SCOTUS Holds Omaha Indian Tribe Has Jurisdiction Over Pender Retailers
Nebraska v. Parker, 136 S. Ct. 1072 (2016).
The Omaha Indian Tribe asserted jurisdiction over the Village of Pender, Nebraska, by subjecting Pender retailers to a liquor ordinance that required liquor licenses, imposed sales tax on liquor sales, and fined violators. Pender and Pender retailers sued members of the Omaha Tribal Council in their official capacities in federal court, challenging the Tribe’s authority to impose the ordinance on non tribal persons. Federal law permitted the Tribe to regulate liquor sales on its reservation and in “Indian Country.” The challengers alleged they were not bound by the ordinance because they were not within the boundaries of the reservation or Indian Country.
The legal issue was whether Congress “diminished” the Omaha Indian Reservation in the Act of August 7, 1882 (the “1882 Act”), that is, whether the 1882 Act restored a portion of the reservation to the public domain. If Congress did so, Nebraska had jurisdiction over the disputed land. If Congress did not, federal, state, and tribal authorities shared jurisdiction, and the Tribe could impose the liquor ordinance on nonmembers. The federal district court held Congress did not diminish the reservation. The Eighth Circuit Court of Appeals affirmed.
The Supreme Court also affirmed. The Court held the 1882 Act did not diminish the Omaha Indian Reservation. Only Congress can divest a reservation of its land, and the congressional intent to do so must be clear. To determine if Congress diminished the reservation, the Court analyzed, in order of importance, the: (1) text of the 1882 Act; (2) historical evidence surrounding the passage of the 1882 Act; and (3) subsequent demographic history of the lands in dispute.
In 1854, the Tribe entered into a treaty with the United States to create a 300,000-acre reservation (that treaty, the “1854 Treaty”). In the 1854 Treaty, the Tribe agreed to “cede” and “forever relinquish all right and title to” its land west of the Mississippi River except the reservation for $840,000. In 1865, the Tribe entered into another treaty with the United States and agreed to “cede, sell, and convey” an additional 98,000 acres of the reservation in exchange for $50,000 (that treaty, the “1865 Treaty”). In the Act of June 7, 1872 (the “1872 Act”), Congress authorized the Secretary of the Interior to sell 50,000 more acres of the reservation, but rather than sell a fixed amount of land for a fixed sum, a nonmember could purchase tracts, and proceeds of the sales would appear as credits to tribal members on the books of the U.S. Treasury. The 1882 Act was similar to the 1872 Act and authorized the Secretary of the Interior to sell more than 50,000 acres by issuing a proclamation the “lands are open for settlement.” The 1882 Act also provided proceeds from land sales would appear as credits to tribal members on the books of the U.S. Treasury.
In examining the text of the 1882 Act, the Supreme Court found none of the standard indications of diminishment—explicit references to cession, language evidencing the present and total surrender of tribal claims in exchange for a fixed payment, or provisions restoring portions of the reservation to the “public domain.” Whereas the 1854 Treaty and 1865 Treaty terminated the Tribe’s jurisdiction in unequivocal terms, the 1882 Act (and the 1872 Act) did not.
The historical evidence—contemporaneous floor statements and the manner in which the United States and the Omaha Tribe negotiated the transaction—was mixed and could not overcome the lack of a clear textual signal Congress intended to diminish the reservation. The subsequent demographic history of the disputed land strongly supported the petitioners, as the Tribe was almost entirely absent from the disputed territory for more than 120 years. But the Court found it never relied solely on the third consideration to find diminishment, and it was not the Court’s role to rewrite the 1882 Act in light of subsequent demographic history.