Brian Pierson: Recent federal court decisions affecting tribes

In Smith v. Nebraska (8th Cir. 2014), the Omaha Tribe attempted to enforce liquor licensing and taxation regulations against business owners in and near the Village of Pender. The Village and business owners sued, contending that the Tribe lacked jurisdiction. The district court denied the plaintiffs’ motion for summary judgment, concluding that Pender and the relevant areas involved in this action were located within the Omaha reservation and that an 1882 act of Congress did not diminish the reservation. According to the court the act did not clearly evince Congress’ intent to change reservation boundaries but rather reflected congress’ intent that “the United States intended to act as the Omaha Tribe’s sales agent for purposes of surveying auctioning its reservation land . . . with the proceeds held in trust in the United States Treasury for the benefit of members of the Omaha Tribe.” The Eight Circuit affirmed: “Based on our de novo review, we discern that the district court has thoughtfully, and accurately considered the evidence in light of the guideposts provided by the Supreme Court as well as this court.”

In Schaghticoke Tribal Nation v. Kent School Corp. Inc., 2014 WL 7011937 (2d. Cir. 2014), the Schaghticoke Tribal Nation (STN) had sued to assert a land claim based on the Indian Nonintercourse Act, 25 U.S.C. § 177, which prohibits the alienation of Indian land except by federal “treaty or convention entered into pursuant to the Constitution.” The court stayed the cases in 1999 to allow STN to complete the Department of the Interior’s (DOI) Part 83 federal acknowledgment. In 2005, DOI concluded that the STN did not meet all of the criteria for federal acknowledgement, a determination ultimately upheld by the Second Circuit. The district court in the land claims case then granted the defendants’ motion for judgment on the pleadings. The Second circuit affirmed, holding that (1) the plaintiff must be an Indian tribe to bring a claim under Section 177, (2) under the common law rule of Montoya v. United States, an Indian tribe is “a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory,” (3) under the federal acknowledgement regulations, a group must meet seven criteria to achieve acknowledgment, including that a “predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present,” and “the petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present,” (4) the DOI’s “creation of a structured administrative process to acknowledge ‘nonrecognized’ Indian tribes using uniform criteria, and its experience and expertise in applying these standards, has now made deference to the primary jurisdiction of the agency appropriate” and (5) the district court’s determination that STN was not “united in a community under one leadership or government” was appropriate in view of the DOI’s finding that STN had presented insufficient direct evidence of a distinct tribal community from 1920 to 1967 and after 1996, and of political authority over tribal members from 1801 to 1875 and after 1996.