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Opinion analysis: History lessons along the old frontier


The group of purveyors of liquors in the small Nebraska town of Pender lost on one version of history in the Supreme Court on Tuesday, but the Justices left open a chance that more modern history might work in their favor.  In the meantime, the Omaha Indian tribe can celebrate the fact that it is still a governing presence in that northeastern corner of the state in what is left of a reservation that once had 300,000 acres.  The reservation is much smaller now, but it does include all of Pender and its 1,000 inhabitants.

In a unanimous decision in Nebraska v. Parker, the Court ruled that an 1882 law opening some of the tribal lands to white settlers did not, in a formal way, cut down the size of (technically, “diminish”) the Omahas’ reservation.  Only Congress can pare down a reservation’s size, the Court said in an opinion by Justice Clarence Thomas, and there is no indication that it did so for the Omahas some 134 years ago.  But, in sending the case back to lower courts, the Court said the town could argue that the tribe waited too long to claim the power to tax liquor sales in Pender and that it may have impliedly conceded by doing nothing for so long that it accepted that Pender was not under its legislative control.

Aside from its interpretation of the 1882 law, the new ruling appeared to break no new ground legally in deciding cases about the rights of Indian tribes and by the descendants of settlers who moved onto former Indian lands when those were opened to non-Indians to tame, agriculturally, what was then a part of the Wild West.  The Court had said several times in the past that only Congress has the authority to regulate the size of Indian reservations, and it relied upon those precedents on Tuesday.  It simply applied those rulings in a case involving what happens on lands opened to non-Indians to occupy.

The town of Pender was set up when one of the nineteenth-century settlers, a man named W. E. Peebles, bought one of the tracts of 160 acres on the tribal reservation when the western portion of it was opened for purchase.  Peebles laid out the town.

The new dispute over the town’s legal location on Indian lands arose ten years ago when the tribe passed a liquor control ordinance for the entire reservation.  It required liquor retailers to get a license that varied in cost from $500 to $1,500, and it imposed a ten-percent sales tax on all liquor sales.  Violators faced a potential fine of $10,000.

With the state of Nebraska at its side, the town of Pender and the dealers sued the tribe, claiming that it had no authority over the lands occupied by Pender because Congress had diminished the reservation under the 1882 law opening reservation lands to non-Indian purchasers.

As the case went before the Justices, it involved only the question of the meaning of the 1882 law.

With that settled, the Court returned the case to the lower courts, commenting that the only issue it had settled at this point was the question of diminution of the reservation.  “We express no view,” Thomas wrote, “about whether equitable considerations of laches and acquiescence may curtail the tribe’s power to tax the the retailers of Pender in light of the tribe’s century-long absence from the disputed lands.”  (The word “laches” stands for the legal concept that one can surrender a legal right by not exercising it for a considerable period of time.)

Thomas had noted earlier in the opinion that the tribe has not enforced any of its tribal regulations on Pender or in other parts in the western part of the reservation for generations, has not kept an office there, and has not provided social services or held tribal ceremonies in that area.  While those facts could not influence the meaning of the 1882 law, Thomas wrote, they might be open for what they may say about the basic fairness of putting the town under tribal authority now.  They are matters of “equity” rather than statutory interpretation.

Recommended Citation: Lyle Denniston, Opinion analysis: History lessons along the old frontier, SCOTUSblog (Mar. 22, 2016, 2:20 PM),