For an hour last week, the focus of the highest court in the United States was directed at a patch of land in Thurston County.
At stake in Nebraska v. Parker is the regulatory fate of about 50,000 acres of land west of an old railroad right of way that once passed by the east side of Pender and whether those acres have always been a part of the Omaha Indian Reservation or haven’t been since the land was first opened to non-Indian settlement in 1882.
At that time, the Omaha Tribe sold the acres to the federal government, and both Indians and non-Indians were able to choose allotments in the region. More than 98 percent of the land west of the right of way was settled by the latter, and the demographics have remained that way since. Further, the tribe has not attempted to exercise its sovereign authority west of the right of way — at least not until it attempted in 2006 to enforce a liquor ordinance, even on non-tribal members, with the blessing of the United States Department of the Interior.
The Supreme Court accepted the task of reviewing the case back in October and heard oral arguments on Wednesday, Jan. 20. Whether through existing case law or via a new precedent, the court has been charged with interpreting the intent of Congress in 1882 and deciding whether or not the reservation was diminished in size — or if the land act merely opened up settlement to non-Indians within unchanged boundaries of the reservation.
Arguing on behalf of the original liquor retailers in Pender, the village and the State of Nebraska was James D. Smith, Solicitor General of Nebraska.
Smith began his argument by emphasizing to the court that the “justifiable expectations” of the people living in Pender and those acres sold as part of that land act are that they are not living on a reservation and have not been for more than 130 years.
Pender’s case seeks a remedy through clarifying a 1984 Supreme Court case, Solem v. Bartlett, in which the court laid out a three-factor “test” that could advise courts on whether or not a reservation has been diminished.
The first factor is the statutory language of the surplus land act itself and whether or not it explicitly states that the reservation boundaries would change as a result of the agreement.
Nebraska concedes that on this point, such language is not clearly present.
However, on the other two Solem factors, Pender’s case is stronger. Those prongs deal with the events following the act, which reveal a vast majority of non-Indian settlement — greater than 98 percent — that did not change throughout the history of the area and a lack of regulatory authority exerted over the disputed area by the tribe until very recently.
Lower courts, including the Omaha Tribal Court, a federal district court in Lincoln and the 8th Circuit Court of Appeals, all held that the Solem test not move beyond the first factor.
“The story of the disputed area is land that long ago lost its Indian character, if it ever had any,” Smith said as he addressed the Court.
Justices repeatedly asked Smith to explain what the state — and citizens of Pender — stand to lose if the reservation does, in fact, retain the land within its borders.
Smith cited the liquor tax itself, which is permitted by the federal government. He also
mentioned the environmental regulation of land, patrols by tribal police that would be a stark change from past expectations of citizens, and the ambiguities associated with any future attempts by the tribe to regulate non-tribal members in ways that might affect the health and welfare of the tribe.
Justice Sonia Sotomayor questioned whether the Omaha Tribe would be capable of overtaking the services that the state already provides the area.
“This Tribe is awfully small. You think they are going to have the power to implement all of these things that you are fearful of? To do substitute services too, -- they can’t tax for it without the government’s permission. So how are they going to do all these, and why would they do all these horrible things?” Sotomayor asked.
Sotomayor then suggested that if the tribe were to exercise its authority in a way that is “harmful to settled expectations,” that there might be remedy in the Supreme Court case City of Sherrill v. Oneida Indian Nation of New York from 2005.
That case did not find that there was diminishment of a reservation, but instead determined that when state jurisdiction in an area that, like Pender, is distinctly non-Indian in character, that the tribe may not be able to impose its regulations.
An amicus brief filed on behalf of Pender Public Schools and the Village of Hobart, Wisc., which is also situated on a reservation, cited the City of Sherrill case as it described the burdens a state entity can endure within a reservation.
Numerous Justices, including Antonin Scalia, cited Sherrill multiple times during the oral arguments. While the state was arguing via the Solem test whether Pender is even on the reservation, the City of Sherrill approach suggests that another remedy to protect non-tribal members from tribal regulations might exist.
But, it was also pointed out, this was not the argument Nebraska was making. Smith suggested that, despite it not being the focus of the state’s case, it would make sense for the Supreme Court to weigh the City of Sherrill in its opinion.
“I think it’s perfectly reasonable for the Court to reach that conclusion with a land which, long ago, it lost its Indian character, long ago they’ve never exercised any sovereignty, and then show up after the public, the descendants, everyone who’s lived there, and after 130 years, you suddenly find out we’ve got an Indian Tribe that somehow has some governmental authority over us,” Smith said.
The Omaha Tribe was represented by its own private counsel, Paul D. Clement, as well as Allon Kedem, Assistant to the Solicitor General of the United States Department of Justice.
Each split time in front of the Court on the tribe’s behalf.
Clement asserted that the surplus land act in 1882 did not diminish the reservation but merely opened up part of it to settlement. He said the record reflects that a number of Indians took their allotments west of the right of way, and even straddling the right of way, and that if Congress intended to diminish the reservation, that option of settling on the western side would not have been available to them.
“If what Congress just did is draw a new western boundary to the reservation, it would have been very odd to allow tribal members to take their allotments off the reservation, and maybe odder still to allow them to take an allotment that essentially was bisected by the new boundary,” Clement said.
He also said that diminishment should not come as a result of “market reaction” to the land sale.
Kedem’s arguments centered on what the tribe can actually do to non-Indians within its boundaries — and he said it isn’t much.
He cited the example of the Bancroft-Rosalie school district, which includes one village clearly on the eastern “undisputed” side of the reservation (Rosalie) and one village split by the right of way (Bancroft), and he pointed out that it is a state entity with both tribal and non-tribal members.
Chief Justice John Roberts, Jr. pressed Kedem over whether or not the state would be obligated to provide school districts within reservation borders.
“So we’re going to spend our money for schools or whatever on the state, not on the reservation,” Roberts said, as an example of why the state would choose not to fund a district.
Kedem said he saw no reason why the state would not provide services to its own citizens, especially in an area like Pender that is 98 percent or more non-tribal.
“The State retains regulatory sovereignty to make laws with respect to its own citizens and nonmembers on a reservation. That’s true on the east side. It’s true on the west side,” Kedem said.
Kedem also told the Court that a ruling in favor of diminishment could have a ripple effect throughout the country and set a precedent that might undermine tribal sovereignty in other places.
“There are more than 300 federally-recognized Indian reservations all throughout the United States. The single most unsettling thing that this Court could do would be to suggest that the borders of those reservations depend not on what Congress said about them, but on shifting demographic patterns or who provides what services where,” Kedem said.
Smith, representing Nebraska, had four minutes remaining of his time near the end of the oral arguments. He spent the bulk of the time reminding the justices of the changes that would take place in Pender after 130 or more years of a lack of any tribal jurisdiction.
“To the people in Pender, this is a big deal. They care about this. They have expectations. It’s a big deal whether a tribe or -- Tribal Council has authority over us. We don’t get to vote for them. Their Constitution doesn’t even allow us to appear at their public meetings,” Smith said.
The court is anticipated to provide its opinion in June.
View a timeline of the liquor tax and boundary case here.