U.S. Supreme Court Backs Indian Tribe in Case Eyed by School Districts

By Mark Walsh — March 22, 2016 3 min read
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In a case being watched by school districts on or near American Indian reservations, the U.S. Supreme Court on Tuesday upheld the right of a tribe in Nebraska to impose a liquor tax on retailers in a part of its reservation that had long ago lost its Native American character.

The concern for the 350-student Pender public schools, and for similarly situated districts across the country, is that the Indian tribe may assert greater authority in areas such as employment law and taxes.

“More often than not, the authority tribes attempt to assert grows rather than shrinks,” said Frank W. Kowalkowski, a lawyer who filed a friend-of-the-court-brief for the Pender district in Nebraska v. Parker (Case No. 14-1406). “There are a number of ways that tribal authority could be detrimental to public schools, such as by taking land off the tax rolls.”

The Parker case concerns a 50,000-acre territory that was once considered an active part of the Omaha Tribe reservation in northeastern Nebraska. The reservation was divided by a railroad right-of-way in 1880, and eventually the western half was settled by non-Indians. The state of Nebraska exercised jurisdiction over the western section beginning in 1882, creating municipal governments and the Pender school district.

In 2006, the Omaha tribal council approved an ordinance imposing a license requirement and sales tax on liquor in the reservation, including in the western section.

Several residents of the western section sued the tribe in federal district court, arguing that the reservation had been “diminished” under federal Indian law. The district court ruled that the plaintiffs had to first take their case to the Omaha Tribal Court. That court ruled that the original boundaries of the reservation had not been diminished.

In Supreme Court arguments in January, the state joined the Western section plaintiffs’ side, arguing that the section long ago had lost its Indian character. The federal government joined the tribe’s side, arguing that on many reservations, states provide services to Indians and non-Indians alike and that reservation borders should not be a matter simply of shifting demographic patterns.

In a unanimous decision on March 22, the Supreme Court ruled for the Omaha Tribe.

Writing for the court, Justice Clarence Thomas said an 1882 act of Congress that divided the Omaha reservation did not diminish it. He said the law was of a type from that era that “merely opened reservation land to settlement, ... but in doing so, they do not diminish the reservation’s boundaries.”

Thomas acknowledged that “the tribe was almost entirely absent from the disputed territory for more than 120 years,” and until the liquor regulations were enforced, it had not imposed any of its other laws on the western section.

The plaintiffs’ concerns about the tribe “upsetting the justifiable expectations of the almost exclusively non-Indian settlers who live on the land are compelling, but these expectations alone, resulting from the tribe’s failure to assert jurisdiction, cannot diminish reservation boundaries.”

Kowalkowski, a Green Bay, Wis., lawyer who also represents a Wisconsin village in a similar dispute with an Indian tribe in that state, said Thomas’s opinion left open the possibility that states, villages, and school districts could press other “equitable” arguments to avoid tribal assertions of jurisdiction.

“That does leave open the possibility that a village or a school district could raise arguments about a lack of presence of Indians in a number of years [in the section in question] or whether it has been settled by non-Indians,” he said.

The Pender school district’s brief cited several cases around the country in recent years in which Indian tribes have asserted authority over school districts on or partly on reservation land, often in the area of employment law.

Although Thomas did not address that issue in his opinion, at the Jan. 20 oral arguments in the case, Justice Sonia Sotomayor expressed doubts that the Omaha Tribe, which has some 5,000 members with some 3,000 living on the eastern half of the reservation, would suddenly exert broad governmental authority.

“This tribe is awfully small,” she told a lawyer for the state. “You think they are going to have the power to implement all of these things that you are fearful of?”

Marc D. Slonim, a Seattle lawyer who wrote a friend-of-the-court brief for the National Congress of American Indians in support of the Omaha Tribe, said that school districts and tribes have good relations in most places.

“I’m just not aware of very many disputes involving schools in Indian country,” Slonim said. “This was all very hypothetical.”

A version of this news article first appeared in The School Law Blog.