Nebraska, et al. v. Parker, et al.
Issues
Despite an unclear congressional intent to diminish an Indian reservation through the sale of land, can a reservation also be diminished if the land has lost its Indian-character?
In this case, the Supreme Court will decide whether an Indian reservation can be diminished through events occurring after the sale of land to non-Indian settlers despite an absence of clear congressional intent to diminish the reservation. See Brief for Petitioners, Nebraska, et al., at i. In 1882, Congress passed a statute (“Act of 1882”) to sell a portion of the Omaha Indian Tribe’s (“Omaha Tribe”) reservation in Nebraska. See Brief for Petitioners at 9. Since the enactment of the Act of 1882, it has been unclear whether the portion sold still belongs to the Omaha Tribe’s reservation or if the reservation was diminished. See id. Petitioners (“Nebraska”) argue that de facto diminishment has occurred because the Omaha Tribe has declined to exercise their jurisdiction over the land and the land has lost its Indian character. See Brief for Petitioners at 24–26. The Omaha Tribe denies that the land has lost its Indian character and argues that jurisdiction over the land was never abandoned. See Brief for Respondents at 7. Significantly, the Omaha Tribe argues that neither the statutory language nor legislative history of the Act of 1882 supports the inference that Congress intended to diminish the reservation by selling the land. See id. at 10.
The Court’s decision in this case will implicate the reading of Solem v. Bartlett, which articulated a three-part analysis to evaluate when diminishment of an Indian reservation has occurred: (1) the statutory language used to sell Indian land; (2) events surrounding the passage of the sale of Indian land; and (3) events occurring after the sale of Indian land. See Brief for Petitioners at 21.
Questions as Framed for the Court by the Parties
- Whether ambiguous evidence concerning the first two factors in the test from Solem v. Bartlett (the statutory language used to open the Indian lands, and events surrounding the passage of a surplus land Act) necessarily forecloses any possibility that diminishment of a federal Indian reservation could be found on a de facto basis.
- Whether the original boundaries of the Omaha Indian Reservation were diminished following passage of the Act of August 7, 1882.
The Omaha Tribe, claiming that several residents and business owners resided within the boundaries of their reservation, attempted to enforce the Tribe’s Beverage Control Ordinance upon them. See Smith v. Parker, 996 F. Supp. 2d 815, 820 (D. Neb.) aff'd, 774 F.3d 1166 (8th Cir. 2014) cert. granted sub nom. Nebraska v. Parker, 136 S. Ct. 27 (2015).
Edited by
Additional Resources
- Matthew H. Birkhold, “Judging Indian Character in Nebraska v. Parker,” Indian Country Today Media Network (Dec. 19, 2015).
- Lindsay M. Thane, “Smith v. Parker,” Public Land and Resources Law Review