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Through a federal suit in 2007, Hobbs Straus attorneys obtained protection of tribal court authority over child custody proceedings.

General Memorandum 16-024

General Memorandum 16-024
Supreme Court Rules the Omaha Indian Reservation was not Diminished

On March 22, 2016, in Nebraska v. Parker, a unanimous U.S. Supreme Court held that Congress did not diminish the Omaha Indian Reservation when it adopted a "surplus property" Act in 1882. The 1882 Act empowered the Secretary of the Interior "to cause to be surveyed, if necessary, and sold" more than 50,000 acres of the Omaha Reservation. Once the land was appraised "in tracts of forty acres each" the Secretary was "to issue [a] proclamation" that the "lands are open for settlement under such rules and regulations as he may prescribe." The proceeds from any land sales were to "be placed to the credit of said Indians in the Treasury of the United States." The townsite for the village of Pender was platted from land sold under the 1882 Act.

The case began in 2006 when the Omaha Tribe sought to assert jurisdiction over the village of Pender through its newly amended Beverage Control Ordinance ("BCO"). Federal law permits the Tribe to regulate liquor sales on its reservation or Indian Country. The BCO requires retailers to obtain a tribal liquor license and imposes a 10 percent sales tax on liquor sales. Nonmembers who are not in compliance are subject to a $10,000 fine. The village of Pender and various retailers brought suit alleging that they were neither within the boundaries of the Omaha Reservation nor in Indian Country, and therefore not bound by the BCO, essentially arguing that the 1882 surplus property Act diminished the Omaha Reservation and vested jurisdiction with the State in that section.

The framework to determine whether Congress has diminished an Indian reservation when it opened it for non-Indian settlement is "well settled," said the Court. "Only Congress can divest a reservation of its land and diminish its boundaries, and its intent to do so must be clear." The Court has developed a three part test in such cases.

First, looking at the plain language of the 1882 Act, the Court found none of the hallmarks of diminishment. Of importance was the fact the Act opened the lands for settlement under such rules and regulations as the Secretary of the Interior might prescribe. The Court found the 1882 land Act merely opened reservation land to settlement. This scheme allowed non-Indian settlers to own land on the reservation, but that alone does not show that Congress intended to diminish the reservation's boundaries.

Second, looking at the historical evidence presented by both sides the Court was not able to overcome the lack of clear language that Congress intended to diminish the reservation. Floor statements were introduced which painted opposing pictures of what Congress intended with the 1882 Act. The Court found such dueling remarks from individual legislators far from the clear and plain evidence of diminishment that is required. The Court was unable to find any statements that would unequivocally support a finding that the existing boundaries of the reservation would be diminished.

Finally, the Court considered both the subsequent demographic history of the land in question and the federal government's treatment of the affected areas in the years immediately following its opening. The Court stressed that this evidence might reinforce a finding of diminishment or non-diminishment, but has never relied solely on this consideration to find diminishment. The facts that (1) the Tribe was essentially "absent" from the disputed territory for more than 120 years and did not enforce any laws, and (2) reports from the Office of Indian Affairs and other governmental officials that the disputed lands fell under the jurisdiction of Nebraska were not enough to overcome the conclusion that Congress did not intend to diminish the reservation.

The Court did find the "justifiable expectations" of the almost exclusively non-Indian settlers who live on the land an important factor, but reiterated that only Congress has the power to diminish the reservation. In closing, the Court made the significant observation that the door was still open as to whether other equitable considerations 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," citing the Sherrill case (2005). This consideration could also affect other reservations where the courts have already held they remained intact after Congress opened them to non-Indian settlement.

Please let us know if we may provide additional information or analysis regarding the Nebraska v. Parker decision.

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Inquiries may be directed to:

Charlie Hobbs (chobbs@hobbsstraus.com)
Jennifer Hughes (jhughes@hobbsstraus.com)
Josh Proper (jproper@hobbsstraus.com)

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