                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 04-3834

S TATE OF W ISCONSIN,

                                                Plaintiff-Appellee,

                                v.

T HE S TOCKBRIDGE-M UNSEE C OMMUNITY and
R OBERT C HICKS,

                                          Defendants-Appellants.


           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
        No. 98 C 871—Patricia J. Gorence, Magistrate Judge.



   A RGUED S EPTEMBER 3, 2008—D ECIDED JANUARY 20, 2009




 Before P OSNER, R IPPLE, and E VANS, Circuit Judges.
  E VANS, Circuit Judge. The Stockbridge-Munsee Indians
(the Tribe) are comprised of descendants of the Mohican
Tribe who migrated westward and eventually arrived in
Wisconsin in the 1820s. In 1856, the United States entered
into a treaty and created a reservation for the Tribe con-
sisting of two townships (Bartelme and Red Springs) in
2                                                   No. 04-3834

Shawano County, Wisconsin, some 40 miles northwest of
Green Bay. The issue in this case is straightforward—are
the boundaries of that reservation still intact? The answer
is important because the Tribe can only operate slot
machines (under a contract with the State of Wisconsin
entered into pursuant to the Indian Gaming Regulatory
Act, 25 U.S.C. § 2701 et seq.) at the Pine Hills Golf and
Supper Club,1 an entity it purchased in the 1990s, if the
course is within the exterior boundaries of the tribal
reservation.2 Everyone agrees that Pine Hills, which is in
Section 2 of the township of Red Springs, falls within the
original boundaries of the reservation, but Wisconsin
filed this suit because it believes that Pine Hills lies
outside the reservation as it stands today. The magistrate
judge (Patricia J. Gorence) agreed, granting summary
judgment for the State after holding that the reservation, as
it existed over 150 years ago, was extinguished by two
legislative acts, which first allowed non-Indians to pur-
chase a large section of the 1856 reservation, and then



1
   The Tribe’s Pine Hills golf course, which carries a Wisconsin
State Golf Association (WSGA) rating of 70.2 and a slope of 126,
is located on Pine Hills Drive in or near the Village of Gresham.
See www.mohican.com. It opened for play in 1999. It should not
be confused with another Wisconsin course that operates
under the same name. That Pine Hills, with a WSGA rating of
72.3 and a slope of 132, is a premier course in Sheboygan that
recently hosted qualifying rounds for both the United States
Open and the United States Senior Open championships.
2
  The Tribe validly operates the North Star Casino and Bingo
on its present reservation.
No. 04-3834                                                   3

allotted parcels of the reservation to tribal members. The
reservation came back a bit, starting in 1937, but never
reclaimed its full original size. The Tribe appeals.
  The Tribe’s history, like that of many other Indian tribes,
was shaped by the constant pressure to move westward
to make way for white settlers. Originally from western
Massachusetts, the Tribe moved to the Hudson River
Valley in New York after the Revolutionary War and
eventually to a reservation east of Lake Winnebago in
Calumet County, Wisconsin. But it was not long before
the Tribe faced pressure to move out of its Lake
Winnebago site. This pressure produced two factions
within the Tribe. One faction, the Old Citizen Party,
wanted to break free from its guardianship relationship
with the United States. It sought full United States citizen-
ship and the allotment of parcels of land to individual
tribal members. Another group, the Indian Party, wanted
to maintain a tribal structure and move to a new reserva-
tion west of the Mississippi. Between 1843 and 1848, a
treaty and two legislative acts were passed and then
repealed, seesawing between these positions. See Act of
Mar. 3, 1843, ch. 101, 5 Stat. 645; Act of Aug. 6, 1846, ch. 85,
9 Stat. 55; Treaty with the Stockbridge Tribe of Indians,
Nov. 24, 1848, 9 Stat. 955.
  Unsurprisingly, this haphazard approach didn’t help
matters much. In 1856, a new compromise was brokered,
and the Tribe entered into a treaty with the United States,
agreeing to “cede and relinquish” its Lake Winnebago
reservation (and other lands reserved for their use) in
exchange for a new reservation in Wisconsin. Treaty with
4                                                 No. 04-3834

the Stockbridge and Munsees, Feb. 5, 1856, 11 Stat. 679. “As
soon as practicable,” the new reservation was to be sur-
veyed and allotted to the individual tribal members, and
the Tribe’s membership was defined by reference to
an earlier treaty, which predated the series of seesawing
legislative acts. Id. Although tribal members would
have the right to occupy their allotments, they could not
sell the land without first waiting 10 years and getting
permission from both the Tribe and the United States
government. But the controversy did not end here. The
new reservation turned out to be heavily forested and
difficult to farm—not quite the arable land that had been
promised in the treaty. And to make matters worse, the
Department of the Interior prevented the Tribe from
cutting and selling the timber on the reservation. As the
Tribe struggled to survive at its new spot, conflicts be-
tween the two factions renewed and stymied the allot-
ment process.
  Fifteen years later, Congress intervened again. In 1871,
an act was passed, calling for the public auction, run by
the government, of three quarters of the reservation. Act
of Feb. 6, 1871, ch. 38, 16 Stat. 404.3 Whatever land was not
sold after two years was to be purchased by the gov-


3
  We have included, as an appendix to our opinion, six maps
from the record that we think accurately track the changes to
the reservation over the years. On five of six maps (all except
the first one), the present location of Pine Hills is noted. In
considering these maps, which we found helpful, it is worth
remembering that a township consists of 36 sections, each
covering one square mile.
No. 04-3834                                                  5

ernment at below-market prices, and the proceeds from all
the sales were to be divided amongst the tribal members.
Those willing to sever their ties with the Tribe could take
their share on a per capita basis, but the funds belonging
to those who wished to remain in the Tribe were held in
their trust by the United States. The last quarter of the
reservation was “reserved” from sale, and the Tribe was
given a choice to make their permanent home there or on
an equivalent tract of land to be procured later. Id. at 405.
The Tribe elected to stay put, and the remaining tribal
members were eligible to receive allotments from this
land, with restrictions on alienability. Most of the land up
for sale went into the hands of timber companies that
harvested the lumber.
  But there was a catch. Those who had separated from the
Tribe or had received allotments under previous acts—
including the repealed acts regarding the old Lake
Winnebago reservation—were expelled from the Tribe
and received nothing. This provision ended up disenfran-
chising members of the Old Citizen Party, who vocifer-
ously contested the 1871 Act’s legitimacy. After receiving
reports that the ouster of the Old Citizen Party was ob-
tained by fraud, Congress stepped in again, and in 1893
it restored the tribal membership of those who were
expelled. Act of Mar. 3, 1893, ch. 219, 27 Stat. 744. That act,
however, did not restore the tribal membership of those
who chose, under the 1871 Act, to receive their share of
the proceeds of the sale up front and separate from the
Tribe. This group became known as the New Citizen Party,
and it separated from the Tribe without complaint.
6                                                  No. 04-3834

  This solution created its own set of problems—the tribal
rolls swelled with the reenfranchisement of the Old
Citizen Party, and although some tribal members cashed
out of the Tribe, most did not. Soon, it was clear that there
wasn’t enough land to go around, and the allotment
process again came to a standstill. The Tribe, unable to
reap much benefit from the inhospitable land, pushed the
Department of the Interior and Congress to step in again.
The Tribe proposed a plan, approved by the Department,
in which tribal members agreed to accept either allot-
ments from the unsold portion of the reservation, allot-
ments from additional land purchased by the United
States, or cash in lieu of land, “as a full and complete
settlement of all obligations . . . due to said tribe . . . from
whatever source the same may have accrued, whether
under the [1856 treaty], any act of Congress, or
otherwise . . . .” These allotments, unlike the ones in
previous acts, were alienable. This plan was proposed in
1900, but its passage stalled largely because Congress did
not want the United States to foot the bill. Finally, in
1906, the proposal was tucked inside a larger appropria-
tions act, but in its final form the Tribe, not the United
States, was obligated to fund it. Act of June 21, 1906, ch.
3504, 34 Stat. 325, 382-83. Four years later, all the unsold
land within the boundaries of the 1856 reservation was
allotted to tribal members.
  Following the allotments, the Tribe’s reservation was,
for the most part, treated as if it had faded out of existence.
In the 1930s, the Department of the Interior worked with
the Tribe to reacquire parts of the land described in the
1856 treaty, rededicating the property as the Tribe’s
No. 04-3834                                                 7

reservation. 2 Fed. Reg. 629 (Apr. 1, 1937); 13 Fed. Reg.
7718 (Dec. 13, 1948); Act of Oct. 9, 1972, Pub. L. No. 92-480,
86 Stat. 795. Later, Wisconsin and the Tribe entered into
an agreement pursuant to the Indian Gaming Regulatory
Act, 25 U.S.C. § 2710(d)(1)(C), which allowed the Tribe
to operate gaming activities within the boundaries of its
reservation. The Tribe purchased Pine Hills in 1993 and
soon after set up slot machines there. Pine Hills falls
within the boundaries of the 1856 reservation, but it was
not part of the land reserved from the 1871 sale to the
timber companies, nor has it been restored to reserva-
tion status by later legislation.
   Wisconsin sued to enjoin the gambling and sought a
declaration of the current boundaries of the reservation.
The Tribe filed a counterclaim, asking the court to recog-
nize the 1856 boundaries of the reservation and enjoin
the State from imposing a tax on the income of tribal
members who lived and earned their money within those
boundaries. After the district court granted the State’s
motion for a preliminary injunction (which pulled the
plug on the slot machines—golfers, of course, could still
play away), both parties agreed that the Tribe would
collect the contested taxes and hold them in escrow
pending final resolution of this case. Both parties then
filed motions for summary judgment. The State argued
that the 1856 reservation was diminished by the 1871 Act’s
sale of reservation land to timber companies, and then
extinguished by the 1906 Act, which allotted what re-
mained of the reservation to individual tribal members.
The Tribe, on the other hand, maintained that the reserva-
tion remained completely intact because Congress never
8                                                   No. 04-3834

clearly demonstrated its intent to shrink or extinguish it
in either 1871 or 1906, a position reiterated by the United
States in an amicus curiae brief filed in the district court.
Judge Gorence granted the State’s motion, concluding that,
while neither the 1871 Act nor the 1906 Act contained
explicit language diminishing or disestablishing the
reservation, the contemporaneous congressional records
and subsequent treatment of the reservation demon-
strated its intent to do so. The Tribe appeals, but the
United States has not sought permission to appear here
as an amicus curiae on the Tribe’s behalf.4
   We start with the unremarkable observation that once
a reservation is established, it remains intact until
Congress explicitly diminishes its boundaries or disestab-
lishes it entirely. Solem v. Bartlett, 465 U.S. 463, 470
(1984); United States v. Celestine, 215 U.S. 278, 285 (1909).
Because courts must construe Indian treaties sympatheti-
cally to Indian interests, an intent to alter a reservation’s
boundaries “will not be lightly inferred.” Solem, 465 U.S. at
470. The most probative evidence of intent is the operative
language of the act that purportedly shrinks a reservation.
Id. But Congress was not always clear about its intentions
for the boundaries of a reservation, primarily because at
the turn of the last century, when many allotment acts


4
   The record does not tell us why the United States elected to
sit this one out, but counsel for the Tribe told us at oral argu-
ment that he believed it did not file here because time was
too short to do so. Another possibility, perhaps, is that the
United States saw wisdom in Judge Gorence’s analysis of the
case.
No. 04-3834                                                 9

were passed, it was operating under a different set of
assumptions than it does now. Today, a reservation can
encompass land that is not owned by Indians, 18 U.S.C.
§ 1151(a), but back then, the “notion that reservation
status of Indian lands might not be coextensive with
tribal ownership was unfamiliar . . . .” Solem, 465 U.S.
at 468. What’s more, Congress believed that all reserva-
tions would soon fade away—the idea behind the allot-
ment acts was that ownership of property would
prepare Indians for citizenship in the United States, which,
down the road, would make reservations obsolete. Id.
Given these background assumptions, Congress would
have felt little need to explicitly address a reservation’s
boundaries. We cannot, of course, extrapolate a clear
intent to diminish a reservation from these generic as-
sumptions. Id. at 468-69. But given this backdrop, we
also cannot expect Congress to have employed a set of
magic words to signal its intention to shrink a reserva-
tion. Absent such clear language, courts look to events
surrounding the passage of the act that “unequivocally
reveal a widely held, contemporaneous understanding
that the affected reservation would shrink as a result of
the proposed legislation,” id. at 471, and, “to a lesser
extent,” events that occur after the passage of the act,
South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 344 (1998).
  With this framework in mind, we turn to the 1871 Act
which, like many similar acts passed during this period,
allotted a limited property interest to tribal members and
opened the remaining land for sale to non-Indians. We
must decide whether this act simply gave non-Indians a
chance to buy land within an existing reservation or if the
act was meant to diminish the reservation.
10                                               No. 04-3834

  The 1871 Act includes no hallmark diminishment
language, such as statements that the opened land is
“restored to the public domain,” Hagen v. Utah, 510 U.S.
399, 412-14 (1994), or that a tribe agrees to “cede, sell,
relinquish, and convey” reservation land, DeCoteau v.
District County Court, 420 U.S. 425, 436, 445 (1975). But
the act does include other language which shows that
Congress wanted to slice the opened lands off from the
reservation. The act effectively created a new reservation
for the Tribe from which tribal members could select
their allotments. That reservation could consist of either
the land “reserved” from the sale to the timber companies,
“or such other reservation as may be procured for them.”
16 Stat. 406. And the act goes on to require the ex-
peditious allotment of land “after a suitable and
permanent reservation shall be obtained and accepted by
said tribe, either at their present home or elsewhere . . . .”
Id. The clear implication is that the boundaries of the
new reservation were not defined by the 1856 treaty,
but rather by the Tribe and its acceptance of a new home.
The Tribe ended up choosing the unsold portion of the
1856 reservation, which, by the terms of the 1871 Act,
became its new, smaller, “permanent reservation.”
  These references to a new reservation may not, by
themselves, be enough to demonstrate Congress’s intent
to diminish the reservation, Solem, 465 U.S. at 475 (refer-
ence to the “reservations thus diminished” and “the
public domain” are insufficient to infer intent to diminish
a reservation); Mattz v. Arnett, 412 U.S. 481, 498 (1973)
(reference to a reservation in past tense insufficient to
infer intent to diminish it), but we need not rest on them
No. 04-3834                                             11

alone. The circumstances surrounding the passage of
this legislation show that it was more than a run-of-the-
mill allotment act. The Tribe had a history of internal
conflict which this legislation was meant to address
by shrinking the Tribe itself. While Congress later repu-
diated the disenfranchisement of the Old Citizen Party,
it never backed away from the provision that allowed
tribal members to receive their share of the proceeds from
the sale of the land up front in exchange for severance
from the Tribe. Given this context, we cannot dismiss
the references to a new permanent reservation as casual.
To the contrary, it makes perfect sense—smaller tribe,
smaller reservation. The Wisconsin Supreme Court,
confronting the same issue we face here, similarly
reasoned that if the “Act of 1871 did not diminish reserva-
tion status . . . it stands to reason that members of the
Indian party would have asked for and been entitled to
greater consideration in terms of property rights.” Wiscon-
sin v. Davids, 534 N.W.2d 70, 80 (Wis. 1995). Finding
that reading untenable, the court held that the 1871 Act
diminished the Tribe’s reservation. Id. at 72. We agree.
  What’s more, the reservation was consistently treated
as if it had been diminished by the 1871 Act. The Com-
missioner of Indian Affairs, in multiple reports following
the act, excluded the land sold to the timber interests
from its descriptions of the reservation. Maps from the
General Land Office did likewise. The Tribe itself—when
advocating before the Senate for the passage of the 1893
Act which reenfranchised the Old Citizen Party—admitted
that their reservation had been diminished. The Tribe
attempts to introduce ambiguity into this otherwise
12                                              No. 04-3834

consistent picture by pointing to the preamble of the 1893
Act, which states that the Tribe received a reservation
under the 1856 treaty, “upon which they have ever
since resided.” 27 Stat. 744. The Tribe, despite taking a
contrary position when advocating for the legislation, now
reads this statement to be a reaffirmation of the 1856
reservation and its boundaries. But this reference, in an
act about the Tribe’s membership, not its land, cannot be
understood as a resurrection of the original reservation
boundaries. The reference merely points out that the
Tribe continued to live on land reserved for them by
the 1856 treaty, a fact that was both true and consistent
with diminishment. They resided within the 1856 res-
ervation, just on a smaller part than they originally did. In
any event, this statement, made 20 years after the fact,
sheds little light on what Congress intended to do when
passing the act in 1871. Yankton, 522 U.S. at 344, 356;
Mattz, 412 U.S. at 505.
  The 1906 Act, like the 1871 Act, included none of the
hallmark language suggesting that Congress intended to
disestablish the reservation. The relevant provision was
just a few paragraphs tucked inside a larger appropria-
tions act, and it explains only how the tribal members
will be given allotments of land. The act addressed the
“small shoe, big foot” problem—the remaining reservation
was too small to provide parcels to all tribal members.
The Supreme Court has repeatedly held that allotting
land to Indians is consistent with continued reservation
status, see, e.g., Solem, 465 U.S. 473-74; Mattz, 412 U.S. at
497; Seymour v. Superintendent, 368 U.S. 351, 357-58 (1962),
therefore, this language alone is insufficient to abolish
the reservation.
No. 04-3834                                               13

   However, the circumstances surrounding the act show
that Congress wanted to extinguish what remained of
the reservation when it passed the act. By the 1900s, the
Tribe was anxious to complete the stalled allotment
process, and it worked with the Department of the
Interior to propose a plan to get the land divvied up. The
plan they came up with required the purchase of addi-
tional land to complete the allotments and gave tribal
members an option to receive cash in lieu of land—all at
the expense of the United States. This proposed plan (and
the proposed bill that tracked it) was unequivocal—the
completion of the allotment process was to be “a full and
complete settlement of all obligations” the United States
had under the 1856 treaty, including the reservation
it created. The Department of the Interior urged Congress
to pass the bill to facilitate “a final adjustment” of the
Tribe’s affairs, and a report from the House Committee
on Indian Affairs noted that the bill was “drawn so as to
carry out the plan of settlement” formulated by the
Tribe. It’s clear from this congressional record that all the
parties at the table—the Tribe, the Department of Interior,
and Congress—expected that the completion of the allot-
ment process would end the 1856 treaty and the reserva-
tion it created. Of course, the Tribe did not get the
bargain it sought—the Tribe, not the United States, was
required to fund the proposed compromise. But Congress
can act unilaterally, even when abrogating its treaty
obligations with an Indian Tribe, Lone Wolf v. Hitchcock, 187
U.S. 553, 566, 567-68 (1903), and although this change
shifted, perhaps unfairly, the burden of payment, it is not
our place to rewrite history.
14                                               No. 04-3834

  The intent to extinguish what remained of the reserva-
tion is born out by the act’s provision for allotments in
fee simple. This provision sets the 1906 Act apart from
most allotment acts, like the 1871 Act, which restricted
the Indian owners from selling their land or required
that it be held in trust by the United States. 3 Cohen’s
Handbook of Federal Indian Law § 3.04.3; see, e.g., Dawes Act,
ch. 119, 24 Stat. 388, 389 (1887). Why include this
peculiar provision? Because the reservation could only
be abolished if the tribal members held their allotments in
fee simple. See Mattz, 412 U.S. at 496 (“When all the lands
had been allotted and the trust expired, the reservation
could be abolished.”). By 1910, all the land in the 1856
reservation was sold to non-Indians or allotted in fee
simple, which meant that Congress paved the way for non-
Indians to own every parcel within the original reserva-
tion and ensured that the reservation could be immedi-
ately extinguished.
  In the aftermath of the act, the reservation was treated,
for the most part, as though it had been abolished. See,
e.g., United States v. Anderson, 225 F. 825 (E.D. Wis. 1915)
(noting in title dispute case that the reservation had been
dissolved); United States v. Gardner, 189 F. 690, 693, 696
(E.D. Wis. 1911) (suggesting that the reservation expired
once the land was allotted). The land became subject
to state taxes, and the Department of the Interior refused
to intervene in alcohol-related problems within the
original reservation. And once official policy towards
Indians shifted away from allotments and assimilation,
the Department of the Interior worked with the Tribe to
reacquire large parts of its 1856 reservation, declaring
No. 04-3834                                              15

the newly reacquired land to be the Tribe’s reservation.
There were exceptions to this understanding, but aberra-
tional statements are not enough to overcome the clear
record showing Congress’s intent to extinguish the res-
ervation and the otherwise consistent treatment of the
reservation as disestablished.
  We, like Judge Gorence, do not lightly reach the con-
clusion that the Tribe’s reservation was diminished by the
1871 Act and subsequently extinguished by the 1906
Act. The present, reestablished reservation is but a part of
the original two-township reservation created in 1856.
And the Pine Hills entity is not within the boundary of
the reservation as it exists today. On this point Congress’s
intent is clear. Accordingly, we A FFIRM the judgment of
the district court.




  R IPPLE, Circuit Judge, concurring. I join the judgment
and the opinion of the court. I write separately simply
to underline that today’s decision does not constitute a
departure from the general rule that once Congress has
established a reservation, its boundaries remained fixed
unless Congress explicitly diminishes those boundaries
or disestablishes the reservation. As the court’s opinion
makes explicit, this general proposition is firmly embedded
16                                               No. 04-3834

in our jurisprudence. See Solem v. Bartlett, 465 U.S. 463, 470
(1984). Moreover, explicit legislative language remains
“[t]he most probative evidence of congressional intent.” Id.
  Today’s opinion not only states these propositions
unequivocally, but also demonstrates cogently that the
unique historical context makes it unreasonable for us
to demand a clearer statement in the statutory language.
On this basis, I am pleased to join the judgment and
the opinion of the court.
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