Unanimous Supreme Court Upholds Omaha Tribe’s Reservation Boundaries — Issue Regarding Tribe’s Taxing Authority Left Open >>

March 25th, 2016

Unanimous Supreme Court Upholds Omaha Tribe’s Reservation Boundaries — Issue Regarding Tribe’s Taxing Authority Left Open

On Tuesday, March 22, 2016, a unanimous U.S. Supreme Court (8-0) issued its decision in Nebraska v. Parker, upholding the Omaha Tribe’s Reservation boundaries. While the ruling represents a huge win for Indian Country, the Court limited its opinion to the question of whether a federal law diminished the Reservation boundaries. The Court specifically noted that the question of the Omaha Tribe’s ability to regulate and tax non-Indians remains undecided.

Justice Clarence Thomas authored the unanimous decision, holding that the 1882 Act did not diminish the Omaha Reservation. The Court followed the principal developed in prior decisions that only Congress can alter the boundaries of an Indian reservation. The Court found that the Village and State failed to establish that the text of the 1882 Act showed congressional intent to diminish the Reservation.

Pender and Nebraska also argued in favor of de facto diminishment, claiming that legislative history of the 1882 Act, the fact that only 2% of Omaha tribal members have lived in the opened area since the early 20th century, and the fact that the Tribe until 2004 has not exercised regulatory authority over the lands — all argue in favor of de facto diminishment. The Court rejected these arguments, finding that the “subsequent demographic history cannot overcome [the] conclusion that Congress did not intend to diminish the Reservation in 1882.”

“These expectations alone, resulting from the Tribe’s failure to assert jurisdiction, cannot diminish reservation boundaries. Only Congress has the power to diminish a reservation. And though petitioners wish that Congress would have ‘spoken differently’ in 1882, ‘we cannot remake history.’”

As noted above, the Court limited its ruling to the Reservation boundaries and did not rule on the Tribe’s authority to tax non-Indians on Indian lands. “We express no view about whether equitable considerations of laches and acquiescence may curtail the Tribe’s power to tax the retailers of Pender in light of the Tribe’s century-long absence from the disputed lands.”

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