Supreme Court justices on Wednesday questioned attorneys on whether tribal sovereignty over Indian reservations applied to non-Indian settlements in a case that could affect Indian reservation boundaries and tribal rights to jurisdiction over those settlements. lands.
Nebraska v. Parker implicates an 1882 act of Congress that authorized the sale of a small portion of Omaha Tribe land in Nebraska to non-Indian settlers. The village of Pender is the only settlement on this land. After the Omaha Tribe imposed a liquor tax on its reservation in 2004, Pender officials said the city was not required to collect the tax because the 1882 law placed it outside the city limits. Reserve. The village seeks a decrease in reservation territory, which means that the border of the reservation would stop at Pender.
The lower courts ruled in favor of the Omaha tribe.
A Supreme Court overview notes that a ruling in Pender’s favor could also mean that “the government can be seen as ‘taking’ land from Indian tribes, with all the historical connotations that entails.”
“The ruling could affect hundreds of Indian tribes with non-Indian towns on their reservations that were created under laws similar to the 1882 Act. If the court rules in favor of the Omaha tribe, Pender residents fall under the jurisdiction of the tribe If it rules against the tribe, the territory will be subject to federal and state law.
“It’s a big issue whether a tribal council has authority over us,” Allon Kedem said for the state of Nebraska. “We can’t vote for them. Their Constitution doesn’t even allow us to appear at their public meetings.”
Nebraska argued that for more than a century more than 98% of the territory west of the right-of-way has been populated by non-Indians, the tribe has never exercised jurisdiction over land and state ruled the village. Attorney James D. Smith said that means there has been a de facto decrease because the land has no Indian character.
But Paul D. Clement, representing the Omaha Tribe, argued that the 1882 law used classic language to open up territory without diminishing its borders. There is no legal finding supporting the decrease in territory, he said, and Congress allowed Indians to settle on any land on the reservation before selling the land.
Only Congress has the legal power to diminish territory. What Congress wanted in the 1882 Act became the core of Wednesday’s argument.
“People who thought they were living on a reservation their whole lives can suddenly find themselves off the reservation, subject to state jurisdiction in ways they weren’t before,” Bethany Berger said. , professor of law at the University of Connecticut, who wrote a memoir in support. of the tribe, said in an interview.