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Supreme Court hears Omaha Tribe reservation boundary dispute

Leaders of the Omaha Tribe of Nebraska stand in front of the U.S. Supreme Court on January 20, 2016, after oral arguments in Nebraska v. Parker. Photo form Facebook

The U.S. Supreme Court heard its third Indian law case on Wednesday and appeared skeptical of attempts to diminish the reservation of the Omaha Tribe of Nebraska.

During a one-hour hearing in Washington, D.C., the justices debated whether Congress intended to remove the village of Pender from the reservation when it opened up part of the tribe's land base to allotments. Some questioned whether diminishment was the true intent when the law at issue was passed in 1882.

"We do have pretty clear and settled law in this area with respect to diminishment, that we've said only Congress can diminish, that the idea is that we're supposed to look to congressional intent," Justice Elena Kagan said during arguments for Nebraska v. Parker.

Even Justice Antonin Scalia, who is typically hostile to tribal interests, expressed some doubts. He also underscored the importance of looking at Congressional intent at the time the law was passed.

Jeff Gilpin, a member of the Omaha Tribe, leads the opening prayer at the Lincoln Indian Center in Lincoln, Nebraska, where a sacred flame burns all day on January 20, 2016, to support the Omaha Tribe at the U.S. Supreme Court. The center is also holding a sweat to show solidarity with the tribe. Photo by Mechelle Sky Walker / Facebook

"To say, you know, a later Congress did thus and so, and therefore the earlier Congress -- when it enacted a particular statute, must have diminished -- that doesn't make any sense," Scalia said.

The Supreme Court's settled law on diminishment includes Solem v. Bartlett, a decision from 1984 that set the key principle that only Congress can change the boundaries of a reservation. When the statute isn't clear, courts may consider other circumstances to determine the character of the land at issue.

Relying on that precedent, a federal judge and the 8th Circuit Court of Appeals concluded that the 1882 law did not reduce the Omaha Reservation. But James D. Smith, the Solicitor General of Nebraska, argued that the mere presence of non-Indians in Pender calls for a "de facto diminishment" of the reservation.

"The story of the disputed area is land that long ago lost its Indian character, if it ever had any," Smith told the court. He claimed that the non-Indian population in Pender "has always been greater than 98 percent" although it dropped slightly to 95 percent in 2010, according to the
U.S. Census Bureau.

Members of the Omaha Tribe of Nebraska participate in Spiritual Ride on January 16, 2016. Photo from Facebook

At the same time, Smith appeared to concede a couple of significant points. He said the state is not asking the high court to overrule Solem, whose holdings were reaffirmed in Hagen v. Utah from 1994 and South Dakota v. Yankton Sioux Tribe from 1998, the last diminishment case heard by the justices.

And he seemed to struggle to explain why the state keeps bringing up an entirely different case -- City of Sherrill v. Oneida Indian Nation of New York. Diminishment was not an issue in the court's 2005 decision -- it instead focused on whether the Oneida Nation can assert sovereignty over ancestral territories without disrupting local municipalities that have been operating there for centuries.

Despite the differences, Smith argued that the Nebraska's case was similar because the village of Pender will experience a "huge disruption" if the Omaha Tribe asserts its liquor laws and regulations -- along with taxes -- in the small community. Some justices weren't buying that line of thinking.

"This tribe is awfully small," observed Justice Sonia Sotomayor, who also was concerned that the state didn't focus on Sherrill until the case reached the Supreme Court. "You think they are going to have the power to implement all of these things that you are fearful of?"

"They can't tax for it without the government's permission," Sotomayor added. "So how are they going to do all these, and why would they do all these horrible things?"

Members of the Omaha Tribe of Nebraska participate in Spiritual Ride on January 16, 2016. Photo from Facebook

Paul D. Clement, a former Solicitor General of the United States who is now in private practice, represented the tribe at the hearing. He honed in on the Congressional intent aspect of the case but also stressed that Sherrill appeared to be showing up rather late in the game.

"It's all well and good to cite the case, but that doesn't make it an independent argument," Clement told the justices.

Allon Kedem, an assistant to the Solicitor General at the Department of Justice shared argument time with the tribe. The case marked only his third before the high court but he went out of his way to explain the ramifications of a negative ruling for Indian Country.

"There are more than 300 federally­ recognized Indian reservations all throughout the United States," argued Kedem -- a former clerk for both Justice Kagan and Justice Anthony Kennedy, who is often a swing vote in close cases. "The single most unsettling thing that this court could do would be to suggest that the borders of those reservations depend not on what Congress said about them, but on shifting demographic patterns or who provides what services where."

In light of the importance of the case, the Omaha Tribe sent its entire council to the hearing. Tribal members also braved bitter temperatures on Saturday for a 21-mile Spiritual Ride from Macy, the location of Omaha headquarters, to Pender to assert their sovereignty on the reservation.

The village of Pender is on the western end of the reservation. Only about 1,000 people live there and the community was home to seven bars and liquor stores when the case was making its way through the lower courts. Not all of those businesses are in operation today.

Supreme Court Documents:
Oral Argument Transcript | Docket Sheet No. 14-1406 | Questions Presented | Hearing List: January 2016

8th Circuit Decision:
Smith v. Parker (December 19, 2014)

Federal Court Documents:
Status Report [Includes tribal court decision] | Court Order

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