From 1887 to 1934, Congress sought to partition collective tribal landmasses into fee simple, individually owned plots; meanwhile, it made unclaimed reservation lands available to the general public under homesteading laws and other disposal statutes.1 The result was the “checkerboarding” of Indian country, which left reservation land interspersed with land owned by tribes in trust; tribal citizens in trust; and individual non-Indians, Indians, and tribes.2 However, the allotment acts did not state whether the opening of these areas to non-Indians affected reservation boundaries.3 Recently, in Oneida Nation v. Village of Hobart,4 the Seventh Circuit held that neither the allotment era’s vesting of allotments to individual Indians nor the later conveyance of those fee simple lands to non-Indians had diminished the Oneida Reservation.5 Oneida Nation represents a victory for tribal sovereignty. The panel’s decision reaffirms established precedent protecting Indian tribes, confirms that last Term’s landmark ruling in McGirt v. Oklahoma6 applies in the civil context, and safeguards reservations with comparable allotment structures against diminishment and disestablishment.
The Oneida Nation Reservation was established by an 1838 treaty and modified by later legislation — the 1887 Dawes Act, the 1906 Burke Act, and the Oneida Provisions of the 1906 Appropriations Act (Oneida Appropriations Act) — that divvied up the Wisconsin reservation into individual allotments, reducing Indian ownership from 65,400 acres to less than 15,400 acres by 1917.7 The Village of Hobart lies within the 1838 boundaries of the Oneida Reservation and is home to the eponymous federally recognized tribe.8 For decades, the Village has sought to assert jurisdiction over tribal lands and citizens.9 Hobart has a population of nearly nine thousand people, of whom 79.9% of residents are “White alone” and 12.2% are “American Indian and Alaska Native alone.”10 Annually, the Nation holds its Big Apple Fest on trust land and non-trust land tribally owned in fee simple within Hobart.11 Fee lands within reservation boundaries are considered Indian country.12 Yet in 2016, the Village adopted a special events permit ordinance that required the Nation to obtain a permit for the festival.13 The Nation rejected this permitting process.14 It filed a motion for a preliminary injunction seeking to enjoin the Village from mandating the Nation’s compliance with the ordinance.15 Since the Village stated that it would not prevent the festival from occurring, the court denied the motion, determining that the Nation did not show that it would suffer irreparable harm.16 The Nation hosted the festival.17 The Village then issued a $5,000 citation against the Nation for violating the ordinance.18
The Nation filed an action for declaratory and injunctive relief that challenged the Village’s legal authority to enforce the ordinance.19 The Village filed a counterclaim for declaratory relief.20 On March 29, 2019, the U.S. District Court for the Eastern District of Wisconsin entered summary judgment for the Village, holding that the festival grounds owned by the Tribe in fee simple were not sovereign federal trust land and thus fell within the Village’s dominion.21 The court found no express evidence of congressional intent to disestablish the reservation.22 Nonetheless, based on an Eighth Circuit case,23 it surmised that Congress’s intent to diminish the reservation was manifest in the Dawes Act and subsequent legislative acts, which divided the reservation into individual allotments rather than collectively held tribal property.24 It determined that the conveyance of tribal members’ fee simple lands to nontribal members following allotment — paired with the fact that these lands were not reobtained and placed into federal trust — meant that the lands in question no longer constituted the reservation.25 Since the Nation’s festival was on non-trust property, the court reasoned that it was subject to the ordinance.26 The Nation appealed.27
The Seventh Circuit reversed.28 Writing for the panel, Judge Hamilton29 confirmed that the Oneida Reservation, as defined in the 1838 Treaty, remained intact; therefore, the land falling within the reservation’s boundaries was Indian country under 18 U.S.C. § 1151(a).30 Applying the interpretive rule that Congress must speak clearly if it wishes to break a treaty with Native Americans,31 the court used the three-prong framework from Solem v. Bartlett32 to show that Congress did not diminish the reservation.33 The panel warned that holding otherwise would precipitate the diminishment of not only the Oneida Reservation but also all other reservations that participated in allotment.34
The court applied the Solem framework to show that Congress did not diminish the reservation by looking to relevant statutory text, then to the circumstances surrounding the legislation, and finally to later demographic history and the United States’ treatment of the area.35 First, the panel held that because no statute expressly removed a portion of the reservation, incremental diminishment could not prove intent.36 Indeed, the relevant acts of allotment — the 1887 Dawes Act, the 1906 Burke Act, and the 1906 Oneida Appropriations Act — “contain no such language surrendering all tribal interests in allotted land, so there is no textual basis for diminishment.”37
Second, to uncover congressional intent, the panel searched for signs of diminishment in legislative history and the Nation’s negotiations records, but the Village had produced neither type of contemporaneous evidence.38 The Village claimed that the overarching aim of allotment was to end reservations, but the court observed that “whatever the ultimate aim of allotment may have been, the Village’s argument is foreclosed by Supreme Court precedent.”39 The panel rejected the atypical Eighth Circuit case that the Village rested its arguments upon — “the only case in which a Court of Appeals has embraced an incremental theory of diminishment akin to the one proposed by the Village” — because it contradicted established Supreme Court precedent and its statutory analysis focused on a later surplus land act rather than the Dawes Act.40
Third, the court announced that events following Congress’s passing of the relevant statutes — population changes and fee simple land sales — could not support a finding of the reservation’s diminishment absent other textual or contextual evidence.41 Even an “extreme population shift” that catalyzed further land loss could not demonstrate diminishment, as the Village had contended.42 According to the panel, a demographic argument was contrary to Nebraska v. Parker,43 a 2016 Supreme Court case that held that the Omaha Reservation was undiminished despite the Tribe’s 120-year absence from the reservation and lack of assertion of jurisdiction over the land in that period.44 For the court, Solem and its progeny invalidated the Village’s theory that later events other than acts of Congress could diminish the reservation.45
In applying the three-part framework, the court observed that McGirt had modified but not abrogated Solem. According to the court, McGirt placed greater focus on statutory text and thus “ma[de] it even more difficult to establish the requisite congressional intent to disestablish or diminish a reservation.”46 McGirt reshaped federal Indian law’s interpretive approach by holding that consideration of the legislation’s context and subsequent history is proper only if a specific statute’s text is ambiguous.47 Since congressional allotment acts neither contemplated nor stated that the Creek Reservation would be diminished, the court posited that “McGirt’s allotment analysis has turned what was a losing position for the Village into a nearly frivolous one.”48
The court concluded by dismissing the Village’s alternative grounds for affirmance. First, the court dismissed the Village’s claims that a 1933 case initiated by individual Oneida citizens decided the issue of the reservation’s disestablishment, such that issue preclusion barred the Nation from arguing that former fee lands were within the reservation.49 Second, the court disagreed with the Village that “exceptional circumstances” triggered the application of the ordinance to the festival.50
The Seventh Circuit’s reasoning illustrates how McGirt can be a tool to protect tribal sovereignty in the civil context. Through its application of Solem, the panel reversed the district court’s ruling, which contradicted decades of established precedent.51 Oneida Nation was the first case to interpret last Term’s landmark ruling in McGirt and apply its “clear intent” rule in the civil context, thereby altering the previous framework governing reservation status cases and adding difficulty to proving disestablishment.52 It emphasized that only an explicit statement from Congress — as opposed to individual, local, and state land transfers — can recontour the boundaries of the reservation.53 In addition to its reasoning, Oneida Nation’s result is preferable to the alternatives. The decision safeguards not only the Oneida Reservation but also reservations with comparable allotment structures against diminishment due to demographic shifts and government encroachment.
The Seventh Circuit correctly rejected the flawed reasoning espoused by the Village and the district court and reinforced a modified Solem framework.54 A long line of Supreme Court cases has held that Congress’s “general expectation[s]”55 are insufficient to diminish a reservation.56 The panel held that the Village erroneously “relie[d] on a theory of incremental diminishment,” which rested on Congress’s belief during the allotment era that Indian reservations and peoples would gradually disappear.57 The district court had followed an outlier Eighth Circuit decision supporting incremental diminishment that involved substantially different facts.58 As an amicus brief put it, “no court — before this one — ha[d] suggested that alienation without a tribe-specific act diminishes a reservation.”59 Thus, the panel logically upheld U.S. treaty obligations to the Nation under the Solem framework.60
Oneida Nation is one of McGirt’s progeny, published a mere three weeks after the Supreme Court announced its landmark decision.61 By applying McGirt’s diminishment analysis, the court determined that McGirt rendered the Village’s diminishment claim not just improbable but obsolete, as there was no evidence in the relevant allotment statutes that generated ambiguity regarding reservation status.62 The panel’s assertion that McGirt altered Solem’s existing framework produced a stronger holding for the Nation.63 By adjusting this analysis, the court also undercut the precedent that the district court had depended on.64 The Oneida Nation decision illustrates that the groundbreaking McGirt decision has ramifications in the civil realm, not just in federal criminal law as its narrow holding intimated.65 Beyond offering more robust protection for tribes, these two cases together present a standard test for district courts to adopt in deciding similar issues, reducing confusion regarding which factors to examine.66 Pending cases may rely on Oneida Nation and McGirt to preserve reservations that Congress never explicitly stated were disestablished or diminished.67
Both the court’s application of Solem and its understanding of McGirt provide the Oneida Reservation and other reservations with necessary safeguards. First, this ruling ensures that extreme demographic shifts alone cannot diminish tribal sovereignty, particularly on reservations that bore the brunt of allotment-era policies.68 Tribal citizens like the Oneida may become the minority population in their homelands, as non-Indians hold large swaths of reservations as a result of U.S.-sponsored land grabs.69 Such demographic disparity can have devastating effects on tribal sovereignty. For instance, the predominantly white Village of Hobart has repeatedly endeavored to exert its will over the Oneida Nation.70 The Seventh Circuit’s decision repudiates governments that similarly seek to harass and wield their power over Native nations operating within the borders of their reservations.
Second, this decision also protects the Oneida Reservation — and over one hundred Indian reservations with comparable allotment structures — against diminishment and disestablishment claims. Had the court ruled that allotment amounted to congressional intent to diminish the Oneida Nation, this outcome would have justified local and state governments’ imposing civil laws on the other reservations that experienced allotment, impinging upon tribal sovereignty.71 Many of these Native nations, like the Oneida Nation, have bought back lands sold to homesteaders during the allotment period; this property may be tribally owned, though tribes do not always place this land into trust.72 The district court’s ruling would have jeopardized efforts to restore tribal lands and repair the wounds caused by allotment,73 especially in light of the Department of the Interior’s recent attempts to remove Indian lands from trust.74 Lastly, disputes regarding the potential disestablishment of these reservation fee lands would have thrown civil and criminal cases on contested fee simple lands into chaos, particularly those relating to taxation law.75 The Seventh Circuit’s approach provides clearer guidance for subsequent rulings regarding reservation boundaries.
Ultimately, Oneida Nation should be celebrated for its reasoning and its positive result for the Nation. The panel rejected an ahistorical, erroneous district court opinion that was based on bad case law and instead affirmed that only express congressional intent can reshape the boundaries of reservations.76 Consequently, the Seventh Circuit’s decision adhered to established Indian law.77 Even though the Nation likely would have prevailed under Solem alone, the court’s novel application of McGirt assured the Nation’s victory.78 McGirt modified Solem by placing greater emphasis on statutory text, making it more challenging to prove congressional intent to diminish a reservation.79 This development improves administrability and safeguards the Oneida Reservation and other reservations against disestablishment and diminishment claims. Extreme demographic shifts alone do not justify departing from McGirt’s clear statement rule.80 The fee lands that are tribally owned, even if alienated during the allotment era, remain in Indian country.81 Thus, tribes like the Oneida Nation may continue to oppose aggressive and oppressive local and state regulation that undermines tribal sovereignty.