Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98 C 871-Patricia J. Gorence, Magistrate Judge.
The opinion of the court was delivered by: Evans, Circuit Judge.
Before POSNER, RIPPLE, and EVANS, Circuit Judges.
The Stockbridge-Munsee Indians (the Tribe) are comprised of descendants of the Mohican Tribe who migrated westward and eventually arrived in Wisconsin in the 1820s. In 1856, the United States entered into a treaty and created a reservation for the Tribe consisting of two townships (Bartelme and Red Springs) in Shawano County, Wisconsin, some 40 miles northwest of Green Bay. The issue in this case is straightforward-are the boundaries of that reservation still intact? The answer is important because the Tribe can only operate slot machines (under a contract with the State of Wisconsin entered into pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq.) at the Pine Hills Golf and Supper Club, an entity it purchased in the 1990s, if the *fn1 course is within the exterior boundaries of the tribal reservation. Everyone agrees that Pine Hills, which is in*fn2 Section 2 of the township of Red Springs, falls within the original boundaries of the reservation, but Wisconsin filed this suit because it believes that Pine Hills lies outside the reservation as it stands today. The magistrate judge (Patricia J. Gorence) agreed, granting summary judgment for the State after holding that the reservation, as it existed over 150 years ago, was extinguished by two legislative acts, which first allowed non-Indians to purchase a large section of the 1856 reservation, and then allotted parcels of the reservation to tribal members. The reservation came back a bit, starting in 1937, but never reclaimed its full original size. The Tribe appeals.
The Tribe's history, like that of many other Indian tribes, was shaped by the constant pressure to move westward to make way for white settlers. Originally from western Massachusetts, the Tribe moved to the Hudson River Valley in New York after the Revolutionary War and eventually to a reservation east of Lake Winnebago in Calumet County, Wisconsin. But it was not long before the Tribe faced pressure to move out of its Lake Winnebago site. This pressure produced two factions within the Tribe. One faction, the Old Citizen Party, wanted to break free from its guardianship relationship with the United States. It sought full United States citizen-ship and the allotment of parcels of land to individual tribal members. Another group, the Indian Party, wanted to maintain a tribal structure and move to a new reservation west of the Mississippi. Between 1843 and 1848, a treaty and two legislative acts were passed and then repealed, seesawing between these positions. See Act of Mar. 3, 1843, ch. 101, 5 Stat. 645; Act of Aug. 6, 1846, ch. 85, 9 Stat. 55; Treaty with the Stockbridge Tribe of Indians, Nov. 24, 1848, 9 Stat. 955.
Unsurprisingly, this haphazard approach didn't help matters much. In 1856, a new compromise was brokered, and the Tribe entered into a treaty with the United States, agreeing to "cede and relinquish" its Lake Winnebago reservation (and other lands reserved for their use) in exchange for a new reservation in Wisconsin. Treaty with the Stockbridge and Munsees, Feb. 5, 1856, 11 Stat. 679. "As soon as practicable," the new reservation was to be surveyed and allotted to the individual tribal members, and the Tribe's membership was defined by reference to an earlier treaty, which predated the series of seesawing legislative acts. Id. Although tribal members would have the right to occupy their allotments, they could not sell the land without first waiting 10 years and getting permission from both the Tribe and the United States government. But the controversy did not end here. The new reservation turned out to be heavily forested and difficult to farm-not quite the arable land that had been promised in the treaty. And to make matters worse, the Department of the Interior prevented the Tribe from cutting and selling the timber on the reservation. As the Tribe struggled to survive at its new spot, conflicts between the two factions renewed and stymied the allotment process.
Fifteen years later, Congress intervened again. In 1871, an act was passed, calling for the public auction, run by the government, of three quarters of the reservation. Act of Feb. 6, 1871, ch. 38, 16 Stat. 404. Whatever land was not*fn3 sold after two years was to be purchased by the gov- ernment at below-market prices, and the proceeds from all the sales were to be divided amongst the tribal members. Those willing to sever their ties with the Tribe could take their share on a per capita basis, but the funds belonging to those who wished to remain in the Tribe were held in their trust by the United States. The last quarter of the reservation was "reserved" from sale, and the Tribe was given a choice to make their permanent home there or on an equivalent tract of land to be procured later. Id. at 405. The Tribe elected to stay put, and the remaining tribal members were eligible to receive allotments from this land, with restrictions on alienability. Most of the land up for sale went into the hands of timber companies that harvested the lumber.
But there was a catch. Those who had separated from the Tribe or had received allotments under previous acts- including the repealed acts regarding the old Lake Winnebago reservation-were expelled from the Tribe and received nothing. This provision ended up disenfranchising members of the Old Citizen Party, who vociferously contested the 1871 Act's legitimacy. After receiving reports that the ouster of the Old Citizen Party was obtained by fraud, Congress stepped in again, and in 1893 it restored the tribal membership of those who were expelled. Act of Mar. 3, 1893, ch. 219, 27 Stat. 744. That act, however, did not restore the tribal membership of those who chose, under the 1871 Act, to receive their share of the proceeds of the sale up front and separate from the Tribe. This group became known as the New Citizen Party, and it separated from the Tribe without complaint.
This solution created its own set of problems-the tribal rolls swelled with the reenfranchisement of the Old Citizen Party, and although some tribal members cashed out of the Tribe, most did not. Soon, it was clear that there wasn't enough land to go around, and the allotment process again came to a standstill. The Tribe, unable to reap much benefit from the inhospitable land, pushed the Department of the Interior and Congress to step in again. The Tribe proposed a plan, approved by the Department, in which tribal members agreed to accept either allotments from the unsold portion of the reservation, allotments from additional land purchased by the United States, or cash in lieu of land, "as a full and complete settlement of all obligations . . . due to said tribe . . . from whatever source the same may have accrued, whether under the [1856 treaty], any act of Congress, or otherwise . . . ." These allotments, unlike the ones in previous acts, were alienable. This plan was proposed in 1900, but its passage stalled largely because Congress did not want the United States to foot the bill. Finally, in 1906, the proposal was tucked inside a larger appropriations act, but in its final form the Tribe, not the United States, was obligated to fund it. Act of June 21, 1906, ch. 3504, 34 Stat. 325, 382-83. Four years later, all the unsold land within the boundaries of the 1856 reservation was allotted to tribal members.
Following the allotments, the Tribe's reservation was, for the most part, treated as if it had faded out of existence. In the 1930s, the Department of the Interior worked with the Tribe to reacquire parts of the land described in the 1856 treaty, rededicating the property as the Tribe's reservation. 2 Fed. Reg. 629 (Apr. 1, 1937); 13 Fed. Reg. 7718 (Dec. 13, 1948); Act of Oct. 9, 1972, Pub. L. No. 92-480, 86 Stat. 795. Later, Wisconsin and the Tribe entered into an agreement pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. § 2710(d)(1)(C), which allowed the Tribe to operate gaming activities within the boundaries of its reservation. The Tribe purchased Pine Hills in 1993 and soon after set up slot machines there. Pine Hills falls within the boundaries of the 1856 reservation, but it was not part of the land reserved from the 1871 sale to the timber companies, nor has it been restored to reservation status by later legislation.
Wisconsin sued to enjoin the gambling and sought a declaration of the current boundaries of the reservation. The Tribe filed a counterclaim, asking the court to recognize the 1856 boundaries of the reservation and enjoin the State from imposing a tax on the income of tribal members who lived and earned their money within those boundaries. After the district court granted the State's motion for a preliminary injunction (which pulled the plug on the slot machines-golfers, of course, could still play away), both parties agreed that the Tribe would collect the contested taxes and hold them in escrow pending final resolution of this case. Both parties then filed motions for summary judgment. The State argued that the 1856 reservation was diminished by the 1871 Act's sale of reservation land to timber companies, and then extinguished by the 1906 Act, which allotted what remained of the reservation to individual tribal members. The Tribe, on the other hand, maintained that the reservation remained completely intact because Congress never clearly demonstrated its intent to shrink or extinguish it in either 1871 or 1906, a position reiterated by the United States in an amicus curiae brief filed in the district court. Judge Gorence granted the State's motion, concluding that, while neither the 1871 Act nor the 1906 Act contained explicit language diminishing or disestablishing the reservation, the contemporaneous congressional records and subsequent treatment of the reservation demonstrated its intent to do so. The Tribe appeals, but the United States has not sought permission to appear here as an amicus curiae on the Tribe's behalf.*fn4
We start with the unremarkable observation that once a reservation is established, it remains intact until Congress explicitly diminishes its boundaries or disestablishes it entirely. Solem v. Bartlett, 465 U.S. 463, 470 (1984); United States v. Celestine, 215 U.S. 278, 285 (1909). Because courts must construe Indian treaties sympathetically to Indian interests, an intent to alter a reservation's boundaries "will not be lightly inferred." Solem, 465 U.S. at 470. The most probative evidence of intent is the operative language of the act that purportedly shrinks a reservation. Id. But Congress was not always clear about its intentions for the boundaries of a reservation, primarily because at the turn of the last century, when many allotment acts were passed, it was operating under a different set of assumptions than it does now. Today, a reservation can encompass land that is not owned by Indians, 18 U.S.C. § 1151(a), but back then, the "notion that reservation status of Indian lands might not be coextensive with tribal ownership was unfamiliar . . . ." Solem, 465 U.S. at 468. What's more, Congress believed that all reservations would soon fade away-the idea behind the allotment acts was that ownership of property would prepare Indians for citizenship in the United States, which, down the road, would make reservations obsolete. Id. Given these background assumptions, Congress would have felt little need to explicitly address a reservation's boundaries. We cannot, of course, extrapolate a clear intent to diminish a reservation from these generic assumptions. Id. at 468-69. But given this backdrop, we also cannot expect Congress to have employed a set of magic words to signal its intention to shrink a reservation. Absent such clear language, courts look to events surrounding the passage of the act that "unequivocally reveal a widely held, contemporaneous understanding that the affected reservation would shrink as a result of the proposed legislation," id. at 471, and, "to a lesser extent," events that occur after the passage of the act, South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 344 (1998).
With this framework in mind, we turn to the 1871 Act which, like many similar acts passed during this period, allotted a limited property interest to tribal members and opened the remaining land for sale to non-Indians. We must decide whether this act simply gave non-Indians a chance to buy land within an existing reservation or if the act was meant to diminish the reservation.
The 1871 Act includes no hallmark diminishment language, such as statements that the opened land is "restored to the public domain," Hagen v. Utah, 510 U.S. 399, 412-14 (1994), or that a tribe agrees to "cede, sell, relinquish, and convey" reservation land, DeCoteau v. District County Court, 420 U.S. 425, 436, 445 (1975). But the act does include other language which shows that Congress wanted to slice the opened lands off from the reservation. The act effectively created a new reservation for the Tribe from which tribal members could select their allotments. That reservation could consist of either the land "reserved" from the sale to the timber companies, "or such other reservation as may be procured for them." 16 Stat. 406. And the act goes on to require the expeditious allotment of land "after a suitable and permanent reservation shall be obtained and accepted by said tribe, either at their present home or elsewhere . . . ." Id. The clear implication is that the boundaries of the new ...