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

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. Bartlett 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 Nation applied Solem’s justifications for considering demographics to questions of tribal tax immunity and the legal doctrines of laches, acquiescence, and impossibility, 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.