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Argument preview: The Indians vs. the settlers, a modern sequel (UPDATED)

UPDATE Thursday, 2:40 p.m.   The facts about the community of Pender have changed since this lawsuit was originally filed.   See the note at the end of the post.


A thirsty resident or visitor to the small town of Pender, Nebraska — a community of 1,006 people in the state’s far northeast corner — has a rather wide variety of choices.  Liquor is available at Smitty City West, a convenience store; Pender Lanes, a bowling alley; three bars (Shriebs, Welsh’s and the Other Side); a veteran’s club; and Twin Creeks Golf Club.  But the prices that these outlets charge may depend on whether Pender is located within an Indian reservation and whether they have to pay a tax levied by the Omaha Indian tribe.

Those are the issues that go before the Supreme Court next week, on January 20, when the Justices hear oral arguments in Nebraska v. Parker.  Its impact could go beyond the sometimes heated relationships between townsmen and the tribe.  But on a less agitated level, the Court is now being asked to define what happens to Indian lands after Congress agreed to let settlers occupy lands within an Indian reservation.

Pender was laid out on 160 acres in 1884 by a Nebraska settler, W.E. Peebles.  The town was founded and given the name of Sir John Pender, a Scottish businessman who had some role in the laying of the transatlantic communications cable and became a director of an American railroad.  Lots in Pender were sold in April 1885.

That was three years after Congress passed a law to conduct an appraisal of the lands of the Omaha tribe, anticipating sales to settlers on the western end of the tribe’s reservation.  All of the lands west of a railway right-of-way, granted by the tribe, were to be sold to settlers.  Tribal members had first choice on selecting lands for their own private use, then the remainder were open for sale to the public.

Prior to that time, the Omahas had been required under an 1854 treaty with the federal government to give up some of their lands, once encompassing 800,000 acres.  Some lands went to another tribe, the Winnebagos, while some were sold at low prices to the federal government.

The case now before the Supreme Court began in 2004, when the Omaha tribe adopted a liquor-control law, regulating all sales of liquor within reservation boundaries and imposing a ten-percent tax on all such sales.  Federal officials formally approved the liquor ordinance, and the tribe moved promptly to enforce it, notifying the liquor dealers in Pender and elsewhere on what the tribe claimed as Indian lands to start collecting the tax.

Pender’s dealers sued in 2007, claiming that because the 1882 federal law had formally cut down the boundaries of the Omaha reservation, the tribe lost its governing authority over Pender and other settled areas within reservation boundaries.  The state of Nebraska joined in the lawsuit to support the claim of the town and the liquor merchants, agreeing with their claims that, once the lands had been open to settlers, the tribe lost control.

A federal judge ruled for the tribe, applying the three-part test that the Supreme Court had laid down in its 1984 decision in Solem v. Bartlett for judging whether a tribe’s reservation had been diminished.  Step one was the language of the federal law at issue, step two examined the history of passage of the law and facts surrounding passage, and the third step looked to treatment of the lands following enactment of the law, including any pattern of settlement.

The judge found that the first two steps did not yield a definitive result, while the third was inconclusive, so he declared that he was bound by Congress’s longtime concern for Indian interests to declare that the Omaha tribe’s lands had not been diminished.  The liquor dealers, joined by their town and state governments, took the issue on to the U.S. Court of Appeals for the Eighth Circuit and lost there, too.  The appeals court conceded that its ruling would have a significant impact on Pender and its residents, but it found that it had no choice but to rule for the tribe.

The federal government had joined in the case in both the district court and the court of appeals, representing the tribes and their leaders in supporting their claim to continued control over the disputed lands in the western areas of its reservation, despite the settlement.

The state, the town, and the liquor dealers then appealed to the Supreme Court, asking it to rule both that ambiguity about the Solem v. Bartlett factors could not support a finding against cutting back on reservation boundaries and that, as a matter of law, the original boundaries were diminished by the 1882 federal law.

The federal government, again representing the tribe and its leaders, urged the Supreme Court to bypass this case, arguing that the challengers had either waived their claims in lower courts or were merely pursuing a Court decision based on circumstances “unique to this one reservation.”

The Court granted review on October 1.

Briefs on the merits

With lawyers for Nebraska taking the lead role in the appeal, the state’s merits brief focused heavily upon retelling 125 years of history during which Nebraska, not the Omaha tribe, has been the governing authority on the western lands of the Omahas’ reservation.  This authority, it noted, even extended to the tribe handing over to state authorities the prosecution of a murder case well known in the community, when a member of the tribe killed a non-member at home in Pender.  The convicted murderer, it noted, is still serving time in the state prison.

West of the railroad right-of-way, which still stands as the western boundaries of the reservation, the state contended, all government services are provided by the state and local governments, not the tribe.

For the people of Pender itself, the state contended, “this is not a matter of historical curiosity or academic interest,” because the outcome will have a significant impact on that entire community and its residents, and will have practical consequences in trying to sort out more than a century of reliance on state and local governments and services.

If the Court is not inclined to rule that the 1882 federal law did, in fact, diminish the reservation, the state argued that, at the least, it accomplished a reduction of the tribal boundaries as a matter of fact.  It noted that the Supreme Court, in its 1984 precedent in the Solem case, had commented that when non-Indian settlers had flooded into the opened lands of a reservation and that area had long since lost its Indian character, “we have acknowledged that de facto, if not de jure, diminishment may have occurred.”  What has happened in those western lands since 1882, the state contended, confirms that this was at least a de facto reduction of tribal boundaries.

The Omaha tribe, filing its own brief on the merits after relying upon the federal government at the petition stage, argued that the Court, in prior decisions, had made clear that it is solely Congress’s choice as to whether Indian reservation lands have been diminished, and that its actions on such a question must be “clear and plain,” and must always begin with a presumption that Congress did not intend to diminish Indian lands.   There is “simply no basis” in the evidence in this case that Congress diminished the Omahas’ lands in 1882, the tribe said.

The federal government’s brief, now speaking only for federal interests as the guardian of tribes and their lands, described the 1882 law at issue as little more than the tribe’s designation of federal officials as the “sales agent” for the tribe.

And, like the tribe, the federal government contended that the passage of the 1882 act did not provide unequivocal evidence that everyone would expect the tribe’s reservation to shrink as a result of that enactment.  Evidence on the ground in the 1880s, and even more recently, the federal government asserted, shows that the tribe has continued a relationship with the federal government demonstrating that it still possessed the lands on the western side of its reservation.

The town of Pender is supported by an amicus brief from the Wisconsin town of Hobart, which also claims it is situated on lands claimed by the Omahas, joined by the public schools of Pender, arguing about the impact on its operations if it is found to be within reservation boundaries.  Another brief on that side of the case is by a civil-rights advocacy group based in the Midwest:  the Equal Rights Foundation, which has two board members now living in Pender.

The tribe has amicus support from a group of scholars of law and history, and from the National Congress of American Indians and other Indian-rights advocacy organizations.


Times have changed in Pender, Nebraska, since the liquor dealers filed their lawsuit about eight years ago.   Jason Sturek, the publisher of the local newspaper, the Pender Times, emailed the blog with this update: The convenience store Smitty City West is now a grocery store named Cubby’s Community Store, Schrieb’s bar is now Crippen’s 5th Quarter Bar and Grill, and the veterans club has closed, making way for a new community center.  The publisher also wishes blog readers to know that Pender’s pride is not tied up in its liquor dispensaries: its community image is bolstered by the presence of a new hospital and clinic providing critical care, and Pender is home to Blue Ox, a maker of tow bar equipment for trucks and cars.  The blog is sorry for any slight to the town’s reputation.


Recommended Citation: Lyle Denniston, Argument preview: The Indians vs. the settlers, a modern sequel (UPDATED), SCOTUSblog (Jan. 13, 2016, 12:06 AM),