Nebraska v. Parker

PETITIONER:State of Nebraska, et al.
RESPONDENT:Mitch Parker, et al.
LOCATION: Pender, Nebraska

DOCKET NO.: 14-1406
DECIDED BY: Roberts Court (2016- )
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 577 US (2016)
GRANTED: Oct 01, 2015
ARGUED: Jan 20, 2016
DECIDED: Mar 22, 2016

Paul D. Clement – for the private respondents
Allon Kedem – for the federal respondent
James D. Smith – for the petitioners

Facts of the case

Omaha Tribal members attempted to enforce liquor licenses and taxes on local venders and clubs selling alcoholic beverages in Pender, Nebraska. The plaintiffs, the owners of clubs and venues that sold alcoholic beverages in Pender, Nebraska, joined by the state of Nebraska, sued for injunctive relief and argued that they are not located on federally-recognized Indian reservation land and therefore were not under the jurisdiction of the Omaha Tribe. The plaintiffs and defendants cross-filed for summary judgment, and the trial court found in favor of the defendants. The trial court held that Pender, Nebraska, was under the jurisdiction of tribal law because the U.S. Senate’s passage of an 1882 Act that allowed the Omaha tribe to sell allotments of its tribal land did not diminish the tribal boundaries of jurisdiction. The U.S. Court of Appeals for the Eighth Circuit affirmed the lower court’s decision.


Did the passage of the 1882 Act diminish the original boundaries of the Omaha Indian Reservation?

Media for Nebraska v. Parker

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

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

John G. Roberts, Jr.:

Justice Thomas has the opinion of the Court this morning on case 14-1406, Nebraska versus Parker.

Clarence Thomas:

This case comes to us on Writ of Certiorari to United States Court of Appeals for the Eight Circuit.

We must decide whether the village of Pender, Nebraska and surrounding Thurston County, Nebraska are within the boundaries of the Omaha Indian Reservation, or whether Congress diminished those boundaries to exclude the disputed land in 1882.

An 1882 Act of Congress empowered the United States Secretary of Interior to survey, appraise and sell more than 50,000 acres of land on the western side of the tribe’s existing reservation.

The act provided that western settlers could purchase parcels not exceeding 160 acres and that proceeds from any sales would be deposited in the United States Treasury for the benefit of the tribe.

The act also allowed the tribe’s members to select their own individual allotments of reservation land which the members or their heirs would own in fee simple after the land was held in trust for 25 years.

A Western settler purchased a tract of land under the terms of the 1882 Act and established the Village of Pender.

The Omaha tribe was mostly absent from Pender until 2006 when the tribe amended its beverage control ordinance and sought to impose the ordinances, liquor taxes, and licensing fees in Pender.

Pender and Pender retailers brought this suit against the tribe to challenge the ordinance.

They alleged that Pender was outside the boundaries of the reservation, so the tribe had no power to impose the ordinance in Pender.

The State of Nebraska intervened on Pender’s behalf and the United States intervened on behalf of the tribe.

The district court granted summary judgment for the tribe after concluding that the 1882 Act did not diminish the reservation boundaries and plus the city was within the limits of the reservation.

The Eighth Circuit affirmed.

We granted the petition for certiorari and now affirm.

We hold that Congress did not diminish the reservation boundaries in 1882.

The framework we employ to determine whether an Indian reservation has been diminished is well settled.

We start with the statutory text which is the most probative evidence of diminishment.

We also examine all of the circumstances surrounding the opening of a reservation, including historical evidence indicating that the act was meant to diminish the reservation’s boundaries.

To a lesser extent we also examined the demographic history in the treatment of the disputed land after the Act was passed.

The text of the 1882 Act bore none of the hallmarks of diminishment.

Unlike earlier treaties between the tribe and the United States, the 1882 Act made no reference to ceding land for a fixed sum of money.

It instead stated that the disputed land would be open for settlement and that nonmembers could select 160 acre parcels for purchase.

The tribe’s profits were entirely dependent upon how many nonmembers purchased their individual parcels.

The 1882 Act did not diminish the boundaries but merely opened reservation land to settlement.

The history surrounding the passage of the 1882 Act confirms our conclusion that the act did not diminish the reservation.

The historical evidence relied upon by the parties in no way unequivocally reveals a widely held contemporaneous understanding that the affected reservation would shrink as a result the 1882 Act.

Likewise the changing demographics of the disputed land and the treatment of that land after the passage of the 1882 Act cannot overcome the text of the act.

To be sure the tribe has been absent from the disputed land for more than a century and federal and state government officials have sometimes but not always referred to the disputed lands as outside the reservation boundaries but never has this Court relied solely on the subsequent history to decide that Congress diminished a reservation.

Subsequent history cannot rewrite the text of the 1882 Act which evinces no intent to diminish.

For these reasons and others set forth in our opinion we affirm the judgment of the Eighth Circuit.

Clarence Thomas:

The opinion of the Court is unanimous.