Nebraska v. Parker, 136 S. Ct. 1072

Background

The Omaha Tribe made treaties in 1854 and 1865 that clearly ceded lands for fixed payments and reduced the Tribe’s territorial jurisdiction; those texts expressly used terms like “cede” and “relinquish.”
In 1872 Congress authorized the sale of up to 50,000 acres of western reservation land with proceeds credited to the Tribe; few sales occurred.
The 1882 Act authorized the Secretary of the Interior to survey, appraise in 40-acre tracts, and open ~50,157 acres west of a railroad right-of-way to settlement by nonmembers in 160-acre parcels; proceeds were to be credited to the Tribe and used for its benefit.
Nonmember W. E. Peebles bought a tract under the 1882 Act and founded Pender, Nebraska; over time non-Indians came to inhabit the area and tribal presence there waned for more than a century.
In 2006 the Omaha Tribe amended its Beverage Control Ordinance and tried to regulate/licence Pender retailers; Pender, retailers, and Nebraska sued seeking a declaration that the 1882 Act diminished the reservation and an injunction against tribal regulation.
District Court and the Eighth Circuit held the 1882 Act did not diminish the reservation; the Supreme Court affirmed, applying the Solem framework and emphasizing statutory text.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 1882 Act diminished the Omaha Reservation	The Act opened and effectively divested the Tribe of the western lands, so the reservation boundaries were diminished and Nebraska/state jurisdiction applies	The Act merely opened parcels for settlement while retaining reservation boundaries and tribal interests; it did not effect a cession for a fixed sum	The Court held the 1882 Act did not diminish the reservation; lands remain within reservation boundaries
Role of statutory text vs. extrinsic evidence in diminishment analysis	Legislative history and later treatment show contemporaneous understanding that lands were removed from reservation status	The statutory language lacks cession/fixed-payment language and matches surplus-land opening acts that do not diminish	Text controls; absent clear textual indicators of cession/cession-for-fixed-payment, extrinsic evidence cannot overcome text
Weight of subsequent demographic and governmental treatment	Long-term non-Indian settlement and state treatment support finding of diminishment	Subsequent history is the least compelling factor and cannot alone effect diminishment without clear congressional intent	Demographic and administrative practice are insufficient to establish diminishment against clear-text rule
Whether equitable doctrines (laches/acquiescence) bar tribal exercise of authority	Petitioners argued century-long tribal absence creates equitable bar to tribe’s taxing/regulatory claims	Respondents noted the Court should decide only diminishment, not equitable defenses	Court declined to decide equitable defenses, expressing no view on laches/acquiescence in this case

Key Cases Cited

Solem v. Bartlett, 465 U.S. 463 (establishes framework: only Congress can diminish reservations and intent must be clear)
Hagen v. Utah, 510 U.S. 399 (text is most probative; examine surrounding circumstances)
DeCoteau v. District County Court for Tenth Judicial Dist., 420 U.S. 425 (distinguishes acts that merely open land to settlement from those that diminish)
South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (requires unequivocal contemporaneous evidence to show diminishment)
City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197 (discusses equitable limits on tribal assertions of authority)
Mattz v. Arnett, 412 U.S. 481 (compare statutory text to earlier treaties and context)
Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351 (surplus land acts allow non‑Indian ownership without diminishing reservation)
Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (invokes subsequent history to interpret congressional Acts)
United States v. Ron Pair Enterprises, Inc., 489 U.S. 235 (statutory interpretation begins with text)
Lone Wolf v. Hitchcock, 187 U.S. 553 (historical context about Congress’s treaty‑abrogation power relevant to negotiation evidence)