By Jared Miller
When the U.S. Supreme Court agreed to hear Nebraska v. Parker earlier this month, it created the real possibility of a new kind of land-grab in Indian country.
Nebraska is a reservation “diminishment” case in which the State of Nebraska has invited the Court to rework the three-factor Solem test, such that contemporary demographics play a much larger role in determining whether land is Indian country.
In other words, Nebraska wants the Court to decide whether a reservation has been diminished based largely on who lives there today—Indians or non-Indians. The current test emphasizes statutory language and legislative history, with demographics playing a minor role.
“Absent other plain and unambiguous evidence of a congressional intent, we never have relied upon contemporary demographic or jurisdictional considerations to find diminishment.” Hagen v. Utah, 510 U.S. 399, 440-41.
Nebraska centers on the village of Pender, Nebraska. In 1882 Congress opened part of the Omaha Indian Reservation for development, and settlers moved to the Pender area, on the west side of the reservation, beginning in 1884.
Fast forward to 2006. The Tribe amended its alcoholic beverage laws, incorporating a regulatory scheme and a ten-percent tax on alcohol sold on reservation lands. Soon after, the Tribe began trying to enforce the law against retailers in Pender, asserting that Pender is Indian country.
Individuals from Pender, and later the State of Nebraska, sued in federal court to block the regulations, and to show that Pender is on diminished land. The court ordered Nebraska to exhaust in the tribal court, which it did, unsuccessfully.
Back in federal court, Nebraska failed to convince the judge that the 1882 Act of Congress expressly diminished the reservation lands. The Eighth Circuit upheld the district court decision.
Nebraska now wants the Supreme Court to reverse, by focusing on Pender’s dominant demographic, non-Indians. Such a result would require SCOTUS to replace its own Solem diminishment test with a neo-terminationist “Nebraska” test, not to mention ignore its canon requiring courts to resolve questions about ambiguous statutes in favor of Indians.
If that happens, the downside for tribes could be substantial. Diminishment disputes like this one happen fairly frequently. Naturally, they tend to involve lands with substantial non-Indian populations, so tribes would begin to lose more often.
Meanwhile, states and towns could be expected to more aggressively litigate diminishment disputes, while tribes might become less willing to assert claims to their rightful lands. Creative lawyers might find even ways to re-litigate cases tribes have already won.
Tragically, more and more reservation lands would fall out of tribal control.
Jared Miller’s practice focuses on tribal court litigation and representing businesses and tribal governments in public affairs. Jared is licensed in more than a dozen tribal jurisdictions, where he litigates civil matters. He can be reached at (206) 919-5044 and jared@galandabroadman.com.
