SCOTUS Apparently Unmoved By Nebraska’s Arguments For Tribal Diminishment

By Jared Miller

Yesterday I warned that the U.S. Supreme Court might use Nebraska v. Parker to makeover its diminishment analysis in a way that harms tribes. 

Wednesday’s oral arguments in Parker suggest that may not be the case. 

The Justices seemed unpersuaded by Nebraska’s assertion that the sky will fall if the Omaha Tribe is allowed to assert some regulatory jurisdiction in Pender, Nebraska.

The case was filed in 2007, after the Tribe adopted an ordinance regulating the sale of alcohol on the reservation, including in Pender, a village of about 1,300, ninety-nine percent of whom are non-Indian.  Pender and the state of Nebraska filed suit. 

The legal issue is whether Congress changed the reservation boundary in a “surplus property” act in 1882, thereby carving Pender out of the reservation, or “diminishing” the reservation land where Pender now sits.

Nebraska Solicitor General James D. Smith struggled to identify any serious impact on non-Indians in Pender if the Tribe wins the case. 

When pressed, he eventually suggested the Tribe would have criminal jurisdiction over its members in Pender, and the dual jurisdiction might confuse law enforcement.

Justice Antonin Scalia, in response, pointed out that many towns with majority non-Indian populations are located on reservation land already.  “And . . . wouldn’t that be a problem in all of those, being that your have overlapping jurisdiction of Tribal police and municipal police?”

Smith also mentioned that non-Indians in Pender are not allowed to vote in Tribal Council elections, but the justices seemed unmoved. 

One attorney arguing on behalf of the Tribe, Paul D. Clement, suggested that little would change in Pender if the Tribe prevails, because “what eliminates the conflict is your Montana decision—[Montana v. United States, 450 U.S. 544 (1981)]—which substantially limits the Tribe’s authority of the non[Indians].” writer Lyle Denniston reported that the “tone and overall content of the argument was clear by the time the lawyer for the town and for Nebraska got up for a brief rebuttal, and his final plea to remember the expectations that the people of Pender have built up over more than a century ungoverned by their tribal neighbors.”

The Court is expected to rule this summer.


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.