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38 NCHRP LRD 76 established is found in the U.S. Supreme Court case Solem v. Bartlett:416 The first and governing principle is that only Congress can divest a reservation of its land and diminish its boundaries. Once a block of land is set aside for an Indian reservation and no matter what hap- pens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates other- wise. Diminishment, moreover, will not be lightly inferred.417 With this overarching principle in mind, the Court laid out a three-part test to determine whether a reservation has been diminished or disestablished: 1. The statutory language used to open the Indian lands: The most probative evidence of congressional intent is the statutory language used to open the Indian lands. Explicit reference to cession or other language evidencing the present and total surrender of all tribal interests strongly suggests that Congress meant to divest from the reservation all unallotted opened lands. When such language of cession is buttressed by an unconditional commitment from Con- gress to compensate the Indian tribe for its opened land, there is an almost insurmountable presumption that Congress meant forÂ the tribeâs reservation to be diminished (internal citations omitted).418 2. Events surrounding passage of a surplus lands act: [E]xplicit language of cession and unconditional compensation are not prerequisites for a finding of diminishment. When events sur- rounding the passage of a surplus land Actâparticularly the manner in which the transaction was negotiated with the tribes involved and the tenor of legislative Reports presented to Congressâunequivocal- ly reveal a widely held, contemporaneous understanding that the af- fected reservation would shrink as a result of the proposed legislation, we have been willing to infer that Congress shared the understanding that its action would diminish the reservation, notwithstanding the presence of statutory language that would otherwise suggest reserva- tion boundaries remained unchanged.419Â 3. Events that occurred after the passage of a surplus lands act: To a lesser extent, we have also looked to events that occurred after the passage of a surplus land Act to decipher Congressâ intentions. Congressâ own treatment of the affected areas, particularly in the years immediately following the opening, has some evidentiary value, as does the manner in which the Bureau of Indian Affairs and local judicial authorities dealt with unallotted open lands. On a more pragmatic level, we have recognized that who actually moved onto opened reservation lands is also relevant to deciding whether a surplus land Act diminished a reservation. Where non- Indian settlers flooded into the opened portion of a reservation and the area has long since lost its Indian character, we have acknowl- edged thatÂ de facto,Â if notÂ de jure,Â diminishment may have occurred. In addition to the obvious practical advantages of acquiescing toÂ de factoÂ diminishment,Â we look to the subsequent demographicÂ history of opened lands as one additional clue as to what Congress expected would happen once land on a particular reservation was opened to non-Indian settlers (internal citations omitted).420Â Note that the three factors mentioned above are not given equal weight by the Court in determining whether reservation boundaries have been diminished. The first factor is weighted 416 465 U.S. 463, 104 S. Ct. 1161, 79 L. Ed. 2d 443 (1984). 417 Id. at 470, 104 S. Ct. at 1166, 79 L. Ed. 2d at 450. 418 Id. at 470-71104 S. Ct. at 1166, 79 L. Ed. 2d at 450. 419 Id. at 471, 104 S. Ct. at 1166, 79 L. Ed. 2d at 450-51. 420 Id. at 471-72, 104 S. Ct. at 1166-67, 79 L. Ed. 2d at 451. While on patrol in a marked car, Omak City Police Sergeant Rogers (who was also a commissioned Colville Tribal Law Enforcement Officer), observed defendant Waters commit minor civil traffic infractions and followed his car across the river to East Omak, activating his emergency lights. Waters, an enrolled member of the Colville Confederated Tribes, refused to stop. A hot pursuit ensued through residential ar- eas at excessive speeds; the pursuit involved Waters running stop signs. After an hour-long, high-speed chase on state highways, Waters was arrested on tribal reservation trust property for felony eluding, driving while license suspended, driving while under the influence, and resisting arrest. Wa- ters moved to dismiss, arguing that the officers did not have authority to arrest him on the reservation.413 The court distinguished Benally, which involved misde- meanor violations, not a felony. The court held that because the charge was felony eluding, the Omak police therefore had authority to arrest Mr. Waters, if the arrest followed a fresh pursuit. The Washington Mutual Air Peace Officers Powers Act of 1985 authorizes peace officers to enforce state laws throughout the territorial bounds of the state when the officer is in fresh pursuit. RCW 10.93.070(6). Fresh pursuit empowers an officer to arrest criminal or traffic violators and take them into custody anywhere in the state, including a reservation. RCW 10.93.120(1)(a).414 D. RESERVATION BOUNDARY DISPUTES There are instances where tribes, states, and the federal government may disagree about reservation boundaries (i.e., whether the reservation has been diminished); these entities may even disagree about whether a particular reservation ex- ists at all (i.e., whether the reservation has been disestablished). Since all land within reservation boundaries is Indian country,415 these disagreements can add another layer of complexity in de- termining which entities have jurisdiction. Generally, cases determining whether a reservation has been diminished or disestablished involve interpreting a surplus lands act that opened up the land to settlement by non-Indians. (See section B.2.e for historical context.) The framework for de- termining whether a reservation has been diminished or dis- 413 Id. at 973â74,71 P.2d at 540-41. 414 Id. at 976, 71 P. 2d at 543. For additional case law on this topic see, State of Oregon v. Kurtz, 350 Or. 65, 249 P.3d 1271 (Filed Mar. 25, 2011) and State v. Cummings, 2004 S.D. 56, 679 N.W.2d 484 (Filed Apr. 21, 2004). 415 There is one narrow exception to this general rule, which the Supreme Court discussed in City of Sherril v. Oneida Indian Nation of New York, 544 U.S. 197, 125 S. Ct. 1478, 161 L. Ed. 2d 386 (2005). In that case, parcels of land inside reservation boundaries were sold to non-Indians nearly 200 years earlier, the state had been regulating the area, and its inhabitants were mostly non-Indian. The tribe then pur- chased the land. The Supreme Court held that the parcels of land were subject to local taxes under the doctrine of laches, acquiescence, and impossibility. The Supreme Court did, however, note that if the land were converted to trust land through the fee-to-trust process described in 25 U.S.C. Â§ 465, that the land would then be exempt from state and local taxes.