(dissenting). The issue in this case is whether the Stockbridge-Munsee Tribe has a right to fish free of state regulation outside the Tribe's present reservation boundaries, but within the boundaries originally created by the Treaty of 1856.1 The majority concludes that it does; I disagree. The majority's conclusion is contrary to the Tribe's history and the legal effect of the federal government's allotment policy as it existed in the late 1800s and early 1900s.
There is no factual dispute that the area where Bert Davids was cited for fishing without a valid Wisconsin fishing license is outside the Tribe's present reservation, but within the boundaries of the reservation as it existed until the Act of 1871.2 There is also no dispute that Davids is an enrolled member of the Stockbridge-Munsee Tribe. What is disputed is whether the Tribe's reservation boundaries as Congress established in the 1856 Treaty shrunk by virtue of the Act of 1871 and with it the Tribe's hunting and fishing rights. Also disputed is whether any reservation status continued after 1910 when the final allotments were completed and before the 1934 Indian Reorganization Act.3
I conclude that the Act of 1871 shrunk the Tribe's reservation boundaries to the eighteen sections as described in the Act. It also shrunk the fishing and hunting rights to the reduced reservation boundaries. Additionally, by 1910, when all the allotments were *206completed, the Tribe's reservation status terminated by virtue of the Act of 1906 and with it all tribal hunting and fishing rights. The Tribe did not secure reservation status again until the 1934 Indian Reorganization Act, and its present boundaries do not encompass the area where Davids was fishing. I would therefore affirm the trial court's judgment.
Unfortunately, the judiciary's failure to develop a consistent standard to determine whether a Tribe's reservation status along with the Tribe's fishing and hunting rights is dissolved has made these decisions more difficult. I contend that we must view this question in light of how the Tribes and Congress dissolved the reservations at the time of these congressional Acts. Also, we must not close our eyes to the reality of what was happening when these Acts were passed.
In its opinion, the majority cites much of the Tribe's history and I will not repeat all of it here. Additionally, a summary of the Tribe's history is reported in 69 Op. Att'y Gen. 72-87 (1980). My disagreement with the majority is that it relies solely on whether Congress explicitly in the Acts of 1871 and 19064 dissolved the reservation. In United States v. Grey Bear, 828 F.2d 1286 (8th Cir. 1987), the court identified three primary factors to consider in determining congressional intent with respect to disestablishment or termination of reservation rights: (1) the face of the relevant act, (2) events surrounding its passage, including legislative history, and (3) subsequent treatment of the land. Id. at 1289 (citing Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 587 (1977)). My position is that the circumstances surrounding the Acts and the nature of the allotments and patents demonstrate unequivocally that Congress *207reduced the Tribe's boundaries in the late 1870s along with the fishing and hunting rights and then finally .dissolved the Tribe and its reservation status by 1910.
The policy of the Allotment Acts in the late 1800s and early 1900s was the gradual extinction of Indian reservations and Indian titles and the eventual assimilation of the Indian population. Montana v. United States, 450 U.S. 544, 559 (1981). This allotment policy and sale of surplus reservation land was later repudiated in 1934 by the Indian Reorganization Act. However, because we are asked to interpret congressional Acts of 1871 and 1906, what is relevant in this case is the effect of the land alienation during the late 1800s and early 1900s.
In Montana, the United States Supreme Court addressed the effect of the federal allotment policies in the late 1800s when it stated:
There is simply no suggestion in the legislative history that Congress intended that the non-Indians who would settle upon alienated allotted lands would be subject to tribal regulatory authority. Indeed, throughout the congressional debates, allotment of Indian land was consistently equated with the dissolution of tribal affairs and jurisdiction. It defies common sense to suppose that Congress would intend that non-Indians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government. And it is hardly likely that Congress could have imagined that the purpose of peaceful assimilation could be advanced if fee-holders could be excluded from fishing or hunting on their acquired property.
Id. (citations omitted) (emphasis added).
*208Here, the 1856 Treaty created a reservation for the Tribe and also provided for the allotment of parcels of land as part of a design to transfer ownership of a particular parcel of land to each tribal member. However, the government patents contained a restriction prohibiting the allottee from transferring or selling the parcel. Because of the ongoing feud between rival factions, the "Indian" party and the "Citizen" party, Congress by its Act of 1871 authorized the Secretary of the Interior to sell all of the reservation land in fee simple with no conditions at a public auction except for eighteen contiguous sections that were reserved for the "Indian" faction members. The Act further provided that these remaining eighteen sections or other reservation land (contemplated property in Minnesota) procured for them would become the reservation for the "Indian" faction members who would be known as the "Stockbridge tribe of Indians."
The "Indian" party rejected the proposed Minnesota property and claimed the remaining eighteen sections as its reservation. The Secretary of the Interior distributed the proceeds from the public sale to members of both factions with the "Citizen" party members taking their shares in money and becoming citizens while the "Indian" party members chose to retain their tribal relations and reservation status on the remaining eighteen sections and deposit their money in the United States Treasury to bear interest for its remaining tribal members.
Unfortunately, this did not resolve the dispute between the rival factions because an argument developed later that some persons reputed to be from the Citizen party sold their land and then illegally enrolled in the Indian party to receive the benefits of tribal annuities. See Marion Johnson Mochon, Stockbridge-*209Munsee Cultural Adaptations: "Assimilated Indians” Vol. 112, no. 3, Proceedings of the American Philosophical Society, 204 (June 1968). The Indian party-claimed that the eighteen section reservation belonged to them and that an injustice was done when members of the Citizen party were permitted to enroll in its Tribe.5
I think it is noteworthy that in response to this problem, in 1893, the Green Bay Agency reported to the Commissioner of Indian Affairs that since the settlement provided for in the Act of 1871, "many of those who took their money and used it, with others, have returned upon the diminished reservation and made demand for a new division of the property of the remnant of the tribe." See id. (citing Sixty-Second Annual Report of the Commissioner of Indian Affairs (Washington, Government Printing Office) 341 (1893) (emphasis added)).
There is no dispute that patenting some tribal lands to individual tribal members standing alone does not compel a conclusion that Congress intended to disestablish or dissolve a reservation status and with it the Tribe's fishing and hunting rights. Even the State concedes this. However, I do agree with the State that the total patenting of all tribal lands in this case does reflect congressional policy to disestablish reservation status and along with it the Tribe's fishing and hunting rights. Here, all the land within the boundaries of the 1856 Treaty had been sold in fee simple with no conditions; the initial portion at a public auction and then *210finally the remaining eighteen sections were allotted and patented by 1910 to the Indian faction. The Indians could do whatever they wanted with their land, and many of them sold their land to non-Indians as had many of the Indians from the Citizen faction done earlier. After the final patents were delivered in 1910, no tribal government existed.
Additionally, the federal cases of United States v. Gardner, 189 F. 690 (E.D. Wis. 1911), and United States v. Anderson, 225 F. 825 (E.D. Wis. 1915), are helpful in understanding the history surrounding the Stockbridge-Munsee Tribe in its relationship with the federal government and also what the community's understanding was shortly after the Act of 1906. In Gardner, the defendant was attempting to show that his alleged crime did not fall within federal jurisdiction. He contended, among other things, that after the Act of 1871 there was no longer any reservation formally set apart for the Tribe. The court rejected this argument by stating:
The act of 1871 (Act Feb. 6,1871, c. 38,16 Stat. 404) provided for a severance of the two parties into which the Stockbridge and Munsee Indians had divided. The sale of the land and payment in cash to the so-called citizen party was provided for, and provision made for a reservation for the other party. And it was directed that a roll should be prepared showing who are the members of such tribe and a survey made and a subsequent allotment, such allotment to be returned to the Secretary of the Interior within one year; that the title to such reservation and of the lands described therein shall be held by the United States in trust for the individual Indians and their heirs, the surplus lands embraced in such reservation, remaining after making such *211allotments, shall be held in like manner by the United States, subject to be allotted to individuals of said tribe who may not have received any portion of said reservation, or to be disposed of for the common benefit of said tribe. Pursuant to this enactment the Indians continued to occupy this remnant of land as a reservation, under the charge of an Indian agent.
Id. at 693 (emphasis added). This "remnant of land" was the remaining eighteen contiguous sections, not all the land within the Tribe's original boundaries.
The court in Gardner rejected the defendant's argument that at the time of his alleged offense the eighteen sections no longer constituted a reservation. It is important to note two things in the State's contention in that case. First, the State contended that it was the eighteen sections occupied by the Tribe that constituted the reservation and, second, these eighteen sections continued as a reservation, but only up to the time the last remnant of land was distributed and conveyed. This contention was consistent with the allotment policies and its legal effect at that time. The Gardner court agreed and recognized the well-settled principle of law as it existed in 1911 when it stated:
It may be conceded that when Congress had authorized the allotment in severalty and in fee simple of all the lands belonging to the tribe, and after the approval of such allotment and the actual delivery of the patents therefor, there remained no reservation, but that each allottee in fee simple had become thereby a citizen of the United States, and a citizen of the state in which he resides and amenable to the laws of the state.
Id. at 694.
*212The Gardner court cited Bates v. Clark, 95 U.S. 471 (1877), where the United States Supreme Court stated:
The simple criterion is, that [the land in dispute] was Indian country whenever the Indian title had not been extinguished, and it continued to be Indian country so long as the Indians had title to it, and no longer. As soon as they parted with the title, it céased to be Indian country without any further Act of Congress, unless by the Treaty by which the Indians parted with their title, or by some Act of Congress, a different rule was made applicable to the case.
Id. at 694.
The Court went on to note that there was no treaty or agreement with the Tribe extending the federal government's jurisdiction beyond the allotment in severalty. Id. at 695. Finally, the Court concluded that the reservation expired, but it need not determine the exact date because the alleged crime had occurred before the final patents were delivered and while the reservation still existed.
Four years later, in Anderson, 225 F. at 825, the court (although a different judge) again considered the effect of the 1906 legislation on the reservation status and concluded: "The Stockbridge and Munsee reservation, created by treaty and congressional acts, has been dissolved through the patenting in fee simple of the lands comprising the same to the members of the tribe, pursuant to Act Cong. June 21, 1906 . . . ." Again, we should note that the court in Anderson was only concerned with whether the remaining eighteen sections remained a reservation as a result of the 1906 Act and concluded that it did not.
*213Finally, in Oregon Dept. of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985), the Supreme Court was faced with the situation whether hunting and fishing rights continued to exist on the land severed from the original reservation. With little discussion, the Court concluded that the sale of land without any reservation of rights the Tribe had ceded to the United States diminished the boundaries of the original reservation. Id. at 768. The Court also rejected the Tribe's asserted right to hunt and fish on the land severed from the original reservation. It stated:
In sum, the language of the 1864 Treaty indicates that the Tribe's rights to hunt and fish were restricted to the reservation. The broad language used in the 1901 Agreement, virtually identical to that used to extinguish off-reservation rights in the 1864 Treaty, accomplished a diminution of the reservation boundaries, and no language in the 1901 Agreement evidences any intent to preserve special off-reservation hunting or fishing rights for the Tribe. Indeed, in light of the 1901 diminution, a silent preservation of off-reservation rights would have been inconsistent with the broad language of cession as well as with the Tribe's 1864 Treaty agreement to remain within the reservation.
Id. at 770 (emphasis added).
These cases demonstrate both historically and legally that the Tribe's original reservation boundaries were diminished to the eighteen sections as a result of the Act of 1871. Additionally, because all but the eighteen sections were sold by fee simple to the public with no reservation of the Tribe's hunting and fishing rights, there remained no tribal reservation rights to hunt and fish on the land severed from the original reservation. Here, it appears undisputed that Davids *214was cited for fishing without a license on land outside the remaining eighteen sections retained as the reservation.
Finally, it also appears clear that by virtue of the 1906 Act when the final patents (again in fee simple with no reservation of tribal rights) were delivered in 1910 under the allotment policy and its legal effect as existing in the late 1800s and early 1900s, not only the remaining eighteen sections but all the land within the original reservation boundaries no longer constituted a reservation. There was simply no reservation existing at all until it was reestablished under the 1934 Indian Reorganization Act when land was reacquired for the Tribe. I would therefore affirm the trial court's judgment.
Treaty with the Stockbridge and Munsee, 1856, pmbl., 11 STAT. 663.
Act of Feb. 6, 1871, ch. 38, 16 Stat. 404.
Act of June 18, 1934, 48 Stat. 984.
Act of June 21,1906, ch. 3504, 34 Stat. 382.
History clearly shows that neither the Tribe nor the federal government ever considered that the Tribe's reservation continued to include the land sold in fee simple to the public. Their emphasis was only about the eighteen sections reserved from this sale for the Tribe as a reservation. See id.