Full opinion text
MEMORANDUM AND ORDER RE: PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION GORENCE, United States Magistrate Judge. The plaintiff, State of Wisconsin, filed this action on September 3, 1998, against the defendants, alleging that defendant Stockbridge-Munsee Community (the Tribe) is operating Class III electronic games of chance at the Pine Hills Golf and Supper Club (Pine Hills) which are specifically prohibited by the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701 et seq. The complaint further alleges that the State of Wisconsin and the Stock-bridge-Munsee Community entered into the Stockbridge-Munsee Community and State of Wisconsin Gaming Compact of 1992 (compact) for the conduct of Class III gaming as required by 25 U.S.C. § 2710(d)(1)(C) and that by its terms, the compact limits the operation of such games of chance to locations “on tribally owned land or land held in trust by the United States on behalf of the tribe, but only on such lands within the exterior boundaries of the tribal reservation.” (Complaint ¶ 13) (quoting Compact, Section XV, Part H [emphasis added]). The plaintiff also alleges that the Tribe obtained the Pine Hills property and in December 1995, conveyed it to the United States of America to be held in trust for the benefit of the Tribe pursuant to the Indian Reorganization Act of 1934, 25 U.S.C. § 465. Id. ¶¶ 16-17. The complaint further alleges that operation of Class III electronic games of chance at the Pine Hills location is not permitted by the express terms of the compact because the land is located outside the boundaries of the Tribe’s reservation and because Pine Hills does not meet the requirements of 25 U.S.C. § 2719(b)(1)(A). Id. ¶¶ 19, 20-21. As relief, the plaintiff seeks a preliminary and permanent injunction prohibiting the defendants from conducting Class III electronic games of chance at the Pine Hills location. The plaintiff also seeks a declaratory judgment identifying the current boundaries of the Stockbridge-Mun-see Reservation and declaring that the Pine Hills Golf Course and Supper Club is not located within those boundaries. The court has jurisdiction over this action pursuant to 25 U.S.C. § 2710(d)(7)(A)(ii) and 28 U.S.C. § 1331 because the matter arises under federal statutes. Venue in this judicial district is proper under 28 U.S.C. § 1391(b). This case was assigned according to the random assignment of civil cases pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 13.03 (E.D.Wis.). The parties have consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and Local Rule 13.05(a) (E.D.Wis.). Presently pending is the plaintiffs motion for a preliminary injunction prohibiting the defendants from conducting Class III electronic games of chance at Pine Hills pending final disposition of this action. The court held a hearing on plaintiffs motion on October 27 through 28 and 30,1998. . At the hearing, the following individuals testified on behalf of the plaintiff: James A. Clifton, Ph.D., Scholar-in-Residence, Department of Anthropology, Western Michigan University, Kalamazoo, Michigan, who testified as an expert witness; Chief Deputy Milton Marquardt of the Shawano County Sheriffs Department; Jeffrey Kuglitseh, Corporation Counsel for Shawano County; and Fred Kafura, a resident of Gresham, Wisconsin. The court also heard testimony from the defendants’ witnesses: James W. Oberly, Ph.D., Professor of History, University of Wisconsin at Eau Claire, who testified as an expert witness; Robert Chicks, President of the Stockbridge-Munsee Community Band of Mohican Indians; and Sheila Powless, Land and Enrollment Manager of the Stockbridge-Munsee Community Band of Mohican Indians. Following the hearing, the parties submitted post hearing briefs and proposed findings of fact and conclusions of law. Subsequently, the parties were granted leave to supplement the record. Based on the testimony and evidence adduced at the preliminary injunction hearing and the submissions of the parties and upon due consideration of the applicable law, this court will now address the plaintiffs motion for preliminary injunction. Preliminary Injunction Standard At the outset, the court notes that the parties disagree as to the proper standard for determining whether the plaintiffs motion for a preliminary injunction should be granted. The state maintains that it is not required to show irreparable harm and that the “statutory injunction” test should be utilized, while the Tribe contends that the traditional preliminary injunction test is appropriate. Under traditional principles of equity, a party is entitled to a preliminary injunction if it demonstrates that 1) it has a reasonable likelihood of prevailing on the merits, 2) it has no adequate remedy at law, 3) it will suffer irreparable harm if the preliminary injunction is not issued, 4) the irreparable harm it will suffer if the preliminary injunction is not granted outweighs the irreparable harm the defendants will suffer if the injunction is granted, and 5) the injunction will not harm the public interest. See Roth, M.D. v. Lutheran General Hosp., 57 F.3d 1446, 1453 (7th Cir.1995); Storck UNITED STATES OF AMERICA, L.P. v. Farley Candy Co., 14 F.3d 311, 313-14 (7th Cir.1994); Somerset House, Inc. v. Turnock, 900 F.2d 1012, 1014-15 (7th Cir.1990). If the plaintiff meets its burden of showing some likelihood of success on the merits and a lack of an adequate remedy at law and that it will suffer “irreparable harm” if preliminary relief is denied, then the district court engages a “sliding scale” analysis by balancing the harms to the parties and the public interest. Roth, 57 F.3d at 1453; Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11-12 (7th Cir.1992) (citations omitted); Ping v. National Educ. Ass’n, 870 F.2d 1369, 1371 (7th Cir.1989) (emphasis in original). If the moving party cannot establish either of these prerequisites, a court’s inquiry ends and the injunction must be denied. Abbott Labs., 971 F.2d at 11. This sliding scale approach is properly characterized as “subjective and intuitive, one which permits district courts to ‘weigh the competing considerations and mold appropriate relief.’ ” Id. at 12. A district court has broad discretion in deciding whether to grant a motion for injunctive relief. Advent Elecs., Inc. v. Buckman, 112 F.3d 267, 274 (7th Cir.1997). “The purpose of a preliminary injunction is to minimize the hardship to the parties pending the ultimate resolution of the lawsuit.” Faheem-El v. Klincar, 841 F.2d 712, 717 (7th Cir.1988). “The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor in order to get the injunction; the less likely he is to win, the more it need weigh in his favor.” Ping, 870 F.2d at 1371-72 (citation omitted). The plaintiff asserts that it is not required to show irreparable harm in this case because injunctive relief is being sought pursuant to a statutory provision. In such actions “where the plaintiff seeks an injunction to prevent the violation of a federal statute that specifically provides for injunctive relief, it need not show irreparable harm.” Illinois Bell Tel. Co. v. Illinois Commerce Comm’n, 740 F.2d 566, 571 (7th Cir.1984). Because Congress has seen fit to act in a given area by enacting a statute, irreparable injury must be presumed in a statutory enforcement action. United States v. Odessa Union Warehouse Co-op., 833 F.2d 172, 176 (9th Cir.1987). Thus, in actions for statutory injunctions, once a violation of the act or regulation is shown, the moving party need show only that there is some reasonable likelihood of future violations. Commodity Futures Trading Comm’n v. Hunt, 591 F.2d 1211, 1220 (7th Cir.1979). In Commodity Futures, the court noted that “when Congress has integrated traditional modes of equitable relief into a statutory enforcement scheme, the court’s equitable power should be exercised in harmony with the overall objectives of the legislation.” Id. at 1219 (citing SEC v. Advance Growth Capital Corp., 470 F.2d 40, 53 [7th Cir.1972]). Here, the plaintiff is bringing this action pursuant to 25 U.S.C. § 2710(d)(7)(A)(ii) which provides in relevant part: The United States district courts shall have jurisdiction over — (ii) any cause of action initiated by a State or Indian tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact ... that is in effect. The plaintiff maintains this language is an express authorization of injunctive relief and, thus, the “statutory injunction” test should be applied in this case. In Illinois Bell, cited by the plaintiff to support its position, the plaintiff sought a preliminary injunction pursuant to 47 U.S.C. § 401(b) to compel the Illinois Commerce Commission to comply with an order of the Federal Communications Commission (FCC) and to place into effect a rate increase for intrastate service. 740 F.2d at 571. Section 401 contains the enforcement provisions for the Federal Communications Act, 47 U.S.C. § 151 et seq., which is a comprehensive scheme for regulation of interstate communications. See Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126 (1957). Section 401(b) sets forth procedures for enforcement of orders of the FCC and provides that if a person fails to obey an order of the FCC, the FCC or any person injured thereby may apply to the appropriate district court for enforcement of the order. This section further provides: If, after hearing, that court determines that the order was regularly made and duly served, and that the -person is in disobedience of the same, the court shall enforce obedience to such order by a writ of injunction or other proper process .... 47 U.S.C. § 401(b). The court in Illinois Bell held that where a plaintiff seeks an injunction to prevent the violation of a federal statute that specifically provides for injunctive relief, the plaintiff does not have to demonstrate irreparable harm because the statute requires the court to make a factual finding that the defendant had disobeyed a “regularly made and duly served” order before the injunction could be granted. Illinois Bell, 740 F.2d at 571. In United States v. Cappetto, 502 F.2d 1351 (7th Cir.1974), also cited by the plaintiff, the government sought and obtained a preliminary injunction against an illegal gambling operation pursuant to 18 U.S.C. § 1964, the civil remedies provision of the racketeering statutes. Under the statute, then known as the Organized Crime Control Act of 1970, the government was explicitly provided with both civil and criminal remedies which could be used to prevent and restrain racketeering activity. See 18 U.S.C. §§ 1962, 1963, 1964. Section 1961(1) defines racketeering activities to include illegal gambling businesses prohibited by 18 U.S.C. § 1955. .Section 1962 sets forth prohibited activities. Section 1964 states that the “district courts of the United States shall have jurisdiction to prevent and restrain violations of section 1962 of this chapter by issuing appropriate orders” and specifically sets forth a list of remedies available to the court, including ordering divestiture of any interest in any enterprise, and dissolution or reorganization of any enterprise. 18 U.S.C. § 1964(a). The defendants in Cappetto argued that the government should not prevail because it had not shown irreparable injury or inadequacy of the remedy at law. 502 F.2d at 1358. The court disagreed: It was plainly the intention of Congress in adopting Section 1964 to provide for injunctive relief against violations of Section 1962 without any requirement of a showing of irreparable injury other than that injury to the public which Congress found to be inherent in the conduct made unlawful by Section 1962. It is also obvious that Congress did not intend to require a showing of inadequacy of the remedy at law. If, as defendants contend, the existence of the criminal remedy at law under Section 1963 would defeat an action in equity under Section 1964, the latter section would be a nullity. Id. at 1358-59. The plaintiff also relies upon Commodity Futures, 591 F.2d at 1214. In that case, the Commodity Futures Trading Commission (Commission) brought an action pursuant to the Commodity Exchange Act against seven members of the Hunt family and an affiliated company claiming that the defendants had been exceeding the limit set for soybean futures contracts. The Commission sought preliminary and permanent injunctions pursuant to 7 U.S.C. § 13a-1 which specifically provides for actions to enjoin or restrain violations of the Commodity Exchange Act. Under § 13a-l(a), the Commission is authorized to institute an action seeking in-junctive relief whenever it appears that any person “has engaged, is engaging, or is about to engage in any act or practice constituting a violation of any provision of this chapter [7 U.S.C. §§ 1 et seq.] or any rule, regulation, or order ’ thereunder.” Section 13a-1(b) provides: “Upon a proper showing, a permanent or temporary injunction or restraining order shall be granted without bond.” The court held that actions for statutory injunctions “need not meet the requirements for an injunction imposed by traditional equity jurisprudence.” 591 F.2d at 1220. Rather, once a violation is demonstrated, the moving party only need show that there is some reasonable likelihood of future violations. Id. Similarly, In re National Credit Management Group, L.L.C., 21 F.Supp.2d 424 (D.N.J.1998), the Federal Trade Commission (FTC) and the State of New Jersey sought to enjoin violations of various statutes including the Federal Trade Commission Act (FTCA), 15 U.S.C. § 45(a). Section 45(a) of the FTCA states that unfair methods of competition or unfair or deceptive acts or practices in or affecting commerce are unlawful and § 45(b) sets forth proceedings for enforcement by the FTC. Under Section 53(a) of the FTCA, the FTC is specifically authorized to seek an injunction if it has “reason to believe” that the FTCA is being violated. 15 U.S.C. § 53(a). The statute further provides that “in proper cases, the Commission may seek, and after proper proof, the court may issue, a permanent injunction.” 15 U.S.C. § 53(b)(2). The court held that where an injunction is sought pursuant to a statutory provision, the moving party must establish that “probable cause exists to believe that the statute in question is being violated and there is some reasonable likelihood of future violations.” 21 F.Supp.2d at 439-440 (quoting United States v. Richlyn Labs., Inc., 827 F.Supp. 1145, 1150 [E.D.Pa. 1992]). In so concluding, the court stated that “because Congress has seen fit to act in a given area by enacting a statute, irreparable injury must be presumed in a statutory enforcement action.” 21 F.Supp.2d at 439 [quoting Richlyn Labs., 827 F.Supp. at 1150]. The court also stated that the passage of the FTCA, “in a sense, results in an implied finding that violations of this statutory enactment will harm the public and should be restrained if necessary.” Id. Finally, in United States v. Richlyn Labs., 827 F.Supp. 1145 (E.D.Pa.1992), the United States sought an injunction pursuant to 21 U.S.C. § 832 against a drug manufacturer who was violating the Food, Drug, and Cosmetic Act (FDCA). The FDCA sets out prohibited acts in § 331. Section 332, which provides for injunctive relief, states that the district courts shall have jurisdiction “for cause shown to restrain violations” of § 331, with three noted exceptions. 21 U.S.C. § 332. The court held that, in addition to establishing probable cause to believe that the statute in question is being violated, the moving party must also demonstrate that there is some reasonable likelihood of future violations in order to be entitled to injunctive relief. Richlyn Labs., 827 F.Supp. at 1150. The court also held that the defendants would be preliminarily enjoined from continuing their manufacturing, processing and distribution activities until they were in compliance with the applicable Food and Drug Administration regulations. Id. at 1152-1153. After careful review of the case law and the statutes at issue in those cases, this court concludes that the use of the traditional test for issuance of a preliminary injunction is appropriate in this ease. The statute in this case simply confers jurisdiction on the federal court in the event that a state or a tribe seeks to enjoin class III gaming. The statutes at issue in the cited cases involving statutory injunctions were part of an enforcement scheme and required some showing for the issuance of the injunction. In Illinois Bell, for example, the statute required the court to make a factual finding that the defendant had failed to obey a “regularly made and duly served” order before the requested injunction could be granted. Illinois Bell, 740 F.2d at 571. The statute at issue in that case, 47 U.S.C. § 401(b), is part of a comprehensive scheme for regulation of interstate communications under the Federal Communications Act. Similarly, the statute at issue in Cappet-to, 18 U.S.C. § 1964, provides for injunc-tive relief to prevent and restrain violations of the criminal activities set forth in § 1962. Given the statutory scheme involved, the court concluded that it was “plainly” the intention of Congress in adopting § 1964 to provide for injunction relief for violations of § 1962 without requiring a showing of irreparable harm. Cappetto, 502 F.2d at 1358-59. Unlike the statutes in the cited cases, 25 U.S.C. § 2710(d)(7)(A)(ii) is not part of a general enforcement scheme. Therefore, this court cannot “plainly” infer that Congress intended to provide for injunctive relief without requiring a showing of irreparable injury. See Cappetto, 502 F.2d at 1358-59. Moreover, the statute at issue in this case does not place any sort of evidentiary burden on the moving party. Therefore, it is unlike the statutes at issue in Illinois Bell, Commodity Futures Trading Com’n., National Credit Management, and Ri-chlyn Labs., which specifically require that the moving party make some type of showing that the federal statute has been violated before an injunction may issue. Thus, this court concludes that utilization of the “statutory injunction” test is not appropriate and that the traditional preliminary injunction test will govern the plaintiffs motion for preliminary injunctive relief. The plaintiff asserts that it has a reasonable likelihood of success on the merits. In addressing this issue, the court will need to analyze the merits of the plaintiffs claim that the Tribe is operating Class III electronic games of chance at Pine Hills Golf and Supper Club in violation of IGRA. The following findings of fact are relevant to the disposition of the plaintiffs motion for a preliminary injunction. The court’s findings of fact are based upon the stipulated facts and the proposed findings of fact submitted by the parties. To the extent that the proposed findings are undisputed or are consistent with testimony and evidence, they have been adopted by the court. Findings of Fact The plaintiff, State of Wisconsin (Wisconsin), is a sovereign state of the United States. The defendant, Stockbridge-Munsee Community (Tribe) is a sovereign federally-recognized Indian tribe with a reservation located in Shawano County, Wisconsin. Defendant Robert Chicks is president of the Stockbridge-Munsee community whose duties include presiding over the affairs of the Tribe. The events giving rise to the claim asserted in this action have occurred, and continue to occur, in this judicial district. The Stockbridge-Munsee Indians are descendants of the Mohicans who initially had occupied a large territory in the upper Hudson River Valley. In the 1730s, members of the Tribe had moved east and settled along the Housatonic River in what is now Stockbridge, Massachusetts. See Patrick Frazier, The Mohicans of Stock-bridge, at 12 (1992). A Christian mission was established at Stockbridge and in 1739, the legislature incorporated the Indian town under the name of Stockbridge. Id. at 13-18, 47-48. The Tribe’s identification as Stockbridge Indians derives from this settlement. The Stockbridge Indians were active aides of the American Revolutionaries. Id. at 197-198, 21. However, increasingly settlers were populating the town. Id. at 237-240. Following the Revolutionary War, as a result of efforts of members of the Oneidas, the Mohicans were awarded land in New York and migrated to New York from western Massachusetts. Id. at 238, 244. Subsequently, in about 1821, the Tribe moved to Wisconsin. (Exh. 329 at 9). At this time, the federal government was engaged in a policy of removal. The objective was to remove Indian tribes to lands in the West beyond the boundaries of white settlement in exchange for their territory in the eastern United States. See Felix S. Cohen, Handbook of Federal Indian Law at 28, 78 (1982 ed.). In a treaty with the Menominee Tribe and the United States, which was ratified in 1832, the Stockbridge-Munsee tribe was given a reservation of forty six thousand and eighty acres of land on the eastern shore of Lake Winnebago. (See “Treaty with the Menominee, 1832,” 7 Stat. 405, Exh. 1, Art. 1). In a 1839 treaty with the United States, the Stockbridge-Munsee tribe ceded and relinquished the east half of the tract containing twenty-three thousand and forty acres of land to the United States in exchange for monetary compensation and other benefits. (Exh. 1, Arts.2, 6). By Act of Congress in 1843, the United States granted citizenship to members of the Tribe and provided for the partition and division of the lands. At this time and through most of the nineteenth century, the prevailing view was that tribal affiliation was inconsistent with acquisition of United States and state citizenship as a matter of policy. Cohen at 639-642. The acquisition of citizenship was conditioned upon the severing of tribal ties. Id. at 643. In the 1843 Act, Congress provided that the twenty-three thousand and forty acres on the east side of Lake Winnebago which had been reserved for the Stockbridge-Munsee tribe could be partitioned and divided among the members of the tribe and held by them, separately and severally, in fee simple. (“An Act for the relief of the Stockbridge tribe of Indians in the Territory of Wisconsin,” 5 Stat. 645; Exh. 2, § 1). The Act further provided that a board of commissioners would be established for the purpose of making partition and division of these lands, and that upon completion of the commissioners’ report, the President would cause patents to be issued to the several individuals named in the report with the land to be held in fee simple by the individuals, their heirs and assigns. (Exh. 2, §§ 2 & 6). The Act also stated that after the report was filed and transmitted to the president, the Stock-bridge-Munsee tribe, “and each and every of them, shall then be deemed to be, and from that time forth are hereby declared to be, citizens of the United States.” (Exh. 2, § 7). The Act further stated that the jurisdiction of the United States shall extend over the “township or reservation” now held by the tribe and that the tribe’s rights as a tribe or nation shall cease. (Exh. 2, § 7). The Tribe at this time basically was divided into two opposing camps: the Citizen party and the Indian party. The Citizen party favored relinquishing tribal status in return for United States citizenship and receipt of individual parcels of tribal land in fee simple. The Indian party wanted to preserve the tribal status and culture. This factional conflict impacted on the Tribe’s dealings with the United States. In 1846, Congress repealed the 1843 Act and restored and re-established the Tribe’s rights and privileges as though the 1843 Act had never been passed. (9 Stat. 55; Exh. 3, § 1). The Act provided for the enrollment of Stockbridge-Munsee tribal members who desired citizenship and further provided that the tribal land be divided into two districts, the Indian District and the Citizen District based on the numbers in these respective parties. (Exh. 3, § 2). The lands in the Indian District were to be held in common, while those in the Citizen District were to be divided and allotted to each Indian who became a citizen. (Exh. 3, § 3). Upon completion of the division and allotment, patents would be issued and a title in fee simple to the lot of land would vest in the patentee. (Exh. 3, § 2). The Act further provided that Indians who became citizens would forfeit all rights to receive any portion of the annuity which may at the time or in the future- be due the Tribe. (Exh. 3, § 2). In the Treaty in November 24, 1848, between the United States and the Tribe, the Tribe renounced all participation in the benefits or privileges granted or conferred by the Act of 1843 and acknowledged and declared themselves to be under “the protection and guardianship of the United States, as other Indian tribes.” (“Treaty with the Stockbridge Tribe, 1848,” 9 Stat. 955; Exh. 4, Art. I). The Tribe agreed to “sell and relinquish” to the United States the township of land on the east side of Lake Winnebago. (Exh. 4, Art. III). In consideration of the cessation and relinquishment, the United States agreed to pay the tribe a sum of money. (Exh. 4, Art. V). It was agreed that the Stock-bridge tribe could remain upon the lands for one year after the ratification of the agreement and that they would “remove to the country set apart for them, or such other west of the Mississippi River as they may be able to secure.” (Exh. 4, Art. VII). The treaty also provided for the allotment of lands to tribal members who had become citizens of the United States with patents to be issued to them by the federal government. (Exh. 4, Art. IV). However, a majority of the Tribe did not want to relocate but preferred a new location in Wisconsin. Other tribal members desired to sever their tribal relations and to receive patents for the lots of land which they occupied. Therefore, in 1856, the United States again attempted to resolve the intra-tribal conflict between the Citizen party and the Indian party. The United States and the Tribe negotiated a treaty that established a reservation comprising two townships in Shawano County. Actually, two treaties lead to the establishment of the Stockbridge-Munsee tribe’s 1856 reservation. On February 5, 1856, the Tribe and the United States entered into a treaty which provided that the Tribe be given “a tract of land in the State of Wisconsin, near the southern boundary of the Menomonee reservation, of sufficient extent to provide for each head of a family and others lots of land of eighty and forty acres.” (“Treaty with the Stock-bridge and Munsee, 1856,” 11 Stat. 663; Exh. 5, Art. 2). In return, the tribe agreed to “cede and relinquish to the United States” all their remaining right and title in lands in the town of Stockbridge, Wisconsin, and lands in Minnesota set aside for them by the amendment to the 1848 treaty. (Exh. 5, Art. 1). The preamble of the treaty recounted the lengthy history of dealings between the Tribe and the United States and the internal problems and conflicts within the Tribe. (Exh. 5, ¶¶ 1-6). The treaty acknowledged that a majority of the Stock-bridge and Munsee tribe were adverse to removing to Minnesota and preferred a new location in Wisconsin “to resume agricultural pursuits and gradually to prepare for citizenship.” (Exh. 5, ¶ 7). It was also recognized, however, that a number of other tribal members desired to sever their tribal relations and to receive patents for the lots of land which they occupied at the time. (Exh. 5, ¶ 7). The final paragraph stated: Whereas the United States are willing to exercise the same liberal policy as heretofore, and for the purpose of relieving these Indians from the complicated difficulties, by which they are surrounded, and to establish comfortably together all such Stockbridges and Munsees— wherever they may be now located, in Wisconsin, in the State of New York, or west of the Mississippi — as were included in the treaty of September third, one thousand eight hundred and thirty nine, and desire to remain for the present under the paternal care of the United States Government; and for the purpose of enabling such individuals of said tribes as are now qualified and desirous to manage their own affairs, to exercise the rights and to perform the duties of the citizen, these articles of agreement have been entered into. (Exh. 5, ¶ 8) The 1856 treaty provided that, after the lands set aside for the tribe were selected, the United States would have the lands surveyed and allotted “among the individuals and families of their tribe.” (Exh. 5, Art. 3). The treaty further provided that each head of a family was entitled to eighty acres of land and if the family consisted of more than four members and if thought expedient by the council of the Stockbridges and Munsees, an additional eighty acres could be allotted to him or her. (Exh. 5, Art. 3). Each single male person above eighteen years of age was entitled to eighty acres and each female person above age eighteen “not belonging to any family,” and any orphan child was entitled to forty acres and “sufficient land shall be reserved for the rising generation.” (Exh. 5, Art. 3). The treaty further provided that after the allotments were made, the persons entitled to the land could take immediate possession and certificates would be issued guaranteeing and securing their possession and an ultimate title to the land. (Exh. 5, Art. 3). The treaty stated that such certificates would not be assignable and would contain a clause expressly prohibiting the sale or transfer of the land by the holder. (Exh. 5, Art. 3). Under the treaty, the United States would hold the land in trust for ten years for the holders of the land. (Exh. 5, Art. 3). After ten years, with the consent of the Stockbridge and Munsee council, patents for the land would be issued. (Exh. 5, Art. 3). The purpose of the treaty was to “advance the welfare and improvement” of the tribe and to that end, the treaty provided that the president, with the advice and consent of the Senate, may “adopt such policy in the management of their affairs,” as in his judgment may be most beneficial to the Stockbridge-Munsee Indians, “or Congress may, hereafter, make such provision by law, as experience shall prove to be necessary.” (Exh. 5, Art. 11). On February 11, 1856, the Menomonee Indian Tribe and the United States entered into a treaty whereby the Menomo-nee Tribe ceded and relinquished to the United States a tract of land, “not to exceed two townships in extent,” for the purpose “of locating thereon the Stock-bridge and Munsee Indians, and such others of the New York Indians as the United States may desire to remove to the said location within two years from the ratification hereof.” (“Treaty Between the United States and the Menominee Tribe [1856],” 11 Stat 679; Exh. 6, Art. 1). Two townships, which were formerly part of the Menominee Reservation, were purchased from the Menominee Tribe by the United States for purposes of establishing a reservation for the Stockbridge-Munsee Tribe. A township contains 36 sections, each of which is one mile square. Thus, the 1856 reservation contained a total of 72 sections. The two townships-reserved as the Stockbridge-Munsee Reservation, now known as the towns of Bar-telme and Red Springs, are located on Ranges 13 and 14 East, Township 28 North, Shawano County, Wisconsin. (Exh. 102). The new reservation with its “cold and barren sand hills” proved unfit for agriculture. (Appendix to Defendants’ Brief in Opposition to Motion for Preliminary Injunction [Defendants’ Appendix] at 224). In an annual report for the United States Indian Agency in Green Bay, Wisconsin, dated September 23, 1866, it was reported that approximately 152 tribal members currently resided on the reservation and that because of the “forbidding character of their country,” they could not realize a meager subsistence without occasional supplies from the government. Id. The report noted that these circumstances “bred discontent” among tribal members who desired “a remodelling of their stipulations.” Id. In a letter to Congress signed by John Hendricks, sachem, and eighty-three others dated January 6, 1863, members of the Tribe expressed their dissatisfaction with the poor quality of the land and their belief that the land provided for them as a result of the 1856 treaty was not the one promised “nor the one for which the treaty was signed.” (Defendants’ Appendix at 229). The tribal members stated that the soil was sand and the location too far north to allow adequate time for crops to mature. They noted that the presence and type of timber on the land “would do for a lumbering community but not for us, who are just emerging from the Indian state, to become an agricultural people.” Id. Factional conflict continued to mark in-tra-tribal relations in the years following the signing of the treaty. In addition, the state’s lumber industry became interested in the reservation’s timber lands. Legal harvesting of timber occurred pursuant to Office of Indian Affairs (OIA) contracts to harvest timber in “burnt over” reservation lands. The lumber interests were desirous of gaining access to more of the Tribe’s timber resources. In 1868, a treaty between the Tribe and the United States was drafted. (Draft Treaty of 1868, Exh. 7). By its express language, the tribe was to “cede and relinquish to the United States” all title and interest held by the tribe, individually or collectively, in 54 sections. (Exh. 7, Art. 1). The Secretary of the Interior questioned the impact of the treaty on the “citizen party of the Indians.” (Exh. 116, App. 14 at 1). He concluded that the treaty should not be made and it ended there. (Exh. 116, App. 14 at 1). On February 6, 1871, Congress passed “an Act for the Relief of the Stockbridge and Munsee Tribe of Indians in the State of Wisconsin.” (16 Stats. 404; Exh. 8). The legislative history surrounding passage of the Act is limited. The Act provided that “the two townships of land, situated in the county of Shawana, and State of Wisconsin, set apart for the use of the Stockbridge and Munsee tribe of Indians” shall be advertised for sale and shall be offered at public auction to the highest bidder but not for less than the appraised value in lots not exceeding eighty acres each, except for eighteen contiguous sections of land. (Exh. 8, §§ 1-2). The Act authorized the Secretary of the Interior to reserve from sale lands “not exceeding eighteen contiguous sections, embracing such as are now actually occupied and improved, and are best adapted to agricultural purposes, subject to allotment to members of the Indian party of said tribe.” (Exh. 8, § 2). The Act further provided that all of the lands remaining unsold after one year were to be again advertised and offered at public auction at not less then the minimum of one dollar and twenty-five cents per acre. (Exh. 8, § 2). The Act required that, immediately after the General Land Office received returns of the last public sale, a statement was to be made up under the direction of the Secretary of the Interior, showing the gross amount realized from the sale of the two townships after appropriate deductions were made and an amount added for the value of the lands remaining unsold in the two townships, estimated to be 60 cents per acre. (Exh. 8, § 4). Also to be included in this statement was the sum of six thousand dollars held in trust by the United States for use of the Stockbridge and Munsee tribes under the treaty of 1839. (Exh. 8, § 4). The Act stated that “the total amount thereof shall constitute the entire sum of money due from the Government of the United States to the said Stockbridge and Munsee tribes of Indians, to be paid and appropriated for their benefit.” (Exh. 8, § 4). The proceeds from the sale were to be divided between the Citizen and Indian parties of the tribe in proportion to the number of each and the portion of the proceeds belonging to the Citizen party was to be divided equally among them per capita and paid out to the heads of families and adult members of that party. (Exh. 8, § 5). The sum belonging to the Indian party was to be credited to it “on the books of the treasurer of the United States,” and the interest applied to the support of schools, the purchase of agricultural implements or paid in such other manner as the president may direct. (Exh. 8, § 5). However, part of the proceeds due the Indian party could, on request of the leaders of the tribe, be used for “securing a new location for said tribe.” (Exh. 8, § 5). The Act provided for the preparation of two rolls, one to be denominated the Indian roll and the other to be denominated the Citizen roll, for the “purpose of determining the persons who are members of said tribes and the future relation of each to the government of the United States.” (Exh. 8, § 6). The Citizen roll would “embrace the names of all such persons of full age, and their families, as signify their desire to separate their relations with said tribe, and to become citizens of the United States.” (Exh. 8, § 6). After the payment of proceeds to members of the Citizen party, there was to be “a full surrender and relinquishment” of all their claims as members of the tribe and they would be admitted to “all the rights and privileges of citizens of the United States.” (Exh. 8, § 6). The Indian roll would contain the names of all persons of full age and their families as desire “to retain their tribal character and continue under the care and guardianship of the United States.” (Exh. 8, § 6). After the rolls had been made and returned, the Indian party would be known as the “Stockbridge tribe of Indians” and “may be located upon lands reserved” from sale or “such other reservation as may be procured for them, with the assent of the council of said tribe.” (Exh. 8, § 7). The Act further provided that after a suitable and permanent reservation had been obtained and accepted by the tribe, “either at their present home or elsewhere,” it was to be surveyed and subdivided under the direction of the Secretary of the Interior, and a “just and fair allotment” made by the council of the tribe “among the individuals and families composing said tribe.” (Exh. 8, § 8). The Act specified the amount of land to be provided to adult tribal members and further provided that if a member of the tribe died without heirs capable of inheriting, “the land shall revert to and become the common property of said tribe.” (Exh. 8, § 8). A certified copy of the allotments made was to be returned to the commissioner of Indian affairs within one year after the reservation was made and accepted by the tribe, and thereafter the title of the lands “shall be held by the United States in trust for individuals and their heirs to whom the same were allotted.” (Exh. 8, § 9). On January 8, 1872, an auction was held in Menasha, Wisconsin as called for under the Act. (Exh. 116, p. 52). Various tracts of land in the 54 sections were sold, though much of the land remained unsold. (Exh. 116, p. 58). One year later, the land was opened for cash entry at $1.25 per acre. (Exh. 116, p. 53). In 1874, per section 4 of the Act, Congress appropriated $7,081.80 for the remaining 11,803 acres that remained unsold after the auction and cash entry. (Exh. 141). Three-fourths of the land within the 1856 reservation was sold pursuant to the Act of 1871, with a portion of the proceeds going to members of the Citizen party, who were to relinquish their tribal membership. In the years following passage of the 1871 Act, rival petitions from members of the Indian party and Citizen party were submitted to Congress. As a result, in the late 1880’s Congress began to consider new legislation to resolve the problems. (Transcript of Preliminary Injunction Hearing, October 27, 28, and 30, 1998[Tr.] 69-70,100). In 1893, Congress passed “An act for the relief of the Stockbridge and Munsee tribe of Indians in the State of Wisconsin.” (27 Stat. 744; Exh. 9). The preamble to the Act acknowledged the 1856 treaty in which the Tribe ceded certain lands and in return accepted certain lands as a reservation “upon which they have ever since resided.” (Exh. 9, ¶ 1). The Act acknowledged that government officials interpreted the 1871 Act as excluding certain Indians from participating in tribal funds and from the right to occupy the reservation. (Exh. 9, ¶ 2). The Act provided that all members of the Tribe at the time of the 1856 treaty and their descendants and all persons who became members of the Tribe under the treaty’s provisions and their descendants were deemed to be members of the Tribe and entitled to their pro-rata share in tribal funds and in the occupancy of the lands. (Exh. 9, § 1). The Act declared that all members who had possessed land under the allotments of 1856 and 1871 and who had themselves or whose heirs had resided on the lands since that time were owners of such lands in fee simple and the government was to issue patents to them. (Exh. 9, § 1). The Act directed the Secretary of the Interior to cause an enrollment to be taken and filed. (Exh. 9, § 2). Finally, the Act provided that in all cases where the allotments of 1871 conflict with allotments of 1856, “the latter shall prevail.” (Exh. 9, § 2). In the aftermath of the Act of 1893, tribal membership had increased to more than 500 and there was not enough land for all tribal members to receive their proper allotment under the terms of the Treaty of 1856. (Tr. 275; Exh. 116, App. 31 at 7). In 1900, the Commissioner of Indian Affairs instructed Inspector Cyrus Beede to meet with the Tribe to solve the “small-shoe-large foot” problem, namely the small quantity of land owned by the Tribe and the number of Indians entitled to allotments. (Exh. 116, Appendix 31 at 11). The plan submitted by Inspector Beede and approved by a majority of tribal members contemplated a “full and complete settlement of all obligations of the Government,” provided the government met the conditions set out in the plan. (Exh. 116, Appendix 31 at 16). The plan provided that the government could purchase land elsewhere to make the allotments since there was insufficient land on the reservation to give each person the designated allotment. (Exh. 116, Appendix 31 at 17). One of the conditions was that funds to provide lands for all members of the tribe or to pay tribal members who chose money in lieu of land would be paid by the United States rather than drawn from the Tribe’s own trust funds. (Exh. 116, Appendix 31 at 17). In 1906, Congress passed legislation based largely on the plan negotiated by Inspector Beede in 1900, providing allotments in fee simple for the Stockbridge-Munsee Indians. (34 Stat. 382; Exh. 10). The 1906 Act provided that the members of the Tribe who had not up to then received patents for land in their own right would receive allotments of land and patents for the land in fee simple. (Exh. 10, ¶ 1). Those individuals who did not get an allotment because there was not sufficient land within the reservation could receive allotments from other lands or receive $2.00 per acre in lieu of receiving an allotment. (Exh. 10, ¶¶ 5-6). The Act provided that it was obligatory for tribal members who had made a selection of land within the reservation “to accept such selection as an allotment.” (Exh. 10, ¶ 6). One of the conditions set out in the plan proposed by Inspector Beede was not included in the Act. The Act provided that the funds to carry out the provisions of the Act were to be paid from the Tribe’s consolidated trust fund in the United States treasury, rather than paid by the United States. (Exh. 10, ¶ 10). The allotments were approved by the Secretary of the Interior in January 1910. See United States v. Gardner, 189 F. 690, 693 (E.D.Wis.1911); The patents for these allotments were delivered on April 4,1910. Id. In 1934, Congress passed the Indian Reorganization Act (IRA), 25 U.S.C. § 461, et seq., which authorized the Secretary of the Interior to expand the land bases of the Indian tribes and to proclaim new reservations. Pursuant to this authority, the United States subsequently purchased approximately 1,050 acres of land within the 1856 reservation boundaries. On March 19, 1937, pursuant to the provisions of the Act, the Acting Secretary of the Interior issued a proclamation stating that the described lands “are hereby proclaimed to be an Indian reservation.” See Plaintiffs Appendix at 132. Article II of the Constitution and Bylaws of the Stockbridge Munsee Community approved on November 18, 1937, defines the Tribe’s jurisdiction as follows: “The jurisdiction of the Stockbridge Munsee Community shall extend to all lands purchased, heretofore or hereafter, by the United States for the benefit of said Community.” (Plaintiffs Appendix at 163-169). In December 7, 1948, the Secretary of the Interior proclaimed that an additional 1,200 acres that had been acquired for the benefit of the Tribe were “hereby added to and made a part of the existing reservation established March 19, 1937.” (Plaintiffs Appendix at 133). In 1972, Congress declared that approximately 13,000 acres of submarginal land also contained within the 1856 reservation boundaries would be held in trust by the United States for the benefit of the Tribe, and would be part of the reservation. See Public Law 92-480, 86 Stat. 795. In 1992, pursuant to the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701 et seq., the State of Wisconsin and the Stockbridge-Munsee Community entered into the Stockbridge-Munsee Community and State of Wisconsin Gaming Compact of 1992 (“compact”) for the conduct of Class III gaming as required by 25 U.S.C. § 2710(d)(1)(C). Class III gaming is defined by the Indian Gaming Regulatory Act, 25 U.S.C. § 2703(8), to include electronic games of chance such as slot machines. The compact authorizes the Tribe to operate certain Class III electronic games of chance, including slot machines, but only when such machines meet rigorous technical specifications and only under specific terms outlined in the compact. The compact’s terms limit the operation of electronic games of chance to locations “on tribally-owned land or land held in trust by the United States on behalf of the Tribe, but only on such lands within the exterior boundaries of the tribal reservation.” (Compact, Section XV, Part H). Pursuant to the compact, since 1992, the Tribe has operated Class III electronic games of chance at its North Star Casino and Bingo (North Star) located within the exterior boundaries of the Tribe’s reservation, at W12180A County Road A, Bowler, Wisconsin. In 1993, the Tribe purchased property known as the Pine Hills Golf and Supper Club, located at N9498 Big Lake Road, in the Town of Red Springs, Shawano County, Wisconsin (Pine Hills). This property lies within Section 2 of the Township of Red Springs. Pine Hills lies within the boundaries of the reservation established by the Treaty between the Tribe and the United States in 1856. Pine Hills does not lie within the 18 sections reserved from sale pursuant to the Act of 1871. Pine Hills does not lie within any of the lands proclaimed to be reservation pursuant to the 1937 and 1948 proclamations; nor does it lie within the approximately 13,000 acres of submarginal land made part of the reservation pursuant to the 1972 Act. In December 1995, the Tribe conveyed Pine Hills to the United States of America, to be held in trust for the benefit of the Tribe pursuant to the Indian Reorganization Act of 1934, 25 U.S.C. § 465. By virtue of its status as trust land, Pine Hills constitutes “Indian lands” as defined by IGRA, 25 U.S.C. § 2703(4)(B). Under the compact, operation of Class III electronic games of chance is only permitted on Indian lands that are also located within the boundaries of the Tribe’s reservation. The Tribe has provided notice to the State, pursuant to the provisions of the compact, that it has moved a total of 168 slot machines from its casino in Bowler, Wisconsin to the Pine Hills location. The governor of Wisconsin has not consented to the operation of Class III games at Pine Hills. In August 1998, the State of Wisconsin and the Tribe entered a written agreement amending the original compact. The amendments modified the original compact in certain respects, including extending it for five years, but did not modify the prohibition against operating electronic games of chance on lands outside the exterior boundaries of the reservation. On August 28, 1998, the Tribe began operating Class III electronic games of chance at Pine Hills, namely slot machines. As of August 31, 1998, approximately 166 slot machines were in operation at Pine Hills. As of the date of the hearing, the gaming operation consisted of 170 slot machines. (Tr. 538). Approximately 700-800 slot machines are in operation at the North Star casino. (Tr. 538). As of October 30, 1998, the Pine Hills gaming facility employed 40 individuals and another ten individual had been hired and were scheduled to being working in the near future. (Tr. 535). Approximately 500 people are employed at the North Star gaming facility. (Tr. 529). The Tribe provides jobs to tribal members and non-tribal members. (Tr. 530). The largest proportion of jobs is for non-tribal members. (Tr. 530). The Tribe pays unskilled entry-level employee over $7.00 per hour, plus health insurance and other fringe benefits. (Exh. 502, Robert Chicks Dep., Exh. 1 ¶ 3). In its business projections, the Tribe projected net revenues at Pine Hills of $8,500 per day for the months of April through September, and $5,100 per day from October through March. (Exh. 502, Robert Chicks Dep. Exh. 1, para. 7). From August 28, 1998, through October 22, 1998, the Pine Hills casino had a total net revenue of $118,679.20, or an average of $2,119.27 per day of operations. (Exh. 415). During the same 56-day period, the North Star Casino had total net revenues of $6,528,942.24, or an average daily net revenue of $116,588.25 per day of operations. (Exh. 416). On approximately October 1, 1998, the Tribe planned to commence a new marketing program for the Pine Hills casino. The Tribe has only partially begun that marketing program. (Tr. 542). Since October 2, 1998, the daily net revenues at the Pine Hills Casino have averaged about $4,400.00 per day. (Tr. 542). The State of Wisconsin Division of Gaming issued a notice of violation to the Tribe relating to the Class III gaming operations at the Pine Hills casino. Aside from the dispute about whether nor not the Pine Hills casino is located on the Tribe’s reservation, that notice sets forth certain alleged problems with compliance with state gaming regulations at the new casino. (Exh, 502 at 53-55). ANALYSIS The plaintiff seeks a preliminary injunction enjoining the defendants from continuing the Class III gaming activities at the Pine Hills Golf Course and Supper Club (Pine Hills), the Tribe’s newly-expanded gaming operation in the Town of Red Springs, Wisconsin pending final resolution of this action. The issue presented is whether Pine Hills is located within the exterior boundaries of the Stockbridge-Munsee reservation. In seeking a preliminary injunction, the plaintiff asserts that the original reservation established in 1856 was subsequently diminished and ultimately dissolved by federal legislation enacted in 1871 and 1906, before being recreated on lands purchased for the Tribe pursuant to the Indian Reorganization Act of 1934(IRA). The state asserts that the present reservation does not include the Pine Hills property and, therefore, Pine Hills is an illegal gambling enterprise which violates the Tribe’s gaming compact and the Indian Gaming Regulatory Act (IGRA). In opposing the preliminary injunction motion, the defendants contend that the plaintiff has failed to meet the threshold showing of irreparable harm or a likelihood of success on the merits. They also assert that the “balancing of harms” weighs in their favor. The defendants state that the reservation boundaries established by the Treaty of 1856 have not been diminished, asserting an absence of substantial and compelling evidence of congressional intent to diminish the Tribe’s reservation. They argue that the focus in diminishment analysis is appropriately on congressional intent primarily expressed in the language of the legislation allegedly effecting diminishment and only secondarily in the legislative history and other cir-eumstances surrounding the legislation at issue. The plaintiff contends that it has a likelihood of success on the merits. To resolve this question, the court must determine whether the boundaries of the Stock-bridge-Munsee reservation as defined by the Treaty of 1856 were diminished by the Act of 1871, “an Act for the Relief of the Stockbridge and Munsee Tribe of Indians in the State of Wisconsin”. A brief summary of the changing relationship between the federal government and Indian tribes in the 19th and early 20th century provides background for the resolution of the issue before this court. In the 19th century, the federal government engaged in a policy of removing the Indians to lands in the West beyond the boundaries of white settlement in exchange for their territory in the eastern United States. See Cohen at 28, 78. This removal policy was formally established by the Act of May 28, 1830. Cohen at 122, n. 470 (citing 4 Stat. 411). “Removal and concentration were perceived as a method for the civilization and ultimate assimilation of the Indian into American life.” Id. at 123. Prior to the 1850’s, federal policy generally supported the rights of'Indian tribes to maintain communal or tribal ownership of land and their related social and political institutions. Cohen at 613. Occasionally, tribal lands were allotted to individual Indians or families. Id. In 1853, the federal government adopted a policy of allotment by which tribal ownership in some lands would be converted into title held by individual tribal members. Id. at 98. During this time, clauses were included in numerous treaties authorizing allotments. Id. at 130. In some cases, allottees surrendered their interests in the tribal estate and became United States citizens subject to state and federal jurisdiction. Cohen at 130, n.26 (citing treaties including the November 24, 1848, Treaty with the Stock-bridges). The underlying rationale for this policy was the belief that the Indians should be assimilated into the “mainstream of American life.” See Cohen at 128-129. In the Appropriations Act of March 3, 1871, Congress provided for the termination of treaty making with Indian tribes. Cohen at 127; 16 Stat. 544 (codified at 25 U.S.C. § 71). However, the federal-Indian relationship continued much as it had before, except that negotiations with tribes about land cessions resulted in “agreements,” rather than treaties. Cohen at 127. After passage of the Act, the federal government began to regulate the affairs of the tribes by statute or through contractual agreements ratified by statute, and tribes were no longer regarded as sovereign nations. DeCoteau v. District County Court for Tenth Judicial District, 420 U.S. 425, 431, 95 S.Ct. 1082, 43 L.Ed.2d 300, (1975) (citing Act of Mar. 3, 1871, c. 120, § 1, 16 Stat. 566). Towards the end of the 19th century, Congress increasingly held the view that Indian tribes should “abandon their nomadic lives on the communal reservations and settle into an agrarian economy on privately-owned parcels of land.” Solem v. Bartlett, 465 U.S. 463, 466, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984). This shift in viewpoint was based in part on the belief that farming on individual plots of land would hasten the assimilation of Indians, and in part by the continuing demands for new lands for homesteaders who were moving west. Id. In 1887, the General Allotment Act, 24 Stat. 388, commonly known as the Dawes Act, was enacted by Congress in an attempt to “reconcile the Government’s responsibility for the Indian’s welfare with the desire of non-Indians to settle upon reservation lands.” DeCoteau, 420 U.S. at 432, 95 S.Ct. 1082 (citing Act of Feb. 8, 1887, c. 119, 24 Stat. 388). The Act gave the President the discretion to make allotments of portions of reservation lands to reservation Indians and, with tribal consent, to open up the remaining holdings to non-Indian settlement. South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 118 S.Ct. 789, 794, 139 L.Ed.2d 773 (1998); DeCoteau, 420 U.S. at 432, 95 S.Ct. 1082 (citing Mattz v. Arnett, 412 U.S. 481, 496, 93 S.Ct. 2245, 37 L.Ed.2d 92 [1973]). The policy of the Act “was to continue the reservation system and the trust status of Indian lands, but to allot tracts to individual Indians for agriculture and grazing.” Mattz v. Arnett, 412 U.S. 481, 496, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973). The Act provided for the mandatory allotment of reservation lands. Cohen at 613. It was believed that within a generation or two, the reservations would disappear, the tribes would dissolve and individual Indians would be absorbed into the larger white community. Yankton Sioux Tribe, 118 S.Ct. at 794 (citing Hearings on H.R. 7902 before the House Committee on Indian Affairs, 73rd Cong., 2d Sess., 428 [1934] [statement of D.S. Otis on the history of the allotment policy]). As a corollary to the allotment policy, the federal government sought the cession of tribal lands which remained after each eligible Indian had received an allotment. Cohen at 613. These surplus lands were open to purchase or homesteading by non-Indians. Id. By the 1920’s, however, the allotment policy was generally deemed to be a failure. Id. at 614. Rather than benefitting the Indians, the policy had often resulted in the loss of Indian lands. Id. The late 1920’s and early 1930’s marked a change in the federal government’s Indian policy and a departure from many of the assimilationist policies of the allotment era. Id. at 144. There was more tolerance for many traditional aspects of Indian culture and new protections were provided for some Indian rights. Id. In 1934, Congress passed the Indian Reorganization Act (IRA) which was designed to encourage economic development and tribal self-government and to end the alienation of tribal land needed to support tribal members. Id. at 144-149. In addition, the IRA’s purpose was to provide for the acquisition of additional tribal lands and generally to improve the economic situation of Indians. Id. In determining whether the 1856 boundaries of the Stockbridge-Munsee reservation were diminished by subsequent acts of Congress, the court is guided by well-established legal principles. “[I]t is settled law that some surplus land acts diminished reservations ... and other surplus land acts did not.” Solem, 465 U.S. at 469, 104 S.Ct. 1161 (citations omitted). The effect of any given surplus land act depends upon the language of the act itself and the underlying circumstances of its passage. Id. In Solem, the court recognized that the surplus land acts seldom stated whether opened lands retained reservation status because such distinction seemed unimportant at the time since Indians lands were judicially defined to include only those lands in which the Indians held some property interest. 465 U.S. at 468, 104 S.Ct. 1161. This included trust lands, individual allotments and, to a more limited extent, opened lands that had not yet been claimed by non-Indians. Id. The Supreme Court has established a “fairly clean analytical structure” for determining whether a surplus land act diminished a reservation or merely offe