|To: John Bilorusky, 10:08 am, January 10, 2016 (and WISR Community):
OTHRP (Omaha Tribal Hstorical Research Project, Director and Founder, Dennis Hastings, and Assistant Director, Margery Coffey—both WISR PhD Alumni) Encourages Americans to Follow U.S. Supreme Court Case . . .
Walthill, Nebraska—On January 20th the Supreme Court of the United States held oral arguments in Nebraska vs. Parker (Docket #14-1406). This case is known locally as Pender vs. Omaha Tribe.
According to the U.S Supreme Court’s website, the two questions before the court in this case are:
In Solem v. Bartlett, the Court articulated a three-part analysis designed to evaluate whether a surplus land act may have resulted in a diminishment of a federal Indian reservation. See465 U.S. 463, 470-72 (1984). The Court found that the “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” are all relevant to determining whether diminishment has occurred.
The questions presented by the petition are:
1. Whether ambiguous evidence concerning the first two Solem factors necessarily forecloses any possibility that diminishment could be found on a de facto basis.
2. Whether the original boundaries of the Omaha Indian Reservation were diminished following passage of the Act of August 7, 1882.
Transcripts of the oral arguments are made available by the Supreme Court to the public the same day the arguments are presented. Recordings of the oral arguments are made available on Friday of the same week.
This case was originally brought before a local Federal District Court in Omaha, Nebraska by the Village of Pender in 2007 to challenge a decision by the Omaha Tribal Council to exercise its sovereign authority in levying a 10% tax on all liquor sales made within the exterior boundaries of their Reservation which were imposed upon the Omaha by the U.S. Government through an 1854 Treaty.
The Federal District Court judge deferred the case to the Omaha Tribal Court to exhaust all legal remedies in that jurisdiction before taking the case under consideration. In a 45 page decision the Tribal Court ruled in February, 2013 in favor of the Omaha, a decision then taken under advisement by the Federal District Court.
A year later in early 2014 the Federal District Court affirmed in even stronger legal language in a 49 page decision the judgment made by the lower tribal court, which prompted the State of Nebraska to intervene on behalf of the Village of Pender for appeal to a three judge panel of the Eight Circuit Federal Court of Appeals, situated in Kansas City, Missouri.
That appeal was made de novo, which means “as if the case were new.”
In a five page decision released in December, 2014 the three judge panel again ruled in favor of the Omaha, utilizing even stronger language than the District Court declaring how the previous court rulings were constructed “. . .in such a fashion that any additional analysis would only be unnecessary surplus.”
Nebraska and Pender then appealed to the full 11 judge panel of the Eighth Circuit, which declined without comment in February, 2015 to hear the case, setting up an appeal by the State of Nebraska/Pender to the Supreme Court, which accepted the case for review last October.
In their Petition to the Court, the State of Nebraska and the Village of Pender conclude:
For over 130 years, the people and businesses of the Pender, Nebraska area have developed justifiable expectations that their community was under the jurisdiction of the State of Nebraska. The lower courts’ decisions in this litigation destroyed that longstanding status quo and upset the public’s justifiable expectations. . . . Doing so, however, ignores this [Supreme] Court’s observations that “when an area is predominantly populated by non-Indians with only a few surviving pockets of Indian allotments, finding that the land remains Indian country seriously burdens the administration of state and local governments.” (emphasis added)
In response, the Omaha Tribe concludes:
At the heart of this Court’s diminishment doctrine is the basic proposition that deprivations of Indian sovereignty must come from congressional action. . .adopting Petitioners’ freeform theory of de facto diminishment would undercut Congress’ power to determine the boundaries of Indian reservations. . .[b]asing a reservation’s boundaries on ever-changing demographic trends, as opposed to laws fixed in the statute books. . .as reservation boundaries are defined clearly — which would not be the case under the expansive de facto diminishment doctrine Petitioners champion — state, local, tribal, and federal officials can work cooperatively to allocate and, where appropriate, share jurisdiction.
Those interested in following the case at the Supreme Court level may refer to the website of the American Bar Association, athttp://www.americanbar.org/publications/preview_home/2015_2016_briefs/14-1406.html, linked from the U.S. Supreme Courts website, for review of the primary and amicus briefs filed in this matter.
A fuller treatment of the entire case since the original filings in 2007 may be found at Turtle Talk, a website of the https://turtletalk.wordpress.com/, typing in the word “Pender” in the website search box, then clicking on the various entries concerning the case.
The Omaha Tribal Historical Research Project (OTHRP), the Official Cultural Authority of the Omaha Tribe of Nebraska and Iowa, played a key role in providing historical context for the legal arguments being presented to the court regarding whether “events that occurred after the passage of a surplus land Act” have relevance in this case. OTHRP’s views may be found at http://www.indianz.com/News/2014/016004.asp. A rewritten and shorter version is found at http://norfolkdailynews.com/blogs/pender-case-was-doomed/article_66287130-92bb-11e4-bb61-13fa22bb9c51.html.
Independent commentary on this case by a columnist for Indian Country Today may be found at http://indiancountrytodaymedianetwork.com/2015/12/19/judging-indian-character-nebraska-v-parker
OTHRP encourages all interested citizens of the United States and sovereign Native Nations alike to take advantage of our 21st technology in being able to readily access the key materials available online, and be a participant in history.
If you like, I can send you a copy of the briefs that have been filed.
Margery Coffey, PhD
Omaha Tribal Historical Research Project, Inc.
PO Box 279
Rosalie, NE 68055