Commentary on the Omaha Reservation Boundaries Argument

Did Paul Clement just throw the Mississippi Choctaw tribal government under the bus?!?! Well, no, but the Omaha tribe’s reservation boundaries case and the Mississippi Choctaw tribe’s jurisdiction case somehow have come uncomfortably close together.

There seemed to be two major threads of argument in Nebraska v. Parker. The first is what the Supreme Court granted cert to decide, whether the Omaha reservation boundaries had been diminished. The second seemed to be about the applicability and impact of the Sherrill decision.

On the reservation boundaries matter, the federal government made a strong case for the proposition that the State of Nebraska long has acknowledged the reservation boundaries of the Omaha reservation’s western side:

another point that I would make is that the single best evidence of what these parties could have expected is the retrocession, because that was a unique moment in which the State of Nebraska and the United States talked directly and officially to one another about the burdens and responsibilities for exercising jurisdiction in the reservation. And the United States in the Federal register as official can be said the entire reservation remains intact.

And the State of Nebraska, as we point out in our brief, had exactly the same understanding. The assistant attorney general for Nebraska came and testified before Congress that all of Thurston County is within the Winnebago and within the Omaha Reservation.[tr. at 46, lines 10-23]

However, in that part of the reservation, about 90 percent of the residents are nonmembers. So the real meat of the argument delved into the murky waters of whether the Court’s Sherrill decision focusing on the “settled expectations” of the residents and the governments would be upset by the tribe’s liquor ordinance. [BTW Sherrill is an issue waived (i.e., never cited) by the State at the Eighth Circuit — opening brief, reply brief.]

Again, the government squarely argued against the impact of Sherrill:

If I could go to the City of Sherrill argument, which got brought up a lot today. I think this case is extremely different from the City of Sherrill for a number of reasons, but let me give you two big ones. In the City of Sherrill, this Court held that principles of equity restrained the Tribe from trying to resurrect a claim of inherent sovereign immunity.

In this case by contrast, first of all,  we’re not just talking about the Tribe’s jurisdiction. We’re talking about the jurisdiction of the United States as well.

And second of all, we’re not talking about a claim of inherent authority. This is authority exercised pursuant to a Federal statute, 18 U.S.C. 1161. And it ­­ for that reason, principles of equity simply don’t apply here.[tr. at 42-43, lines 16-25, 1-7]

As anyone knowledgeable about Sherrill knows, the case (at least in part) involved whether a tribe’s reassertion of sovereign authority would be “disruptive” to nonmembers. And here is where the interests of the Omaha Tribe and the Mississippi Choctaw might conflict. In a colloquy with Justice Kennedy, Mr. Clement for the tribe today states:

JUSTICE KENNEDY: Well, you ­­ you have the example of a scuffle. Suppose an Indian and a non­Indian are in a scuffle. If ­­ if there’s a ­­ a minor criminal statute making this a minor offense, does the Tribe have jurisdiction over the non­Indian?

MR. CLEMENT: I ­­ I don’t think that it 10 would within the Village of Pender. And I think that is a reflection of the very limited authority that the Tribe has over non­Indians ­­

JUSTICE KENNEDY: And that’s true with reference to all Indian tribes? Can you cite me any proposition for that?

MR. CLEMENT: Well, ultimately, it might be ­­ it might turn on the scope of the Montana decision. And obviously, this Court has the Dollar General decision in front of it. [tr. at 37, lines 4-19]

The government’s attorney added:

MR. KEDEM: So the things that the Tribe could do would be any express delegation of authority from Congress. The only one that we’ve heard about is the alcohol ordinance. Beyond that, the State and Tribe could go back ­­

JUSTICE GINSBURG: We heard about the fuel ­­ the revenue sharing of the fuel.

MR. KEDEM: That’s right. There was an agreement to share revenue fuel, although that was something that the State entered into voluntarily with the Tribe. Beyond that, the Tribe would have to fall under one of the two Montana exceptions, which are, as this Court is aware of because of the Dollar General case, very limited. [tr. at 41, lines 1-14]

Ironically, weirdly, and crazily, if the Court acknowledges (as it should) the authority of the Mississippi Choctaw to assert jurisdiction over a company that consented in writing to that jurisdiction, it might somehow hurt the Omaha Tribe’s ability to assert authority granted by the United States to regulate liquor. But these cases are so different (yes, Dollar General consented to tribal jurisdiction, and yes, the United States authorized the Omaha Tribe to tax liquor) it shouldn’t matter at all.

 

One thought on “Commentary on the Omaha Reservation Boundaries Argument

  1. Ed Zendejas January 21, 2016 / 5:12 pm

    Apparently Justice Kennedy forgot about the Oliphant case when he asked for any citation for the proposition that tribes do not have jurisdiction over non-Indians in criminal offenses (except VAWA).

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