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.
If you have questions about Indian Law, contact Runge Law Office at firstname.lastname@example.org or at (402) 390-9577 to schedule a free initial consultation. Visit us at www.patrickrunge.com for more information.
The Nebraska Supreme Court upheld a Court of Appeals decision that expands the effectiveness of the Indian Child Welfare Act (better known as ICWA) in Nebraska. The specific decision, In re Shayla H, says the State still has to provide active efforts for an Indian family even if the child is placed with a parent, so long as the State still retains decision-making power over the child.
Confusing? Well, maybe a little background will help. Ordinarily when a child is removed from his or her parents by the State due to abuse and neglect, the State must make “reasonable efforts” to reunify the family. However, when an Indian child is involved and there is a question of foster care or termination of parental rights, ICWA requires the State to provide “active efforts” (a higher standard of care than “reasonable efforts”) to prevent the breakup of the Indian family.
In this case, the State argued that because the child was placed with the parent, it wasn’t an issue of foster care or termination of parental rights, so the “active efforts” requirement of ICWA shouldn’t apply. But the Supreme Court, in agreeing with the Court of Appeals, said that any time when the legal decision-making power for the child has been removed from the parent (as it had in this case, even though the child was placed with the parent), a foster care placement could arise, and therefore the higher active efforts standard should apply.
But why should there be a different standard in the first place? Why do Indian children get special treatment that non-Indian children don’t enjoy?
From the very beginning of the United States, the country grappled with how to justify taking the lands of the native peoples who were there before. The first Chief Justice of the Supreme Court, John Marshall, enshrined into law the concept of a trust relationship, where the United States owed native Americans a duty of protection in exchange for exercising power over them.
Through the years, that trust relationship has been expressed in different ways, and for much of American history involved attempting to “de-Indian” the native people, guided by the paternalistic idea of “killing the Indian to save the man.”
By the turn of the 20th century, that policy involved the forcible removal of Indian children to boarding schools, where their ceremonial long hair was cut and any expression of their native culture or language was harshly punished. And while the boarding schools were later closed, by the middle of the twentieth century Indian children were being removed from their homes by child protective services at an alarmingly disproportionate rate.
So, in response to that rate of removal, along with the history of the boarding schools and other official Federal policies designed to destroy Indian culture, and recognizing the underlying trust obligation the United States has to the native American people, Congress passed ICWA in 1978 to right some of the wrongs committed in the past.
ICWA has a number of provisions designed to preserve Indian families and provide opportunities for the tribes, rather than state courts, to make decisions with regards to the welfare of Indian children. The “active efforts” standard for Indian children in foster care is part of the attempt by ICWA’s drafters to help ensure that Indian children are removed from Indian families only when the strongest of reasons are present, and that every effort is made to help reunite those Indian families and alleviate the problems that got the State involved in the first place.
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We have practiced law in Omaha and eastern Nebraska since 1995. At Runge Law Office, we focus our practice on:
– Family Law. This area includes divorce, custody disputes, child support issues, modification of previous orders when circumstances have changed, and enforcement actions that use the power of the Court to follow a previously-entered order.
– Criminal Defense. We have experience in tribal, state, and federal courts, defending people accused of both felonies and misdemeanors. If you have been accused of a crime, both your freedom and your future are at stake. You need experienced representation that knows how to find a solution to your problem, either through smart negotiation or in court.
– Juvenile Law. If the State has come in and taken your children based on allegations of abuse or neglect, it is critical that you have experienced representation helping you. Once a child has been removed and a juvenile court cause started, by law parents only have a certain amount of time before the State will take actions to permanently take your children away. We have extensive experience in juvenile court, and can help you find a solution to your problem.
– Estate Planning. Thinking about death is always unpleasant. But if you don’t have a plan for your property when you die, the State has one for you. If you want to make sure you have control over your property once you die, you need to speak with us. We have experience in listening to your concerns and crafting the right legal framework to ensure that your wishes are honored and your family is protected after your death. We can also help you with living wills and powers of attorney to make sure your wishes are honored and your rights are protected when you are at your most vulnerable.
– Native American Law. In Indian Country, the intersection of tribal, state, and federal laws can be very challenging. We have years of experience working in Indian Country, in both tribal courts and state courts, and can help you navigate the legal, jurisdictional, and cultural barriers you may be facing. Patrick has been a public defender in tribal court, and is currently the Chief Judge of the Winnebago Tribal Court. He also teaches Native American Law at the Creighton University School of Law, and has taught and spoken frequently about Native American Law issues such as the Indian Child Welfare Act.
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