Petition for Writ of Certiorari — Nebrasks v. Parker, 136 S. Ct. 27 (2015) (No. 14-1406)
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In The
Supreme Court of the Anited States
SJ
STATE OF NEBRASKA
AND
VILLAGE OF PENDER, NEBRASKA,
Petitioners,
v.
MITCH PARKER
AND
UNITED STATES,
Respondents.
Sd
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit
SJ
PETITION FOR A WRIT OF CERTIORARI
SJ
DOUGLAS J. PETERSON
Nebraska Attorney General
BLAKE E. JOHNSON
Assistant Attorney General
Counsel of Record
RYAN S. Post
Assistant Attorney General
2115 State Capitol
Lincoln, Nebraska 68509
(402) 471-2682
blake.johnson@nebraska.gov
ryan.post@nebraska.gov
Attorneys for the State of Nebraska
[Additional Counsel Listed On Signature Page]
COCKLE LEGAL BRIEFS (800) 225-6964
WWW COCKLELEGALBRIEFS.COM
i
QUESTIONS PRESENTED
In Solem v. Bartlett, the Court articulated a
three-part analysis designed to evaluate whether a
surplus land act may have resulted in a diminish-
ment of a federal Indian reservation. See 465 U.S.
463, 470-72 (1984). The Court found that the “statu-
tory 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.
ii
PARTIES TO THE PROCEEDING
Petitioners are Richard M. Smith, Donna M.
Smith, Doug Schrieber, Susan Schrieber, Rodney A.
Heise, Thomas J. Welsh, Jay Lake, Julie Lake, Kevin
Brehmer, and Ron Brinkman (“Individual Peti-
tioners”); the Village of Pender, Nebraska (“Village
Petitioner”); and the State of Nebraska (“State Pe-
titioner”) (collectively “Petitioners”). The State of
Nebraska was Plaintiff-Intervenor in proceedings
before the United States District Court for the Dis-
trict of Nebraska and Appellant to the Eighth Circuit
Court of Appeals.
Respondents are Mitch Parker in his official
capacity as Chairman of the Omaha Tribal Council;
Barry Webster in his official capacity as Vice-
Chairman of the Omaha Tribal Council; Amen Sheri-
dan in his official capacity as Treasurer of the Omaha
Tribal Council; Rodney Morris in his official capacity
as Secretary of the Omaha Tribal Council; Orville
Cayou in his official capacity as member of the Omaha
Tribal Council; Eleanor Baxter in her official capacity
as member of the Omaha Tribal Council; Ansley
Griffin in his official capacity as member of the
Omaha Tribal Council and as the Omaha Tribe’s
Director of Liquor Control; and the United States.
The United States was Defendant-Intervenor in pro-
ceedings before the United States District Court for
the District of Nebraska and Appellee to the Eighth
Circuit Court of Appeals.
iil
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ...................c.c00eeeeeeees i
PARTIES TO THE PROCEEDING ...................... ii
TABLE OF AUTHORITIES ..................cccsssesceeeees Vv
ee Be iceccncinnnitnncsinienismeennnnisuvntitidinin 1
STATEMENT OF JURISDICTION ..................... 1
TREATIES AND STATUTES INVOLVED .......... 1
STATEMENT OF THE CASE........................0000008 2
I. Establishment of the Omaha _ Tribe’s
EEE ccinccnsnensercininsusinnitinntaansentiinaiiant 2
II. Sale of the Western Part of the Reserva-
SD icrcrvsesesencstnsinnussennieutinbigeniindiiiiininedeamiinniin 3
III. Establishment of the Village of Pender..... 7
IV. Enforcement of the Beverage Control
Ordinance and Subsequent Litigation ...... 8
REASONS FOR GRANTING THE PETITION... 10
I. The Analytical Framework........................ 10
II. The Eighth Circuit’s Decision ................... 16
FS eer renrenrenesenesseionenmeninninniininesiin 25
iv
TABLE OF CONTENTS - Continued
Page
PETITION APPENDIX TABLE OF CONTENTS
Smith v. Parker, 774 F.3d 1166 (8th Cir. 2014)....App. 1
Smith v. Parker, 996 F. Supp. 2d 815 (D. Neb.
eka ae App. 9
Smith v. Parker, 2015 U.S. App. LEXIS 3054
ee App. 80
Een App. 82
v
TABLE OF AUTHORITIES
Page
CASES
Carpenter v. Shaw, 280 U.S. 363 (1930).................... 11
DeCoteau v. District County Court, 420 U.S.
iin cietinaeliceacnehlieaeibeena cel iatieaiiatliciaimadia 14
Duncan Energy Co. v. Three Affiliated Tribes,
27 F.3d 1294 (8th Cir. 1994) ...0..........ccccccceceeeees 17, 24
Hagen v. Utah, 510 U.S. 399 (1994)......... 12, 16, 19, 20
Johnson v. United States, 163 F. 30 (1st Cir.
EEE REN eR Seger ee arene OSE DRan no ae 11
Mattz v. Arnett, 412 U.S. 481 (1973)................00.. 11, 17
Oneida Indian Nation of New York v. City of
Sherrill, 337 F.3d 139 (2d Cir. 2003)...................... 21
Osage Nation v. Irby, 597 F.3d 1117 (2010).......... 21, 24
Pittsburgh & Midway Coal Mining Co. v.
Yazzie, 909 F.2d 1387 (10th Cir. 1990) ................... 24
Rosebud Sioux Tribe v. Kneip, 430 U.S. 584
SET i Aasnsinisinciisepehipeieneldeieaiahaeiatnataaiiaite 11, 14, 21, 25
Seymour v. Superintendent of Washington State
Penitentiary, 368 U.S. 351 (1962)...................cee 17
Shawnee Tribe v. United States, 423 F.3d 1204
II ITT echt iarieinaih arieiaianaiaiaeneatiantiaael 12
Smith v. Parker, 996 F. Supp. 2d 815 (D. Neb.
Ihsan inmate 1
Smith v. Parker, 774 F.3d 1166 (8th Cir. 2014)........... 1
Smith v. Parker, 2015 U.S. App. LEXIS 3054
Gee GRE SPD crccncescunvecacensscsssssencensstansnssanesctessesveoment 1
vi
TABLE OF AUTHORITIES — Continued
Solem v. Bartlett, 465 U.S. 463 (1984)............... passim
South Dakota v. Yankton Sioux Tribe, 522 U.S.
Gee cnccncssennsssnsseccasesssssensenasnsemmmesnmnsenspmcsvennsse 11
United States v. Celestine, 215 U.S. 278 (1909)......... 11
Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010
SEUETIIIE, III scsiinmcistiicnanseiihdelabandichaniasitiiciisinatinnindel passim
1
OPINIONS BELOW
The opinion of the United States District Court
for the District of Nebraska is reported at Smith v.
Parker, 996 F.Supp. 2d 815 (D. Neb. 2014). The
opinion of the United States Court of Appeals for the
Eighth Circuit, is reported at Smith v. Parker, 774
F.3d 1166 (8th Cir. 2014) (rehearing en banc denied
by Smith v. Parker, 2015 U.S. App. LEXIS 3054 (8th
Cir. 2015)).
¢
STATEMENT OF JURISDICTION
The United States Court of Appeals for the
Eighth Circuit entered judgment on December 19,
2014. The Court of Appeals denied rehearing on
February 26, 2015. This Court has jurisdiction pur-
suant to 28 U.S.C. § 1254(1).
«
TREATIES AND STATUTES INVOLVED
Act of August 7, 1882 is set out in the appendix
at App. 82.
2
STATEMENT OF THE CASE
I. Establishment of the Omaha Tribe’s Res-
ervation
As the United States expanded westward, the
federal government entered into treaties with various
Native American Indian tribes for large land cessions,
leaving tribes with “reservations” on which they could
continue to live under the supervision of the federal
government. The Omaha Tribe of Nebraska (“Omaha”
or “Tribe”) “cede[d] to the United States all their
lands west of the Missouri River, and south of a line
drawn due west from a point in the centre of the main
channel....” under the Treaty of March 16, 1854
(“1854 Treaty”). (App. 19-20). Pursuant to the terms
of the 1854 Treaty, the Tribe selected a reservation of
300,000 acres within the ceded area in the Blackbird
Creek drainage basin (“Reservation”). (App. 20).
The Omaha entered into another treaty with the
United States on March 6, 1865 (“1865 Treaty”),
whereby the northern part of the Reservation was
ceded to the federal government for fifty-thousand
dollars ($50,000.00), which monies were to be ex-
pended for the Tribe’s benefit, creating the Winnebago
Reservation. (App. 20-21). The 1865 Treaty reduced
the size of the Reservation to approximately 202,000
acres and ordered the allotment of the land to indi-
vidual members of the Tribe. (App. 21). By March of
1871, the Tribe’s members had received certificates
for their allotments. (App. 21). All allotments taken
3
pursuant to the 1864 Treaty were in the eastern
portion of the Reservation. (App. 21).
Il. Sale of the Western Part of the Reservation
In August 1871, the Omaha Tribe, through its
designated federal agent, began petitioning Con-
_gress to enact legislation authorizing the sale of the
50,000 acres comprising the westernmost portion of
the Reservation in order to obtain additional financial
resources. (App. 22). Although the Tribe’s initial ef-
forts were unsuccessful, Congress eventually re-
sponded by enacting the Act of June 10, 1872 (“1872
Act”), providing for the separation and sale of 50,000
acres in the western part of the Reservation. (App.
22-23). However, the 1872 Act was largely unsuccess-
ful accomplishing the sale of only 300 acres. (App.
23).
On April 19, 1880, the Omaha Tribe granted the
Sioux City and Nebraska Railroad Company a right-
of-way through the Reservation (“Railroad right-of-
way”), beginning at the northern edge and generally
running southward along the Middle and Logan
creeks. (App. 20). Around that same period, drafts of
what would ultimately become the Act of August 7,
1882 (“1882 Act”) were being introduced and debated
in Congress. (App. 24-32). The 1882 Act was nearly
identical to the Act of 1872, both in its terms and
objectives. (App. 24-32). However, the Railroad right-
of-way now provided a clear demarcation of the
4
boundary-line west of which all land would be sold.
(App. 26; 29-30; 32).
The 1882 Act directed the conduct of a survey
and appraisal before the lands west of the Railroad
right-of-way could be opened for settlement and sale.
(App. 30-31). As a practical matter, the allotment
provisions of the 1882 Act also needed to be carried
out before any sale could be affected. (App. 33). The
allotment process under the 1882 Act concluded July
11, 1884, with 876 of the approximately 50,000 acres
west of the Railroad right-of-way being allotted to the
members of the Tribe. (App. 34). With the necessary
prerequisites accomplished, the General Land Office
opened 50,157 acres west of the Railroad right-of-way
for settlement by non-Indians on April 30, 1884. (App.
34).
By 1885, the federal Commissioner of Indian
Affairs was reporting that all lands lying west of the
Railroad right-of-way had been sold to non-Indian
settlers. (App. 34-37). Beginning in 1874, to the
extent they reported acreage for the whole Reserva-
tion, the Office of Indian Affairs annual reports no
longer recorded the 50,000 acres west of the Railroad
right-of-way as part of the Omaha Tribe’s Reserva-
tion. (App. 23; 34-37). Similarly, the Winnebago
Agency Annual Statistical Report for 1935 provides
the total area of the original Reservation was reduced
by 162,504.53 acres in light of three events, listing
the sale of 50,157.00 acres of land west of the Rail-
road right-of-way as one of such events. (App. 37).
5
The Office of Indian Affairs did not include the
land west of the railroad right-of-way as part of the
reservation in its reports of 1884, 1888, 1898, 1900,
1906, 1909, or 1911. (App. 36-37). Confirming at the
local level what the Commissioner of Indian Affairs
had previously indicated, Omaha and Winnebago
Agent George Wilson described results of the 1882
Act as follows: “The Omahas have reduced their
reservation by selling 50,000 acres, west of the Sioux
City and Omaha Railroad, to actual settlers, and
have taken allotments on the remainder.” (App. 34-
35). And in 1901 a “local authority,” Indian Agent
Charles Mathewson reported, “The Chicago, St. Paul,
Minneapolis and Omaha Railway passes through the
Winnebago Reservation on the west and form the
southwestern boundary of the Omaha Reservation.”
(App. 37).
A series of maps of the Omaha Reservation also
suggest that diminishment occurred as a result of the
1882 Act. In 1883, a map of Indian reservations,
compiled under the direction of Hiram Price, Com-
missioner of Indian Affairs, indicated that the bound-
aries of the Omaha Reservation did not extend west
of the railroad right-of-way. In 1888, a new map of
Indian reservations was “compiled from official and
authentic sources, under the direction of the Hon.
JNO. H. Oberly, Commissioner of Indian Affairs.”
Similarly, an 1892 map of Indian reservations “com-
piled under the direction of Hon. T.J. Morgan, Com-
missioner of Indian Affairs,” indicated that the
6
boundaries of the Omaha Reservation did not extend
west of the railroad right-of-way.
Congress authorized the Secretary of the Interior,
with the consent of the Omaha Tribe, to extend the
non-Indian settler’s payment period on multiple
occasions. (App. 35). The 1888 extension directed the
Secretary of the Interior to declare certain purchas-
er’s tracts forfeited due to default on payment. (App.
35). Upon forfeiture, a settler’s tract was to be sold at
public auction to the highest bidder. (App. 35).
On January 31, 1924, a letter was sent by a
delegation from the Omaha Tribe inquiring of the
Commissioner for Indian Affairs how much land west
of the Railroad right-of-way had been sold, the total
amount paid therefor, and whether those monies had
been allocated to the Omaha Tribe. (App. 37). The
Commissioner’s written response only provides that:
1) 50,157.24 acres were opened for homestead entry;
2) that public sales were held in accordance with the
terms of the Acts of August 7, 1882, March 3, 1883,
and section 3 of the Act of May 15, 1888; and 3) “all
the moneys for which the lands were sold have been
paid.” (App. 37).
Section 8 of the 1882 Act provided that any
“residue” lands lying east of the Railroad right-of-way
were to be patented to the Tribe in common and held
in trust by the federal government. (App. 32). While
some of the approximately 800 post-1882 Act allot-
ments were made adjacent to, but east of, the Rail-
road right-of-way, no new allotments were made west
7
of that demarcation line. (App. 36). By 1919, all lands
allotted to Omaha Tribe members west of the Rail-
road right-of-way had been patented in fee simple;
thus, no trust land remained west of the demarcation
line. (App. 36).
Ill. Establishment of Village of Pender
According to the Commissioner of Indian Affairs
report in 1884, non-Indian settlers immediately
occupied the land west of the Railroad right-of-way
upon its opening. (App. 34). One settler, W.E. Peebles,
then engaged in the town of Oakland, Nebraska,
decided to dispose of his mercantile interests and
purchased a 160-tract of land near the Railroad right-
of-way. (App. 38). Peebles deeded a tract to the Rail-
road to erect a depot and platted a townsite on the
remaining acres to found the city of Pender. (App. 38).
Lots within the townsite were sold on April 7, 1885.
(App. 38). Soon, Pender became the county seat of
Thurston County, Nebraska, which encompasses the
Omaha and Winnebago Tribe’s Reservations. Availa-
ble data from the U.S. Census Bureau for the rele-
vant townships in Thurston and Cuming Counties
indicates that, since at least 1900, the non-Indian
population west of the Railroad right-of-way has
ranged from 98.18% to 99.95%. (App. 38).
8
IV. Enforcement of the Beverage Control
Ordinance and Subsequent Litigation
On February 28, 2006, the Secretary of the
Interior approved amendments to Title 8 of the
Omaha Tribal Code, promulgating the Beverage
Control Ordinance (“Ordinance”). (App. 16). The
Ordinance “govern(s] the sale, possession and distri-
bution of alcohol within the Omaha Tribe’s Indian
Reservation” by imposing a licensing scheme and a
10% sales tax on the purchase of alcoholic beverages
from any licensee. (App. 16). Efforts to enforce the
Ordinance against Individual Petitioners began
shortly after its promulgation. (App. 17-18).
Individual Petitioners received application forms
and requests to remit the ten-percent tax in the mail
from the Tribe. (App. 17-18). When no response was
forthcoming, the Tribe sent a second notice to Indi-
vidual Petitioners informing them that they were
subject to the Omaha Tribal Code and subject to fines
up to $10,000.00 per violation. (App. 18). The United
States District Court for the District of Nebraska,
pursuant to 28 U.S.C. § 1331, granted Individual
Petitioners a temporary restraining order against the
enforcement of the Ordinance on April 17, 2007. (App.
18). The District Court stayed further proceedings
pending exhaustion of review by the Omaha Tribal
Court. (App. 18-19). Individual Petitioners filed an
action in the Omaha Tribal Court seeking a declara-
tion as to whether Pender, Nebraska lay within the
boundaries of the Omaha Indian Reservation and an
injunction against any future enforcement of the
9
Ordinance. (App. 19). On cross-motions for summary
judgment, the Omaha Tribal Court determined that
the original boundaries of the Reservation had not
been diminished. (App. 19).
Proceedings resumed before the federal District
Court wherein de novo review was conducted as to
the question whether the Omaha Indian Reservation
was diminished following the 1882 Act such that
Pender, Nebraska was no longer within its borders.
(App. 12). State Petitioner intervened making the
broader assertion that the Reservation had been
diminished as to the entire area west of the Railroad
right-of-way. (App. 45-47). The United States inter-
vened in support of the Omaha Tribe. (App. 45-47).
The District Court ruled in favor of the Tribe on
cross-motions for summary judgment. (App. 77-79).
The District Court held that ambiguous evidence
regarding the first two Solem factors — statutory
language and legislative history — necessarily fore-
closed any possibility that diminishment would be
found on a de facto basis. (App. 68; 76). Petitioners
appealed to the United States Court of Appeals for
the Eighth Circuit. (App. 1). The Eighth Circuit
issued a panel opinion on December 14, 2014, affirm-
ing the judgment of the District Court. (App. 1-8). The
panel determined that the “(district] court carefully
reviewed the relevant legislative history, contemporary
historical context, subsequent congressional and
administrative references to the reservation, and
demographic trends, and did so in such a fashion that
any additional analysis would only be unnecessary
10
surplus.” (App. 7). Petitioners were denied rehearing
en banc. (App. 80-81).
SJ
REASONS FOR GRANTING THE PETITION
The Court has established a “fairly clean analyti-
cal structure” to evaluate the potentially diminishing
impact surplus land acts of the late 1800’s and early
1900’s had on the boundaries of federal Indian reser-
vations. The Eighth Circuit’s decision presents an
apparent conflict with the Court’s diminishment
jurisprudence insofar as it precludes proper consider-
ation of one of the three factors articulated in Solem —
the jurisdictional history and subsequent treatment
of the area. The failure to properly consider the third
Solem factor, lead the Eighth Circuit to conclude that
the Omaha Tribe’s Reservation had not been dimin-
ished by the Act of 1882, thus undermining the justi-
fiable expectations of the Pender area residents. The
impacts stemming from mistreatment of the third
Solem factor are not limited to the circumstances
experienced in Pender, Nebraska — at least two of the
federal Circuit Courts have made the same analytical
error in prior decisions not reviewed by this Court.
I. The Analytical Framework
“As a doctrinal matter, the States have jurisdic-
tion over unallotted opened lands if the applicable
surplus land Act freed that land of its reservation
status and thereby diminished the reservation
11
boundaries.” Solem v. Bartlett, 465 U.S. 463, 467
(1984). “[WJhen Congress has once established a
reservation all tracts included within it remain a part
of the reservation until separated therefrom by
Congress.” United States v. Celestine, 215 U.S. 278,
285 (1909). Accordingly, the “touchstone to determine
whether a given statute diminished or retained
reservation boundaries is congressional purposes.”
South Dakota v. Yankton Sioux Tribe, 522 U.S. 329,
344 (1998). Of course, “it is settled law that some
surplus land Acts diminished reservations and other
surplus land Acts did not.” Solem, 465 U.S. at 469.
“The mere fact that a reservation has been opened to
settlement does not necessarily mean that the opened
area has lost its reservation status.” Rosebud Sioux
Tribe v. Kneip, 430 U.S. 584, 586-87 (1977). “A con-
gressional determination to terminate must be ex-
pressed on the face of the Act or be clear from the
surrounding circumstances and legislative history.”
Mattz v. Arnett, 412 U.S. 481, 505 (1973). Courts are
cautioned to follow the general rule that “[djoubtful
expressions are to be resolved in favor of the weak
and defenseless people who are the wards of the
nation, dependent upon its protection and good faith.”
Carpenter v. Shaw, 280 U.S. 363, 367 (1930). Howev-
er, “we are not free to say to Congress: ‘[wJe see what
you are driving at, but you have not said it, and
therefore we shall go on as before.’” Rosebud, 430
U.S. at 597 (quoting Johnson v. United States, 163 F.
30, 32 (1st Cir. 1908)).
“‘Diminishment commonly refers to the reduction
in size of a reservation. A finding of diminishment
12
generally suggests that a discrete, easily identifiable
parcel of land has been removed from reservation
status.’” (App. 12) (citing Yankton Sioux Tribe v.
Gaffey, 188 F.3d 1010, 1017 (8th Cir. 1999)). The
issue presented to the Eighth Circuit involved the
removal of the parcel west of the Railroad right-of-
way from reservation status. (App. 3).
“In determining whether a reservation has been
diminished, [the Court’s] precedents in the area have
established a fairly clean analytical structure, direct-
ing [courts] to look to three factors.” Hagen v. Utah,
510 U.S. 399, 410-11 (1994) (emphasis added) (cit-
ing Solem, 465 U.S. at 470). The Solem Court articu-
lated the three-part analysis courts use to evaluate
whether a surplus land act may have diminished the
original boundaries of a federal Indian reservation.
See 465 U.S. at 470-72 (holding 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 in determining whether
diminishment occurred). The doctrine of “de facto
diminishment” arises from a court’s consideration of
the third Solem factor — events occurring after pas-
sage of a surplus land Act. Jd. at 471-72.
With respect to the first Solem factor — statutory
language — it has been noted that “[uJltimately, no
magic words are required as prerequisites for finding
reservation boundaries have been altered.” Shawnee
Tribe v. United States, 423 F.3d 1204, 1222 (10th Cir.
2005) (referencing Solem, 465 U.S. at 471) (finding
13
that “explicit language of cession and unconditional
compensation are not prerequisites for a finding of
diminishment.”). The Court has observed that the
“most probative evidence of congressional intent is
the statutory language used to open the Indian
lands.” Solem, 465 U.S. at 470. At the same time, a
court’s ability rely on express statutory language to
discern the intended effect of the Act of 1882 is
viewed as limited because
... the surplus land Acts themselves seldom
detail whether opened lands retained reser-
vation status or were divested of all Indian
interests. When the surplus land Acts were
passed, the distinction seemed unimportant.
The notion that reservation status of Indian
lands might not be coextensive with tribal
ownership was unfamiliar at the turn of the
century.
Solem, 465 U.S. at 468.
Indeed, the Court has noted that the diminish-
ment
... inquiry is informed by the understand-
ing that, at the turn of this century, Congress
did not view the distinction between acquir-
ing Indian property and assuming jurisdic-
tion over Indian territory as a critical one, in
part because the notion that reservation sta-
tus of Indian lands might not be coextensive
with tribal ownership was unfamiliar ...
[and] Congress assumed that the reservation
system would fade over time. Given this
expectation, Congress naturally failed to be
14
meticulous in clarifying whether a particular
piece of legislation formally sliced a certain
parcel of land off one reservation.
Yankton Sioux Tribe, 522 U.S. at 343 (internal cita-
tions omitted).
With respect to the second factor — legislative
history — the Solem Court explained that
When events surrounding the passage of a
surplus land Act — particularly the manner
in which the transaction was negotiated
with the tribes involved and the tenor of
legislative Reports presented to Congress —
unequivocally reveal a widely held, contem-
poraneous understanding that the affected
reservation would shrink as a result of the
proposed legislation, we have been willing
to infer that Congress shared the under-
standing that its action would diminish the
reservation, notwithstanding the presence
of statutory language that would otherwise
suggest reservation boundaries remained un-
changed.
Solem, 465 U.S. at 471.
In addition to the potential impact of statutory
language and legislative history, the Court considers
whether the treatment of the area following the
opening of an Indian reservation to non-Indian set-
tlement may result in de facto diminishment of the
reservation’s original boundaries. See, e.g., DeCoteau
v. District County Court, 420 U.S. 425, 428 (1975);
Rosebud Sioux Tribe, 430 U.S. at 588 n.3 and 604-05;
15
Solem, 465 U.S. at 472. See also Yankton Sioux Tribe,
522 U.S. at 356-57 (the Court’s most recent pro-
nouncement on the diminishment inquiry wherein
the possibility of de facto diminishment was reassert-
ed in a unanimous opinion).
The nature of de facto diminishment is thus
described by the Court:
On a more pragmatic level, we have recog-
nized that who actually moved onto opened
reservation lands is also relevant to deciding
whether a surplus land Act diminished a res-
ervation. Where non-Indian settlers flooded
into the opened portion of a reservation and
the area has long since lost its Indian char-
acter, we have acknowledged that de facto, if
not de jure, diminishment may have oc-
curred.
In addition to the obvious practical ad-
vantages of acquiescing to de facto dimin-
ishment, we look to the subsequent
demographic history of the opened lands as
one additional clue as to what Congress ex-
pected would happen once land on a particu-
lar reservation was opened to non-Indian
settlers.
When an area is predominately populated by
non-Indians with only a few surviving pock-
ets of Indian allotments, finding that the
land remains Indian country seriously bur-
dens the administration of state and local
governments.
16
Resort to subsequent demographic history is,
of course, an unorthodox and potentially un-
reliable method of statutory interpretation.
However, in the area of surplus land Acts,
where various factors kept Congress from
focusing on the diminishment issue, the
technique is a necessary expedient.
Solem, 465 U.S. at 471-72 n.12 & 13 (internal cita-
tions omitted).
Notably, the Court expressly declined a past
proposal by the United States Solicitor General to
exclude the second and third Solem factors and
instead rely solely upon a “clear statement rule,”
instead electing to continue to “examine all the cir-
cumstances surrounding the opening of a reserva-
tion.” Hagen, 510 U.S. at 412. There is nothing in the
Court’s diminishment jurisprudence which suggests
that the third Solem factor is without influence when
a court is presented with ambiguous evidence con-
cerning the first two factors. Regardless, the Eighth
Circuit precluded any meaningful consideration of the
third Solem factor by limiting its value to the dimin-
ishment analysis in a manner that conflicts with the
Court’s precedent.
II. The Eighth Circuit’s Decision
The Eighth Circuit’s finding that ambiguity
concerning the first two Solem factors - statutory
language and legislative history — creates a conclu-
sive presumption of non-diminishment not subject to
17
rebuttal by evidence concerning the third Solem
factor is in apparent conflict with the Court’s prece-
dent regarding the potential for de facto diminish-
ment. Despite its authority to conduct a de novo
review of the District Court’s findings, the Eighth
Circuit adopted wholesale the lower court’s analysis
simply observing that “any additional analysis would
only be unnecessary surplus.” (App. 7). However,
additional analysis was necessary.
With respect to the first Solem factor, the District
Court found that the 1882 Act contained neither any
hallmark language evincing diminishment or any of
the commonly-identified provisions indicating Con-
gress intent that reservation status should be main-
tained. (App. 55-62); see, e.g., Mattz, 412 U.S. at 494
(reserving from settlement tracts upon which any
Indian Village currently sits); Seymour v. Superin-
tendent of Washington State Penitentiary, 368 U.S.
351, 354 (1962) (excluding from allotment and set-
tlement land reserved for Indian school, agency, or
other purposes); Solem, 465 U.S. at 464 (granting
authority to reserve land for agency, schools, or
religious purposes); Duncan Energy Co. v. Three
Affiliated Tribes, 27 F.3d 1294, 1297 (8th Cir. 1994)
(reserving timber and coa) rights in opened land).
As to the second Solem factor — legislative history
and the historical context surrounding the passage of
the Act of 1882 — the District Court found that “the
only thing that can be said with certainty is that
Congress understood that the stated purpose of the
legislation at issue was ‘to sell this land and get it
18
into cultivation, and the object of the Indians is to get
the money and have it put in trust for them here in
Washington where they can draw their interest.’”
(App. 62-69). This finding reflects the widely-held
notion regarding the fate of the reservation system
that led Congress to fail “to be meticulous in clarify-
ing whether a particular piece of legislation formally
sliced a certain parcel of land off one reservation.”
Yankton Sioux Tribe, 522 U.S. at 343. As with the
first Solem factor, the Eighth Circuit was presented
with ambiguous evidence concerning the second
factor. (App. 63-64) (“The congressional debate indi-
cates both an intent to ‘sell off from this reservation
..- 50,000 acres in a block on the western side of it,’
but also an intent to honor an existing treaty which
allowed ‘any Indian to go upon any part of the whole
reservation and occupy’ the land.”) (emphasis in
original).
Faced with ambiguity regarding the first two
Solem factors, the District Court held that because
“both the language in the 1882 Act and its legislative
history ‘fail to provide substantial and compelling
evidence of a congressional intention to diminish the
Indian lands [it was] bound by our traditional solici-
tude for the Indian tribes to rule that diminishment
did not take place and that the old reservation
boundaries survived the opening.’” (App. 68). To be
sure, the District Court provided some discussion of
the subsequent treatment of the area and pattern of
settlement. (App. 69-76). However, the District Court
improperly limited the impact of the third Solem
19
factor finding that “/ejven if this demographic evi-
dence did establish diminishment, it cannot overcome
my conclusion that the language of the 1882 Act itself
does not clearly evince Congress’ intent to diminish the
Omaha Reservation.” (App. 76) (emphasis added).
Rather than examining all the circumstances
surrounding the opening of the Omaha Tribe’s Reser-
vation, first in an effort to discern Congressional
intent and then to determine whether a de facto
diminishment had occurred, the Eighth Circuit
improperly created a conclusive presumption of non-
diminishment in light of the ambiguous evidence
regarding statutory language and legislative history.
See Solem, 465 U.S. at 481 (observing that “[nJeither
the [Act], the circumstances surrounding its passage,
nor the subsequent events clearly establish” dimin-
ishment). The Eighth Circuit’s decision effectively
reads the de facto diminishment doctrine out of
federal jurisprudence.
Proper consideration of the demographic and
jurisdictional history of the area west of the Railroad
right-of-way necessitates a finding of diminishment.
“[A] contrary conclusion would seriously disrupt the
justifiable expectations of the people living in the
area.” Hagen, 510 U.S. at 421. The Court has ex-
plained 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. .. .” Yankton Sioux Tribe, 522 U.S. at 356
(emphasis added). However, the “Indian character” of
20
the area west of the Railroad right-of-way has not
gradually diminished over time as has often occurred
in other cases where the Court considered the possi-
bility of de facto diminishment. See id. (observing
that “the Yankton population in the region promptly
and drastically declined after the 1894 Act ... [such
that] non-Indians constitute two thirds of popula-
tion.”) (emphasis added). See also Hagen, 510 U.S. at
421 (observing that the “current population of the
area is approximately 85 percent non-Indian.”);
Solem, 465 U.S. at 480 (observing that “[mlJost of the
members of the Tribe obtained individual allotments
on the lands opened by the Act” and that the “strong
tribal presence in the opened area has continued
until the present day”).
Rather, the record demonstrates that the area
west of the Railroad right-of-way never possessed any
Indian character. According to the Commissioner of
Indian Affairs report in 1884, non-Indian settlers
“immediately occupied” the land west of the Railroad
right-of-way upon its opening. (App. 34-37). Lots in
the tract of land dedicated to establish a townsite for
the city of Pender were sold on April 7, 1885. (App.
38). Available data from the U.S. Census Bureau for
the relevant townships in Thurston and Cuming
Counties indicates that, since at least 1900, the non-
Indian population west of the Railroad right-of-way
has ranged from 98.18% to 99.95%. (App. 38).
Even when “subsequent jurisdictional history is
not entirely clear, the single most salient fact is the
unquestioned actual assumption of state jurisdiction
21
over the unallotted lands... .” Rosebud, 430 U.S. at
675 (internal citation omitted). “The longstanding
assumption of jurisdiction by the State over an area
that is over 90% non-Indian, both in population and
in land use, not only demonstrates the parties’ under-
standing of the meaning of the Act, but has created
justifiable expectations which should not be upset by
so strained a reading of the Acts of Congress as
petitioner urges.” Jd. at 676. See also Osage Nation v.
Irby, 597 F.3d 1117, 1127-28 (2010) (citing Oneida
Indian Nation of New York v. City of Sherrill, 337
F.3d 139 (2d Cir. 2003) (“‘the longstanding assump-
tion of jurisdiction by the State over an area that is
[predominately] non-Indian, both in population and
in land use, may create justifiable expectations’ that
‘merit heavy weight.’”)).
The present appeal arose from litigation initiat-
ed, not by the Omaha Tribe, but by longtime business
owners from the Village of Pender who found them-
selves subject to Tribal taxation for the first time in
2006. (App. 17-18). Up until that time, these business
owners were licensed by, and subject to the taxation
of, the State of Nebraska. (App. 15). In fact, the
Tribe’s governmental presence in the area west of the
Railroad right-of-way has been virtually non-existent.
(App. 47-48). Apart from the Tribe’s 2006 effort to
impose the Beverage Control Ordinance, there is no
evidence in the record that the Omaha Tribe has
attempted to enforce tribal ordinances west of the
Railroad right-of-way. (App. 47-48). Nor has the Tribe
22
provided any utilities, health care, or social services
west of the Railroad right-of-way. (App. 47-48).
The Field Solicitor for the Department of the
Interior (“Field Solicitor”) issued a formal written
opinion on June 27, 1989, addressing the location of
the western boundary of the Omaha Tribe’s Reserva-
tion to facilitate a survey to be conducted by the
Bureau of Land Management. (App. 42-43). The
Department of the Interior’s official position in 1989
was that the Reservation had been diminished to
exclude the area west of the Railroad right-of-way.
(App. 42-43). Following commencement of legal
proceedings below, the Great Plains Regional Director
for the Bureau of Indian Affairs requested legal
support from the Deputy Solicitor of the Department
of the Interior (“Deputy Solicitor”). (App. 42-44). The
Deputy Solicitor considered the letter to “implicitly
request| ] reconsideration of the 1989 opinion issued
by [the Solicitor’s Office].” (App. 42-44). The Deputy
Solicitor the revised the Department’s opinion citing
“recent developments in diminishment jurisprudence”
restricted dissemination of the document labeling it
“Attorney Work Product.” On or about April 16, 2012,
the Deputy Solicitor issued a memorandum to the
Field Solicitor purporting to withdraw the June 27,
1989 opinion and directing the Field Office to rely
upon the revised April 24, 2008 diminishment analy-
sis. (App. 43-44). The U.S. Attorney’s Office did not
inform the State of Nebraska of this change in posi-
tion until October 9, 2012, after proceedings had
recommenced before the District Court. (App. 45).
23
The Field Solicitor’s original opinion examined
the relevant treaties and legislation and evaluated
the boundary question in light of the judicial prece-
dent at the time. The Field Solicitor found that
“[wJhen compared with the language of other cases
dealing with possible diminishment, the Omaha
language leads to the conclusion that on the basis of
the language alone diminishment was not the intent
of Congress.” (emphasis in original). However, the
Field Solicitor found that “the effect of the 1872 Act
was at least a de facto diminishment.” The Field
Solicitor also found that “the Omaha Act of 1882 does
not present a good set of facts to argue against de
facto diminishment.” The Field Solicitor recognized
that “the Tribe could certainly claim that the intent of
the 1882 Act was to open the reservation for non-
Indian settlement but not to diminish it. However,
the Court in Solem also acknowledges that the de
facto diminishment in fact may exist regardless of
Congressional intent.” The Solicitor went on to con-
clude that “[f]rom the information currently available
to this office, the Omaha situation presents a set of
facts from which a court could easily find de facto
diminishment.” Ultimately, the Field Solicitor con-
cluded that “the most logical demarcation line for the
western boundary of the Omaha Reservation is the
centerline of the abandoned railway right of way.”
The Deputy Solicitor explained the Department’s
earlier position was based on a “less developed
administrative file” and the revised opinion was
24
necessitated by the Court’s subsequent holding in
Yankton Sioux Tribe. However, it is unclear from the
revised opinion how the administrative record
changed between 1989 and 2008 or how the Court’s
holding in Yankton Sioux Tribe warranted a change in
position. Based on the record, it would appear the
Department simply revised its longstanding opinion
concerning the diminishment of the Reservation to
reflect the position it would take in litigation.
The negative effects of the Eighth Circuit’s
decision have the potential for recurrence in future
boundary disputes between sovereign States and
federally-recognized Indian tribes. Indeed, this is not
the first instance in which the Eighth Circuit has
held given improper treatment to the third Solem
factor under the diminishment analysis. See Duncan
Energy Co., 27 F.3d at 1298 (“[wle find this exclusive
reliance on the third Solem factor to create a quasi-
diminishment totally inappropriate”) (emphasis
added). The Tenth Circuit has similarly held that
“‘subsequent events and demographic history can
support and confirm other evidence but cannot stand
on their own....’” Osage Nation, 597 F.3d at 1122
(citing Pittsburg & Midway Coal Mining Co. v. Yazzie,
909 F.2d 1387, 1396 (10th Cir. 1990)).
The question of how evidence relating to the
third Solem factor is to be treated is of exceptional
importance — not only to the residents of the Pender,
Nebraska area but to the relationship among the
federally-recognized Indian Tribes and the States.
25
The Eighth Circuit’s decision alters the status quo,
undermining the justifiable expectations developed
by Pender area residents over more than a century
and creating uncertainty and risk for the well-being
of citizens of Nebraska and members of the Tribe.
Over the last 132 years, the individuals who have
chosen to reside in the Pender, Nebraska area and
build homes, schools, and churches, open businesses
and raise families, have developed justifiable expecta-
tions that the area in which they are doing these
things was under the jurisdiction of the State of
Nebraska.
Viewing the stipulated record as whole, it is
difficult to overlook how time has allowed the resi-
dents of the Pender, Nebraska area to develop the
sort of justifiable expectations the Rosebud Sioux
Tribe Court was referring to. To create a conclusive
presumption of non-diminishment based on ambigu-
ous evidence relating to the first two Solem factors
precludes meaningful consideration of such expecta-
tions. The Court’s traditional solicitude for Indian
tribes does not require such a result.
S
CONCLUSION
Petitioners respectfully request that the Court
issue a writ of certiorari to the Eighth Circuit Court
of Appeals.
26
Respectfully submitted this 27th day of May,
2015.
DOUGLAS J. PETERSON
Nebraska Attorney General
BLAKE E. JOHNSON GENE SUMMERLIN
Assistant Attorney General MARNIE JENSEN
Counsel of Record MARK D. HILL
RYAN S. Post HUSCH BLACKWELL, LLP
Assistant Attorney General 610 J Street, Suite 200
2115 State Capitol Lincoln, Nebraska 68508
Lincoln, Nebraska 68509 (402) 434-8040
(402) 471-2682 gene.summerlin@
blake,johnson@nebraska.gov = huschblackwell.com
ryan.post@nebraska.gov marnie.jensen@
huschblackwell.com
Attorneys for the ic hill@huschblackwell
State of Nebraska —_
Attorneys for Individual
& Village Petitioners
App. 1
Richard M. Smith; Donna Smith; Doug
Schrieber; Susan Schrieber; Rodney A. Heise;
Thomas J. Welsh; Jay Lake; Julie Lake; Kevin
Brehmer; Ron Brinkman; Village of Pender,
Plaintiffs - Appellants State of Nebraska,
Intervenor Plaintiff - Appellant v. Mitch Parker,
In his official capacity as Chairman of the
Omaha Tribal Council; Barry Webster, In his
official capacity as Vice-Chairman of the Oma-
ha Tribal Council; Amen Sheridan, In his offi-
cial capacity as Treasurer of the Omaha Tribal
Council; Rodney Morris, In his official capacity
as Secretary of the Omaha Tribal Council;
Orville Cayou, In his official capacity as Mem-
ber of the Omaha Tribal Council; Eleanor Bax-
ter, In her official capacity as Member of the
Omaha Tribal Council; Ansley Griffin, In his
official capacity as Member of the Omaha Tribal
Council and as the Omaha Tribe’s Director of
Liquor Control, Defendants - Appellees The
United States, Intervenor Defendant - Appellee
No. 14-1642
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
774 F.3d 1166; 2014 U.S. App. LEXIS 23963
October 7, 2014, Submitted
December 19, 2014, Filed
COUNSEL: For Richard M. Smith, Donna Smith,
Doug Schrieber, Susan Schrieber, Rodney A. Heise,
Thomas J. Welsh, Jay Lake, Julie Lake, Kevin
Brehmer, Ron Brinkman, Village of Pender, Plaintiffs
~ Appellants: Mark Davis Hill, HUSCH &
App. 2
BLACKWELL, Omaha, NE; Marnie Jensen, Gene
Summerlin, HUSCH & BLACKWELL, Lincoln, NE.
For State of Nebraska, Intervenor Plaintiff — Appel-
lant: Jon Cumberland Bruning, Attorney General,
David D. Cookson, Deputy Assistant Attorney Gen-
eral, Blake E. Johnson, Assistant Attorney General,
David A. Lopez, Assistant Attorney General, Ryan
Post, Assistant Attorney General, Katherine J.
Spohn, Assistant Attorney General, ATTORNEY
GENERAL'S OFFICE, Lincoln, NE.
For Mitch Parker, In his official capacity as Chair-
man of the Omaha Tribal Council, Barry Webster, In
his official capacity as Vice-Chairman of the Omaha
Tribal Council, Amen Sheridan, In his official capaci-
ty as Treasurer of the Omaha Tribal Council, Rodney
Morris, In his official capacity as Secretary of the
Omaha Tribal Council, Orville Cayou, In his official
capacity as Member of the Omaha Tribal Council,
Eleanor Baxter, In her official capacity as Member of
the Omaha Tribal Council, Ansley Griffin, In his
official capacity as Member of the Omaha Tribal
Council and as the Omaha Tribe’s Director of Liquor
Control, Defendants — Appellees: Nora Marie Kane,
Patricia A. Zieg, STINSON & LEONARD, Omaha,
NE; Mark Jon Peterson, PETERSON LAW OFFICE,
Omaha, NE.
For The United States, Intervenor Defendant —
Appellee: Katherine J. Barton, Daron Carreiro, Mary
Gabrielle Sprague, U.S. DEPARTMENT OF JUSTICE,
App. 3
Environment & Natural Resources Division, Appel-
late Section, Washington, DC.
JUDGES: Before LOKEN, BEAM, and COLLOTON,
Circuit Judges.
OPINION BY: BEAM
OPINION
BEAM, Circuit Judge.
Appellants, the Village of Pender, Nebraska, and
resident owners or agents of establishments in or
near Pender engaged in the sale of alcoholic beverag-
es, appeal the district court’s' denial of Appellants’
motion for summary judgment requesting declaratory
and injunctive relief from the Omaha Tribe’s attempt
to enforce its liquor-license and tax scheme on them,
and the court’s corresponding grant of summary
judgment in favor of the Omaha Tribe. The Omaha
Tribal Court as well as the federal district court
determined that Pender and the relevant areas
involved in this action are located on Omaha tribal
land. Appellants challenge the district court’s deter-
mination that the Omaha Indian Reservation was not
diminished by an 1882 act of Congress. We affirm.
In 2006, the Secretary of the Interior approved
amendments to Title 8 of the Omaha Tribal Code,
which modified the tribe’s Beverage Control Ordinance
" The Honorable Richard G. Kopf, United States District
Judge for the District of Nebraska.
App. 4
and allowed the tribal government to impose a ten
percent sales tax on the purchase of alcohol from any
licensee on tribal land. The Omaha Tribe attempted
to enforce this alcohol tax on the individual plaintiffs,
resulting in this action. Appellants claimed that they
were not located within the boundaries of the Omaha
Indian Reservation and thus not subject to the tax.
As noted by the district court, the pivotal issue in
this case is whether Congress intended to “diminish”
the boundaries of the Omaha Indian Reservation in
Nebraska when it enacted an 1882 Act that ratified
an agreement for the sale of Omaha tribal lands to
non-Indian settlers. If it did, the district court stated,
“the area involved would no longer constitute Indian
country, and the Omaha Tribe could not regulate and
tax alcohol sales in Pender, Nebraska.” We review de
novo a grant of summary judgment. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en
banc).
The extensive legislative history surrounding the
1882 Act is discussed by the district court. Most
relevant to the required analysis — the touchstone,
really — is language contained in the 1882 Act and the
effect it had on the Omaha Indian Reservation,
especially an area comprising approximately 50,000
acres that lie in the western portion of the reserva-
tion and include the land upon which the Village of
Pender now sits. The Act of August 7, 1882, § 1,
provided:
App. 5
That with the consent of the Omaha
tribe of Indians, expressed in open council,
the Secretary of the Interior be, and he here-
by is, authorized to cause to be surveyed, if
necessary, and sold, all that portion of their
reservation in the State of Nebraska lying
west of the right of way granted by said In-
dians to the Sioux City and Nebraska Rail-
road Company under the agreement of April
nineteenth, eighteen hundred and eighty,
approved by the Acting Secretary of the Inte-
rior, July twenty-seventh eighteen hundred
and eighty. The said lands shall be ap-
praised, in tracts of forty acres each, by three
competent commissioners, one of whom shall
be selected by the Omaha tribe of Indians,
and the other two shall be appointed by the
Secretary of the Interior.
Although not definitive, notably absent from this
language is any explicit reference to “cession” com-
bined with “sum certain” payment, both of which
have been found “precisely suited to terminating
reservation status.” South Dakota v. Yankton Sioux
Tribe, 522 U.S. 329, 344, 118 S. Ct. 789, 139 L. Ed. 2d
773 (1998) (internal quotation omitted). As noted by
the parties, § 3 of the 1882 Act did not provide a sum
certain to be paid to the Omaha Tribe but, rather,
the proceeds of such sale, after paying
all expenses incident to and necessary for
carrying out the provisions of this act, in-
cluding such clerk hire as the Secretary of
the Interior may deem necessary, shall be
placed to the credit of said Indians in the
App. 6
Treasury of the United States, and shall bear
interest (at five percent annually], which in-
come shall be annually expended for the
benefit of said Indians, under the direction of
the Secretary of the Interior.
The district court held that this language did not
clearly evince Congress’ intent to change boundaries
of the Omaha Reservation, but rather “indicates that
the United States intended to act as the Omaha
Tribe’s sales agent for purposes of surveying and
auctioning its reservation land ... with the proceeds
held in trust in the United States Treasury for the
benefit of members of the Omaha Tribe.”
As the district court also highlighted, the histori-
cal facts in this action are undisputed and all are
relevant to the instant analysis in varying degrees
because in this case, while the touchstone of our
determination is the congressional purpose expressed
through relevant statutory language, we also consider
the historical context surrounding the passage of the
act(s) at issue, and, to a lesser extent, the subsequent
treatment of the area in question and the pattern of
settlement there. Yankton Sioux Tribe, 522 U.S. at
351.
Based on our de novo review, we discern that the
district court has thoroughly, thoughtfully, and accu-
rately considered the evidence in light of the guide-
posts provided by the Supreme Court as well as this
court. These guideposts allow courts, sitting in judg-
ment much later in time, a mechanism to most accu-
rately discern the contemporaneous intent and
App. 7
understanding of the relevant parties as it pertained
to the relevant reservation land in question. See id.;
Hagen v. Utah, 510 U.S. 399, 421, 114 S. Ct. 958, 127
L. Ed. 2d 252 (1994); Solem v. Bartlett, 465 U.S. 463,
470, 104 S. Ct. 1161, 79 L. Ed. 2d 443 (1984); Rosebud
Sioux Tribe v. Kneip, 430 U.S. 584, 586-87, 97 S. Ct.
1361, 51 L. Ed. 2d 660 (1977).
Based upon the record evidence, the district court
in this matter has done just that — accurately dis-
cerned the contemporaneous intent and understand-
ing of the 1882 Act. The court carefully reviewed the
relevant legislative history, contemporary historical
context, subsequent congressional and administrative
references to the reservation, and demographic
trends, and did so in such a fashion that any addi-
tional analysis would only be unnecessary surplus.
Ever mindful to “resolve any ambiguities in favor of
the Indians,” there is nothing in this case to overcome
the “presumption in favor of the continued existence”
of the Omaha Indian Reservation. Yankton Sioux
Tribe, 522 U.S. at 344 (quotation omitted); Yankton
Sioux Tribe v. Podhradsky, 606 F.3d 985, 991 (8th Cir.
2010) (quotation omitted).
The importance and impact that this determina-
tion has on the entire community of Pender and its
residents is not lost on this court. As Appellants point
out, this is not a matter of mere historical curiosity or
academic interest. Yet, as we have stated throughout,
App. 8
the district court conducted the appropriate analysis
and we agree. Accordingly, we therefore affirm for the
reasons stated by the district court in its well-
reasoned opinion. See 8th Cir. R. 47B.
App. 9
RICHARD M. SMITH, et al., Plaintiffs, and
STATE OF NEBRASKA, Plaintiff-Intervenor
v. MITCH PARKER, et al., Defendants, and
THE UNITED STATES, Defendant-Intervenor.
4:07CV3101
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
996 F. Supp. 2d 815; 2014 U.S. Dist. LEXIS 18605
February 13, 2014, Decided
February 13, 2014, Filed
COUNSEL: For Richard M. Smith, Donna Smith,
Doug Schrieber, Susan Schrieber, Rodney A Heise,
Thomas J Welsh, Jay Lake, Julie Lake, Keith Brehmer,
Ron Brinkman, Village of Pender, Plaintiffs: Mark D.
Hill, LEAD ATTORNEY, HUSCH, BLACKWELL LAW
FIRM — OMAHA, Omaha, NE; V. Gene Summerlin,
Jr., LEAD ATTORNEY, Lincoln, NE.
For State of Nebraska, Intervenor Plaintiff: David D.
Cookson, David A. Lopez, Jon C. Bruning, Katherine
J. Spohn, Ryan S. Post, LEAD ATTORNEYS, ATTOR-
NEY GENERAL'S OFFICE — NEBRASKA, Lincoln,
NE.
For Mitch Parker, In his official capacity as Chair-
man of the Omaha Tribal Council, Barry Webster, In
his official capacity as Vice-Chairman of the Omaha
Tribal Council, Amen Sheridan, In his official capac-
ity as Treasurer of the Omaha Tribal Council, Rodney
Morris, In his official capacity as Secretary of the
Omaha Tribal Council, Eleanor Baxter, In her official
App. 10
capacity as Member of the Omaha Tribal Council,
Ansley Griffin, In his official capacity as Member of
the Omaha Tribal Council and as the Omaha Tribe’s
Director of Liquor Control, Defendants: Mark J.
Peterson, Nora M. Kane, Patricia A. Zieg, LEAD
ATTORNESY, STINSON, LEONARD LAW FIRM -—
NEBRASKA, Omaha, NE.
For United States, Intervenor Defendant: Daron Carreiro,
LEAD ATTORNEY, U.S. DEPARTMENT OF JUS-
TICE — ENVIRONMENTAL ENFORCEMENT, Wash-
ington, DC.
JUDGES: Richard G. Kopf, Senior United States
District Judge.
OPINION BY: Richard G. Kopf
OPINION
MEMORANDUM AND ORDER
The plaintiffs are owners or agents of businesses
and clubs in Pender, Nebraska, that sell alcoholic
beverages. They have sued Omaha Tribal Council
members in their official capacities for prospective
injunctive and declaratory relief from the Omaha
Tribe’s attempt to enforce its liquor-license and tax
scheme on the plaintiffs. The plaintiffs claim that be-
cause they are not located on a federally recognized
App. 11
Indian reservation or in “Indian country,” they are
not subject to the Omaha Tribe’s jurisdiction, and the
defendants have therefore exceeded their authority
under 18 U.S.C. § 1161° and under federal common
law by trying to exercise tribal jurisdiction over the
plaintiffs. The plaintiff-intervenor, the State of Ne-
braska, alleges that the Omaha Tribe has exceeded
its tribal authority under federal common law by at-
tempting to enforce its liquor-license and tax scheme
against the retailers in Pender, but also requests a
permanent injunction prohibiting the Omaha Indian
Tribe from asserting any tribal jurisdiction whatso-
ever within all 50,157 acres of Thurston County,
Nebraska, lying west of the now-abandoned right-of-
way of the Sioux City and Nebraska Railroad — in
other words, the State’s challenge is not limited to
‘ “Indian country” is defined in 18 U.S.C. § 1151 to mean:
“(a) all land within the limits of any Indian reservation under
the jurisdiction of the United States Government, notwithstand-
ing the issuance of any patent, and, including rights-of-way
running through the reservation, (b) all dependent Indian
communities within the borders of the United States whether
within the original or subsequently acquired territory thereof,
and whether within or without the limits of a state, and (c) all
Indian allotments, the Indian titles to which have not been ex-
tinguished, including rights-of-way running through the same.”
* The plaintiffs complaint alleges that 18 U.S.C. § 1161 per-
mits the Omaha Tribe to regulate liquor sales on its reservation
land and in “Indian country.”
App. 12
Pender, Nebraska. (Filing 107, Complaint-in-Intervention
of Intervenor State of Nebraska. )°
This matter is before the court on cross-motions
for summary judgment (Filings 113 & 116) after a
lengthy stay‘ to allow the plaintiffs to exhaust their
remedies in the Omaha Tribal Court. The pivotal
issue in this case is whether Congress intended to
“diminish” the boundaries of the Omaha Indian
* The defendant-intervenor, the United States, claims that
Pender, Nebraska, is located within the boundaries of the Omaha
Tribe’s reservation and that such boundaries have not been
reduced or diminished. (Filing 109, Answer of Intervenor-
Defendant United States to Plaintiffs’ Second Amended Com-
plaint.)
* This case was stayed on October 4, 2007 (Filing 53), and
the judgment of the Omaha Tribal Court was filed in this court
on March 4, 2013. (Filing 86.)
* The term “diminishment” was discussed and clarified in
Lower Brule Sioux Tribe v. State of South Dakota, 711 F.2d 809,
815 n.3 (8th Cir. 1983):
For the sake of clarity, we note that the question
whether the boundaries of an Indian reservation, as
drawn when the reservation was established, are re-
drawn after part of that reservation has been opened
for settlement, has been expressed in several different
ways by various courts. The process has been called
disestablishment (referring to the disestablishment of
the original reservation boundaries); diminishment
(referring to a diminishing or shrinking of the original
boundaries); termination of reservation status (if the
original boundaries are redrawn, the reservation sta-
tus of the land is no longer within the boundaries and
thus is terminated); and a change of boundaries.
See also Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, 1017 (8th
Cir. 1999) (“[D]iminishment commonly refers to the reduction in
(Continued on following page)
App. 13
Reservation in Nebraska when it enacted an 1882 Act
that ratified an agreement for the sale of Omaha
tribal lands to non-Indian settlers. If Congress in-
tended to diminish the Omaha Reservation, the area
involved would no longer constitute Indian country,
and the Omaha Tribe could not regulate and tax
alcohol sales in Pender, Nebraska. Atkinson Trading
Co., Inc. v. Shirley, 532 U.S. 645, 653, 121 S. Ct. 1825,
149 L. Ed. 2d 889 (2001) (“An Indian tribe’s sovereign
power to tax — whatever its derivation — reaches no
further than tribal land.”).
I. STANDARD OF REVIEW
After litigants have exhausted their remedies in
tribal court, the federal district court “should review
the Tribal Court’s findings of fact under a deferential,
clearly erroneous standard. The Tribal Court’s deter-
minations of federal law should be reviewed de novo
while determinations of Tribal law should be accorded
more deference.” Duncan Energy Co. v. Three Affili-
ated Tribes of Fort Berthold Reservation, 27 F.3d
1294, 1300 (8th Cir. 1994) (citations omitted) (dis-
cussing district court’s review of tribal court’s deter-
mination of its own jurisdiction).
The parties agree that the ultimate issue in this
case — whether the Omaha Indian Reservation was
size of a reservation. A finding of diminishment generally sug-
gests that a discrete, easily identifiable parcel of land has been
removed from reservation status.” (internal citations omitted)).
App. 14
diminished by an 1882 act of Congress — is a question
of federal law and, therefore, is subject to this court’s
de novo consideration. (Filing 118, Pls.’ Br. Supp. Mot.
Summ. J. at CM/ECF pp. 31-37 (arguing that tribal
court’s decision has no legal effect, but “[e]ven if the
Court engages in traditional judicial review, a de novo
standard applies”); Filing 138, Defs.’ Br. Opp’n Pls.’
Mot. Summ. J. at CM/ECF pp. 15-17 (“the ultimate
question of whether the Omaha Indian Reservation
was diminished is subject to this Court’s de novo re-
view”).)
Il. UNDISPUTED MATERIAL FACTS’
A. Parties’
1. The Village of Pender, Nebraska, (“Pender”)
is a village as defined by Neb. Rev. Stat. § 17-201
* I previously ordered (Filings 110 & 130) that this matter
shall be resolved solely on the evidentiary record established
before the tribal court, along with the parties’ joint stipulation of
facts (Filing 100), exhibits attached to the State of Nebraska’s
complaint (Filing 107), Exhibit B to the United States’ index in
support of iiz motion to intervene (Filing 106-3), and additional
maps filed by the State of Nebraska (Filings 123-2, 123-3, 123-4)
and by the defendants in rebuttal (Filings 123-5, 123-6, 123-7,
123-8, 123-9). The parties have also agreed to additional facts in
the course of briefing their motions for summary judgment.
(Filing 138 at CM/ECF pp. 5-15; Filing 118 at CM/ECF pp. 8-9,
11-17, 21-23, 25-28, 31.)
” Unless otherwise indicated, the following facts are undis-
puted and appear in the parties’ joint stipulation of facts (Filing
100) or are characterized as admitted in the parties’ briefing
(Filing 138 at CM/ECF pp. 5-15).
App. 15
with a population of approximately 1,300 residents in
northeastern Nebraska, and is a plaintiff in this liti-
gation. Pender is a political subdivision of the State of
Nebraska, the county seat of Thurston County, and is
governed by a Village Board of Trustees.
2. The remaining plaintiffs are and were at all
relevant times residents of Thurston County and
owners of or agents for establishments engaged in
the sale of alcoholic beverages in or near Pender,
Nebraska. Each of the plaintiffs holds a valid liquor
license from the State of Nebraska and has fully com-
plied with all of Nebraska’s requirements to engage
in the retail sale of alcohol.
3. The Omaha Tribe of Nebraska is a federally
recognized Indian Tribe organized and chartered un-
der the Indian Reorganization Act of 1934. Indian
Entities Recognized and Eligible to Receive Services
from U.S. Bureau of Indian Fairs Notice, 75 Fed. Reg.
60810 (Oct. 1, 2010). Defendants are or were at all
relevant times members or officials of the Omaha
Tribal Council.
4. The plaintiffs’ primary customers are not
members of the Omaha Tribe, but rather nonmember
residents of Pender and the surrounding areas. None
of the plaintiffs are members of the Omaha Tribe,
parties to any contracts with the Omaha Tribe, or in-
volved in any other formal business relationship with
the Tribe. Finally, none of the plaintiffs have applied
for a license or remitted any taxes to the Omaha
App. 16
Tribe under the “Beverage Control Ordinance,” dis-
cussed below.
5. On February 28, 2006, the Secretary of the In-
terior approved amendments to Title 8 of the Omaha
Tribal Code. (Amendment (Title 8 of the Tribal Code)
to Omaha Tribe’s Beverage Control Ordinance, 71
Fed. Reg. 10056 (Feb. 28, 2006) (the ordinance, as
amended, is hereinafter referred to as the “Beverage
Control Ordinance”).
6. The purpose of the Beverage Control Ordi-
nance “is to govern the sale, possession and distri-
bution of alcohol within the Omaha Tribe’s Indian
Reservation.” The Beverage Control Ordinance re-
quires establishments that sell alcohol to obtain a
license for a fee that varies by license class and im-
poses a 10-percent sales tax on the purchase of alco-
hol from any licensee.
7 The licensing scheme contained within the
Beverage Control Ordinance introduces three classes
of liquor licenses — A, B, and C. Class A licenses are
issued to “Package Dealers” and require a $1,000.00
application fee; Class B licenses are issued to “On-
Sale Dealers” and require a $1,500.00 application
fee; and Class C licenses are issued to “Wholesalers”
and require a $500.00 application fee. Each license
is valid for one year, but may be extended for an
additional 30 days, provided that a new license
App. 17
application is pending at the time of expiration. The
Beverage Control Ordinance also institutes a 10-
percent sales tax to be levied on the retail price of
all sales of alcoholic beverages. The 10-percent sales
tax must be remitted to the Omaha Tribe.
8. Any entity applying for a license under the
Beverage Control Ordinance must also grant unlim-
ited access to its books and premises to the Omaha
Tribe. The Beverage Control Ordinance states: “[An
applicant’s] premises, for the purpose of search and
seizure laws shall be considered public premises, and
that such premises and all buildings, safes, cabinets,
lockers, and store rooms thereon will at all times on
demand of the Tribal Council or a duly appointed
Tribal or Federal policeman, be open to inspection.”
9. Non-tribal members who fail to comply with
the licensing and taxing scheme imposed by the Bev-
erage Control Ordinance are subject to administra-
tive fines in the amount of $10,000.00 per violation.
nt of the Vv ontrol
Ordinance
10. The Omaha Tribe has attempted to enforce
the Beverage Control Ordinance against the individ-
ual plaintiffs. In particular, on December 19, 2006,
plaintiff Richard M. Smith, owner of a convenience
store in Pender that has sold alcoholic beverages for
the last 38 years, received a letter from the Omaha
Tribe. The letter included an application to obtain a liq-
uor license from the Omaha Tribe for his convenience
App. 18
store, Smitty City West, and a request to remit the
10-percent alcohol tax imposed by the Beverage Con-
trol Ordinance on a monthly basis. Smith did not take
any action in response to the December 19, 2006, let-
ter because he believed that his business was not
located within the Omaha Indian Reservation, nor
was he affiliated with the Omaha Tribe.
11. On or about January 31, 2007, the plaintiffs
received a Second Notice from the Omaha Tribe via
registered mail. The Second Notice was addressed to
“all manufacturers, importers, wholesalers, and re-
tailers of alcoholic beverages within the Omaha In-
dian Reservation.” This notice informed the plaintiffs
that “the Omaha Tribe’s Director of Liquor Control
has determined that [they] are subject to the re-
quirements of the Alcoholic Beverage Control Title.”
The Second Notice also stated that because the plain-
tiffs were not in compliance with the Beverage Con-
trol Ordinance, they were subject to fines of up to
$10,000.00 per violation. The Second Notice threat-
ened “enforcement actions in Omaha Tribal Court.”
12. On April 17, 2007, the United States Dis-
trict Court for the District of Nebraska granted the
plaintiffs a temporary restraining order prohibiting
the enforcement of the Beverage Control Ordinance
in Pender, Nebraska, and that order was later ex-
tended by a stipulation of the parties. (Filings 16 &
29.)
13. On October 4, 2007, the United States Dis-
trict Court for the District of Nebraska stayed the
App. 19
original proceeding in order for the plaintiffs to ex-
haust any potential remedies available in the Omaha
Tribal Court. (Filing 53.)
14. On January 7, 2008, the plaintiffs filed an
action in the Omaha Tribal Court seeking a judgment
declaring that Pender is not within the boundaries
of the Omaha Reservation and an injunction prohibit-
ing the enforcement of the Beverage Control Ordi-
nance in Pender. In those proceedings, the plaintiffs
retained Emily Greenwald, Ph.D., as their expert wit-
ness to prepare a historical report. Defendants re-
tained R. David Edmunds, Ph.D., Watson Professor of
American History for the University of Texas at
Dallas, as their expert witness to prepare a historical
report.
15. On February 4, 2013, pursuant to cross-
motions for summary judgment, the Omaha Tribal
Court determined that Congress did not “intend[ ] to
diminish the boundaries of the Omaha Indian Reser-
vation” in the applicable 1882 Act, which is discussed
in detail below. (Filings 82-1 & 86.) Stipulating that
exhaustion was complete, the parties returned to this
court for resolution of this matter.
D. The 1854 Treaty
16. In 1854, the Omaha Tribe entered into a
treaty with the United States government in which
the Tribe agreed to “cede to the United States all
their lands west of the Missouri River, and south of a
line drawn due west from a point in the centre of the
App. 20
main channel of said Missouri River due east of
where the Ayoway river disembogues out of the bluffs,
to the western boundary of the Omaha country, and
forever relinquish af right and title to the country
south of said line[.]” (Filing 115-2, at CM/ECF p. 2.)
17. In consideration of and payment for the
land ceded by the Omaha Tribe, the United States
agreed to pay the Omaha Tribe a sum certain paid
over a certain number of years.
18. In the Treaty of 1854, the Omaha Indians
also made a commitment to allow railroads to con-
struct a right-of-way across their reservation at some
point in the future, and in 1880, they agreed to grant
the Sioux City and Nebraska Railroad a right-of-way
from the northern edge of their reservation generally
southeastward until it crossed the southern boundary
of the Omaha Indian Reservation.
19. As a result of the 1854 Treaty, the actual
boundaries of the Omaha Reservation were set in
1855, and the original size of the Omaha Reservation
was approximately 300,000 acres. Pender is within
the original boundaries of the Omaha Reservation as
established in 1855.
E. 1865 Omaha Land Sale: Winnebago Res-
ervation
20. On March 6, 1865, the Omaha Tribe entered
into a treaty with the United States government
under which the Tribe agreed to “cede, sell, and
App. 21
convey to the United States” a portion of the Omaha
Reservation for the sum certain of $50,000.00 for the
establishment of the Winnebago Reservation. (Filing
115-3 at CM/ECF p. 2.)
21. The size of the Winnebago Reservation cre-
ated by the 1865 Treaty was approximately 98,000
acres, leaving the Omaha Reservation with approx-
imately 202,000 acres. The General Land Office
(“GLO”) conducted a survey of the remaining Omaha
Reservation from 1866 to 1867 which was approved
by the GLO Commissioner in 1867.
22. The 1865 Treaty provided for the allotment
of the remaining portion of the Omaha Reservation to
individual Omaha Tribe members and also provided
that the Omaha Tribe was to “vacate and give posses-
sion of the lands ceded by this treaty immediately
after its ratification.”
23. In March 1871, the Omaha received certifi-
cates for their individual allotments, all of which
were in the eastern half of the Omaha Reservation.
The Omaha Tribe members later learned that the
certificates they were given for the allotments pro-
vided in the 1854 and 1865 Treaties did not provide
fee-simple title to the land, causing the Omaha Tribe
to request allotments that would guarantee fee-
simple title to the reservation land so allotted.
App. 22
F 1 i rn Por-
ti rv n
24. In August 1871, the Omaha chiefs appealed
to Congress “to provide for the enactment of a law
authorizing the sale of 50,000 acres of the most west-
ern portion of their reservation ...” to raise funds for
farming and housing. Congress did not enact the re-
quested legislation.
25. In October 1871, the Omaha chiefs sent a
letter to Congress and “earnestly renew/led] the peti-
tion presented to Congress at its last session” calling
for “the sale of near 50,000 acres from the most west-
ern portion of our reservation as can be separated
from the remainder by a line running along the
section-lines from north to south.”
26. On January 22, 1872, Commissioner of In-
dian Affairs F.A. Walker recommended the proposed
legislation to Congress and stated, “I believe that the
general idea of diminishing these reservations for the
purpose of securing higher cultivation of the remain-
ing lands, is consonant with sound policy.”
27. On June 10, 1872, Congress enacted legis-
lation that authorized the Secretary of the Interior,
with the consent and concurrence of the Omaha
Tribe, to “cause to be surveyed, if necessary, a portion
of their reservation in the State of Nebraska, not
exceeding fifty thousand acres, to be taken from the
western part thereof, and to be separated from the
remaining portion of said reservation by a line run-
ning along the section lines from north to south. The
App. 23
said lands so separated shall be appraised... . [and]
the Secretary of the Interior shall be, and hereby is,
authorized to offer the same for sale for cash in
hand.” The 1872 Act also contained provisions allow-
ing other Indian tribes to sell portions of their reser-
vation lands.
28. Only 300.72 acres of the Omaha Reserva-
tion were actually sold under the terms of the 1872
Act. The Commissioner reported: “By the provision of
the act of June 10, 1872, 49,762 acres have been
appraised for sale [and are held] in trust for said
Indians, leaving 143,225 acres as their diminished
reserve.”
' G,. 1873 Ponca Agreement Regarding the
Western Portion of the Omaha Reserva-
tion
29. On November 6, 1873, the Omaha and
Ponca chiefs signed a resolution to sell a portion of
the Omaha Reservation to the Ponca Tribe. Both
tribes wished to settle the Ponca on the western part
of the Omaha Reservation surveyed and appraised for
sale in 1872.
30. The sale of land from the Omahas to the
Poncas was never completed.
App. 24
| Sale: Wisconsin Win-
nebagoes
31. In 1874, following the Omaha’s unsuccessful
attempt to sell land to the Poncas, Congress appro-
priated funds to purchase additional land from the
Omaha Tribe for the Wisconsin Winnebagoes from the
eastern part of the Omaha Reservation. The amount
of land sold to the Wisconsin Winnebagos was re-
ported as 12,374.53 acres.
I. 1880 Proposal Regarding the Western
Portion of the rvation
32. In 1880, Nebraska Senator Alvin Saunders
again offered a bill to accomplish the sale of 50,000
acres from the western portion of the Omaha Reser-
vation first proposed as part of the 1872 Act. In
support of this effort, Senator Saunders stated: “The
bill provides for a survey and sale of fifty thousand
acres. There was a bill passed some eight years ago
[the 1872 Act] authorizing the sale of this land, and
only about three hundred acres of land were sold
under it. The Secretary now recommends that we de-
duct that from this bill so that the survey may stand
as it is, 49,461.71 acres instead of fifty thousand
acres.
33. Later in the debate, Senator Saunders ex-
plained why the 1872 Act was unsuccessful: “Let me
state the reason for it. A bill was passed some seven
or eight years ago authorizing it to be sold in smaller
tracts, but people would not go and settle around the
App. 25
Indians when they could get lands as cheap or cheaper
off a distance from them. The object now is that we
may get, if possible, persons to emigrate in colonies
and go and make their own settlements where they
will not be isolated from society.”
34. Senator Saunders went on to state: “The In-
dians want the land sold . . . [T]hey want this money
put out at interest so that they can have the interest
to use in improving their farms. They are very desir-
ous to have the land sold. They even would have it
sold at a lower figure than this bill names if it cannot
be sold at that.”
35. Senator Saunders’ 1880 proposal did not ad-
vance.
J. 1882 Act Regarding the Western Portion
of th ation
36. On February 20, 1882, the Senate intro-
duced Senate Bill 1255, which provided for the sale of
up to 50,000 acres from the western portion of the
Omaha Reservation.
37. During the first floor debate on this bill,
Senator Saunders stated: “It happens to be one of
those few cases where I believe everybody is satisfied
to have a bill of this kind passed. The Indians want it
passed so as to put the money derived from the sale
on interest. The white people are there ready to buy
the land and put it in cultivation.” In support of the
bill, Senator Saunders read a letter into the record
App. 26
stating: “[TJhere are no Indians living on the western
portion of the Omaha Reservation; that no land has
been allotted to any of them so far as I can ascertain;
and furthermore [] there are no improvements such
as housing, fencing[ ] upon the 50,000 acres of land
alluded to in your letter.” Senator Saunders also
stated: “Twice they have expressed themselves al-
ready in open council in favor of it, and the bill re-
quires that it shall be done a third time, and that the
land shall not be sold until they do decide in open
council that they want it sold.”
38. Senator Saunders explained that the 1882
Act “practically breaks up that portion at least of the
reservation which is to be sold, and provides that it
shall be disposed of to private purchasers.” He went
on to state that under the bill, “(t]he lands that [the
tribe] occupy are segregated from the remainder of
the reservation, and the allottees receive patents to
the separate tracts, so that the interest and control
and jurisdiction of the United States is absolutely
relinquished.”
39. Specific to the land west of the right-of-way,
Senator Saunders explained that the Omahas did not
want to live in the area to be sold. “I do not think an
acre of this land will be sold to the Indians... ,” and
“I did not think as a matter of fact a single acre of
land [west of the right-of-way] would go into the
hands of Indians.” Senator Saunders’ belief was con-
sistent with the report submitted by the local agent
which stated, “there are no Indians living on the
western portion of the Omaha reservation.”
App. 27
40. Senator Dawes reported, “Last summer I
saw the representatives of this tribe, and I heard
them myself state . .. they were very anxious to sell a
portion of their real estate and obtain the money, so
that the interest of the money they could use for the
improvement of the residue of their property. They
had more land than they could occupy, as I heard
them myself.”
41. Senator Dawes explained, “When this bill
came in I was troubled lest the sale of 50,000 acres
would leave the [Omaha] reservation too small. I
went personally to the Indian Bureau to satisfy
myself upon that point, and by the Commissioner of
Indian Affairs I was assured that it would leave an
ample reservation, as much as, if all the Indians
should take in severalty, would give each one a farm
and have some left for such increase of numbers as
might probably be expected in the next twenty-five
years; that there was no apprehension on the part of
the Department; they were satisfied.”
42. On April 20, 1882, the Senate passed the
bill and referred it to the House Committee on Indian
Affairs. On July 1, 1882, the House committee offered
a substitute bill that authorized both the sale of land
and allotment in severalty to the Omaha Tribe.
43. On July 26, 1882, Representative Dudley
Haskell explained that before the western portion of
the Omaha Reservation would be sold,
they are at liberty to make their individual
selections of one hundred and sixty acres to
App. 28
every head of family, eighty acres to every
widow, and forty to every child. These sever-
alty selections are to be held in trust by the
Government for the sole use of the Indians
for twenty-five years, at the end of which
time patents are to be issued in fee-simple.
All the lands not allotted are to be patented
under the broad seal of the United States to
the tribe in common, so as to give them an
absolute indefeasible title to about 100,000
[sic] acres.
44. On July 26, 1882, Representative Edward
Valentine of Nebraska stated: “These Indians I know
very well, and they are anxious to sell this portion of
the reserve and have allotments made to them in
severalty of the remainder. It is at their request, as |
have stated, that the bill was drawn...”
45. On July 16, 1882, Representative Valentine
also stated:
I desire to say there is now a law [the
1872 Act] authorizing the Secretary of the
Interior to sell 50,000 acres of that land. It
embraces all the land mentioned in this bill
and some other land in addition; and that
land may be sold indiscriminately to any
persons. It may be sold to persons not expect-
ing to become actual settlers. After this rail-
road was built through there[,] the Indians
then asked that he sell no land under the
law as it now exists, and made their peti-
tions for a bill of this character, the one
which is now pending before the House, and
App. 29
which was framed in accordance with their
wishes.
46. Representative Valentine further explained:
You cannot find one of those Indians that
does not want the western portion sold, not
the eastern part. A railroad has been built
and is now being operated through that res-
ervation. The Indians say they want that
portion west of the railroad sold. This could
be done under existing law, but if sold under
the existing law/[,] it would be sold to persons
who would not be required to occupy it.
Therefore, the Indians say, “Do not sell the
land under the present law, but pass a new
law and sell it only to persons who will re-
side upon it and cultivate it.” When it is sold
upon these conditions, the white men will oc-
cupy up to the railroad on the west. They
will build stations and towns; and the Indi-
ans will come up to the railroad from the
east and get the benefit of these improve-
ments.
47. Finally, while specifically discussing the
provision to allow Indians to select allotments west of
the railroad right-of-way prior to the lands opening,
Senator Valentine stated, “They do not care about
making selections over on that side of the road at
all.”
48. On July 27, 1882, the House approved S.
1255, as amended, to provide for both the grant of
allotments to Omaha Tribe members from either the
east or west portions of the Omaha Reservation, as
App. 30
well as the sale of the remaining portion of the reser-
vation west of the railroad right-of-way to white set-
tlers.
49. Although initially referred back to commit-
tee by the Senate, the Senate withdrew its opposition
to the House amendment to S. 1255.
50. On August 7, 1882, President Chester
Arthur signed the bill into law. The Act of August 7,
1882, 22 Stat. 341, distinguished between treatment
of “that portion of their reservation ... lying west of
the right of way,” id. §§ 1-4, and “lands lying east of
the right of way,” id. §§ 5-8. As to land situated west
of the right-of-way, the Act of 1882 provided:
That with the consent of the Omaha
tribe of Indians, expressed in open council,
the Secretary of the Interior be, and he here-
by is, authorized to cause to be surveyed, if
necessary, and sold, all that portion of their
reservation in the State of Nebraska lying
west of the right of way granted by said In-
dians to the Sioux City and Nebraska Rail-
road Company under the agreement of April
nineteenth, eighteen hundred and eighty,
approved by the Acting Secretary of the Inte-
rior, July twenty-seventh eighteen hundred
and eighty. The said lands shall be ap-
praised, in tracts of forty acres each, by three
competent commissioners, one of whom shall
be selected by the Omaha tribe of Indians,
and the other two shall be appointed by the
Secretary of the Interior.
App. 31
(Act of August 7, 1882, 22 Stat. 341 § 1.) After the
survey and appraisal, the law authorized the Secre-
tary of the Interior to issue a proclamation that “un-
allotted lands are open for settlement... ”:
That after the survey and appraise-
ments of said lands the Secretary of the Inte-
rior shall be, and he hereby is, authorized to
issue proclamation to the effect that un-
allotted lands are open for settlement under
such rules and regulations as he may pre-
scribe. That at any time within one year af-
ter the date of such proclamation, each bona
fide settler, occupying any portion of said
lands, and having made valuable improve-
ments thereon, or the heirs-at-law of such
settler, who is a citizen of the United States,
or who has declared his intention to become
such, shall be entitled to purchase, for cash,
through the United States public land office
at Neligh, Nebraska, the land so occupied
and improved by him, not to exceed one hun-
dred and sixty acres in each case, according
to the survey and appraised value of said
lands as provided for in section one of this
act...
(Id. at § 2.)
51. The 1882 Act did not provide a sum certain
to be paid to the Omaha Tribe for land sold, but
stated:
That the proceeds of such sale, after pay-
ing all expenses incident to and necessary
for carrying out the provisions of this act,
App. 32
including such clerk hire as the Secretary of
the Interior may deem necessary, shall be
placed to the credit of said Indians in the
Treasury of the United States, and shall bear
interest at the rate of five per centum per
annum, which income shall be annually ex-
pended for the benefit of said Indians, under
the direction of the Secretary of the Interior.
(Id. at § 3.)
52. As to land east of the right-of-way, the 1882
Act authorized the Secretary of the Interior to allot
lands “in severalty to the Indians” in certain quanti-
ties, and to patent such land to the Omaha Tribe
allottees in trust for 25 years. After the 25-year trust
period, fee patents would issue “to said Indian or his
heirs.” Similarly, the “residue” of land lying east of
the right-of-way not allotted were to be patented to
the Omaha Tribe, with the United States holding
such land in trust for the sole use and benefit of the
Omaha Tribe for 25 years, after which fee patents
would issue to the Omaha Tribe. Id. §§ 5, 6, 8.
53. The last sentence of section 8 of the 1882
Act refers to land both east and west of the right-of-
way, providing “[t]hat said Indians ... may ... select
the land which shall be allotted to them in severalty
in any part of said reservation either east or west of
said right of way...” Id. § 8 (emphasis added).
App. 33
K. Implementation of the 1882 Act
54. In April 1883, the Secretary of the Interior
appointed Alice Fletcher as a special agent to oversee
the allotment process. Fletcher urged the Omahas to
select land near the railroad right-of-way because she
considered this the best agricultural land, and it also
afforded rail access to markets. While some of the
Omahas accepted Fletcher’s advice, most preferred
the eastern part of the reservation for its access to
water and timber.
55. In April 1883, Commissioner of Indian Af-
fairs Hiram Price wrote to Fletcher, directing her to
“please ascertain whether any of the Indians desire to
make their selections west of the right-of-way of the
Sioux City and Nebraska Railroad Company. It is
important that their wishes in that respect be made
known at once in order that the appraisement of the
lands lying west of the railroad may be proceeded
with, if deemed desirable, without waiting for the
completion of the allotments. . . .”
56. Section 8 of the 1882 Act allowed the Omaha
Tribe members to take their allotments anywhere on
the reservation, including west of the railroad right-
of-way. Commissioner of Indian Affairs Hiram Price
addressed this provision in his 1882 annual report:
By section 8 of the act the Indians are
permitted, if they shall so elect, to select al-
lotments within the tract designated to be
sold, and while it is not thought that there
are any who desire to make selections there,
App. 34
it might be well to ascertain their intentions
in that respect, so that if there be any such
they may make their selections and have
them approved before the appraisement is
begun.
(Greenwald Report, p. 15, n.69 citing ARCIA 1882,
LXVII.) At the end of 1883, Commissioner Price re-
ported that 10 to 15 allotments had been taken west
of the railroad right-of-way, and 876 of the approxi-
mately 50,000 acres west of the railroad right-of-way
had been allotted to Omaha Tribe members. Indian
allotments either wholly or partially west of the rail-
road right-of-way taken by members of the Omaha
Indian Tribe represented less than two percent of the
total acreage west of the right-of-way. (Decl. of Emily
Greenwald { 3.)
57. Upon completion of the initial allotment
process, and on April 30, 1884, 50,157 acres west of
the railroad right-of-way were opened for settlement
by non-Indians, and “the major portion thereof was
quickly absorbed by settlers. By September 1, 1884,
311 filings had been made, embracing about 43,000
acres.” (Greenwald Report, p. 22, n.105 quoting Re-
port of the Commissioner of the General Land Office,
28, in Report of the Secretary of the Interior, vol. I,
H.exdoc. 1, part 5, 48th Cong., 2d sess., 1884, serial
2286.)
58. In 1885, Omaha and Winnebago Agent
George Wilson described the results of the 1882 Act
as follows: “The Omahas have reduced their reserva-
tion by selling 50,000 acres, west of the Sioux City
App. 35
and Omaha Railroad, to actual settlers, and have
taken allotments on the remainder.”
59. In 1885, the Commissioner of Indian Affairs
reported that “Omaha Reservation lands lying west of
the Sioux City and Nebraska Railroad” had recently
been sold to settlers, but that many of the latter had
failed to pay for the acreages.
60. In 1887, the Secretary of the Department of
the Interior referred to land west of the railroad
right-of-way as “within the limits of the former Omaha
Indian Reservation.”
61. Congress authorized extensions of payment
under the 1882 Act in 1885, 1886, 1888, 1890, and
1894. The 1894 extension of payment provided that
“this Act shall be of no force and effect until the
consent thereto of the Omaha Indians shall be ob-
tained[.]” Further, non-Indian settlers on the reserva-
tion lands west of the railroad also requested the
Omaha Tribe’s acquiescence in the payment exten-
sions. Federal officials agreed to the request, and on
December 23, 1895, the Omaha met in council with
Indian Agent William Beck and gave their permission
for payment schedules for reservation lands west of
the railroad to be extended.
62. Under the terms of the 1888 extension, if a
settler defaulted on payment for land west of the
right-of-way, the land was to be sold at public auction
rather than revert back to the Omaha Tribe. The
proceeds from any sale of the land continued to inure
for the benefit of the Omaha Tribe.
App. 36
63. Congressional reports focusing upon this ex-
tension also refer to the land as being “on the Omaha
Reservation” or individuals buying lands west of the
railroad as “purchasers of land of the Omaha tribe.”
64. In 1900, Secretary of Interior Ethan Allen
Hitchcock ruled that settlers who purchased land
west of the railroad right-of-way were not subject to
homestead legislation because they were settled on
lands “in the Omaha reservation.”
65. All of the land west of the railroad right-of-
way, apart from the 10 to 15 Indian allotments, was
conveyed from the United States to non-Indians, with
the final remaining parcel selling in 1913.
66. The land allotted to Indians west of the
right-of-way was patented in fee simple by 1919, with
no trust land remaining west of the railroad.
67. The Office of Indian Affairs (“OLA”) reports
of 1884 and 1888 did not include the land west of the
railroad right-of-way as part of the reservation, list-
ing the size of the Omaha Reservation as 142,345
acres.
68. The OIA report of 1898 did not include the
land west of the railroad right-of-way as part of the
reservation, listing the size of the Omaha Reservation
as 142,344.63 acres.
69. The OIA report of 1900 did not include the
land west of the railroad right-of-way as part of the
reservation’s total acreage, listing the size of the
App. 37
Omaha Reservation as 142,344.79 total allotted and
unallotted acres.
70. In 1901, Indian Agent Charles Mathewson
reported, “The Chicago, St. Paul, Minneapolis and
Omaha Railway passes through the Winnebago Res-
ervation on the west and forms the southwestern
boundary of the Omaha Reservation.”
71. In 1906 and 1909, the OIA’s report did not
include the land west of the railroad right-of-way as
part of the reservation, listing 141,891 total allotted
and unallotted acres.
72. In 1911, OIA’s report did not include the
land west of the railroad right-of-way as part of the
reservation, listing 135,022 total allotted and un-
allotted acres.
73. In 1924, two Omaha tribal delegates in-
quired into the 1882 land sales regarding the amount
of land sold, its value, the amount of interest due, and
whether the Tribe had been paid for the value of land
and interest.
74. In 1924, the Commissioner of the General
Land Office reported: “Public sales have accordingly
been held and all the moneys for which the lands
were sold have been paid.”
75. The 1935 Annual Statistical Report for the
Winnebago Agency listed three “reductions” to the
original acreage of the Omaha Reservation, including
the “[slale of land west of railroad, 50,157 acres.”
App. 38
L. i d Population of the
Village of Pender
76. Upon the opening of the area west of the
right-of-way, W.E. Peebles purchased a tract of 160
acres, on which he platted the townsite for Pender,
Nebraska. He conveyed a portion of the land to the
railroad for a depot site. Lots within the town went
on sale in April 1885.
77. Since the early twentieth century, Indians
have comprised less than two percent of the popula-
tion west of the right-of-way.
78. Many Omahas regularly visited Pender, re-
sided in the village, and conducted business there.
Excerpts from the correspondence and diary of
Rosalie Farley, whose allotments were located west
of the railroad, indicate that her family resided on
her allotment, and that she and other Omahas reg-
ularly visited Pender, conducted business at that
location, and attended concerts in the village.
79. Between 1890 and 1895, Thomas Sloan, an
attorney and member of the Omaha Tribe, main-
tained both a residence and a law office in the Village
of Pender, where he employed an Omaha as a clerical
assistant. Sloan also served as Mayor of the Village of
Pender, Thurston County Surveyor, and Justice of the
Peace.
80. Hiram Chase, another attorney and enrolled
member of the Omaha Tribe, resided and practiced
law in Pender, where his children attended public
App. 39
schools. Chase also served as Thurston County Attor-
ney for eight years before being elected as a county
judge.
81. In Hallowell v. United States, 221 U.S. 317,
319-20, 31 S. Ct. 587, 55 L. Ed. 750 (1911), the United
States Supreme Court restated the parties’ stipula-
tion of facts relied upon by the district court as fol-
lows:
That the Omaha Indians exercise the
rights of citizenship, and participate in the
County and State Government extending
over said Omaha Indian Reservation, and
over and upon the allotments herein referred
to. That the defendant, Simeon Hallowell,
has been on frequent occasions a Judge and
Clerk of election, a Justice of the Peace, an
Assessor, and a Director of the public school
district in which he lives. That Omaha Indi-
ans have taken part in the State and County
government, extending over the reservation,
and have held the following offices in said
county of Thurston, State of Nebraska:
County Coroner, County Attorney, County
Judge, Justice of the Peace, Constable, Road
Overseer, Election Officers, and have also
served as jurors in the county and district
Courts. Defendant is self-supporting, as are
most of said Indians. Some of them are en-
gaged in business and most of them engaged
in farming.
App. 40
M. r terminations Re i the
Disputed Territory
82. In 1889, the Nebraska Legislature enacted
legislation defining the geographical boundaries of
Thurston County — now codified as Neb. Rev. Stat.
§ 22-187. By 1922, the legislature had changed the
boundaries of Thurston County, as reflected below.
New language as of 1922 is highlighted in bold font
and excluded 1889 language is stricken through:
The territory bounded as follows
shall constitute the county of Thurston:
Commencing at a point where the west
boundary of the Omaha Indian reserva-
tion intersects the south line of section
thirty-three (33), the—seutheast—corner—of
section—thirty-feur—{34), township twenty-
five, (25), north, of range five, (5) east, sixth
PM; 6th principal meridian; thence east
to the northeast corner of township twenty-
four, (24), north, of range seven (7), east
sixth-P-M; thence south to the south line of
the Omaha Indian reservation, as originally
surveyed; thence east along said line to the
line between sections thirty-two and
thirty-three, seutheast—eorner—of section
twenty-eight+{28), township twenty-four (24),
north, of range ten (10), east sixth—P-M-
thence north to the northwest corner of sec-
tion twenty-one (21), township twenty-four,
(24) north, of range ten (10) east sixth P.M.;
thence east to the eastern boundary of the
State of Nebraska; thence in a _ north-
westerly direction along said boundary line
App. 41
to its intersection with the section north line
of the Winnebago Indian reservation,
dvrding seettons twenty-five +26} and thirty-
stx36), township twenty-seven (27), north,
of range nine, (9), east—sixth-P-M-, thence
west along the north line of said res-
ervation to the intersection of the line
between sections thirty-three and noerth-
west-corner-section thirty-four, (64) township
twenty-seven (27), north, range six (6), east
sixth #-M-; thence south to the south-west
corner of section thirty-four, (34), township
twenty-seven, (27), north, range six (6), east
sixth-P-M., thence west to an intersection
with the west boundary of said Winne-
bago Indian reservation; the—northwest
(26),-nerth_of range five 6},east-sixth prin-
cipal—meridian; thence south along the
Winnebago and Omaha Indian reserva-
tion line to the place of beginning.
(Filing 100, Joint Stipulation of Facts (comparing
Compiled Statutes of Nebraska 1889, chapter 17,
§75b with Compiled Statutes of Nebraska 1922,
chapter 13, § 804).)
83. In November 1961, the Winnebago Agency
issued a “Historical Summary for Omaha Reserva-
tion,” which stated that boundaries of the Omaha
Reservation had been delineated in the original
survey of 1855 and were only diminished by two sales
of land to the United States for the benefit of the
Winnebagos. According to the “Summary,” these “two
statutory cessions . . . are the only changes effected in
App. 42
the boundaries of the Omaha Reservation since its
inception. The later enactments authorizing sale of
various lands included within these boundaries are
not considered to have had the effect of terminating
Federal jurisdiction over them.”
84. On April 16, 1969, the legislature on behalf
of the State of Nebraska voted to retrocede to the
United States all jurisdiction over offenses committed
by or against Indians in the areas of Indian country
located in Thurston County, Nebraska, except for of-
fenses involving operation of motor vehicles on public
roads or highways.
85. The United States government, through the
Secretary of the Interior, accepted the retrocession of
jurisdiction on October 25, 1970. See 35 Fed. Reg.
16598 (1970). The legal description of the land in
the Notice of Acceptance of Retrocession of Jurisdic-
tion delineates the Omaha Indian Reservation as
originally surveyed.
86. From 2007 until sometime immediately
prior to expert depositions in this case (August 7-8,
2012), the Thurston County website declared: “The
two reservations [the Omaha Indian and Winnebago]
are still in existence today and cover the entire
Thurston County area.”
87. In 1989, the Office of the Solicitor of the
United States Department of the Interior was asked
by the Bureau of Indian Affairs to locate the western
boundary of the Omaha Indian Reservation. The
Department of Interior reviewed “each of the treaties
App. 43
or legislative acts effecting [sic] the reservation”
boundary and stated that the land west of the rail-
road right-of-way “appears to have lost its Indian
character long ago with the arrival of non-Indian
homesteaders.” The Department of Interior concluded
“the most logical demarcation line for the western
boundary of the Omaha Reservation is the centerline
of the abandoned [Sioux City and Nebraska Railroad
Company] right of way . . [U}nder the 1882 Act the
land to the west of the right of way went out of Indian
control when it was opened for settlement.”
88. The 1989 Department of the Interior opin-
ion incorrectly stated that no “Indian trust allotments
were made on lands lying west of the Sioux City and
Nebraska Railroad right-of-way.” The allotment map
shows that there were at least 10 to 15 allotments
taken by Omaha Tribe members which were either
wholly or partially west of the railroad right-of-way
following the passage of the 1882 Act.
89. The 1989 Department of the Interior opin-
ion was officially withdrawn on April 16, 2012, by
Patrice H. Kunesh, Deputy Solicitor for Indian Affairs
in the United States’ Solicitor’s Office in Washington,
in a letter to Priscilla Wilfahrt, Twin Cities Field
Solicitor. Kunesh’s letter to Wilfahrt stated:
I have reviewed your letter of April 24,
2008, to the Great Plains Regional Director
of the Bureau of Indian Affairs, which con-
cludes that the boundaries of the Omaha In-
dian Reservation have not been diminished.
The April 24, 2008 letter supersedes your
App. 44
Office’s letter of June 27, 1989, to the Great
Plains Regional Director regarding ‘Survey
of Western Boundary of Omaha Reservation.’
The June 27, 1989 letter is hereby with-
drawn and not to be relied upon or used by
your office.
(Filing 120-54.) The Department of the Interior, the
Office of the Solicitor in Washington, D.C., the Field
Solicitor’s Office in Minnesota, and the Winnebago
Agency in Nebraska have been instructed to rely
upon the April 24, 2008, Wilfahrt letter.°
* he April 24, 2008, 27-page Wilfahrt letter concluded:
[S}ince diminishment is not to be lightly
inferred and a reservation retains it[s] sta-
tus no matter what happens to the title of
individual{} plots of land within the area
until Congress explicitly indicates other-
wise, a plain reading of the treaties and
statutory language involving the Omaha
Indian Reservation does not evidence a di-
minishment of the reservation boundaries.
Our review of the documentation of legisla-
tive history and urrounding circumstances
which is available in the record does not
show a contemporaneous understanding
that the reservation would be diminished
and in accordance with Yankton, leads us to
conclude that our 1989 opinion should be
revisited.
Wilfahrt also recommended further factual develop-
ment of the administrative record, without which she
was unable to “make any broader conclusions.” (Filing
120-55, at CM/ECF p. 26 (Letter from Field Solicitor
(Continued on following page)
App. 45
90. Deborah R. Gilg, United States Attorney for
the District of Nebraska, sent a letter dated October
9, 2012, to Nebraska Governor David Heineman,
informing him of the United States Department of
Justice’s position “that the [Omaha Indian] reserva-
tion has not been diminished” and the Department of
Justice “intends to assert the same federal jurisdic-
tion in Pender that we routinely exercise in other
parts of ‘Indian Country’.” (Filing 107, Complaint in
Intervention of State of Nebraska, Ex. 1.)
91. On August 22, 2000, the Thurston County
District Court determined that the land west of the
railroad right-of-way is not a part of the Omaha
Reservation. On February 15, 2007, the Nebraska
Attorney General issued an opinion which also con-
cluded that the land west of the railroad right-of-way
was not a part of the Omaha Reservation.
N. f of Neb and
United States
92. After issuance of the Tribal Court’s opinion
in the case now before this court concluding that
Congress did not “intend[ ] to diminish the boundaries
of the Omaha Indian Reservation” in the applicable
1882 Act, Rodney Morris, Chairman of the Omaha
Tribe of Nebraska, sent a letter dated February 12,
2013, to Douglas A. Ewald, Tax Commissioner of the
Priscilla Wilfahrt to Acting Director of Bureau of In-
dian Affairs Alice Harwood (Apr. 24, 2008)).)
App. 46
Nebraska Department of Revenue. The letter pur-
ported to respond to the Department of Revenue’s
prior letter stating that it “would cease sharing fuel
tax revenue from retailers in Pender as of March 1,
2007” based on the February 15, 2007, Nebraska At-
torney General’s opinion concluding that property
west of the right-of-way described in the 1882 Act
should not be considered part of the Omaha Indian
Reservation. Based on the Tribal Court’s contrary
decision that the 1882 Act did not diminish the
boundary of the reservation, leaving the original
boundary intact, the letter demanded “that the Ne-
braska Department of Revenue forward the tribal
share of the fuel tax revenue attributable to retailers
located west of the referenced right-of-way from
March 1, 2007 to the present” and that such retailers
should be included “in future fuel tax calculations.”
(Filing 107, Complaint in Intervention of State of
Nebraska, Ex. 2.)
93. Because the “Tribe’s request for money from
the State obviously implicates a direct interest of the
State which hinges on a resolution of the substantive
issue in this case” — that is, whether the 1882 Act of
Congress diminished the boundary of the Omaha
Indian Reservation — I allowed the State of Nebraska,
as Plaintiff-Intervenor, to file a Complaint in Inter-
vention in this matter to challenge the Tribe’s juris-
diction over approximately 50,157 acres of Thurston
County, Nebraska, lying west of the now-abandoned
right-of-way of the Sioux City and Nebraska Railroad,
as that term is defined in the 1882 Act of Congress.
App. 47
This area includes the Village of Pender, but also
areas lying beyond Pender’s municipal boundaries.
Like the plaintiffs, the State of Nebraska claims that
the Omaha Tribe has exceeded its authority under
federal common law. (Filings 102 & 107.)
94. I also allowed the United States to inter-
vene in this matter as Defendant-Intervenor. (Filing
108.) The United States has filed an Answer to Plain-
tiffs’ Second Amended Complaint, asserting as af-
firmative defenses that Plaintiffs’ claims are barred
because Pender and Plaintiffs’ businesses are located
within the boundaries of the Omaha Reservation, as
established by the Treaties of 1854 and 1865, and
because those boundaries have not been reduced or
diminished by the Act of 1882 or otherwise. (Filing
109.)
O. Treatment of the Disputed Territory by
the Tribe
95. Tribal authorities enforce the following por-
tions of the Omaha Tribal Code east of the right-of-
way, but not west of the right-of-way: Title 7 (fire
protection); Title 9 (animal control); Title 14 (fire-
works); Title 15 (wildlife and parks); Title 35 (busi-
ness permits); and Title 36 (business licenses).
96. The Omaha Tribe does not offer foster care
or medical, welfare, or child protective services west of
the right-of-way. The Omaha Tribe does not have an
office and does not operate a school, industry, or bus-
iness west of the right-of-way. No tribal celebrations
App. 48
or ceremonies take place west of the right-of-way. The
Omaha Tribe does not conduct governmental or cer-
emonial activities west of the right-of-way and has no
mineral rights or other claims to land west of the
right-of-way.
P. r e
Reservation Boundaries
97. On March 6, 1992, the Nebraska State Tax
Commissioner issued a Revenue Ruling stating that
the Village of Pender, among others, is located within
the boundaries of the Omaha Indian Reservation.
98. In 2002 and 2003, the Omaha Tribe con-
tacted the Nebraska Department of Roads requesting
replacement of signs delineating the location of the
boundaries of the Omaha Indian Reservation. The
signs had been removed at the direction of state
officials due to a dispute over the location of the
western boundary of the Omaha Indian Reservation.
99. Beginning on October 1, 2005, the Omaha
Tribe and the State of Nebraska entered into an
Agreement for the Collection and Dissemination of
Motor Fuel Taxes between those parties on sales of
motor fuel made on the Omaha Reservation.
100. Former Omaha Tribal attorney Maurice
Johnson testified regarding various efforts made by
the Omaha Tribe throughout his tenure as counsel
relating to its presence in the western region of
the Omaha Tribe of Nebraska Reservation and, in
App. 49
particular, near or within the Village of Pender.
Mr. Johnson testified that in his opinion, for the most
part, the Tribe’s efforts were met with anger and
hostility and at least one instance of overt racism. For
example, in approximately 2003, the Tribe received a
federal grant relating to roads. A requirement of the
grant was the exercise of traffic safety checks in order
to determine whether people were wearing seatbelts.
There was opposition from the Pender community
and, specifically, the Pender police, who challenged
the Tribe’s authority to administer the safety checks.
101. In 2003, Mark Casey, the Highway Su-
perintendent of the Thurston County Road Depart-
ment, contacted the Nebraska Department of Roads
and requested that the state road map of Nebraska
be redrawn. Casey stated that “the latest BIA maps
that are in my possession show the original boundary
of the Reservation and include a notation ‘Omaha
Treaty Boundary of March 10, 1854.’” Casey requested
that the boundary be changed “particularly in the
area around Pender” due to a “District Court decision
[State v. Picotte] of August 22, 2000, Case No. CR 00-
Rice’
102. Although all orders entered in State v.
Picotte by the District Court of Thurston County, with
no involvement by the Omaha Tribe, have no legal
impact on the Omaha Reservation, state cartogra-
phers again redrew the western borders of the res-
ervation, creating an altered map that moved the
western boundary of the Omaha Reservation to a new
location just east of Pender. The state cartographers
App. 50
then extended the Omaha Reservation’s western
boundary to the junction of State Highways 94 and 9
(north of Pender), with State Highway 9 as the west-
ern border of the reservation until this highway
passed into the Winnebago Reservation. This new
delineation of reservation boundaries placed the Vil-
lage of Pender outside of the reservation’s borders.
103. In or around the summer of 2007, officials
from the Environmental Protection Agency, Region 7
in Kansas City (“EPA”), visited Pender to publicly
discuss the Omaha Tribe administering federal regu-
lations on pesticide and fungicide control on the
Omaha Tribe Reservation, including Pender. The
meeting, which was of a “town hall” variety, was very
heated. Two statements made by persons in opposi-
tion to the EPA’s involvement were anti-Native Amer-
ican, such as “We’re not going to have Indians telling
us how to farm,” and “How about if I change my name
to ‘Spotted Eagle,’ can I then tell white people how to
farm their land?”
104. In 2007, Ms. Teri Lamplot, while she was
Chair of the County Board of Supervisors for
Thurston County, asked the U.S. Census Bureau to
revise the boundaries of the Omaha Indian Reserva-
tion to place Pender outside of the Omaha Indian
Reservation. In response to Ms. Lamplot, Robert
LaMacchia, the Chief of the Geography Division of
the U.S. Census Bureau, informed Ms. Lamplot that
the Census Bureau was “unable to make the changes
to our database” and would continue to rely upon the
1999 BIA map which indicated that Pender fell
App. 51
within the western boundary of the Omaha Indian
Reservation and stated, “While land ownership may
change on reservation lands, the reservation bounda-
ries are clear and, as far as we are aware, no new
legal opinion, federal court decision, Act of Congress,
etc., has altered these boundaries.”
105. Finally, efforts were made to cross-
deputize police officers among the Tribe, the Thurston
County Sheriff, and the Nebraska State Patrol to fa-
cilitate law enforcement on the reservation by defin-
ing policing relationships, delineating powers, and
encouraging cooperation. Thurston County refused to
join any cross-deputization efforts despite the will-
ingness of the Nebraska State Patrol to participate in
such an agreement. Although cross-deputization did
occur with the State Highway Patrol and with the
Walthill Police Department, Thurston County did not
participate.
106. In approximately October of 2011, tribal
member Thomas Saunsoci was arrested and charged
with a probation violation in the County Court of
Thurston County, Nebraska. Mr. Saunsoci was held in
custody in the Thurston County Jail in Pender with
the condition that he could not be released until he
paid a bond. A close personal friend of Mr. Saunsoci
came to the Thurston County Jail in Pender with a
sufficient amount of money to bail him out. The jailer
said that Thurston County could not accept the
money without Mr. Saunsoci’s signature appearing on
a document called a “Waiver of Extradition.”
App. 52
Ill. ANALYSIS
“Indian reservation lands are owned by the
United States and held in trust for the benefit of
specific tribes or bands.” United States v. Jackson,
697 F.3d 670, 672 (8th Cir. 2012). In this case, I must
decide whether Congress’s Act of August 7, 1882, 22
Stat. 341,, (the “1882 Act”) diminished the boundaries
of the Omaha Indian Reservation, or whether the Act
simply permitted non-Indians to settle within exist-
ing Omaha Reservation boundaries.
“Congressional action removing certain reserva-
tion land from Indian ownership does not necessarily
disestablish reservation boundaries. Disestablishment
occurs only when Congress intends to create a small-
er reservation with adjusted boundaries. It does
not occur if Congress only intended to remove from
Indian control certain land within the reservation
boundaries while retaining its original exterior
boundaries.” Lower Brule Sioux Tribe, 711 F.2d at 815
(internal citations omitted). “The opening of an Indi-
an reservation for settlement by homesteading is not
inconsistent with its continued existence as a reser-
vation.” City of New Town v. United States, 454 F.2d
121, 125 (8th Cir. 1972); see also Rosebud Sioux Tribe
v. Kneip, 430 U.S. 584, 586-587, 97 S. Ct. 1361, 51
L. Ed. 2d 660 (1977) (“The mere fact that a reser-
vation has been opened to settlement does not nec-
essarily mean that the opened area has lost its
reservation status.”).
App. 53
“[OjJnly Congress can divest a reservation of its
land and diminish its boundaries.” Solem v. Bartlett,
465 U.S. 463, 470, 104 S. Ct. 1161, 79 L. Ed. 2d 443
(1984). Diminishment “will not be lightly inferred”
because Congress must “clearly evince an intent to
change boundaries before diminishment will be
found.” Id. (internal quotation and citation omitted).
Without clear congressional intent to disestablish a
reservation, the reservation remains because “‘[o]nce
a block of land is set aside for an Indian Reservation
... [it] retains its reservation status until Congress
explicitly indicates otherwise.’” Yankton Sioux Tribe
v. Pedhradsky, 606 F.3d 985, 991 (8th Cir. 2010)
(quoting Solem, 465 U.S. at 470). “‘[TJhere is a pre-
sumption in favor of the continued existence of a
reservation.’” Yankton Sioux Tribe, 606 F.3d at 991
(quoting Osage Nation v. Irby, 597 F.3d 1117, 1122
(10th Cir. 2010)).
The Supreme Court has “established a fairly
clean analytical structure” for determining whether
* This analytical structure is derived from several Supreme
Court cases. As summarized by the Eighth Circuit Court of Ap-
peals in United States v. Jackson, 697 F.3d at 672 (parallel
citations omitted):
In modern times, the Supreme Court has decided
seven cases raising the question whether various sur-
plus lands Acts diminished or entirely terminated
particular reservations. In three cases, the answer
was no. Solem v. Bartlett, 465 U.S. 463, 481, 104
S. Ct. 1161, 79 L. Ed. 2d 443 (1984); Mattz [v. Arnett],
412 U.S. [481, 506, 93 S. Ct. 2245, 37 L. Ed. 2d 92
[(1973)]; Seymour v. Supt. of Wash. State Pen., 368
(Continued on following page)
App. 54
an Indian reservation has been diminished. “To de-
termine whether a reservation has been diminished,
we examine three factors: the statutory language, the
historical context, and the population that settled the
land. Of the three factors, the statutory language is
the most probative. Throughout the inquiry, ambigui-
ties are to be resolved in favor of the Indians, and
diminishment should not be found lightly.” Duncan
Energy, 27 F.3d at 1297 (citations omitted); see also
South Dakota v. Yankton Sioux Tribe, 522 U.S. 329,
344, 118 S. Ct. 789, 139 L. Ed. 2d 773 (1998) (most
probative evidence of diminishment is statutory lan-
guage used to open Indian lands; however, court will
also consider “the historical context surrounding the
passage of the surplus land Acts, and, to a lesser ex-
tent, the subsequent treatment of the area in ques-
tion and the pattern of settlement there”) (internal
quotation and citation omitted).
If an act and its legislative history fail to “provide
substantial and compelling evidence of a congres-
sional intention to diminish Indian lands,” the court
is “bound by [its] traditional solicitude for the Indian
U.S. 351, 356, 82 S. Ct. 424, 7 L. Ed. 2d 346 (1962). In
the other four, including the most recent two, the an-
swer was yes. South Dakota v. Yankton Sioux Tribe,
522 U.S. 329, 358, 118 S. Ct. 789, 139 L. Ed. 2d 773
(1998); Hagen [v. Utah], 510 U.S. 399, 421, 114 S. Ct.
958, 127 L. Ed. 2d 252 [(1994)]; Rosebud Sioux Tribe
uv. Kneip, 430 U.S. 584, 614-15, 97 S. Ct. 1361, 51
L. Ed. 2d 660 (1977); DeCoteau v. Dist. Cnty. Ct., 420
U.S. 425, 445, 95 S. Ct. 1082, 43 L. Ed. 2d 300 (1975).
App. 55
tribes to rule that diminishment did not take place
and that the old reservation boundaries survived the
opening.” Solem, 465 U.S. at 472.
A. Statutory Language
“Explicit reference to cession or other language
evidencing the present and total surrender of all
tribal interests strongly suggests that Congress
meant to divest from the reservation all unalloted
opened lands,” Solem, 465 U.S. at 470, and “cession,”
combined with “sum certain” language, is “‘precisely
suited’ to terminating reservation status.” Yankton
Sioux Tribe, 522 U.S. at 344. Specifically,
when a surplus land Act contains both ex-
plicit language of cession, evidencing “the
present and total surrender of all tribal in-
terests,” and a provision for a fixed-sum
payment, representing “an unconditional
commitment from Congress to compensate
the Indian tribe for its opened land,” a “nearly
conclusive,” or “almost insurmountable,” pre-
sumption of diminishment arises.
Id. (quoting Solem, 465 U.S. at 470 and Hagen v.
Utah, 510 U.S. 399, 411, 114 S. Ct. 958, 127 L. Ed. 2d
252 (1994)); see also United States v. Jackson, 697
F.3d at 675 (“When a surplus lands Act provides that
a Tribe cedes its entire interest in land to the United
States for a sum certain, ‘a nearly conclusive, or al-
most insurmountable, presumption of diminishment
arises.’” (quoting Yankton Sioux Tribe, 522 U.S. at
344)). However, while statutory language requiring a
App. 56
fixed-sum payment “can certainly provide additional
evidence of diminishment, the lack of such a provision
does not lead to the contrary conclusion,” Hagen, 510
U.S. at 412, and language of cession and uncondi-
tional compensation “are not prerequisites for a
finding of diminishment.” Solem, 465 U.S. at 471.
In analyzing statutory language for evidence of
diminishment, a court should focus on terms and lan-
guage contained in the operative portion of the act at
issue because it “is the relevant point of reference for
the diminishment inquiry.” Hagen, 510 U.S. at 413
(statute’s reference to “public domain” dispositive if
act “restores” lands to “public domain” in the “opera-
tive language of the statute opening the reservation
lands for settlement”). The Supreme Court has cau-
tioned that “although the statutory language must
‘establis[h] an express congressional purpose to di-
minish,’ Solem, 465 U.S., at 475, 104 S. Ct., at 1168-
1169, we have never required any particular form of
words before finding diminishment.” Hagen, 510 U.S.
at 411.
The plaintiffs admit that the most probative fac-
tor to be examined in a diminishment inquiry -—
statutory language — does not work in their favor,
acknowledging that “the express language of the 1882
Act does not incorporate terms which the [United
States Supreme] Court has previously determined to
be clear evidence of Congressional intent to dimin-
ish.” (Filing 118, Pls.’ Br. Supp. Mot. Summ. J. at
CM/ECF p. 41.)
App. 57
I agree. The language of the 1882 Act does not
provide for cession, relinquishment, conveyance, or
surrender of all rights, title, or interest to the Omaha
Tribe’s land in exchange for a specific sum of money;
does not restore lands to the public domain; and does
not require the Tribe to vacate their reservation land.
Rather, the Act states that land west of the right-of-
way could “be surveyed, if necessary, and sold” and,
after survey and “appraisement,” could be proclaimed
by the Secretary of the Interior as “open for settle-
ment.” Proceeds of the sales were to be “placed to the
credit of said Indians in the Treasury of the United
States,” and income was to “be annually expended for
the benefit of said Indians.” Further, Article 8 of the
1882 Act allows “Indians . . . [to] select the land which
shall be allotted to them in severalty in any part of
said reservation either east or west of said right of
way,” suggesting that Congress intended the land
west of the right-of-way to remain part of the Omaha
Reservation. (Emphasis added.)
In the late 1800s, “Congress was fully aware
of the means by which termination could be effected,”
as evidenced by numerous bills that were introduced
during that time frame that expressly terminated
Indian reservations in unequivocal terms. Mattz v.
Arnett, 412 U.S. 481, 504-05, 93 S.Ct. 2245, 37
L. Ed. 2d 92 & n.22 (1973) (stating that Congress
knew how to expressly terminate reservation land
when desired by using language such as “reserva-
tion is hereby discontinued,” “a portion of the. . In-
dian Reservation ... be, and is hereby, vacated and
App. 58
restored to the public domain,” and “the reservation
lines of the .. . Indian reservations be, and the same
are hereby, abolished”). When such language is not
employed, the court will not be “inclined to infer an
intent to terminate the reservation.” Mattz, 412 U.S.
at 504 (finding no diminishment when act provided
that reservation was “hereby declared to be subject to
settlement, entry, and purchase under the laws ...
granting homestead rights and authorizing the sale of
... lands,” with proceeds of land sales to “constitute a
fund to be used under the direction of the Secretary of
ihe Interior for the maintenance and education of the
Indians now residing on said lands”; finding reference
in act and legislative history to reservation in past
tense insufficient to infer clear intent to diminish
reservation).
Further, the difference between the 1882 Act and
the Omaha Treaties of 1854 and 1865 is “particularly
illuminating.” Duncan Energy, 27 F.3d at 1297. In the
Omaha Treaties of 1854 and 1865, the Tribe expressly
agreed to “cede, sell, and convey” land to the United
States and “relinquish ... all claims” thereto in ex-
change for fixed sums of money, demonstrating that
both Congress and the Tribe knew how to alter the
reservation boundaries when they chose to do so.
(Filing 115-2, 1854 Treaty (“The Omaha Indians cede
to the United States” and “relinquish to the United
States all claims” in exchange for specific sums of
money); Filing 115-3, 1865 Treaty (“The Omaha tribe
of Indians do hereby cede, sell, and convey to the
United States a tract of land” and “the United States
App. 59
agree to pay to the said Omaha tribe of Indians the
sum of fifty thousand dollars”). This treaty language
is substantially different from that employed in the
1882 Act.
The Eighth Circuit Court of Appeals addressed a
similar scenario in Duncan Energy, 27 F.3d at 1297,
where the court compared an 1891 treaty in which an
Indian tribe agreed to “cede, sell, and relinquish to
the United States all their right, title, and interest
in” a portion of its reservation and referred to the
“diminished Reservation” with a 1910 allotment stat-
ute that merely authorized the Secretary of the In-
terior to “surve[y] and to sell and dispose of . . . all the
surplus unallotted and unreserved lands within [a]
portion of said reservation... .” Finding this contrast
in language to be “particularly illuminating,” the
court concluded that the allotment statute did not
result in diminishment, stating that “[i]t would be
contrary to the principle of resolving ambiguities in
favor of the Indians were we to conclude that Con-
gress intended the same meanings for the vastly
different language employed in these two documents
[the treaty and the allotment statute] affecting the
Tribe.” Id.
When compared to the language used in the 1854
and 1865 Omaha treaties, as well as statutes enacted
by Congress around the turn of the century that the
Supreme Court has construed to diminish reserva-
tion boundaries, I conclude that the language of the
1882 Act does not “clearly evince” Congress’ “intent
to change boundaries” of the Omaha Reservation,
App. 60
Solem, 465 U.S. at 470. Rather, the 1882 Act indicates
that the United States intended to act as the Omaha
Tribe’s sales agent for purposes of surveying and
auctioning its reservation land west of the right-of-
way, with the proceeds held in trust in the United
States Treasury for the benefit of miembers of the
Omaha Tribe. See Yankton Sioux Tribe, 522 U.S. 329,
118 S. Ct. 789, 139 L. Ed. 2d 773 (finding diminish-
ment when act provided that Tribe would “cede, sell,
relinquish, and convey to the United States all their
claim, right, title, and interest in and to all the un-
allotted lands within the limits of the reservation”
and the United States pledged a fixed payment of
$600,000 in return); Hagen, 510 U.S. at 412-14 (find-
ing diminishment when act’s language provided for
opened land to be “restored to the public domain” in
the operative language of the statute opening reser-
vation lands for settlement); Solem, 465 U.S. at 472-
475 (finding that act “opened but did not diminish”
reservation and that Secretary of the Interior was
“simply being authorized to act as the Tribe’s sales
agent” when act authorized Secretary to “sell and
dispose” of portions of reservation land and provided
that “proceeds arising from the sale ... shall be
deposited in the Treasury of the United States, to the
credit of the Indians ... ”; noting no “specific refer-
ence to the cession of Indian interests in the opened
lands or any change in existing reservation bound-
aries”; finding that act’s “isolated” and “ambiguous”
references to “reservations thus diminished” and
“public domain” were “hardly dispositive” and were
insufficient to infer intent to diminish reservation
App. 61
when balanced against act’s purpose of opening
reservation lands for sale to non-Indian settlers);
Rosebud Sioux Tribe, 430 U.S. at 597 (finding dimin-
ishment when act was ratification of negotiated
agreement with tribe that opened lands to settlement
and appropriated and vested in the tribe $2.50 per
acre in payment for the express cession and relin-
quishment of “all” of the tribe’s “claim, right, title and
interest” in the unallotted lands); DeCoteau v. District
County Court, 420 U.S. 425, 436, 95 S. Ct. 1082, 43
L. Ed. 2d 300 (1975) (finding diminishment when
tribe agreed to “cede, sell, relinquish, and convey to
the United States all their claim, right, title, and in-
terest” in reservation land for payment of sum cer-
tain); Seymour v. Superintendent of Washington State
Penitentiary, 368 U.S. 351, 82 S. Ct. 424, 7 L. Ed. 2d
346 (1962) (finding no diminishment when act did not
provide that reservation land was “vacated and re-
stored to the public domain” and stated that proceeds
from disposition of lands were to be deposited in
United States Treasury “to the credit of the Colville
.... Indians”; stating that the “Act did no more than
open the way for non-Indian settlers to own land on
the reservation in a manner which the Federal Gov-
ernment, acting as guardian and trustee for the
Indians, regarded as beneficial to the development of
its wards”); Duncan Energy, 27 F.3d at 1297 (finding
no disminishment when act “merely authorized the
Secretary of the Interior to ‘survely] and to sell and
dispose of ... all the surplus unallotted and un-
reserved lands within [a] portion of said reservation
...’”; authorized Secretary to reserve land in opened
App. 62
territory for schools and religious institutions for ben-
efit of Indian tribe; prohibited intoxicants in Indian
Country in the opened territory; reserved timber and
coal rights in opened territory for tribe; and stated
that United States would act as “trustee for said
Indians”).
B. Histori un Pas-
sage of Act
While Plaintiffs admit that the 1882 Act does not
contain language that the Supreme Court has charac-
terized as evidence of Congress’ clear intent to dimin-
ish the Omaha Indian Reservation, Plaintiffs argue
that “the legislative history of the 1882 Act and Con-
gress’ subsequent treatment of the land do make it
clear that Congress intended to diminish and alter
the boundaries of the reservation.” (Filing 118, Pls.’
Br. Supp. Mot. Summ. J. at CM/ECF p. 41.)
“Even in the absence of a clear expression of con-
gressional purpose in the text of a surplus land Act,
unequivocal evidence derived from the surrounding
circumstances may support the conclusion that a res-
ervation has been diminished.” Yankton Sioux Tribe,
522 U.S. at 351 (emphasis added) (looking at man-
ner in which legislation developed after negotiations
with tribe and tenor of legislative reports presented
to Congress and noting that while such “context”
was not compelling enough to indicate diminishment
standing alone, it did not rebut the statute’s plain
App. 63
terms, which established Congress’ intent to diminish
reservation).
When events surrounding the passage of
a surplus land act — particularly the man-
ner in which the transaction was negotiated
with the tribes involved and the tenor of
legislative reports presented to Congress —
unequivocally reveal a widely-held, contem-
poraneous understanding that the affected
reservation would shrink as a result of the
proposed legislation, we have been willing
to infer that Congress shared the under-
standing that its action would diminish the
reservation, notwithstanding the presence
of statutory language that would otherwise
suggest reservation boundaries remained un-
changed.
Solem, 465 U.S. at 471.
The legislative history and the circumstances
surrounding the 1882 Act indicate that in 1882, the
only thing that can be said with certainty is that
Congress understood that the stated purpose of the
legislation at issue was “to sell this land and get it
into cultivation, and the object of the Indians is to get
the money and have it put in trust for them here in
Washington where they can draw their interest.”
(Filing 117-17 at CM/ECF p. 17, 13 Cong. Rec. 3079
(1882) (statement of Sen. Saunders).) The congres-
sional debate indicates both an intent to “sell off from
this reservation ... 50,000 acres in a block on the
western side of it,” but also an intent to honor an
existing treaty which allowed “any Indian [to] go
App. 64
upon any part of the whole reservation and occupy”
the land.” (Filing 117-17 at CM/ECF p. 15 (statement
of Sen. Dawes) (emphasis added).) These dual goals
resulted in confusion and debate among members of
Congress regarding treatment of the “Indian lands”
versus lands of the “white people who would be
settling “side by side with the Indians,” especially
with regard to taxation." The legislative history fur-
ther indicates that the primary concern of the Omaha
Tribe was obtaining “clear and full title” to land on
which they had worked, farmed, and built houses
upon and which they wished to pass on to their
° See Filing 117-17 at CM/ECF pp. 32-33 (statements of
Rep. Haskell (“This is the protection of the Indians in the sale.
Before any land is sold they are at liberty to make their individ-
ual selections. ”; Indians’ “severalty selections” may be made
“anywhere in the reservation”; “Any Indian, however, who
wishes to take his piece of land to the west of the railroad can
do s0.”)).
" See Filing 117-17 at CM/ECF p. 16 (statement of Sen.
Jones (“If you undertake to sell the Indian lands, and to permit
the white people to buy them and settle side by side with the
Indians, and thus consolidate and unite these two populations
together, you cannot apply one rule to one and another to
another. If you want to give Indians land in severalty, separate
them from the white masses; recognize their independent or-
ganization, but do not undertake to mix them up side by side
with the white people under such a system as this.”)); Id.
(statement of Sen. Butler (“I understand _.. that it is proposed
to sell about fifty thousand acres of this reservation to anybody
who chooses to purchase, Indian, white man, or anybody else. Do
I understand that the Senator proposes to protect an Indian who
purchases part of that 50,000 acres and takes it in severalty —
does he propose to exempt that Indian from taxation?”)).
App. 65
children. (Filing 117-17 at CM/ECF pp. 19-30 (H.R.
Rep. No. 1530, 47th Cong., 1st Sess. (July 1, 1882)
(statements by 53 individual members of the Omaha
Indian Tribe regarding their desire to have title to
their land); Filing 117-17 at CM/ECF p. 30 (Big Elk
stating, “We want titles to our lands. We are thinking
of little else.”).)
None of this legislative history establishes that
Congress clearly contemplated that the area west of
the right-of-way — whether sold in a “block” or in
parcels among Indian allotments — would no longer
be within the Omaha Reservation boundaries after
the 1882 Act. Indeed, the parties do not cite, nor does
the court find, specific discussion of how, if at all, the
1882 Act would impact Omaha Reservation bounda-
ries or whether the Act would transfer the Omaha
Indians’ tribal sovereignty in a particular geographic
area. See, e.g., Yankton Sioux Tribe v. Gaffey, 188 F.3d
at 1025 (noting that because Yankton Indian Com-
mission report to Congress did not describe reser-
vation boundaries or mention transfer of tribal
sovereignty, the report did not indicate “clear and
plain congressional intent” to terminate reservation
status of nonceded lands).
The legislative history leading up to the passage
of the 1882 Act is insufficient to establish an “un-
equivocal,” widely held, contemporaneous understand-
ing that the 1882 Act would diminish or alter the
boundaries of the Omaha Reservation, as opposed to
merely authorize the sale of reservation land to non-
Indian settlers for the Omaha Tribe’s benefit — that
App. 66
is, to remove certain land within the Omaha Reserva-
tion from Indian control while retaining the reserva-
tion’s original exterior boundaries. Solem, 465 U.S. at
477-78 (neither floor debates nor legislative reports
contained clear statement that Indians agreed to
“cede” opened areas — rather, Congress described In-
dians as being “satisfied to have the surplus and
unalloted lands disposed of under the provisions of
the bill as amended”; legislative debate centered on
amount of money Indians would receive after sale
and “no mention was made of the Act’s effect on the
reservation’s boundaries or whether State or Fed-
eral officials would have jurisdiction over the opened
areas”; while there was some legislative history sup-
porting idea that reservation was diminished, Court
could not find congressional purpose to diminish res-
ervation “[wlithout evidence that Congress under-
stood itself to be entering into an agreement under
which the Tribe committed itself to cede and relin-
quish all interests in unallotted opened lands” and
without “some clear statement of congressional intent
to alter reservation boundaries”); City of New Town,
454 F.2d at 125 (citing Seymour, 368 U.S. 351, 82
S. Ct. 424, 7 L. Ed. 2d 346) (“The opening of an In-
dian reservation for settlement by homesteading is
not inconsistent with its continued existence as a
reservation.”).
The plaintiffs contend that an intent to diminish
the Omaha Reservation is evident from the fact that
from 1871 to 1882, the Omaha Tribe and various mem-
bers of Congress consistently sought to “separate”
App. 67
and sell 50,000 acres from the western portion of the
Omaha Reservation. (See Undisputed Material Facts
77 24-28 of this Memorandum & Order.) However, if
use of the word “separate” in proposed and actual
legislation prior to 1882, as well as the phrase “to be
separated from the remaining portion of said reserva-
tion” in the 1872 Act, have any legal relevance, then
equally significant is Congress’s decision to remove
the word and phrase from the 1882 Act at issue here.
Like the use of the phrase “separate” in prior
legislation, the Commissioner of Indian Affairs’ two
isolated statements — 10 years prior to the 1882 Act —
referring to “diminishing these reservations” and
“diminished reserve” also carry little weight. (See
Undisputed Material Facts {J 26 & 28 of this Memo-
randum & Order.) The Supreme Court has held that
even direct, contemporaneous congressional language
“scattered through the legislative history” referring to
“reduced reservation(s]” or “reservations as dimin-
ished” is ambiguous for purposes of diminishment
analysis. Solem, 465 U.S. at 478. In using such
phrases, “it is unclear whether Congress was alluding
to the reduction in Indian-owned lands that would
occur once some of the opened lands were sold to set-
tlers or to the reduction that a complete cession of
tribal interests in the opened area would precipitate.”
Id.; see also Lower Brule Sioux Tribe, 711 F.2d at 819
(holding that the phrase “as diminished” had “noth-
ing to do with the location of reservation boundaries”
App. 68
and fell short of establishing congressional intent to
disestablish).”
Because I have found that both the language in
the 1882 Act and its legislative history “fail to provide
substantial and compelling evidence of a congres-
sional intention to diminish Indian lands,” I am
“bound by our traditional solicitude for the Indian
tribes to rule that diminishment did not take place
and that the old reservation boundaries survived the
opening.” Solem, 465 U.S. at 472 (citing Mattz, 412
U.S. at 505; Seymour, 368 U.S. 351, 82 S. Ct. 424, 7
L. Ed. 2d 346). However, I shall address the third
prong of the well-established diminishment “analyti-
cal structure,” as courts are to consider all three
* In Solem, both the Senate and House reports referred to
a “reduced reservation” and to “reservations as diminished.”
Solem, 465 U.S. at 478 (citations omitted). The statute itself
even referred to the reservation as “thus diminished” and to
certain parts of the opened lands as “part of the public domain.”
Id. at 474-75. Yet the Supreme Court held that these statements
did not constitute clear congressional intent to diminish reserva-
tion boundaries. Similarly, in Yankton Sioux Tribe, 522 U.S. at
353-54, references to restoring the land at issue to the “public
domain” appeared in the legislative history of the statute, as
well as in the annual report of the Commissioner on Indian
Affairs. The Supreme Court found that the “context of the Act is
not so compelling that, standing alone, it would indicate dimin-
ishment,” but the Court went on to find diminishment because
of the “almost insurmountable presumption that arises from the
statute’s plain terms.” Jd. at 351 (internal quotation marks and
citation omitted). As explained above, the language of the 1882
Act does not raise such an “insurmountable presumption.”
App. 69
factors in determining whether an Indian reservation
has been diminished.
C tment of Pat-
tern of Settlement
The plaintiffs assert that “jurisdictional history
and population demographics” of the land at issue
“‘demonstrate[ } a practical acknowledgment that the
Reservation was diminished.’” (Filing 118, Pls.’ Br.
Supp. Mot. Summ. J. at CM/ECF p. 43 (quoting
Hagen, 510 U.S. at 421).)
To a lesser extent, we have also looked to
events that occurred after the passage of a
surplus land act to decipher Congress’s in-
tentions. Congress’s own treatment of the
affected areas, particularly in the years im-
mediately following the opening, has some
evidentiary value, as does the manner in
which the Bureau of Indian Affairs and local
judicial authorities dealt with unalloted open
lands.
Solem, 465 U.S. at 471. However, subsequent history
is “less illuminating” than contemporaneous evidence.
Hagen, 510 U.S. at 420. The court may also “look to
the subsequent demographic history of opened lands
as one additional clue as to what Congress expected
would happen once land on a particular reservation
was opened to non-Indian settlers.” Solem, 465 U.S.
at 471-472.
App. 70
1. Subsequent Treatment of Area
As evidence of diminishment, the plaintiffs argue
that “[s]ince the early twentieth century, Indians
have comprised less than two percent of the popula-
tion west of the right[-of-way] and State and local
officials — not the Omaha Tribe — have exercised ex-
clusive jurisdiction over the land.” (Filing 118, Pls.’
Br. Supp. Mot. Summ. J. at CM/ECF p. 43.) The
plaintiffs also cite as persuasive the facts that (1) Con-
gress treated the disputed land as if it were no longer
part of the Omaha Reservation by passing the 1888
extension, which directed that in the event a settler
defaulted on payment for a homestead claim in the
disputed territory, the land was to be sold at public
auction, not revert back to tribal ownership; (2) the
Bureau of Indian Affairs issued reports and state-
ments indicating their belief that the land west of the
right-of-way was no longer part of the reservation;
and (3) a local court and the Nebraska Attorney
General determined that the property west of the
right-of-way was no longer part of the Omaha Reser-
vation after the 1882 Act. (Filing 118, Pls.’ Br. Supp.
Mot. Summ. J. at CM/ECF pp. 45-49.)
It is true that Congress postponed the 1882 Act’s
payments required from non-Indian settlers via sub-
sequent legislation enacted in 1885, 1886, 1888, 1890,
and 1894. (See Undisputed Material Facts 761 of
this Memorandum & Order.) These extensions were
passed several years after the 1882 Act, yet Congress
continued to reference the disputed area as the
“Omaha Indian Reservation” and “Omaha lands.” See
App. 71
49 Cong. Ch. 844, Act of Aug. 2, 1886, 24 Stat. 214
(“all persons who have settled or shall settle upon
said Omaha lands”); 50 Cong. Ch. 255, Act of May 15,
1888, 25 Stat. 150 (Secretary of Interior authorized to
extend the time for payment due for “land sold on
[the] Omaha Indian Reservation ... by virtue of an
act to provide for the sale of a part of the reserva-
tion of the Omaha tribe of Indians in the State of
Nebraska”); 51 Cong. Ch. 803, Act of Aug. 19, 1890,
26 Stat. 329 (same); 53 Cong. Ch. 254, Act of Aug. 11,
1894, 28 Stat. 276 (same). This would suggest that
the opened area remained a part of the reservation.
Solem, 465 U.S. at 478-79 (two years after the sur-
plus land statute at issue, Congress passed another
bill referring to “‘lands in the Cheyenne River Indian
Reservation,’ suggesting that the opened area was
still a part of the reservation”) (citation omitted) (em-
phasis in original).
The 1888 extension Act, 25 Stat. 150, also ad-
dressed what was to happen upon default by a pur-
chaser, a scenario about which the 1882 Act was
silent. The 1888 Act provided that upon default by a
purchaser, the Secretary of the Interior was to sell
the land at public auction to the highest bidder, over
and above the original appraisal, with “the proceeds
of all such sales ... covered into the Treasury, to be
disposed of for the sole use of said Omaha tribe of
Indians.” 25 Stat. 150 §3. Under the 1888 Act, the
United States merely continued to act as trustee for
the Tribe so the Tribe gained the financial benefit of
the sale. Congress’s reaffirmation in the 1888 Act that
App. 72
the United States served as trustee for the Tribe’s
benefit, as opposed to the absolute owner of unre-
stricted fee title by virtue of the cession of Indian
lands, hints that diminishment did not occur. See,
e.g., Ash Sheep Co. v. United States, 252 U.S. 159,
164-66, 40 S. Ct. 241, 64 L. Ed. 507 (1920) (distin-
guishing between the United States acting as trustee
for a tribe and the United States acquiring unre-
stricted title to their lands by tribal cession). In ad-
dition, 12 years after the passage of the 1882 Act,
Congress stated that the 1894 extension “shall be of
no force and effect until the consent thereto of the
Omaha Indians shall be obtained,” 53 Cong. Ch. 254,
1894 Act, 28 Stat. 276, again suggesting the contin-
ued reservation status of the disputed lands.
As to treatment of the area west of the right-of-
way following the 1882 Act, the Omaha Reservation
has been described, treated, and mapped inconsis-
tently by the State of Nebraska, its agencies, and the
United States. (See Undisputed Material Facts of this
Memorandum & Order {4 60, 63-64, 67-72, 75, 83,
85-87, 89-91, 97-99, 101-102, 104; Filing 107, Exs. 1 &
2; Filing 106-3; Filings 123-2, 123-3, 123-4, 123-5,
123-6, 123-7, 123-8, 123-9.)
A “mixed record” which fails to reveal a con-
sistent or dominant approach to the territory at issue
is of “limited interpretive value,” carries “little force,”
and cannot be considered dispositive of the question
whether Congress intended to diminish the Omaha
Reservation in the 1882 Act. Yankton Sioux Tribe, 522
U.S. at 354-355 (citing conflicting descriptions of
App. 73
disputed land by Congress and Executive Branch and
inconsistent “scores of administrative documents and
maps” presented by parties; finding that such evi-
dence carried “little force in light of the strong textual
and contemporaneous evidence of diminishment” and
that “the views of a subsequent Congress form a
hazardous basis for inferring the intent of an earlier
one” (internal quotations and citations omitted));
Solem, 465 U.S. at 478-479 (“The subsequent treat-
ment of the Cheyenne River Sioux Reservation by
Congress, courts, and the Executive is so rife with
contradictions and inconsistencies as to be of no help
to either side.”); Rosebud Sioux Tribe, 430 U.S. at 604
n.27 (sporadic and contradictory history of congres-
sional and administrative actions carried “little force”
in light of state’s longstanding and clear assumption
of jurisdiction over disputed area, with acquiescence
by the tribe and federal government); Yankton Sioux
Tribe v. Gaffey, 188 F.3d at 1029 n.11 (conflicting
representations of reservation boundaries in adminis-
trative materials and maps had limited interpretive
value, as “use of the term ‘Yankton Sioux Reservation’
in such documents, without more, cannot be said to
be a considered jurisdictional statement regarding
the specific status of the remaining Indian lands”).
2. P f
The plaintiffs argue that “[slince the early twen-
tieth century, Indians have comprised less than two
percent of the population west of the right/-of-way]
and State and local officials — not the Omaha Tribe —
App. 74
have exercised exclusive jurisdiction over the land.”
(Filing 118, Pls.’ Br. Supp. Mot. Summ. J. at CM/ECF
p. 43.)
“Where non-Indian settlers flooded into
the opened portion of a reservation and the
area has long since lost its Indian character,
we have acknowledged that de facto, if not de
jure, diminishment may have occurred.”
[Solem, 465 U.S.] at 471, 104 S. Ct., at 1166.
This final consideration is the least compel-
ling 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, yet we have
repeatedly stated that not every surplus land
Act diminished the affected reservation.
Yankton Sioux Tribe, 522 U.S. at 356. The Court has
also noted that “[wJhen an area is predominately
populated by non-Indians with only a few surviving
pockets of Indian allotments, finding that the land
remains Indian country seriously burdens the admin-
istration of State and local governments.” Solem, 465
U.S. at 472 n.12.
The parties agree that very few Omaha Indians
settled west of the right-of-way but, as stated above,
this is the “least compelling” factor in diminishment
analysis because every act of this kind necessarily
resulted in “a surge of non-Indian settlement,” yet the
Supreme Court has found that diminishment did not
occur. Yankton Sioux Tribe, 522 U.S. at 356.
App. 75
The parties also agree that “many” members of
the Omaha Tribe have regularly visited, resided in,
and conducted business in Pender. Community in-
volvement by members of the Omaha Tribe suggests
their understanding that Pender sits within reserva-
tion boundaries. For example, as early as 1890, an
attorney and member of the Omaha Tribe maintained
-an office and residence in Pender, as well as served as
mayor of the Village of Pender, Thurston County sur-
veyor, and justice of the peace. At a time not specified
by the parties, another attorney and enrolled mem-
ber of the Omaha Tribe resided and practiced law
in Pender, where his children attended the public
schools. He also served as the Thurston County At-
torney for eight years before being elected as a county
judge. Finally, there is some historical evidence that
the Omaha Indians have held several additional pub-
lic offices in Thurston County, including county cor-
oner, constable, road overseer, election officer, and
juror in the county and district courts. (Undisputed
Material Facts of this Memorandum & Order 44 76-
81 (citing Hallowell v. United States, 221 U.S. 317,
319-20, 31 S. Ct. 587, 55 L. Ed. 750 (1911).)
In contrast, the parties have stipulated that
Omaha Tribal authorities enforce various portions of
the Omaha Tribal Code east, but not west, of the
right-of-way; the Omaha Tribe does not offer foster
care or medical, welfare, or child protective services
west of the right-of-way; the Omaha Tribe does not
have an office and does not operate a school, indus-
try, or business west of the right-of-way; no tribal
App. 76
celebrations or ceremonies take place west of the
right-of-way; the Omaha Tribe does not conduct gov-
ernmental or ceremonial activities west of the right-
of-way; and the Tribe has no mineral rights or other
claims to land west of the right-of-way. (Undisputed
Material Facts of this Memc’andum & Order 4] 95-
96.)
As was the case with state and federal agencies’
inconsistent treatment of the disputed land following
the 1882 Act, this “mixed” evidence regarding the
demographics of the area west of the right-of-way is
not dispositive. Solem, 465 U.S. at 478-79 (finding no
diminishment where “[t]he subsequent treatment of
the Cheyenne River Sioux Reservation by Congress,
courts, and the Executive is so rife with contradic-
tions and inconsistencies as to be of no help to either
side”); Duncan Energy, 27 F.3d at 1297 (“Throughout
the {diminishment] inquiry, ambiguities are to be re-
solved in favor of the Indians, and diminishment
should not be found lightly.”).
Even if this demographic evidence did establish
diminishment, it cannot overcome my conclusion that
the language of the 1882 Act itself does not clearly
evince Congress’ intent to diminish the Omaha Res-
ervation. Duncan Energy, 27 F.3d at 1298 (“We find
... exclusive reliance on the third Solem factor to
create a quasi-diminishment totally inappropriate.”).
App. 77
Iv. CONCLUSION
“Once a block of land is set aside for an Indian
Reservation and no matter what happens to the title
of individual plots within the area, the entire block
retains its reservation status until Congress explicitly
indicates otherwise.” Solem, 465 U.S. at 470. Con-
gress did not explicitly indicate otherwise here, as
neither the 1882 Act’s statutory language, the legisla-
tive history and circumstances surrounding the pas-
sage of the Act, nor the demographic history of the
land west of the right-of-way demonstrate clear con-
gressional intent to diminish the boundaries of the
Omaha Indian Reservation or a widely-held, contem-
poraneous understanding that Congress’s action
would diminish those boundaries.
Accordingly,
IT IS ORDERED:
1. Because the 47th Congress’s Act of August 7,
1882, 22 Stat. 341, did not diminish the boundaries of
the Omaha Indian Reservation as they existed at that
time, the motion for summary judgment (Filing 116)
filed by Plaintiffs requesting declaratory and injunc-
tive relief from the Omaha Indian Tribe’s attempt to
enforce the Omaha Tribe’s Beverage Control Ordi-
nance, as amended, 71 Fed. Reg. 10056 (Feb. 28,
2006), against Defendants is denied;
2. The motion for summary judgment (Filing
113) filed by Defendants is granted;
App. 78
3. The temporary restraining order prohibiting
the enforcement of the Omaha Tribe’s Beverage Con-
trol Ordinance in Pender, Nebraska, which was later
extended by a stipulation of the parties (Filings 16
& 29), is dissolved;
4. The State of Nebraska’s claims as plaintiff-
intervenor are mooted by my finding that the 1882
Act did not diminish the Omaha Indian Reservation;
and
5. Judgment in favor of Defendants and Defendant-
Intervenor and against Plaintiffs and Plaintiff-Intervenor
providing that Plaintiffs and Plaintiff-Intervenor shall
take nothing shall be entered by separate document.
DATED this 13th day of February, 2014.
BY THE COURT:
/s/ Richard G. Kopf
Senior United States District Judge
App. 79
JUDGMENT
Pursuant to the Memorandum and Order filed
this date finding that the 47th Congress’s Act of
August 7, 1882, 22 Stat. 341, did not diminish the
boundaries of the Omaha Indian Reservation as they
existed at that time and denying Plaintiffs’ and
Plaintiff-Intervenor’s requests for declaratory and
injunctive relief from the Omaha Indian Tribe’s
attempt to enforce against Defendants the Omaha
Tribe’s Beverage Control Ordinance, as amended, 71
Fed. Reg. 10056 (Feb. 28, 2006),
JUDGMENT is hereby entered in favor of De-
fendants and Defendant-Intervenor and against Plain-
tiffs and Plaintiff-Intervenor, providing that: (1) Plain-
tiffs and Plaintiff-Intervenor shall take nothing; and
(2) the temporary restraining order prohibiting the
enforcement of the Omaha Tribe’s Beverage Control
Ordinance in Pender, Nebraska, which was later
extended by a stipulation of the parties, is dissolved.
DATED this 13th day of February, 2014.
BY THE COURT:
/s/ Richard G. Kopf
Senior United States District Judge
App. 80
Richard M. Smith, et al., Appellants v. Mitch
Parker, In his official capacity as Chairman
of the Omaha Tribal Council, et al., Appellees
No: 14-1642
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
2015 U.S. App. LEXIS 3054
February 26, 2015, Decided
COUNSEL: For Richard M. Smith, Donna Smith,
Doug Schrieber, Susan Schrieber, Rodney A. Heise,
Thomas J. Welsh, Jay Lake, Julie Lake, Kevin
Brehmer, Ron Brinkman, Village of Pender, Plaintiffs-
Appellants: Mark Davis Hill, HUSCH & BLACK-
WELL, Omaha, NE; Marnie Jensen, Gene Summerlin,
HUSCH & BLACKWELL, Lincoln, NE.
For State of Nebraska, Intervenor Plaintiff-Appellant:
Blake E. Johnson, Assistant Attorney General, David
A. Lopez, Assistant Attorney General, Ryan Post, As-
sistant Attorney General, Katherine J. Spohn, Assis-
tant Attorney General, ATTORNEY GENERAL'S
OFFICE, Lincoln, NE.
For Mitch Parker, In his official capacity as Chair-
man of the Omaha Tribal Council, Barry Webster, In
his official capacity as Vice-Chairman of the Omaha
Tribal Council, Amen Sheridan, In his official capac-
ity as Treasurer of the Omaha Tribal Council, Rodney
Morris, In his official capacity as Secretary of the
Omaha Tribal Council, Orville Cayou, In his official
capacity as Member of the Omaha Tribal Council,
App. 81
Eleanor Baxter, In her official capacity as Member of
the Omaha Tribal Council, Ansley Griffin, In his offi-
cial capacity as Member of the Omaha Tribal Council
and as the Omaha Tribe’s Director of Liquor Control,
Defendants-Appellees: Nora Marie Kane, Patricia A.
Zieg, STINSON & LEONARD, Omaha, NE; Mark Jon
Peterson, PETERSON LAW OFFICE, Omaha, NE.
For The United States, Intervenor Defendant-Appellee:
Katherine J. Barton, Mary Gabrielle Sprague, U.S.
DEPARTMENT OF JUSTICE, Environment & Natu-
ral Resources Division, Appellate Section, Wash-
ington, DC; Daron Carreiro, U.S. DEPARTMENT
OF JUSTICE, Environmental Enforcement Division,
Washington, DC.
OPINION
ORDER
The petition for rehearing en banc
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