By Lisa Soronen
“This land is your land, this land is my land.”
If a U.S. Supreme Court case ever needed a theme song—especially this theme song—it is Nebraska v. Parker.
What happened when land on an Indian reservation was opened to settlers? Did the land lose its reservation status? What if an Indian tribe tries to regulate a city now located on that land?
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 Nebraska v. Parker, when the Omaha Tribe tried to enforce its new alcoholic beverages tax in the Village of Pender, Neb., the village objected. It claimed it is not located on the Omaha Indian Reservation because Congress diminished the reservation in 1882. The 1882 Act allotted less than 1,000 out of 50,000 acres of the western portion of the reservation to tribe members; the remaining acres were sold to non-Indians.
The question in this case is when evidence concerning the first two Solem factors is ambiguous, as in this case, how should a court apply the third factor? Pender and Nebraska argue that the district court, affirmed by the 8th U.S. Circuit Court of Appeals, basically ignored the third factor—what happened after the act was passed.
Significant post-act evidence indicates the reservation was diminished. Most notably, Nebraska has assumed jurisdiction over this area. The tribe provides no utilities, health care or social services.
Pender and Nebraska acknowledge that the Supreme Court has explained that the third Solem factor is the “least compelling for a simple reason: Every surplus land Act necessarily resulted in a surge of non-Indian settlement and degraded the 'Indian character' of the reservation.”
But they argue that the western part of the reservation “never possessed any Indian character.” Since at least 1900, the non-Indian population in this area has been no less than 98 percent.
It is difficult to gauge the significance of this case. In terms of how often this issue comes up, Pender and Nebraska claim that two other federal circuit courts have misapplied Solem in the same way. Also, a village in Wisconsin filed an amicus brief arguing that it is in a similar dispute with the Oneida tribe.
In terms of what does a city have to lose if it is located on a reservation, according to Lyle Denniston of SCOTUSblog, that was the focus of the court’s oral argument. In his words, the justices “were decidedly more sympathetic to the tribe; they simply could not imagine the worst for the small town of Pender, Neb.”
Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.