"Intense" questioning from U.S. Supreme Court marks hearing on Omaha Tribe border lawsuit

The United States Supreme Court is reviewing arguments in a boundary dispute between the Omaha Tribe and the village of Pender, Nebraska after hearing oral arguments that the state’s solicitor general, James Smith, described as “intense.”

Cases originating out of Nebraska are unusual, Smith noted.

“In the past quarter century there have only been four cases out of the Nebraska attorney general’s office that the U.S. Supreme Court agreed to hear,” he told NET News. “That by itself lets you know that it was a significant case.”

The case has a history dating back to 1882 when the United States Congress set the boundaries for the Omaha Tribe’s reservation in Thurston County, Nebraska in the state’s northeast corner. (Read NET's background story on the dispute here)

The tribal council surprised the residents of the village of Pender in 2006 when it proposed levying a tax on liquor sales. For decades property owners lived under the assumption their land was off the reservation after non-Indian settlers purchased property from the tribe.

The central question for the nine Supreme Court justices is whether the village of Pender sits inside the boundary of the Omaha Indian reservation.

"For the people in Pender, this is a big deal,” Smith said before the court. “They care about this. They have expectations. It's a big deal whether a tribe, tribal council, has authority over us.”

In other cases (most notably a ruling in Solem v. Bartlett in 1984) the Supreme Court unanimously ruled the wording of an act of Congress remains the first and most important test for determining tribal boundaries. (Read the opinion here)

Smith urged the justices to take a more generous view, looking beyond the action taken by Congress in 1882. “The focus, if you're looking at intent of Congress, should be looking at what Congress is doing after the act” which, the state of Nebraska argues, indicates the land sale approved at the time was intended to diminish the size of the reservation and put it in the hands of incoming non-Indian settlers.

Justice Antonin Scalia, who traditionally puts great emphasis on the precise wording of laws once approved, questioned Smith’s analysis.

“It's a different Congress,” Scalia interrupted. “To say a later Congress did thus and so, and therefore the earlier Congress, when it enacted a particular statute, must have diminished (the reservation) doesn't make any sense.”

Smith went on to explain it was the state of Nebraska’s belief that another tribal boundary case, City of Sherrill v. Oneida Indian Nation, supports the contention that what happens after an action by Congress can limit a tribe’s authority over historic land holdings.

In that case the tribe attempted to claim it had governing powers over land it bought in the 1990s. In an 8-1 opinion the court, pointing to the “distinctly non-Indian character” of the area since the sale, ruled the tribe had relinquished its authority after the sale.

The residents of Pender claim because the tribe had not made any attempt to exert its authority for decades, they also could claim the western properties of Thurston County had a non-Indian character.

“After 130 years you suddenly find out we've got an Indian tribe that somehow has some governmental authority over us,” Smith said, summarizing the villagers’ point of view. “We've never elected them. We don't have any right to vote them out of office.”

Once Smith raised the fears of expanded Indian rule, it laid the foundation for a series of tough, skeptical questions from the justices.

Justice Sonia Sotomayor asked, “What else do you lose if this ruling is against you?”

She questioned that since the courts had already limited “the powers of the tribes on their own reservations greatly,” including giving authority for criminal prosecutions to the federal government, they would not be losing out on those powers.

“What are you losing out on?” she repeated.

“I would start off with the first thing principle is just who governs you,” Smith responded. “You'd be introducing an additional sovereign, the tribe, into an area.”

When the attorney did not offer specifics, Justice Samuel Alito interrupted Smith.

“If the tribe were to exercise, go to the outer limits of its authority, what could it do in…Pender besides opposing this liquor tax?” Alito interjected.

“What it can do, it can displace state jurisdiction over environmental regulations,” Smith offered. "This is a rural farming area. The environment is very important. State regulation is very important. It's what the people have expected.”

Smith advanced an example.

“If you're a farmer, and the guy across the road drops a load of manure in your pond that's being used to feed cattle, you call the state of Nebraska. You want them to come out and you want them to do something,” Smith said, adding “those regulations would be replaced.”

(Supporters of the Omaha Nation noted later the tribe had not proposed taking over any environmental regulation currently administered by Nebraska’s Department of Environmental Quality.)

Justice Sotomayor questioned if the state’s fears could actually come to pass, asking “have they threatened to take away the state's activities in this village?”

Smith conceded, “Not yet.”

“This tribe is awfully small,” Sotomayor continued. “You think they are going to have the power to implement all of these things that you are fearful of? How are they going to do all these, and why would they do all these horrible things?”

Claiming there is an “inherent ambiguity” in determining the tribe’s motives, Smith replied it isn’t “simply the test of (asking) what will they do? I think the issue is once they have the authority” how would the tribe exert it on non-Indians.

Speaking on behalf of the Omaha Tribe, attorney Paul Clement faced more questions about the ramifications of renewed tribal authority on the village of Pender.

Justice Anthony Kennedy asked if the Omaha Nation prevailed in this case “can the tribe cast any doubt on the authority and the jurisdiction of the existing municipality?”

“No, not at all.” Clement shot back. “What they can do is they can make cooperative agreements with the state of Nebraska to tax Indians when they make purchases in Pender.”

By the end of his allotted time in court, Clement had returned to where the argument began: the Supreme Court’s own tribal boundary test laid out in Solem on behalf of the Sioux Indians in South Dakota.

“When the court starts the (Solem) opinion, it says the very first principle in this area is that only Congress can diminish a reservation,” Clement reiterated.

The other element of the test, which considers population trends and the level of authority exercised over claimed tribal land, can be used to question whether it’s truly reservation land. The legal term is de facto diminishment, the consideration of changing facts and circumstances.

It was the point raised by Chief Justice John Roberts, noting the court had used not only the literal words of Congress but other circumstances to reach a decision in Solem.

“Solem did talk about de facto diminishment,” Roberts said to the tribe’s counsel. “And it seems to me that you've got to recognize when they do that, they're talking about something other than de jure, in other words, pursuant to the law.”

That line of reasoning would give both sides in the Omaha case support for their case rising from the most important Supreme Court opinion on the issue of tribal boundaries.

The remarks of the chief justice gave comfort to the team supporting the village of Pender.

“We were happy to see that the court recognized there was some uncertainty under its traditional analysis to see how de facto diminishment fits under its three-part test,” said Gene Summerlin, who represented the village in the lower court cases.

Supporters of the Omaha Tribe on hand for the arguments found the tone of the questioning was as interesting as the substance.

“I was surprised they went after the state as hard as they did,” said Nora Kane, who represented the Omaha Nation in the lower federal courts. She expected a more sympathetic ear for the state since the justices agreed to hear the case.

“You’d assume they would be favorable to the petitioner’s position,” Kane said. “I did not think that came through loud and clear, that they were in favor of the state’s position.”

In a phone interview this week, Solicitor General Smith said the terse line of questioning was to be expected.

“It’s fairly intense,” Smith said. “The justices were obviously very well prepared, which is to be expected.”

Perhaps the most telling comment came from Justice Stephen Breyer, who split the state’s argument in half.

“The first issue is what's the reservation, and the second issue is what can you do on the reservation?” Breyer said near the close of arguments.

Breyer was apparently suggesting since concerns over actions by the tribe aimed at the village are speculation “let's leave it for later.”

Hearing the statement at the time, attorney Nora Kane wondered that “it may have suggested the complaints and the fears are premature, if warranted at all.”

After watching the arguments, Lyle Denniston, veteran court reporter for SCOTUSblog.com wrote "the Justices were not without sympathy, but they did not seem convinced that life would change much in Pender, even if it were left occupying land inside the boundary of the Omaha Indian Tribe’s reservation."

The Supreme Court’s opinion on Nebraska v. Parker is not expected for several months.