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

No. 14-140

3n The

Supreme Court of the Anited States

NEBRASKA, et al.,

Petitioners,

v.

MITCH PARKER, et al.,

Respondents.

o

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

°

REPLY BRIEF FOR PETITIONERS

+

DOUGLAS J. PETERSON GENE SUMMERLIN

Attorney General of Nebraska MARNIE A. JENSEN

MARK D. HILL

— D. SMITH HuscH BLACKWELL, LLP

icitor General 610 J St Sui

of Nebraska - reet, Suite 200

Counsel of Record Lincoln, NE 68508-2967

(402) 434-8040

RYAN S. Post gene.summerlin@

DAVID A. LOPEZ huschblackwell.com

Assistant Attorneys General marniejensen@

huschblackwell.com

yt, mark.hill@

2115 State Capitol Building _ PuSchblackwell.com

Lincoln, NE 68509-8920 Attorneys for Individual

(402) 471-2682 & Village Petitioners

James.Smith@nebraska.gov

s for the

State of Nebraska

COCKLE LEGAL BRIEFS (#00) 225-6964

Www CVU FT Ural BOISE PO res

i

TABLE OF CONTENTS

Page

TATE OF CORTE TIT EI oceeccecccesccescccceccsccccscccccece i

TABLE OF AUTHORITIBES......................ccccccceeees ii

I ceed 1

TREES NS vee ae Oren aOR 2

I. DIMINISHMENT SHOWN BY: (1) NO

INDIAN CHARACTER, (2) NO TRIBAL

OR FEDERAL PRESENCE, AND (3) STATE

OF NEBRASKA’S UNINTERRUPTED

ASSERTION OF JURISDICTION ............ 2

II. DIMINISHMENT SHOWN BY THE 1882

ACT IN ITS HISTORICAL CONTEXT ..... 15

Ill. EVENTS SURROUNDING THE 1882 ACT

REVEAL A WIDELY HELD CONTEMPO-

RANEOUS UNDERSTANDING THAT THE

RESERVATION WOULD SHRINK............ 19

Ne Drinsscceceniindtennininenaibnesenventinmesenvins 24

APPENDIX

Enlarged Bureau of Indian Affairs Maps of

ITI iaindcnnisnsidsisssintsnipntniapestniohtntnidiagdamensentoineiesions la

li

TABLE OF AUTHORITIES

Page

CASES

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

of New York, 544 U.S. 197 (2005) ....................02. 2,14

DeCoteau v. Dist. Cnty. Ct., 420 U.S. 425 (1975)......... 4

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

Lamplot v. Heineman, 06-cv-3075 (D. Neb.

EI aI RR Lo 0 OO TOOT 10

Matiz v. Arnett, 412 U.S. 481 (1973).................... 16, 17

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

chenille lata passim

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

CTT eee ee ON aE 16, 17

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

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

ERASE CRE Ne os eer See Oar 2,4, 18

United States v. Picotte, 8:99-cr-00159-JFB (D.

An eee eet eee aan ann 14

Wisconsin v. Stockridge-Munsee Cmty., 554

I EE SI rrcicincencnccinmnniinncsatidéendiinedannie 17

STATUTES

Act of June 10, 1872, ch. 436, 17 Stat. 391.......... 20, 21

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

Act of Aug. 2, 1886, ch. 844, 24 Stat. 214.000.0000... 22

Act of May 15, 1888, ch. 255, 25 Stat. 150................. 22

TABLE OF AUTHORITIES — Continued

Page

Act of Aug. 19, 1890, ch. 803, 26 Stat. 329 ................ 22

Act of Aug. 11, 1894, ch. 255, 28 Stat. 276........... 18, 23

Act of May 6, 1910, ch. 202, 36 Stat. 348 ....13, 16, 18, 23

Indian Reorganization Act, 48 Stat. 984 et seq.

1

INTRODUCTION

If the members of late nineteenth-century Con-

gress could peer into the future and see the fate of the

disputed area over the next 130 years, they would be

unsurprised to find that the land was populated

almost exclusively by non-Indians (over 98%) and

that the State of Nebraska had consistently and

exclusively exercised criminal and civil jurisdiction

over the area. This is true because they would see

that their expectation and goal to end the Reserva-

tion status of this land had been realized by the early

1900s as almost all the land quickly sold to non-

Indian settlers. To the contrary, the members of

Congress would no doubt be very surprised to learn

that the Omaha Tribe and United States government

now claimed the land west of the railroad right-of-

way still remained part of the Reservation. This real-

ity must inform the Court’s diminishment analysis.

This Court should once and for all resolve that

the Omaha Reservation was diminished in 1882 and

the land at issue in this case is not part of the Reser-

vation. Both this Court’s precedent and practical

realities demand this result because the disputed

area does not have, and has never had, any Indian

character, there has never been any federal or tribal

presence on the land, and the State of Nebraska has

dominated the jurisdictional history of the area, as all

governmental services are provided by the State and

local agencies.

The 1882 Act, viewed in historical context, in-

dicates that Congress intended to diminish the

2

Reservation. Indeed, the events surrounding the 1882

Act reveal that everyone — Congress, the Tribe, and

the Executive Branch — intended to separate and

segregate the western land from the Reservation and

relinquish it to the State of Nebraska. The historical

and current demographics, land ownership, and as-

sumption of uninterrupted jurisdiction by state and

local authorities all confirm this occurred.

This history has “created justifiable expectations,”

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 604-05

(1977), among those who have ordered their lives

based on the treatment of the land by authorities at

all levels of government. A conclusion that this land

should return to the Reservation would greatly dis-

turb these expectations. To the contrary, if the Court

determines that the Omaha Reservation was dimin-

ished in this case, nothing will change and the

historical status quo will remain undisturbed.

¢

ARGUMENT

I. DIMINISHMENT SHOWN BY: (1) NO

INDIAN CHARACTER, (2) NO TRIBAL OR

FEDERAL PRESENCE, AND (3) STATE OF

NEBRASKA’S UNINTERRUPTED ASSER-

TION OF JURISDICTION.

As this Court stated in Solem, and reiterated in

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

Yankton Sioux Tribe, 522 U.S. 329 (1998), and City of

Sherrill, N.Y. v. Oneida Indian Nation of New York,

3

544 U.S. 197 (2005), when an area “has long since lost

its Indian character, we have acknowledged that

de facto, if not de jure, diminishment may have

occurred.” Solem v. Bartlett, 465 U.S. 463, 471 (1984).

The “subsequent demographic history of opened

lands” is an “additional clue as to what Congress

expected would happen once land on a particular

reservation was opened to non-Indian settlers.” Jd. at

471-72. Thus, “who actually moved onto opened

reservation lands is ... relevant to deciding whether

a surplus land Act diminished a reservation. .. .” Id.

As this Court emphasized in Rosebud:

The long-standing assumption of jurisdiction

by the State over an area that is over 90%

non-Indian, both in population and in land

use, not only demonstrates the parties’

understanding of the meaning of the Act, but

has created justifiable expectations which

should not be upset by so strained a reading

of the Acts.

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 604-05

(1977).

Nevertheless, Respondents strain to urge the

Court to disregard these principles and ignore the

juris¢c‘ctional history and demographic history of the

disputed area. U.S. Br. 28; Omaha Tribal Council

(“OTC”) Br. 24, 43-44. The Tribe asserts that because

“statutes are to be construed liberally in favor of the

Indians,” “courts cannot ... [rely] on post-enactment

evidence as an indicium of congressional intent.” OTC

Br. 24. This assertion is wrong and contradicts the

4

framework set forth by Solem. Solem explained that

“in the area of surplus land Acts, where various

factors kept Congress from focusing on the diminish-

ment issue,” “[rjesort to subsequent demographic

history” for statutory interpretation, “is a necessary

expedient.” Solem, 465 U.S. at 471-72 nn.12 & 13

(emphasis added). In contrast, Respondents advance

the proposition — erroneously adopted by the courts

below — that analyzing demographic factors amounts

to “unnecessary surplus.” Pet. App. 7.

Here, the disputed area does not have and never

has had any Indian character. J.A. 657. Since 1900,

as confirmed by the official censuses, over 98% of this

land’s population has always been non-Indian. J.A.

208, 366. After over a century, the total number of

Indians residing in the disputed area is 21 people,

which is only 9 more than the initial census data of

12 Indian residents in 1900. J.A. 366. More than 98%

of the land in the area was conveyed from the United

States to non-Indians. J.A. 204, 350. These statistics

are more overwhelming and compelling than the four

cases where this Court found diminishment. See

Yankton Sioux, 522 U.S. at 356-57 (two-thirds of the

population was non-Indian and over 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 population and in land use”);

Rosebud Sioux, 430 U.S. at 605 (involved land that

was “over 90% non-Indian both in population and in

land use”); DeCoteau v. Dist. Cnty. Ct., 420 U.S. 425,

428 (1975) (approximately 90% of the population was

5

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). Contrary to the Tribe’s brief, there are no

“ever-shifting demographic trends” here. OTC Br. 53.

A percentage change in the Indian population from

0.27% to 0.83% over a century is not an “ever-shifting

demographic trend.” J.A. 366. Rather, it shows the

legal conclusion that there is and has been no Indian

character in the disputed area since it was opened for

settlement.

Regarding jurisdictional authority, the record

shows that the Tribe admitted that, “[wJest of the

railroad right of way, all governmental services are

provided by state and local agencies, not by the

Omaha Tribe.” ECF Doc. 138, 15, 9 147, Smith v.

Parker, 07-cv-3101 (D. Neb. Aug. 29, 2013) (emphasis

added). The Tribe admitted by joint stipulation that

the Tribe has no office, operates no schools, indus-

tries, or businesses in the disputed area and has

conducted no governmental or ceremonial activities

there. J.A. 216." The Tribe does not offer foster care,

' The United States incorrectly attempts to invent tribal

authority in the area by highlighting that at one time or another

a tribal member served as Mayor of Pender, Surveyor of

Thurston County, Justice of the Peace, County Attorney, or

County Judge. U.S. Br. 45. Contrary to the United States’ posi-

tion, this only shows that a tribal member exercised the author-

ity of the State of Nebraska and its municipalities - and the

corresponding recognition of the governmental authority of the

(Continued on following page)

6

medical, welfare, or child protective services in the

disputed area. Jd. The Tribe has no mineral rights or

other claims to land in the disputed area. J.A. 227-33;

cf. Solem, 465 U.S. at 474. Before 2006, and the

imposition of the liquor tax scheme which triggered

this litigation, the Tribe stipulated that it never

enforced tribal ordinances in the disputed area. J.A.

215-16. The complete absence of Indian character

or Tribal presence, combined with the State of Ne-

braska’s consistent assertion of jurisdiction, “dem-

onstrates a practical acknowledgment that the

Reservation was diminished.” Hagen, 510 U.S. at 421.

Contrary to what the Omaha Tribe of today

suggests in its brief, the demographic and jurisdic-

tional history of the disputed area is not a case of

“adverse possession or inadvertent loss of sovereign

territory.” OTC Br. 24. Rather, Congress separated

this portion from the Reservation in 1882 at the

Tribe’s repeated requests for over a decade. J.A. 194,

201, 332, 419, 424, 469, 628-30, 636. The Tribe then

further expressly consented to the 1882 Act. J.A. 345,

466. The Act of 1882 was the Congressional culmina-

tion of the Tribe’s requests.

Post-diminishment confirmation “{iJn the years

immediately following the opening,” Solem, 465 U.S.

at 471, is shown by official pronouncements in U.S.

State of Nebraska by a member of the Tribe. It does not change

the demographics of the number of Indians residing in the

disputed area.

7

government reports and publications clearly and ob-

jectively reflecting the diminishment. Reply Br. App.

la (1883, 1888, and 1892 BIA maps);’ J.A. 206-07

(1884, 1888, 1898, 1900, 1906, 1909, and 1911 OIA

acreage reports); Pet. Br. 34-35.

Here, the land west of the right-of-way was al-

most entirely sold off to non-Indian settlers by 1919.

J.A. 206, 360. All but a few allotments and partial

allotments were sold to non-Indians fifteen years be-

fore Congress rejected its policy of encouraging sur-

plus land sales and allotments by passing the Indian

Reorganization Act, 48 Stat. 984 et seg. (1934). In-

deed, in 1935, soon after Congress passed the Indian

Reorganization Act, the Winnebago Agency issued its

Annual Statistical Report stating the total area of

the original Reservation was reduced by the sale of

50,157 acres of land west of the railroad right-of-way.

J.A. 208, 541.

Non-Indians have consistently, and almost exclu-

sively, resided and worked upon this land continuously

since 1882. Solem, 465 U.S. at 471. It is their “justifi-

able expectations,” developed over the last 130 years,

* Petitioners urge the Court to give particular attention to

these maps, detailed versions of which Petitioners have included

in this reply for the Court’s ease of review. It is evident that the

Bureau of Indian Affairs — in official maps compiled under the

direction of the Commissioner and published in only the first

decade following the 1882 Act — drew Pender (reflected as the

unlabeled county seat circular marker next to the “P” in “La

Porte” in the 1888 and 1892 maps, respectively) outside the

Reservation’s new western boundary, the Sioux City and Ne-

braska Railroad.

8

which will be materially disrupted if the Tribe, with

the wholesale support of the United States govern-

ment, is allowed to restore reservation status to the

disputed area. The practical result would be that the

Tribe would preside over an area owned and virtually

entirely populated by non-Indians and over which the

Tribe has no governmental, law enforcement, or

regulatory presence whatsoever. Simultaneously,

State and local authority would be curtailed despite

the fact that this area has solely been the concern

and responsibility of these governments, not the Tribe

or federal government.

After over 130 years of their documented inaction

in the disputed area, Respondents cling to the follow-

ing alleged inconsistencies to support their position

that overwhelming evidence of de facto diminishment

should be ignored. An analysis of each one further

shows the weakness of the Respondents’ arguments.

1. Tribal Agreements. The Tribe correctly notes

that Nebraska law permits public agencies to con-

tract with tribal governments to perform government

services. OTC Br. 52; Neb. Rev. Stat. § 13-1503.

Petitioners agree with the Tribe that cooperation and

coordination of services on the Reservation should be

encouraged. However, the Tribe omits a significant

fact. The 130 years of government services provided

by the State and local governments in the disputed

area were not provided as part of agreements with

the Tribe regarding the Reservation. They were

provided by the State and local governments to the

disputed area just as they would be to any other off-

reservation area. The Tribe admitted in the district

9

court that “[w]est of the railroad right of way, all

governmental services are provided by state and local

agencies, not by the Omaha Tribe.” ECF Doc. 138, 15,

¥ 147, Smith v. Parker, 07-cv-3101 (D. Neb. Aug. 29,

2013).

On the few occasions when the State entered into

cooperative agreements with the Tribe regarding on-

reservation activity, the Tribe tries to expand the

terms of these agreements, for purposes of this litiga-

tion, beyond the boundaries of the Reservation. OTC

Br. 51 (claiming the motor fuel tax agreement “cov-

ered lands west of the right-of-way, including

Pender”). Even the United States acknowledges that

those agreements are not so expansive. U.S. Br. 50-51

(“The agreement applies only to sales ‘within the

boundaries of [the Omaha] Reservation,’ J.A. 1150,

although it does not specify those boundaries.”).°

2. Revenue Rulings. Respondents try to rely on

Nebraska’s rescinded revenue rulings. U.S. Br. 49-50;

OTC Br. 51. Not only do these revenue rulings not

include any historical or legal jurisdictional analysis

of the Reservation’s boundaries, or even purport to,

but Respondents fail to mention that each revenue

* The Tribe makes a similar unsupported claim that a cross-

deputization agreement between the State and the Tribe included

Pender. OTC Br. 51. Similar to the motor fuel tax agreement,

the cross-deputization agreement was for “law enforcement on

the reservation” and did not specify the Reservation boundaries.

J.A. 219-20.

10

ruling cited was either superseded or rescinded. See

Pet. Br. 17, n.2.

3. Lamplot v. Heineman. Respondents selectively

quote one portion of one brief in Lamplot uv.

Heineman, 06-cv-3075 (D. Neb. 2006), out of context,

to claim the State acknowledged Pender lies within

the Reservation’s boundaries. U.S. Br. 51; OTC Br. 51.

But they conveniently fail to mention the procedural

context of the Lampiot brief. The State, by its filings,

was informing the district court in Lamplot that the

Tribe was an indispensable party in that litigation.

The State specifically clarified in Lamplot that it was

attempting “to illustrate the problems with attempt-

ing to resolve [the Lamplot] case without the partici-

pation of the Omaha Tribe, not to suggest that

Pender, Nebraska lies within the Omaha Tribe’s

reservation.” ECF Doc. 31, 2, Lamplot v. Heineman,

06-cv-3075 (D. Neb. Oct. 23, 2006). “The State has not

argued that Pender, NE is within the Omaha Tribe’s

reservation boundaries, nor will it do so.” Id.

4. United States’ 2012 Post-Litigation Flip. In

order to support its position the Reservation was not

diminished, the United States relies on a 2008 letter

and 2012 memorandum, created in response to a

request for litigation assistance from the Tribe. J.A.

1196 (stating “[yJour letter implicitly requests recon-

sideration of the 1989 opinion issued by this office” as

part of the “Omaha Tribe request for Attorney Fees”).

Far from serving as confirmation the Reservation has

not been diminished, as the United States asserts,

U.S. Br. 46, the 2012 retraction of the 1989 opinion

11

merely shows the post-litigation change of position by

the United States.

The few alleged inconsistencies identified by Re-

spondents immediately after diminishment are refuted

by the record. See, e.g., U.S. Br. 41-42 (incorrectly

claiming cited statements from federal government

officials were not in the record and suggesting acre-

age reports only refer to land occupied by the Tribe);

cf. J.A. 204-08 (stipulating to officials’ statements and

stipulating disputed area was not included as part of

Reservation acreage reports). The United States

selectively quotes subsequent Omaha and Winnebago

Agency reports, U.S. Br. 40, while omitting the parts

of those reports excluding the disputed area from the

boundary description and from the Reservation’s total

acreage. J.A. 496 (1885 Report stating, “The Omahas

have reduced their reservation by selling 50,000 acres,

west of the Sioux City and Omaha Railroad ... ”);

J.A. 798-99 (1890 Report excluding portion sold and

identifying total acreage as 133,840 acres); J.A. 817

(1892 Report excluding portion sold and identifying

total acreage of both reservations as 245,200 acres);

J.A. 830 (1897 Report excluding portion sold and

identifying total acreage as about 133,000 acres); J.A.

1100 (1899 Report identifying total acreage as about

140,000 acres); J.A. 547-49.*

* Apparently recognizing these subsequent agency reports

support diminishment, the Tribe instead argues these reports are

evidence of the BIA taking action to “dismantl[e] Congressional

intent.” OTC Br. 49. The only cited basis for the Tribe’s assertion

(Continued on following page)

12

These perceived inconsistencies, some of Respon-

dents’ own recent and self-serving creation, do not

serve as compelling official acknowledgment of non-

diminishment. Nor do they create a record “so rife

with contradictions and inconsistencies as to be of no

help to either side.” Solem, 465 U.S. at 478.

Instead, the State of Nebraska “dominated the

jurisdictional history,” Solem, 465 U.S. at 479, of the

disputed area. The Tribe admits that west of the

railroad right-of-way, all governmental services are

provided by State and local agencies, not by the Tribe.

And in Rosebud Sioux this Court stated that “the

single most salient fact is the unquestioned actual

assumption of state jurisdiction over the [area].”

Rosebud Sioux, 430 U.S. at 603.

The United States’ arguments, in an impressive

flip-flop, also depart from its position in Solem. In

Solem, the United States argued as follows:

There is a final caveat. In cases where the

opened area of a Reservation was entirely —

or almost entirely — sold off to non-Indian

settlers before the process was halted by

the change of policy enacted in 1934, it may

well be right to treat the Reservation as

diminished today. This is not merely a bow to

current reality. Nor is it an impermissible

attempt to construe turn of the century

are unsupported statements by the Tribe’s hired expert. J.A.

951.

13

legislation in accordance with unpredictable

future events. On the contrary, we reasona-

bly may suppose that the sponsors of “open-

ing up” legislation would have intended to

end the Reservation status of the affected

area if and when their expectations were

fully realized, but not otherwise. Then, as

now, it must have seemed artificial to con-

tinue to treat as part of an Indian Reserva-

tion a discrete area, typically of large

dimensions, once both land ownership and

population had ceased to be Indian. Per con-

tra, where no present cession was involved

and disappointingly few setters had taken up

Congress’s invitation, there was, and is, no

justification for jurisdictionally separating

from the Reservation “core” an adjacent tract

that remains significantly Indian in every

respect.

Brief for United States as Amicus Curiae 34-37,

Solem v. Bartlett, No. 82-1253, 1983 U.S. S. Ct. Briefs

LEXIS 477.

Exactly so. And as the United States further

explained, this Court’s precedents fully supported

that reasoning.

All else aside, this explains the result in

Rosebud. As the Court there stressed, of the

more than 2 million acres opened up by the

Acts of 1904, 1907 and 1910, only some 4,600

remained unsold in 1938. And, today, more

than 90% of the opened area is non-Indian,

both in population and land use. In these

circumstances, it was obviously difficult to

14

conclude that Congress would have wished

the affected area to retain Reservation

status. At some point, the tail can no longer

wag the dog.

Id. The United States now appears to favor the view

that the tail can and should wag the dog.

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 an isolated attempt to derive revenue from the

sale of alcohol at Pender’s liquor retailers and bars. In

service of that goal, Respondents ask this Court to

rewrite history so as to “rekindl[e] embers of sover-

eignty that long ago grew cold.” City of Sherrill, 544

U.S. at 215. Their invitation should be declined.

* The United States does not mention that not only was the

federal indictment of tribal member Damon Picotte dismissed,

U.S. Br. 52, but the federal judge ordered dismissal at the

request of the federal prosecutor so that he could be “released by

the U.S. Marshal to the detainer of the Thurston County Sheriff's

Office to be tried on the charge of murder,” for a murder commit-

ted in Pender. United States v. Picotte, Docket Entry 17, 8:99-cr-

00159-JFB (D. Neb.) (dismissed Oct. 6, 1999) (emphasis added);

J.A. 145-52. Picotte remains in a Nebraska prison serving his 30

to 45 year sentence for his state conviction of second degree

murder. Pet. Br. 16.

15

II. DIMINISHMENT SHOWN BY THE 1882

ACT IN ITS HISTORICAL CONTEXT.

This Court has repeatedly emphasized that

“explicit language of cession and unconditional com-

pensation are not prerequisites for a finding of

diminishment.” Solem, 465 U.S. at 471 (emphasis

added); accord Hagen, 510 U.S. at 411 (“[Wle have

never required any particular form of words before

finding diminishment.”). In fact, “the notion that [clear

language of express termination] is the only method

by which congressional action may result in disestab-

lishment [or diminishment] is quite inconsistent,”

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

with the “traditional approach to diminishment cases,

which requires [courts] to examine all the cir-

cumstances surrounding the opening of a res-

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

Despite these clear directives, Respondents argue

that the absence of words of cession or provisions for

payment of a sum certain in the 1882 Act are fatal to

Petitioners’ position. U.S. Br. 27-28; OTC Br. 17. Just

as this Court has rejected that argument in the past,

the Court should again reject it.

In Hagen, this Court utilized the “traditional

approach to diminishment cases, which requires us to

examine all the circumstances surrounding the open-

ing of a reservation” to conclude Congress diminished

the Uintah Reservation despite the operative statutes

not including express language of cession. Hagen, 510

U.S. at 411-22. Justice Blackmun recognized this in

his dissent in Hagen, stating, “[t]he Court relie[d) on

16

a single, ambiguous phrase [(return to the public

domain)] in an Act that never became effective, and

which was deleted from the controlling statute, to

conclude that Congress must have intended to dimin-

ish the Uintah Valley Representative.” Id. at 422

(Blackmun, J., dissenting).

Similarly, in Rosebud Sioux, this Court concluded

that at least two acts devoid of cession language

diminished portions of the Rosebud Sioux Reserva-

tion. Rosebud Sioux, 430 U.S. at 612-13, 615 (conclud-

ing that like the 1904 Act, the 1907, and 1910 Acts

diminished separate and geographically distinct

portions of the reservation). Under Respondents’

interpretative approach, it is difficult to imagine this

Court would have found diminishment intent in

Hagen and Rosebud Sioux.

Contrary to Respondents’ claim that the acts in

prior cases that did not diminish reservations are

virtually identical to the 1882 Act, there are critical

differences between the 1882 Act and the surplus

land acts at issue in Solem, Mattz v. Arnett, 412 U.S.

481 (1973), and Seymour v. Supt. of Wash. State Pen.,

368 U.S. 351 (1962). As discussed in greater detail in

the opening brief, Congress enacted the surplus land

acts in all of these cases after the 1887 Dawes Act,

whereas the 1882 Act predated the Dawes Act. Pet.

Br. 43-44. This is significant because instead of

creating a checkerboard pattern of land ownership,

Congress sought to sell to non-Indian settlers land in

an area that was “slice[d] off from the reservation.”

17

Wisconsin v. Stockridge-Munsee Cmty., 554 F.3d 657,

663 (7th Cir. 2009).

Relatedly, unlike the 1882 Act, the post-Dawes

Act legislation analyzed in Mattz and Seymour did

not open for settlement and sale a specific portion of

the tribes’ reservations, but instead the entirety of

those reservations. Matiz, 412 U.S. at 483; Seymour,

368 U.S. at 354-55. The issue in Mattz and Seymour

was whether the reservations were entirely disestab-

lished, not whether Congress diminished a discrete

portion of the reservations. Because the 1882 Act

separated a distinct tract of land for settlement by

non-Indians, the “checkerboard analysis” of Mattz

and Seymour bears no relevance to the present in-

quiry.

Several other errors plague Respondents’ analy-

sis of the text of the 1882 Act. For example, the Tribe

and the United States each emphasize that the 1854

and 1865 treaties with the Omaha Tribe had express

cession language, while the 1882 Act did not. U.S. Br.

18; OTC Br. 28-29. This distinction in language is not

helpful to understand Congressional intent regarding

the reservation boundaries for a surplus land act,

rather than a treaty, in which the Congressional

concept of land ownership by the Tribe was synony-

mous with reservation status.

This Court has twice found diminishment when

faced with factual scenarios where Congress had

previously used hallmark cession language regarding

a reservation but did not do so in the surplus land act

18

at issue. See Rosebud Sioux, 430 U.S. at 605-06

(recognizing that the 1904 Act contained cession

language, but the 1907 and 1910 Acts did not, and

instead of reasoning that the absence of such lan-

guage in the subsequent acts indicated a change in

congressional purpose, concluding that there was “a

continuity of intent” through the three acts); Hagen,

510 U.S. at 402, 420-22 (recognizing that Congress

twice directed the President to appoint a commission

to negotiate with Indians for the “relinquishment”

and cession to the United States of all unallotted

lands, and holding that the 1905 Act without such

terms diminished the reservation). Rosebud Sioux

and Hagen show that the distinction in language

between the 1882 Act and prior Omaha Indian Trea-

ties is not dispositive nor particularly revealing as to

whether Congress intended to diminish the Omaha

Reservation in 1882.

Respondents also overemphasize the significance

of Congress allowing for Tribe members to select

allotments in the disputed area, suggesting that this

contradicts a finding of diminishment. U.S. Br. 18;

OTC Br. 27. There are many cases in which courts

found diminishment even though tribe members were

allowed to select allotments on affected land before it

was open for settlement and sale. See Yankton Sioux,

522 U.S. at 344 (explaining that under the 1894 Act

the Tribe would cede all unallotted land); Hagen, 510

U.S. at 403-05 (quoting the 1902 Act, which provided

an allotment process to tribe members before return

of unalloted land to the public domain for sale and

19

settlement); Rosebud Sioux, 430 U.S. at 608 (quoting

the statute, which instructed the Secretary of the

Interior to sell or dispose of portions of the reserva-

tion, except for those that had been, or would be

allotted to tribe members).

Regardless, the historical record here is clear

that Congress did not expect many, if any, Indians to

select land west of the right-of-way. J.A. 198-99, 201-

02. The 1882 Act was crafted in such a fashion that

once the allotment selections were made, it was

closed off to further Indian settlement. J.A. 348-49;

C.A. App. 1069-71. This reinforces that in 1882,

Congress envisioned that the land west of the right-

of-way would remain primarily non-Indian, in con-

trast to the eastern portion, which would remain a

part of the Reservation.

Ill. EVENTS SURROUNDING THE 1882 ACT

REVEAL A WIDELY HELD CONTEMPO-

RANEOUS UNDERSTANDING THAT THE

RESERVATION WOULD SHRINK.

Respondents imply that the 1882 Act arose in a

historical vacuum. It did not. Events surrounding the

1882 Act’s passage, and subsequent understanding of

its effects, confirm a widely held understanding the

Reservation would shrink.

Respondents urge this Court to impose an impos-

sible standard on Petitioners to show that the events

surrounding the 1882 Act reveal a widely held con-

temporaneous understanding that the Reservation

20

would shrink because of Congress’s action. On one

hand, Responders contend there is an “absence of

any discussion of diminishment,” U.S. Br. 31, or at

most, “snippets” and “scraps” of evidence. OTC Br. 18-

19. On the other hand, when Petitioners highlight

evidence revealing that the United States and the

Tribe understood the 1882 Act would diminish the

Reservation, Respondents demand that the Court

ignore it, contending that statements referencing

“diminishment” are irrelevant, U.S. Br. 36, and that

it is improper to consider Congress’s understanding of

the legal effect of the Act upon the land when analyz-

ing the 1882 Act’s purpose. U.S. Br. 33 & n.5. An

examination of “all the circumstances” does not mean

the Court should ignore evidence that reveals a

contemporaneous understanding that the 1882 Act

would diminish the Reservation.

The circumstances surrounding the 1872 and

1882 Acts show both Congress and the Tribe intended

to diminish the Reservation for over a decade. The

western portion of the Reservation, far removed from

the Missouri River, had no Indian character and it is

unsurprising that in 1871, when the Tribe needed

funds, its leaders sought to separate and sell the

uninhabited western portion of the Reservation. J.A.

194. Acting on the Tribe’s request, Congress enacted

legislation in 1872 authorizing the Secretary of the

Interior, with the consent of the Tribe, to separate and

sell this land. J.A. 194. While the sale associated with

21

the 1872 Act was ultimately unsuccessful,* the Tribe

continued to try to have Congress separate the un-

used western portion of the Reservation.

In 1882, again at the Tribe’s request, the Con-

gressional history shows that Congress agreed to

“break | up that portion of the reservation which is to

be sold” and “segregate[ ]” the lands occupied by the

tribe members. J.A. 647 (statements by Senate mem-

ber of the Committee that sponsored the Act). Tribal

members understood that after this requested sepa-

ration, the right-of-way would become the new

boundary of the reservation. “[T]he white men will

occupy up to the railroad on the west. They will build

stations and towns; and the Indians will come up to

* Respondents make much of the fact that Petitioners have

never claimed the 1872 Act worked to diminish the Reservation,

arguing that if the 1872 Act did not diminish, then surely the

1882 Act did not either. U.S. Br. 21-22; OTC Br. 18. This is easily

explained. Quite simply, the 1872 Act did not diminish the

Reservation (though Congress intended it to) because the sale of

land was unsuccessful. As the United States acknowledged in

Solem, it is reasonable to “suppose that the sponsors of ‘opening

up’ legislation would have intended to end the Reservation

status of the affected area if and when their expectations were

fully realized, but not otherwise.” Brief for United States as

Amicus Curiae 34-37, Solem v. Bartlett, No. 82-1253, 1983 U.S.

S.Ct. Briefs LEXIS 477. Because Congress’s expectations for the

1872 Act were not initially realized, it is reasonable to conclude

diminishment did not occur solely as the result of that Act.

However, Congress’s expectations for the 1872 and 1882 Acts

collectively were ultimately fully realized when the entirety of

the non-allotted portion of the disputed area was sold pursuant

to the 1882 Act.

22

the railroad from the east and get the benefit of these

improvements.” J.A. 201, 726. Senator Dawes ex-

plained: “The Indians as a tribe consent. This bill goes

upon the theory that the Indians as a tribe consent to

part with fifty thousand acres of their land.” J.A. 466.

Prominent members of Congress also understood

that the 1882 Act would reduce the Reservation. J.A.

644 (Senator Saunders: “fifty thousand acres, to be

taken from the west part of the reservation”); J.A.

647 (Senator Ingalls: “breaks up that portion,” “seg-

regated from the remainder of the reservation,” and

“jurisdiction of the United States is absolutely relin-

quished”); J.A. 683 (Senator Dawes: “When this bill

came in I was troubled lest the sale of 50,000 acres

would leave the reservation too small.... I was as-

sured that it would leave an ample reservation .. . ”);

J.A. 711 (Representative Haskell: “the total amount

of land belonging to this reserve ... after this sale,

when the allotments are provided for, 143,000 acres”).

As demonstrated by these comments and others

highlighted in the opening brief, there was a widely

held contemporaneous understanding that the 1882

Act would alter the boundaries of the Reservation.

Because of this legislative history, Respondents

attempt to inject the illusion of ambiguity by claiming

Congress’s own treatment of the affected areas in

subsequent legislation demonstrated that it under-

stood that the 1882 Act had not diminished the

Reservation. U.S. Br. 38-39; OTC Br. 44-46 (citing Act

of Aug. 2, 1886, ch. 844, 24 Stat. 214; Act of May 15,

1888, ch. 255, 25 Stat. 150; Act of Aug. 19, 1890, ch.

23

803, 26 Stat. 329; Act of Aug. 11, 1894, ch. 255, 28

Stat. 276; Act of May 6, 1910, ch. 202, 36 Stat. 348).

The Court should reject this argument because the

language utilized by Congress was merely descriptive

and reflects that Congress sought to ensure the 1382

Act was a success and accomplished the goal of sell-

ing the land west of the railroad right-of-way. Hagen,

510 U.S. at 415 (finding the extension of deadlines in

later acts were “so that the ‘purposes’ of the [earlier

act] could be carried out”). And it stands to reason

that Congress would seek the Tribe’s consent before

extending the payment terms considering Congress

had obtained the Tribe’s consent at the outset and

given the Tribe’s pecuniary interests in the payment

scheme. Moreover, the references to the Reservation

were “merely passing references in text, not deliber-

ate expressions of informal conclusions about con-

gressional intent in 1905.” Hagen, 510 U.S. at 420. As

in Hagen and Rosebud Sioux, 430 U.S. at 630 & n.21

(Blackmun, J., dissenting) (explaining there were

instances where subsequent legislation referred to

the Rosebud Reservation in the present tense), the

Court should not allow these passing references to

alter its diminishment inquiry.

The bottom line is that from 1872 through 1882,

everyone — Congress, the Tribe, and the Executive

Branch — intended to separate and segregate the

western land from the remainder of the Reservation

with the right-of-way as the new western boundary.

The historical and current demographics, land own-

ership, and immediate assumption of uninterrupted

jurisdiction by state and local authorities show they

24

accomplished this objective. This Court’s conclusion

here must reflect this on-the-ground reality.

CONCLUSION

For the foregoing reasons, the judgment below

should be reversed.

Respectfully submitted this 13th day of January,

2016.

DOUGLAS J. PETERSON

Attorney General of Nebraska

JAMES D. SMITH

Solicitor General

of Nebraska

Counsel of Record

RYAN S. Post

Davip 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

Enlarged image from 1883 Bureau of Indian Affairs

Map of U, = Indian Reservations, J.A. 1298

Enlarged image from 1888 Bureau of Indian Affairs

Map of U. S. Indian Reservations, J.A. 1299

Enlarged image from 1892 Bureau of Indian Affairs

Map of U.S. Indian Reservations, J.A. 1300