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SUPREME COURT OF THE UNITED STATES
_________________
No. 14–1406
_________________
NEBRASKA, et al., PETITIONERS
v.MITCH PARKER, et al.
on writ of certiorari to the united states
court of appeals for the eighth circuit
[March 22, 2016]
Justice Thomas delivered the opinion of the
Court.
The village of Pender, Nebraska sits a few miles
west of an abandoned right-of-way once used by the Sioux City and
Nebraska Railroad Company. We must decide whether Pender and
surrounding Thurston County, Nebraska,are within the boundaries of
the Omaha Indian Reservation or whether the passage of an 1882 Act
empowering the United States Secretary of the Interior to sell the
Tribe’s land west of the right-of-way “diminished” the
reservation’s boundaries, thereby “free[ing]” the disputed land of
“its reservation status.”
Solem v.
Bartlett, 465
U. S. 463, 467 (1984) . We hold that Congress did not diminish
the reservation in 1882 and that the disputed land is within the
reservation’s boundaries.
I
A
Centuries ago, the Omaha Tribe settled in
present-day eastern Nebraska. By the mid-19th century, the Tribe
was destitute and, in exchange for much-needed revenue, agreed to
sell a large swath of its land to the United States. In 1854, the
Tribe entered into a treaty with the United States to create a
300,000-acre reservation. Treaty with the Omahas (1854 Treaty),
Mar. 16, 1854, 10Stat. 1043. The Tribe agreed to “cede” and
“forever relinquish all right and title to” its land west of the
Mississippi River, excepting the reservation, in exchange for
$840,000, to be paid over 40 years.
Id., at 1043–1044.
In 1865, after the displaced Wisconsin Winnebago
Tribe moved west, the Omaha Tribe agreed to “cede, sell, and
convey” an additional 98,000 acres on the north side of the
reservation to the United States for the purpose of creating a
reservation for the Winnebagoes. Treaty with the Omaha Indians
(1865 Treaty), Mar. 6, 1865, 14Stat. 667–668. The Tribe sold the
land for a fixed sum of $50,000.
Id., at 667.
In 1872, the Tribe again expressed its wish to
sell portions of the reservation, but Congress took a different
tack than it had in the 1854 and 1865 Treaties. Instead of
purchasing a portion of the reservation for a fixed sum, Congress
authorized the Secretary of the Interior to survey, appraise, and
sell up to 50,000 acres on the western side of the reservation “to
be separated from the remaining portion of said reservation” by a
north-south line agreed to by the Tribe and Congress. Act of June
10, 1872 (1872 Act), ch. 436, §1, 17Stat. 391. Under the 1872 Act,
a nonmember could purchase “tracts not exceeding one hundred and
sixty acres each” or “the entire body offered.”
Ibid.
Proceeds from any sales would be “placed to the credit of said
Indians on the books of the treasury of the United States.”
Ibid. But the proceeds were meager. The 1872 Act resulted in
only two sales totaling 300.72 acres.
Then came the 1882 Act, central to the dispute
between petitioners and respondents. In that Act, Congress again
empowered the Secretary of the Interior “to cause to be surveyed,
if necessary, and sold” more than 50,000 acres lying west of a
right-of-way granted by the Tribe and approved by the Secretary of
the Interior in 1880 for use by the Sioux City and Nebraska
Railroad Company. Act of Aug. 7, 1882 (1882 Act), 22Stat. 341. The
land for sale under the terms of the 1882 Act overlapped
substantially with the land Congress tried, but failed, to sell in
1872. Once the land was appraised “in tracts of forty acres each,”
the Secretary was “to issue [a] proclamation” that the “lands are
open for settlement under such rules and regulations as he may
prescribe.” §§1, 2,
id., at 341. Within one year of that
proclamation, a nonmember could purchase up to 160 acres of land
(for no less than $2.50 per acre) in cash paid to the United
States, so long as the settler “occup[ied]” it, made “valuable
improvements thereon,” and was “a citizen of the United States, or
. . . declared his intention to become such.” §2,
id., at 341. The proceeds from any land sales, “after paying
all expenses incident to and necessary for carrying out the
provisions of th[e] act,” were to “be placed to the credit of said
Indians in the Treasury of the United States.” §3,
id., at
341
. Interest earned on the proceeds was to be “annu-ally
expended for the benefit of said Indians, under the direction of
the Secretary of the Interior.”
Ibid.
The 1882 Act also included a provision, common
in the late 19th century, that enabled members of the Tribe to
select individual allotments, §§5–8,
id., at 342–343, as a
means of encouraging them to depart from the communal lifestyle of
the reservation. See
Solem, supra, at 467. The 1882 Act
provided that the United States would convey the land to a member
or his heirs in fee simple after holding it in trust on behalf of
the member and his heirs for 25 years. §6, 22Stat. 342. Members
could select allotments on any part of the reservation, either east
or west of the right-of-way. §8,
id., at 343.
After the members selected their allotments—only
10 to 15 of which were located west of the right-of-way—the
Secretary proclaimed that the remaining 50,157 acres west of the
right-of-way were open for settlement by nonmembers in April 1884.
One of those settlers was W. E. Peebles, who “purchased a tract of
160 acres, on which he platted the townsite for Pender.”
Smith v.
Parker, 996 F. Supp. 2d 815, 828 (Neb.
2014).
B
The village of Pender today numbers 1,300
residents. Most are not associated with the Omaha Tribe. Less than
2% of Omaha tribal members have lived west of the right-of-way
since the early 20th century.
Despite its longstanding absence, the Tribe
sought to assert jurisdiction over Pender in 2006 by subjecting
Pender retailers to its newly amended Beverage Control Ordinance.
The ordinance requires those retailers to obtain a liquor license
(costing $500, $1,000, or $1,500 depending upon the class of
license) and imposes a 10% sales tax on liquor sales. Nonmembers
who violate the ordinance are subject to a $10,000 fine.
The village of Pender and Pender retailers,
including bars, a bowling alley, and social clubs, brought a
federal suit against members of the Omaha Tribal Council in their
official capacities to challenge the Tribe’s power to impose the
requirements of the Beverage Control Ordinance on nonmembers.
Federal law permits the Tribe to regulate liquor sales on its
reservation and in “Indian country” so long as the Tribe’s
regulations are (as they were here) “certified by the Secretary of
the Interior, and published in the Federal Register.” 18
U. S. C. §1161. The challengers alleged that they were
neither within the boundaries of the Omaha Indian Reservation nor
in Indian country and, consequently, were not bound by the
ordinance.
The State of Nebraska intervened on behalf of
the plaintiffs, and the United States intervened on behalf of the
Omaha Tribal Council members. The State’s intervention was
prompted, in part, by the Omaha Tribe’s demand that Nebraska share
with the Tribe revenue that the State received from fuel taxes
imposed west of the right-of-way. In addition to the relief sought
by Pender and the Pender retailers, Nebraska sought a permanent
injunction prohibiting the Tribe from asserting tribal jurisdiction
over the 50,157 acres west of the abandoned right-of-way.
After examining the text of the 1882 Act, as
well as the contemporaneous and subsequent understanding of the
1882 Act’s effect on the reservation boundaries, the District Court
concluded that Congress did not diminish the Omaha Reservation in
1882. 996 F. Supp. 2d, at 844. Accordingly, the District Court
denied the plaintiffs’ request for injunctive and declaratory
relief barring the Tribe’s enforcement of the Beverage Control
Ordinance. The Eighth Circuit affirmed.
Smith v.
Parker, 774 F. 3d 1166, 1168–1169 (2014). We granted
certiorari to resolve whether the 1882 Act diminished the Omaha
Reservation. 576 U. S. ___ (2015).
II
We must determine whether Congress
“diminished” the Omaha Indian Reservation in 1882. If it did so,
the State now has jurisdiction over the disputed land.
Solem, 465 U. S., at 467. If Congress, on the other
hand, did not diminish the reservation and instead only enabled
nonmembers to purchase land within the reservation, then federal,
state, and tribal authorities share jurisdiction over these
“opened” but undiminished reservation lands.
Ibid.
The framework we employ to determine whether an
Indian reservation has been diminished is well settled.
Id.,
at 470–472. “[O]nly Congress can divest a reservation of its land
and diminish its boundaries,” and its intent to do so must be
clear.
Id., at 470. To assess whether an Act of Congress
diminished a reservation, we start with the statutory text, for
“[t]he most probative evidence of diminishment is, of course, the
statutory language used to open the Indian lands.”
Hagen v.
Utah, 510 U. S. 399, 411 (1994) . Under our precedents,
we also “examine all the circumstances surrounding the opening of a
reservation.”
Id., at 412. Because of “the
turn-of-the-century assumption that Indian reservations were a
thing of the past,” many surplus land Acts did not clearly convey
“whether opened lands retained reservation status or were divested
of all Indian interests.”
Solem, supra, at 468. For that
reason, our precedents also look to any “unequivocal evidence” of
the contemporaneous and subsequent understanding of the status of
the reservation by members and nonmembers, as well as the United
States and the State of Nebraska.
South Dakota v.
Yankton
Sioux Tribe, 522 U. S. 329, 351 (1998) .
A
As with any other question of statutory
interpretation, we begin with the text of the 1882 Act, the most
“probative evidence” of diminishment.
Solem,
supra,
at 470; see,
e.g., United States v.
Ron Pair
Enterprises, Inc., 489 U. S. 235, 241 (1989) (“The task of
resolving the dispute over the meaning of [a statutory text] begins
where all such inqui-ries must begin: with the language of the
statute itself ”). Common textual indications of Congress’
intent to diminish reservation boundaries include “[e]xplicit
reference to cession or other language evidencing the present and
total surrender of all tribal interests” or “an unconditional
commitment from Congress to compensate the Indian tribe for its
opened land.”
Solem, supra, at 470. Such language “providing
for the total surrender of tribal claims in exchange for a fixed
payment” evinces Congress’ intent to diminish a reservation,
Yankton Sioux,
supra, at 345, and creates “an almost
insurmountable presumption that Congress meant for the tribe’s
reservation to be diminished,”
Solem,
supra, at
470–471. Similarly, a statutory provision restoring portions of a
reservation to “the public domain” signifies diminishment.
Hagen, 510 U. S.
, at 414. In the 19th century,
to restore land to the public domain was to extinguish the land’s
prior use—its use, for example, as an Indian reservation—and to
return it to the United States either to be sold or set aside for
other public purposes.
Id., at 412–413.
The 1882 Act bore none of these hallmarks of
diminishment. The 1882 Act empowered the Secretary to survey and
appraise the disputed land, which then could be purchased in
160-acre tracts by nonmembers. 22Stat. 341. The 1882 Act states
that the disputed lands would be “open for settlement under such
rules and regulations as [the Secretary of the Interior] may
prescribe.”
Ibid. And the parcels would be sold piecemeal in
160-acre tracts.
Ibid. So rather than the Tribe’s receiving
a fixed sum for all of the disputed lands, the Tribe’s profits were
entirely dependent upon how many nonmembers purchased the appraised
tracts of land.
From this text, it is clear that the 1882 Act
falls into another category of surplus land Acts: those that
“merely opened reservation land to settlement and provided that the
uncertain future proceeds of settler purchases should be applied to
the Indians’ benefit.”
DeCoteau v.
District County Court
for Tenth Judicial Dist., 420 U. S. 425 ,448 (1975). Such
schemes allow “non-Indian settlers to own land on the reservation.”
Seymour v.
Superintendent of Wash. State
Penitentiary, 368 U. S. 351, 356 (1962) . But in doing so,
they do not diminish the reservation’s boundaries.
Our conclusion that Congress did not intend to
diminish the reservation in 1882 is confirmed by the text of
earlier treaties between the United States and the Tribe. See
Mattz v.
Arnett, 412 U. S. 481, 504 (1973)
(comparing statutory text to earlier bills). In drafting the 1882
Act, Congress legislated against the backdrop of the 1854 and 1865
Treaties—both of which terminated the Tribe’s jurisdiction over
their land “in unequivocal terms.”
Ibid. Those treaties
“ced[ed]” the lands and “reliquish[ed]” any claims to them in
exchange for a fixed sum. 10Stat. 1043–1044; see also 14Stat. 667
(“The Omaha tribe of Indians do hereby
cede, sell, and
convey to the United States a tract of land from the north side
of their present reservation . . . ” (emphasis
added)). The 1882 Act speaks in much different terms, both in
describing the way the individual parcels were to be sold to
nonmembers and the way in which the Tribe would profit from those
sales. That 1882 Act also closely tracks the 1872 Act, which
petitioners do not contend diminished the reservation. The change
in language in the 1882 Act undermines petitioners’ claim that
Congress intended to do the same with the reservation’s boundaries
in 1882 as it did in 1854 and 1865. Petitioners have failed at the
first and most important step. They cannot establish that the text
of the 1882 Act evinced an intent to diminish the reservation.
B
We now turn to the history surrounding the
passage of the 1882 Act. The mixed historical evidence relied upon
by the parties cannot overcome the lack of clear textual signal
that Congress intended to diminish the reservation. That historical
evidence in no way “
unequivocally reveal[s] a widely held,
contemporaneous understanding that the affected reservation would
shrink as a result of the proposed legislation.”
Solem, 465
U. S., at 471 (emphasis added); see also
Exxon Mobil
Corp. v.
Allapattah Services, Inc., 545
U. S. 546, 568 (2005) (describing the “often murky, ambiguous,
and contradictory” nature of extratextual evidence of congressional
intent).
Petitioners rely largely on isolated statements
that some legislators made about the 1882 Act. Senator Henry Dawes
of Massachusetts, for example, noted that he had been “assured that
[the 1882 Act] would
leave an ample reservation” for the
Tribe. 13 Cong. Rec. 3032 (1882) (emphasis added). And Senator John
Ingalls of Kansas observed “that this bill practically breaks up
that portion at least of the reservation which is to be sold, and
provides that it shall be disposed of to private purchasers.”
Id., at 3028. Whatever value these contemporaneous floor
statements might have, other such statements support the opposite
conclusion—that Congress never intended to diminish the
reservation. Senator Charles Jones of Flor-ida, for example, spoke
of “white men purchas[ing] titles to land
within this
reservation and settl[ing] down with the Indians on it.”
Id., at 3078 (emphasis added). Such dueling remarks by
individual legislators are far from the “clear and plain” evidence
of diminishment required under this Court’s precedent.
Yankton
Sioux, 522 U. S.
, at 343 (internal quotation marks
omitted); see also
Solem, 465 U. S., at 478 (noting
that it was unclear whether statements referring to a
“ ‘reduced reservation’ ” alluded to the “reduction in
Indian-owned lands that would occur once some of the opened lands
were sold to settlers or to the reduction that a complete cession
of tribal interests in the opened area would precipitate”).
More illuminating than cherry-picked statements
by individual legislators would be historical evidence of “the
manner in which the transaction was negotiated” with the Omaha
Tribe.
Id., at 471.[
1]
In
Yankton Sioux, for example, recorded negotiations between
the Commissioner of Indian Affairs and leaders of the Yankton Sioux
Tribe unambiguously “signaled [the Tribe’s] understanding that the
cession of the surplus lands dissolved tribal governance of the
1858 reservation.” 522 U. S., at 353. No such unambiguous
evidence exists in the record of these negotiations. In particular,
petitioners’ reliance on the remarks of Representative Edward
Valentine of Nebraska, who stated, “You cannot find one of those
Indians that does not want the western portion sold,” and that the
Tribe wished to sell the land to those who would “ ‘reside
upon it and cultivate it’ ” so that the Tribe members could
“benefit of these improvements,” 13 Cong. Rec. 6541, falls short.
Nothing about this statement or other similar statements
unequivocally supports a finding that the existing boundaries of
the reservation would be diminished.
C
Finally, we consider both the subsequent
demographic history of opened lands, which serves as “one
additional clue as to what Congress expected would happen once land
on a particular reservation was opened to non-Indian settlers,”
Solem, 465 U. S., at 472, as well as the United States’
“treatment of the affected areas, particularly in the years
immediately following the opening,” which has “some evidentiary
value,”
id., at 471. Our cases suggest that such evidence
might “reinforc[e]” a finding of diminishment or nondiminishment
based on the text.
Mattz, 412 U. S., at 505; see also,
e.g., Rosebud Sioux Tribe v.
Kneip, 430 U. S.
584 –605 (1977) (invoking subsequent history to reject a
petitioner’s “strained” textual reading of a congressional Act).
But this Court has never relied solely on this third consideration
to find diminishment.
As petitioners have discussed at length, the
Tribe was almost entirely absent from the disputed territory for
more than 120 years. Brief for Petitioners 24–30. The Omaha Tribe
does not enforce any of its regulations—including those governing
businesses, fire protection, animal control, fireworks, and
wildlife and parks—in Pender or in other locales west of the
right-of-way. 996 F. Supp. 2d, at 832. Nor does it maintain an
office, provide social services, or host tribal celebrations or
ceremonies west of the right-of-way.
Ibid.
This subsequent demographic history cannot
overcome our conclusion that Congress did not intend to diminish
the reservation in 1882. And it is not our role to “rewrite” the
1882 Act in light of this subsequent demographic history.
DeCoteau, 420 U. S., at 447. After all, evidence of the
changing demographics of disputed land is “the least compelling”
evidence in our diminishment analysis, for “[e]very surplus land
Act necessarily resulted in a surge of non-Indian settlement and
degraded the ‘Indian character’ of the reservation, yet we have
repeatedly stated that not every surplus land Act diminished the
affected reservation.”
Yankton Sioux, 522 U. S., at
356
.
Evidence of the subsequent treatment of the
disputed land by Government officials likewise has “limited
interpretive value.”
Id., at 355. Petitioners highlight
that, for more than a century and with few exceptions, reports from
the Office of Indian Affairs and in opinion letters from Government
officials treated the disputed land as Nebraska’s. Brief for
Petitioners 24–38; see also 996 F. Supp. 2d, at 828, 830. It was
not until this litigation commenced that the Department of the
Interior definitively changed its position, concluding that the
reservation boundaries were in fact not diminished in 1882. See
id., at 830–831. For their part, respondents discuss
late-19th-century statutes referring to the disputed land as part
of the reservation, as well as inconsistencies in maps and
statements by Government officials. Brief for Respondent Omaha
Tribal Council et al. 45–52; Brief for United States 38–52;
see also 996 F. Supp. 2d, at 827, 832–833. This “mixed record” of
subsequent treatment of the disputed land cannot overcome the
statutory text, which is devoid of any language indicative of
Congress’ intent to diminish.
Yankton Sioux,
supra,
at 356.
Petitioners’ concerns about upsetting the
“justifiable expectations” of the almost exclusively non-Indian
settlers who live on the land are compelling,
Rosebud Sioux,
supra, at 605, but these expectations alone, resulting from
the Tribe’s failure to assert jurisdiction, cannot diminish
reservation boundaries. Only Congress has the power to diminish a
reservation.
DeCoteau, 420 U. S., at 449. And though
petitioners wish that Congress would have “spoken differently” in
1882, “we cannot remake history.”
Ibid.
* * *
In light of the statutory text, we hold that
the 1882 Act did not diminish the Omaha Indian Reservation. Because
petitioners have raised only the single question of
diminishment,[
2] we express no
view about whether equitable considerations of laches and
acquiescence may curtail the Tribe’s power to tax the retailers of
Pender in light of the Tribe’s century-long absence from the
disputed lands. Cf.
City of Sherrill v.
Oneida Indian
Nation of N. Y., 544 U. S. 197 –221 (2005).
The judgment of the Court of Appeals for the
Eighth Circuit is affirmed.
It is so ordered.
