Oneida Nation v. Village of Hobart, Wisconsin

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19‐1981

ONEIDA NATION,

Plaintiff‐Appellant,

v.

VILLAGE OF HOBART,

Defendant‐Appellee.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 1:16‐cv‐01217 — William C. Griesbach, Judge.

____________________

ARGUED APRIL 13, 2020 — DECIDED JULY 30, 2020

____________________

Before SYKES, Chief Judge, and HAMILTON and ST. EVE, Cir‐

cuit Judges.

HAMILTON, Circuit Judge. The Oneida Nation’s Big Apple

Fest has become a test of power and jurisdiction between the

Nation and the Village of Hobart, Wisconsin. The Oneida Na‐

tion in Wisconsin hosts its annual Big Apple Fest on land par‐

tially located in the Village of Hobart. In 2016 the Village de‐

manded that the Nation obtain a permit under a Village ordi‐

nance and submit to some of the Village’s laws. The Nation

2 No. 19‐1981

sued for declaratory and injunctive relief, arguing that the Vil‐

lage may not subject the Nation to state and local law on its

own reservation. In the meantime, the Nation held the festival

without a permit, and the Village issued a citation for violat‐

ing the ordinance.

To resolve this dispute, we must trace the history of the

Oneida Reservation from its establishment by treaty in 1838

through a series of allotment acts passed by Congress around

the turn of the twentieth century. If the Reservation remains

intact, then federal law treats the land at issue as Indian coun‐

try not subject to most state and local regulation. The Village

argues that the Reservation was diminished piece by piece

when Congress allotted the Reservation among individual

tribe members and allowed the land to be sold eventually to

non‐Indians. The district court agreed and granted summary

judgment in favor of the Village.

We reverse. The Reservation was created by treaty, and it

can be diminished or disestablished only by Congress. Con‐

gress has not done either of those things. The governing legal

framework—at least when the issue was decided in the dis‐

trict court and when we heard oral argument—was clear. Un‐

der Solem v. Bartlett, 465 U.S. 463 (1984), we look—from most

important factor to least—to statutory text, the circumstances

surrounding a statute’s passage, and subsequent events for

evidence of a “clear congressional purpose to diminish the

reservation.” Id. at 476. After this case was argued, the Su‐

preme Court decided McGirt v. Oklahoma, 140 S. Ct. 2452

(2020). We read McGirt as adjusting the Solem framework to

place a greater focus on statutory text, making it even more

difficult to establish the requisite congressional intent to dis‐

No. 19‐1981 3

establish or diminish a reservation. The Oneida Nation pre‐

vails under both the Solem framework and the adjustments

made in McGirt.

The undisputed facts show no congressional intent to di‐

minish. First, the statutory texts provide no clear indication

that Congress intended to eliminate all tribal interests in allot‐

ted Oneida land. Second, the Supreme Court has rejected—

time and time again—the Village’s argument that diminish‐

ment can be the result of Congress’s general expectation in the

late nineteenth and early twentieth centuries that its actions

would lead eventually to the end of the reservation system.

These general expectations do not show an “unequivocal[]”

contemporary understanding that the statutes would dimin‐

ish the Reservation and effectively abrogate the United States’

treaty with the Oneida. Solem, 465 U.S. at 471. The Village’s

argument that Congress intended to diminish the Reservation

by allowing land to pass out of Indian hands is antithetical to

Solem and the well‐established legal framework for diminish‐

ment. Third, events following Congress’s enactment of the

relevant statute (or statutes) cannot alone support a finding of

diminishment in the absence of textual or contextual support.

Even if they could, the evidence offered by Village is so incon‐

clusive that it could not justify a finding that the United States

unilaterally broke the 1838 Treaty.

The Village’s alternative arguments for affirmance also

fail. The Nation is not bound by a 1933 judgment in a federal

case brought by some of its individual members. And the Vil‐

lage has not shown “exceptional circumstances” that could

justify imposing its Special Events Ordinance on the Nation

within the boundaries of the Reservation. California v. Cabazon

Band of Mission Indians, 480 U.S. 202, 215 (1987). In sum, as a

4 No. 19‐1981

matter of federal law, the entire Reservation as established by

the 1838 Treaty remains Indian country. The Village lacks ju‐

risdiction to apply its ordinance to the Nation’s on‐reserva‐

tion activities. We remand with instructions to enter judgment

in favor of the Nation.

I. Background

A. History of the Oneida Reservation

In 1838, the Oneida Reservation was established by treaty

with the United States. Treaty with the Oneida, Feb. 3, 1838,

art. 2, 7 Stat. 566. The Treaty reserved to the Oneida Tribe “a

tract of land containing one hundred (100) acres, for each in‐

dividual, and the lines of which shall be so run as to include

all their settlements and improvements in the vicinity of

Green Bay.” Id. The Treaty called for the United States to sur‐

vey land for the reservation “as soon as practicable.” Id. art. 3.

After taking a census of the Oneida, a reservation of approxi‐

mately 65,000 acres was surveyed and established in compli‐

ance with the Treaty.

This Treaty was the culmination of almost two decades of

relocation. The Oneida were members of the Iroquois Federa‐

tion, with their homeland in New York. Like so many other

tribes during the removal period (ca. 1828–1847), some of the

Oneida were compelled—after years of encroachment, ero‐

sion of their land base, and pressure from both federal and

state governments—to move west. This process resulted in

the 1838 Treaty, in which the United States agreed to establish

a reservation for the Oneida in exchange for the Oneida ced‐

ing “all their title and interest” in other land in Wisconsin that

had previously been set apart for the Oneida and other New

York tribes by earlier treaties. Treaty with the Oneida, art. 1,

No. 19‐1981 5

citing Treaty with the Menominee, Feb. 8, 1831, 7 Stat. 342,

and Treaty with the Menominee, Oct. 27, 1832, 7 Stat. 405.1

Toward the end of the nineteenth century, Congress began

a nationwide policy of encouraging individual ownership of

Indian reservation land. For nearly fifty years, beginning with

the General Allotment Act of 1887 (also known as the Dawes

Act), ch. 119, 24 Stat. 388, and ending with the Indian Reor‐

ganization Act of 1934, ch. 576, 48 Stat. 984, Congress followed

a policy of allotting to individual tribe members reservation

lands that had been held in severalty by the respective tribes.

“The objectives of allotment were simple and clear cut: to ex‐

tinguish tribal sovereignty, erase reservation boundaries, and

force the assimilation of Indians into the society at large.”

County of Yakima v. Confederated Tribes & Bands of the Yakima

Indian Nation, 502 U.S. 251, 254 (1992), citing In re Heff, 197 U.S.

488, 499 (1905).

The results of the allotment policy were disastrous for In‐

dians, although the policy was driven at least in part by a pa‐

ternalistic but misguided belief that forced assimilation and

individual land ownership would benefit them. E.g., D.S.

Otis, The Dawes Act and the Allotment of Indian Lands 8 (1973)

(proponents of allotment believed it would “make restitution

to the Indian for all that the white man had done to him in the

past”), and Francis P. Prucha, The Great Father: The United

1 The Nation submitted as evidence several expert reports describing

this history in much greater detail. Frederick E. Hoxie, A History of Rela‐

tions Between the Oneida Nation and the United States of America 1776–1934,

at 23–49 (Nov. 15, 2017), ECF No. 92‐2; R. David Edmunds, The Oneida

Indian Reservation in Wisconsin—Its Land, Its People, and its Governance,

1838–1938, at 3–11 (Nov. 15, 2017), ECF No. 92‐5.

6 No. 19‐1981

States Government and the American Indians 895 (1984) (“pri‐

mary function” of allotment was “to turn the Indians gener‐

ally into agriculturalists”).

The Dawes Act, enacted in 1887, was a generally applica‐

ble statute that authorized the allotment of Indian reservation

lands to individual tribe members. The Act granted the Pres‐

ident discretion to allot any Indian reservation to the mem‐

bers of the tribe and to issue land patents (i.e., titles) to allot‐

tees to be held in trust by the United States for twenty‐five

years. §§ 1, 5. After this trust period, the patents would issue

in fee to the individual allottees, though the President was

given discretion to extend the trust period indefinitely. § 5.

After the government completed the allotment and issued the

trust patents, allottees would “be subject to the laws, both civil

and criminal, of the State or Territory in which they may re‐

side.” § 6. The Dawes Act also authorized the President to ne‐

gotiate with tribes whose reservations had undergone allot‐

ment for the “purchase and release” of surplus lands left over

after allotment. § 5.

The Oneida Reservation in Wisconsin was allotted soon af‐

ter passage of the Dawes Act. President Benjamin Harrison

approved the allotment, and an agent of the Office of Indian

Affairs was assigned in June 1889 to carry it out. The Reserva‐

tion was split into 1,530 allotments for tribal members with 80

acres reserved for establishing schools and a small amount of

land set aside for future allotments. Trust patents were issued

on June 13, 1892, with fee patents set to issue to allottees

twenty‐five years later, in 1917.

In 1906, Congress amended Section 6 of the Dawes Act to

speed the allotment process. Act of May 8, 1906 (Burke Act),

ch. 2348, 34 Stat. 182. The Burke Act gave the Secretary of the

No. 19‐1981 7

Interior the discretion to issue “a patent in fee simple,” free of

all restrictions, to any allottee “competent and capable of

managing his or her affairs” before the expiration of the

twenty‐five‐year trust period. 34 Stat. at 182. The Burke Act

also made Indian allottees citizens subject to state law “at the

expiration of the trust period” rather than upon issuance of

the trust patent. Id. at 181. The Dawes Act, originally and as

amended by the Burke Act, contained no reference to reserva‐

tion boundaries, to tribal interests in reservation land, or to

any particular reservation.

A month after passing the Burke Act, Congress then spe‐

cifically addressed the Oneida Reservation allotments in an

appropriations act for the Office of Indian Affairs. Act of June

21, 1906, ch. 3504, 34 Stat. 325, 380–81. In addition to provid‐

ing appropriations and addressing other matters relevant to

Indian affairs, the statute made specific adjustments to the im‐

plementation of the Dawes Act on various Indian reserva‐

tions. The provisions specific to the Oneida authorized the

Secretary of the Interior “in his discretion, to issue fee‐simple

patents” to 56 named Oneida allottees, id. at 380, and reiter‐

ated the authority of the Secretary to issue fee‐simple patents

to Oneida allottees. Id. at 381.

Over the next few decades, many of the Oneida Reserva‐

tion allotments were fee‐patented. Most of these parcels were

eventually conveyed to non‐Indians by sale, foreclosure, or

enforcement of tax liens. Oneida Tribe of Indians of Wis. v. Vil‐

lage of Hobart, 542 F. Supp. 2d 908, 912 (E.D. Wis. 2008); see

also James W. Oberly, The Dawes Act and the Oneida Indian Res‐

ervation of Wisconsin, in The Oneida Indians in the Age of Allot‐

ment, 1860–1920 194–95 (Laurence M. Hauptman & L. Gordon

McLester III, eds., 2006). By 1917, only 106 Oneida allotments

8 No. 19‐1981

remained in trust, and over 50,000 of the 65,000 acres of reser‐

vation land were owned by non‐Indians.

This pattern of land loss was not unusual. Allotment

“proved disastrous for the Indians.” Hodel v. Irving, 481 U.S.

704, 707 (1987). Across the United States, the majority of res‐

ervation land left Indian hands: two‐thirds of allotted land

passed into non‐Indian ownership, and another 60 million

acres were lost under the surplus lands program. Judith

Royster, The Legacy of Allotment, 27 Ariz. St. L.J. 1, 10–13 (1995).

By the late 1920s, the policy of allotment was recognized as a

failure. E.g., Lewis Meriam, Inst. for Government Research,

The Problem of Indian Administration 7, 41 (1928); Readjust‐

ment of Indian Affairs: Hearings on H.R. 7902 Before the Commit‐

tee on Indian Affairs, 73d Cong. 15 (1934) (as a result of allot‐

ment, Indians “drift[ed] toward complete impoverishment”

and lost their land) (statement of John Collier, Commissioner

of Office of Indian Affairs).

In 1934, federal policy toward Indian lands turned 180 de‐

grees. Congress passed the Indian Reorganization Act of 1934,

ch. 576, 48 Stat. 984, not only to stem the loss of Indian land

holdings brought on by allotment but also to give tribes the

opportunity to re‐establish their governments and land hold‐

ings. “The intent and purpose of the [Act] was ‘to rehabilitate

the Indian’s economic life and to give him a chance to develop

the initiative destroyed by a century of oppression and pater‐

nalism.’” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152

(1973), quoting H.R. Rep. No. 1804, at 6 (1934). The 1934 Act

brought an end to allotment, indefinitely extending the trust

period on all remaining trust patents. §§ 1–2. The Act allowed

tribes to organize and adopt constitutions with a congres‐

sional sanction of self‐government. § 16. It also authorized the

No. 19‐1981 9

Secretary of the Interior to acquire lands to be placed into trust

for tribes. § 5.

The Oneida Nation made use of this program to re‐estab‐

lish its tribal government and to rebuild its land base. In 1934,

Oneida tribal members voted in favor of organizing under the

Indian Reorganization Act. In 1936, the Oneida Constitution

was approved by the Secretary of the Interior and by the

Oneida themselves. Since then, the Nation has acquired in fee

many of the parcels that had previously been allotted and sold

to non‐Indians. And as of December 2017, the United States

has placed approximately 14,000 acres of land into trust for

the Nation.

B. The Big Apple Fest

Since 2009, the Nation has held an annual cultural event

called the Big Apple Fest. The Big Apple Fest is free and open

to the public. It is intended to educate the public about Oneida

history and culture, and it offers a range of activities. The

event is subject to the Nation’s laws and regulations. Oneida

Nation personnel (including police) oversee the event to en‐

sure compliance with the Nation’s ordinances pertaining to

health, public safety, waste disposal, and sanitation.

The Village of Hobart is an incorporated municipality of

the State of Wisconsin located entirely within the Oneida Res‐

ervation boundaries established by the 1838 Treaty. In 2016,

the Village adopted its Special Event Ordinance, No. 03‐2016,

codified at ch. 250, Village of Hobart Municipal Code. The Or‐

dinance applies to:

Any temporary event or activity occurring on

public or private property that interferes with or

differs from the normal and ordinary use of the

10 No. 19‐1981

property or adjacent public or private property

which, due to the number of people involved,

timing of the event, or other similar factors

deemed reasonably relevant by the Village,

would require Village services beyond those

normally provided.

Id. § 250‐5. Under the Ordinance, no “person”—defined

broadly enough to include the Nation—may conduct a special

event within the Village without obtaining a special event per‐

mit from the Village. Id. §§ 250‐5, 250‐6. The Ordinance also

imposes a range of conditions on special events and effec‐

tively imposes all relevant Village ordinances on permit hold‐

ers by reserving the right to “shut down a special event that

is in progress” if “there is a violation of Village ordinances,

state statutes or the terms of the applicant’s permit.” Id. § 250‐

7(I). The Village informed the Nation that it would either have

to apply for and obtain a permit for the 2016 Big Apple Fest

or face a penalty under the Ordinance.

The Nation did not apply for a permit and instead con‐

ducted the 2016 Big Apple Fest under its own laws.2 The event

took place on both land held in trust for the Nation by the

United States and fee land owned by the Nation and located

within the Village. All of this land was within the 1838 Treaty

boundaries of the Reservation.

After the 2016 Big Apple Fest, the Village issued a citation

to the Nation for holding the event without a permit. The ci‐

tation imposed a $5,000 fine on the Nation. The citation in‐

structed the Nation to appear in municipal court, but those

2The Nation did obtain permission from state and county authorities

to divert state highway traffic during the event.

No. 19‐1981 11

proceedings have been stayed pending the outcome of this ac‐

tion.

C. This Federal Lawsuit

The Nation filed this action before the 2016 Big Apple Fest

in response to the Village’s demand that it comply with the

Ordinance. The Nation sought declaratory and injunctive re‐

lief on two claims: that application of the Ordinance to the

Nation is preempted by federal law and that the imposition

of the Ordinance is an impermissible infringement on the Na‐

tion’s power of self‐government. The Village asserted several

affirmative defenses and counterclaims, including for a de‐

claratory judgment that the Ordinance was enforceable on

some or all of the Nation’s land. The district court allowed the

Village discovery on the issues of disestablishment, diminish‐

ment, and the scope of the Big Apple Fest. It denied discovery

on the Nation’s status as a federally‐recognized tribe under

the Indian Reorganization Act, determining that recognition

was a political question inappropriate for judicial review.

Following discovery, the Nation and the Village both

moved for summary judgment. The district court found that

the Reservation had been diminished at least to the extent that

allotted land had passed into fee simple ownership and had

been conveyed to non‐Indians. The district court did not iden‐

tify which of these two events (issuing patents to Indians or

passage of title to non‐Indians) actually diminished the Res‐

ervation. Nor did it identify which of the relevant statutes—

the Dawes Act, the Burke Act, or the Oneida Provision of the

1906 Appropriations Act—was responsible for the diminish‐

ment of the Reservation, though its reasoning suggests that

the Dawes Act alone would have been enough. The district

court relied heavily on the general expectations of Congress

12 No. 19‐1981

in the late nineteenth century regarding the future of Indian

reservations. The court also assumed that Congress intended

land that passed into ownership by non‐Indians to lose its res‐

ervation status. Under this reasoning, the Nation would be

left with a much‐diminished Reservation of about 14,000 acres

consisting only of its trust land.

The district court determined that the Village had the au‐

thority to impose the Ordinance on the Nation—on fee land

at least—because such land did not constitute Indian country

under 18 U.S.C. § 1151(a). The district court also determined

that the Reservation had not been disestablished, rejecting an

argument by the Village that the Nation was bound by a judg‐

ment in a 1933 suit brought by individual members of the Na‐

tion. The Nation’s claims were denied, and the case was dis‐

missed.

As explained below, the district court’s decision was based

on legal errors that departed from decades of Supreme Court

precedent. The district court’s reliance on Congress’s general

expectations about the decline of the reservation system was

contrary to the requirement that Congress clearly express its

intent to diminish a reservation. And its conclusion that fee‐

simple ownership—by Indians or non‐Indians—was incom‐

patible with continued reservation status is at odds with the

Supreme Court’s cases on diminishing reservations.

II. Discussion

A. Legal Standard

We review de novo the district court’s grant of summary

judgment. Wisconsin v. Ho‐Chunk Nation, 784 F.3d 1076, 1079

(7th Cir. 2015). If the land where the Big Apple Fest takes place

is Indian country, then the Oneida Nation has jurisdiction

No. 19‐1981 13

over its own activities on its land and is not subject to regula‐

tion by the Village. See California v. Cabazon Band of Mission

Indians, 480 U.S. 202, 207 & n.5 (1987) (local and state govern‐

ments lack authority to regulate tribes in Indian country in

absence of exceptional circumstances); United States v. Ma‐

zurie, 419 U.S. 544, 557 (1975) (Indian tribes retain “attributes

of sovereignty over both their members and their territory”).

A federal statute defines Indian country to include “all

land within the limits of any Indian reservation under the ju‐

risdiction of the United States Government, notwithstanding

the issuance of any patent, and, including rights‐of‐way running

through the reservation.” Act of June 25, 1948, ch. 645, § 1151,

62 Stat. 757, 757, codified at 18 U.S.C. § 1151(a) (emphasis

added).3 The Village argues that this statute is not relevant

and cannot be applied “retroactively” because it was enacted

in 1948, after the alleged diminishment of the Oneida Reser‐

vation. “Indian country” is a statutory term of art that had a

narrower meaning in the mid‐ to late‐1800s than it currently

does, limited to land to which Indian title had not been extin‐

guished. See Ex parte Kan‐gi‐Shun‐ca, 109 U.S. 556, 560 (1883),

citing Act of June 30, 1834, ch. 161, § 1, 4 Stat. 729, 729.

The issue here, however, is not whether the land was “In‐

dian country” at the time Congress passed the legislation at

issue. In applying § 1151(a), we are concerned with reservation

status, which did not and does not depend on Indian title.

United States v. Celestine, 215 U.S. 278, 285–87 (1909). The 1948

Indian country statute codified that reservation status and

3 This definition is found in the federal criminal code but applies to

questions of both civil and criminal jurisdiction. Cabazon Band of Mission

Indians, 480 U.S. at 207 n.5.

14 No. 19‐1981

tribal jurisdiction do not depend on “the issuance of any pa‐

tent” and clarified the sometimes confusing jurisdictional cat‐

egories of “Indian country” and “Indian reservation” that

were already in the process of being aligned in the early 1900s.

See, e.g., Donnelly v. United States, 228 U.S. 243, 269 (1913) (In‐

dian country encompasses reservation land regardless of

whether Indian title has been extinguished). And the Su‐

preme Court has repeatedly applied the 1948 Indian country

statute to determine whether reservations allotted during the

late 1800s and early 1900s retained their reservation status.

E.g., McGirt v. Oklahoma, 140 S. Ct. 2452, 2464 (2020); Seymour

v. Superintendent, 368 U.S. 351, 357–58 (1962).

B. Reservation Status: The Standard for Diminishment

The boundaries of the Oneida Reservation were estab‐

lished by the 1838 Treaty, and those boundaries can be

changed only by Congress. The Oneida never agreed to any

change in the treaty‐established boundaries that were sup‐

posed to be “binding on the contracting parties,” including

the United States. Treaty with the Oneida, art. 5. Instead, the

Village relies on Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

In Lone Wolf, several Indian tribes challenged a new statute

opening up about two million acres of reservation land to

non‐Indian settlement. The tribes relied on a treaty provision

for allotting such land that required signed consent by three‐

fourths of the adult male tribe members. The tribes alleged

that the number of signatures was not sufficient and that the

signatures actually obtained had been obtained by fraud.

The Supreme Court did not decide whether the federal

government had complied with the treaty. Instead, in lan‐

guage that can be jarring for twenty‐first century readers, the

No. 19‐1981 15

Court held that Congress was free to pass legislation breaking

treaties with Indians:

The [tribe’s contention that the treaty must be

enforced] in effect ignores the status of the con‐

tracting Indians and the relation of dependency

they bore and continue to bear towards the gov‐

ernment of the United States. To uphold the

claim would be to adjudge that the indirect op‐

eration of the treaty was to materially limit and

qualify the controlling authority of Congress in

respect to the care and protection of the Indians,

and to deprive Congress, in a possible emer‐

gency, when the necessity might be urgent for a

partition and disposal of the tribal lands, of all

power to act, if the assent of the Indians could

not be obtained.

Id. at 564.

The power exists to abrogate the provisions of

an Indian treaty, though presumably such

power will be exercised only when circum‐

stances arise which will not only justify the gov‐

ernment in disregarding the stipulations of the

treaty, but may demand, in the interest of the

country and the Indians themselves, that it

should do so. When, therefore, treaties were en‐

tered into between the United States and a tribe

of Indians it was never doubted that the power

to abrogate existed in Congress, and that in a

contingency such power might be availed of

from considerations of governmental policy,

16 No. 19‐1981

particularly if consistent with perfect good faith

towards the Indians.

Id. at 566. Lone Wolf thus held that if Congress chose to break

a treaty with an Indian tribe, the courts would allow it to do

so without judicial remedy. See also id. at 565 (“It is to be pre‐

sumed that in this matter the United States would be gov‐

erned by such considerations of justice as would control a

Christian people in their treatment of an ignorant and de‐

pendent race.”), quoting Beecher v. Weherby, 95 U.S. 517, 525

(1877).

That harsh rule has been mitigated by what is in effect a

strong clear‐statement rule: Congress may exercise this power

to break a treaty, but it must do so clearly, not by inference or

indirection. Congressional intent to break its treaty pledges

“is not to be lightly imputed.” Menominee Tribe of Indians v.

United States, 391 U.S. 404, 413 (1968). “Once a block of land is

set aside for an Indian Reservation and no matter what hap‐

pens to the title of individual plots within the area, the entire

block retains its reservation status until Congress explicitly in‐

dicates otherwise.” Solem, 465 U.S. at 470 (emphasis added), cit‐

ing Celestine, 215 U.S. at 285. Accord, e.g., Nebraska v. Parker,

136 S. Ct. 1072, 1078–79 (2016) (“Only Congress can divest a

reservation of its land and diminish its boundaries, and its in‐

tent to do so must be clear.”) (quotation marks and brackets

omitted); Celestine, 215 U.S. at 290–91 (allotment act must “be

construed in the interest of the Indian” to continue federal

guardianship absent “clear” evidence of congressional in‐

tent). We will not “lightly assume that Congress in fact in‐

tends to undermine Indian self‐government,” Michigan v. Bay

Mills Indian Community, 572 U.S. 782, 790 (2014), and must

No. 19‐1981 17

“resolve any ambiguities in favor of the Indians.” South Da‐

kota v. Yankton Sioux Tribe, 522 U.S. 329, 344 (1998).

Based on these principles of statutory construction, the

framework for determining whether Congress has dimin‐

ished a reservation has been “well settled.” Parker, 136 S. Ct.

at 1078. We first look to the statutory text, which provides the

“most probative evidence of diminishment.” Id. at 1079, quot‐

ing Hagen v. Utah, 510 U.S. 399, 411 (1994). Next, we look to

whether the circumstances surrounding the legislation “une‐

quivocally reveal a widely‐held, contemporaneous under‐

standing that the affected reservation would shrink.” Solem,

465 U.S. at 471; see also Parker, 136 S. Ct. at 1080; Wisconsin v.

Stockbridge–Munsee Community, 554 F.3d 657, 663 (7th Cir.

2009). Last, we consider the later demographic history and the

United States’ later treatment of affected areas, which have

“some evidentiary value” and can “reinforce” a conclusion

suggested by the text. Parker, 136 S. Ct. at 1081 (brackets omit‐

ted), citing Solem, 465 U.S. at 471, and Mattz v. Arnett, 412 U.S.

481, 505 (1973). Neither this court nor the Supreme Court has

ever found the requisite congressional intent to diminish

based on only this last factor.4

C. Applying the Solem Diminishment Framework

Applying the Solem framework shows that Congress has

not expressed intent to diminish the Oneida Reservation, let

alone done so clearly. Each time the Supreme Court has ap‐

plied the Solem framework and found a reservation to be dis‐

established or diminished, a tribe‐specific statute expressly

4 We read McGirt as adjusting this framework by establishing statu‐

tory ambiguity as a threshold for any consideration of context and later

history. 140 S. Ct. at 2468.

18 No. 19‐1981

removed a definite portion from the reservation at the time of

enactment. In each such case, that conclusion was dictated by

statutory text or unequivocal contemporary understanding

drawn from legislative history or negotiations in which the

tribe agreed to give up part of its reservation.

The Village’s theory departs from this framework in three

important ways. First, the Village relies on a theory of incre‐

mental diminishment. Without a statute expressly removing

a portion of the Oneida Reservation, the Village argues that

Congress intended to diminish the Reservation to an un‐

known degree—and at many unknown points in the future—

as allotted land would be passed into fee ownership by indi‐

vidual Indians and then sold to non‐Indians parcel by parcel.

Such a haphazard pattern of diminishment would produce an

impracticable checkerboard pattern of state and Indian juris‐

diction. The Supreme Court has rejected legal theories that

would produce such checkerboards of tribal or state jurisdic‐

tion based on the identity of the fee owner. E.g., Moe v. Con‐

federated Salish & Kootenai Tribes of the Flathead Reservation,

425 U.S. 463, 479 (1976); Seymour, 368 U.S. at 358. The Village’s

theory also relies on the notion that reservation status de‐

pends on whether individual tribe members own the particu‐

lar parcels. The Supreme Court has also rejected this theory

repeatedly over the past century, beginning with Celestine.

Second, the Village relies on Congress’s general expecta‐

tion during the allotment era that Indian reservations and

tribal identity would fade away as Indians embraced individ‐

ual land ownership and assimilated. The Village presents

none of the kinds of contemporary evidence that the Supreme

Court or this court has found to be compelling evidence of

No. 19‐1981 19

congressional intent to diminish. Congress’s general expecta‐

tion that allotment would lead to the end of the reservation

system is simply not enough to establish diminishment. So‐

lem, 465 U.S. at 468–69.

Third, the Village’s theory is not limited to an act of Con‐

gress specifically addressing the Oneida Reservation—in‐

deed, it is not even tied to the text of a statute.5 Instead, the

Village asks us to find congressional intent to diminish in the

two generally applicable statutes that were used to allot many

Indian reservations in the late 1800s. See Brief for National

Congress of American Indians and Indian Land Tenure Foun‐

dation as Amici Curiae 26–27. The Village’s argument that di‐

minishment can result from Congress’s general expectations

regarding widely‐applicable allotment statutes would lead to

the conclusion that many other reservations—including at

least one that the Supreme Court has held to be intact—have

been diminished. See Mattz, 412 U.S. at 495, 505–06 (reserva‐

tion allotted under the Dawes Act was not disestablished;

land within reservation boundaries was still Indian country).

Having highlighted the key flaws in the Village’s dimin‐

ishment theory, we now consider each of the Solem factors. We

see no evidence that Congress has acted to diminish the

Oneida Reservation.

5 The Village does argue that the 1906 Oneida Provision indicated con‐

gressional intent to diminish, but the bulk of its argument is devoted to

the generally applicable Dawes and Burke Acts. And the same logic un‐

derlies both arguments for diminishment.

20 No. 19‐1981

1. Statutory Text

The Village correctly concedes that the relevant statutes—

the 1887 Dawes Act, the 1906 Burke Act, and the 1906 Oneida

Provision—lack hallmark language of diminishment. And it

could not argue otherwise given the clear language of the stat‐

utes. Each statute moved members of the Nation toward indi‐

vidual ownership of Reservation land in fee, but none ad‐

dressed the status of the Reservation or the underlying tribal

interests in Reservation land. To provide a textual basis for

diminishment, the statutes would have to contain “[e]xplicit

reference to cession or other language evidencing the present

and total surrender of all tribal interests[, which] strongly

suggests that Congress meant to divest from the reservation.”

Solem, 465 U.S. at 470, citing DeCoteau v. District County Court,

420 U.S. 425, 444–45 (1975); see also, e.g., DeCoteau, 420 U.S. at

445–46 (statute ratifying agreement with tribe to “cede, sell,

relinquish, and convey” reservation land in exchange for a

sum certain reflected congressional intent to disestablish the

reservation); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 597

(1977) (statute provided that tribe would “cede, surrender,

grant, and convey to the United States all their claim, right,

title, and interest in” part of reservation); Hagen, 510 U.S. at

412 (statute provided that certain lands were “restored to the

public domain”); Seymour, 368 U.S. at 354 (statute provided

that certain lands were “vacated and restored to the public

domain”); Yankton Sioux, 522 U.S. at 344–45 (statute ratifying

agreement with tribe to “cede, sell, relinquish, and convey to

the United States all their claim, right, title, and interest in and

to all the unallotted lands within the limits of the reservation”

in exchange for a sum of money).

No. 19‐1981 21

The statutes affecting the Oneida Reservation contain no

such language surrendering all tribal interests in allotted

land, so there is no textual basis for diminishment.6

2. Historical Context and Contemporaneous Understand‐

ing

We next look to historical context surrounding the enact‐

ment of the legislation. Even where a statute contains no hall‐

mark diminishment language, Solem taught that a court may

infer congressional intent to diminish reservation boundaries

where sources “unequivocally reveal a widely‐held, contem‐

poraneous understanding that the affected reservation would

shrink as a result of the proposed legislation.” 465 U.S. at 471.

Such an understanding would likely be found either in the

record of negotiations with the tribe ceding land or in the leg‐

islative history. See id. (describing as particularly useful “the

manner in which the transaction was negotiated with the

tribes involved and the tenor of legislative reports presented

to Congress”); Yankton Sioux, 522 U.S. at 351–52 (looking to

legislative reports describing negotiation of a surplus land

act); Stockbridge–Munsee Community, 554 F.3d at 664 (relying

on shared expectations of tribe and United States expressed

6 The Village argues that we should not expect cession or payment

language to appear in allotment acts because that kind of language is tai‐

lored to the surplus land context. But we see no reason why Congress

could not have used similar or analogous language in an allotment act to

express its intent to diminish or disestablish a reservation. An allotment

statute could say, for example, that reservation lines were abolished or

modified. See Act of Apr. 21, 1904, ch. 1402, § 8, 33 Stat. 189, 218 (“[T]he

reservation lines of the said Ponca and Otoe and Missouria Indian reser‐

vations … are … abolished.”).

22 No. 19‐1981

in contemporaneous legislative history). The Village has not

offered this kind of contemporaneous evidence.

Instead, the Village bases its argument on the general ex‐

pectation of Congress during the allotment era that the allot‐

ment policy would ultimately lead to assimilation and the dis‐

appearance of reservations. The Village asks us to hold that

the Dawes Act, as amended by the Burke Act, diminished the

Oneida Reservation because the “ultimate goal of allotment”

was to do away with Indian reservations. We assume this was

the ultimate goal, though the full story is complicated. See,

e.g., Montana v. United States, 450 U.S. 544, 559 n.9 (1981) (“The

policy of the Acts was the eventual assimilation of the Indian

population … and the gradual extinction of Indian reserva‐

tions and Indian titles.”) (internal quotation marks and cita‐

tions omitted). But whatever the ultimate aim of allotment

may have been, the Village’s argument is foreclosed by Su‐

preme Court precedent.

Supreme Court decisions stretching over fifty years—from

Seymour, to Mattz, to Solem, to Parker—have repeatedly re‐

jected diminishment arguments that were based on evidence

of that general understanding. In these cases, the Supreme

Court held that surplus land acts passed by Congress during

the allotment era did not diminish Indian reservations, even

though Congress at the time had the general aim of bringing

the reservation system to an end and expressly opened up

part of the reservations to settlement by non‐Indians.

The Court refused to infer from the general expectations

of Congress the specific intent necessary to abrogate treaty

rights. Solem, 465 U.S. at 468–69 (collecting cases); see also

Stockbridge–Munsee Community, 554 F.3d at 662. Without

more, offering non‐Indians the opportunity to purchase land

No. 19‐1981 23

within reservation boundaries does not diminish a reserva‐

tion, regardless of what Congress may have expected to hap‐

pen. Solem, 465 U.S. at 470; Mattz, 412 U.S. at 496–97. And

while Congress expected that reservations “could be abol‐

ished” when “all the lands had been allotted and the trust ex‐

pired,” Mattz, 412 U.S. at 496 (emphasis added), this does not

mean that reservations would necessarily be disestablished or

diminished. Indeed, the Court observed in Mattz that “allot‐

ment under [a tribe‐specific allotment act] is completely con‐

sistent with continued reservation status.” Id. at 497.

The Village’s incremental diminishment theory also de‐

pends on inferring congressional intent to diminish a reserva‐

tion from its understanding that “a loss of reservation status

was the necessary consequence of a change in land tenure on

an allotment.” Brief for Appellee 31. The Village argues that

Congress must have intended the Reservation to be dimin‐

ished as land ownership passed from Indians to non‐Indians

because, we are told, it viewed continued reservation status

as incompatible with non‐Indian land ownership. The Village

traces this idea to dicta from Solem observing that “the notion

that reservation status of Indian lands might not be coexten‐

sive with tribal ownership was unfamiliar at the turn of the

century.” 465 U.S. at 468.7 That passing observation most def‐

initely does not mean that the Supreme Court has accepted

7 This observation about the understanding of reservation status—

dicta in Solem (1984)—is in tension with the holding of Celestine, 215 U.S.

at 285 (1909), that “reservation” had a broader meaning than “Indian

country” and did not depend on Indian title:

[I]t was decided, in Bates v. Clark, 95 U. S. 204, 209 (1877), that

all the country described in [the 1834 statute defining Indian

country] as “Indian country” remains such “so long as the In‐

24 No. 19‐1981

non‐Indian ownership as a basis for finding diminishment.

After all, every surplus land act opened up reservation land

for purchase by non‐Indians, and every allotment act created

the possibility that reservation land would at some point pass

into the hands of non‐Indians.

The Supreme Court explicitly rejected the Village’s theory

in Seymour. In that case, the State of Washington made essen‐

tially the same argument that the Village makes here: that the

limits of the reservation “would be diminished by the actual

purchase of land within it by non‐Indians because land

owned in fee by non‐Indians cannot be said to be reserved for

Indians.” 368 U.S. at 357.

dians retain their original title to the soil, and ceases to be In‐

dian country whenever they lose that title, in the absence of

any different provision by treaty or by act of Congress.” …

But the word “reservation” has a different meaning, for while

the body of land described in the section quoted as “Indian

country” was a reservation, yet a reservation is not neces‐

sarily “Indian country.” The word is used in the land law to

describe any body of land, large or small, which Congress has

reserved from sale for any purpose. It may be a military res‐

ervation, or an Indian reservation, or, indeed, one for any pur‐

pose for which Congress has authority to provide, and, when

Congress has once established a reservation, all tracts in‐

cluded within it remain a part of the reservation until sepa‐

rated therefrom by Congress.

Solem went to say: “Only in 1948 did Congress uncouple reservation status

from Indian ownership, and statutorily define Indian country to include

lands held in fee by non‐Indians within reservation boundaries.” 485

U.S. at 468 (emphasis added). This dictum is also inconsistent with Celes‐

tine (and the actual holding of Solem) and provides no support for the Vil‐

lage.

No. 19‐1981 25

The Court concluded that the question was “squarely put

to rest” by Congress’s enactment of 18 U.S.C. § 1151, which

defines “Indian country” to include “all land within the limits

of any Indian reservation under the jurisdiction of the United

States government, notwithstanding the issuance of any pa‐

tent.” Id. at 357–58. The “impractical pattern of checkerboard

jurisdiction” that would result from the State’s proposed rule

was “avoided by the plain language of § 1151.” Id. at 358. In

other words, the Court deferred to the statutory language of

§ 1151(a) to determine that Indian title was not needed to

maintain the reservation status of a parcel of land.8 In Sey‐

mour, the Court refused to draw any distinction between pa‐

tents issued to Indians and those issued to non‐Indians, so its

reasoning means that the passage of title from Indian to non‐

Indian does not show diminishment.

Seymour, Mattz, Solem, and Parker addressed surplus land

acts that disposed of reservation land after a portion of it had

been allotted to tribal members. We have no reason to ap‐

proach allotment statutes differently. After all, allotment and

surplus land disposition went hand‐in‐hand. Both were part

of Congress’s plan to encourage individual Indian ownership

of property, assimilation, and the eventual end of the reserva‐

tion system. See Solem, 465 U.S. at 468. The Dawes Act itself

8 Seymour cited only the Indian country statute for this point, but Cel‐

estine supported the same conclusion long before the statute was enacted.

See 215 U.S. at 285; supra at 23 n.7. The historical and revision notes to the

Indian country statute also indicate that Congress included all reservation

land—irrespective of Indian title—in the Indian country definition based

on earlier Supreme Court precedent. See 18 U.S.C. § 1151 historical and

revision notes to 1948 Act, citing among others Donnelly v. United States,

228 U.S. 243 (1913) (Indian country encompasses reservation land regard‐

less of whether Indian title has been extinguished).

26 No. 19‐1981

explicitly provided for disposal of surplus land after allot‐

ment had been carried out. § 5, 24 Stat. at 389. We see no rea‐

son why issuing fee patents to members of the Nation—or the

subsequent alienation of the land—would necessarily result

in diminishment if opening surplus lands to non‐Indians

would not have done so.9

If anything, the case for rejecting a piecemeal diminish‐

ment approach is even stronger in the allotment context than

in the surplus land context. The surplus land acts at issue in

Seymour, Solem, Mattz, and Parker put surplus reservation land

on the market for immediate purchase by non‐Indians. The

Dawes and Burke Acts, on the other hand, only created the

possibility that some parcels of land might—at some un‐

known times, perhaps decades later—pass into non‐Indian

hands.10 Again, the Village’s diminishment theory is contrary

to a long line of precedent and the entire logic underlying the

Solem framework.

To avoid the force of these lines of Supreme Court prece‐

dents, the Village asks us to follow the Eighth Circuit’s analy‐

sis in Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010 (8th Cir.

1999). See also Yankton Sioux Tribe v. Podhradsky, 606 F.3d 994

(8th Cir. 2010) (discussing Gaffey). To our knowledge, Gaffey is

the only case in which a Court of Appeals has embraced an

incremental theory of diminishment akin to the one proposed

9 McGirt made this point clear: allotment is completely consistent with

continued reservation status. 140 S. Ct. at 2465.

10 This feature of allotment illustrates another fundamental flaw in the

Village’s incremental diminishment theory. How could we say that Con‐

gress clearly intended to do something (diminish the Reservation) when it

had no idea when or to what extent the Reservation would be diminished?

No. 19‐1981 27

by the Village. In Gaffey, the Eighth Circuit held that some

land allotted under the Dawes Act had lost reservation status

as its fee ownership passed to non‐Indians. 188 F.3d at 1028;

see also Podhradsky, 606 F.3d at 1003. But Gaffey is readily dis‐

tinguishable from this case, and we are not persuaded it fits

within Supreme Court precedents on diminishment, either

before or after McGirt.

Gaffey is distinguishable because the Eighth Circuit made

clear that the loss of reservation status there was effected by a

surplus land act of 1894 that applied specifically to the Yank‐

ton Sioux: “the 1894 Act did not clearly disestablish the Yank‐

ton Sioux Reservation, but it intended to diminish the reser‐

vation by not only the ceded land, but also by the land which

it foresaw would pass into the hands of the white settlers and

homesteaders.” 188 F.3d at 1028. Almost all of the statutory

analysis focused on provisions of this later surplus land act,

not the Dawes Act, and is therefore not applicable here, where

the 1906 Oneida Provision did not contain similar provisions.

But to the extent that Gaffey relied on the Dawes Act and

more generally on Congress’s understanding of allotment

and reservation status, we cannot reconcile it with the Su‐

preme Court precedents discussed above.

First, citing Section 6 of the Dawes Act, Gaffey noted:

“Some articles of the Act reflect the parties’ assumption that

an allottee who received full title at the end of the trust period

would become subject to the civil and criminal laws of the

State or territory in which he resided.” Id., citing 24 Stat. at

28 No. 19‐1981

389–90.11 The Eighth Circuit seems to have concluded from

this provision that tribal and federal jurisdiction receded, thus

furthering the diminishment argument. That conclusion is at

odds with Moe v. Confederated Salish & Kootenai Tribes of the

Flathead Reservation, 425 U.S. 463 (1976). Moe held that Section

6 of the Dawes Act did not establish general state jurisdiction

over Indians living on fee‐patented lands, id. at 478–79, so Sec‐

tion 6 of the Dawes Act is not probative of diminishment. See

also Celestine, 215 U.S. at 287 (“The [Dawes Act], which con‐

fers citizenship, clearly, does not emancipate the Indians from

all control, or abolish the reservations.”), quoting Eells v. Ross,

64 F. 417, 420 (9th Cir. 1894) (McKenna, J.); United States v.

Nice, 241 U.S. 591, 600 (1916) (Dawes Act subjects allottees not

to “all the laws of the state,” but “only such as could be ap‐

plied to tribal Indians consistently with the Constitution and

the legislation of Congress”).

Second, the Eighth Circuit considered that “nothing in its

text or the circumstances surrounding its passage suggests

that any party anticipated that the Tribe would exercise juris‐

diction over non Indians who purchased land after it lost its

trust status.” Gaffey, 188 F.3d at 1028. The Eighth Circuit did

not explain the connection between reservation status and ju‐

risdiction over non‐Indians, and the Village does not explain

the connection here. We see no reason why reservation status

would depend on jurisdiction over non‐Indians. Nor do we

11

The rest of the Gaffey opinion used the term “Act” to refer to the

surplus land act specific to the Yankton Sioux, and this quoted sentence

was embedded in analysis of that surplus land act. Either the court mis‐

takenly believed that this provision was part of the surplus land act or the

reasoning of the opinion did in fact rely in part on the Dawes Act. We

assume the latter.

No. 19‐1981 29

see why, given the Supreme Court’s insistence on clear evi‐

dence of congressional intent to diminish a reservation, a stat‐

ute would need to define affirmatively the scope of tribal ju‐

risdiction in order to avoid diminishment and thereby to

maintain reservation boundaries. Last, the theory of incre‐

mental diminishment embraced in Gaffey—in which individ‐

ual parcels of land would be removed from the reservation as

they passed into the hands of non‐Indians—is at odds with

Seymour, Moe, and the Supreme Court’s hostility toward rules

that would create checkerboard jurisdiction.

3. The Oneida Provision of the 1906 Appropriations Act

The Oneida Provision of the 1906 Appropriations Act adds

nothing to the Village’s analysis and does not establish that

Congress acted to diminish the Oneida Reservation. The stat‐

ute authorized the Secretary of the Interior “in his discretion,

to issue a patent in fee to any Indian of the Oneida Reservation

in Wisconsin for the lands heretofore allotted him.” 34 Stat. at

381. It further provided that “the issuance of such patent shall

operate as a removal of all restrictions as to the sale, taxation,

and alienation of the lands so patented.” Id. But this language

just reiterated language from the generally applicable Burke

Act that had been passed a month earlier. See 34 Stat. at 183.

The Oneida Provision also authorized the Secretary to issue

fee patents to 56 of the original 1,530 Oneida allottees before

the end of their trust periods. 34 Stat. at 380–81. This provision

was also not inconsistent with continued reservation status

for allotted parcels. The surplus land cases teach that fee own‐

ership of land—even by non‐Indians—is not inconsistent

with reservation status. The slight acceleration of the allot‐

ment process enabled by the Dawes and Burke Acts does not

30 No. 19‐1981

even suggest, let alone clearly establish, that Congress in‐

tended to diminish the Reservation.12

The Village also argues that the Oneida Provision is com‐

parable to another provision of the 1906 Appropriations Act

that we determined had actually disestablished the reserva‐

tion of the Stockbridge–Munsee Community. See Wisconsin v.

Stockbridge–Munsee Community, 554 F.3d 657 (7th Cir. 2009).

But the Stockbridge–Munsee provision called for the allot‐

ment of the entire reservation in fee simple. Id. at 664. More‐

over, the plan for allotment of the Stockbridge–Munsee reser‐

vation was negotiated between the tribe and the United

States, and the plan was intended to be “a full and complete

settlement of all obligations” under the United States’ treaty

with the tribe. Id. This complete allotment in fee, language

(from the allotment plan proposed by the tribe, not from the

statute) providing for the settlement of all treaty obligations,

and the history of the negotiated plan provided the basis for

our conclusion that the reservation had been disestablished

“[b]ecause the reservation could only be abolished if the tribal

members held their allotments in fee simple.” Id., citing Mattz,

412 U.S. at 496.13

12The Village presents some evidence that some members of Con‐

gress and interested parties who sought access to Oneida land supported

the 1906 Appropriations Act because it would accelerate the issuing of fee

patents under the Burke Act. That evidence does not indicate that Congress

intended to diminish the Reservation, however. The Village also tries to

distinguish the Oneida Provision of the 1906 Appropriations Act from the

Burke Act by pointing out that the former lacked the competency require‐

ment of the latter. This difference is not material to the diminishment is‐

sue.

13

Our reasoning in Stockbridge–Munsee seems to be in tension with

McGirt. We concluded that the key act of Congress “included none of the

No. 19‐1981 31

The terms and history of the Stockbridge–Munsee provi‐

sion distinguished it “from most allotment acts.” Id.; see also

id. at 665 (Ripple, J., concurring) (emphasizing the “unique

historical context” of the Stockbridge–Munsee provision). The

Oneida Provision did not provide for immediate allotment in

fee, and neither it nor associated materials said anything

about settling all treaty obligations. Instead, the Oneida Pro‐

vision left intact the trust process established by the Dawes

Act and modified in the Burke Act. Our decision in Stock‐

bridge–Munsee therefore does not support the Village’s dimin‐

ishment argument under the different statutory provision en‐

acted in a different historical context.

4. Post‐Enactment History and Demographics

The final factor in the Solem framework considers the

United States’ “treatment of the affected areas, particularly in

the years immediately following the opening,” and the later

demographic history of the opened land. Parker, 136 S. Ct. at

1081, quoting Solem, 465 U.S. at 471. Post‐enactment history is

the “least compelling evidence” of diminishment, id. at 1082,

and neither the Supreme Court nor this court has ever relied

on this last factor alone to find diminishment. Indeed, Solem

strongly suggests that post‐enactment history may never be

enough to establish congressional intent to diminish without

hallmark language suggesting that Congress intended to disestablish the

reservation.” 554 F.3d at 664. We did not identify an ambiguity in the text

before concluding that “the circumstances surrounding the act show that

Congress wanted to extinguish what remained of the reservation when it

passed the act.” Id. This approach is consistent with Solem but is in tension

with the adjustments to the Solem framework made by McGirt.

32 No. 19‐1981

evidence from statutory text or unequivocal contemporary

understanding:

When both an act and its legislative history fail

to provide substantial and compelling evidence

of a congressional intention to diminish Indian

lands, we are bound by our traditional solici‐

tude for the Indian tribes to rule that diminish‐

ment did not take place and that the old reser‐

vation boundaries survived the opening.

465 U.S. at 472, citing Mattz, 412 U.S. at 505 (“A congressional

determination to terminate must be expressed on the face of

the Act or be clear from the surrounding circumstances and

legislative history.”), and Seymour, 368 U.S. 351; see also Par‐

ker, 136 S. Ct. at 1081 (“[T]his Court has never relied solely on

this third consideration to find diminishment.”). Cf. Rosebud

Sioux Tribe v. Kneip, 430 U.S. 584, 605 (1977) (invoking subse‐

quent history to support rejection of “strained” reading of

statute). After all, subsequent events cannot tell us much

about the intent of the Congress at the time of enactment. See,

e.g., Yankton Sioux, 522 U.S. at 355; Sullivan v. Finkelstein, 496

U.S. 617, 631 (1990) (Scalia, J., concurring). In the absence of

textual support or unequivocal contemporary evidence, in‐

herently unreliable post‐enactment history cannot by itself

show the “clear intent” required to establish that Congress in‐

tended to abrogate a treaty, breaking the word of the United

States and eroding Indian sovereignty.

Even if it were possible to infer clear congressional intent

to diminish based only on later events, neither the United

States’ treatment of the Oneida land after the statutes’ enact‐

No. 19‐1981 33

ment nor the demographic history of the allotted land pro‐

vides compelling evidence of congressional intent to change

the boundaries of the reservation.

First, the record of subsequent treatment of the Reserva‐

tion is “mixed” and therefore provides no support for the Vil‐

lage’s diminishment argument. See Yankton Sioux, 522 U.S. at

356. We need not describe in too much detail the vast record

of this case to illustrate that the later treatment of the Reser‐

vation was, at the very least, inconsistent and is therefore not

probative of congressional intent to diminish. See id. at 355–

56 (declining to delve to deeply into the probative value of

legislative and administrative materials where the record was

mixed); Solem, 465 U.S. at 478 (subsequent treatment “of no

help to either side” when “rife with contradictions”).

The Village highlights statements from the Bureau of In‐

dian Affairs indicating that the federal government lacked ju‐

risdiction over allotted land that had passed out of trust and

points to various federal references to the “former Oneida

Reservation.” Almost all this evidence comes from signifi‐

cantly after enactment of the relevant statutes. Moreover, the

jurisdictional landscape following allotment was compli‐

cated, and Section 6 of the Dawes Act did subject allottees to

some state jurisdiction after receiving fee patents, yet without

diminishing the reservations. See Moe, 425 U.S. at 477–78. For

this reason, the fact that Wisconsin exercised some jurisdic‐

tion over the land—and that the federal government largely

did not—is not particularly informative.

The Nation points to 1909 correspondence by a Bureau of

Indian Affairs agent who questioned whether the Village

could be established by the state because there had been “no

formal opening of surplus lands or obliteration of reservation

34 No. 19‐1981

lines.” The Nation also identifies reports of the Commissioner

of Indian Affairs listing the Reservation as comprising the

original 65,000 acres established by the 1838 Treaty. And the

Nation points out that its own 1936 constitution—approved

by the Bureau of Indian Affairs—described the territory of the

Nation as extending “to the territory within the present con‐

fines of the Oneida Reservation.” U.S. Dep’t of the Interior,

Office of Indian Affairs, Constitution and By‐Laws for the Oneida

Tribe of Indians of Wisconsin, art. I. The Nation contends that

this can be understood only as a reference to the confines of

the Reservation established by the 1838 Treaty because there

was no other point of reference for the “present confines” of

the Reservation. The Nation and Village each present more

historical evidence to support their respective positions. But

the historical record is too inconclusive to signal clear support

for diminishment even if there were other support for that

conclusion.

Second, the Village argues that the “extreme population

shift” of the Reservation that led to the loss of Indian title to

the “vast majority” of allotments supports diminishment.

This is essentially an argument that the Reservation was di‐

minished de facto by non‐Indians moving into the contested

territory. But this argument is contrary to and foreclosed by

Parker, which explicitly rejected the theory of diminishment

by extreme demographic shift. In Parker, the Supreme Court

held that the relevant reservation was undiminished even

though the Omaha had been “almost entirely absent from the

disputed territory for more than 120 years,” at which time the

tribe did not assert jurisdiction on the land. 136 S. Ct. at 1081.

By the time of the litigation, Omaha tribal members com‐

prised fewer than two percent of the population in the con‐

tested territory. Smith v. Parker, 996 F. Supp. 2d 815, 828 (D.

No. 19‐1981 35

Neb. 2014) (case in district court). But even this extreme de‐

mographic shift was insufficient to support diminishment.

The demographic shift in the contested part of the Oneida

Reservation, at least as represented by Village of Hobart cen‐

sus data, is notably less extreme.14

The demographic argument is also contrary to Solem—and

fundamental principles of statutory interpretation—insofar

as it suggests that a reservation may be diminished not by acts

of Congress but by later events on the ground. The implica‐

tions are troubling. It would mean that the United States

could break its treaty obligations and lessen Indian sover‐

eignty not because Congress expressed its intent to do so, but

because non‐Indian settlers were particularly effective in ob‐

taining reservation land, sometimes by fraud or unfair deal‐

ing, or simply by taking advantage of Indian poverty.

14 According to U.S. Census Bureau population estimates, as of July 1,

2017, the total Village population was 8,896, of which “White alone” resi‐

dents comprise 79.9% and “American Indian and Alaska Native alone”

comprise 12.2%. Considering later demographic changes in determining

congressional intent might be entirely inappropriate—not just of limited

value—in the context of allotment. Congress specifically intended to open

up land for sale to non‐Indians when it passed surplus land acts. But al‐

lotment was carried out with the purpose of assimilating Indians and en‐

couraging them to become farmers, not specifically to wrest their land

from them. See, e.g., Otis, supra, at 141 (“Individual land ownership was

supposed to have some magic in it to transform an Indian hunter into a

busy farmer.”) (emphasis added). Alienation of allotted land was not nec‐

essarily expected, and the Village presents no compelling reason why de‐

mographic change following allotment is probative of congressional in‐

tent. The Village does not make the argument that Congress was acting in

bad faith and intended Oneida allottees to lose their land by, for example,

defaulting on mortgages.

36 No. 19‐1981

D. McGirt v. Oklahoma

This brings us to McGirt v. Oklahoma, decided by the Su‐

preme Court while this appeal was pending. In McGirt, the

Supreme Court addressed the Indian country status of the

Creek Reservation in Oklahoma. That reservation was allotted

with the agreement of the Creek in 1901. Congress allotted al‐

most all of the Creek Reservation, with limits on the right of

individual Creek members to alienate the land. 140 S. Ct. at

2463. A subsequent act—functionally similar to the Burke

Act—eased these alienation restrictions and allowed the Sec‐

retary of the Interior to waive them. The allotment statute re‐

quired the Nation to convey deeds granting “all right, title,

and interest of the Creek Nation and of all other [Creek] citi‐

zens,” and the Secretary then approved those deeds and “re‐

linquish[ed] to the grantee … all the right, title, and interest

of the United States” in the allotted land. Id. at 2492 (Roberts,

C.J., dissenting).

The Creek tribal government’s authority was also substan‐

tially eroded by various Acts of Congress around the turn of

the twentieth century. Congress abolished the Creek tribal

courts, required presidential approval of tribal ordinances,

empowered the President to remove the principal chief of the

tribe, directed the Secretary of the Interior to assume control

over the Creek schools, and required Creek officials to turn

over all “tribal properties” to the Secretary of the Interior. Id.

at 2465–66 (majority op.).

The Court held that all of this was not enough to disestab‐

lish the Creek Reservation. In doing so, it adjusted the Solem

framework—in which congressional intent to diminish could

be inferred from unequivocal contextual sources even in the

No. 19‐1981 37

absence of textual support—to a more textual approach con‐

sistent with statutory interpretation more generally. Only if

the text of a specific statute were ambiguous would consider‐

ation of context and subsequent history be appropriate:

“There is no need to consult extratextual sources when the

meaning of a statute’s terms is clear. Nor may extratextual

sources overcome those terms. The only role such materials

can properly play is to help ‘clear up … not create’ ambiguity

about a statute’s original meaning.” Id. at 2469, citing Milner

v. Dep’t of Navy, 562 U.S. 562, 574 (2011). The McGirt Court

found no textual basis for disestablishment in the allotment

acts or later statutes eroding tribal sovereignty, so it held that

the original reservation boundaries remained intact.

The Court held that the allotment of the Creek Reservation

had no effect on reservation status because the statute imple‐

menting the allotment contained no hallmark language of di‐

minishment. Id. at 2465 & n.5.15 Relying on Mattz and Seymour,

the Court reiterated that ownership of land by non‐Indians

was entirely consistent with continued reservation status.

While allotment was the “first step” of the movement toward

eliminating the reservation system, id. at 2468, it did not affect

the “ultimate fate of the land’s reservation status.” Id. at 2465;

see also id. at 2466 (statutes encroaching on tribal sovereignty

“consistent with the Legislature’s general practice of taking

allotment as a first, not final, step toward disestablishment

and dissolution”).

15 Even the language in the allotment act requiring both the Creek

Tribe and the United States government to transfer “all right, title, and

interest” in the land to the allottee was not enough to create a statutory

ambiguity. Id. at 2463.

38 No. 19‐1981

McGirt’s allotment analysis has turned what was a losing

position for the Village into a nearly frivolous one. McGirt

teaches that neither allotment nor the general expectations of

Congress are enough to diminish a reservation. The Village

has no argument for diminishment grounded in the statutory

text. The statutes on which it relies only allow for the allot‐

ment of the Oneida Reservation or speed along the allotment

process. No statutory text comes close to creating an ambigu‐

ity regarding diminishment of Reservation boundaries.16

E. Alternative Grounds for Affirmance

The Village asks us to affirm the judgment of the district

court for two additional reasons. First, it argues that the issue

of disestablishment was decided in a 1933 case brought by in‐

dividual Oneida tribal members and that issue preclusion

prevents the Nation from arguing that such former fee land

remains within the current boundaries of the Reservation. See

16In its response to the Nation’s notice of supplemental authority cit‐

ing McGirt, the Village provides no textual support for its diminishment

argument. Instead, the Village just reiterates its reliance on the 1906

Oneida Provision. But as described above, the text of the 1906 Oneida Pro‐

vision provides no evidence of congressional intent to diminish the

Oneida Reservation. Consistent with continued reservation status, it

granted certain allottees fee simple land patents and authorized the Secre‐

tary of the Interior to grant other allottees fee simple patents at his discre‐

tion. The Village asserts that McGirt “does not caution against reliance on

extratextual sources for determining [c]ongressional intent where there is

evidence that Congress’s intent was to diminish the reservation.” This is

tautological and, to the extent it suggests that textual support of congres‐

sional intent is not needed, wrong. McGirt teaches that we may not rely

on extratextual sources unless the text is at least ambiguous with respect

to Congress’s intent to diminish.

No. 19‐1981 39

Stevens v. County of Brown (E.D. Wis. Nov. 3, 1933) (un‐

published decision). Second, even if the Reservation remains

intact, the Village argues that “exceptional circumstances”

warrant application of the Special Event Ordinance to the Na‐

tion and its Big Apple Fest.

We may affirm the district court judgment “on any ground

supported in the record, so long as that ground was ade‐

quately addressed in the district court and the nonmoving

party had an opportunity to contest the issue.” American

Homeland Title Agency, Inc. v. Robertson, 930 F.3d 806, 810 (7th

Cir. 2019). However, we may not alter a judgment to benefit a

party that did not file its own notice of appeal. Greenlaw v.

United States, 554 U.S. 237, 244–45 (2008), citing McDonough v.

Dannery, 3 U.S. (3 Dall.) 188, 198 (1796), and Morley Construc‐

tion Co., v. Maryland Casualty Co., 300 U.S. 185, 191 (1937) (in

the absence of a cross‐appeal, appellee may not “attack the

decree with a view either to enlarging his own rights thereun‐

der or of lessening the rights of his adversary”); see also Rich‐

ardson v. City of Chicago, 740 F.3d 1099, 1101 (7th Cir. 2014).

But we will not unnecessarily police the sometimes blurry

line between arguments that seek to expand the judgment and

those that do not. Doubts about the scope of a judgment

should be resolved against finding that the appellee’s failure

to file a cross‐appeal forfeited his right to argue an alternative

ground. Wellpoint, Inc. v. CIR, 599 F.3d 641, 650 (7th Cir. 2010);

see also 15A Charles Alan Wright & Arthur R. Miller et al.,

Federal Practice & Procedure § 3904 (4th ed. 1998 & supp. 2020)

(uncertainties in applying the cross‐appeal rule “suggest that

the requirement should be administered with substantial flex‐

ibility”). This is particularly true where the underlying issue

40 No. 19‐1981

is fully briefed and where considering the issue does not re‐

sult in affirmance. See JPMorgan Chase & Co. v. CIR, 458 F.3d

564, 570 n.3 (7th Cir. 2006) (asserting jurisdiction over issue

raised without cross‐appeal by appellee in part because ad‐

dressing the issue did not afford relief in favor of appellee).

1. Issue Preclusion

The Village argues that issue preclusion bars the Nation

from arguing that the fee lands and roads on which Big Apple

Fest took place were reservation land because it is bound by

the judgment in Stevens. Issue preclusion prevents a party

from relitigating issues resolved in a prior legal action. Adams

v. City of Indianapolis, 742 F.3d 720, 736 (7th Cir. 2014). Issue

preclusion applies based on a prior federal judgment when

“(1) the issue sought to be precluded [was] the same as that

involved in the prior litigation, (2) the issue [was] actually lit‐

igated, (3) the determination of the issue [was] essential to the

final judgment, and (4) the party against whom estoppel is in‐

voked [was] fully represented in the prior action.” In re Cal‐

vert, 913 F.3d 697, 701 (7th Cir. 2019), quoting Matrix IV, Inc. v.

American Nat’l Bank & Trust Co. of Chicago, 649 F.3d 539, 547

(7th Cir. 2011) (alterations in Calvert).

In Stevens, a group of Oneida tribe members—“acting for

themselves as well as for and on behalf of the members of the

Oneida Tribe”—sued the Village for taxes assessed on reser‐

vation land and to enjoin future taxation. The district court

held that allotment under the Dawes Act disestablished—or,

in its words, discontinued—the Oneida Reservation, so

Oneida tribal members residing within the bounds of the de‐

fendant‐municipalities were subject to taxation. Importantly,

the case was decided in 1933, before Congress passed the In‐

dian Reorganization Act, before the Oneida Nation was

No. 19‐1981 41

formed, and before the United States placed former fee land

into trust under the authority of that Act for use by the

Oneida.

The Nation and the Village disagree over whether apply‐

ing issue preclusion would alter the judgment to the benefit

of the Village. The Nation tells us that it would because hold‐

ing the Nation to the Stevens judgment might call into ques‐

tion its ability to organize under the Indian Reorganization

Act. This, in turn, could affect its ability to participate in the

land‐to‐trust process that enabled the Nation to rebuild its

land base, thereby implicating the Nation’s authority over

trust land. The district court awarded the Village declaratory

relief that the Ordinance could be enforced “on those lands

not held in trust by the United States for the benefit of the Na‐

tion.” If our alteration of the judgment would render the Or‐

dinance applicable to the Nation’s trust land, it would expand

the Village’s rights under the judgment and further diminish

those of the Nation.

We need not resolve definitively whether holding the Na‐

tion to the 1933 judgment would endanger the trust status of

the parcels it acquired after the passage of the Indian Reor‐

ganization Act. The Nation does not describe precisely why

this would be the case.17 We see no need to draw precise

17 We have reason to question the Nation’s argument. The Interior

Board of Indian Appeals has in the past noted—in response to an argu‐

ment made by the Village—that the Nation would have been under fed‐

eral jurisdiction in 1934 even if the Nation were not in occupation of a res‐

ervation. Village of Hobart v. Midwest Regional Director, 57 IBIA 4, 32, 46 n.27

(2013). And before the district court, the Nation argued the opposite of

what it does on appeal, citing the Indian Reorganization Act. See 25 U.S.C.

§ 5108 (“The Secretary of the Interior is hereby authorized … to acquire …

42 No. 19‐1981

bounds of the district court’s judgment and the judgment that

would result from affirming on issue preclusion. The decision

to file a cross‐appeal can be difficult, comes with high stakes,

and must be made quickly. An appellee risks forfeiting poten‐

tially meritorious arguments for affirmance by improperly fil‐

ing a cross‐appeal, see Weitzenkamp v. Unum Life Insurance Co.

of America, 661 F.3d 323, 332 (7th Cir. 2011), and has at most

two weeks beyond the usual appeal period to decide whether

it will file a cross‐appeal. Fed. R. App. P. 4(a)(3). Because the

enlargement of the judgment is debatable and the question of

issue preclusion is easily resolved in the Nation’s favor, the

better course is to reach it and hold that the Nation is not

bound by the Stevens judgment.

We can begin and end our analysis on the element of rep‐

resentation. Our baseline presumption is that non‐parties are

not bound by earlier judgments. “It is a principle of general

application in Anglo‐American jurisprudence that one is not

bound by a judgment in personam in a litigation in which he is

not designated as a party or to which he has not been made a

party by service of process.” Taylor v. Sturgell, 553 U.S. 880,

884 (2008), quoting Hansberry v. Lee, 311 U.S. 32, 40 (1940); see

also Blonder‐Tongue Labs., Inc. v. Univ. of Illinois Found.,

402 U.S. 313, 329 (1971). In “limited circumstances,” non‐par‐

ties may be adequately represented in litigation and bound by

a judgment, Richards v. Jefferson County, 517 U.S. 793, 798

any interest in lands … within or without existing reservations … for the pur‐

pose of providing land for Indians.” (emphasis added)); see also Oklahoma

Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S.

505, 511 (1991) (trust land counts as “validly set apart” land for tribal im‐

munity purposes even if it is not formally within the bounds of an estab‐

lished reservation), citing United States v. John, 437 U.S. 634, 648–49 (1978).

No. 19‐1981 43

(1996), such as where the non‐party controlled the earlier liti‐

gation or where there is a privity relationship. Natʹl Spiritual

Assembly of Bahá’ís of the U.S. Under the Hereditary Guardian‐

ship, Inc. v. Natʹl Spiritual Assembly of Bahá’ís of the U.S., Inc.,

628 F.3d 837, 849 (7th Cir. 2010) (in the preclusion context,

“‘privity’ has come to be ‘seen as a descriptive term for desig‐

nating those with a sufficiently close identity of interests’”),

quoting Tice v. American Airlines, Inc., 162 F.3d 966, 971 (7th

Cir. 1998); see also 18A Wright & Miller, supra, § 4451.

Here, the Nation was not a party to the earlier litigation.

The Village contends that the Stevens plaintiffs were acting on

behalf of the Nation itself. In particular, the Village highlights

the involvement of William Skenandore—a tribal leader who

described himself as Presiding Chief of the Oneida—and lan‐

guage in the complaint indicating that the plaintiffs were

“duly authorized and empowered to act for and on behalf of

the Oneida Tribe of Indians of the State of Wisconsin.” But

this action was not brought on behalf of the Nation. The cap‐

tion indicates that the named plaintiffs were acting on behalf

of members of the Oneida tribe. The complaint further speci‐

fied that this referred to members of the tribe who owned Res‐

ervation land on which they were paying taxes and stated that

the action was brought to recover taxes paid by those individ‐

uals.

The interests the landowner‐plaintiffs in Stevens sought to

advance were distinct from the interests of the sovereign Na‐

tion that had entered into the 1838 Treaty with the United

States of America. See Richards, 517 U.S. at 802 (distinguishing

between corporate interests of municipality and individual

interests of municipal taxpayers). After all, Indian tribes are

“domestic dependent nations” exercising “inherent sovereign

44 No. 19‐1981

authority.” Michigan v. Bay Mills Indian Community, 572 U.S.

782, 788 (2014), quoting Oklahoma Tax Comm’n v. Citizen Band

Potawatomi Tribe of Oklahoma, 498 U.S. 505, 509 (1991). Individ‐

ual tribal members could not adequately represent the inter‐

ests of the sovereign Nation in preserving the scope of its sov‐

ereignty. Because the Stevens plaintiffs were not adequate rep‐

resentatives of the Nation, the Nation cannot be bound by the

earlier judgment.

2. Exceptional Circumstances

The Village also argues that, even if the Reservation has

not been diminished, “exceptional circumstances” warrant

application of the Special Event Ordinance to the Big Apple

Fest. The general rule is that state or local regulation of tribes

on reservations is preempted by federal law. California v. Cab‐

azon Band of Mission Indians, 480 U.S. 202, 216 (1987). This doc‐

trine is grounded in “traditional notions of Indian sovereignty

and the congressional goal of Indian self‐government, includ‐

ing its overriding goal of encouraging tribal self‐sufficiency

and economic development.” Id. (quotation marks omitted).

Under “exceptional circumstances,” however, “a State may

assert jurisdiction over the on‐reservation activities of tribal

members.” Id. at 215, quoting New Mexico v. Mescalero Apache

Tribe, 462 U.S. 324, 331–32 (1983).

Most of the reasons the Village provides to justify its reg‐

ulation of the Nation were not properly raised, so we will not

consider them. In its brief, the Village briefly recites—largely

without citation to authority or substantive development—ar‐

guments made before the district court. To the extent that

these arguments are perfunctory and undeveloped on appeal,

they are forfeited. Lauth v. Covance, Inc., 863 F.3d 708, 718 (7th

Cir. 2017). And in the absence of a cross‐appeal, we will not

No. 19‐1981 45

consider any ground for affirmance that would expand the

judgment beyond the Oneida fee land. Richardson, 740 F.3d at

1101.

This leaves us with one remaining argument: that Indian

tribes cannot assert immunity from state and local land use

regulations, including the Ordinance, when those regulations

are applied to fee land on a reservation. The Village cites Bren‐

dale v. Confederated Tribes and Bands of the Yakima Nation,

492 U.S. 408 (1989), and Justice Stevens’s dissent in City of

Sherrill v. Oneida Nation of New York, 544 U.S. 197 (2005). Nei‐

ther supports the Village’s position.

Brendale held that Indian land‐use regulations will not, un‐

der certain circumstances, apply to fee land when that land is

owned by non‐Indians. 492 U.S. at 444–45 (opinion of Stevens

and O’Connor, JJ.). A limitation on tribal jurisdiction over

non‐Indians tells us nothing, however, about state jurisdiction

over the Oneida.

In City of Sherill, Justice Stevens noted in dissent that ex‐

ceptional circumstances would warrant the application of lo‐

cal land‐use regulations on Indian‐held land where “a small

number of Indian‐held properties arranged in checkerboard

fashion,” given the “balance of interests” between the locality

and the Indian tribe. 554 U.S. at 226 n.6. But this was just an

observation about how the fact‐intensive exceptional circum‐

stances test might apply under a specific set of circumstances.

It did not suggest a per se rule that Indian fee land should be

subject to state regulation.

The Village has not argued that the Oneida fee land at is‐

sue is checkerboarded with non‐Indian land such that uni‐

form regulation is necessary to advance state interests. Nor

46 No. 19‐1981

has it explained why the balance of tribal and state interests

would merit a departure from the general rule that the state

may not assert jurisdiction over Indians on reservations. See

Cabazon, 480 U.S. at 216. There may be circumstances in which

isolated fee land may be subject to local regulation, but the

Village has presented no reason to believe that such circum‐

stances are present here.

* * *

The Oneida Reservation defined by the 1838 Treaty re‐

mains intact, so the land within the boundaries of the Reser‐

vation is Indian country under 18 U.S.C. § 1151(a). The judg‐

ment of the district court is REVERSED, and the case is

REMANDED with instructions to enter judgment in favor of

the Oneida Nation.