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

No. 14-1406

IN THE

Supreme Court of the United States

N EBRASKA, ET AL.,

Petitioners,

Vv.

MITCH PARKER, ET AL.,

Respondents.

On Writ of Certiorari To The

United States Court of Appeals

For the Eighth Circuit

BRIEF FOR AMICUS CURIAE

VILLAGE OF HOBART, WISCONSIN AND

PENDER PUBLIC SCHOOLS IN

SUPPORT OF PETITIONERS

FRANK W. KOWALKOWSKI

Counsel of Record

DILLON J. AMBROSE

DAVIS & KUELTHAU, S.C.

318 S. Washington St.

Suite 300

Green Bay, WI 54301

Main: 920.435.9378

Direct: 920.431.2221

w wski n

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIEG..................cccssessssssrssseees iil

STATEMENT OF INTEREST ...................::ccccseesseeeees 1

SUMMARY OF ARGUMENT..................:ccccceseceeeeeeees 4

GED ecestncestnqeennesenerssnnmsnanemenens 5

I. City Of Sherrill Compels Reversal ..................... 6

Il. The Scope Of City Of Sherrill Is

BITE issiinennntnennintincaniontsitnnteineimanmumentaneints 11

Ill. This Case Contains Factors Identical To Those

Used By City Of Sherrill To Preclude The

Resuscitation Of Sovereign Control ................. 16

IV. Affirmation Of The Decision Below Will Result

In Severe Disruptions To Any Government,

Business, And Resident Individually Located

Within An Ancient Reservation........................ 18

A. Courts Have Consistently Confirmed The

Disruptive Effects Of Re-Establishing

Sovereign Control Over An _ Ancient

aah rineninrine remaining 19

ll

B. Re-Establishing Sovereign Control Over

Ancient Reservation Land Will Result In

Numerous And Varied Losses Of State

ill

TABLE OF AUTHORITIES

CASES

Belcourt Pub. Sch. Dist. v. Davis,

786 F.3d 653 (8th Cir. 2015)...............cccssssssseeees 28

Belcourt Pub. Sch. Dist. v. Davis,

997 F.Supp.2d 1017 (D. N.D. 2014)...............0.... 28

Cayuga Indian Nation Of New York, et al. v. Pataki,

413 F.3d 266 (2d. Cir. 2005) ................ 6, 10, 11, 12

Cayuga Indian Nation v.. Village Of Union Springs,

390 F. Supp.2d 203 (N.D.N.Y. 2005)............. 19, 20

City Of Sherrill v. Oneida Indian Nation Of New

York,

Leer Passim

Fort Yates Public School Dist. No. 4 v.. Murphy ex

rel. C._M.B.,

786 F.3d 662 (8th Cir. 2015).................cecceeeeeeeeees 28

Oklahoma Dept. Of Environmental Quality v. E.P.A.,

740 F.3d 185 (D.C. Cir. 2014).................00c000 26, 27

iv

Oneida Indian Nation Of New York v. Cty. Of

Oneida,

617 F.3d 114 (2d. Cir. 2010) .................... 10, 12, 13

Osage Nation v. Irby,

§97 F.3d 1117 (10th Cir. 2010)...................ccceseees 10

Red Mesa Unified School Dist. v. Yellowhair,

2010 WL 3855183 (D. Ariz. Sep. 28, 2010) ......... 28

Shawnee Tribe v. U.S.,

423 F.3d 1204 (10th Cir. 2005)................ccccceeeeee 10

Smith v. Parker,

774 F.3d 1166 (8th Cir. 2014)...................cceeeeseeeees 5

Smith v. Parker,

996 F.Supp.2d 815 (D. Neb. 2014).............. cee 5

Solem v. Bartlett,

Se es Se iccccinncnscovensesscnneconsssscnees 4,6, 7,15

South Dakota v. Yankton Sioux Tribe,

ne Oi ccinnicnntciasassicninnndeienienies 14, 15

Stevens v. County Of Brown,

Case No. 307 (E.D. Wis. Nov. 3, 1933). ................. 3

Vv

Stockbridge-Munsee Cmty. v. State Of New York,

756 F.3d 163 (2d. Cir. 2014) .............ccccccceseees 10, 20

U.S. v. Hall,

Re Fe IE tencenicsnnniinntenninsinesennntnmennrenneasion

STATUTES

Be es a TEE dicanctccmncncnindintnincuneninsatesetemmeeninenention 25

Pa, ice enema 25

EE tI -ciensiesncciciiisacuiipiininaineepeanimeniinbuiaiande 26

Ps Sees Oy Cec secccciccsncenserecsnsnspenenentenunees 23

. 4 |. SCTE nes es ane ETem 24

REGULATIONS

Wis. Admin. Code ATCP § 93.010(1)...............004. 22

Wis. Admin. Code ATCP § 93.020(6)(u) ................ 22

Wis. Admin. Code SPS § 314.01(1)(c)(3)(a) ........... 22

Wis. Admin. Code SPS § 318.1001 ................0000.... 23

Wis. Admin. Code SPS § 318.1003(1)(d)1.............. 23

Wis. Admin. Code SPS § 360.01 ........................000 23

Wis. Admin. Code SPS § 360.10 ........................00. 23

vi

Wis. Admin. Code SPS § 360.10(2)(c) .................... 23

Wis. Admin. Code SPS § 361.01 0.0.0... eee 22

Wis. Admin. Code SPS § 361.02(3)(b).................... 22

OTHER AUTHORITIES

2015 Village of Hobart Operating Budget, adopted

Nov. 25, 2014, http://www.hobart-wi.org/ (follow

“Finance and Budget”, then “Annual Village

III TD visiscnsiscctsteredienmiiteoseutanibeesensinainiiia 29

Phil Ferolito, Yakamas seek operating licenses from

non-tribal entities, Yakima Herald (Jun. 1, 2015)

http://www i d. new al/yak

-O ting-li -f - tribal-

entities/article 309c94fc-079a-11e5-8799-

I iss sess ccdintnecindlintinteeninnenianpnens 31

Oneida Tribe of Indians of Wisconsin, Resolution and

Statement of Effect FY2015 Budget,

http://onei m/wp-

content/upload /OTIW-FY2015-Resolution-

Statemoent-of-Firect DL .......cccccccscssssccsccccccccsscsees 29

Standing Rock Sioux Tribe Tax Department, Letter

to Business Owners,

http://tax. in .org/data/u rograms/f

iles/Dear%200wners%20Revised.pdf ................ 30

U.S. Envt’l Protection Agency, Public Notice of Draft

NPDES Permits to discharge into waters of the

United States,

http://www3.epa.gov/region5/water/npdestek/pdfs/p

IIIT, «6. scccsccncsesecscassontatnossssipeedbines 26

l

STATEMENT OF INTEREST

The Village of Hobart is a Wisconsin

municipality that lies wholly within land claimed to

be part of the Oneida Tribe of Indians of Wisconsin’s

reservation. Pender Public Schools is a public school

district located in Pender, Nebraska, which operates

on the land the Omaha Tribe is claiming, in this

case, is within its reservation. !

While hundreds of miles and several states

separate these municipal entities, they share a

common concern. Like so many other state and local

governments within this country, they both lie

within land that used to be designated as a

reservation, but long ago lost any semblance of being

Indian Country. More than a century ago, these

municipal entities began exercising’ their

jurisdiction, without tribal or federal interference

over this land. This long-settled state jurisdiction is

now being threatened by the ever expanding

attempts by tribal governments, often with the aid of

1 This amici brief is presented pursuant to this Court’s Rule 37.

The parties have consented io this brief and their consents

have been filed with this Court. Pursuant to this Court’s Rule

37.6, counsels of record for the amici represent they

authorized this brief, no counsel for either party authored

this brief in whole or in part, and no party or party’s counsel

made a monetary contribution intended to fund the

preparations or submission of this brief. No person or entity

other than amici curiae or its counsel made a monetary

contribution to its preparation or submission.

2

the federal government, to re-create long ago

diminished reservations.

Obviously, Pender and the Pender Public

Schools will be directly affected by whether this

Court determines diminishment of the Omaha

reservation has occurred. As a result of treating the

land as reservation land, school districts and other

important community services that rely on local and

state tax revenue will be more susceptible to loss of

funding and face federal and tribal regulation,

hampering their ability to operate under the

principle of subsidiarity—that the people of Pender,

and their duly-elected school board, know what is

best for their children. Potential changes to how the

school district is operated and its curriculum will

also negatively affect the population in the affected

area and, in turn, the area’s economy.

Hobart and every similarly-situated municipal

entity that happens to be on historic reservation

land, despite longstanding and uninterrupted state

governance, will also be severely disrupted by an

affirmance of the lower court’s decision. Hobart has

consistently argued the Oneida reservation has been

disestablished.

Not only does the historical record confirm the

Oneida reservation in Wisconsin has _ been

disestablished, this fact has also been confirmed by

two federal judges. In 1909, a federal court held

“It}]he jurisdiction has been distinctly renounced by

the United States, and is now clearly vested in the

states.” U.S. v. Hall, 171 F. 214, 218 (1909). In 1933,

3

a federal court stated, “[t}herefore, there is no escape

from the proposition that the government, in passing

and applying the Dawes Act, but conceived itself in

duty bound to carry out its provisions in the interest

of the tribe and its members. Plainly, this resulted in

a discontinuance of the reservation, and a

recognition of the power of the state to incorporate

the land in the towns in question.” Stevens v. County

of Brown, (C.A. No. 307) (E.D. Wis., November 3,

1933).

Despite these holdings and facts, Hobart finds

itself still litigating this issue and fighting to

maintain its sovereign control. The Oneida’s claim to

a reservation and to sovereign control has led to

constant jurisdictional disputes relating to taxation,

zoning, city planning, policing, public services, and

environmental issues. The Oneida will not only take

an affirmance of the Eight Circuit’s decision as a

license to continue efforts to assert its sovereign

control over Hobart and its residents, it will enhance

those efforts, further disrupting Hobart’s ability to

govern. A_ reversal, however, will restrict the

Oneida’s sovereign control to only those parcels that

have been placed into trust through the Indian

Reorganization Act (IRA) and ensure the Oneida

does not expand its reach to include all of Hobart and

its non-tribal residents and businesses.

The amici thus submit this brief to offer their

perspectives as municipal entities that will be

dramatically harmed by _ re-creating tribal

jurisdiction in areas that have been exclusively

under the amici’s jurisdiction for generations.

The Village and school system agree with the

arguments advanced by the Petitioners. However,

the purpose of this amicus brief is to advance a

related but alternative argument, which also leads to

the conclusion the Omaha Reservation has been

diminished. This amicus brief also serves to

illustrate the disruptive effect of allowing a tribe to

reestablish jurisdiction over land long ago abandoned

on local governmental entities, their businesses, and

their individual residents.

SUMMARY OF ARGUMENT

City of Sherrill v. Oneida Indian Nation of New

York, 544 U.S. 197 (2005) dramatically altered the

legal landscape against which tribal land claims are

considered and compels the reversal of the lower

court’s decision. City of Sherrill holds an alternative,

equitable basis exists to conclude diminishment of a

reservation has occurred, separate from the

congressional intent analysis under Solem ov.

Bartlett, 465 U.S. 463 (1984). City of Sherrill

provides that, when state jurisdiction in an area that

is distinctly non-Indian in character remains

unquestioned for generations, a tribe may not

unilaterally re-create its reservation. Because the

precise situation found in City of Sherrill exists in

this case, the Court, consistent with City of Sherrill,

should prevent the Omaha Tribe from unilaterally

reviving its ancient sovereignty, in whole or in part,

over that part of the former Omaha Reservation that

once existed west of the railroad right-of-way.

5

ARGUMENT

The lower courts erred by analyzing subsequent

demographic and jurisdictional evidence only under

the third factor of Solem, as it relates to evidence of

congressional intent of diminishment, and not also as

substantive proof of equitable diminishment, as

recognized by City of Sherrill. Evidence supporting

equitable diminishment will almost always overlap

with evidence supporting the third Solem factor, a

post hoc finding of congressional intent of

diminishment derived from demographic evidence

such as land use, the Indian or non-Indian character

of the area and populace, and the existence or

duration of consistent and undisturbed state

governance. Yet, the lower courts refused to credit

this evidence, claiming Solem precludes its use in the

absence of some expression or evidence of

congressional intent. See Smith v. Parker, 996

F.Supp.2d 815, 844 (D. Neb. 2014) (“Even if this

demographic evidence did establish diminishment, it

cannot overcome my conclusion that the language of

the 1882 Act itself does not clearly evince Congress’

intent to diminish the Omaha Reservation.”); Smith

v. Parker, 774 F.3d 1166, 1168 (8th Cir. 2014)

(“Based on our de novo review, we discern that the

district court has thoroughly, thoughtfully, and

accurately considered the evidence in light of the

guideposts provided by the Supreme Court [in Solem]

as well as this court.”). Not only have the lower

courts misinterpreted Solem, to unduly limit, if not

completely preclude use of this demographic evidence

as part of the congressional intent analysis, they

failed to properly apply City of Sherrill, which

6

compels the use of this evidence even in the absence

of clear congressional intent.

I. City Of Sherrill Compels Reversal.

The lower courts failed to apprehend the import

of City of Sherrill which “dramatically altered the

legal landscape” against which tribal land claims are

considered. Cayuga Indian Nation of New York, et al.

v. Pataki, et al., 413 F.3d 266, 273 (2d. Cir. 2005),

cert. denied, 547 U.S. 1128 (2006). Prior to the

holding in City of Sherrill, the means to diminish a

reservation was through congressional action. See

generally Solem, 465 U.S. 463. As emphasized in

Solem, “[t]he first and governing principle is that

only Congress can divest a reservation of its land and

diminish its boundaries.” Jd. at 470. City of Sherrill

alters that analysis by providing an alternative to

congressional diminishment—equitable

diminishment.

The decisions of the lower courts identify the

Solem factors as the exclusive analysis in

determining whether a_ reservation has been

diminished, completely ignoring this Court’s

subsequent holding in City of Sherrill. Solem

examines whether congressional intent of

diminishment exists by (1) looking at the statutory

language of certain acts for specific evidence of intent

to diminish; (2) reviewing the historical context at

the time of the act for evidence of intent to diminish;

and (3) reviewing the events that occurred after the

passage of the act, including “Congress’s own

treatment of the affected areas,” “the manner in

7

which the Bureau of Indians Affairs and local

judicial authorities dealt with unallotted open land,”

while also recognizing that “who actually moved onto

opened reservation lands is also relevant to deciding

whether a _ surplus land act diminished a

reservation.” Solem, 465 U.S. at 471. Solem also

acknowledged that “de facto, if not de jure,

diminishment” may occur under this third factor,

and that the Court will “look to the subsequent

demographic history of opened lands as one

additional clue as to what Congress expected would

happen once land on a particular reservation was

opened to non-Indian settlers.” Jd., at 471-72.

While the evidence relevant to the third factor

of Solem substantially overlaps the evidence used to

find equitable diminishment in City of Sherrill, City

of Sherrill does not simply restate the third factor of

Solem. Instead, it provides that a tribe may lose

sovereign control over ancient reservation land,

regardless of congressional intent, when that area

has long been regulated, governed, and populated by

non-Indian inhabitants.

City of Sherrill held “this long lapse of time,

during which the Oneidas did not seek to revive their

sovereign control through equitable relief in court,

and the attendant dramatic changes in the character

of the properties, preclude [the Oneidas} from

gaining the disruptive remedy it now seeks.” City of

Sherrill, 544 U.S. at 216-17. The Court came to this

conclusion despite the absence of any Congressional

Act diminishing the Tribe’s original reservation, or

8

otherwise removing or limiting the Tribe’s historic

sovereign control over the land.

Invoking traditional theories of equity, the

Court found “the distance from 1805 to the present

day, the Oneida’s long delay in seeking equitable

relief against New York or its local units, and

developments in the city of Sherrill spanning several

generations, evoke the doctrines of laches,

acquiescence, and impossibility, and render

inequitable the piecemeal shift in governance this

suit seeks unilaterally to initiate.” Jd. at 221.

Accordingly, this Court held “standards of federal

Indian law and federal equity practice’ preclude the

Tribe from rekindling embers of sovereignty that

long ago grew cold.” Jd. at 214.

Justice Stevens’ dissent in City of Sherrill

confirms the practical effect of the majority’s holding

by noting: “the Court has done what only Congress

may do—it has effectively proclaimed a

diminishment of the Tribe’s reservation and an

abrogation of its elemental right to tax immunity.”

Id. at 224-25 (Stevens, J. dissent). The majority was

cognizant of Justice Stevens’ dissent and concluded

equity provides another means to diminish a tribe’s

sovereign authority over ancient reservation land.

Specifically, the Court held “the Court need not

decide today whether . . . the 1838 Treaty of Buffalo

Creek disestablished the Oneida’s reservation as

Sherrill argues. [t]he relief [the Oneida] seeks

is unavailable because of the long lapse of time,

during which New York’s governance remained

undisturbed, and the present-day and future

9

disruptions such relief would engender.” Jd. at 215,

n.9. In other words, congressional intent did not

matter in City of Sherrill because reinstitution of the

Tribe’s sovereign authority was “unavailable” for a

completely different reason.

In City of Sherrill, regardless of whether a

reservation existed or Congress intended to diminish

a Reservation, “the longstanding, distinctly non-

Indian character of central New York and its

inhabitants, the regulatory authority over the area

constantly exercised by the State and its counties

and towns for 200 years, and the Oneida’s long delay

in seeking judicial relief against parties other than

the United States” provided equitable diminishment.

Id. at 198.

While demographic evidence may be the “least

compelling” factor in Solem’s “congressional intent”

diminishment analysis, that evidence stands on its

own under the City of Sherrill analysis. Drawing the

analysis away from the underlying treaty and

Congressional action, City of Sherrill held, “when a

party belatedly asserts a right to present and future

sovereign control over territory, longstanding

observances and settled expectations are prime

considerations.” Id. at 200. (emphasis added).

This analysis has subsequently been examined

and accepted by other courts: “[I]n the wake of this

trilogy — Sherrill, Cayuga, and Oneida — it is now

well-established that Indian land claims asserted

generations after an alleged dispossession are

inherently disruptive of state and local governance

10

and the settled expectations of current landowners,

and are subject to dismissal on the basis of laches,

acquiescence, and _ impossibility.” Stockbridge-

Munsee Cmty. v. State of New York, et al., 756 F.3d

163, 165 (2d. Cir. 2014).3

Failing to adhere to the Stockbridge-Munsee

Community interpretation, the lower courts in this

case refused to credit this demographic and

jurisdictional evidence, claiming Solem precludes its

2 The Second Circuit was referring specifically to City of

Sherrill, 544 U.S. 197; Cayuga Indian Nation, 413 F.3d 266

and Oneida Indian Nation of NY v. Cty. of Oneida, 617 F.3d

114 (2d. Cir. 2010), cert. denied, _—_-—~U.S.__s, 1382 S.Ct. 452

(2011).

3 Despite this Court’s firm holding that equitable

diminishment may result from demographic and

jurisdictional history alone, even in the absence of

congressional intent to diminish, at least one other federal

appellate court has seemingly questioned this Court, stating

it would ignore demographic and jurisdictional history in the

absence of congressional intent to diminish. See Osage Nation

uv. Irby, 597 F.3d 1117, 1122 (10th Cir. 2010) (In other words,

“subsequent events and demographic history can support and

confirm other evidence but cannot stand on their own.”)

(citation omitted); see also Shawnee Tribe v. U.S., 423 F.3d

1204, 1223 (10th Cir. 2005) (looking to an area’s subsequent

demographic history “will not substitute for failure of the

instrument’s language or contemporaneous history to

evidence an intention to terminate all or some of the

reservation.”) (emphasis added.) In both cases, however, the

court found the reservations were disestablished. The court

did not rely on City of Sherrill however, or the Second

Circuit's treatment of City of Sherrill, in which “subsequent

events and demographic history” did stand on its own.

11

use in the absence of some expression or evidence of

congressional intent. Again, City of Sherrill does not

fall under the third factor of Solem; it provides a

different, alternative test that precludes

reestablishment of sovereign control. The lower

courts erred by failing to recognize or analyze City of

Sherrill in light of the clear applicability to this case.

II. The Scope Of City Of Sherrill Is Expansive.

As noted by the Second Circuit, the broad

pronouncements in City of Sherrill preclude limiting

its application:

The Court’s characterizations of the Oneidas’

attempt to regain sovereignty over their land

indicate that what concerned the Court was

the disruptive nature of the claim itself. See

id. at 1483 (“[W]e decline to project redress

for the Tribe into the present and future,

thereby disrupting the governance of central

New York’s counties and towns.”); Jd. at

1491 (“This long lapse of time, during which

the Oneidas did not seek to revive their

sovereign control through equitable relief in

court, and the attendant dramatic changes in

the character of the properties, preclude [the

Tribe] from gaining the disruptive remedy it

now seeks.”); id. at 1491 n.1l (“[The

Oneidas’] claim concerns grave, but ancient,

wrongs, and the relief available must be

commensurate with that historical reality.”).

Although we recognize that the Supreme

Court did not identify a formal standard for

12

assessing when these equitable defenses

apply, the broadness of the Supreme Court’s

statements indicates to us that Sherrill’s

holding is not narrowly limited to claims

identical to that brought by the Oneidas,

seeking a revival of sovereignty, but rather,

that these equitable defenses apply to

“disruptive” Indian land claims more

generally.

Cayuga Indian Nation of New York, 413 F.3d at 274.

Five years later, the Second Circuit had another

opportunity to revisit the holding of City of Sherrill

in Oneida Nation of New York v. County of Oneida,

617 F.3d 114 (2d. Cir. 2010). The Second Circuit

confirmed it is the disruptive nature of the claim

itself that controls whether or not the claim may be

barred by laches, acquiescence or impossibility:

The equitable defense recognized in Sherrill

and Cayuga is not limited to “possessory”

claims — to claims premised on the assertion

of a current possessory right to tribal lands

held by others on the theory that the original

transfer of ownership of the lands was in

some way flawed. Rather, the defense is

properly applied to bar any ancient land

claims that are disruptive of significant and

justified societal expectations that have

arisen as a result of a lapse of time during

which the plaintiffs did not seek relief. See

Sherrill, 544 U.S. at 215 n.9, 125 S.Ct. 1478

(“The relief [the New York Oneidas] seek [ |]

13

... is unavailable because of the long lapse of

time, during which New York’s governance

remained undisturbed, and the present-day

and future disruption such relief would

engender.”).

Oneida v. Oneida County, 617 F.3d at 135.

The Second Circuit continued:

Under the reasoning employed in Cayuga,

then, the equitable defense originally

recognized in Sherrill is_ potentially

applicable to all ancient land claims that are

disruptive of justified societal interests that

have developed over a long pericd of time, of

which possessory claims are merely one type,

and regardless of the particular remedy

sought.

Id. at 136. (emphasis added).

The reason underlying a tribe’s or the federal

government's delay in attempting to resurrect

reservation status is also instructive:

Our inquiry is' informed. by the

understanding that, at the turn of this

century, Congress did not view’ the

distinction between acquiring § Indian

property and assuming jurisdiction over

Indian territory as a critical one, in part

because “[t]he notion that reservation status

of Indian lands might not be coextensive

14

with tribal ownership was unfamiliar,”

Solem, 465 U.S. at 468, 104 S.Ct. at 1164,

and in part because Congress then assumed

that the reservation system would fade over

time. “Given this expectation, Congress

naturally failed to be meticulous in clarifying

whether a particular piece of legislation

formally sliced a certain parcel of land off

one reservation.” Jbid.; see also Hagen, 510

U.S. 399, 426, 114 S.Ct. 958, 973, 127

L.Ed.2d 252 (1994). (Blackmun, J.,

dissenting) (“As a result of the patina history

has placed on the allotment Acts, the Court

is presented with questions that their

architects could not have foreseen”).

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

343-44 (1998).

Congress retreated from the reservation

concept and began to dismantle the

territories that it had previously set aside as

permanent and exclusive homes for Indian

tribes. See Solem v. Bartlett, 465 U.S. 463,

466, 104 S.Ct. 1161, 1163-1164, 79 L.Ed.2d

443 (1984). The pressure from westward-

bound homesteaders, and the belief that the

Indians would benefit from private property

ownership, prompted passage of the Dawes

Act in 1887, 24 Stat. 388. The Dawes Act

permitted the Federal Government to allot

tracts of tribal land to individual Indians

and, with tribal consent, to open the

remaining holdings to non-Indian

15

settlement. Within a generation or two, it

was thought, the tribes would dissolve, their

reservations would disappear, and individual

Indians would be absorbed into the larger

community of white settlers. See Hearings

on H.R. 7902 before the House Committee on

Indian Affairs, 73d Cong., 2d Sess., 428

(1934) (statement of D.S. Otis on the history

of the allotment policy).

South Dakota, 522 U.S. at 325.

The notion that reservation status of Indian

lands might not be coextensive with tribal

ownership was unfamiliar at the turn of the

century. Indian lands were judicially defined

to include only those lands in which the

Indians held some form of property interest:

trust lands, individual allotments, and, to a

more limited degree, open lands that had not

yet been claimed by non-Indians.

Solem, 465 U.S. at 468.

In other words, the application of a defense

based on laches, acquiescence or impossibility hardly

works an undue hardship on a tribe, when, at the

time these Acts were passed, everyone knew their

purpose was to make the reservations “disappear”

and “fade” away. The fact the economics of the

situation have now changed, so that tribes currently

have the ability to try to resurrect the existence of

long departed reservations, cannot overcome more

16

than a century’s worth of acknowledgment that the

reservations no longer exist.

As a result, the mere fact that congressional

acts disposing of reservatibn land may be ambiguous

or silent as to Congress’ intent relating to

diminishment or disestablishment, cannot overcome

the equitable prohibition against a tribe’s disruptive

attempt to reinstate sovereign authority over ancient

reservation land that has long since passed to and

has been governed by state and local governments.

Ill. This Case Contains Factors Identical To

Those Used By City Of Sherrill To

Preclude The Resuscitation Of Sovereign

Control.

For the same reasons the Court found equitable

diminishment in City of Sherrill, it should find it

here. The parallels are patent and application should

be identical. City of Sherrill noted its continuity of

governance by confirming that, “[flor the past two

centuries, New York and its county and municipal

units have continuously governed the territory.” City

of Sherrill, 544 U.S. at 216. Similarly, Nebraska and

Pender exercised 125 years of uninterrupted

governance over this area. “From 1882 until 2006,

the State of Nebraska consistently, and exclusively,

exercised civil and criminal jurisdiction over Pender,

Nebraska and its surrounding areas . without

contest or objection from the Omaha Tribe of

Nebraska. . or the United States.” Pet. Br. 2 (citing

J.A. 204, 206, 208, 364-68). In fact, “[n]either Pender

nor its citizens have ever been subjected to the

17

jurisdiction of the Tribe.” Pet. Br. 25 (citing J.A. 215-

16).

City of Sherrill highlighted the non-Indian

character of the land in question, finding “[t]he city

of Sherrill and Oneida County are _ today

overwhelmingly populated by non-Indians.” City of

Sherrill, 544 U.S. at 219. The Village of Pender has a

similarly non-Indian character. “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.” Pet. Br. 2 (citing J.A. 189, 215-

16, 369-73). In fact, the “Tribe has no office, operates

no schools, industries, or businesses in the disputed

area and has not conducted any government or

ceremonial activities there . has no mineral rights

or other claims to land .. and the Tribe has never

enforced tribal ordinances west of the railroad right-

of-way.” Pet. Br. 17 (citing J.A. 215-16). Just like the

residents of Sherrill developed justifiable

expectations of self-governance, the Nebraskans

living within Pender, likewise, justifiably expect that

they will continue to govern themselves through

democratically-elected representatives.

Where a great period of time has elapsed since

sovereign control has been exercised by the Tribe;

where a State has _ exercised uninterrupted

governance over that area the entire time; where re-

creating tribal sovereign control would be unduly

disruptive to a predominantly non-Indian area and

population; and where justifiable expectations of self-

governance exist through development of an area

18

under this self-governance—this Court should not

countenance a tribe’s attempt to rekindle the

“embers of sovereignty that long ago grew cold.” City

of Sherrill, 544 U.S. at 214. Just as this Court

refused to allow the Oneida Tribe from reinstating

sovereign control over the Oneida’s historic

reservation in City of Sherrill, it should refuse to

allow the Omaha Tribe and federal government to do

so in this case.

IV. Affirmation Of The Decision Below Will

Result In Severe Disruptions To Any

Government, Business, And Resident

Individually Located Within An Ancient

Reservation.

This case is not just about the tribal regulation

of non-Indians who operate businesses in Pender,

Nebraska. This case is about the wisdom of

resuscitating sovereign jurisdiction over former

reservation land throughout the entire United

States, land that, for generations, has been under

the exclusive jurisdiction of the state and local

governments, and left undisturbed by both tribal and

federal interests. This case is about the executive

branch’s continued attempts to usurp state and local

authority. This case is about disrupting the

justifiable expectations developed by all who have

decided to live and establish businesses on land

governed by known rules—rules they had a hand in

creating.

19

A. Courts Have Consistently Confirmed The

Disruptive Effects Of Re-Establishing

Sovereign Control Over An Ancient

Reservation Land.

City of Sherrill warned that “[ijf [the Oneida]

may unilaterally reassert sovereign control and

remove these parcels from the local tax rolls, littie

would prevent the Tribe from initiating a new

generation of litigation to free the parcels from local

zoning or other regulatory controls that protect all

landowners in the area.” City of Sherrill, 544 U.S. at

220. (emphasis added). Disruption will abound.

The district court for the Northern District of

New York, well versed in federal Indian law, came to

the same conclusion:

It avoidance of taxation is disruptive,

avoidance of complying with local zoning and

land use laws is no less disruptive. In fact, it

is even more disruptive. The Supreme Court

clearly expressed its concern about the

disruptive effects of immunity from state and

local zoning laws, even to the point of citing

to this case as an example. See City of

Sherrill, 125 S.Ct. at 1493 n. 13. Even the

lone dissenter, Justice John Paul Stevens,

opined that local taxation was the “least

disruptive to other sovereigns,” and noted

that “[gliven the State's strong interest in

zoning its land without exception for a small

number of Indian-held properties arranged

in checkerboard fashion, the balance of

20

interests obviously supports the retention of

state jurisdiction in this sphere.” Jd. at 1497

n. 6, 161 L.Ed.2d 386 (Stevens, J.,

dissenting) (citing California v. Cabazon

Band of Mission Indians, 480 U.S. 202, 215,

107 S.Ct. 1083, 94 L.Ed.2d 244 (1987)).

Cayuga Indian Nation of New York v. Village of

Union Springs, 390 F Supp.2d 203, 206 (N.D.N-Y.

2005).

The New York District Court concluded:

The Nation is seeking relief that is even

more disruptive than non payment of taxes.

The Supreme Court’s strong language in City

of Sherrill regarding the disruptive effect on

the every day administration of state and

local governments bars the Nation from

asserting immunity from state and local

zoning laws and regulations.

Id.

Nearly ten years after this Court’s ruling in City

oj) Sherrill, the Second Circuit held: “fijt is now well-

established that Indian land claims asserted

generations after an alleged dispossession are

inherently disruptive of state and local governance

and the settled expectations of current landowners,

and are subject to dismissal on the basis of laches,

acquiescence, and impossibility.” Stockbridge-Munsee

Cmty., 756 F.3d at 165. (emphasis added).

21

Moreover, an_ affirmance of the _ non-

diminishment decision of the lower court would

license every tribe within the United States to do the

exact same thing—attempt to reassert sovereign

control at the expense of state and local

governments. This inherent disruption will occur

everywhere. This is not hyperbole. Real life examples

of these disruptive effects also abound.

Both Hobart and Pender Public Schools will feel

these effects, the former through the Oneida’s

attempts to seize sovereign control from Hobart by

continuing to claim reservation status, and the latter

directly through the potential insertion of Omaha

sovereignty over Pender and its various municipal

entities. The decision of this Court will either

sanction tribal intrusions into the traditional

sovereign powers of municipal entities and ensure “a

new generation of litigation,” or preclude this

conduct, and assure municipalities, businesses, and

individuals that they will be allowed to control and

regulate themselves through their representative

governments.

B. Re-Establishing Sovereign Control Over

Ancient Reservation Land Will Result In

Numerous And Varied Losses Of State

Jurisdiction.

Several states, including Wisconsin, have

promulgated regulations limiting a local

municipality's ability to regulate land that is within

a reservation. Chapter SPS 361 of the Wisconsin

Administrative Code was promulgated to “protect the

22

health, safety and welfare of the public and

employees by establishing minimum standards for

the design, construction, maintenance and inspection

of public buildings, including multifamily dwellings,

and places of employment.” Wis. Admin. Code SPS

§ 361.01. Despite this admirable objective, this

building code does not, by its express terms, apply to

“[bjuildings or structures located on Indian

reservation land that are held either in trust by the

United States, or in fee by the tribe or a tribal

member.. ” Wis. Admin. Code SPS § 361.02(3)(b).

Chapter SPS 314 of the Wisconsin

Administrative Code governs “Fire Prevention.”

However, this chapter does not apply to “[b]uildings

or structures located on Indian reservation lands

that are held either in trust by the United States, or

in fee by the tribe or a tribal member... .” Wis.

Admin. Code SPS § 314.01(1)(c)(3)(a).

The code section regulating “Flammable,

Combustible, and Hazardous Liquids,” was enacted

“to provide fire and life safety through the safe

storage, display, installation, operation, use,

maintenance and transportation of flammable,

combustible and hazardous liquids and_ the

equipment, facilities, buildings and premises that

are used to store, transfer and dispense them.” Wis.

Admin. Code ATCP § 93.010(1). Similarly, this safety

regulation does not apply to “[flacilities located on

Indian reservation land that are held either in trust

by the United States, or in fee by the tribe or a tribal

member . ” Wis. Admin. Code ATCP

§ 93.020(6)(u).

23

Chapter SPS 318 governs “Elevators,

Escalators, and Lift Devices,” and was promulgated

“to establish minimum safety standards for the

design, construction, installation, operation,

inspection, testing, maintenance, alteration, repair,

and replacement of conveyances.” Wis. Admin. Code

SPS § 318.1001. The Chapter does not apply to

“(bjuildings or structures located on Indian

reservation land that are held either in trust by the

United States, or in fee by the tribe or a tribal

member.” Wis. Admin. Code SPS § 318.1003(1)(d)1.

The State’s law related to “Erosion Control,

Sediment Control and Storm Water Management,”

was created “to establish uniform standards and

criteria for the design, installation and maintenance

of erosion and sediment control practices at building

construction sites and minimum performance

standards for post construction storm water

management on building sites . . . so as to protect the

waters of the state.” Wis. Admin. Code SPS § 360.01.

Under Wis. Admin. Code SPS § 360.10, which

governs “Governmental oversight,” an annotation

provides: “This code does not apply to. . buildings

on Indian reservations .. . .” Wis. Admin. Code SPA

§ 360.10(2)(c), note.

The Wisconsin Statute entitled “Tribal Law

Enforcement Officers; Powers and Duties” defines

reservation lands to mean “all lands within the

exterior boundaries of an Indian reservation in this

state.” Wis. Stat. § 165.92(1)(a). The statute goes on

to state, that with some exceptions, a tribal law

24

enforcement officer's powers and duties may be

exercised “only on the reservation of the tribe or on

trust lands held for the tribe or for a member of the

tribe that employs’ the _ officer.” Wis.

Stat.§ 165.92(2)(b). Once again, the labeling of an

area as “reservation” has profound effects. The

conflicts in policing jurisdiction, between various law

enforcement agencies and the confusion of the public

relative to that authority is well known to Hobart

and will be triggered wherever the resurrection of a

reservation is allowed to occur.

Every one of the above-referenced Code Sections

and Statutes are designed to protect the health,

safety and welfare of the public, via the local elected

government, but do not apply if the land is deemed to

be part of a “reservation.” If an area of land is able to

regain the title of “reservation,” rendering all of

these public protections inoperative, the disruption

to state and local municipalities will be significant.

Similar to the tax levied in Pender, the Oneida

have attempted to control business activity through

licensing and fees. By way of example, the Oneida

informed the Hobart Veterans of Foreign Wars

(VFW) it must obtain a building permit from the

Oneida instead of a Hobart building permit, to

construct a building. The Oneida’s rationale was that

the VFW’s fee land was on a reservation. This sort of

jurisdictional dispute will continue to be experienced

wherever there is an “expansion” of what can be

considered reservation land.

25

In Hobart, the Oneida have been instructing its

tribal members to reject Hobart’s provision of

services for the properties the Tribe contends are on

its reservation, and instead select the Tribe's

sanitation services. With fewer residents using

services provided by Hobart, Hobart cannot benefit

from certain lower “group” rates when it contracts for

services, which will result in an obvious adverse

financial impact on Hobart and impact its ability to

provide these services to the community. This will be

compounded by expansion of what is considered the

“reservation.”

Federal laws also. greatly curtail local

jurisdiction on land once it is labeled a “reservation.”

The Clean Water Act (CWA), 33 U.S.C. § 1251 et

seq., requires NPDES permit coverage for

stormwater discharges from construction, industrial

and municipal sources to prevent pollutants from

entering surface waters in storm runoffs. Permits are

issued by the Environmental Protection Agency

(EPA) or by state agencies. See 33 U.S.C. § 1342. The

CWA grants authority to states to establish water

quality standards for waters within their boundaries,

to certify compliance, and to issue and enforce

discharge permits. The State of Wisconsin has

enacted its own federally-approved comprehensive

water pollution regulatory system. EPA has stated

that “NPDES permits for discharges in Indian

Country are issued by EPA.”

As a result, and despite the fact the Oneida

Reservation in Wisconsin was long’ ago

disestablished, the Region 5 Office of the EPA issued

26

draft permitting authority to the Oneida. The draft

permit provided to the Oneida in Wisconsin “covers

discharges of the storm water from... . the Oneida

Reservation.‘

Once again, the EPA’s, and therefore the

Tribe’s, jurisdiction, is linked to the purported

existence of a “reservation.” To further illustrate the

jurisdictional conflicts and confusion that result from

the re-creation of a disestablished or diminished

reservation, EPA granted the same draft NPDES

permit to Hobart. Hobart’s permit also “covers

discharge of the storm water from the Oneida

Reservation.” Jd. Disruption is sure.

With respect to the Clean Air Act (CAA), 42

U.S.C. § 7401 et seq., in Oklahoma Dept. of

Environmental Quality v. E.P.A., 740 F.3d 185 (D.C.

Cir. 2014), the U.S. Court of Appeals for the District

of Columbia Circuit recently held:

a state has regulatory jurisdiction under the

Clean Air Act over all land within its

territory and outside the boundaries of an

Indian reservation except insofar as an

Indian tribe or the EPA has demonstrated a

tribe has jurisdiction. Until such a

demonstration has been made, neither a

tribe nor the EPA standing in the shoes of a

tribe may displace a state’s implementation

4 U.S. Envt’l Protection Agency, Public Notice of Draft NPDES

toes to oo into waters of — United States,

coined Gash —— 11/19/15).

Id. at 195. The Court also noted that the Oklahoma

Department of Environmental Quality sought review

of a final rule promulgated by the EPA “establishing

a federal implementation plan for the attainment of

national air quality standards in ‘Indian country.”

27

plan with respect to a non-reservation area

of the state. We therefore grant Oklahoma’s

petition for review and vacate the Indian

Country NSR Rule with respect to non-

reservation Indian country.

Id. at 187. The Court further stated:

Id.

Ok

“[jjurisdiction to implement the Clean Air

Act lies initially in either a state or an

Indian tribe. The EPA may in certain

circumstances implement a federal program

in Indian country, see 42 U.S.C. § 7601(d),

but when it does so, in our view, it is subject

to the same jurisdictional limitations as the

tribe in whose shoes it stands. Because the

EPA requires a tribe to show it has

jurisdiction before regulating Indian country

outside a reservation, yet made no

demonstration of tribal jurisdiction before

itself regulating those areas, we hold the

agency was without authority to displace

Oklahoma's state implementation plan in

non-reservation Indian country.”

In other words, had the land at issue in

lahoma Dept. of Environmental Quality been

confirmed to have been within a “reservation,” the

State would have lost jurisdiction.

28

Pender Public Schools’ interest is also manifest.

Issues related to self-governance and regulation of

activities on reservation land will necessarily involve

operation of public school districts on reservation

land. Recent cases show this to be the case. In Red

Mesa Unified School District v. Yellowhair, No. CV—

09-8071, 2010 WL 3855183 (D. Ariz. Sep. 28, 2010),

the Red Mesa and Cedar School districts, “which are

nonmembers of the Navajo Nation by virtue of their

status as Arizona political subdivisions, [] challenged

the authority of the defendants to invoke Navajo

tribal law to review their personnel decisions.” Jd. at

*2. While the court found the “Navajo Nation has no

regulatory or adjudicative jurisdiction over Red Mesa

and Cedar’s employment-related decisions,” the

trend toward assertion of jurisdiction is evident. Jd.

at *5.

Similarly, in Belcourt Pub. Sch. Dist. v. Davis,

997 F.Supp.2d 1017 (D. N.D. 2014) (affd in part and

rev'd in part), a local school district was forced to

engage the courts and incur legal expenses to resist a

tribe’s attempts to assert its jurisdiction. “The School

District commenced these actions, seeking a

declaration that the tribal court lacks jurisdiction

over the School District and its employees.” Id. at

1018. In that case, the court found the tribe did have

jurisdiction.” Id. Although the Eight Circuit Court of

Appeals recently reversed that decision, the court did

not foreclose the possibility of a tribe attempting to

assert its jurisdiction in other cases. Belcourt Pub.

Sch. Dist. v. Davis, 786 F.3d 653 (8th Cir. 2015); See

also Fort Yates Public School Dist. No. 4 v. Murphy

29

ex rel. C.M.B., 786 F.3d 662 (8th Cir. 2015)

(reversing district court decision agreeing to tribal

jurisdiction over public schools).

So, while some lower courts have found the

existence of tribal jurisdiction in public school cases

and some have not, the trend has and continues to be

the assertion of tribal sovereignty over the operation

of school districts on reservation land. The inclusion

of Pender Public Schools into the reservation, after

generations of uninterrupted self-governance, will

provide the Omaha Tribe the leverage to continue

this national trend. The school district will be faced

with legal expenses it simply cannot afford. °

Additionally, like anyone, Pender Public Schools

wants accountability through democratically-elected

officials, judges, and representatives, who are

5 The threat of protracted and expensive litigation over these

issues is very real. Constant legal battles over jurisdiction

and regulatory authority are hard on small municipalities

like Pender and Hobart which usually do not have the

economic resources to fight these battles, despite their

obligation to assert jurisdiction for the benefit of the

communities they represent. A comparison between the 2015

budgets for Hobart and the Oneida highlights the

disproportionate resources between the entities. Hobart has

total budgeted expenditures of $7,935,705.00 compared to the

Oneida’s $409,579,523.00 2015 budget. See 2015 Village of

Hobart Operating Budget, adopted Nov. 25, 2014,

http://www.hobart-wi.org/ (follow “Finance and Budget”, then

“Annual Village Operating Budget”) (last accessed 11/19/15);

and Oneida Tribe of Indians of Wisconsin, Resolution and

Statement of Effect FY2015 Budget, http://oneidaeye.com/wp-

content/uploads/2015/01/OTIW-FY2015-Resolution-

Statement-of-Effect.pdf (last accessed 11/19/15)

30

selected through open elections—not by a completely

unfamiliar justice and legal system that precludes

the ability of a non-Indian to have any say.

Additionally, the aggrieved businesses who have

been assessed with a liquor tax in Pender will want

to move to a locale where they are not taxed by

multiple sovereignties. Other current § and

prospective businesses will fear a similar tribal tax

will be assessed against them. With the potential for

additional taxes, Pender becomes an undesirable

place to create and maintain a business, and with

less business, and fewer jobs, less revenue will exist

to fund the Pender Public Schools. This will occur

even before the Omaha Tribe begins the process to

have land within the Village of Pender placed into

trust and off the tax rolls, under the IRA.

Hobart and Pender are not alone in

experiencing these ever-escalating attempts to

expand tribal control over fee land within a

purported reservation. In 2010, the Standing Rock

Sioux Tribe, located in North and South Dakota

issued a letter to non-tribal business owners

operating on their own fee land within the

reservation, indicating a new tribal code “requires

any person or entity that engages in or intends to

engage in Business on the Standing Rock

Reservation to obtain a Business License form the

Tax Department.”6 In a related Public Notice, that a

6 Standing Rock Sioux Tribe Tax Department, Letter to

Business Owners,

http://tax.standingrock.org/data/upfiles/programs/files/Dear%

200wners%20Revised.pdf (last accessed 11/20/15).

31

Tribe claimed “it is unlawful for any person or entity

to conduct business within the Standing Rock

Reservation without a valid Business License.” The

letter and Public Notice informed the non-tribal

businesses that they were mandated to obtain a

business license from the Tribe to operate, even on

their own fee land. The Tribe supported its mandate

by citing Section 16-201 of the Tribe’s Constitution,

in which the Tribe granted itself the ability to “levy

license fees on members and non-members of the

tribe who conduct business within the Standing Rock

Reservation.”

On April 21, 2015, the Confederated Tribes and

Bands of the Yakama Nation informed the City of

Toppenish, Washington, that the Tribe had

“identified” the City as “a business operating within

the jurisdiction of the Yakama Nation,” citing to the

Confederated Tribes and Bands of the Yakama

Nation — Tribal Codes and Resolutions § 30.02.07.

Toppenish is not the only entity the Yakama Nation

is attempting to regulate and tax. On June 1, 2015,

the Yakima Herald reported: “[I]n an apparent effort

to assert sovereignty and raise revenue, the Yakama

Nation is now requiring all nontribal business and

municipalities on the reservation to obtain a tribal

business license, at an annual $205 cost, in order to

operate.”’? Once again, this demand was based upon

the claimed existence of a reservation.

7 Phil Ferolito, Yakamas seek operating licenses from non-tribal entities,

Yakima Herald (Jun. l, 2015)

http://www.yakimaherald.com/news/local/yakamas-seek-

operating-licenses-from-nontribal-entities/article_309c94fc-

079a-11e5-8799-c3ac88f80414.html.

32

It is far from speculation that the Pender Public

Schools will also receive a notice that it has been

“identified” as a business operating on a reservation

and is therefore “required” to obtain a license from

the Omaha Tribe to continue its operations, a license

that comes with fees, curriculum, tribal hiring

preferences and other mandates.

These examples of various tribes’ attempts to

regulate non-tribal members and local

municipalities—because they live on or conduct

business within a reservation—are not made to

suggest such regulations will always’ be

inappropriate. These examples merely emphasize the

significant ramifications fesulting from a

determination that an area of land is still considered

to be within a “reservation.” Those ramifications may

be far less significant, and more appropriate, in an

area that has always been treated as a reservation,

over which tribal and federal jurisdiction has never

been abandoned. However, the disruptive nature of

such actions cannot be overstated in areas such as

Pender, Nebraska, where none of the occupants of

the historic reservation ever dreamed their land

could somehow revert back to being part of a current

reservation, and thereby subject them to a tribal

sovereignty that has never previously been known.

CONCLUSION

The Eighth Circuit ignored this Court’s ruling

allowing for equitable diminishment as explained in

City of Sherrill. Additionally, as the Petitioners

argue, the Eight Circuit misapplied this Court’s

33

diminishment test as explained in Solem. Both of

these errors require reversal of the lower court’s

ruling and a finding that the Omaha Reservation

was diminished.

Respectfully submitted,

FRANK W. KOWALKOWSKI

COUNSEL OF RECORD

DILLON J. AMBROSE

DAVIS & KUELTHAU, S.C.

318%. Washington St.

Suite 300

Green Bay, WI 54301

Main: 920.435.9378

Direct: 920.431.2221

Ww wski ttorne m

Counsel for Amicus Curiae

November 23, 2015