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Supreme Court agrees to hear Omaha Reservation boundary case

Friday, October 2, 2015

From left: Omaha Tribe Vice Chair Adriana Saunsoci, Indian Health Service Director Robert McSwain and Omaha Tribe Chairman Vernon Miller in Washington, D.C., on September 22, 2015. Photo from Omaha Tribe

The U.S. Supreme Court added another Indian law case to its docket on Thursday, setting the stage for a term in which another tribal victory stands at risk of being overturned.

Against the wishes of the Obama administration, the justices granted a petition in Nebraska v. Parker. The high court will now determine whether the boundaries of the reservation of the Omaha Tribe of Nebraska have been diminished.

Additionally, the outcome will determine whether non-Indian businesses in the village of Pender must comply with the tribe's liquor laws and regulations. The small community of about 1,000 boasts at least seven bars and liquor stores and tax revenues from those establishments could help address health, safety and other impacts of alcohol on the reservation.

The tribe had won the case before the 8th Circuit Court of Appeals last December. A unanimous panel of three judge held that the boundaries of the reservation remain intact even though Congress opened a part of the tribe's land base to non-Indian settlers in 1882.

Indianz.Com SoundCloud: 8th Circuit Court of Appeals Oral Arguments in Smith v. Parker

If the Supreme Court overturns that decision, the tribe will have lost on two major fronts -- the size of its reservation and its ability to exercise jurisdiction over businesses there. Chairman Vernon Miller said he was disappointed to learn about the acceptance of the case.

"I’ve noted before this is an attack on all tribal sovereignty using tax dollars; not only of the people of Nebraska but, ironically, of our tribal members as well," Miller said in a press release yesterday. "Nevertheless, we are confident that the U.S. Supreme Court -- like the courts below -- will find that our reservation has never been diminished. We will continue to go against the current as usual.”

The granting of the petition does not necessarily signal one way or another whether the Supreme Court believes the 8th Circuit got it wrong. But it marks the second case in which a tribe's victory could be overruled by the justices during their October 2015 term. And it's the third Indian law case, so far, accepted by the high court.

The justices are already slated to hear Dollar General Corporation v. Mississippi Band of Choctaw Indians, another case that affects tribal jurisdiction. The outcome will determine whether Dollar General, a publicly-traded company with $17.5 billion in revenues can avoid the authority of the Mississippi Band of Choctaw Indians. The tribe had won at the 5th Circuit Court of Appeals.

A view of the U.S. Supreme Court. Photo by Indianz.Com

The last time tribal jurisdiction came before the high court didn't turn out so well for Indian Country. In Plains Commerce Bank v. Long from June 2008, the justices held that a non-Indian bank did not have to answer to a lawsuit filed by two members of the Cheyenne River Sioux Tribe despite having entered into a consensual agreement with the couple. The vote was 5 to 4 against tribal jurisdiction.

The last reservation diminishment case is even older. In South Dakota v. Yankton Sioux Tribe from January 1998, the court ruled that the reservation of the Yankton Sioux Tribe was diminished by an act of Congress in 1894. That holding was unanimous.

The Supreme Court is also going to hear Menominee Indian Tribe of Wisconsin v. US during its October term. The decision will determine how far back the Indian Health Service must go to pay tribes for contract support costs in self-determination contracts.

In that case, a reversal by the high court would benefit the Menominee Nation of Wisconsin. The Obama administration also supports review of a D.C. Circuit Court of Appeals decision that both the tribe and the Department of Justice believe conflicts with other rulings. It marks the third time in a decade that the Supreme Court will hear a contract support costs case.

A view of the Omaha Reservation in Nebraska. Photo from Omaha Tribe

Oral arguments for the three cases haven't been announced. The October 2015 term marks first time since the October 2010 term that more than one Indian law case will be heard by the Supreme Court, where tribes tend not to do so well.

For that reason, tribes and their advocates have been working hard to keep cases away from the court. The Tribal Supreme Court Project, a joint effort of the National Congress of American Indians and the Native American Rights Fund, appears to have been working, at least until now.

"We were winning at the Supreme Court more than we were losing at the Supreme Court," attorney Richard Guest of NARF said of the first few years of the project.

Since John G. Roberts took on the position of chief justice of the court in 2005, tribal interests have won just two cases and have lost nine, Guest told tribal leaders at NCAI's winter conference in Washington, D.C., in February. Up until 2012, tribes hadn't even won a single case, he added.