24 Mar Supreme Court Clarifies Standard for Determining Indian Reservation Diminishment
The American legal system is premised on overlapping jurisdiction as the federal, state, and local governments share authority. Adding Indian tribes into the mix complicates matters further as the Supreme Court’s decision in Nebraska v. Parker illustrates.
Three factors indicate an Indian reservation has been diminished and that state and local government have jurisdiction over the land. In Nebraska v. Parker the Court concluded the Omaha Indian Reservation hadn’t been diminished where only the third factor—how the land was treated once open to non-Indian settlers—indicated diminishment.
An 1882 Act of Congress allowed part of the Omaha Indian Reservation to be sold to non-Indian settlers with proceeds going to the tribe. Tribe members could also select tracts of land in the area sold—but few did. A settler bought the land the village of Pender is located on per the 1882 Act.
In 2006 the tribe sought to subject retailers in Pender to its newly amended Beverage Control Ordinance. The village, its retailers, and Nebraska sued the tribe claiming that the 1882 Act diminished the reservation and that the state and not the tribe had jurisdiction over the village.
In Solem v. Bartlett (1984) the Supreme Court articulated a three-part test to determine if a reservation has been diminished. Courts must look at “statutory language used to open the Indian lands,” “events surrounding the passage of a surplus land Act,” and “events that occurred after the passage of a surplus land Act.”
In this unanimous opinion written by Justice Thomas the Court had little trouble concluding that the first two factors—statutory language and history surrounding the passage of the Act—didn’t indicate diminishment. Regarding statutory language, “[t]he 1882 Act bore none of the hallmarks of diminishment.” Regarding history, some “cherry-picked” statements by legislators indicated diminishment but others did not. But more importantly, no “unambiguous evidence” indicated that in the negotiations between the tribe and the federal government that the tribe signaled that it understood its reservation was being diminished.
The Court acknowledged that the third factor—how the land was treated once open to non-Indian settlers—indicated diminishment. Only two percent of Omaha tribal members live on the disputed land and the tribe doesn’t enforce any of its regulations or offer any services on the disputed land. “But this Court has never relied solely on this third consideration to find diminishment.”
According to the Court: “[I]t is not our role to ‘rewrite’ the 1882 Act in light of this subsequent demographic history. After all, evidence of the changing demographics of disputed land is ‘the least compelling’ evidence in our diminishment analysis, for ‘[e]very surplus land Act necessarily resulted in a surge of non-Indian settlement and degraded the ‘Indian character’ of the reservation, yet we have repeatedly stated that not every surplus land Act diminished the affected reservation.’”