Philip H. Tinker, Kanji & Katzen, PLLC Reservation Boundaries Litigation: Practical Considerations and Strategies for Success   Tribal In-House Counsel Association and Indian Law and Policy Center, 2017 Philip H. Tinker, Kanji & Katzen, PLLC

Background – Reservation Diminishment Litigation Philip H. Tinker, Kanji & Katzen PLLC Background – Reservation Diminishment Litigation Nebraska v. Parker, 136 S. Ct. 1072 (2016) reaffirmed the Supreme Court’s “well settled” reservation diminishment framework. Only congress can divest a reservation of it’s land. Its intent to do so must be “clear.”

Background – Reservation Diminishment Litigation Philip H. Tinker, Kanji & Katzen PLLC Background – Reservation Diminishment Litigation Statutory language The most probative evidence of diminishment. Must clearly evidence Congress’s intention to change the Reservation’s Boundaries.

Background – Reservation Diminishment Litigation Philip H. Tinker, Kanji & Katzen PLLC Background – Reservation Diminishment Litigation The contemporaneous understanding of the parties can also be considered. Must be “unequivocal.” “Dueling remarks” from legislative floor statements cannot support a finding of diminishment.

Background – Reservation Diminishment Litigation Philip H. Tinker, Kanji & Katzen PLLC Background – Reservation Diminishment Litigation Subsequent history and modern demographics can “‘reinforce’ a finding of diminishment or non-diminishment based on the text.” “One additional clue” as to what Congress intended. The Court has never relied solely on post-allotment history to find diminishment.

Background – Reservation Diminishment Litigation Philip H. Tinker, Kanji & Katzen PLLC Background – Reservation Diminishment Litigation In Parker: Statute lacked clear language of diminishment. “Mixed” historical evidence was not sufficient to overcome the lack of clear statutory language. Although tribe was “almost entirely absent from the disputed territory for more than 120 years,” this was not sufficient to find diminishment.

Practical Tips for In-House Counsel: Do Your Homework . . . Philip H. Tinker, Kanji & Katzen PLLC Practical Tips for In-House Counsel: Do Your Homework . . . Research and Document Preparation Compile and review all treaties, statutes, executive orders, agreements, records of negotiations, legislative history, agency materials, and judicial decisions relating to the establishment, preservation, modification, or allotment of your Reservation. What does this review entail?

Practical Tips for In-House Counsel: Do Your Homework . . . Philip H. Tinker, Kanji & Katzen PLLC Practical Tips for In-House Counsel: Do Your Homework . . . Research and Document Preparation “Researching the period from the late 1880s to the late 1910s, [Expert Historian] Smith reviewed the Congressional Record, including U.S. House and Senate floor statements and Committee Reports regarding the 1905 Act and its 1910 amendment; government reports and records from the Bureau of Indian Affairs, the Department of the Interior, and the Bureau of Land Management; annual reports of the Commissioner of Indian Affairs from 1897-1912; National Archives records; Congressional reports related to the Red Lake Reservation and legislation impacting the Reservation; Narratives and Statistical Reports by the Superintendent of Red Lake Agency from 1911-1922; and secondary sources regarding railroad development on reservation lands.” “The Red Lake Band as amicus curiae . . . provided Congressional records of negotiations that preceded the 1889 and 1904 Acts and a 1934 report of the Commissioner of the Court of Claims.” United States v. Jackson, 853 F.3d 436 (8th Cir. 2017).

Practical Tips for In-House Counsel: Do Your Homework . . . Philip H. Tinker, Kanji & Katzen PLLC Practical Tips for In-House Counsel: Do Your Homework . . . Tell Your Own Story Tribal archives Journals and letters of tribal leaders involved in the negotiations Family records, oral histories

Practical Tips for In-House Counsel: Do Your Homework . . . Philip H. Tinker, Kanji & Katzen PLLC Practical Tips for In-House Counsel: Do Your Homework . . . Tell Your Own Story A well crafted expert historian’s report will tell the story of your Reservation in a way that is highly persuasive to the Court. See United States v. Jackson, 853 F.3d 436 (8th Cir. 2017) (Red Lake Reservation).

Practical Tips for In-House Counsel: Do Your Homework . . . Philip H. Tinker, Kanji & Katzen PLLC Practical Tips for In-House Counsel: Do Your Homework . . . Tell Your Own Story “Historian Smith's report and testimony addressed this issue at length.” “Smith's research suggests that Congress intended the 1905 Act as an extension of MRL&M's existing right-of-way,” not to diminish the Reservation’s boundaries.

Practical Tips for In-House Counsel: Do Your Homework . . . Philip H. Tinker, Kanji & Katzen PLLC Practical Tips for In-House Counsel: Do Your Homework . . . Tell Your Own Story “But historian Smith's research revealed that some contemporaneous right- of-way acts included provisions similar to the 1905 Act, requiring the Secretary of the Interior to approve plat maps, conduct appraisals, and accept damage payments for the Band.” “[H]istorian Smith concluded that, by 1905, ‘diminished Red Lake Indian Reservation’ had become a term of art government officials used in referring to the Reservation as diminished by earlier surplus lands acts, rather than by the 1905 Act itself.”

Practical Tips for In-House Counsel: Do Your Homework . . . Philip H. Tinker, Kanji & Katzen PLLC Practical Tips for In-House Counsel: Do Your Homework . . . Tell Your Own Story “The statute's text, while somewhat ambiguous, reflects with the aid of historical records submitted by historian Smith and the Band that Congress intended the 1905 Act to accomplish a needed expansion of MRL&M's existing right- of-way.”

Practical Tips for In-House Counsel: Do Your Homework . . . Philip H. Tinker, Kanji & Katzen PLLC Practical Tips for In-House Counsel: Do Your Homework . . . Prepare to Exercise Sovereignty within your Boundaries Make sure your tribal Constitution, codes, publications, and websites all reflect your understanding regarding the current status of your Reservation boundaries. Update your Constitution, laws, procedural codes, etc., so that you have a proper legal infrastructure in place when the Court acknowledges your Reservation boundaries.

Practical Tips for In-House Counsel: Do Your Homework . . . Philip H. Tinker, Kanji & Katzen PLLC Practical Tips for In-House Counsel: Do Your Homework . . . Prepare to Exercise Sovereignty within your Boundaries Exercise practical sovereignty within your Reservation.

Practical Tips for In-House Counsel: Do Your Homework . . . Philip H. Tinker, Kanji & Katzen PLLC Practical Tips for In-House Counsel: Do Your Homework . . . Pick Your Test Case Parker: Tribal liquor tax, applicable to non-Indians within the Reservation under 18 U.S.C. § 1161. Wyoming v. EPA: EPA’s delegation of regulatory authority to Tribes under “Tribes as States” provision of the Clean Air Act.

Practical Tips for In-House Counsel: Do Your Homework . . . Philip H. Tinker, Kanji & Katzen PLLC Practical Tips for In-House Counsel: Do Your Homework . . . Pick Your Test Case Other potential vehicles?

Practical Tips for In-House Counsel: . . . But don’t wait too long Take advantage of Parker’s momentum If you don’t bring the case, maybe someone else will. Tribal member with unconventional legal theories Criminal defendant with unfortunate facts

Practical Tips for In-House Counsel: Look for Allies Will the United States intervene on your behalf? Parker Wind River Will your boundaries claim potentially implicate the rights of other Tribes?

Practical Tips for In-House Counsel: Look for Allies Don’t rule out finding allies in the State or local governments. Saginaw Chippewa Indian Tribe v. Granholm, E.D. Mich. 2010.