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Nebraska v. Parker

Supreme Court of the United States
2016 U.S. LEXIS 2132, 136 S. Ct. 1072, 194 L. Ed. 2d 152 (2016)
ELI5:

Rule of Law:

A congressional act opening Native American reservation land for sale to non-Indians does not diminish the reservation’s boundaries unless the statutory text contains clear and explicit language of cession or a commitment for a fixed-sum payment, demonstrating an unambiguous congressional intent to alter the reservation's status.


Facts:

  • In an 1854 treaty, the Omaha Tribe and the United States established a 300,000-acre reservation in present-day Nebraska.
  • In an 1865 treaty, the Omaha Tribe sold a portion of its reservation to the United States for a fixed sum of $50,000 to create a reservation for the Winnebago Tribe.
  • An 1872 Act of Congress authorized the sale of up to 50,000 acres on the western side of the reservation, with proceeds to be credited to the Tribe, but this resulted in minimal sales.
  • An 1882 Act of Congress empowered the Secretary of the Interior to sell over 50,000 acres of reservation land west of a railroad right-of-way to non-Indian settlers in tracts up to 160 acres.
  • Under the 1882 Act, proceeds from the land sales, after expenses, were to be placed in the U.S. Treasury to the credit of the Omaha Tribe, rather than being a fixed, upfront payment.
  • Following the 1882 Act, non-Indians purchased and settled the land, founding the village of Pender.
  • For over 120 years, the Omaha Tribe did not exercise governmental jurisdiction over the disputed area, which became predominantly populated by non-tribal members.
  • In 2006, the Omaha Tribe sought to enforce its Beverage Control Ordinance, which imposes licensing requirements and a sales tax on liquor retailers, against businesses in Pender.

Procedural Posture:

  • The village of Pender and Pender retailers sued members of the Omaha Tribal Council in the U.S. District Court for the District of Nebraska, seeking to block enforcement of the Tribe's liquor ordinance.
  • The State of Nebraska intervened on behalf of the plaintiffs, and the United States intervened on behalf of the Omaha Tribal Council.
  • The District Court ruled in favor of the Omaha Tribal Council, concluding that the 1882 Act had not diminished the reservation.
  • Pender and Nebraska, as appellants, appealed the decision to the U.S. Court of Appeals for the Eighth Circuit.
  • The Eighth Circuit affirmed the District Court’s judgment.
  • The U.S. Supreme Court granted certiorari to resolve the diminishment question.

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Issue:

Does the Act of August 7, 1882, which authorized the sale of certain Omaha tribal lands west of a railroad right-of-way to non-Indian settlers, diminish the boundaries of the Omaha Indian Reservation?


Opinions:

Majority - Justice Thomas

No. The Act of August 7, 1882, did not diminish the boundaries of the Omaha Indian Reservation because it lacks the clear congressional intent required to do so. To determine whether Congress has diminished a reservation, the Court applies a three-part framework established in Solem v. Bartlett, which prioritizes statutory text, followed by historical context and subsequent demographic history. The text of the 1882 Act is the most probative evidence, and it contains none of the traditional hallmarks of diminishment, such as explicit cession language or an unconditional commitment to pay the tribe a fixed sum for the land. Instead, the Act merely opened reservation land for settlement and provided that uncertain future proceeds would benefit the tribe, a structure that is inconsistent with an intent to terminate reservation status. This statutory language contrasts sharply with the explicit cession language used in the 1854 and 1865 treaties with the Omaha Tribe. While the historical context contains conflicting statements from legislators and the subsequent demographic history shows a long period of tribal absence and non-Indian settlement, this evidence is mixed and not compelling enough to overcome the clear lack of diminishment intent in the statute's text. The justifiable expectations of non-Indian settlers cannot rewrite a statute or substitute for the required clear expression of congressional intent.



Analysis:

This decision reinforces the high threshold required to establish that Congress has diminished a Native American reservation. The Court's analysis strongly prioritizes the statutory text of the surplus land act over subsequent history and demographic changes. By confirming that the absence of explicit cession language or a fixed-sum payment is dispositive, the ruling solidifies the legal framework and makes it more difficult to argue for diminishment based on historical practice or the 'Indian character' of an area. The case serves as a powerful precedent for tribal sovereignty, potentially affecting numerous other areas across the country where reservation boundaries have been disputed due to historical land openings and long periods of state or local jurisdiction.

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