“The White man made us many promises, and he kept but one. He promised to take our land and he took it.” ? Red Cloud
On Wednesday, the United States Supreme Court heard oral arguments in Nebraska v. Parker, a case that will ultimately determine if the geographic boundaries of Indian reservations can be redrawn by judicial fiat, rather than by treaties that were enacted by Congress. Court observers say the case has grave implications for hundreds of tribes across the country in areas where non-Indians have taken up residence on their reservations.
Tribal leaders say a decision in favor of the non-Indian settlers bringing this suit could set the stage for the continued diminishment of Indian lands.
The case began in 2004, when the Omaha Tribe of Nebraska enacted an alcohol beverage control ordinance regulating and taxing the sale of alcohol on its reservation?for which it had obtained federal approval. The Omaha Indian Reservation is mostly in Thurston County, but also has sections in four other counties. Prior to this ordinance, said Omaha Tribal Chairman Vernon Miller, the tribe had passed several sales taxes with no complaint.
In 2006, the tribe notified the seven liquor stores in the town of Pender (population: 1,000) that they would have to pay tribal licensing fees and a 10 percent liquor tax to continue to operate on the reservation.
In 2007, however, the town of Pender and the liquor stores sued the tribe in federal court, asking the court to declare that Pender, which is the county seat, is not within the boundaries of the Omaha Reservation because, they allege, the Omaha Act of 1882 ratified by Congress “diminished” the reservation borders.
The Omaha and their attorneys argue that only Congress has the authority to establish or redraw the boundaries of Indian lands, and that no records from the federal government or the State of Nebraska show that reservation boundaries have ever been changed. Further, they contend that numerous subsequent state and federal legislative actions reaffirm that Congress never expressly authorized the diminishment of Omaha lands.
For decades, in fact, both Thurston County and the Town of Pender boasted that they were on the Omaha Indian Reservation, according to tribal officials?until their liquor store owners were asked to pay taxes. Within months, they said, Pender sued the tribe and began describing itself in court documents and in print as a “predominantly European-American” community.
Arguing for the state of Nebraska, solicitor general James Smith began by alleging that the disputed area on the Omaha Reservation had “always” been non-Indian.
Justice Ruth Bader Ginsburg challenged Smith’s assertions by going straight to the heart of the case. “You are arguing for a de facto diminishment test,” said Ginsburg. “That is, you pointed out the area has been overwhelmingly populated by non-Indians and they haven't attempted before to exercise governing authority.”
Smith replied that diminishment of the reservation fits within the three-part test established bySolem v. Bartlett, a 1984 Supreme Court case which determined that opening up Indian lands for white settlement does not constitute Congressional intent to reduce or “diminish” tribal reservations.
Under this argument, Smith was seeking to establish that because the “facts on the ground” had changed under white residency in Pender, the boundaries of the reservation had also changed and that title to the land should be conferred to meet the “public expectations” of its new inhabitants?in spite of the fact that Congress has never expressly consented to redrawing the reservation map.
“And so obviously we would not be opposed to the Court concluding and reaching this decision on the grounds of de facto diminishment,” said Smith. “[I]f you're looking at intent of Congress, you should be looking at what Congress is doing after the Act that is reflective of not understanding essentially that they've diminished the reservation.”
Just because the town had been settled by non-Indians, said Justice Antonin Scalia, does not prove or create the legal diminishment of tribal lands.
Smith went on to assert a “long-standing assumption” of jurisdiction by the Nebraska over an area of reservation land that is primarily non-Indian – which Smith said created “justifiable expectations," of its non-Indian inhabitants and that if [the Omaha] ever had any sovereignty over it, they had long since forfeited.”
Justice Sonia Sotomayor then referenced the petition before the court in which the Omaha had sought?and received?Congressional approval to impose the liquor tax.
As the justices and Smith went on to wrangle over which of several court precedents should be the determining test for the case, Smith concluded his argument by reiterating that the reservation should be diminished because it already had been diminished by white settlement.
Stepping to the podium next, Paul Clement, a former United States Solicitor General and senior fellow of the Supreme Court Institute at Georgetown, got straight to the point. “The question in this case is whether an 1882 Act of Congress diminished the Omaha Reservation and redrew its boundaries,” said Clement. “We think multiple considerations make clear that the Act of Congress did not diminish the reservation, but simply opened up a portion of the reservation for settlement within the existing boundaries.”
Therefore, he said, “...there is no language in the statute that supports a finding of diminishment.”
Clement pointed out that a number of tribal members at the time of the opening of the lands also elected to take their allotments in the disputed area west of the now-defunct rail line?which would not have been possible if the land belonged to the state.
Chief Justice John Roberts and Justice Anthony Kennedy inquired as to how many allotments were taken by Indians, with Clement confirming that 15 tribal members obtained allotments in an area which was predominantly settled by whites, which seemed to confuse Justice Kennedy as to the nature of the allotment process in the 1800s.
Later on in the arguments, as Clement pointed out to Justice Scalia that the previous ruling in Solem “went out of its way to not decide the diminishment issue," Justice Roberts interjected that the decision did talk about diminishment.
“And it seems to me that you've got to recognize when they do that, they're talking about something other than [rightful claim], in other words, pursuant to the law,” said Roberts. “It's pursuant to the facts on the ground.”
Allon Kedem, arguing on behalf of the United States, which has sided with the Omaha in this case, began his argument by citing the decision in Solem. “This Court explained that once a block of land is set aside as an Indian reservation, no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise. It has not done so here.”
Kedem went on to point out that the issue of diminishing Indian lands is not simply an issue of tribal sovereignty, but also the jurisdiction of the United States. Additionally, he pointed out 30 years of Nebraska revenue rulings that explicitly include Pender as part of the reservation, the legal definition of Thurston County which has never changed, and the failure of Nebraska’s “Tipping Point” doctrine (a legal theory by which the percentage of land sales and/or population numbers may “tip the scales” toward non-Indian ownership of reservation lands) which has never been allowed by Congress.
“And finally,” said Kedem, “I think this Court should be very reluctant to assume that Congress implicitly transferred any part of its authority to change the borders of an Indian reservation to private parties and made it contingent on what this Court in Dakota referred to as uncertain future sales.”
Returning again and again to the current circumstances on the reservation, however, Justices Roberts and Kennedy pressed the issue of “facts on the ground” in reference to the rights of the non-Indian residents on the reservation.
Chief Justice Roberts told Kedem that there was nothing vague about white settlers flooding into the open portion of an Indian reservation and that the area in question had since lost its "Indian character."
“We have acknowledged that de facto, if not [rightful entitlement to the land by non-Indians] may have occurred,” said the Chief Justice.
After the arguments, Chairman Miller, who attended the hearing with a delegation of councilmen and tribal members, said he was optimistic, but was concerned about the apparent lack of knowledge regarding tribal jurisdiction and federal Indian law which he said was evidenced by the line of questioning.
“I saw many issues being discussed today that had nothing to do with the issue at hand and I’m concerned about how this decision is going to affect Indian country if the State of Nebraska and the Village of Pender can suddenly decide they’re not on Indian land,” said Miller. “They talked about ‘no Indian presence,’ but I was born in Pender and their economy is just as dependent on our tribe as well.”
Mitch Parker, the former Omaha chairman and tribal elder who is the named defendant in the case, was also at the hearing.
“I heard them say that the tribe acted ‘unilaterally,’ but I think they got it backwards,” said Parker. “The tribe was already there; it is our land and the state and county did all of this on their own. And yet this is how we are treated. We have to remind the court that all of the land was owned by the Indians before anyone else was here?and we also have settled expectations. We made this effort because of our grandchildren. l don’t want my grandchildren treated this way.”