                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 15-1789
                       ___________________________

                            United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                              Joseph Joshua Jackson

                     lllllllllllllllllllll Defendant - Appellant

                            ------------------------------

                      Red Lake Band of Chippewa Indians

                  lllllllllllllllllllllAmicus on Behalf of Appellee
                                       ____________

                   Appeal from United States District Court
                    for the District of Minnesota - St. Paul
                                ____________

                          Submitted: October 19, 2016
                             Filed: April 4, 2017
                               ____________

Before LOKEN, SMITH,* and COLLOTON, Circuit Judges.
                            ____________



     *
       The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
LOKEN, Circuit Judge.

      Joseph Joshua Jackson, an Indian, was charged with committing federal felony
offenses in the town of Redby, Minnesota, historically part of the Red Lake Indian
Reservation. The Major Crimes Act grants federal jurisdiction over these offenses
when committed by Indians “within the Indian country,” 18 U.S.C. § 1153(a),
including the Red Lake Reservation, see 18 U.S.C. § 1162(a). Jackson moved to
dismiss, arguing the district court lacked subject matter jurisdiction because a 1905
Act of Congress diminished the Red Lake Reservation, removing the town of Redby
from Indian country. After the district court denied his motion to dismiss, Jackson
conditionally pleaded guilty and appealed that ruling. Concluding the record did not
adequately support the district court’s determination that Redby is part of Indian
country as a matter of law, we vacated the district court’s order, allowed Jackson to
withdraw his guilty plea, and remanded for further proceedings. United States v.
Jackson, 697 F.3d 670, 678 (8th Cir. 2012) (“Jackson I”).

       On remand, the parties agreed to resolve the issue of subject matter jurisdiction
before Jackson decided whether to withdraw his plea. After an extensive evidentiary
hearing, the district court1 again denied the motion to dismiss and subsequently
entered final judgment sentencing Jackson to 136 months in prison. Jackson appeals
the order denying his motion to dismiss, again arguing that the 1905 Act diminished
the Red Lake Reservation and removed Redby from Indian country. Whether an act
of Congress diminished or disestablished an Indian reservation is a question of
statutory interpretation we review de novo. See, e.g., Nebraska v. Parker, 136 S. Ct.
1072, 1079 (2016). We agree with the district court that the 1905 Act did not
diminish the Red Lake Reservation. Accordingly, we affirm.2

      1
        The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
      2
      In the district court, the parties did not agree on the location in Redby where
Jackson committed the offenses. The court determines whether a particular piece of

                                          -2-
                                  I. Background.

       A. The term “Indian country” includes “all land within the limits of any Indian
reservation under the jurisdiction of the United States Government, notwithstanding
the issuance of any patent, and, including rights-of-way running through the
reservation.” 18 U.S.C. § 1151(a). As we explained in Jackson I, Congress can
unilaterally alter reservation boundaries, and in modern times the Supreme Court has
decided a series of cases “raising the question whether various surplus lands Acts [in
the late nineteenth and early twentieth centuries] diminished or entirely terminated
particular reservations.” 697 F.3d at 672. We summarized the relevant inquiry,
quoting from South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343-44 (1998).
Last year, the Supreme Court confirmed that this remains the relevant inquiry:

      Only Congress can divest a reservation of its land and diminish its
      boundaries, and its intent to do so must be clear. To assess whether an
      Act of Congress diminished a reservation, we start with the statutory
      text, for the most probative evidence of diminishment is, of course, the
      statutory language used to open the Indian lands. Under our precedents,
      we also examine all the circumstances surrounding the opening of a
      reservation. . . . [M]any surplus lands Acts did not clearly convey
      whether the opened lands retained reservation status or were divested of
      all Indian interests. For that reason, our precedents also look to any
      unequivocal evidence of the contemporaneous and subsequent
      understanding of the status of the reservation by members and
      nonmembers, as well as the United States and the State [where the
      reservation is located].



land is in Indian country; the jury then decides whether the crime in fact occurred on
that land. See United States v. Roberts, 185 F.3d 1125, 1139 (10th Cir. 1999); United
States v. Stands, 105 F.3d 1565, 1575-76 (8th Cir. 1997). Our conclusion that the
1905 Act did not diminish the Reservation fully resolves the Indian country issue.

                                         -3-
Parker, 136 S. Ct. at 1078-79 (citations and quotations omitted). Congress’ intent to
“alter the terms of an Indian treaty by diminishing a reservation . . . must be clear and
plain.” Yankton Sioux Tribe, 522 U.S. at 343 (citations and quotation omitted).
Although the 1905 Act here at issue was not a surplus lands act, we adhere to our
ruling in Jackson I that this issue of diminishment is governed by the principles
“developed by the Supreme Court in surplus lands Act cases.” 697 F.3d at 673.

       B. The Red Lake Reservation resulted from an 1863 Treaty between the
United States and the Red Lake and Pembina Bands of Chippewa Indians. Two
subsequent acts of Congress significantly reduced the Reservation’s boundaries. The
Nelson Act of January 14, 1889, 25 Stat. 642 (“1889 Act”), provided that the Red
Lake Band will “cede, relinquish, and convey” over two million acres to the United
States. The Act of February 20, 1904, 33 Stat. 46 (“1904 Act”), ratifying a 1902
agreement, stated that the Band “cede[d], surrender[ed], grant[ed] and convey[ed]”
more than 250,000 acres to the United States. Redby is located six miles inside the
Red Lake Reservation’s present-day exterior boundary.

       The 1889 and 1904 Acts were passed during the so-called “allotment era,” in
which Congress passed surplus lands acts that allotted tribal lands to individual
Indians and sold surplus lands to white settlers, reflecting Congress’ nationwide
policy to promote Indian assimilation and accommodate settlers’ westward expansion.
See Solem v. Bartlett, 465 U.S. 463, 466 (1984). These Acts provided that the Red
Lake Band ceded its entire interest in the surrendered lands, creating “a nearly
conclusive, or almost insurmountable, presumption of diminishment.” Jackson I, 697
F.3d at 675 (quotation omitted). Though the 1889 Act mandated the sale of “allotted
lands in severalty to the Red Lake Indians on Red Lake Reservation,” 25 Stat. 642,
643, the Red Lake Band successfully resisted allotment. Congress in the 1904 Act
removed mandatory allotment language, stating Band members “shall be entitled” to
allotments. 33 Stat. 46. As late as June 1928, the Secretary of the Interior reported
that “it has not yet been found to be practicable to allot the Red Lake Reservation.”

                                          -4-
U.S. Court of Claims, Report of the Commissioner No. H-76 at 96 (April 2, 1934)
(“H-76 Report”). Red Lake has remained a “closed” reservation, meaning almost all
lands are held communally, “apparently one of only two reservations in the nation to
enjoy this status.” Nord v. Kelly, 520 F.3d 848, 858 n.7 (8th Cir. 2008) (Murphy, J.,
concurring).

       C. During this period, Congress also actively promoted railroad development
by granting railroad rights-of-way through various Indian reservations. In 1899,
Congress passed a law enabling railroad companies to obtain rights-of-way, but
limiting the amount of land that could be granted. See Act of March 2, 1899, 30 Stat.
990. In 1903, the Red Lake Transportation Company converted a temporary logging
permit into a permanent railroad right-of-way extending through part of the Red Lake
Reservation into modern day Redby. In 1904, the Minneapolis, Red Lake and
Manitoba Railway Company (“MRL&M”), having acquired the Red Lake
Transportation Company’s interests, petitioned Congress for additional lands
surrounding the existing terminal to establish a lumber-shipping hub near Redby. See
H. R. Rep. No. 3542 (1905). On February 8, 1905, Congress passed the statute here
at issue, entitled an Act to Allow the Minneapolis, Red Lake, and Manitoba Railway
Company to Acquire Certain Lands in the Red Lake Reservation (“1905 Act”). The
1905 Act provided, as relevant here:

      Be it enacted . . . That there is hereby granted to the Minneapolis, Red
      Lake and Manitoba Railway Company[,] . . . a line of railroad . . . having
      its northern terminus at a point . . . in the Red Lake Indian
      Reservation[,] . . . the right to select and take from the lands of the Red
      Lake Indian Reservation grounds adjacent to its northern
      terminus . . . not to exceed in extent three hundred and twenty acres.

            Sec. 2. That before title to said lands shall vest in the said railway
      company, and before said company shall occupy or use said lands,
      compensation therefor shall be made to the tribes of Indians residing
      upon the said reservation . . . . The amount of compensation for said

                                          -5-
      lands shall be ascertained and determined in such manner as the
      Secretary of the Interior may direct and be subject to his final approval.

             Sec. 3. That said company shall file maps . . . showing the
      definite location of the grounds so selected and taken, which said maps
      shall be subject to the approval of the Secretary of the Interior . . . .

             Sec 5. The laws of the United States now in force, or that may
      hereafter be enacted, prohibiting the introduction and sale of
      intoxicating liquors in the Indian country, shall be in full force and
      effect throughout the territory hereby granted, until otherwise directed
      by Congress or the President of the United States, and for that purpose
      said tract shall be held to be and to remain a part of the diminished Red
      Lake Indian Reservation.

            Sec. 6. That Congress reserves the right to alter, amend, or repeal
      this Act or any part thereof.

MRL&M timely selected 312.09 acres where the town of Redby is today, including
11.59 acres that formed its existing right-of-way. The Secretary of the Interior
determined fair compensation to the Band, and MRL&M paid $6,816.20 in damages.
MRL&M next sought a patent for the 312.09 acres to evidence its title. The Secretary
denied the request because the 1905 Act did not include a patent provision and title
was fully vested by the railroad’s compliance with the 1905 Act. Eventually,
MRL&M abandoned the rail line, and in 1939 the Band began to restore the 312.09
acres into trust to benefit the Band, including through a $5,000 payment to the
railroad. The United States now holds approximately 95% of the land MRL&M
acquired under the 1905 Act in trust for the benefit of the Band.

       D. In Jackson I, we noted that Indian country includes “rights-of-way running
through the reservation,” 18 U.S.C. § 1151(a), but the 1905 Act “did not grant the
railroad a right-of-way. . . . [T]he railroad already had its right-of-way and was
operating.” 697 F.3d at 676. Though the 1905 Act did not provide that the Band

                                         -6-
“ceded” its interest in the 312 acres, language creating a “nearly conclusive”
presumption of diminishment, Section 1 allowed the railroad to “select and take
from” the lands of the Reservation, language “obviously derived from earlier Acts
granting lands in addition to rights-of-way to railroads.” Id. In addition, Section 1
granted the railroad more land than the minimum needed for a right-of-way, and
Section 5 contained a liquor prohibition that was “unnecessary if the Act did not
diminish the Reservation” and that referred to “the diminished Red Lake Indian
Reservation.” Id. at 676-77. We considered the 1889 Act and the 1904 Act, and we
noted the distinct railroading context of the 1905 Act. Jackson I, 697 F.3d at 673-77.
We concluded the text of the 1905 Act did not provide “clear and plain evidence of
congressional intent” to diminish the Red Lake Reservation, but these provisions
contained “considerable indication of an intent to diminish.” Id. at 677.

       Under the Supreme Court’s relevant inquiry, this textual ambiguity mandated
consideration of extrinsic evidence -- “the historical context surrounding the passage
of the surplus land Acts and, to a lesser extent, the subsequent treatment of the area
in question and the pattern of settlement there.” Yankton Sioux Tribe, 522 U.S. at
344 (quotation omitted). Unequivocal historical evidence establishing a “widely held,
contemporaneous understanding that the affected reservation would shrink as a result
of the proposed legislation” may support a finding of diminishment, even where the
statutory language is ambiguous as to Congressional intent. Solem, 465 U.S. at 471.
Yet the record on appeal included only the 1905 Act, a single floor statement in the
Act’s legislative history stating that it extends a railroad’s existing right-of-way, 39
Cong. Rec. 1854, a comparison to the 1904 Act, and documents that Jackson
submitted showing that Beltrami County assesses taxes against some lots in Redby.
On this spotty and inconclusive record, we concluded the government had not met its
burden to present evidence permitting a court to “conclude, as a matter of law, that
the reservation was not diminished by the 1905 Act.” Jackson I, 697 F.3d at 679.




                                          -7-
                          II. Proceedings on Remand.

       On remand, the parties and the Red Lake Band of Chippewa Indians, appearing
as amicus curiae on behalf of the government, presented substantial testimony,
exhibits, and briefing to address these issues at a two-day evidentiary hearing. Ian
Smith, a Project Historian at Historical Research Associates, testified for the
government regarding Congress’s intent in passing the 1905 Act, based on his
research summarized in a comprehensive report, A Study of the Act of February 8,
1905, and Its Impact on the Red Lake Indian Reservation, Minnesota. Researching
the period from the late 1880s to the late 1910s, Smith reviewed the Congressional
Record, including U.S. House and Senate floor statements and Committee Reports
regarding the 1905 Act and its 1910 amendment; government reports and records
from the Bureau of Indian Affairs, the Department of the Interior, and the Bureau of
Land Management; annual reports of the Commissioner of Indian Affairs from
1897-1912; National Archives records; Congressional reports related to the Red Lake
Reservation and legislation impacting the Reservation; Narratives and Statistical
Reports by the Superintendent of Red Lake Agency from 1911-1922; and secondary
sources regarding railroad development on reservation lands. Based on his review
of these records, Smith concluded, “The record was fairly clear . . . from a historical
perspective that the documents leading up to and subsequent to the passage of these
laws didn’t show evidence of lands being ceded from the Reservation or lands being
diminished or boundaries being changed.”

       The Red Lake Band as amicus curiae filed a post-hearing brief that expanded
on this historical record. The Band provided Congressional records of negotiations
that preceded the 1889 and 1904 Acts and a 1934 report of the Commissioner of the
Court of Claims. These sources described the Band’s successful resistance to
Congress’ mandatory allotment policy, which resulted in Congress using permissive
allotment language in the 1904 Act, further evidence, the Band contended, that
Congress did not intend to diminish this unique Reservation in the 1905 Act. The

                                         -8-
Band also presented evidence addressing the government’s subsequent treatment of
the area, the current Indian character of Redby, the importance of the area to the Red
Lake Reservation, and the residents’ expectations of the Band’s continued authority.

        Other government witnesses addressed the subsequent treatment and current
character of the Redby area -- Harlan Beaulieu, a Red Lake Realty Officer; Debra
Glynn, co-owner of the Redby One Stop in Redby; Janet Beaulieu, Assistant Director
of the Red Lake Housing and Finance Corporation; and Captain Dana Lyons from the
Red Lake Department of Public Safety. Jackson presented three witnesses who
testified to the current character and the extent of state and local government
involvement in Redby -- Judy Kay Lussier, co-owner of the Redby One Stop;
Charlene Sturk, Beltrami County Recorder; and Thomas Westbrook, owner of the
Redby Store.

       After a comprehensive review of the record, the district court on remand found
that the statutory language read in historical context shows that Congress did not
intend to diminish the reservation through the 1905 Act. Further, while the record
regarding the subsequent treatment of the land was somewhat mixed, the district court
found the government presented more compelling evidence of the land’s retained
Indian character. It concluded that the government presented sufficient extrinsic
evidence to show that Congress intended the 1905 Act to extend MRL&M’s existing
right-of-way rather than remove that land from the Red Lake Reservation.

                                    III. Analysis.

       On appeal, both parties represent that there is little disagreement, if any, over
the facts in the record. The parties dispute whether these facts support a conclusion
of diminishment such that Jackson’s offenses did not occur in Indian country. The
parties and the Band as amicus quite properly focus, primarily, on the text of the 1905
Act, read in its historical context, and particularly on the evidence presented on

                                          -9-
remand addressing the provisions in the 1905 Act that we noted as possible indicators
of Congressional intent to diminish. See Jackson I, 697 F.3d at 677.

       A. Issues Relating to Statutory Text. Jackson first argues that differences
between the 1905 Act and contemporary right-of-way acts suggest that the 1905 Act
was a land cession instead of an extension of MRL&M’s existing right-of-way. He
notes that the 1905 Act does not use the term “right-of-way” in its title or text, unlike
contemporary right-of-way acts. And unlike right-of-way acts, the 1905 Act gave
MRL&M the right to acquire title to land that it would “select and take,” without
limiting its permitted use of the land.

       Historian Smith’s report and testimony addressed this issue at length. He
compared the 1905 Act to five right-of-way acts passed between 1888 and 1900
affecting the Red Lake Reservation, or land ceded in the 1889 Act. These other acts
similarly allowed railroad companies to “take” lands alongside their rights-of-way.
See Act of April 17, 1900, 31 Stat. 134 (granting a right-of-way and stating “railroad
company may take not exceeding forty acres in addition to the grounds allowed for
station purposes for the corresponding section of ten miles” for railroading purposes);
Act of October 1, 1890, 26 Stat. 660 (granting right-of-way and “the right to take and
use one hundred and sixty acres of the lands in said reservation [to] be held for
general railway uses and purposes only”). Smith opined that similarities between the
1905 Act and these earlier right-of-way acts suggest that Congress did not intend to
diminish the Red Lake Reservation. The Red Lake Band argues that Section 6 of the
1905 Act, which was not referenced in Jackson I, incorporated language frequently
used in right-of-way statutes.

       Though the 1905 Act was not explicitly a right-of-way statute, Smith’s research
suggests that Congress intended the 1905 Act as an extension of MRL&M’s existing
right-of-way. During House floor debate on February 3, 1905, Representative
Steenerson characterized the purpose of the bill to “extend [MRL&M’s] right of way,

                                          -10-
so as to give it further terminals.” 39 Cong. Rec. 1854. Representative Clapp made
similar reference to a right-of-way during debate regarding a 1910 Amendment to the
1905 Act. 45 Cong. Rec. 2554. A House of Representatives report presented the bill
as an Act to allow MRL&M to “acquire certain lands in the Red Lake Indian
Reservation in Minnesota for purposes of a proper terminus.” H. R. Rep. No. 3542
(1905). Jackson notes that the House Report included a letter in which the Acting
Commissioner of Indian Affairs questioned whether Indian consent “should be
obtained [prior] to the cession or grant of land.” Id. But, as the Report also stated,
“grants for rights of way and station grounds to railroad companies through and upon
Indian lands” are typically made without such consent. Id. The Commissioner’s
reference to “cession or grant” is of little probative value, as one term suggests intent
to diminish, the other does not. The “tenor” of the legislative record suggests
Congress intended the bill that became the 1905 Act to simply extend MRL&M’s
right-of-way. See Yankton Sioux Tribe, 522 U.S. at 351-52.

       Jackson further argues that the provision for compensation in Section 2 of the
1905 Act indicates diminishment because “an unconditional commitment from
Congress to compensate the Indian tribe for its opened land,” combined with use of
cession language, creates a presumption of diminishment. Yankton Sioux Tribe, 522
U.S. at 344 (quotation omitted). But historian Smith’s research revealed that some
contemporaneous right-of-way acts included provisions similar to the 1905 Act,
requiring the Secretary of the Interior to approve plat maps, conduct appraisals, and
accept damage payments for the Band. See Act of April 24, 1888, 25 Stat. 90. The
record reflects that MRL&M paid $6,816.20 in damages for the value of 300.5 acres
that was not already “property of the railroad” (its existing right-of-way), and for
“Indian improvements” on the proposed townsite. As the Band notes, this method of
compensation suggests that Congress intended to compensate members for an
expansion of the railroad’s existing right-of-way.




                                          -11-
      Jackson renews his argument that the reference to “the diminished Red Lake
Indian Reservation” in Section 5 “supports a finding that the 1905 Act diminished the
reservation.” However, after reviewing government reports, contemporary laws,
congressional documents, and archival records, historian Smith concluded that, by
1905, “diminished Red Lake Indian Reservation” had become a term of art
government officials used in referring to the Reservation as diminished by earlier
surplus lands acts, rather than by the 1905 Act itself. Smith cited references to the
term in 1892, 1896, and 1902 compiled for a 1935 Court of Claims case, see H-76
Report at 92-93, 95, 98; government maps of the “diminished Red Lake Indian
Reservation” after 1905; and the testimony of Red Lake Realty Officer Harlan
Beaulieu at the evidentiary hearing.

       Jackson again argues that the liquor prohibition in Section 5 is clear evidence
of intent to diminish because the provision would otherwise be unnecessary. On
remand, the government presented evidence that Congress passed other statutes with
liquor prohibitions redundant to a general prohibition of liquor on reservations, see
Act of July 23, 1892, 27 Stat. 260; that Congress was greatly concerned with the
problem of alcohol abuse on reservations; and that Minnesota Congressman
Steenerson presented Section 5 as a last minute amendment to address this concern.

       Finally, Jackson argues that a 1910 amendment to the 1905 Act that was not
part of the record in Jackson I demonstrates Congressional intent to diminish. Recall
that in 1905, the Secretary of the Interior denied MRL&M’s request for a land patent
because the 1905 Act did not include a provision for a patent and because title to the
land was vested by the railroad’s compliance with the 1905 Act. But MRL&M
persevered. In 1910 it obtained an amendment to the 1905 Act providing that “[t]he
Secretary of the Interior shall cause a patent for the land selected and taken to be
issued to said company . . . to show the title vested in the company . . . .” Act of June
25, 1910, 36 Stat. 855, 861. Issued in 1916, the patent granted MRL&M the land
“together with all the rights, privileges, immunities, and appurtenances, of whatsoever

                                          -12-
nature, thereunto belonging, unto the said [MRL&M], and to its successors and
assigns forever.”

       Neither the 1910 amendment nor the 1916 patent demonstrates congressional
intent to diminish the Red Lake Reservation in the 1905 Act. See 18 U.S.C.
§ 1151(a); Solem, 465 U.S. at 465 n.1, 470. Moreover, the 1910 amendment’s
legislative history, though scant, supports the conclusion that Congress viewed the
1905 Act as akin to a right-of-way act. MRL&M’s attorney, Mr. Babbitt, initially
requested the patent in a 1905 letter to the Commissioner of Indian Affairs “for the
lands in the Red Lake Indian Reservation.” During Senate debate on the amendment,
Senator Moses Clapp explained the company preferred that “a patent shall issue to
the company for the right of way.” 45 Cong. Rec. 2554.

       On balance, we agree with the district court that the text of the 1905 Act, read
in light of its legislative history, leans heavily in favor of the government’s position.
Most significantly, the 1905 Act differed markedly from the 1889 and 1904 Acts that
were viewed as diminishing the Reservation -- the 1889 Act used the terms “cede,
relinquish, and convey,” 25 Stat. 642, and the 1904 Act used the language “cede,
surrender, grant, and convey,” 33 Stat. 46. As the Band notes, the 1889 and 1904
Acts transferred large areas of land by explicit terms of cession, language Congress
did not use in the 1905 Act when it granted the railroad a “small island” six miles
within the Reservation. Indeed, the different language in these earlier Acts, and the
legislative history suggesting an intent merely to expand MRL&M’s right-of-way,
confirm the lack of clear and plain Congressional intent to diminish. See Parker, 136
S. Ct. at 1080.

      B. The Historical Context. Because Congress in this era often did not clearly
convey whether transferred lands retained reservation status, the Supreme Court “also
look[s] to any unequivocal evidence of the contemporaneous and subsequent
understanding of the status of the reservation.” Parker, 136 S. Ct. at 1079 (quotation

                                          -13-
omitted). Once again, the record on remand extensively addressed this factor. As the
record overall is inconclusive, we agree with the district court that it fails to show
express or clear Congressional intent to diminish the Red Lake Reservation.

       Jackson argues that the backdrop against which Congress legislated -- an era
of allotment and assimilation -- indicates diminishment, because Congress pursued
a nationwide policy of acquiring Indian lands. But diminishment analysis focuses on
the historical context and language of the particular statute at issue. See Solem, 465
U.S. at 469 (explaining that some surplus land acts diminished reservations, while
some did not). Here, we agree with the district court that the record shows a history
of successful resistance to allotment by the Red Lake Band that formed part of
broader policy decisions and actions taken by the Government regarding the
Reservation. See H-76 Report at 94-95. Congress in the 1904 Act removed
mandatory allotment language, unlike statutes regarding other reservations passed a
year before and after the 1904 Act.3 As late as June 1928, the Secretary of the Interior
reported that “it has not yet been found to be practicable to allot the Red Lake
Reservation.” Id. at 96. This congressional recognition of the Band’s entrenched
opposition to allotment suggests that Congress would have expressly included cession
language in the 1905 Act had it intended to diminish the Red Lake Reservation.

       The government presented evidence of a contemporaneous understanding that
the 1905 Act did not diminish the Red Lake Reservation, including the 1905 letter
from MRL&M’s attorney requesting a patent for land “in” the reservation. There was
testimony at the evidentiary hearing that Tribal members viewed the 1905 Act as a
lease of 320 acres, given the lack of negotiations and MRL&M’s purpose in obtaining
the land for railroad purposes.



      3
       See, e.g., Act of December 21, 1904, 33 Stat. 595, 596; Act of April 21, 1904,
33 Stat. 189, 217.

                                         -14-
       Some of the historical context evidence is consistent with an intent to diminish.
For example, Jackson argues that an itemized appraisal of Indian owned land on the
“proposed townsite,” followed by compensation, is evidence of intent to diminish
because Congress required that Indians leave the selected land, and there was no
Indian presence immediately following the 1905 Act. He suggests the Commissioner
of Indian Affairs treated the land as diminished, because his annual reports show the
reservation reduced by 320 acres following the 1905 Act. But the reports are
ambiguous, because they also refer to the 1905 Act as “granting 320 acres as a right
of way.” As the Band argues, the “reduction” may simply reflect that 320 acres were
no longer available for allotment, not that they were no longer a part of the
Reservation. Overall, the record is inconclusive.                 “[M]ixed historical
evidence . . . cannot overcome [a] lack of clear textual signal that Congress intended
to diminish the reservation” because it “in no way unequivocally reveal[s] a widely
held, contemporaneous understanding that the affected reservation would shrink as
a result of the proposed legislation.” Parker, 136 S. Ct. at 1080, quoting Solem, 465
U.S. at 471.

       C. Subsequent Treatment and Current Character. The government’s
treatment of the affected area, especially in the years immediately following the Act,
offers “some evidentiary value,” and subsequent demographic history can provide an
“additional clue” of Congressional intent. Parker, 136 S. Ct. at 1081, quoting Solem,
465 U.S. at 471-72. But subsequent demographic history is the “least compelling
evidence in our diminishment analysis.” Parker, 136 S. Ct. at 1082.

       Jackson presented evidence that deeds of fee-owned property in Redby are
registered at Beltrami County, just like non-tribal lands surrounding Red Lake, and
that owners of lots within Redby pay property taxes to Beltrami County. He argues
that the Band’s efforts to restore the 312.09 acres to trust status in 1939, including a
$5,000 payment to MRL&M after it abandoned the rail line, shows that the land had
been removed from the Reservation by the 1905 Act and the Band had to reclaim it.

                                         -15-
       The district court concluded that “[d]espite this evidence . . . the Government
present[ed] more compelling extrinsic evidence that the 312.09 acres have always
retained their Indian character.” We agree. Following the 1905 Act, the federal
government continued to treat the Reservation, including Redby, uniformly.
Government maps include Redby within the Reservation’s boundaries, and annual
reports of its Superintendent in the 1910s discuss Redby as part of the Reservation.

       Today, Redby is one of four legislative districts in Red Lake, providing two
elected representatives to the Tribal Council. The government and the Band
presented evidence that Redby remains overwhelmingly Indian in character. The
town is located six miles inside the Red Lake Reservation’s exterior boundary. The
Band provides almost all public services, including public utilities, garbage pickup,
street maintenance, education, and emergency services. Businesses are licensed and
regulated by the Tribal Council. In enforcing the Tribal Code, the Red Lake police
make no distinction between trust land and fee land, whether owned by Indians or
non-Indians.

                                  IV. Conclusion.

       “[A] holding favoring federal jurisdiction is required unless Congress has
expressly or by clear implication diminished the boundaries of the reservation . . . .”
 United States ex rel. Condon v. Erickson, 478 F.2d 684, 689 (8th Cir. 1973). After
careful review of this extensive record, the district court determined that the evidence
failed to show that Congress clearly and plainly intended that the 1905 Act would
diminish the Red Lake Reservation. We agree. The statute’s text, while somewhat
ambiguous, reflects with the aid of historical records submitted by historian Smith
and the Band that Congress intended the 1905 Act to accomplish a needed expansion
of MRL&M’s existing right-of-way. Subsequent historical records are consistent
with this interpretation, and present-day Redby is overwhelmingly Indian in character
and governed by the Band’s tribal authorities. The record on remand is not unclear,

                                         -16-
but even if it were , we must presume Congress did not intend diminishment and hold
in the government’s favor. See Solem, 465 U.S. at 481.

      For these reasons, the judgment of the district court is affirmed.
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