U.S. Supreme Court Weighs Indian Case With Implications for Schools

By Mark Walsh — January 20, 2016 4 min read
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A case about American Indian reservations argued in the U.S. Supreme Court on Wednesday has a Nebraska school district watching with trepidation.

The Pender Public Schools serves a 50,000-acre territory that was once considered 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 exercised jurisdiction over the western section beginning in 1882, eventually establishing municipal governments and the 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,” a term of art under federal Indian law. The court ruled that they must exhaust their remedies before the Omaha Tribal Court. That court ruled that the original boundaries of the reservation had not been diminished.

With the state of Nebraska and village of Pender getting involved on the side of the western-section residents, and the federal government joining the Omaha tribe’s side, the case went back to the federal courts. Both a federal district court and the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled for the tribe as well.

The state and the western-section residents appealed to the Supreme Court, where they were joined in a friend-of-the-court brief filed by the 355-student Pender Public Schools in Nebraska v. Parker (Case No. 14-1406).

“Obviously, Pender and the Pender Public Schools will be directly affected by whether this court determines diminishment of the Omaha reservation has occurred,” the district says in its brief. “As a result of treating the land as reservation land, school districts and other important community services that rely on local and state tax revenue will be more susceptible to loss of funding and face federal and tribal regulation.”

In the Supreme Court on Jan. 20, Nebraska Solicitor General James D. Smith said, “The story of the disputed area is that of a land that long ago lost its Indian character, if it ever had any.”

Local governments “would continue to exist,” Smith added, but there would be ambiguity about “the extent of their authority versus the extent of the tribe’s authority.”

Justice Sonia Sotomayor was skeptical that the Omaha Tribe, which has some 5,000 members with some 3,000 living on the reservation, would suddenly exert broad governmental authority.

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

Smith later said that the residents of the western section, who are 98 percent non-Indian, would be surprised to learn that after 130 years of state jurisdiction over the area, they “suddenly find out we’ve got an Indian tribe that somehow has some governmental authority over us. We’ve never elected them. We don’t have any right to vote them out of office.”

Paul D. Clement, the lawyer representing the Omaha tribal council, said that an 1882 act of Congress that approved the division of the reservation did not diminish it, “but simply opened up a portion of the reservation for settlement within the existing boundaries.

Allon Kadem, an assistant to the U.S. solicitor general backing the tribe’s arguments, said the state of Nebraska and its subdivisions already provide services to residents on both sides of the reservation. He pointed out there is a town called Bancroft, in the western section, and a town called Rosalie, in the eastern section.

The towns are served by the Bancroft-Rosalie school district, he said, “which is administered under the auspices of the state of Nebraska. And that is true notwithstanding the fact that much of the land is on the east side, and true notwithstanding the fact that many students who go to that school are members of the tribe.”

“There are more than 300 federally recognized Indian reservations all throughout the United States,” Kadem said. “The single most unsettling thing that this court could do would be to suggest that the borders of those reservations depend not on what Congress said about them, but on shifting demographic patterns or who provides what services where.”

But the Pender school district’s brief argues that what would most unsettle longstanding arrangements is the continued assertion of power by Indian tribes over land that long ago lost its character as part of a reservation.

The brief cites 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.

“While some lower courts have found the existence of tribal jurisdiction in public school cases and some have not, the trend has and continues to be the assertion of tribal sovereignty over the operation of school districts on reservation land,” the school district brief says. “The inclusion of Pender Public Schools into the reservation, after generations of uninterrupted self-governance, will provide the Omaha Tribe the leverage to continue this national trend.”

A decision in the case is expected by late June.

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