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

No. 14-1406

:

——

In The

Supreme Court of the Anited States

NEBRASKA, et al.,

Petitioners,

MITCH PARKER, et al.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

BRIEF FOR PETITIONERS

DOUGLAS J. PETERSON

Attorney General of Nebraska

JAMES D. SMITH

Solicitor General

of Nebraska

Counsel of Record

RYAN S. Post

DAVID A. LOPEZ

Assistant Attorneys General

OFFICE OF THE

ATTORNEY GENERAL

2115 State Capitol Building

Lincoln, NE 68509-8920

(402) 471-2682

James.Smith@nebraska.gov

Attorneys for the

State of Nebraska

GENE SUMMERLIN

MARNIE A. JENSEN

MARK D. HILL

HUSCH BLACKWELL, LLP

610 J Street, Suite 200

Lincoln, NE 68508-2967

(402) 434-8040

gene.summerlin@

huschblackwell.com

marnie.jensen@

huschblackwell.com

mark. hill@

huschblackwell.com

Attorneys for Individual

& Village Petitioners

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

In Solem v. Bartlett, this Court articulated a

three-part analysis designed to evaluate whether a

surplus land act diminished a federal Indian reserva-

tion. See 465 U.S. 463, 470-72 (1984). The Court

found that the “statutory language used to open the

Indian lands,” “events surrounding the passage of a

surplus land Act,” and “events that occurred after the

passage of a surplus land Act” are all relevant to

determining whether diminishment has occurred. Id.

Later, in Hagen v. Utah, this Court explained that the

diminishment inquiry requires courts “examine all

circumstances surrounding the opening of a reserva-

tion.” 510 U.S. 399, 412 (1994). This Court has also

reiterated after Solem that “{[wlJhere non-Indian

settlers flooded into the opened portion of a reserva-

tion and the area has long since lost its Indian char-

acter, ... de facto, if not de jure, diminishment may

have occurred.” South Dakota v. Yankton Sioux, 522

U.S. 329, 356 (1998).

The questions presented for review are:

1. Whether ambiguous evidence concerning

the first two Solem factors forecloses any

possibility that diminishment could be

found on a de facto basis.

2. Whether the original boundaries of the

Omaha Indian Reservation were dimin-

ished following passage of the Act of

August 7, 1882.

‘i

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 Petition-

ers”); the Village of Pender, Nebraska (“Village Peti-

tioner”); and the State of Nebraska (collectively

“Petitioners”). The State of Nebraska was Plaintiff-

Intervenor in proceedings before the United States

District Court for the District of Nebraska and Appel-

lant 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 Oma-

ha Tribal Council; Eleanor Baxter in her official

capacity as member of the Omaha Tribal Council;

Ansley Griffin in his official capacity as member of

“.e Omaha Tribal Council and as the Omaha Tribe’s

Director of Liquor Control (the “Individual Respon-

dents”); and the United States (collectively, “Re-

spondents”). The United States was Defendant-

Intervenor in proceedings before the United States

District Court for the District of Nebraska and Appel-

lee to the Eighth Circuit Court of Appeals.

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................c0.cceeeeeeeees i

PARTIES TO THE PROCEEDING ...................... ii

TABLE OF AUTHORITIES .................cccccceseeeeeees vi

IELTS ETERS Ie oe ae a 1

inertness 1

TTT ETI 1

STATEMENT OF THE CASE...................0ccceeee0es 2

I. The Original Boundaries Of The Tribe’s

IIc iinniisuiisiiasaaiininantiemndiunaidumminiasion 2

II. Sale Of The Western Part Of The Reser-

Se ccnecnnicctnnentenantinneninianintidaianmmmennes 3

III. Settlement Of The Western Part Of The

BT icnnnnnennnesniimneeninsuineinianinnnentdaniinines 8

IV. United States’ Treatment Of The Disputed

Si cinhicesininnssciteneeneieninnnetiibeemmeieapiiuniiieiats 11

V. Nebraska’s Longstanding Jurisdiction Over

ee inccnnnincisiiidsinimnaniscinenesinn 15

VI. Treatment Of The Disputed Area By The

Si iisnisednidisbinensibiebidiatindieiebemetssnticatimedbaus 17

VII. Enforcement Of The Ordinance And Sub-

ES CD trntertenmnieninnenemneseness 18

SUMMARY OF THE ARGUMENT....................... 20

I.

IT.

iv

TABLE OF CONTENTS -— Continued

Page

NEBRASKA'S UNCHALLENGED HIS-

TORY OF JURISDICTION OVER THE

DISPUTED AREA SHOWS DIMINISH-

A. Disputed Area Has No History Of In-

I cndneninncnnesenimentsnsagmennen

B. Less Than 2% Of The Total Acreage

Of The Disputed Area Was Allotted To

ee EE dccnevcnccngnemsesenticetenesmanes

C. Nebraska’s History Of Jurisdiction

Over The Disputed Area......................

D. All Governmental Services In The

Disputed Area Are Provided By State

And Local Agencies....................ssessseee

E. United States History Of Treating

The Disputed Area As Diminished......

THE CONTEXT SURROUNDING THE

1882 ACT SHOWS CONGRESS _IN-

TENDED TO ALTER THE RESERVA-

TION’S BOUNDARIES .................ccccseeeeee.

A. Prior To The 1882 Act, Congress Re-

peatedly Attempted To Separate And

Sell The Disputed Area .......................

B. The Legislative History Of The 1882

Act Demonstrates The Understand-

ing The Reservation Would Shrink As

A Result Of The Legislation................

24

26

29

31

33

34

38

39

v

TABLE OF CONTENTS -— Continued

Page

C. The 1872 And 1882 Acts Predate The

Dawes Act And Are Unlike General

EE ae 43

III. THE 1882 ACT SUPPORTS DIMINISH-

CECE EE SAAD ne Oe eaten Se 46

A. An Explicit Reference To Cession Is

Not A Prerequisite For A Finding Of

Ith ininiiniinsincianananncdiidinenesies 46

B. The Tribe’s Lack Of Residence On

The Disputed Area Explains The

Lack Of Cession Language.................. 49

IV. THE PUBLIC’S JUSTIFIABLE EXPEC-

TATIONS WILL BE UPSET BY EX-

PANDING THE JURISDICTION OF

THE TRIBE OVER 130 YEARS AFTER

IIIT cutcosduncpnndindenninendendnennsnnnes 51

ee icnscrmeninnmennisenecvmseneninntnsmememensiunse 53

vi

TABLE OF AUTHORITIES

Page

CASES

City of Sherrill, N.Y. v. Oneida Indian Nation

of New York, 544 U.S. 197 (2005) ............... 22, 25, 30

DeCoteau v. Dist. Cnty. Ct., 420 U.S. 425

ITT resilonnhesiiietinaciniditalisiiniaiiliniiiuniacadaatiiianiaeall 22, 28, 30, 44

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

Matiz v. Arnett, 412 U.S. 481 (1973).................... 44, 50

Osage Nation v. Irby, 597 F.3d 1117 (10th Cir.

I iicelienesbiatananiineiatiiaiantaaslsinciaaneneniddibetectininehniannitl 37, 48

Pittsburgh & Midway Coal Mining Co. uv.

Yazzie, 909 F.2d 1387 (10th Cir. 1990) ................... 46

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584

Da Ca iscnistitiannianinctiedicaisetaeiaantinuminnsneinnniinanaiin passim

Seymour v. Supt. of Wash. State Pen., 368 U.S.

SITU ssh iicidietetibitiadipnnaniiainiaaaanintenl 44

Smith v. Parker, 996 F. Supp. 2d 815 (D. Neb.

ceili iia i iinet mint 1

Smith v. Parker, 774 F.3d 1166 (8th Cir. 2014)........... 1

Smith v. Parker, 2015 U.S. App. LEXIS 3054

SEE EE TUTTI ciccicsinctusinndenjietapteeeiababaiaianintdiinenipninnsidipeninnte 1

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

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

PITTI cicinesetsiininatinciteaiiinibadsbigisiiniatdsiiiapsinipinannbdiieiaa passim

Wisconsin v. Stockridge-Munsee Cmty., 554

F.3d 657 (7th Cir. 2009) .................. 43, 44, 46, 47, 48

vii

TABLE OF AUTHORITIES — Continued

Page

TREATIES AND STATUTES

a iain ca rrr canntainnarninensaniiiieil 17, 32

ST ITI ts ich nianidliedineatiiea icteelaeaneabedinmabihaiidal 18

es TIN TTI <sihisisepcieiieiiniieineiianteanibiiiiaghiion 17, 32

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

Sats SEE inhndciecsiennocrnntasbidtsicseintiniannainiatatonaindesiii 2, 3, 50, 51

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

SEE aT ‘accnnsesnnienendimmeapnguiinennesinbiidainebimmiadeins 3, 50, 51

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

Act of Aug. 7, 1882, ch. 434, 22 Stat. 341.......... passim

ESL Sees ee 43, 44

MISCELLANEOUS

ee, i Se inctiitciiiniaticcnnccncstasiesineins 17, 32

71 Fed. Reg. 10,056 (Feb. 28, 2006) ............ cee eee 18

Neb. Revenue Ruling 99-05-01 (Sept. 29, 2005)........ 17

1

OPINIONS BELOW

The Omaha Tribal Court’s order finding the

Omaha Indian Reservation was not diminished is

reproduced at J.A. 77. The district court’s order

finding the Omaha Indian Reservation was not

diminished is available at 996 F. Supp. 2d 815 and

reproduced at Pet. App. 9. The Eighth Circuit’s order

affirming the district court’s order is available at 774

F.3d 1166 and reproduced at Pet. App. 1. The Eighth

Circuit’s decision denying rehearing en banc is avail-

able at 2015 U.S. App. LEXIS 3054 and reproduced at

Pet. App. 80.

S

JURISDICTION

This Court has jurisdiction under 28 U.S.C.

§1254(1). On December 19, 2014, the Eighth Circuit

affirmed the district court’s order. On February 26,

2015, the Eighth Circuit denied rehearing en banc.

Petitioners filed their petition for writ of certiorari on

May 27, 2015, and this Court granted the petition on

October 1, 2015.

+

STATUTES INVOLVED

The Act of June 10, 1872, is available at 17 Stat.

391 and reproduced at J.A. 631. The Act of August 7,

1882, is available at 22 Stat. 341 and reproduced at

J.A. 227.

2

STATEMENT OF THE CASE

From 1882 until 2006, the State of Nebraska

consistently, and exclusively, exercised civil and

criminal jurisdiction over Pender, Nebraska and its

surrounding areas’ (hereinafter the “disputed area”)

without contest or objection from the Omaha Tribe of

Nebraska (hereinafter “Omaha” or “Tribe”) or the

United States. J.A. 215-16, 369-72, 609. Since the

early twentieth century, non-Indians have comprised

over 98% of the disputed area’s population and the

United States conveyed over 98% of the land in the

disputed area to non-Indians. J.A. 204, 206, 208, 364-

68. The non-Indian residents of the disputed area

have never been subjected to the jurisdiction of the

Tribe and have developed justifiable expectations ac-

cordingly.

Before addressing the legal arguments, it is

necessary to examine the relevant history of the

boundaries at issue in this case.

B, The Original Boundaries Of The Tribe’s

Reservation.

Under the Treaty of March 16, 1854 (“1854

Treaty”), the Omaha ceded to the United States “all

' Specifically, this includes all 50,157 acres of Thurston

County, Nebraska, lying west of the now-abandoned right-of-way

of the Sioux City and Nebraska Railroad. This includes the

Village of Pender itself and the surrounding region west of the

railroad right-of-way.

3

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....” J.A. 191, 1020. Under the 1854

Treaty, the original boundaries of the Omaha Reser-

vation were set and the original size of the Omaha

Reservation was approximately 300,000 acres. J.A.

192, 1021.

On March 6, 1865, the Omaha entered into

another treaty (“1865 Treaty”) whereby the Omaha

ceded the northern part of the reservation to the

federal government for fifty-thousand dollars

($50,000.00), which monies were to be expended for

the Tribe’s benefit, creating the Winnebago Reserva-

tion. J.A. 192, 1014-18. The 1865 Treaty reduced the

size of the reservation to approximately 202,000 acres

and ordered the allotment of the land to individual

members of the Tribe. J.A. 192, 1014-18. By March of

1871, tribal members had received certificates for

their allotments and all allotments taken under the

1865 Treaty were in the eastern, or non-disputed

area, of the reservation. J.A. 193. In 1874, an addi-

tional 12,374 acres were sold to the Wisconsin Winne-

bagoes. J.A. 196.

II. Sale Of The Western Part Of The Reser-

vation.

In August 1871, the Omaha, through their desig-

nated federal agent, began petitioning Congress to

enact legislation authorizing the sale of the 50,000

acres comprising the western-most portion of the

4

reservation. J.A. 194, 419, 424. On January 22, 1872,

Commissioner of Indian Affairs F.A. Walker recom-

mended the requested legislation to Congress and

stated: “I believe that the general idea of diminishing

these reservations for the purpose of securing higher

cultivation of the remaining lands, is consonant with

sound policy.” J.A. 194, 625. Congress responded by

enacting the Act of June 10, 1872 (“1872 Act”), provid-

ing for the sale of up to 50,000 acres “to be taken from

the western part” of the reservation and “to be sepa-

rated from the remaining portion of said reservation.”

J.A. 631. However, apparently due in part to the

availability and pricing of other land, the 1872 Act

only resulted in the sale of approximately 300 acres.

J.A. 333-35. In 1874, the Commissioner of Indian Af-

fairs reported that the reservation contained 192,867

acres, but he continued: “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.” J.A. 360-

61, 504.

In 1880, Congress considered legislation, as

explained by Senator Alvin Saunders of Nebraska, to

facilitate the sale of the western 50,000 acres of the

reservation not sold under the 1872 Act. J.A. 196. The

1880 proposal did not advance. J.A. 197. Critically,

however, on April 19, 1880, the 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. J.A. 336. The Tribe’s decision to bring the

5

advent of the railroad to the reservation was a critical

event for the subsequent diminishment of the reser-

vation.

Two years after the Tribe granted the railroad

right-of-way to the railroad company, Congress enact-

ed the Act of August 7, 1882 (“1882 Act”) which pro-

vided for the sale of “all that portion of [the

Reservation] lying west of the right of way... .” J.A.

227-33. The railroad right-of-way now provided a

clear demarcation of the boundary-line west of which

all land would ultimately be sold (and a means,

previously lacking, by which settlers and goods could

readily transit to and from the region). As explained

by Senator Saunders: “It happens to be one of those

few cases where I believe everybody is satisfied to

have a bill of this kind passed (J.A. 582, 644),....

Twice they have expressed themselves already in

open council in favor of it, and the bill requires 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.” J.A. 469.

According to the local Indian Agent’s report

submitted to the Senate Committee considering the

bill, “there are no Indians living on the western

portion of the Omaha Reservation.” J.A. 583, 657.

Therefore, Senator Ingalls, a member of the commit-

tee, explained 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

6

relinquished.” J.A. 647. 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.” J.A. 647 Senator

Henry Dawes further 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.” J.A. 683.

On July 1, 1882, the House Committee offered a

substitute bill that authorized both the sale of land

on the western portion and allotment in severalty to

Tribe members. J.A. 199, 339. During debate, Repre-

sentative Edward Valentine of Nebraska assured his

fellow legislators:

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

occupy up to the railroad on the west. They

7

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.

J.A. 201, 726. When discussing the provision to allow

Tribe members to select allotments west of the rail-

road right-of-way, Representative Valentine explained

that “[t]hey do not care about making selections over

on that side of the road at all.” J.A. 739. On July 27,

1882, the House approved S. 1255 as amended to

provide for both the grant of allotments to Tribe

members from either the east or west portions of the

Omaha Reservation, as well as the sale of the remain-

ing portion of the reservation west of the railroad

right-of-way to white settlers. J.A. 202, 340.

Although initially referred back to committee by

the Senate, the Senate withdrew its opposition to the

House amendment to S. 1255. J.A. 202, 340-41. On

August 7, 1882, President Chester Arthur signed the

bill into law. J.A. 202, 340-41.

Local Omaha and Winnebago Agent George

Wilkinson subsequently reported that the Tribe

consented to the Act on May 5, 1883. J.A. 345.

The 1882 Act directed a survey and appraisal

before the lands west of the railroad right-of-way

could be opened for settlement and sale. J.A. 227. The

allotment provisions of the 1882 Act also needed to be

carried out before any sale could be effected. J.A. 203-

04, 207. Alice Fletcher, who was appointed by the

Secretary of the Interior as a special agent to oversee

8

the allotment process, urged the Omahas to select

land near the railroad right-of-way. J.A. 203-04, 347-

48, 598. Few Omahas accepted Fletcher’s advice; most

preferred the eastern part of the reservation for its

access to water and timber. J.A. 203-04, 347-48, 598.

When the allotment process under the 1882 Act con-

cluded, only 876 of the approximately 50,000 acres

west of the railroad right-of-way (comprised of 10-15

allotments) had been allotted to members of the

Tribe. J.A. 204, 347, 480. “No Indians chose land in

the heart of the sale area, reflecting their lack of

interest in these lands.” J.A. 598-99. All told, Indian

allotments either wholly or partially west of the

railroad right-of-way represented less than 2% of the

total acreage west of the railroad right-of-way. J.A.

366-67. On April 30, 1884, the General Land Office

opened 50,157 acres west of the railroad right-of-way

for settlement by non-Indians. J.A. 204-05, 350.

Ill. Settlement Of The Western Part Of The

Reservation.

According to the Secretary of the Interior’s 1884

report, when the area west of the railroad right-of-

way opened for settlement, “the major portion thereof

was quickly absorbed by settlers. By September 1,

1884, 311 filings had been made, embracing about

43,000 acres.” J.A. 357. Local Indian Agent Wilkinson

confirmed the disputed area was “immediately occu-

pied” by settlers. J.A. 486.

One settler, W.E. Peebles, left the town of Oak-

land, Nebraska, purchased a 160-tract of land near

9

the railroad right-of-way and platted a townsite to

found the Village of Pender. J.A. 208, 357. Lots within

the townsite were sold on April 7, 1885. J.A. 208, 357.

Soon, Pender became the county seat of Thurston

County, Nebraska. J.A. 357-58. Between 1885 and

1889, Pender grew to a population of more than 300.

J.A. 357. 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%. J.A. 208,

366.

The following chart shows the U.S. Census

Bureau data for the Indian and non-Indian popula-

tions in the disputed area west of the railroad right-

of-way compared to the eastern part of the reserva-

tion.

MOU Jo 389M BuTUMD =? uoysiNyy,

MOH Jo 38Bq — UOyINY],

MOU Jo 380M Buta = uoysunyy,

MOH Jo 188q — UOYsINY],

MOU Jo 380M SuTUMD BY UoYsNG],

MOU Jo Weg — woysmyy,

MOW Jo 189M Buty wy uOJsMY],

MOW Jo Weg — UOYsINY],

MOW JO 180M BuTUND = uoysINY],

MOU J Bq — UOINY],

MOW Jo 380M BuruNy w® uoysuNY],

MOY Jo Seq — UOYsINY],

oT

11

IV. United States’ Treatment Of The Disputed

Area.

After enactment of the 1882 Act, the United

States consistently treated the 50,000+ acres opened

for settlement west of the railroad right-of-way as no

longer being part of the reservation. In 1884, Indian

Agent Wilkinson described the settlers as “surround-

ing the[ ] reservation ].” J.A. 490. By 1885, the Com-

missioner of Indian Affairs reported that all lands

lying west of the railroad right-of-way had been sold

to non-Indian settlers. J.A. 500. In the Commission-

er’s opinion, the Winnebagoes would realize a great

benefit from legislation “substantially similar” to the

“Omahas (act of August 7, 1882).” J.A. 503. Like the

Omahas, the Winnebagoes:

[Would then have the benefit and be subject

to the laws, both civil and criminal, of the

State (Nebraska), and have individual title

to their lands. As in the case of the Omahas,

the unallotted lands remaining within the

diminished reserve could be patented to the

tribe in common.

J.A. 503. Consistent with the Commissioner of Indian

Affairs’ report, in 1885, local Agent Wilkinson de-

scribed the 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 allot-

ments on the remainder.” J.A. 350, 496, 1076.

12

In 1890, Indian Agent Robert Ashley reported

that the Winnebago and Omaha reservations collec-

tively “embrace[] the entire county of Thurston,

Nebr., except a portion of the reservation which has

been sold and is now occupied by the white purchas-

ers.” J.A. 606, 798. Agent Ashley made a similar

statement in 1892. J.A. 817. Then, in 1901, 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 Res-

ervation.” J.A. 841. In 1904, the superintendent in

charge of the Omaha Agency reported: “This agency is

located on the east side of the Omaha Reservation

about 3 miles from the Missouri River, which forms

the eastern boundary, and 20 miles from the western

boundary line, which is marked by a section of the

Northwestern Railway line extending between Oma-

ha and Sioux City.” J.A. 607; see also J.A. 1076.

The Office of Indian Affairs (“OIA”) 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. J.A. 206-07, 517,

522, 525, 531, 536, 615. In each of these reports, the

1882 Act was specifically identified as a basis for

concluding the area west of the railroad right-of-way

was not within the total acreage of the reservation.

J.A. 206-07, 517, 522, 525, 531, 536, 615. Similarly,

the Winnebago Agency Annual Statistical Report for

1935 provides the total area of the original reserva-

tion was reduced by 162,504.53 acres in light of three

13

events, listing the sale of 50,157.00 acres of land west

of the railroad right-of-way as one of such events. J.A.

208, 541.

A series of maps of the Omaha Reservation,

compiled under the direction of the Commissioner of

Indian Affairs, also show federal authorities believed

the 1882 Act diminished the reservation. J.A. 1298-

1300. In 1883, a map of Indian reservations, compiled

under the direction of Hiram Price, Commissioner of

Indian Affairs, revealed that the boundaries of the

Omaha Reservation did not extend west of the rail-

road right-of-way. J.A. 1298, available at http://www.

loc.gov/resource/g3701g.ct002649/. In 1888, a new map

of Indian reservations “compiled from official and

authentic sources, under the direction of the Hon.

JNO. H. Oberly, Commissioner of Indian Affairs,”

showed that the boundaries of the Omaha Reserva-

tion did not extend west of the railroad right-of-way.

J.A. 1299, available at http://www.loc.gov/resource/

g3701g.ct002651/. Similarly, an 1892 map of Indian

reservations “compiled under the direction of Hon.

T.J. Morgan, Commissioner of Indian Affairs,” showed

that the boundaries of the Omaha Reservation did not

extend west of the railroad right-of-way. J.A. 1300,

available at http://www.loc.gov/resource/g3701g.ct002305/.

Additionally, Congress authorized the Secretary

of the Interior, with the consent of the Tribe, to ex-

tend the non-Indian settler’s land payment schedules

on multiple occasions. J.A. 205, 352. The 1888 exten-

sion directed the Secretary of the Interior to declare

certain purchasers’ tracts forfeited due to default on

payment. J.A. 206, 352. Upon forfeiture, a settler’s

14

tract did not revert back to the Tribe but instead was

to be sold at public auction. J.A. 206, 360.

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. J.A. 232. In

contrast, the 1882 Act contained no such provision for

the land west of the railroad right-of-way. Further-

more, by 1919, all lands allotted to Tribal members

west of the railroad right-of-way had been patented in

fee simple. Thus, no trust land remained west of the

railroad right-of-way demarcation line. J.A. 360.

An October 10, 1964, Bureau of Indian Affairs

“Base Map” of the Omaha Indian Reservation con-

tains a note reading:

The land lying to the West of the line be-

tween Township 24 North, Range 7 East, and

Township 24 North, Range 6 East, and West

of the Sioux City and Nebraska Railroad

Right-of-way (now C St. P. M & O RR) as it

passed through Township 25 North, Range 6

East was “Opened for Settlement” by the Act

of August 7, 1882, 22 Stat. 341. This Office

holds the opinion that the Act of Con-

gress has DIMINISHED the borders of

the Omaha Reservation.

J.A. 562-64 (emphasis added).

In 1989, when asked by the Bureau of Indian

Affairs to locate the western boundary of the Omaha

Indian Reservation and after conducting an extensive

historical and statutory review, the Office of the

15

Solicitor of the United States Department of the

Interior confirmed “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.” J.A. 213-14, 369-70.

In 2012, only after the Individual Petitioners

initiated the underlying action in federal court, the

1989 Department of Interior’s opinion was officially

withdrawn in response to a post-litigation letter from

the Twin Cities Field Solicitor. J.A. 214, 281. This

official change in the United States’ views on jurisdic-

tion over the disputed area occurred approximately

130 years after the 1882 Act.

V. Nebraska’s Longstanding Jurisdiction

Over The Disputed Area.

The State of Nebraska exercised jurisdiction over

Pender without contest or objection from either the

Omaha or the United States for nearly 125 years,

from 1882 until 2006. West of the railroad right-of-

way, all governmental services are provided by State

and local agencies, not by the Tribe. J.A. 215-16, 319.

A significant example of the State’s unquestioned

authority occurred in a 1999 criminal case, when

the United States voluntarily relinquished authority

to Nebraska over a major crime committed by an

Indian within the disputed area. In 1999, Winnebago

16

tribal member Damon Picotte of Macy shot and killed

a non-Indian in the non-Indian’s Pender home. J.A.

145. Picotte was originally apprehended by Omaha

Tribal police and held by federal officers, but was

voluntarily relinquished and transferred to state

custody to be tried in state court. J.A. 145-52. When

Picotte argued that the State lacked jurisdiction

because the crime occurred on the reservation, the

State district court for Thurston County rejected this

defense and determined that the land west of the

railroad right-of-way was not a part of the Omaha

reservation. J.A. 145-52. Ultimately, Picotte was

convicted of Second Degree Murder and is currently

incarcerated in a Nebraska State prison. Order on

State v. Picotte, Case No. CR 00-6 (D. Ct. Thurston

County, Nebraska, Dec. 14, 2000); see also http://dcs-

inmatesearch.ne.gov/Corrections/COR_input.html.

On July 23, 2001, the Nebraska Attorney General

issued a memorandum to the Director of the Nebras-

ka Department of Environmental Quality confirming

“{a] large portion of Pender lies outside the dimin-

ished boundaries of the Omaha Reservation as a

result of the 1882 Act.” J.A. 157-83. Later, on Feb-

ruary 15, 2007, the Nebraska Attorney General

issued an opinion which also concluded that the land

west of the railroad right-of-way was not part of the

Omaha Reservation. J.A. 215; Neb. Op. Atty. Gen.

No. 07005.

In 1953, when Public Law 280 transferred juris-

diction over “All Indian country within the State” of

Nebraska to the State, it did not specifically delineate

17

the boundary lines of such Indian country. 18 U.S.C.

§ 1162; 28 U.S.C. § 1360. In 1969, when the State of

Nebraska retroceded a portion of that jurisdiction

“in the areas of Indian country located in Thurston,

County, Nebraska,” the State did not define any

reservation boundaries in its retrocession. J.A. 1122-

24. Even though P.L. 280 and Nebraska’s retrocession

did not define any reservation boundaries, the United

States accepted the retrocession on different terms

than what Congress originally transferred and the

State retroceded. 35 Fed. Reg. 16598 (1970).’

VI. Treatment Of The Disputed Area By The

Tribe.

Before 2006, the Omaha never enforced tribal

ordinances west of the railroad right-of-way. J.A. 215-

16. The Tribe has never offered foster care, medical,

welfare, or child protective services in the disputed

area. J.A. 216. The Tribe has no office, operates no

schools, industries, or businesses in the disputed area

and has not conducted any governmental or ceremo-

nial activities west of the railroad-right of-way. J.A.

* In a few limited modern-day instances, the Nebraska

Department of Revenue indicated the Reservation existed as

originally surveyed. J.A. 216. However, these revenue rulings do

not include any historical or legal jurisdictional analysis of the

Reservation’s boundaries. All of those revenue rulings were also

later superseded and rescinded by the Nebraska Department of

Revenue prior to this litigation. Neb. Revenue Ruling 99-05-01

(Sept. 29, 2005).

18

216. The Tribe has no mineral rights or other claims

to land in the disputed area. J.A. 216.

Vil. Enforcement Of The Ordinance And Sub-

sequent 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”). J.A. 187. The

Ordinance imposes a licensing scheme and a 10%

sales tax on the purchase of alcoholic beverages from

any licensee within the reservation. J.A. 187-88. The

Ordinance was certified by the Department of Interi-

or in 2006. 71 Fed. Reg. 10,056 (Feb. 28, 2006). Short-

ly after the Ordinance’s promulgation, Individual

Petitioners received application forms and requests to

remit the 10% tax in the mail from the Tribe. J.A.

189. When the Individual Petitioners did not respond,

the Tribe sent a second notice to Individual Petition-

ers informing them that they were subject to the

Omaha Tribal Code and to fines up to $10,000.00 per

violation. J.A. 189-90.

In response to the Tribe’s attempt to enforce the

Omaha Tribal Code west of the railroad right-of-way,

Individual Petitioners commenced this action. J.A. 56,

66-76, 190. The United States District Court for the

District of Nebraska, pursuant to 28 U.S.C. § 1331,

granted Individual Petitioners a temporary restrain-

ing order against the enforcement of the Ordinance

on April 17, 2007. J.A. 190. The district court stayed

19

further proceedings to exhaust any remedies in the

Omaha Tribal Court. J.A. 190. Individual Petitioners

filed an action in the Omaha Tribal Court seeking

a declaration as to whether Pender, Nebraska lay

within the boundaries of the Omaha Indian Reserva-

tion and an injunction against any future enforce-

ment of the Ordinance. J.A. 190. On cross-motions for

summary judgment, the Omaha Tribal Court deter-

mined that the original boundaries of the reservation

had not been diminished. J.A. 139, 191.

Proceedings resumed before the federal district

court. J.A. 191. The State of Nebraska intervened to

retain its longstanding jurisdiction over the geo-

graphic area at issue, i.e., the approximately 50,157

acres, including, but not limited to, the Village of

Pender, Nebraska. J.A. 285-99. The United States

intervened in support of the Tribe. J.A. 300-14. The

parties and intervenors filed cross-motions for sum-

mary judgment on the issue of whether the Omaha

Indian Reservation was diminished following the

1882 Act such that the disputed area was no longer

within its borders.

The district court ruled in favor of the Tribe on

cross-motions for summary judgment. Pet. App. 77-

78. 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. Pet. App. 68.

20

Petitioners appealed to the Eighth Circuit and

that court issued a panel opinion affirming the judg-

ment of the district court. Pet. App. 1-8. The panel

determined that the “[district] court carefully re-

viewed the relevant legislative history, contemporary

historical context, subsequent congressional and ad-

ministrative references to the reservation, and demo-

graphic trends, and did so in such a fashion that any

additional analysis would only be unnecessary sur-

plus.” Pet. App. 7. Petitioners were denied rehearing

en banc. Pet. App. 80-81.

¢

SUMMARY OF THE ARGUMENT

The legal issue in this case is whether the dis-

puted area remains part of the Omaha Indian Reser-

vation, despite both the Omaha and the United

States having declined to exercise Indian-country

jurisdiction over the area since the late nineteenth

century. This is not a matter of mere historical curios-

ity or academic interest. Rather, the Court’s decision

will significantly impact the future of an entire

cummunity and its residents. If this Court upholds

the lower courts’ ruling that the disputed area re-

mains part of the reservation, the practical conse-

quences will be profound for the residents of the

disputed area after over one hundred years of justifi-

able reliance upon Nebraska and local governmental

institutions and services.

21

“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

boundaries.” Solem v. Bartlett, 465 U.S. 463, 467

(1984). In Solem, the Court articulated a three-part

analysis designed to evaluate whether a surplus land

act may have resulted in a diminishment of a federal

Indian reservation. Id. at 470-72. The Court conclud-

ed that the “statutory language used to open the

Indian lands,” “events surrounding the passage of a

surplus land Act,” and “events that occurred after the

passage of a surplus land Act” are all relevant to

determining whether diminishment has occurred.

This Court has since explained that the diminish-

ment inquiry requires courts “examine all circum-

stances surrounding the opening of a reservation.”

Hagen v. Utah, 510 U.S. 399, 412 (1994). The doctrine

of “de facto diminishment” arises from a court’s

consideration of the third Solem factor — events

occurring after passage of a surplus land Act. Solem,

465 U.S. at 471-72.

This Court has recognized that its ability to rely

on express statutory language to discern congres-

sional intent is limited because “the surplus land Acts

themselves seldom detail whether opened lands

retained reservation status or were divested of all

Indian interests. When the surplus land Acts were

passed, the distinction seemed unimportant.” Solem,

465 U.S. at 468. Indeed, the diminishment “inquiry is

informed by the understanding that . .. Congress did

22

not view the distinction between acquiring Indian

property and assuming jurisdiction over Indian

territory as a critical one, in part because the notion

that reservation status of Indian lands might not be

coextensive with tribal ownership was unfamiliar.”

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

343 (1998). “Given this expectation, Congress natu-

rally failed to be meticulous in clarifying whether a

particular piece of legislation formally sliced a certain

parcel of land off one reservation.” Jd.

Accordingly, the Court must also consider wheth-

er the treatment of the area following the opening of

the reservation to non-Indian settlement resulted in

de facto diminishment. See, e.g., City of Sherrill, N_Y.

v. Oneida Indian Nation of New York, 544 U.S. 197,

215-16 (2005) (in a different, but related context,

reiterating that “{t]he longstanding assumption of

jurisdiction by the State over an area that is over 90%

non-Indian, both in population and in land use, may

create justifiable expectations”), DeCoteau v. Dist.

Cnty. Ct., 420 U.S. 425, 428 (1975); Rosebud Sioux

Tribe v. Kneip, 430 U.S. 584, 588 n.3 and 604-05

(1977); Solem, 465 U.S. at 472; see also Yankton

Sioux Tribe, 522 U.S. at 356-57

Solem explained the nature of de facto diminish-

ment as follows:

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

23

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. Resort to subsequent demo-

graphic history is, of course, an unorthodox

and potentially unreliable method of statuto-

ry 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).

The demographic and jurisdictional history of the

disputed area west of the railroad right-of-way,

necessitates a finding of de facto diminishment. “[A)

contrary conclusion would seriously disrupt the

24

justifiable expectations of the people living in the

area.” Hagen v. Utah, 510 U.S. 399, 421 (1994).

°

ARGUMENT

I. NEBRASKA’S UNCHALLENGED HISTORY

OF JURISDICTION OVER THE DISPUTED

AREA SHOWS DIMINISHMENT.

The State of Nebraska has consistently exercised

jurisdiction over, and provided governmental services

to, the people living in the disputed area west of the

railroad right-of-way from 1882 through 2006. The

State’s exclusive control over an area populated by

more than 98% non-Indians has created the justifia-

ble expectations by the residents who live west of the

railroad right-of-way that they are not subject to

tribal regulation.

There is no dispute that:

¢ Immediately following the 1882 Act, the

major portion of the disputed area was

quickly absorbed by settlers, J.A. 357,

486, 490, 500;

¢ Since the early twentieth century, non-

Indians have comprised more than 98%

of the area’s population, J.A. 208;

¢ More than 98% of the land in the area

was conveyed from the United States to

non-Indians, J.A. 204, 206;

25

¢ The State of Nebraska exercises crimi-

nal jurisdiction over the disputed area,

J.A. 145-52, 215-16, 319, 369-72, 609;

* Neither Pender nor its residents have

ever been subjected to the jurisdiction of

the Tribe, J.A. 215-16;

* The Tribe has no office, operates no

schools, industries, or businesses in the

disputed area and has not conducted any

governmental or ceremonial activities

there, J.A. 216;

* The Tribe has no mineral rights or other

claims to land in the disputed area, J.A.

216; and

* Before 2006, the Tribe never enforced

tribal ordinances west of the railroad

right-of-way. J.A. 215-16.

From 1882 until 2006, the State of Nebraska

consistently exercised jurisdiction over Pender with-

out any dispute or objection from the Omaha or the

United States. J.A. 145-52, 215-16, 319, 369-71, 605.

This Court has recognized that “(t]he longstanding

assumption of jurisdiction by the State over an area

that is over 90% non-Indian, both in population and

in land use, may create justifiable expectations.” City

of Sherrill, N.Y., 544 U.S. at 215-16 (quoting Rosebud

Sioux Tribe, 430 U.S. at 604-05); Hagen, 510 U.S. at

421. The Nebraska residents living in the disputed

area have developed justifiable expectations over the

past 130 years. The Eighth Circuit’s decision alters

the status quo by expanding the jurisdiction of the

Tribe over the disputed area.

26

A. Disputed Area Has No History Of Indian

Character.

The demographics of the area are undisputed and

confirm diminishment of the Omaha Reservation.

Prior to the passage of the 1882 Act, the disputed

area had not been settled by either Indians or non-

Indians. J.A. 583, 657. According to a report submit-

ted by the local Indian agent leading up to passage of

the 1882 Act, “there are no Indians living on the

western portion of the Omaha Reservation.” J.A. 657.

Neither did Congress expect the Indians to select their

allotments west of the railroad right-of-way. As Repre-

sentative Valentine stated while specifically discussing

the provision to allow Indians to select allotments

west of the railroad right-of-way prior to the lands

being sold: “They do not care about making selections

over on that side of the road at all.” J.A. 739.

Alice Fletcher, who was appointed by the Secre-

tary of the Interior as a special agent to oversee the

allotment process, urged the Omahas to select land

near the railroad right-of-way. J.A. 203-04, 347-48,

598. Few Omahas accepted Fletcher’s advice; most

preferred the eastern part of the reservation for its

access to water and timber. J.A. 203-04, 347-48, 598.

“No Indians chose land in the heart of the sale area,

reflecting their lack of interest in these lands.” J.A.

598-99.

In contrast, according to Senator Saunders,

settlers were “ready to buy the land and put it in

cultivation.” J.A. 583, 644, 1227. The rapid settle-

ment anticipated by Congress quickly materialized.

27

In 1884, the Secretary of the Interior reported to

Congress that “[u]pon opening the lands to settlement

the majority thereof was quickly absorbed by set-

tlers.” J.A. 357. Local Agent Wilkinson confirmed the

disputed area was “immediately occupied” by settlers.

J.A. 486.

One of those early settlers after the 1882 Act,

W.E. Peebles, left the town of Oakland, Nebraska,

purchased a 160-tract of land west of the railroad

right-of-way, and platted the townsite which quickly

became the village of Pender. J.A. 208, 357. Lots

within the townsite were sold on April 7, 1885. J.A.

208, 357. Soon, Pender became the county seat of

Thurston County, Nebraska and between 1885 and

1889, Pender grew to a population of more than 300.

J.A. 357. 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%. J.A. 208, 366.

Percentage of non-Indian population by decade:

1900 | 1910 | 1920 | 1930 | 1990 | 2000

est of

i 99.73% | 98.18% /|99.95%| 99.16% 99.58% (99.17%

OW

ast of

59.47%) 75.12%|85.20%)| 78.95% |42.03%|30.22%

OW

J.A. 368.

28

The historical record indeed shows that the

population of Tribe members living west of the rail-

road right-of-way has always been extremely small.

Since 1900, there have never been more than 72

Indians (1.8% of the total population) living on this

land, and as of the year 2000, only 21 Indians (0.83%

of the total population) lived there. J.A. 365-68. These

facts stand in stark contrast to the demographics of

the land east of the railroad right-of-way, where 2337

Indians (69.78% population) lived as of 2000. J.A.

366, 368. This near-total absence of Indian character,

combined with the State of Nebraska’s consistent

assertion of jurisdiction over this land, “demonstrates

a practical acknowledgment that the Reservation was

diminished.” Hagen, 510 U.S. at 421.

Furthermore, the demographic history supports a

finding of de facto diminishment. “Where non-Indian

settlers flooded into the opened portion of a reserva-

tion and the area has long since lost its Indian char-

acter, we have acknowledged that de facto, if not

de jure, diminishment may have occurred.” Solem,

465 U.S. at 471 (citing Rosebud Sioux Tribe, 430 U.S.

at 588 n.3; and DeCoteau, 420 U.S. at 428); accord

Yankton Sioux Tribe, 522 U.S. at 356-57. “In addition

to the obvious practical advantages of acquiescing to

de facto diminishment, [courts] look to the subse-

quent 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

471-72. The demographic history here — both before

29

and after the 1882 Act — show that this land has

never had any Indian character and that Congress

expected the disputed area to no longer be part of the

reservation.

B. Less Than 2% Of The Total Acreage Of

The Disputed Area Was Allotted To

Tribal Members.

Non-Indian land use in the disputed area mirrors

its demographics and confirms diminishment. Follow-

ing the survey and appraisal of the segregated land

west of the right-of-way, it was opened for settlement

on April 30, 1884. J.A. 204. “Upon opening the lands

to settlement the majority thereof was quickly ab-

sorbed by settlers. By September 1, 1884, 311 filings

had been made, embracing about 43,000 acres.” J.A.

357.

In contrast, when given the option of selecting

their land west of the railroad right-of-way, nearly all

Omahas preferred the eastern part of the reservation.

J.A. 203-04, 347-48, 598. Only 10 to 15 Indian allot-

ments totaling 876 of the approximately 50,000 acres,

less than 2% of the total acreage, in the area had

been allotted to Tribal members. J.A. 204, 350. In

total, Indian allotments either wholly or partially in

the disputed area taken by members of the Tribe

represent approximately 1.72% of the total acreage

west of the railroad right-of-way. J.A. 204. The re-

maining 98.28% of the land was conveyed from the

United States to non-Indians, with the final remain-

ing parcel selling in 1913. J.A. 206. And by 1919, “all

30

lands allotted to Omaha Tribe members west of the

Railroad right-of-way had been patented in fee sim-

ple; thus, no trust land remained west of the demar-

cation line.” J.A. 206, 360.

The combined statistics on demographics and

land use are even more compelling than those de-

scribed in the four cases where this Court found

diminishment. See Yankton Sioux Tribe, 522 U.S. at

356-57 (two-thirds of the population was non-Indian

and more than 90% of the reservation lands were in

non-Indian lands); Hagen, 510 U.S. at 421 (involved

land that was “over 90% non-Indian both in popula-

tion and in land use”); Rosebud Sioux Tribe, 430 U.S.

at 605 (involved land that was “over 90% non-Indian

both in population and in land use”); DeCoteau, 420

U.S. at 428 (approximately 90% of the population was

non-Indian and collectively owned approximately 85%

of the land); contra Solem, 465 U.S. at 480 (finding no

diminishment where the overall population of the

land was evenly divided between Indians and non-

Indians). This near-total absence of Indian character,

combined with the State of Nebraska’s consistent

assertion of jurisdiction over this land, “demonstrates

a practical acknowledgment that the Reservation was

diminished.” Hagen, 510 U.S. at 421; see also City of

Sherrill, N.Y., 544 U.S. at 197.

31

C. Nebraska’s History Of Jurisdiction Over

The Disputed Area.

Nebraska’s longstanding exercise of jurisdiction

logically flows from Congress’ intent. Senator Ingalls,

a member of the committee that reported the Act,

explained that under the Act “the interest and control

and jurisdiction of the United States is absolutely

relinquished.” J.A. 647 (emphasis added). In 1885,

the Commissioner of Indian Affairs clearly agreed

when he advocated for the Winnebagoes to realize a

“great benefit” from legislation “substantially similar”

to the “Omahas (act of August 7, 1882)” and “be

subject to the laws, both civil and criminal, of the

State (Nebraska).” J.A. 503. It is unsurprising then,

that the State of Nebraska immediately assumed

jurisdiction over the area.

The United States and the Tribe abided by this

arrangement for more than a century. Indeed, as

recently as 1999, the disputed area was “routinely

patrolled by State and Village of Pender officers;

neither officers of the Tribe nor the Bureau of Indian

Affairs have provided law enforcement presence in

the opened lands.” J.A. 151. This “longstanding

assumption of jurisdiction” by Nebraska over the

disputed area, which is over 90% non-Indian both in

population and in land use, demonstrates the parties’

understanding that the 1882 Act diminished the

Omaha Reservation. Rosebud Sioux Tribe, 430 U.S. at

604-05.

32

Notably, in 1999, the United States voluntarily

relinquished authority to the State of Nebraska to

prosecute Damon Picotte, a Winnebago tribal mem-

ber, in state court for committing a murder in the

Village of Pender. Picotte’s murder was committed

fifteen years after the 1984 Solem decision in which

this Court upheld granting a writ of habeas corpus

because the State of South Dakota did not have

jurisdiction to prosecute a defendant for a crime

committed on land that was not diminished from an

Indian reservation. J.A. 145-52. Remarkably, the

United States is now taking a position entirely incon-

sistent with its 1999 post-Solem action, where it

depended upon the State of Nebraska to prosecute

Picotte for his serious crime.

Attempting to cloud the clear jurisdictional

picture showing the State of Nebraska assuming and

exercising consistent jurisdiction of the disputed area,

the United States has previously pointed to the

inclusion of alternative boundary lines when the

United States accepted Nebraska’s retrocession of

jurisdiction following P.L. 280. Br. in Opp. to Pet. 7;

see 35 Fed. Reg. 16598 (1970). However, when P.L.

280 transferred jurisdiction over “All Indian country

within the State” of Nebraska to the State in 1953

it did not delineate the boundary lines of such In-

dian country. 18 U.S.C. § 1162; 28 U.S.C. § 1360. In

1969, when the State of Nebraska retroceded a

portion of that jurisdiction “in the areas of Indian

country located in Thurston County, Nebraska,” the

State did not define any reservation boundaries in its

33

retrocession. J.A. 1122-24. The United States’ accep-

tance of retrocession on different terms than what

Congress originally transferred, and the State later

retroceded, does not alter the intent behind the 1882

Act that the “jurisdiction of the United States [was]

absolutely relinquished.” J.A. 647. Regardless of the

acceptance of retrocession language, the State of Ne-

braska immediately assumed exclusive jurisdiction

over the area in 1882 without contest from the Tribe or

United States until recently.

D. All Governmental Services In The Dis-

puted Area Are Provided By State And

Local Authorities.

Nebraska’s longstanding assumption of jurisdic-

tion in the disputed area is not limited to criminal

matters. In the disputed area, all governmental

services are provided by state and local agencies. J.A.

319. The Tribe has never sought to enforce the provi-

sions of the Omaha Tribal Code west of the right-of-

way although the Tribe has enforced its code east of

the railroad right-of-way. J.A. 215-16. Nor does the

Tribe offer foster care, medical, welfare or child

protective services west of the railroad right-of-way.

J.A. 216. Also notable, the Tribe does not have an

office and does not operate a school, industry, or

business in the disputed area. J.A. 216. The Tribe

does not have a single school to educate the children

living in the disputed area. The Tribe’s seat of gov-

ernment is not in the disputed area, but instead

twenty miles east of the area in Macy, Nebraska. J.A.

216. Put simply, the historical record is devoid of facts

suggesting the Tribe ever sought to assert jurisdiction

over the town of Pender until the twenty-first cen-

34

tury. J.A. 609.

E. United States History Of Treating The

For over a century after the 1882 Act, the United

States exhibited a steady pattern regarding the

disputed area confirming that it had absolutely

Disputed Area As Diminished.

relinquished all jurisdiction and control:

1883: United States’ map of reservation

shows boundary does not extend west of

the railroad right-of-way. J.A. 1298.

1884: Disputed area not included in OIA

acreage report and Indian Agent Wil-

kinson describes settlers as “surround-

ing the reservation.” J.A. 206, 615.

1885: Commissioner of Indian Affairs

reports all lands in the disputed area

had been sold to non-Indian settlers, are

“subject to the laws, both civil and crim-

inal, of the State (Nebraska),” and the

remaining lands are “within the dimin-

ished reserve.” J.A. 503. Indian Agent

Wilkinson confirms the “Omahas have re-

duced their reservation.” J.A. 350, 1076.

1888: Disputed area not included in OIA

acreage report and United States’ map of

reservation shows boundary does not

35

extend west of the railroad right-of-way.

J.A. 206, 1299.

1890: Indian Agent Ashley reports the

reservation does not include the portion

sold and occupied by white purchasers.

J.A. 606, 798.

1892: Indian Agent Ashley reports the

reservation does not include the portion

sold and occupied by white purchasers

and United States’ map of reservation

shows boundary does not extend west of

the railroad right-of-way. J.A. 817, 1300.

1898: Disputed area not included in OIA

acreage report. J.A. 207, 517.

1900: Disputed area not included in OIA

acreage report. J.A. 207, 522.

1901: Indian Agent Mathewson reports

the railway forms the southwestern

boundary of the reservation. J.A. 207,

841.

1904: Superintendent in charge of Omaha

Agency reports the western boundary

line of the reservation is the railway

line. J.A. 607; see also J.A. 1076.

1906: Disputed area not included in OIA

acreage report. J.A. 207, 525.

1909: Disputed area not included in OIA

acreage report. J.A. 207, 531.

1911: Disputed area not included in OIA

acreage report. J.A. 207, 536.

36

e 1935: Annual Statistical Report for Omaha

Reservation lists the Omaha Reserva-

tion as encompassing 137,495.47 acres

and “Sale — Land W. of RR.” as a “reduc-

tion to the reservation.” J.A. 208, 541.

* 1964: Bureau of Indian Affairs “Base

Map” of the reservation shows boundary

does not extend west of the railroad

right-of-way and reiterates “[t]his Office

holds the opinion that the [1882] Act of

Congress has DIMINISHED the borders

of the Omaha Reservation.” J.A. 562-64,

969-70 (emphasis in original).

e 1989: Office of the Solicitor of the United

States Department of Interior confirms

the “western boundary of the Omaha

Reservation is the centerline of the

abandoned [railroad] right of way.” J.A.

213-14, 369-70, 1193.

e 1999: The United States does not chal-

lenge the State of Nebraska’s assertion

of criminal jurisdiction over Winnebago

Tribe Member Picotte when he shot and

killed a non-Indian in her Pender home.

J.A. 145-52.

Despite this steady pattern, and only in 2012 after

the current litigation was filed by the Individual

Petitioners disputing the Tribe’s authority to tax

liquor sales in Pender, the Department of Interior

withdrew the 1989 opinion and appears to have of-

ficially changed its view for the convenience of litiga-

tion. J.A. 214, 281.

37

The Tribe and United States have attempted to

inject ambiguity by focusing on recent efforts by the

Department of the Interior and other federal agencies

to assert jurisdiction that are “too far removed tem-

porally from the [1882 Act] to shed much light on

Congressional intent.” Osage Nation v. Irby, 597 F.3d

1117, 1126 (10th Cir. 2010). Indeed, authorities’

treatment of the disputed area “in the years immedi-

ately following the opening,” Solem, 465 U.S. at 471,

is far more probative than actions over a century

after the 1882 Act. Put simply, “in light of the clear

assumption of jurisdiction over the past [130] years

by the State ... on the territory now in dispute, and

acquiescence by the Tribe and Federal Government,

this sporadic, and often contradictory history of

congressional and administrative actions in other

respects carries but little force.” Rosebud Sioux Tribe,

430 U.S. at 604, n.27; see also Yankton Sioux Tribe,

522 U.S. at 356-57 (refusing to allow modern at-

tempts by the Tribe to exercise civil, regulatory, or

criminal jurisdiction to change its conclusion that

“(tlhe State’s assumption of jurisdiction over the

territory, almost immediately after the 1894 Act and

continuing virtually unchallenged to the present day,”

reinforced its holding of diminishment).

The Omaha Reservation was diminished long

ago. The State of Nebraska’s longstanding assump-

tion of jurisdiction, acquiesced to by the Tribe and

the United States, over the disputed area shows de

facto diminishment of the reservation which is also

38

consistent with the legislative history that the 1882

Act would diminish the reservation.

Il. THE CONTEXT SURROUNDING THE 1882

ACT SHOWS CONGRESS INTENDED TO

ALTER THE RESERVATION’S BOUNDA-

RIES.

The context in which Congress enacted

the 1882 Act shows Congress intended to di-

minish the Reservation. “When events sur-

rounding the passage of a surplus land Act —

particularly the manner in which the trans-

action was negotiated with the tribes involved

and the tenor of legislative Reports presented

to Congress — unequivocally reveal a widely

held, contemporaneous understanding that

the affected reservation would shrink as a

result of the proposed legislation, [courts]

have been willing to infer that Congress

shared the understanding that its action

would diminish the reservation, notwith-

standing the presence of statutory language

that would otherwise suggest reservation

boundaries remain unchanged.”

Solem, 465 U.S. at 471.

The “touchstone to determine whether a given

statute diminished or retained reservation bounda-

ries is congressional purpose.” Yankton Sioux Tribe,

522 U.S. at 343. The congressional purpose prior to

and under the 1882 Act to diminish the reservation

was Clear.

39

A. Prior To The 1882 Act, Congress Re-

peatedly Attempted To Separate And

Sell The Disputed Area.

In both Hagen and Rosebud Sioux Tribe, this

Court concluded congressional acts diminished the

reservations by viewing those acts through the lens of

earlier congressional action. See Hagen, 510 U.S. at

415-16 (refusing to interpret the last congressional

act, which had only general allotment language, in

isolation “because the baseline intent to diminish the

reservation expressed in [an earlier act] survived the

passage of the [later act]”); Rosebud Sioux Tribe, 430

U.S. at 612-13 (construing the 1904, 1907, and 1910

Acts, which affected different portions of the same

reservation, together to conclude Congress intended

to diminish the reservation with each Act). As in

Hagen and Rosebud Sioux Tribe, this Court must

read the 1882 Act in light of its historical context,

including the repeated efforts of the Tribe and Con-

gress to diminish the reservation in the years leading

up to the 1882 Act.

On two occasions in 1871, the Tribe, through its

designated federal agent, petitioned Congress to sell

the uninhabited westernmost portion of the reserva-

tion in order to obtain additional financial resources.

J.A. 194, 419, 424, 573. The Tribe requested that the

50,000 acres “be separated from the remainder” of the

reservation and offered for sale. J.A. 573, 629. The

Commissioner of Indian Affairs supported these re-

quests and reiterated, “I believe that the general idea

of diminishing these reservations for the purpose of

40

securing higher cultivation of the remaining lands, is

consonant with sound policy.” J.A. 194, 625.

Congress responded by enacting the Act of June

10, 1872 (“1872 Act”), providing for the sale of 50,000

acres “to be taken from the western part” of the

reservation and “separated from the remaining

portion of said reservation.” J.A. 631. Although the

1872 Act authorized land sales from other tribal

reservations, it is significant that those other sales

(i.e., land other than the disputed area involved in

this case) were not identified as involving a separa-

tion from the reservations. J.A. 632-34. The 1872 Act

is very much a part of the legislative history of the

1882 Act.

Because of the availability and pricing of other

land, the 1872 Act only accomplished the sale of 300

acres. J.A. 195, 333-35. In 1874, the Commissioner of

Indian Affairs reported that the reservation contained

192,867 acres, but he continued: “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.” J.A. 195, 360-61, 504. This description, even

in 1874, indicated the Commissioner considered the

disputed area as detached from the remainder of the

reservation as a result of the 1872 Act.

The Tribe continued to request to have the unin-

habited land sold. In 1880, Congress considered

legislation, as explained by Senator Alvin Saunders of

Nebraska, to facilitate the sale of the western 50,000

41

acres of the reservation not sold under the 1872 Act

because of price. J.A. 196-97. The 1880 proposal did

not advance. J.A. 196, 197. Again in December of

1881, Senator Saunders proposed another bill author-

izing the sale of land, but this proposal did not ad-

vance either. J.A. 336-37. Although Senator Saunders’

1880 and 1881 proposals did not advance, it appears

that Congress understood the Tribe wanted the land

sold and that the land east of the railroad right-of-

way would constitute the Tribe’s diminished reserve.

During the intervening period between the 1872

Act and the 1882 Act, the Omaha granted the Sioux

City and Nebraska Railroad Company a right-of-way

through the reservation, beginning at the northern

edge and generally running southward along the

Middle and Logan creeks. J.A. 336. Critically, the

railroad right-of-way now provided a clear demarca-

tion of the boundary-line west of which all land would

be sold. J.A. 360, 1193.

B. The Legislative History Of The 1882

Act Demonstrates The Understanding

The Reservation Would Shrink As A

Result Of The Legislation.

The 1882 Act was nearly identical to the 1872

Act, both in its terms and objectives. As explained by

Senator Saunders: “It happens to be one of those few

cases where I believe everybody is satisfied to have a

bill of this kind passed (J.A. 582, 644), .... Twice they

have expressed themselves already in open council in

42

favor of it, and the bill requires 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.”

J.A. 469.

According to a report submitted by the local

Indian agent, “there are no Indians living on the

western portion of the Omaha Reservation.” J.A. 657.

Therefore, Senator Ingalls explained under the bill

that “(t]he lands that [the Tribe] occupy are segregat-

ed 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.” J.A. 647.

The 1882 Act “practically breaks up that portion at

least of the reservation which is to be sold, and pro-

vides that it shall be disposed of to private purchas-

ers.” J.A. 647. 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.” J.A. 683.

In the House of Representatives, Representative

Edward Valentine of Nebraska added: “they do not

care about making selections over on that side of the

road at all.” J.A. 201, 739. Representative Valentine

further explained:

You cannot find one of those Indians that

does not want the western portion sold, not

43

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.

J.A. 201, 726. Local Omaha and Winnebago Agent

George Wilkinson subsequently verified this infor-

mation and reported that the tribe consented to the

act on May 5, 1883. J.A. 345.

C. The 1872 And 1882 Acts Predate The

Dawes Act And Are Unlike General Al-

lotment Acts.

It is important to distinguish the 1872 and 1882

Acts “from a run-of-the-mill allotment act.” Wisconsin

v. Stockbridge-Munsee Cmty., 554 F.3d 657, 663 (7th

Cir. 2009). The vast majority of reservation surplus

land passed out of tribal control following the 1887

enactment of the General Allotment Act, also known

as the Dawes Act. In fact, all of this Court’s opinions

44

deciding whether a reservation was diminished or

disestablished involved a pre-Dawes allotment act.

See Hagen, 510 U.S. at 402-07 (analyzing a series of

acts in the early 1900s); Yankton Sioux Tribe, 522

U.S. at 329 (analyzing 1894 Act); Solem, 465 U.S.

at 464 (analyzing 1908 Act); Rosebud Sioux Tribe,

430 U.S. at 584 (analyzing 1904, 1907, and 1910

Acts); DeCoteau, 420 U.S. at 441-42 (analyzing

1891 Act); Mattz v. Arnett, 412 U.S. 481, 484-85

(1973) (analyzing 1892 Act); Seymour v. Supt. of

Wash. State Pen., 368 U.S. 351 (1962) (analyzing 1906

Act).

The 1872 and 1882 Acts at issue in this litigation

predate and differ from post-Dawes Act surplus

allotment acts, in which individual parcels of land

were allotted to tribe members with the remaining

parcels declared surplus and opened for settlement

by, and sale to, non-Indians. See, e.g., Solem, 465 U.S.

at 466-67. This is significant because instead of

creating a checkerboard pattern of land ownership

that sought to integrate non-Indian settlers amongst

tribal members, here Congress sought to sell to non-

Indian settlers land in an area that was “slice[d]

off from the [...] reservation.” Stockridge-Munsee

Cmty., 554 F.3d at 663.

The 1872 and 1882 Acts were consistent with the

view of the Commissioner of Indian Affairs FA.

Walker at the time of the 1872 Act, who believed

Indians should still be separated and secluded on

reservations. Walker believed that any reductions to

reservations should be accomplished by “cutting off

45

distinct portions from the outside, and not in such a

way as to allow veins of white settlement to be inject-

ed, no matter whether along a stream or along a

railway.” J.A. 593.

The actions of Congress and the Tribe were also

consistent with this goal. The Tribe had requested the

disputed area be “separated from the remainder”

(J.A. 629), and Senator Ingalls agreed the bill would

“break[{] up that portion at least of the reservation

which is to be sold” and “segregate[]” the lands oc-

cupied by Tribe members. J.A. 647. While Petitioners

acknowledge that 10-15 allotments were selected by

tribal members in the disputed area, 5 of those allot-

ments were largely located east of the railroad right-

of-way, and “[nJo Indians chose land in the heart of

the sale area, reflecting their lack of interest in these

lands.” J.A. 598-99. Congress recognized that even

the land selected by Indians would be “segregated

from the remainder of the reservation . .. so that the

interest and control of and jurisdiction of the United

States is absolutely relinquished.” J.A. 647. The ulti-

mate goal was not to integrate land ownership, but to

separate the disputed area from the reservation.

Both Congress and the Tribe intended to sepa-

rate and segregate the western portion of the reser-

vation from the eastern portion by virtue of the

railroad right-of-way as the western boundary,

with minimal, if any, Tribe members selecting

allotments on the western side, and no settlement

by non-Indians on the eastern side allowed. This

backdrop logically influences interpretation of the

46

congressional purpose behind the 1882 Act and

distinguishes that Act from the run-of-the-mill allot-

ment act.

Ill. THE 1882 ACT SUPPORTS DIMINISHMENT.

A. An Explicit Reference To Cession Is

Not A Prerequisite For A Finding Of

Diminishment.

This Court has repeatedly emphasized that

“explicit language of cession and unconditional com-

pensation are not prerequisites for a finding of dimin-

ishment.” Solem, 465 U.S. at 471; accord Hagen, 510

U.S. at 411 (“(W]e have never required any particular

form of words before finding diminishment.”). This is

in part because “Congress ... generally did not

distinguish between title and boundary concerns and,

in fact, seemed oblivious to future disputes that

might arise over Indian jurisdiction.” Pittsburgh &

Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387,

1394 (10th Cir. 1990). “Today a reservation can en-

compass land that is not owned by Indians, 18 U.S.C.

§ 1115(a), but back then, the ‘notion that reservation

status of Indian lands might not be coextensive with

tribal ownership was unfamiliar.” Stockbridge-

Munsee Cmty., 554 F.3d at 662 (quoting Solem, 465

U.S. at 468). Additionally, “Congress believed that all

reservations would soon fade away — the idea behind

the allotment acts was the ownership of property

would prepare Indians for citizenship in the United

States, which, down the road, would make reserva-

tions obsolete.” Id. “[G]iven this backdrop, [courts]

47

cannot expect Congress to have employed a set of

magic words to signal its intention to shrink a reser-

vation.” Jd. Here, the lower courts found the statutory

language unclear. Pet. App. 6, 76.

The language of the 1882 Act, while not explicitly

addressing the issue, does contain evidence that

Congress intended that the original boundaries of the

Tribe’s reservation would be diminished. The 1882

Act authorized the Secretary of the Interior “to cause

to be surveyed, if necessary, and sold, all that portion

of [the Omaha Reservation] in the State of Nebraska

lying west of the right of way... .” J.A. 227. Section 1

defines the scope of the land potentially diminished.

The Act goes on to provide “[t]hat after the survey

and appraisement of said lands the Secretary of the

Interior shall be, and he hereby is authorized to issue

proclamation to the effect that unallotted lands are

open for settlement.” Jd. Under Section 2, the land in

question was clearly opened to settlement by non-

Indians. Upon settlement and compliance with the

terms of sale, “patents shall be issued as in the case

of public lands offered for settlement under the

homestead and preemption acts.” Jd. at 227-28.

Additionally, Congress authorized the Secretary

of the Interior, with the consent of the Tribe, to ex-

tend the non-Indian settlers’ payment period on

multiple occasions. J.A. 205, 352. The 1888 extension

directed the Secretary of the Interior to declare

certain purchasers’ tracts forfeited due to default on

payment. J.A. 206, 352. Upon forfeiture, a settler’s

48

tract was to be sold at public auction, not revert back

to the Tribe. J.A. 206, 352, 360.

The Court in Rosebud Sioux Tribe and Hagen

found diminishment when similar disparities in lan-

guage existed. Thus, “the notion that [clear language

of express termination] is the only method by which

congressional action may result in disestablishment

[or diminishment] is quite inconsistent,” Rosebud

Sioux Tribe, 430 U.S. at 588 n.4 (emphasis added),

with the “traditional approach to diminishment cases,

which requires [courts] to examine all the circum-

stances surrounding the opening of a reservation.”

Hagen, 510 U.S. at 411 (emphasis added). Together,

Rosebud Sioux Tribe and Hagen show that the lack of

explicit references to cession and language distinc-

tions between the 1882 Act and prior Omaha Indian

Treaties are neither dispositive nor particularly illu-

minating of Congress’ intent to diminish the reserva-

tion.

Under this holistic framework considering all

circumstances, both the Seventh and Tenth Circuits

have found reservations diminished/disestablished

even though the operative congressional act did not

have cession or sum certain payment language. See

Stockbridge-Munsee Cmty., 554 F.3d at 662-65 (con-

cluding the Stockbridge-Munsee Indians’ Reservation

was diminished despite the fact that “[t]he 1871 Act

includes no hallmark diminishment language”); Osage

Nation, 597 F.3d at 1127 (concluding the 1906 Osage

Allotment Act disestablished the Osage Reservation).

Given the circumstances surrounding the disputed

49

area in this case, the lower courts erred by not reach- |

ing a similar conclusion.

It is also significant that when opening the land

west of the railroad right-of-way, Congress did not

reserve any portion of these lands for Indian use or

carve out any mineral or other land rights from the

opened area. J.A. 227-33. These facts distinguish the

surrounding circumstances of this case from those in

Solem, where the allotment act envisioned and/or

provided for future tribal use of the land. Solem, 465

U.S. at 474 (explaining that the Cheyenne River Act

authorized the Secretary “to set aside portions of the

opened land for agency, school and religious purposes

... for the benefit of said Indians” and reserved

mineral resources in the land for the whole tribe).

Such provisions “strongly suggest that the unalloted

opened lands would for the immediate future remain

an integral part” of the reservations. Solem, 465 U.S.

at 474. Conversely, the absence of such provisions in

the 1872 and 1882 Acts suggests Congress did not view

the land west of the railroad right-of-way as continuing

to be a part of the reservation. Rather, all of the land

west of the railroad right-of-way was available for

settlement and transfer to non-Indian settlers.

B. The Tribe’s Lack Of Residence On The

Disputed Area Explains The Lack Of

Cession Language.

The absence of explicit cession language in the

1872 and 1882 Acts is even less illuminating as to

50

Congress’ intent in light of the historical context. The

circumstances on the reservation are distinguishable

from those present with other surplus land acts. For

example, in Matiz, 412 U.S. at 489, the Indians were

residing on the land at the time of the act’s passage.

Thus, the Court emphasized the need for “vacating”

language in the act. But here, when debating passage

of the 1882 Act, members of the Tribe did not reside

on the disputed area. J.A. 583, 657, 726, 739. Rather,

the Tribe members resided east of the railroad right-

of-way. J.A. 330-31. This was a commonly understood

fact in 1882. Accordingly, there was less need to

specifically provide some of the hallmark diminish-

ment language that was present in other surplus land

acts.

Furthermore, understanding the historical

context helps explain why the inclusion of hallmark

cession language in the 1854 and 1865 Treaties with

the Tribe, as compared to the absence of such lan-

guage in the 1882 Act, is not particularly enlighten-

ing. Unlike the 1882 Act, the 1854 Treaty required

the Tribe to physically vacate land, making express

cession language necessary. J.A. 328-29, 1019-28 (ex-

plaining the effect of the 1854 Treaty). The 1865

Treaty’s use of cession language was also necessary

considering the purpose of the treaty was to provide

land for the United States to set up a reservation for

the Winnebago Tribe. J.A. 329 (explaining the effect

of the 1865 Treaty). To accomplish this objective,

Congress needed to first eliminate the entirety of the

51

Tribe’s right to the land before giving the same land

to the Winnebago Tribe for its reservation.

With the 1882 Act, Congress did not face the

same need to transfer full and complete title away

from the Tribe, as that would occur once the land was

either allotted to tribe members or settled upon and

sold to non-Indians. After all, “Indian lands were

judicially defined to include only those lands in which

the Indians held some form of property interest.”

Solem, 465 U.S. at 468. Congress assumed at that

time that the reservation status of the Indian land

was coextensive with tribal ownership. See Solem,

465 U.S. at 468.

The practical reality of the circumstances sur-

rounding the land transfers dictated that the 1854

and 1865 Treaties needed to include this cession

language to accomplish their objective, while the 1882

Act did not.

IV. THE PUBLIC’S JUSTIFIABLE EXPECTA-

TIONS WILL BE UPSET BY EXPANDING

THE JURISDICTION OF THE TRIBE

OVER 130 YEARS AFTER DIMINISH-

MENT.

For over 130 years, the people and businesses

of the Pender, Nebraska area have developed justi-

fiable expectations that their community was under

the jurisdiction of the State of Nebraska. The lower

courts’ decisions in this litigation destroyed that

52

longstanding status quo and upset the public’s justi-

fiable expectations.

Petitioners expect the Tribe and United States

will continue to downplay the effect of altering the

status quo by expanding the jurisdiction of the Tribe

over 130 years after diminishment. Doing so, how-

ever, ignores this Court’s observations that “when an

area is predominantly populated by non-Indians with

only a few surviving pockets of Indian allotments,

finding that the land remains Indian country seri-

ously burdens the administration of state and local

governments.” Hagen, 510 U.S. at 420-21 (quoting

Solem, 465 U.S. at 471-72, n.12 (emphasis added)).

For over a century, State and local governments

have relied on the 1882 Act, and the actions and/or

inaction taken by the Tribe and United States, in

asserting their own civil and criminal jurisdiction

in the disputed area. Notably, Respondents’ recent

effort to assert jurisdiction in the disputed area is

not a comprehensive plan to administer a broad

array of government services in and around Pender,

but rather simply to derive revenue from the sale

of alcohol in Pender’s liquor retailers and bars. In

service of that goal, Respondents ask this Court to

rewrite history. The Court should decline Respon-

dents’ invitation.

53

CONCLUSION

For the foregoing reasons, the judgment below

should be reversed.

Respectfully submitted this 16th day of Novem-

ber, 2015.

DOUGLAS J. PETERSON

Nebraska Attorney General

JAMES D. SMITH GENE SUMMERLIN

Solicitor General MARNIE A. JENSEN

of Nebraska MARK D. HILL

Counsel of Record HUSCH BLACKWELL, LLP

610 J Street, Suite 200

ee ee Lincoln, NE 68508-2967

- (402) 434-8040

Assistant Attorneys General :

gene.summerlin@

OFFICE OF THE huschblackwell.com

ATTORNEY GENERAL marnie.jensen@

2115 State Capitol Building huschblackwell.com

Lincoln, NE 68509-8920 mark.hill@

(402) 471-2682 huschblackwell.com

James.Smith@nebraska.gov A for Individual

Attorneys for the & Village Petitioners

State of Nebraska