By Jared Miller
With arguments today in Nebraska v. Parker—an important reservation diminishment case—we still don’t know why the U.S. Supreme Court agreed to hear the case in the first place.
We may find a clue in the fact that ninety-nine percent of the people living on the allegedly diminished land are non-Indian, and federal courts increasingly focus on demographics to decide diminishment cases, according to a 2009 paper by scholar Charlene Koski. The Supreme Court could continue the trend with Parker, or perhaps even overhaul the diminishment analysis altogether.
The case was filed in 2007, after the Omaha Tribe adopted an ordinance regulating the sale of alcohol on the reservation, including a town of 1,300 called Pender, about 90 miles northwest of Omaha. Businesses in Pender took umbrage with the ordinance, which includes a tax on alcohol, and filed suit.
The legal issue in the case is whether Congress “diminished” the portion of the Omaha Indian Reservation where Pender now sits, when it adopted a “surplus property” Act in 1882.
Courts apply a three-prong test—first crafted in Solem v. Bartlett—to determine whether diminishment has occurred. 465 U.S. 463, 470 (1984). Courts consider:
1. Statutory language that purportedly shrinks a reservation, including whether Congress paid the tribe a fixed sum in the exchange for the land,
2. Legislative history, and
3. Subsequent treatment of the area and the pattern of settlement—i.e. whether people living on the land today are Native American.
The District Court here held that “[N]either the 1882 Act’s statutory language, the legislative history and circumstances surrounding the passage of the Act, nor the demographic history of the land . . . diminish the [reservation] boundaries.” The Court of Appeals affirmed.
The fact that a mere one percent of the Pender population is Indian may be enough to sway some Supreme Court justices, whose forebears have tended to blanch at the idea of Indians exercising jurisdiction over non-Indians. Even so, SCOTUS may be required to revamp the Solem analysis to justify overruling the appellate court.
That’s because Nebraska essentially stipulated to the first prong of the test, and the legislative history does not explicitly diminish the land. Demographics is the remaining battleground, and the Court would presumably need to emphasize that prong in order to overcome the first two.
In her 2009 paper, Koski wrote that: “[s]ince Solem, courts have consistently used demographics to find diminishment”—even though the Solem Court found demographics “the category deemed least probative by the Supreme Court.” The Supreme Court is now poised to take the trend to a new and dangerous level by potentially expanding the role of demographics in Parker.
A loss for the Omaha Tribe could trigger a spike in diminishment cases nationally and give non-Indians a better chance of winning them. It could eventually result in loss of reservation land. And tribes now exercising jurisdiction over non-Indians could lose the power to do so.
The upshot, it seems, is that we may know as soon as today why the Justices chose the case.
Jared Miller is an Associate at Galanda Broadman, in Seattle. His 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.