Washington Law Review


A.J. Taylor


Over the past three decades, the U.S. Supreme Court has repeatedly confronted the issue of whether Indian reservation lands sold to non-Indian settlers at the turn-of-the-century under Congress's allotment policy remain tribal territory for jurisdictional purposes. As the means of adjudicating these reservation diminishment cases, the Court has adopted a troubled three-pronged analytical approach. The Court's approach circumvents well-established rules of construction and diverges significantly from historic principles embodied in the trust doctrine that forms the ideological foundation of Indian law. The Court's recent decision in South Dakota v. Yankton Sioux Tribe exposes important shortcomings in the Court's multi-factor analysis and reveals the Court's effort to reach outcomes in these cases that favor non-Indian interests. This Note argues that the Court's current approach to the diminishment issue erodes tribal sovereignty and arrogates to the Court the role of balancing Indian and non-Indian interests, which traditionally has been a prerogative left to Congress. This Note advocates that the Court return to settled tenets of Indian law and reestablish an analytical framework that focuses exclusively on statutory language as the sole means for adjudicating diminishment cases.

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