Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law (2019)

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NCHRP LRD 76 39 States acquired primary jurisdiction over unallotted opened lands where “the applicable surplus land Act freed that land of its reser- vation status and thereby diminished the reservation boundaries.” In contrast, if a surplus land Act “simply offered non-Indians the op- portunity to purchase land within established reservation boundar- ies,” then the entire opened area remained Indian country (internal citations omitted).429 The Court went on to state that the explicit cessation lan- guage in the surplus lands Act combined with the payment of a fixed-sum created a presumption of diminishment: Article I of the 1894 Act provides that the Tribe will “cede, sell, re- linquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation”; pursuant to Article II, the United States pledges a fixed payment of $600,000 in return. This “cession” and “sum certain” lan- guage is “precisely suited” to terminating reservation status. Indeed, we have held that when a surplus land Act contains both explicit lan- guage of cession, evidencing “the present and total surrender of all tribal interests,” and a provision for a fixed-sum payment, represent- ing “an unconditional commitment from Congress to compensate the Indian tribe for its opened land,” a “nearly conclusive,” or “almost insurmountable,” presumption of diminishment arises (internal cita- tions omitted).430 The Court then found that the subsequent treatment of the land and the demographics of the land (parts two and three of the test stated in Solem) did not rebut this presumption. • Nebraska v. Parker431: In contrast to the previous two cases, in this case the Supreme Court held that the reservation bound- aries had not been diminished based on application of the three- part test laid out in Solem. The Court found that a 1982 surplus lands act merely opened the land for settlement and that the cir- cumstances surrounding passage of the act, which it described as “dueling remarks by individual legislators,” could not overcome the text of the act. While the Court recognized that the third part of the Solem test might favor a finding of diminishment since the tribe was absent from the area for more than 120 years and did not regulate the area, the Court described this factor as the least compelling evidence of diminishment and noted that it had never relied on this factor alone to find diminishment. E. FEE-TO-TRUST PROCESS AND RESERVATION PROCLAMATIONS Indian trust land acquisitions are authorized by 25 U.S.C. § 5108;432 the regulations for these acquisitions can 429 Id. at 343, 118 S. Ct. at 797-98, 139 L. Ed. 2d at 786. 430 Id. at 344, 118 S. Ct. at 798, 139 L. Ed. 2d at 788. 431 136 S. Ct. 1072, 194 L. Ed. 2d 153 (2016). 432 Formerly 25 U.S.C. § 465. most heavily, followed by the second, and then, to a lesser ex- tent, the court considers the third factor. In Solem, the Court ultimately held that the reservation boundaries had not been diminished by the Cheyenne River Act because isolated phrases in the act which referred to opened areas as “public domain” and unopened areas as “the reservation thus diminished” were not enough to overcome the Act’s “stated and limited goal of opening up reservation lands for sale to non-Indian settlers.”421 Likewise, the Court found that the second factor did not favor a finding of diminishment because the Act had its origins in a bill to authorize the sale of surplus and unallotted reservation lands even though there was language in Senate and House reports referring to the reduced and diminished reservation. As to the third factor, the Court concluded that the subsequent treatment of the area was so contradictory and inconsistent that it did not weigh in favor of a finding either way.422 The Supreme Court has considered whether reservations had been diminished or disestablished in three other cases in recent years. • Hagen v. Utah423: I n this case, the Court held that the res- ervation boundaries had been diminished based on an applica- tion of the three-part test in Solem. It described the third part of the Solem test as a determination of the “identity of the persons who actually moved onto the open lands.”424 The Court also noted that, “Throughout the diminishment inquiry, ambigui- ties are resolved in favor of the Indians….”425 The Court found that the language of the operative act (“all the unallotted lands within said reservation shall be restored to the public domain”) evidenced a congressional purpose to terminate the reserva- tion.426 The events surrounding passage of the act (letters and statements from Interior Department officials, congressional bills and statements by members of Congress, and a Presidential Proclamation opening the reservation to settlement) likewise showed an intent to diminish the boundaries that was not over- come by references to the reservation in both past and present tense in the later legislative record. The Court also found that the fact that the area was primarily occupied by non-Indians in the present day also weighed in favor of a finding of diminish- ment.427 • South Dakota v. Yankton Sioux Tribe428: The Court again applied the three-part test from Solem and found that that res- ervation boundaries had been diminished in this case. The res- ervation was created by treaty. Following passage of the Dawes Act, tribal members received allotments and the federal govern- ment reached an agreement with the tribe to purchase the unal- lotted land. The Court framed the matter this way: 421 Id. at 475, 104 S. Ct. at 1168, 79 L. Ed. 2d at 453. 422 Id. at 479 at 104 S. Ct. at 1170-71, 79 L. Ed. 2d at 455-56. 423 510 U.S. 399, 114 S. Ct. 958, 127 L. Ed. 2d 252 (1994). 424 Id. at 399, 114 S. Ct. at 959, 127 L. Ed. 2d 258. 425 Id. at 400, 114 S. Ct. at 959, 127 L. Ed. 2d 258. 426 Id. 427 Id. 428 522 U.S. 329, 118 S. Ct. 789, 139 L. Ed. 2d 773 (1998).