Introduction: Writing another chapter in its long-running book regarding whether boundaries of Indian Reservations across the country have been diminished or reduced by Congressional action, on March 22, 2016, the United States Supreme Court issued its opinion in Nebraska v. Parker.1 In a unanimous opinion authored by Justice Thomas, the Court held that the boundaries of the Omaha Indian Tribe's ("Tribe") reservation in eastern Nebraska were not diminished by an 1882 Act of Congress proclaiming that certain "lands are open for settlement under such rules as the [Secretary of the Interior] may prescribe."2 The opinion, and the line of cases it applied, has important implications for state, local, and tribal jurisdiction and the communities potentially regulated and taxed by governmental authorities in areas that once were, or remain, part of Indian Reservations.
Factual Background: Following passage of the 1882 Act, the Secretary of the Interior ("Secretary") surveyed 50,000 acres of the Tribe's Reservation in Nebraska and, in accordance with the 1882 Act, issued a proclamation announcing that the lands were open for purchase after members of the Tribe were given the opportunity to select allotments (essentially homesteads) in the area. Proceeds from any sales to non-members of the Tribe were to be held by the United States for the Tribe's credit. In accordance with the statutory scheme, a settler in the area purchased a 160-acre tract of land and established the town of Pender, Nebraska on that site. Today, Pender's population is 1,300, predominantly non-members of the Tribe. And, less than 2% of the population in the 50,000-acre tract described in the 1882 Act are tribal members—which has been true since the early 20th century.
In 2006, the Omaha Indian Tribe enacted an ordinance imposing a 10% sales tax on liquor sales in Pender. Pender and its retailers sued the Omaha Indian Tribal Council members, challenging the Tribe's power to impose the tax and asserting that the Tribe lacked the power to tax since Pender was not within the boundaries of the Omaha Indian Reservation (or otherwise in Indian Country).3 Nebraska intervened to support Pender; the United States intervened to support the Tribe.
The Decision Analyzed: With the Supreme Court's decision, all three courts that considered the question whether the 1882 Act diminished the boundaries of the Omaha Indian Reservation concluded that the answer was "no," despite the current demographics of the area.
This case presented the Court with the opportunity to review over 50 years of Supreme Court precedent—starting with Seymour v. Superintendent in 19624—considering whether acts of Congress have served to diminish reservation boundaries. As a result of the several cases the Court has decided in this arena, Justice Thomas observed that "[t]he framework we employ to determine whether an Indian reservation has been diminished is well settled. ‘[O]nly Congress can divest a reservation of its land and diminish its boundaries,' and its intent to do so must be clear."5
The Court described the rest of the diminishment "framework:" The Court starts with the statutory text of the relevant Act of Congress. "'The most probative evidence of diminishment is, of course, the statutory language used to open the Indian lands.'"6 Beyond the statutory text, the Court's test also examines (i) the circumstances surrounding the opening of a reservation, and (ii) "‘unequivocal evidence' of the contemporaneous and subsequent understanding of the status of the reservation by members and nonmembers, as well as by the United States and the State of Nebraska."7
In examining the text of the 1882 Act, the Court concluded that the statute fell into a category of surplus lands acts that simply opened a reservation to settlement and entry by non-Indians, without either restoring the area to the public domain or compensating the tribe for its loss of the area subject to the statute. The Court's prior decisions had held that statutes restoring lands to the public domain or providing for the surrender of an area with fixed compensation to a tribe for the loss of the area were tantamount to congressional disestablishment.8
In this case, the Court considered early treaties with the Omaha Indian Tribe that stood in stark contrast to the 1882 Act. The treaties expressly provided for the Tribe to "cede" and "relinquish" certain lands in exchange for fixed sums of money.9 The juxtaposition of the treaties with the 1882 Act supported the Court's conclusion that the 1882 Act did not diminish the reservation. Consequently, the Court concluded that the 1882 Act did not "evince an intent to diminish the reservation."10
Next, the Court considered contemporaneous understandings and the subsequent jurisdictional history regarding the area, and concluded "[t]he mixed historical evidence relied on by the parties cannot overcome the lack of a clear textual signal that Congress intended to diminish the reservation." Id. In other words, there was no "widely held, contemporaneous understanding that the affected reservation would shrink as a result of the proposed reservation."11
Finally, in accordance with its long-standing diminishment analytical framework, the Court considered the subsequent demographic history and the United States' treatment of the area from a jurisdictional standpoint,12 while commenting that the Court has "never relied solely on this third consideration to find diminishment."13 While the Tribe "was almost entirely absent from the disputed territory for more than 120 years," and doesn't seek to exercise jurisdiction over any other lands within the disputed area, the Court found that insufficient to overcome the express language of the 1882 Act. The Court found the post-enactment history and subsequent treatment of the area—considered to be of "limited interpretive value" in the Court's overall analysis—to be a "mixed record."14
The Court also considered Nebraska and Pender's "concerns about upsetting the ‘justifiable expectations' of the non-Indian settlers," describing those concerns as "compelling."15 Nonetheless, the Court opined that those expectations alone cannot diminish reservation boundaries. "Only Congress has the power to diminish a reservation . . . [and the Court] ‘cannot remake history.'"16
Leaving open a sliver of hope for the residents and business people of Pender in their quest to avoid tribal taxation, the Court confirmed that the Court expresses no view as to whether "equitable considerations of laches and acquiescence may curtail the Tribe's power to tax . . . in light of the Tribe's century-long absence from the disputed lands."17
Take-Away: Generally, the Court's analysis and application of its reservation diminishment authority, as summarized here, suggests that Nebraska v. Parker was decided in a manner squarely consistent with the Court's applicable precedent. The consequences of the decision—in light of the long-standing absence of any tribal presence—of course, should be troubling to communities and business located on lands that were formerly part of an Indian Reservation and were the subject of some form of surplus lands act.
1 Nebraska v. Parker, 136 S. Ct. 1072 (2016).
2 Act of Aug. 7, 1882, 22 Stat. 341 ("1882 Act").
3 The Court did not reach questions pertaining to non-Reservation lands that might be considered "Indian Country."
5 Slip Op. at 5 (quoting Solem v. Bartlett, 465 U.S. 463, 472 (1984)).
6 Id. at 5-6 (quoting Hagen v. Utah, 510 U.S. 399, 411 (1994)).
7 Id. at 6 (quoting South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 351 (1998)).
8 Id. at 6-7 (citing, inter alia, Solem, Hagen, and Yankton Sioux).
11 Id.,(quoting Solem, 465 U.S. at 471).
12 Id. at 10 (citing Solem, 465 U.S. at 471-72).
14 Id. at 11-12 (quoting Yankton Sioux, 522 U.S. at 355-56).
16 Id. at 12 (quoting DeCoteau v. District Cnty. Ct. for the Tenth Judicial Dist., 420 U.S. 425, 449 (1975).