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.