Nebraska, et al. v. Parker, et al. (14-1406)

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? 

Oral argument: 
January 20, 2016

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 

  1. 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.
  2. Whether the original boundaries of the Omaha Indian Reservation were diminished following passage of the Act of August 7, 1882.

Facts 

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). The Beverage Control Ordinance required establishments that sold alcohol to obtain a license for a fee and imposed a sales tax on every purchase of alcohol. See Smith v. Parker at 820. After the residents ignored several notices from the Omaha Tribe, the United States District Court for the District of Nebraska granted Nebraska a temporary restraining order prohibiting the enforcement of the Beverage Control Ordinance. See id. at 821. Soon after, Nebraska brought a lawsuit in the Omaha Tribal Court declaring that Pender, Nebraska is not within the boundaries of the Omaha Reservation and therefore not subject to Omaha Tribe’s Beverage Control Ordinance. See id. The Omaha Tribal Court held that Congress did not intend to diminish the boundaries of the Omaha Indian Reservation and that it was questionable whether the land had lost its Indian character. See id. Both the District Court and the United States Court of Appeals affirmed the decision. See Smith v. Parker, 774 F.3d 1166 (8th Cir. 2014) cert. granted sub nom. Nebraska v. Parker, 136 S. Ct. 27 (2015).

The District Court extensively described the history of the Tribe in its analysis. See Smith v. Parker, 996 F. Supp. 2d 815, 821 (D. Neb.) aff'd, 774 F.3d 1166 (8th Cir. 2014) cert. granted sub nom. Nebraska v. Parker, 136 S. Ct. 27 (2015). The District Court first analyzed the language used in treaties between the Omaha Tribe and the United States in 1854 and 1865; it found that the treaties allowed the United States to “cede” a portion of Omaha Tribe’s lands provided that the Tribe would “relinquish” all rights and titles to the land. See Smith v. Parker at 821–22.

The District Court then analyzed the relevant statute: the Act of 1882, which sold 50,000 acres of the Omaha Reservation where Pender, Nebraska is now located. See id. at 823. Importantly, the District Court noted that the Act of 1882’s language did not contain explicit words like “cede” or “relinquish” and instead allowed the Omaha Tribe to retain portions of the land sold. See id. at 826. The District Court examined the legislative history and found that Congress understood that the Act of 1882’s purpose was solely to sell the land and keep the money in a trust account to accumulate interest for the Omaha Tribe and that the purpose of the Act was not to diminish the Omaha Tribe’s land. See id. at 838.

The District Court acknowledged that since the land was sold in 1882, Indians have comprised less than two percent of the population on that land. See id. at 827. Moreover, the District Court noted that Congress passed an 1888 extension, which allowed the federal government to auction off defaulted land. See id. Lastly, the District Court observed that the Bureau of Indian Affairs and the Nebraska attorney general determined that the land sold was no longer part of the Omaha Reservation after the Act of 1882. See id. at 830–31. However, the District Court found that there was conflicting evidence to conclude that the land has lost all of its Indian character because the land was mapped inconsistently and Indians still visited and resided there. See id. at 843.

Analysis 

The Supreme Court must decide whether in a case where there is no express statutory language, the Omaha Tribe and Nebraska’s treatment of a disputed part of an Indian reservation after it was opened to non-Indian settlers is sufficient to prove diminishment or whether the statutory language and legislative history of the Act of 1882 that opened the area to settlement is probative evidence of a congressional intent to diminish the reservation. See Brief for Respondents, Mitch Parker et al., at 6–11.

Nebraska argues that because the language of the Act of 1882 is ambiguous the Court is limited in its ability to determine congressional intent. See Brief for Petitioners, Nebraska, et al., at 21–22. Nebraska asserts that the Court must consider the treatment of the disputed area after it was opened to non–Indian settlers to determine if diminishment occurred. See id. Nebraska contends that the Court must also look to the legislative history surrounding the passage of the Act, which it argues shows that both Congress and the Omaha Tribe intended to diminish the reservation. See Brief for Petitioners at 24–26. Furthermore, Nebraska argues that its non-contested control over the disputed area and the lack of Indian character in the area before and after settlement by non-Indians also confirms diminishment. See id.

The Omaha Tribe, on the other hand, argues that the lower courts adequately analyzed the three Solem factors and that the lower court’s finding that there was no diminishment should be upheld. See Brief for Respondents, Mitch Parker et al., at 9. The Omaha Tribe argues that statutory language, which is considered the “most probative evidence of congressional intent,” suggests that Congress did not intend the disputed area to be diminished. See Brief for Respondents at 5. The Omaha Tribe further contends that the lower court did not err in holding that there was insufficient evidence from the legislative history to show that Congress intended to diminish the reservation. See id. at 6. Finally, the Omaha Tribe argues that the lower courts adequately reviewed the third Solem factor and found that the treatment of the area following the passage of the Act of 1882 did not point to diminishment and that Nebraska waived the issue by failing to raise it on appeal. See id. at 9.

Statutory Language and Congressional Intent

The analysis of the first Solem factor requires the Court to evaluate whether the statutory language of the Act of 1882 shows that Congress intended diminishment of the reservation. See Brief for Respondents, Mitch Parker et al., at 5. Nebraska argues that “explicit language of cession” is not required to prove diminishment. See Brief for Petitioners, Nebraska, et al., at 46. Nebraska contends that though the statutory language contained in the Act of 1882 does not explicitly refer to cession or relinquishment of rights and title, Congress nevertheless intended that the Omaha reservation be diminished because the act clearly opens the land to settlement by non- Indians and indicates that lands forfeited through non payment by purchasers are to be sold at auction and not revert to the Tribe. See Brief for Petitioners at 47–48. Furthermore, Nebraska argues that when the Omaha reservation was opened to settlement by non-Indians, Congress’s failure to reserve mineral and land rights in the disputed area for the benefit of the Omaha Tribe is evidence that Congress did not view the disputed area to be part of the Tribe’s reservation. See id. at 49. Finally, Nebraska argues that the lack of cession language in the act may be attributed to the fact that the Tribe did not reside in the disputed area at the time the act was passed, and therefore there was no need to expressly provide the cession language seen in similar treaties. See id. at 50.

Conversely, the Omaha Tribe argues that, according that to Solem, statutory language is the “most probative evidence of congressional intent” and that the language of the Act of 1882 fails to prove Congresses’ intent to diminish the reservation. See Brief for Respondents, Mitch Parker et al., at 5. The Omaha Tribe argues that Congress intended the disputed area to remain part of the Omaha reservation because the Act did not require the Omaha Tribe to surrender its rights or title in exchange for compensation nor did it restore Omaha lands to the public domain or cause the Tribe to vacate the reservation. Id. The Act merely permitted the survey and sale of Omaha lands including the disputed area if necessary. Id. Additionally, the Omaha Tribe contends that unlike prior treaties where the Tribe expressly relinquished its claim to the land in exchange for monetary compensation, in this instance the Omaha Tribe did not do so, demonstrating that both Congress and Tribe intended the disputed area to remain part of the reservation. See id. at 6.

Diminishment Under the Legislative History of the Act of 1882

Nebraska argues that the events surrounding the passage of the Act and the manner in which the act was negotiated with the Omaha Tribe indicate that Congress intended the Omaha reservation to be diminished. See Brief for Petitioners, Nebraska, et al., at 38. To prove this congressional purpose, Nebraska argues that prior to the passage of the Act of 1882, Congress offered the area under contention for sale on two separate occasions. See Brief for Petitioners at 47–48. Nebraska further argues that the Omaha Tribe, while petitioning Congress for the sale of the disputed acreage, requested that that “50,000 acres be separated from the remainder of the reservation” indicating that the Tribe in negotiating the passage of the Act and the sale of the acreage contemplated the diminishment of its reservation and that Congress passed the Act of 1882 with the same purpose. Id. at 39–43 (emphasis added) (internal quotations removed). Additionally, Nebraska argues that the established policy of the Commissioner of Indian Affairs at the time was to prevent mixed white and Indian settlements by cutting off distinct portions from the reservation. See id. at 44–45. Therefore, Nebraska argues that both Congress and the Tribe negotiated the Act of 1882 with this policy in mind. See id.

On the contrary, the Omaha Tribe argues that the legislative history of the Act of 1882 does not indicate that Congress clearly contemplated the diminishment of the reservation because there was no specific discussion on how the act’s passage would impact the Omaha reservation. See Brief for Respondents, Mitch Parker et al., at 6. The Omaha Tribe therefore argues that the district court was correct in its conclusion that there is insufficient evidence in the Act of 1882 and the legislative history surrounding it to establish that Congress intended that the reservation be diminished. Id.

Subsequent Treatment as Evidence of Diminishment

Nebraska argues that the treatment of the disputed area by the Omaha Tribe and by the State of Nebraska is proof of de facto diminishment because where, as in this case, the area is settled by a majority of non-Indians, the area loses its Indian character. See Brief for Petitioners, Nebraska, et al., at 23. Nebraska concludes that a finding that the area remains Indian country would seriously burden residents and local administration. See id. In support of this conclusion, Nebraska argues that following the passage of the 1882 Act the area under contention was quickly settled by non-Indians and the state has since exercised jurisdiction over the area without contest from the Omaha Tribe. See Brief for Petitioners at 24–25. Additionally, Nebraska argues that the population of the Omaha Tribe living in the disputed area has historically been low and that Nebraska has consistently provided all state and local services in the area. See id. at 33. Furthermore, until recently, the United States, in its reports following the passage of the Act of 1882, treated the area under contention as diminished by repeatedly indicating that the boundary of the Omaha reservation lies at the eastern end of the dividing railway and does not extend into the disputed area. See id. at 35–36. Finally Nebraska argues that after 130 years of both the Tribe and State of Nebraska treating the disputed area as being under the jurisdiction of the State of Nebraska without contest from the Omaha Tribe, the people and businesses in the area have developed justifiable expectations and would be burdened if the area reverts to Indian country. See id. at 52.

Conversely, the Omaha Tribe argues that the third Solem factor, which requires an analysis of the subsequent treatment of the area after the sale of the land to non-Indians is considered “less illuminating than contemporaneous evidence” and as such should be accorded less weight. See Brief for Respondents, Mitch Parker et al., at 7. The Omaha Tribe argues that in the district court’s analysis of the third factor it found that in five statutes passed between 1885 and 1894 the area opened for settlement was consistently referred to as Omaha lands and United States continued to serve as a trustee over the sale of lands in the disputed area. See id. at 7.  Additionally, the Omaha Tribe argues that the permission of the Tribe was still required before parcels of land were bought and sold in the area and that the boundaries of the reservation have been inconsistently mapped by the State of Nebraska and the United States over the years, and thus there is nothing in the record to overcome a presumption in favor of the continued existence of the Omaha reservation. See id. at 7–8.

Discussion 

Nebraska argues that the lower courts erred in failing to establish that diminishment occurred due to the fact that the land has lost its Indian character since the Act of 1882. See Brief for Petitioners at 26. The Omaha Tribe, on the other hand, claims that the lower courts not only found mixed evidence to conclude that the land has lost its Indian character, but also found that Congress did not intent to diminish the land through the Act of 1882. See Brief for Respondents at 8.

Diminishment Under Principles of Equity

Nebraska and supporting amici contend that the Omaha Tribe and lower courts incorrectly under-appreciated the importance of events that have occurred since the passage of the Act of 1882. See Brief of Amicus Curiae Village of Hobart, Wisconsin and Pender Public Schools (“Village of Hobart”), in Support of Petitioners at 6. According to Nebraska and supporting amici, the lower courts failed to recognize equitable diminishment, a new standard set by the Supreme Court in City of Sherrill v. Oneida Indian Nation of New York. See Brief of Village of Hobart, in Support of Petitioners at 6. Nebraska contends that the Court analyzed several factors when assessing whether equitable diminishment occurred: (1) the amount of time that has lapsed; (2) whether the Indian tribe sought judicial relief; and (3) whether the land has lost its Indian character. See id. at 8. According to Nebraska and amici, equitable diminishment should be taken into account regardless of congressional intent. See id. at 6.

The Omaha Tribe counters Nebraska’s argument by stating that the lower courts did analyze whether equitable diminished occurred. See Brief for Respondents at 5. The Omaha Tribe contends that, after considering both congressional intent and equitable diminishment, the lower courts properly concluded that diminishment did not occur. See id. at 10. Further, the Omaha Tribe claims that the lower courts properly found that congressional intent was “most probative” and that equitable diminishment was “less illuminating” in analyzing whether diminishment has happened. See id. at 5–7. Lastly, the Omaha Tribe disputes that Nebraska’s argument that the lower courts improperly weakened the importance of equitable diminishment is a new issue. See id. at 9. For this reason, the Omaha Tribe claims that Nebraska waived their right to argue that courts should give more weight to equitable diminishment. See id.

Disruption to Government, Businesses, and Residents

Nebraska and supporting amici highlight that non-Indian governments, businesses, and residents have settled on the disputed land since the enactment of the Act of 1882. See Brief of Village of Hobart, in Support of Petitioners at 21. If the Supreme Court affirms the lower courts’ decision that diminishment has not occurred, Nebraska argues that these occupants will be severely disrupted in their everyday administration of state and local governments. See id. at 20. Although the issue in this case is the avoidance of the taxation ordinance that the Omaha Tribe seeks to enforce, Nebraska claims that disruptions can also come from failure to comply with local zoning and land use laws, which can be even more disruptive.  See id. at 19.

The Omaha Tribe, on the other hand, contends that before analyzing whether current occupiers of the land will be disrupted, it is important to note that the lower courts found that the land’s demographics have been described, treated, and mapped inconsistently since the Act of 1882. See Brief for Respondents at 10. In other words, the Omaha Tribe argues that it is not conclusive that settlers of the disputed land are purely non-Indian. See id. Moreover, the Omaha Tribe asserts that even if demographic evidence did establish that the disputed land is almost entirely settled by non-Indians, diminishment cannot be based solely on demographic data and subsequent treatment. See id. at 11. The Omaha Tribe finally asserts that the issue is whether there was congressional intent to diminish the land, not whether demographics have changed or disruptions have occurred. See id

Conclusion 

In this case, the Supreme Court will determine whether events occurring after the sale of land to non-Indian settlers result in the diminishing of an Indian reservation. See Brief for Respondents, Mitch Parker et al., at 6. Nebraska argues that as a result of the legislative history surrounding the passage of the Act of 1882 and the subsequent treatment of the land by both the Tribe and the State, the disputed area should be considered diminished despite there being no express statutory language in the act to prove the congressional intent to diminish.  See Brief for Petitioners at 21. The United States meanwhile argues that statutory language is the most probative evidence of congressional intent to diminish and therefore the lack of express language on cession is the best proof that Congress did not intend to diminish the Omaha reservation when it passed the Act of 1882. See Brief for Respondents at 5. Ultimately, the Supreme Court must decide on the weight to be accorded to the three factors identified under Solem and whether subsequent treatment of the disputed land is sufficient to prove diminishment in the absence of express congressional intent to diminish. The Supreme Court’s decision here would likely affect businesses and people who rely on Nebraska’s jurisdiction and local services in the disputed area, as well as impact future tribal boundary questions.

Edited by 

Additional Resources 

  1. Matthew H. Birkhold, “Judging Indian Character in Nebraska v. Parker,” Indian Country Today Media Network (Dec. 19, 2015).
  2. Lindsay M. Thane, “Smith v. Parker,” Public Land and Resources Law Review