA’s implied interpretation of the treaties, when Congress approved the acquisition of the in-lieu sites. We believe Congress clearly intended that these conditions were to continue on the in-lieu lands.
Another consideration in ascertaining Congress’ intent in enacting the 1945 Act, however, is whether the plain language of the treaties prohibited such year-round use. We would find difficulty in concluding that Congress clearly intended a use plainly prohibited by the treaties.
The district court adopted the magistrate’s recommendation that the plain language of the treaties was unambiguous in prohibiting year-round dwellings on the fishing sites. The treaties, however, state that the Indians retained the right to take fish at their “usual and accustomed stations” and to erect “suitable” or “temporary” houses or buildings for curing the fish. The words of the treaties alone, written 130 years ago, do not provide the answer to the question whether year-round structures were allowed to be maintained.
For example, nothing in the words of the treaties indicates that wooden houses are impermissible, or that any structures must be removed whenever the Indians are not actively engaged in fishing. Even the use of the word “temporary” instead of “suitable” in some of the treaties does not eliminate the ambiguity: it may mean used seasonally during active fishing, or it may mean less enduring than stone. What is “temporary” is relative, depending on the context in which the term is used. When Ozymandias, “king of kings,” had his mammoth statue constructed, saying “Look on my works, ye Mighty, and despair,” he hardly expected that, in time, all that would remain were “Two vast and trunkless legs of stone”.1 On the other hand, we take judicial notice that some of the “temporary housing” constructed by the United States Government during World War II consists of wooden apartments which are still in use today. See Act of Oct. 14, 1940, 54 Stat. 1125 (codified as added and amended 42 U.S.C. § 1571, omitted as executed 1953) (providing for the construction of “temporary housing facilities”). And the fact that in some treaties the word “suitable” was used instead of “temporary” only makes the word’s intended meaning even less clear.
Moreover, special principles govern the interpretation of Indian treaties.2
[W]e will construe a treaty with the Indians as “that unlettered people” under[1319]*1319stood it, and “as justice and reason demand in all eases where power is exerted by the strong over those to whom they owe care and protection,” and counterpoise the inequality “by the superior justice which looks only to the substance of the right without regard to technical rules.”
United States v. Winans, 198 U.S. 371, 380-81, 25 S.Ct. 662, 668-69, 49 L.Ed. 1089 (1905) (quoting Choctaw Nation v. United States, 119 U.S. 1, 28, 7 S.Ct. 75, 91, 30 L.Ed. 306 (1886)); Jones v. Meehan, 175 U.S. 1, 11-12, 20 S.Ct. 1, 5-6, 44 L.Ed. 49 (1899). The treaties were a grant of rights from the Indians to the government, and the “extent of that grant will be construed as understood by the Indians at that time, taking into consideration their lack of literacy and legal sophistication, and the limited nature of the jargon in which negotiations were conducted.” Washington, 520 F.2d at 684; accord Meehan, 175 U.S. at 10-11, 20 S.Ct. at 4-5. Thus, to ascertain the meaning of ambiguous language in Indian treaties, the courts and the BIA “look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.” Choctaw Nation v. United States, 318 U.S. 423, 431-32, 63 S.Ct. 672, 677-78, 87 L.Ed. 877 (1943).
In this case the evidence produced by the plaintiffs and undisputed by the government indicates that the parties to the treaties intended to allow the same type of structures at the fishing sites that had existed prior to the treaty. This conclusion is reinforced by the fact that the words “temporary houses” and “suitable buildings” were used interchangeably, apparently a shorthand attempt to describe the Indian fishing structures of the time.
According to an expert affidavit prepared by anthropologist Dr. Eugene Hunn and offered by the plaintiffs in opposition to the motion for summary judgment, the fishing practices of these Indians at the time of the treaties involved spending six to eight months each year at fishing and hunting sites. Temporary drying sheds were often erected below the high water mark for easy access during the summer and fall salmon runs. The Indians also cured fish in the structures in which they lived. Therefore, according to Dr. Hunn, the Indians’ “usual and accustomed” fishing activities necessarily involved maintaining “permanent”3 residences at the sites year-round.
The words of the treaty likely attempted to describe such buildings, and thus are susceptible of an interpretation that would allow the Indians to use the fishing sites for year-round maintenance of modern equivalent structures. In his affidavit, Dr. Hunn explains that the words of the treaty would have lost much of their meaning during translation into the Indian languages. As translated to the Indians, the concept of ceding the land would have meant that henceforth the Indians would no longer have exclusive possession of the land — they would have to share it with white settlers — but not that they would be deprived of possession altogether. Thus, the Indians understood that the right to take fish at the usual and accustomed stations qualified the requirement of removing to and settling on the reservation. The BIA has filed no affidavit indicating a different understanding by the Indians.
Turning to the “practical construction adopted by the parties,” we note that after the treaties were signed the Indians continued the same lifestyle. Dr. Hunn stated that “it is clear that many of the families that had traditionally resided [at the fishing sites] continued to do so without interruption throughout the post-treaty period, as some have done to the present day.” [1320]*1320The record indicates that prior to the 1969 regulation the government made no attempt to disturb the Indians in their occupancy of the lands. The BIA does not dispute this practical construction of the treaties. In fact, a memorandum prepared by the BIA’s Portland office in 1970 makes a similar finding. Thus, not only under the contemporaneous construction of the treaties, but for more than a century the Indians were permitted to maintain their structures on the land.
Faced with this evidence of the Indians’ understanding of the treaties and of the treaties’ practical construction, we cannot agree with the district court that the plain language of the treaties prohibited year-round dwellings. To the contrary, this evidence tends to show that the parties to the treaties, as well as Congress in the 1945 Act, intended to allow such structures. Because we must follow Congress’ clearly expressed intent in the 1945 Act, we do not reach the issues of the permissibility of the BIA’s implied interpretation of the treaties, or the extent to which we must defer to such an administrative construction.4 See United Steelworkers, 110 S.Ct. at 938.
In light of the evidence and the clear expression of congressional intent that the in-lieu sites were made subject to the same conditions that existed on the flooded lands, we reverse the district court’s grant of summary judgment on this issue. A close question is presented whether summary judgement should be entered in favor of the plaintiffs although they filed no such motion. See 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2720 at 29-30 & n. 20 (2d ed. 1983) and cases cited therein. We believe, however, that the government should be afforded an opportunity to present evidence, if any, that maintenance of year-round structures was not one of the conditions that existed prior to the flooding of the treaty grounds. We remand for a determination of the conditions that existed prior to the enactment of the 1945 Act on the treaty fishing grounds submerged or destroyed.5
[1321]*1321IV. The Plaintiffs’ Claim for Replacement Lands
The plaintiffs argue that the government has breached a series of agreements in which the government promised to acquire 400 acres of land to replace the flooded fishing sites and replace the buildings which were flooded. They seek either damages or the replacement of land and buildings submerged by the Bonneville Dam. The district court dismissed this claim, holding that it was essentially a claim based on contract, and because the amount in controversy exceeded $10,000, the Tucker Act barred relief in the district court. See 28 U.S.C. §§ 1346(a)(2), 1491 (1982).
We need not decide this issue, however, for we find that the plaintiffs’ claim for replacement land is moot. After the briefing in this case was completed, legislation was enacted appropriating $2,000,000 for the acquisition of up to 360 acres of additional land “to provide access to usual and accustomed fishing areas and ancillary fishing facilities.” Act of Nov. 1, 1988, Pub.L. No. 100-581, § 401, 102 Stat. 2938, 2944 (1988). This would bring the area of land and facilities acquired to replace the fishing lands destroyed by the Bonneville Dam to over 400 acres, satisfying the plaintiffs’ demands.
V. Attorneys’ fees
The plaintiffs seek attorney’s fees on appeal under the Equal Access to Justice Act, 28 U.S.C. § 2412. Because there has been no final judgment in this action, this request is premature. See Papazian v. Bowen, 856 F.2d 1455, 1456 (9th Cir.1988); 28 U.S.C. § 2412(d)(1)(B).
AFFIRMED in part, REVERSED in part, and REMANDED.