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Tuesday, March 22, 2016

Nothing New to Say in Nebraska v. Parker

Sometimes the Supreme Court grants cert to change the law.  And sometimes, it seems, the Court grants cert to repeat the law.

Today the Supreme Court issued its opinion in Nebraska v. Parker, holding that an 1882 federal statute did not diminish the boundaries of the Omaha Indian Reservation.  (I joined an amicus brief arguing for the result the Court reached.)

The case concerns a challenge to Tribal jurisdiction over liquor sales on the reservation, with nonmember retailers arguing the Omaha Tribe can’t regulate sales in the town of Pender because, in their view, it’s not part of the reservation.  Writing for a unanimous Court, Justice Thomas concluded that “[o]nly Congress has the power to diminish a reservation,” that its intent to do so must be clear, and that the 1882 “bore none of [the] hallmarks of diminishment.”  (Op. 7, 12)    

In other words, the law today is the same as it was yesterday.  Reservation boundaries, the Court concluded, are not set by the “expectations” of “non-Indian settlers who live on . . . land” within the reservation.  (Op. 12)  Nor are they set by federal courts; “it is not our role,” the Court explained, “to ‘rewrite’ the 1882 Act in light of . . . subsequent demographic history.”  (Op. 11)  That’s the conclusion the district court and court of appeals reached and which the Court repeated.

Over at SCOTUSBlog, Lyle Denniston writes that the Court “left open a chance that more modern history might work in [the petitioners’] favor.”  He’s referring to the Court’s statement that “[b]ecause petitioners have raised only the single question of diminishment, we express no view about whether equitable considerations of laches and acquiescence may curtail the Tribe’s power to tax the retailers of Pender in light of the Tribe’s century-long absence from the disputed lands.  Cf. City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 217–221 (2005).”  (Op. 12)  This statement implicitly refers to an amicus brief supporting the petitioners, which raised Sherrill though the petitioners didn’t.  Denniston suggests the Court may have thought there’s something to the Sherrill argument.

If Denniston’s right, then an opinion that did nothing but repeat the law for twelve pages abruptly turned towards radically changing it in the penultimate paragraph.  The amicus brief of the National Congress of American Indians, joined by the Affiliated Tribes of Northwest Indians and 20 individual Tribes, explained that City of Sherrill has nothing to do with the question of Tribal jurisdiction in Nebraska v. Parker.  If anything, the Court’s emphasis in Parker on Congress’s constitutional role in Indian affairs cuts hard against the idea that judge-made “equitable considerations” could curtail the Tribe’s jurisdiction over its congressionally-recognized reservation.      

I'll admit it makes for a boring headline.  And it leaves one wondering why the Court granted cert in the first place.  But sometimes the Court simply has nothing new to say.         

Posted by Seth Davis on March 22, 2016 at 03:47 PM | Permalink



Posted by: Dave Begley | Apr 2, 2016 3:34:56 PM


1. You keep using the straw man fallacy; a favorite rhetorical device of President Obama. Again, I accept the status of the Tribes under the Constiution.

Here's a news flash for you. The members of the Tribes are also American citizens and, as such, are entitled to the rights under the constitution but also required to obey it. Consider for a moment whether it would be constitutional to have a county election and only those of one race could vote. Absurd.

2.Just check the election results for Indian country in South Dakota and Nebraska and it is clear that most Indians vote Dem.

Ben Campbell's party affiliation proves nothing. He was one guy. I was referring to the fact that most Native Americans vote Dem. Just like most African Americans vote Dem. That being said there are a few black elected Republicans and Tim Scott of SC comes to mind.

3. "The executive here is limited by law." That's a laugher as applied to the Obama Administration and a real howler for a President Hillary. The destruction of the Rule of Law is Obama's greatest legacy.

I hate to inform you that American politics has devolved into a racial spoils system. Bidding preferences for government contacts for one race over another is just one example.

Posted by: Dave Begley | Apr 2, 2016 3:32:32 PM

Dave Begley ...

1) Your general argument to me amounts to not accepting how Native American tribes are treated under the current Constitution and this continues it. Note, e.g., how the 15A references "United States" and "States." TRIBES are not cited.

They can determine, e.g., that Navajos alone will be members of the Navajo Nation. Like France singles out French people. Thus, yes, unlike Nebraska, where residence alone makes you under the 14A a citizen of the state with the self-government that implies, tribal land is treated differently. You find this unjust but the Constitution as understood today doesn't treat the two the same.

2) Boundary disputes between sovereigns have long been troublesome and costly things. Not sure why the revenue arising from the immediate matter isn't deemed enough but I did note that alcohol is particularly a concern to Native Americans historically. Plus, boundary disputes personally and for sovereigns also have emotional salience.

3) There are two Native Americans from what I can tell in the U.S. Congress today; both are Republicans. Sen. Campbell was a Republican. Did a search & the first answer to the question of political breakdown I found is "it varies." Another article said that Native Americans cannot be assumed to vote one way or another. This litigation doesn't appear to be partisan at any rate.

4) The executive is limited here by the law, which I provided a brief covering the point to help explain, which gives the tribes limited control. This is a major part of your confusion and fears about Hillary Clinton (and Republicans have reason to help here too; again look at the Native Americans in Congress today) doesn't change that. Ultimately, Congress has power over tribes to oversee things.

5) I was upfront: I'm just an educated civilian on this issue.

We are debating each other on an online comment forum. People do that all the time without being experts. It's a charm of the average American getting a chance to interact online.


if you quote something like that, useful to give a link ... doing a search, e.g., found it on a website talking about "Obamaphone" as if that was an "Obama" policy specifically. Somewhat unreliable.

Posted by: Joe | Apr 2, 2016 12:01:40 PM

I guess there is some upside to people in Pender from this decision. Internet subsidy by the federal government.
“But those who live on lands designated as ‘tribal’ receive $34.25 per month, whether or not they are Native Americans. You might not think that this is a big deal, but here’s the rub. The FCC currently treats virtually all of Oklahoma as tribal land. So, for example, a non–Native American living in Tulsa is eligible for $300 more per year in phone subsidies than a low-income person in East Los Angeles or Appalachia.”

Posted by: Dave Begley | Apr 2, 2016 9:22:24 AM


1. If the right to vote in an election is based upon blood or race - even a tiny fraction - you have discovered a new constitutional principle which is contrary to the text of the current constitution.

I never wrote that I didn't like the Tribes or that the Tribes don't have status as stated in the constitution. You are using the straw man fallacy.

2. I think even you might agree that something as simple as a boundary line should not require millions of dollars and years of litigation in order to figure out. Clearly the Tribe wants way more than liquor and gas tax revenue.

3. Native American Tribes are a core Democrat party interest group. Just check out the election results from any Reservation. And I never asserted that Tribe members vote 100% Dem.

4. To the extent the Tribe doesn't have plenary power to do everything it wants, have you ever heard of the concept of getting the camel's nose under the tent? In a Hillary Clinton Administration, the Tribes will get what they want from BIA because it is quid pro quo. The Tribes deliver the votes for the Dems and the Executive Branch delivers to one of their most loyal interest groups.

5. You don't claim any expertise but then rebut me point by point. So what is it? Expert or not?

Posted by: Dave Begley | Apr 1, 2016 2:26:37 PM

"If you think a white or black person can join a Tribe, you have really discovered something."

Not really. In a recent adoption case, e.g., a member of a tribe only had a tiny fraction of non-white blood. Black people also can join tribes and have. If you don't like the idea of Native American tribes, fine, but CONSTITUTIONALLY they are still a thing.

I'm agnostic as to being "wrong" or "naive" writ large; but on this point, not so much.

"And to clear this up for you, it took ten years of litigation and twelve different federal judges to finally decide the boundary issue. Marbury v. Madison."

Boundary disputes can be complicated. Not seeing the point. Less so citing the latter case. I'm aware of judicial review etc.

"The two banks in Pender are state charted banks."

Uh huh.

"Under general police powers, the sovereign can impose all sorts of occupation and sales taxes. If alcohol can be taxed, why not medical services? Or a two percent city sales tax? Omaha has a restaurant occupation tax. Why not Pender? Tax Popo's restaurant. Tax Pender Lanes."

I linked the government's brief noting the limited power that the tribe has in this context. Not sure what "general Democrat public policy" means (sounds like a potshot at Democrats; not aware of the partisan labels of the current tribal government; not all tribal members nationwide are Democrats as a whole), but the Native American tribes don't have plenary power to do what it wants here.

You seem to not really know the details here & are speaking on "common sense general principles." I don't claim expertise either, but you might want to cut down the 'tude given the flaws in your comments.

Posted by: Joe | Mar 28, 2016 11:58:22 AM

Correction. State chartered banks.

Posted by: Dave Begley | Mar 25, 2016 9:12:08 AM


You are confused, wrong and naive. If you think a white or black person can join a Tribe, you have really discovered something. In order to be a member of the Omaha Tribe, one must have the right blood or race. Otherwise all of the white citizens of Pender would join the Tribe and vote out the council that wants to tax and sue them.

And to clear this up for you, it took ten years of litigation and twelve different federal judges to finally decide the boundary issue. Marbury v. Madison.

The two banks in Pender are state charted banks.

Under general police powers, the sovereign can impose all sorts of occupation and sales taxes. If alcohol can be taxed, why not medical services? Or a two percent city sales tax? Omaha has a restaurant occupation tax. Why not Pender? Tax Popo's restaurant. Tax Pender Lanes.

Under general Democrat public policy, there are surely plenty of "investments" that the Tribe needs to make in order to improve life for all people residing within the boundaries of the Reservation. So to satisfy these pressing needs, taxes will have to be imposed on the population and commerce center of the Reservation and that means Pender. And it is easy to pass new taxes when the people paying them can't vote.

Posted by: Dave Begley | Mar 25, 2016 7:23:25 AM

Pender is not merely within the boundaries "now" -- it was there for quite some time; the ruling holds that it continues to be.

But, this did not lead the tribe to have no restraints here in various respects. The link I provided shows one means that states have to protect its interests and citizens. Also, the tribe has an interest not to "drive people out" given they are interested in the tax revenue. Congress also retains control and can step in if they are deemed reckless.

Native American tribes CONSTITUTIONALLY are treated differently. Congress has separate power to interact with them and they are deemed separate sovereigns for various purposes. Tribes, not "races," are at stake here. The Omaha Nation has sovereignty as the state of Nebraska (largely white, but this isn't a matter of "whites" have special power) does over its members.

If this troubles you okay, but goes much further than this one case, this one tribe over non-tribal members. The Constitution provides that residency means you are a citizen of a state; it doesn't in the 14A, however, say the residency on tribal territory make you a citizen of the tribe. Like Puerto Rico not voting for President, this might be wrong, but it's the current CONSTITUTIONAL situation.

And, tribes have much less power (including over criminal justice) regarding non-members. Thus, if non-tribal members commit crimes, unlike a state, they often have to rely on the federal government to step in to prosecute. Certain taxes, like regulation of minor criminal matters, is a limited way they have to regulate here. But, it's limited. Again, there are restraints in place to protect non-tribal members, some of which trouble the tribes themselves.

Finally, looking at the brief of the U.S., see e.g. p. 8 ["largely divested"] there isn't some open-ended power to tax here either. Alcohol is specifically treated differently, in part given its special history in tribal lands. Banks for instance, are special federal regulated institutions. I would question its power to tax banks, especially without congressional okay (Nebraska is represented there).

Anyway as the OP notes, that case concerns a limited matter.


Posted by: Joe | Mar 25, 2016 12:06:07 AM


Now that Pender is within the boundaries of the reservation, there is little stopping the Tribe from imposing new sales and occupation taxes on the businesses in Pender. An occupation tax on the banks and the new hospital could be devasting. That will drive people out as Pender becomes uncompetitive with West Point and Wayne. And, of course, essentially no one in Pender will be able to vote. Being excluded from voting based upon race is unconstitutional and unAmerican.

Posted by: Dave Begley | Mar 24, 2016 9:51:29 PM

I think the Court's statement addresses the confusion during oral argument about whether the petitioners had raised a Sherrill argument. I wouldn't read the Court as saying anything new about that argument. In particular, I wouldn't read it as suggesting that judge-made equitable considerations may indeed trump Congress's decisions, much less as suggesting that the Fourteenth Amendment and the VRA answer the questions in this case.

Posted by: Seth Davis | Mar 24, 2016 12:20:13 PM

ETA: "The liquor regulation here should" = "should NOT"

I do find the late in the day argument have some force. I'd be interested to know more about that angle. So many interesting details!

Posted by: Joe | Mar 24, 2016 12:00:32 PM

The liquor regulation here should interfere much with a "a new hospital and ... a new community center." There is no "destroying" here going on here, even if they apply the fuel tax. But, I need more info. I looked and it seems the state of Nebraska (Pender residents voted there) agreed to the tax: http://revenue.nebraska.gov/fuels/legal/Agreement%20with%20Omaha%20Tribe%20Sept%202005.pdf Unless we are talking about another one.

It looks like they are within the reservation. On balance, I think Native Americans have been treated more unfairly in respect to tribal/non-tribal relations but that doesn't mean specific wrongs can be cited. The case in effect leaves things in the hands of Congress, who has the power to regulate intercourse with Indian tribes.

Native American tribes are separate here for 14A purposes and I'd assume VRA as applicable here. Interesting question.

Posted by: Joe | Mar 24, 2016 11:58:49 AM

People have lived in Pender for over 120 years believing they were outside the boundaries of the Omaha Reservation. They have ordered all of their business affairs so. The community built a new hospital and is building a new community center in reliance upon that long-held and reasonable belief.

What is really unfair - and in violation of the Fourteenth Amendment and the Voting Rights Act - is that all of the non-Natives in Pender are banned from voting in Tribal elections for the representatives who want to tax them. Taxation without representation based upon race. There's a shocker.

This is about more than a liquor tax. The Tribe is also going after the Nebraska fuel tax collected by Pender businesses. Who knows what other tax would be imposed on those who can't vote. The power to tax is the power to destroy.

Posted by: Dave Begley | Mar 23, 2016 2:19:17 PM

What do you think that final statement might amount to if Lyle Denniston is inccorect? Basically, why might SCOTUS tack that on?

Posted by: Joe | Mar 22, 2016 5:27:04 PM

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