Supreme Court reaffirms power of Congress, village of Pender subject to tribal tax

Originally posted on March 27, 2016

In a unanimous 8-0 decision, the United States Supreme Court ruled that the city of Pender is still within the Omaha Indian Reservation, and as a result the Omaha Tribe can impose a tax on sales of alcohol in Pender.

The case, called Nebraska v. Parker, pitted the state of Nebraska and the village of Pender against the Omaha Tribe in deciding whether or not the reservation boundaries had moved. In 1882, the Omaha Indian Reservation’s boundaries were formalized between the United States and the Omaha Tribe. In that Congressional act, part of that land was sold to a settler named W.E. Peebles, who ultimately founded the village of Pender.

However, since then, the residents of Pender have been almost entirely non-Indian, and the Omaha Tribe did not attempt to regulate any activity in Pender until 2004. At that point, the Omaha Tribe issued a tax on any sales of alcohol on the reservation, which would include merchants in Pender.

The Pender merchants, along with the State of Nebraska, asked the federal courts to determine that the Omaha Indian Reservation had been diminished, meaning that the boundaries had changed so that Pender was no longer part of the reservation. If the village was correct and the reservation was diminished, then the Omaha Tribe would no longer have any authority over activity in Pender.

The United States Supreme Court, in a case called Solem v. Bartlett, set up a three-part test to determine whether or not a reservation had been diminished. The first part of the test was to determine if Congress intended to reduce the size of the reservation at the time of its creation. Since the founding of the nation, Congress has had the power to make final decisions with regards to native lands and sovereignty. This power, called “plenary power,” makes Congress (for the most part) the final word in terms of Indian affairs.

As a result, the Supreme Court in Solem determined that whatever Congress’ decision was with regards to the borders of a reservation was final. If Congress specifically said that the size of a reservation should be diminished, then the borders would change accordingly. However, for the Court to find that the border has been diminished, Congress must have been specific in doing so. The Court will not imply a diminishment without an express action from Congress.

The second test in Solem was whether there was historical evidence at the time of the creation of the reservation that Congress intended to diminish the reservation. This  test goes back to the premise that Congress must be clear in acting to reduce reservation land. If Congress did not specifically say it wanted to diminish the reservation, but there was clear historical evidence to show that was what Congress wanted to do, then a later court could find a diminishment.

In the question as to whether Pender was part of the Omaha Indian Reservation, there was very little evidence to demonstrate Congressional intent to diminish using either of these first two tests. As  a result, the only way Pender would be successful is with the third part of the Solem test.

That third part of the test is whether the current demographics of the area would suggest a Congressional intent to diminish. The evidence for this test would seem to be strong for Pender, as the population of the village is almost entirely non-Indian. Supreme Court cases that came after Solem seemed to suggest that the demographics of an area would go a long way in determining whether it remained as reservation land.

However, Justice Clarence Thomas wrote for a unanimous Court significantly limiting the demographic test from Solem. Thomas wrote that the demographic test could be used to supplement evidence of Congressional intent to diminish. But if there was no evidence of Congressional intent – which is what the Court found with regards to Pender – then the demographics of the area were not relevant in determining whether a reservation had been diminished.

The ruling in this case was significant in reaffirming the primary role of Congress in determining policy regarding native lands and sovereignty. Since the decision of Oliphant v. Suquamish Indian Tribe in 1978, the Court had been steadily inserting itself as an equal decision-making partner with Congress in areas of native lands and sovereignty. In Parker, the Court has taken a significant step away from that claim of power, returning decision-making with regards to native lands and sovereignty to Congress.

The full text of the opinion can be found here.