Supreme Court Unanimously Holds that Omaha Tribe’s Reservation Not Diminished by 1882 Statute

On March 22, 2016, the Supreme Court issued a decision in Nebraska v. Parker. In this case, Nebraska challenged the Omaha Indian Tribe’s right to enforce a Department of Interior-approved liquor ordinance on parts of the Tribe’s Reservation. In a unanimous decision authored by Justice Thomas, the Court rejected Nebraska’s argument that the Reservation was diminished by an act of Congress or by the expectations of current non-Indian residents.

Background

Starting in the 1860s, the Omaha Tribe conveyed land to the United States by treaty and other sale agreements. The Tribe also requested the United States’ assistance and permission to sell land to fund tribal functions. The Act of August 7, 1882 (“the 1882 Act”) was the result of such a request. The 1882 Act authorized the Interior Secretary to make the land available for sale, in lots of up to 160 acres, at the “appraised value” of the land or $2.50 per acre, whichever was greater.  The net sale proceeds were to “be placed to the credit of said Indians in the Treasury of the United States” for their benefit. Parts of the land were sold and parts were allotted to Tribal members. The land includes the present day Town of Pender, Nebraska. The residents of Pender are mostly non-Indians, and the Omaha Tribe has generally not enforced its laws in Pender. 

In 2004, the Omaha Tribe adopted an alcoholic beverage control ordinance applying within the boundaries of the Reservation. The ordinance was certified by the Department of the Interior. 71 Fed. Reg. 10,056 (Feb. 28, 2006). The Tribe announced its intent to enforce the ordinance on its Reservation, including the Town of Pender.

Owners of businesses and clubs that sold alcohol in Pender, along with Nebraska and the village itself (together, “Nebraska”), brought an action against Omaha Tribal Council members to stop the Tribe’s attempt to enforce its liquor-license and tax scheme on Omaha tribal land. Pender and its residents alleged that the 1882 Act diminished the Omaha Tribe’s reservation, and that the Town of Pender is not within the boundaries of the Omaha Indian Reservation. 

The U.S. Court of Appeals for the Eighth Circuit held, affirming the federal district court, that Pender is within the reservation and is subject to the Tribe’s alcohol ordinance. The court found that the language of the 1882 does not show clear intent to change the boundaries of the reservation. Smith v. Parker, 774 F.3d 1166 (8th Cir. 2014). Instead the act only indicates that the Federal Government intended to act as the tribe’s sales agent for purposes of surveying and auctioning its reservation land. Id. at 1168. Since the reservation was not diminished the tribe has regulatory jurisdiction over the plaintiffs.  Id. at 1169. The Supreme Court granted Nebraska’s petition for writ of certiorari.

The Court’s Decision

The parties and the Court agreed that the question of whether an act of Congress diminishes the boundaries of an Indian reservation is governed by the three-factor test established in Solem v. Bartlett, 465 U.S. 463 (1984). The three factors are:

• Statutory language—the “most probative evidence of congressional intent”;
• Legislative history; and,
• To a lesser extent, the subsequent treatment of the disputed area.

On the all-important first factor, statutory language, the Court largely agreed with arguments presented by the Tribe and the United States. The 1882 Act did not diminish the reservation, the Court found, because it simply made the Secretary of Interior a “sales agent” for Tribe—to sell parcels of Reservation land to raise money for the Tribe. The Act “merely opened reservation land to settlement and provided that the uncertain future proceeds of settler purchases should be applied to the Indians’ benefit.” The Court found that the language of the 1882 Act “speaks in much different terms, both in describing the way the individual parcels were to be sold to nonmembers and the way in which the Tribe would profit from those sales” from treaties in the same time period which unequivocally surrendered all of the Omaha Tribe’s interests through sale of land ceded through the treaties. Accordingly, the Town of Pender could not “establish that the text of the 1882 Act evinced an intent to diminish the reservation.”

Nebraska fared no better with its argument that the legislative history of the 1882 Act showed that Congress intended to diminish the Tribe’s Reservation. Nebraska relied “largely on isolated statements that some legislators made about the 1882 Act.” For example, one Senator noted that the Act left the Tribe with an “ample reservation.” But the Court found that neither these “cherry-picked statements,” which were contradicted by statements by other legislators, nor anything else in the legislative history, “unequivocally supports a finding that the existing boundaries of the reservation would be diminished.”

Nebraska’s argument focused on the third factor, the subsequent treatment of the disputed area. Nebraska relied on City of Sherrill v. Oneida Indian Nation. In that case, the Court found that a tribe could not restore its jurisdiction, to the exclusion of state and local taxing authority, over land that was formerly part of its reservation and that the Tribe had re-purchased in the open market. Nebraska seized on the Court’s comments in that case regarding the “disruptive practical consequences” of recognizing tribal jurisdiction over the land at issue in City of Sherrill, and argued that the same rationale should apply to the Omaha Tribe and preclude it “from rekindling embers of sovereignty that long ago grew cold.” Nebraska argued that the expectations of the current residents could accomplish a de facto diminishment of the Reservation. The Court stated that it found “concerns about upsetting the ‘justifiable expectations’ of the almost exclusively non-Indian settlers” to be “compelling” but held that “these expectations alone . . . cannot diminish reservation boundaries. Only Congress has the power to diminish a reservation.” Based on the Court’s finding that Congress did not intend to diminish the Reservation in 1882, the Tribe prevailed. The Court did note, however, that because petitioners had raised only the single question of diminishment, the Court declined to express any “view about whether equitable considerations of laches and acquiescence may curtail the Tribe’s power to tax the retailers of Pender in light of the Tribe’s century-long absence from the disputed lands.”

Conclusion

The Court’s decision is a victory for the Omaha Tribe and a positive development for tribal sovereignty and self-governance in general. The Court’s decision was based on a straightforward reading of the text of a statute that only affected the Omaha Tribe, so there will not be any wide-ranging impacts directly from the decision. However, it is encouraging that the Court rejected Nebraska’s argument that the Omaha Tribe’s Reservation could be subject to de facto diminishment based on the expectations of non-Indian residents. 

This case shares a common theme, the scope of tribal jurisdiction over on-Reservation non-Indians, with another highly-watched case that is still pending before the Court, Dollar General Corp. v. Mississippi Band of Choctaw Indians. It is tempting to see the Court’s decision today as an indicator of how Dollar General will come out. However, this case was a strict question of statutory construction and the statutory text drove the result.  Dollar General raises questions of tribal civil adjudicatory jurisdiction under rules that have been crafted by court decisions, so the outcome remains difficult to predict.