Over the opposition of the Department of Justice, the Supreme Court has granted the State of Nebraska’s petition for review of the Eighth Circuit’s decision in Smith v. Parker, 774 F.3d 1166 (8th Cir. 2014). The case arose from the Omaha Tribe’s attempt to enforce its 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. Applying the test established by the Supreme Court in Solem v. Bartlett, the district court denied the plaintiffs’ motion for summary judgment, concluding that Pender and the relevant areas involved were located within the Omaha reservation and that an 1882 act of Congress by which 50,000 acres were sold 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 and 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 focus of the State’s argument in the Supreme Court is clear from its petition. Nebraska complains that the district court based its decision on the ambiguity surrounding Congress’ intent in 1882 and the canon of construction requiring that ambiguities be resolved in tribes’ favor but failed to sufficiently consider whether a diminishment based on demographic factors and practical considerations (a “de facto” diminishment) had occurred. Citing the Supreme Court’s decisions in Hagen v. Utah and Oneida Tribe v. City of Sherrill, the 25-page petition makes seven references to the “justifiable expectations” of non-Indians and emphasizes the absence of trust land within the 50,000 tract and its 98-99 percent non-Indian population.