Opposition Brief — Nebrasks v. Parker, 136 S. Ct. 27 (2015) (No. 14-1406)

No. 14-1406

In the Supreme Court of the United States

STATE OF NEBRASKA ET AL., PETITIONERS

Vv.

MITCH PARKER, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

JOHN C, CRUDEN

Assistant Attorney General

WILLIAM B. LAZARUS

KATHERINE J. BARTON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBric/s@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether Congress diminished the boundaries of

the Omaha Indian Reservation by the Act of Aug. 7,

1882, ch. 434, 22 Stat. 341.

(I)

TABLE OF CONTENTS

Page

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(EEE ner we ne ae l

ee eee Ty ee a en 1

Se ipepenecnecrensneensenesiensssinmmmnanninnnnemeneemeientimnnamnniee 9

EEE Cn en 13

TABLE OF AUTHORITIES

Cases:

Hagen v. Utah, 510 U.S. 399 (1994) ...........ccceccccecesescsesseeseessees 7

Solem v. Bartlett, 465 U.S. 463 (1984) .........c.cccceseseesees passim

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329

EEA a one ns se A a en 12

Sprietsma v. Mercury Soustnn, 537 U.S. 51 (2002) .............. 9

Treaties and statutes:

Treaty of Mar. 16, 1854, U.S.-Omaha Tribe, 10 Stat.

elated aeatii ih iniataateiiniaes init neal aarti meas 2

a ile iaciatescieti 2

Treaty of Mar. 6, 1865, U.S.-Omaha Tribe, 14 Stat.

——__ RETA me eT ceidaeliinipiialittctietinidl 2

art. I, 14 Stat. 667. sciatica atlases 2

gE eT eee 2

Act of June 10, 1872, ch. 436, 17 Stat. 391.00... 2

Act of Aug. 7, 1882, ch. 434, 22 Stat. 341 00... ec cceceeeeeee 2

A aR Cn eee EE. 3

18 U.S.C. 1161 sinietseiaahidibaheaitei ciliates aaa niaiaitaiiatintal 4

Miscellaneous:

71 Fed. Reg. 10,056 (Feb. 28, 2006) ................sceccessecsseseeseeesees 4

(IIT)

In the Supreme Court of the Gnited States

No. 14-1406

STATE OF NEBRASKA ET AL., PETITIONERS

v.

MITCH PARKER, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-8)

is reported at 774 F.3d 1166. The opinion of the dis-

trict court (Pet. App. 9-78) is reported at 996 F. Supp.

2d 815.

JURISDICTION

The judgment of the court of appeals was entered

on December 19, 2014. A petition for rehearing en

bane was denied on February 26, 2015 (Pet. App. 80-

81). The petition for a writ of certiorari was filed on

May 27, 2015. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

1. a. In 1854, the Omaha Tribe entered into a trea-

ty with the United States “reserviing]” land for the

(1)

2

Omahas “for their future home.” Treaty of Mar. 16,

1854, U.S.-Omaha Tribe, 10 Stat. 1043. The Tribe

agreed to “cede” to the United States “all claims” to a

portion of its historic lands in exchange for a fixed

sum of $840,000. Jd. art. 4, 10 Stat. 1044. The remain-

ing land, which was designated the Omaha Reserva-

tion, comprised 300,000 acres in northeast Nebraska.

Pet. App. 20.

In 1865, the Tribe agreed to “cede, sell, and con-

vey” to the United States approximately 98,000 acres

from the northern part of the Reservation in exchange

for a fixed sum of $50,000 and certain other promises

by the government. Treaty of Mar. 6, 1865, U.S.-

Omaha Tribe, 14 Stat. 667. The 1865 Treaty required

the Tribe to “vacate and give possession of the lands

ceded” by the treaty “immediately after its ratifica-

tion,” so that land could be made available to the Win-

nebago Tribe.' Jd. arts. I & V, 14 stat. 667-668.

In 1872, in response to a request from the Tribe,

Congress authorized the Secretary to survey, ap-

praise, and sell up to 50,000 acres on the western side

of the Reservation, to be delineated by a north-south

line. Act of June 10, 1872, ch. 436, 17 Stat. 391. The

1872 Act provided that the proceeds would be deposit-

ed in the United States Treasury for the benefit of the

Tribe. Jbid. The 1872 Act failed to raise substantial

funds, however: Only two sales comprising 300.72

acres were made under the statute. Pet. App. 23.

b. In 1882, Congress again authorized the Secre-

tary to survey, appraise, and sell lands on the western

side of the Reservation. Act of Aug. 7, 1882, ch. 434,

' In 1874, the Omaha Tribe sold to the United States an addi-

tional 12,374.53 acres from the northeastern corner of the Reser-

vation for use by the Winnebago Tribe. Pet. App. 24.

3

22 Stat. 341. The 1882 Act provided that “the Secre-

tary of the Interior [shall] be, and he hereby is, au-

thorized 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 Indians to the Sioux City and Nebraska Railroad

Company.” Jbid. The Tribe had granted the “right of

way” mentioned in the 1882 Act two years earlier.

The right-of-way ran in a diagonal line “from the

northern edge of [the] reservation generally south-

eastward” to its southern border. Pet. App. 20.

The 1882 Act allowed the Omahas to select allot-

ments in the opened area. The Act provided that

Tribe members “may, if they shall so elect, 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 mentioned in the first section of this act.”

§ 8, 22 Stat. 343. “[U]nallotted lands” west of the

railroad right-of-way were made available for pur-

chase and settlement by non-members, with the sale

proceeds “placed to the credit of said Indians in the

Treasury of the United States.” Jd. at 341

Following the 1882 Act, Tribe members selected 10

to 15 allotments, totaling 876 acres, west of the rail-

road right-of-way. Pet. App. 34. The rest of the newly

opened land was sold to settlers and patented over the

next several decades. /d. at 34, 36.

2. a. Pender, Nebraska, is a town of approximately

1300 residents situated on land lying west of the Sioux

City and Nebraska railroad right-of-way, in the area

opened to sale by the 1882 Act. Pet. App. 14-15, 38.

In 2004, the Omaha Tribe adopted an alcoholic bever-

age control ordinance regulating the sale of alcohol

within the boundaries of the Omaha Reservation. /d.

4

at 16. The ordinance was certified by the Department

of the Interior in 2006. 71 Fed. Reg. 10,056 (Feb. 28,

2006). Following certification, the Tribe began notify-

ing liquor retailers, including retailers in Pender, of

its intention to enforce the ordinance. Pet. App. 16-18.

In 2007, Pender and several beverage retailers

sued tribal officials in federal district court seeking a

declaration that Pender is not within the Omaha Res-

ervation and seeking an injunction barring the Tribe

from enforcing its liquor ordinance against them. Pet.

App. 18. The court granted a temporary restraining

order and stayed further proceedings so that the

plaintiffs could exhaust their remedies in Omaha trib-

al court. Jd. at 18-19. On February 4, 2013, the tribal

court concluded that the 1882 Act did not diminish the

Omaha Reservation’s boundaries. Jd. at 19. This

action resumed in the district court, where the State

of Nebraska intervened as a plaintiff and the United

States intervened as a defendant. Jd. at 46-47.

b. On cross motions for summary judgment, the

district court ruled against petitioners. Pet. App. 9-

78. The court observed at the outset that petitioners

had conceded that 18 U.S.C. 1161 permits the Tribe to

regulate liquor sales “on its reservation land and in

‘Indian country,” Pet. App. 11 n.2, and thus that the

Tribe’s ordinance applies to liquor retailers in Pender

if the retailers are within the Omaha Reservation.

The court then proceeded to apply the three-prong

test articulated in Solem v. Bartlett, 465 U.S. 463

(1984), for determining whether a statute “clearly

evince[s]” the requisite Congressional intent to “di-

vest a reservation of its land and diminish its bounda-

ries.” Jd. at 470. Evaluating each factor, the court

concluded that Congress did not intend for the 1882

5

Act to diminish the Omaha Reservation. Pet. App. 55-

76.

First, the district court looked at the statutory lan-

guage, which Solem identified as the “most probative

evidence of congressional intent.” 465 U.S. at 470.

The court agreed with petitioners’ “admi[ssion]” that

the language of the 1882 Act “does not work in their

favor.” Pet. App. 56. The court based that conclusion

on several features of the Act:

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 settlement.” 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 Indi-

ans.” Further, Article 8 of the 1882 Act allows “In-

dians . . . [to] select the land which shall be allot-

ted ‘o them in severalty in any part of said reser-

vation 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 Res-

ervation.

Id. at 57 (brackets in original) (citation omitted). The

court also noted the contrast between the 1882 Act

and “the Omaha Treaties of 1854 and 1865,” in which

the Tribe “expressly agreed to ‘cede, sell, and convey’

6

land to the United States and ‘relinquish ... all

claims’ thereto in exchange 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.” /d. at 58 (citations omitted).

Second, the district court examined “(t]he legisla-

tive history and the circumstances surrounding the

1882 Act.” Pet. App. 63. In the court’s view, “[nJjone

of th{e] legislative history establishes that Congress

clearly contemplated” diminishment of the Reserva-

tion. Jd. at 65; see ibid. (“[T]he parties do not cite,

nor does the court find, specific discussion of how, if at

all, the 1882 Act would impact Omaha Reservation

boundaries.”). The court concluded that the evidence

was “insufficient to establish an ‘unequivocal,’ widely

held, contemporaneous understanding that the 1882

Act would diminish or alter the boundaries of the

Omaha Reservation.” J/bid. (quoting Solem, 465 U.S.

at 471).

Following its analysis of the second Solem factor,

the district court stated:

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. However, I

shall address the third prong of the well-

established diminishment “analytical structure,” as

courts are to consider all three factors in determin-

ing whether an Indian reservation has been dimin-

ished.

7

Pet. App. 68-69 (citation omitted).

The district court thus turned to the third Solem

factor—the subsequent treatment of the area and the

pattern of settlement—which is considered “‘less

illuminating’ than contemporaneous evidence.” Pet.

App. 69 (quoting Hagen v. Utah, 510 U.S. 399, 420

(1994)). The court analyzed five statutes enacted

between 1885 and 1894, which (1) referred to the

opened area as “the ‘Omaha Indian Reservation’ and

‘Omaha lands,’” (2) confirmed that the United States

continued to serve as trustee over the opened area

with respect to sale proceeds for the Tribe’s benefit,

and (3) required the Tribe’s consent before granting

payment extensions to buyers of parcels within the

opened area. /d. at 70-72 (citations omitted). Those

statutes, the court found, “suggest[] the continued

reservation status of the disputed lands.” Jd. at 72.

As to “treatment of the area west of the right-of-way

following the 1882 Act,” the court concluded that “the

Omaha Reservation has been described, treated, and

mapped inconsistently by the State of Nebraska, its

agencies, and the United States.” Jbid.* Finally, the

* Among other things, the district court found the following:

Since 1922, the Nebraska legislature has defined the western

boundary of Thurston County, which lies within the area opened to

sale by the 1882 Act, as lying within the existing Omaha Reserva-

tion. Pet. App. 40-41. In 1969, the Nebraska legislature retroced-

ed to the United States criminal jurisdiction over certain offenses

committed within Indian country that is located in Thurston Coun-

ty. Id at 42. “The legal description of the land in the Notice of

Acceptance of Retrocession of Jurisdiction delineates the Omaha

Indian Reservation as originally surveyed.” Ibid. (emphasis

added). In 1992, the Nebraska State Tax Commissioner issued a

Revenue Ruling locating the Village of Pender “within the bounda-

ries of the Omaha Indian Reservation.” /d. at 48.

8

district court found “‘mixed’ evidence regarding the

demographics of the area west of the right-of-way.”

Id. at 76 (citation omitted).

Summarizing its findings, the district court stated:

[NJeither the 1882 Act’s statutory language, the

legislative history and circumstances surrounding

the passage of the Act, nor the demographic histo-

ry of the land west of the right-of-way demonstrate

clear congressional intent to diminish the bounda-

ries of the Omaha Indian Reservation or a widely-

held, contemporaneous understanding that Con-

gress’s action would diminish those boundaries.

Id. at 77.

3. The court of appeals affirmed. Pet. App. 1-8.

Based on its “de novo review” (id. at 6), the court of

appeals concluded that the district court had

accurately discerned the contemporaneous intent

and understanding of the 1882 Act. The [district]

court carefully reviewed the relevant legislative

history, contemporary historical context, subse-

quent 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 surplus.

Id. at 7. The court of appeals thus found “nothing in

this case to overcome the ‘presumption in favor of the

continued existence’ of the Omaha Indian Reserva-

tion.” /bid. (internal quotation marks omitted). While

recognizing the impact of its decision on the communi-

ty of Pender, the court of appeals concluded that “the

district court conducted the appropriate analysis and

we agree.” /d. at 8.

9

Petitioners sought rehearing and rehearing en

banc, but their requests were denied. Pet. App. 80-81.

ARGUMENT

Petitioners seek this Court’s review regarding

“[w]hether ambiguous evidence concerning the first

two Solem factors necessarily forecloses any possibil-

ity that diminishment could be found on a de facto

basis.” Pet. i. See Solem v. Bartlett, 465 U.S. 463

(1984). That question is not presented here, because

the district court found—and the court of appeals

agreed—that none of the three Solem factors favored

petitioners’ diminishment claim. That conclusion,

which turns on statutes and circumstances unique to

this one Reservation, does not conflict with the deci-

sion of any other court of appeals.

1. As a threshold matter, the petition should be

denied because petitioners have waived the issue on

which they seek review. See Sprietsma v. Mercury

Marine, 537 U.S. 51, 56 n.4 (2002) (arguments not

raised below are waived). Petitioners did not argue in

the court of appeals, as they do in this Court, that the

district court’s analysis had “preclude[d] proper con-

sideration” of the third Solem factor. Pet. 10. To be

sure, petitioners did argue that the third factor should

be resolved in their favor—i.e., they argued that his-

torical and demographic evidence pointed towards

diminishment, rather than being “inconsistent” and

“mixed,” as the district court had found. Pet. App. 72,

76; see State of Neb. C.A. Br. 10-13; Brehmer et al.

C.A. Br. 49-59. But petitioners did not contend that

the district court had exclusively relied on the first

two Solem factors in a manner that “necessarily fore-

close[d] any possibility” of finding diminishment based

10

on the third factor. Pet. i. The petition should be

denied on that basis alone.

2. The question presented is also not implicated by

this case, because it rests on premises that are factu-

ally incorrect: The courts below did not conclude that

their assessment of the first two Solem factors “fore-

close[d]” consideration of the third factor. Pet. i.

Rather, the district court examined all three factors at

great length, concluding that none of them “demon-

strate[d] clear congressional! intent to diminish the

boundaries of the Omaha Indian Reservation,” as

required for a, finding of diminishment under Solem.

Pet. App. 77. With respect to the third factor in par-

ticular, the district court found: (1) that statutes

enacted after 1882 “suggest{] the continued reserva-

tion status of the disputed lands,” id. at 72; (2) that

“the Omaha Reservation has been described, treated,

and mapped inconsistently by the State of Nebraska,

its agencies, and the United States,” ibid.; and (3) that

“evidence regarding the demographics of the area

west of the right-of-way” was “mixed,” id. at 76. The

court of appeals endorsed the district court’s analysis,

including the district court’s treatment of “contempo-

rary historical context, subsequent congressional and

administrative references to the reservation, and

demographic trends.” Jd. at 7. Those express find-

ings refute petitioners’ assertion that either court

relied on the first two factors to “create[] a conclusive

presumption of non-diminishment not subject to

rebuttal by evidence concerning the third Solem fac-

tor.” Pet. 16-17.

Petitioners point to the district court’s statement

that it was “bound * * * to rule that diminishment did

not take place” in light of “the language in the 1882

1]

Act and its legislative history.” Pet. 18 (quoting Pet.

App. 68). Petitioners also highlight the district court’s

statement that “even if th{e] 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 Reservation.” Pet. 19 (quoting Pet. App.

76) (emphasis omitted). Yet those statements are

fully consistent with petitioners’ own statement below

that “diminishment cannot be based solely on demo-

graphic data and subsequent treatment.” Pet. for

Reh’g 6.

In any event, the district court did proceed to “ad-

dress the third prong of the well-established dimin-

ishment” test, acknowledging that “courts are to con-

sider all three factors in determining whether an Indi-

an reservation has been diminished.” Pet. App. 68-69.

And the court found that the demographic evidence

was “mixed,” favoring neither side. /d. at 76. Peti-

tioners accordingly could not have prevailed on their

diminishment claim, regardless of the amount of

weight given to the third Solem factor. Moreover, the

court of appeals, in finding the Reservation was not

diminished by the 1882 Act, relied on the district

court’s “careful{] review” of not only the legislative

history and contemporary context of the 1882 Act

itself, but also of “subsequent congressional and ad-

ministrative references to the Reservation, and demo-

graphic trends,” Pet. App. 7—matters specifically

relevant to the third Solem factor. Thus, the decision

of the court of appeals, which petitioners ask the

Court to review, clearly did consider the third Solem

factor.

12

3. Finally, the decision below does not conflict with

the decision of any other court of appeals or otherwise

warrant review. This Court has explained that courts

should begin with a “presumption that Congress did

not intend to diminish the reservation.” Solem, 465

U.S. at 481. That presumption may be overcome only

by “substantial and compelling evidence of a congres-

sional intention to diminish Indian lands.” Jd. at 472.

In this case, as described above, the district court

found—and the court of appeals agreed—that none of

the three Solem factors favored a finding of diminish-

ment. See Pet. App. 7; id. at 77.

Petitioners repeatedly refer to “ambiguous evi-

dence concerning the first two Solem factors.” Pet. i;

see Pet. 18 (“ambiguity regarding the first two Solem

factors); Pet. 19 (“ambiguous evidence regarding

statutory language and legislative history”); Pet. 25

(“ambiguous evidence”). In fact, the courts below

found that the first factor, which this Court has la-

beled the “most probative evidence of congressional

intent,” Solem, 465 U.S. at 470, strongly suggests that

Congress did not intend to diminish the Reservation.

See Pet. App. 55-62; see also id. at 56 (“[Petitioners]

admit that the most probative factor to be examined in

a diminishment inquiry * * * does not work in their

favor.”). In any event, petitioners misunderstand

their burden under this Court’s diminishment juris-

prudence—including the admonition that courts must

“resolve any ambiguities in favor of the Indians.”

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329,

344 (1998) (citation omitted). A finding of diminish-

ment requires evidence “establish[ing] a clear con-

gressional purpose to diminish the reservation.” So-

lem, 465 U.S. at 476. Petitioners’ assertion that the

13

evidence concerning the first two Solem factors was

“ambiguous”—and the similar conclusion by the

courts below concerning the third factor—do not

demonstrate the requisite “clear congressional pur-

pose.”

Indeed, petitioners do not claim that this case

would have come out differently in another circuit.

Instead, petitioners selectively identify evidence relat-

ing to the third Solem factor, “demographic and juris-

dictional history,” which purportedly supports their

position. Pet. 19-25. But the district court examined

all evidence in the record and concluded that “the

Omaha Reservation has been described, treated, and

mapped inconsistently by the State of Nebraska, its

agencies, and the United States.” Pet. App. 72; see

ibid. (finding “{a] ‘mixed record’ which fails to reveal a

consistent or dominant approach to the territory at

issue”). The court also found “‘mixed’ evidence re-

garding the demographics of the area west of the

right-of-way.” Jd. at 76. Petitioners may disagree

with those fact-bound conclusions, but any such disa-

greement does not create a dispute worthy of this

Court’s review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DONALD B. VERRILLI, JR.

Solicitor General

JOHN C. CRUDEN

Assistant Attorney General

WILLIAM B. LAZARUS

KATHERINE J. BARTON

Attorneys

AUGUST 2015