Academic journal article Washington Law Review

THE LEGACY OF SOLEM V. BARTLETT: HOW COURTS HAVE USED DEMOGRAPHICS TO BYPASS CONGRESS AND ERODE THE BASIC PRINCIPLES OF INDIAN LAW

Academic journal article Washington Law Review

THE LEGACY OF SOLEM V. BARTLETT: HOW COURTS HAVE USED DEMOGRAPHICS TO BYPASS CONGRESS AND ERODE THE BASIC PRINCIPLES OF INDIAN LAW

Article excerpt

Abstract: Only Congress has authority to change a reservation's boundaries, so when disputes arise over whether land is part of a reservation, courts turn to congressional intent. The challenge is that in many cases, Congress expressed its intent to diminish or disestablish a reservation as long as one hundred years ago through a series of "surplus land acts."' To help courts with their task, the Supreme Court in Solem v. Bartlet? laid out a three-tiered analysis. This Comment examines how courts have applied modern demographics - part of Solem's third and least probative tier - and demonstrates that they have consistently and primarily used the factor to support finding reservation diminishment. Furthermore, in 2005, the Supreme Court in City ofSherrill v. Oneida Indian Nation* applied Solem's justifications for considering demographics to questions of tribal tax immunity and the legal doctrines of laches, acquiescence, and impossibility,4 laying the groundwork for expansive use of demographics in other areas of Indian law. This Comment argues that courts should stop applying modern demographics to questions of reservation diminishment because doing so has led to outcomes that conflict with congressional Indian policy and undermine core canons of construction that have long governed the relationship between Indian tribes and federal courts.

INTRODUCTION

The reservation status of a specific piece of land has significant meaning for the people who live there. If a court determines Congress diminished (shrunk) or disestablished (terminated) a reservation, tribal members may suddenly find themselves answering to a different set of laws or having to move to maintain their tribal benefits.5 At stake in diminishment and disestablishment cases is the existence of the reservation itself. Jurisdiction issues, taxation authority, mineral rights, and cultural identities hinge on the outcomes. Whether a piece of land has reservation status significantly impacts how tribal, state, and federal governments operate, and how people on that land - Indian and nonIndian alike - live.

Diminishment cases generally involve the interpretation of surplus land acts, some of which diminished reservations and some of which did not.6 The starting point for analysis is straightforward: only Congress can diminish a reservation. Because of this, courts must determine-using traditional Indian law canons of construction - whether Congress intended the surplus land act in question to shrink or terminate a reservation's boundaries, or whether Congress intended to leave the reservation intact.7 The problem is that surplus land acts are things of the past - the far distant past. Most took effect about one hundred years ago.

With Solem v. Bariletti the Supreme Court sought to give courts some guidance.9 The case created a weighted three-tiered analysis to apply in questions of diminishment.10 In addition to an act's text and the historical circumstances surrounding an act's passage, Solem gave courts permission to examine what happened after an act took effect, including changes in populations as reflected by modern demographics - specifically the ratio of Indians to non-Indians living in a given area - for one additional clue as to whether Congress intended that area to remain a reservation." While the Solem Court urged caution when considering demographics, courts have unhesitatingly embraced the factor and used it to support finding after finding against Indian interests. In fact, commentators have noted that demographics predict a diminishment case's outcome more accurately than any other factor.12

This Comment argues that courts should abandon the use of demographics because it has led to results that contradict the Indian law canons of construction and Congress's clear modern preference for tribal self-government. Part I offers an overview of the history of tribal sovereignty and the relationship between Indian nations and Congress, while Part II introduces a product of that history: the Indian law canons of construction, which require federal courts to wait for clear direction from Congress before abrogating Indian tribal powers. …

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