The Legacy of Solem v. Bartlett: How Courts Have Used Demographics to Bypass Congress and Erode the Basic Principles of Indian Law

• Publication year: 2021

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

Charlene Koski

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."(fn1) To help courts with their task, the Supreme Court in Solem v. Bartlett(fn2) 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 of Sherrill v. Oneida Indian Natior(fn3) applied Solem's justifications for considering demographics to questions of tribal tax immunity and the legal doctrines of laches, acquiescence, and impossibility,(fn4) 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.(fn5) 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 non-Indian alike-live.

Diminishment cases generally involve the interpretation of surplus land acts, some of which diminished reservations and some of which did not.(fn6) 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.(fn7) 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. Bartlett(fn8) the Supreme Court sought to give courts some guidance.(fn9) The case created a weighted three-tiered analysis to apply in questions of diminishment.(fn10) 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.(fn11) 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.(fn12)

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. Part III explains the relationship between tribal sovereignty, reservation status, and Indian Country. Part IV introduces Solem, showing that the Supreme Court's effort to synthesize a three-tiered analysis from earlier cases created the odd result of courts examining modern demographics to discern century-old congressional intent. Part V shows that since Solem, courts have generally not used demographics to clarify ambiguities in favor of the Indians. Part VI introduces City of Sherrill v. Oneida Indian Nation,(fn13) In that case, the Supreme Court relied in part on Solem when it used demographics to justify using laches to bar tribal sovereignty and effectively diminish a reservation. The decision has the potential of introducing the use of demographics to other areas of Indian law. Part VII argues that demographics should be abandoned as a measure of congressional intent in diminishment cases.

I. INDIAN TRIBES ARE SOVEREIGN NATIONS IN A DEPENDENT RELATIONSHIP WITH CONGRESS

Modern tribal powers and rights flow from historic principles, and from relationships that predate European contact with tribes.(fn14) To decide questions related to tribal status and jurisdiction, courts must examine hundreds of years of treaties, agreements, and relationships. Thus, more than in many other areas of law, history is relevant in Indian law.(fn15) This Part summarizes some of that history. First, it introduces the historical relationship between the United States and the Indians who lived on the land early settlers colonized. Second, it looks at the development of the reservation system and its significance for tribes and Indians. Finally, it summarizes Congress's modern-era shift away from assimilation policies toward tribal self-government and cultural autonomy.

A. The American Relationship with Indians Developed Through Shifts in Strength and Loyalty, Fueled by Americans' Unrelenting Thirst for Land

Indian tribes have long been treated as sovereign nations. When Europeans first arrived in North America, approximately five hundred Indian nations lived in what is now the United States-mostly along coastal areas, major river systems, and near the Great Lakes(fn16)-and had established a commercial network spanning the continent that allowed them to trade food, clothing, and crafts.(fn17) British and Spanish colonies negotiated treaties with them in the seventeenth century,(fn18) and in 1763 King George III issued a royal proclamation(fn19) promising to protect the Indians' land in gratitude for their help during the French and Indian War.(fn20)

Early Americans also acknowledged the sovereign status of Indian tribes. To establish successful colonies, settlers needed to minimize conflict with neighboring Indians, who for several decades vastly outnumbered them.(fn21) One of the best ways to do that was through promises to respect tribal land,(fn22) so colonies passed laws protecting Indians from hostile non-Indians,(fn23) and generally allowed only government agents to purchase Indian-claimed land.(fn24)

Even as they worked to maintain relations, however, many colonists did not trust the Indians. Some Indians had helped the British win the French and Indian War, and colonists feared they would again side with the British during the Revolutionary War.(fn25) Colonists tried to deter Indians by destroying their villages and crops, inadvertently motivating most tribes to side openly with the British.(fn26) After the Revolutionary War, the battered and war-weary states wanted to avoid further hostilities, so Congress passed laws promising that the new country would respect the land and sovereign powers of Indian tribes.(fn27) Congress also negotiated treaties and agreements with tribes, further acknowledging their status as distinct sovereign bodies.(fn28)

Agreements between Congress and Indian tribes often included exchanges of land rights. The first was the Treaty of Fort Pitt, or the Delaware Treaty of 1778,(fn29) in which the United States agreed to build a fort inside the Delaware Nation to protect the tribe in return for a cooperative and friendly relationship.(fn30) The Treaty also guaranteed members of the Delaware Nation "all their territorial rights in the fullest and most ample manner."(fn31) As treaty making progressed, the immense scope of the practice came to encompass land transactions of more than two billion acres, and individual concessions involving tens of millions of acres.(fn32)

Americans' thirst for land was insatiable. As their new nation became more powerful, the dynamics of the relationship between the former colonists and the Indians shifted.(fn33) After the War of 1812, the British Empire began to withdraw, taking with it much of the tribes' bargaining power.(fn34) The United States used its military power, especially the cavalry, to protect prospectors and settlers moving westward onto tribal lands.(fn35) Treaties were used primarily to force Indians from their land against their will.(fn36) One journal article describes this period and its treaty...