Nebraska v. Parker - Oral Argument - January 20, 2016

Nebraska v. Parker

Media for Nebraska v. Parker

Audio Transcription for Opinion Announcement - March 22, 2016 in Nebraska v. Parker

Audio Transcription for Oral Argument - January 20, 2016 in Nebraska v. Parker

John G. Roberts, Jr.:

We'll hear argument first this morning in Case 14-1406, Nebraska v. Parker. Mr. Smith.

James D. Smith:

Mr. Chief Justice, and may it please the Court: For over a century, the following three things have been true in the disputed area. First, the non-Indian population has always been greater than 98 percent. Second, the Tribe never exercised jurisdiction. And third, by contrast, the State of Nebraska has governed the disputed area. The story of the disputed area is that of a land that long ago lost its Indian character, if it ever had any.

The three things I mentioned at the outset happened for a reason.

They happened because it was the -- or the intent of Congress in the context of the times of the 1882 Act that the disputed area would be diminished from the reservation.

Anthony M. Kennedy:

If I understand your position correctly, you're not asking us to overrule Solem?

James D. Smith:


No, Your Honor.

We are not asking you to overrule Solem.

In fact, what we are asking the Court to do is to imply -- apply the entire Solem rule and, in particular, the compelling third factor of the subsequent circumstances of the land's jurisdictional history.

As --

Ruth Bader Ginsburg:

From what -- from what you just said and from your brief, I gathered -- perhaps I was wrong -- that you are arguing for a de facto diminishment test; that is, you pointed out the area has been overwhelmingly populated by non-Indians and they -- they -- they haven't attempted before to exercise governing authority.

James D. Smith:

Your Honor, we think the de facto diminishment does fit within the third element of the Solem test, which is the subsequent circumstances of -- of after the enactment.

And so obviously we would not be opposed to the Court concluding and reaching this decision on the grounds of de facto diminishment. But we also think this case fits within this Court's precedent under Solem, which would involve -- in -- in our view, the third element of the test is particularly strong and compelling in this case, while in Solem, in that particular case, it was -- it was -- I guess I would call fairly easy to distinguish because, as Solem talks about as far as the events, what took place after the Act, the focus should be -- if 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.

Antonin Scalia:

It's a different Congress. I mean, to say, you know, a later Congress did thus and so, and therefore the earlier Congress, when it enacted a particular statute, must have diminished.

That doesn't make any sense.

James D. Smith:

It --

Antonin Scalia:

And -- and -- and moreover, if -- if the third factor is dispositive, as -- as you assert, you would not -- we would not need the -- the -- the de facto diminishment doctrine whereby, by a sort of, you know, adverse possession, a jurisdiction, whether it's Indians or -- or even a State that used to have a jurisdiction over a particular area has forfeited it by long-, long-accepted usage to the contrary. If -- if that is true and -- and if -- if the third factor is as important as you say, we would not need that doctrine.

We -- we would just find diminishment.

James D. Smith:

Well, and that would be consistent with the concept that, if a party just -- if they belatedly assert a claim to having sovereign authority over this, as in this case it's over a hundred and some years after the land was open for settlement, that -- there -- at least the Sherrill case, some of the principles in this case would be supportive of de facto diminishment.

Antonin Scalia:

As far as --

Ruth Bader Ginsburg:

That case didn't involve the -- the diminishment.

Diminishment was not an issue.

James D. Smith:

That -- that is true.

I -- I -- what I was referring to was the -- the principle at least decided in the case as far as a long-standing assumption of jurisdiction by the State over an area that is primarily non-Indian in -- in population land creates justifiable expectations, and if they did have any sovereignty over it, they had long since forfeited.

Antonin Scalia:

But that's not what you're arguing here.

I -- I -- I understand you're arguing diminishment, not -- not adverse possession, so to speak.

James D. Smith:

We are arguing that it's no longer part of the reservation.

We are not saying it -- Court could not find it under the de facto, but we do think the facts of this case does fit within Solem.

And if -- and if the Court applies the Solem test, the State should prevail in this case, which --

John G. Roberts, Jr.:

You don't -- the other side says you did not raise a City of Sherrill argument.