Nebraska v. Parker, 577 U.S. ___ (2016)




NOTE:?Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U.?S. 321 .


NEBRASKA et?al. v. PARKER et?al.

Certiorari to the United States Court of Appeals for the Eighth Circuit

No. 14?1406.?Argued January 20, 2016?Decided March 22, 2016


In 1854, the Omaha Tribe entered into a treaty with the United States agreeing to establish a 300,000-acre reservation and to ?cede? and ?forever relinquish all right and title to? its remaining land in present-day Nebraska for a fixed sum of money. In 1865, the Omaha Tribe again entered into a treaty with the United States agreeing to ?cede, sell, and convey? land for a fixed sum. When, in 1872, the Tribe sought to sell more of its land to the United States, Congress took a different tack. In lieu of a fixed-sum purchase, Congress authorized the Secretary of the Interior to survey, appraise, and sell tracts of reservation land to western settlers and to deposit any proceeds from the land sales in the U.?S. Treasury for the Tribe?s benefit. Congress took the same approach in 1882 when it passed the Act in question. That Act authorized the Secretary of the Interior to survey, appraise, and sell roughly 50,000 acres of reservation land lying west of a railroad right-of-way. W. E. Peebles purchased a tract under the terms of the 1882 Act and established the village of Pender.

In 2006, the Tribe amended its Beverage Control Ordinance and sought to subject Pender retailers to the amended ordinance. See 18 U.?S.?C. ?1161 (permitting tribes to regulate liquor sales on reservation land and in ?Indian country?). Pender and its retailers brought a suit against the Tribe in Federal District Court to challenge the ordinance, and the State intervened on their behalf. They alleged that they were not within the reservation boundaries or in Indian country and therefore could not be subject to the ordinance. They sought declaratory relief and a permanent injunction prohibiting the Tribe from asserting its jurisdiction over the disputed land. Concluding that the 1882 Act did not diminish the Omaha Reservation, the District Court denied relief, and the Eighth Circuit affirmed.

Held:?The 1882 Act did not diminish the Omaha Indian Reservation. Pp.?5?12.

(a)?Only Congress may diminish the boundaries of an Indian reservation, and its intent to do so must be clear. Solem v. Bartlett, 465 U.?S. 463 . This Court?s framework for determining whether an Indian reservation has been diminished is well settled and starts with the statutory text. Hagen v. Utah, 510 U.?S. 399 . Here, the 1882 Act bears none of the common textual indications that express such clear intent, e.g., ?[e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests? or ?an unconditional commitment from Congress to compensate the Indian tribe for its opened land,? Solem, supra, at 470. The Act?s language opening the land ?for settlement under such rules and regulations as [the Secretary] may prescribe,? 22Stat. 341, falls into a category of surplus land acts that ?merely opened reservation land to settlement,? DeCoteau v. District County Court for Tenth Judicial Dist., 420 U.?S. 425 . A comparison of the text of the 1854 and 1865 treaties, which unequivocally terminated the Tribe?s jurisdiction over its land, with the 1882 Act confirms this conclusion. Pp.?5?8.

(b)?In diminishment cases, this Court has also examined ?all the circumstances surrounding the opening of a reservation,? Hagen, supra, at 412, including the contemporaneous understanding of the Act?s effect on the reservation. Here, such historical evidence cannot overcome the text of the 1882 Act, which lacks any indication that Congress intended to diminish the reservation. Dueling remarks by legislators about the 1882 Act are far from the unequivocal evidence required in diminishment cases. Pp.?8?10.

(c)?Finally, and to a lesser extent, the Court may look to subsequent demographic history and subsequent treatment of the land by government officials. See Solem, supra, at 471?472. This Court has never relied solely on this third consideration to find diminishment, and the mixed record of subsequent treatment of the disputed land in this case cannot overcome the statutory text. Petitioners point to the Tribe?s absence from the disputed territory for more than 120 years, but this subsequent demographic history is the ?least compelling? evidence in the diminishment analysis. South Dakota v. Yankton Sioux Tribe, 522 U.?S. 329 . Likewise, evidence of the subsequent treatment of the disputed land by government officials has similarly limited value. And, while compelling, the justifiable expectations of the non-Indians living on the land cannot alone diminish reservation boundaries. Pp.?10?12.

(d) Because the parties have raised only the single question of diminishment, the Court expresses no view about whether equitable considerations of laches and acquiescence may curtail the Tribe?s power to tax the retailers of Pender. Cf. City of Sherrill v. Oneida Indian Nation of N. Y., 544 U. S. 197 ?221. P.?12.

774 F.?3d 1166, affirmed.

Thomas, J., delivered the opinion for a unanimous Court.