Law | Opinion

Matthew Birkhold: Supreme Court to hear reservation dispute

Monday, December 21, 2015

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

Law student Matthew Birkhold offers a preview of Nebraska v. Parker, a reservation diminishment case affecting the Omaha Tribe of Nebraska that will be heard by the U.S. Supreme Court on January 20, 2016:

At issue in Nebraska v. Parker are the boundaries of the Omaha Indian Reservation. Specifically, the court will determine whether an 1882 Act of Congress “diminished” the size of the reservation. The Omaha Tribe of Nebraska argues that businesses in the Village of Pender are located on the reservation and are thus subject to the tribe’s jurisdiction and tax scheme. The retailers claim they are not located on the federally recognized Indian reservation due to the 1882 diminishment.
The courts developed the “diminishment doctrine” to determine whether reservations lost portions of their territory through various congressional acts. The doctrine requires courts to examine several factors, for instance, whether a congressional statement explicitly indicates an intent to change a reservation’s boundaries. The doctrine also requires courts to consider whether de facto diminishment has occurred. As the Supreme Court stated in Solem v. Bartlett (1984): “who actually moved into an opened reservation is also relevant to deciding whether [an] act diminished a reservation. Where non-Indian settlers flooded into the opened portion of a reservation and the area has long since lost its Indian character, we have acknowledged that de facto, if not de jure, diminishment may have occurred.” Because the Eighth Circuit failed to consider this factor in its analysis of Nebraska v. Parker, the Supreme Court has decided to hear the case. Accordingly, to determine whether the Omaha Tribe lost parts of its reservation, the Supreme Court in Nebraska v. Parker will judge the “Indian character” of the land. Sound familiar?
To prove that the disputed land is no longer part of the reservation, the retailers of the Village of Pender argue that the Omaha Tribe does not have an office in the disputed territory. They further contend that the tribe does not operate industry or business on the land, provide social services in the area, or even claim mineral rights to the land. In contrast, the Village of Pender explains that for 130 years the non-Indians in the disputed territory have “chosen to reside in the Pender, Nebraska area and build homes, schools, and churches, open businesses and raise families.” In other words: they are making use of the land; the Omaha Tribe is not. Moreover, non-Indians now comprise 98% of the population. The demographic data and lack of a perceived Omaha presence, the argument goes, indicates the land does not have an “Indian character.” In its brief to the Supreme Court the Village of Pender even goes so far as to claim that the disputed area has no history of Indian character.

Get the Story:
Matthew Birkhold: Judging ‘Indian Character’ in Nebraska v. Parker (Indian Country Today 12/19)

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