Nebraska v. Parker , 136 S. Ct. 1072 ( 2016 )

(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NEBRASKA ET AL. v. PARKER ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 14–1406. Argued January 20, 2016—Decided March 22, 2016
In 1854, the Omaha Tribe entered into a treaty with the United States
agreeing to establish a 300,000-acre reservation and to “cede” and
“forever relinquish all right and title to” its remaining land in pre-
sent-day Nebraska for a fixed sum of money. In 1865, the Omaha
Tribe again entered into a treaty with the United States agreeing to
“cede, sell, and convey” land for a fixed sum. When, in 1872, the
Tribe sought to sell more of its land to the United States, Congress
took a different tack. In lieu of a fixed-sum purchase, Congress au-
thorized the Secretary of the Interior to survey, appraise, and sell
tracts of reservation land to western settlers and to deposit any pro-
ceeds from the land sales in the U. S. Treasury for the Tribe’s benefit.
Congress took the same approach in 1882 when it passed the Act in
question. That Act authorized the Secretary of the Interior to survey,
appraise, and sell roughly 50,000 acres of reservation land lying west
of a railroad right-of-way. W. E. Peebles purchased a tract under the
terms of the 1882 Act and established the village of Pender.
In 2006, the Tribe amended its Beverage Control Ordinance and
sought to subject Pender retailers to the amended ordinance. See 18
U. S. C. §1161 (permitting tribes to regulate liquor sales on reserva-
tion land and in “Indian country”). Pender and its retailers brought a
suit against the Tribe in Federal District Court to challenge the ordi-
nance, and the State intervened on their behalf. They alleged that
they were not within the reservation boundaries or in Indian country
and therefore could not be subject to the ordinance. They sought de-
claratory relief and a permanent injunction prohibiting the Tribe
from asserting its jurisdiction over the disputed land. Concluding
that the 1882 Act did not diminish the Omaha Reservation, the Dis-
trict Court denied relief, and the Eighth Circuit affirmed.
2 NEBRASKA v. PARKER
Syllabus
Held: The 1882 Act did not diminish the Omaha Indian Reservation.
Pp. 5–12.
(a) Only Congress may diminish the boundaries of an Indian reser-
vation, and its intent to do so must be clear. Solem v. Bartlett, 465
U. S. 463, 470. This Court’s framework for determining whether an
Indian reservation has been diminished is well settled and starts
with the statutory text. Hagen v. Utah, 510 U. S. 399, 411. Here, the
1882 Act bears none of the common textual indications that express
such clear intent, e.g., “[e]xplicit reference to cession or other lan-
guage evidencing the present and total surrender of all tribal inter-
ests” or “an unconditional commitment from Congress to compensate
the Indian tribe for its opened land,” Solem, supra, at 470. The Act’s
language opening the land “for settlement under such rules and regu-
lations as [the Secretary] may prescribe,” 22 Stat. 341, falls into a
category of surplus land acts that “merely opened reservation land to
settlement,” DeCoteau v. District County Court for Tenth Judicial
Dist., 420 U. S. 425, 448. A comparison of the text of the 1854 and
1865 treaties, which unequivocally terminated the Tribe’s jurisdiction
over its land, with the 1882 Act confirms this conclusion. Pp. 5–8.
(b) In diminishment cases, this Court has also examined “all the
circumstances surrounding the opening of a reservation,” Hagen, su-
pra, at 412, including the contemporaneous understanding of the
Act’s effect on the reservation. Here, such historical evidence cannot
overcome the text of the 1882 Act, which lacks any indication that
Congress intended to diminish the reservation. Dueling remarks by
legislators about the 1882 Act are far from the unequivocal evidence
required in diminishment cases. Pp. 8–10.
(c) Finally, and to a lesser extent, the Court may look to subse-
quent demographic history and subsequent treatment of the land by
government officials. See Solem, supra, at 471–472. This Court has
never relied solely on this third consideration to find diminishment,
and the mixed record of subsequent treatment of the disputed land in
this case cannot overcome the statutory text. Petitioners point to the
Tribe’s absence from the disputed territory for more than 120 years,
but this subsequent demographic history is the “least compelling” ev-
idence in the diminishment analysis. South Dakota v. Yankton Sioux
Tribe, 522 U. S. 329, 356. Likewise, evidence of the subsequent
treatment of the disputed land by government officials has similarly
limited value. And, while compelling, the justifiable expectations of
the non-Indians living on the land cannot alone diminish reservation
boundaries. Pp. 10–12.
(d) Because the parties have raised only the single question of di-
minishment, the Court expresses no view about whether equitable
considerations of laches and acquiescence may curtail the Tribe’s
Cite as: 577 U. S. ____ (2016) 3
Syllabus
power to tax the retailers of Pender. Cf. City of Sherrill v. Oneida
Indian Nation of N. Y., 544 U. S. 197, 217–221. P. 12.
774 F. 3d 1166, affirmed.
THOMAS, J., delivered the opinion for a unanimous Court.
Cite as: 577 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
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 Reserva-
tion 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
2 NEBRASKA v. PARKER
Opinion of the Court
United States to create a 300,000-acre reservation. Treaty
with the Omahas (1854 Treaty), Mar. 16, 1854, 10 Stat.
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 creat-
ing a reservation for the Winnebagoes. Treaty with the
Omaha Indians (1865 Treaty), Mar. 6, 1865, 14 Stat. 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 por-
tions 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 sur-
vey, appraise, and sell up to 50,000 acres on the western
side of the reservation “to be separated from the remain-
ing 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, 17 Stat. 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
Cite as: 577 U. S. ____ (2016) 3
Opinion of the Court
by the Sioux City and Nebraska Railroad Company. Act of
Aug. 7, 1882 (1882 Act), 22 Stat. 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 ex-
penses 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 hold-
ing it in trust on behalf of the member and his heirs for 25
years. §6, 22 Stat. 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 non-
4 NEBRASKA v. PARKER
Opinion of the Court
members 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 plain-
tiffs, 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
Cite as: 577 U. S. ____ (2016) 5
Opinion of the Court
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 prohib-
iting 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 Dis-
trict 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’ re-
quest 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 non-
members 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 dimin-
ishment is, of course, the statutory language used to open
6 NEBRASKA v. PARKER
Opinion of the Court
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 assump-
tion 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 evi-
dence” of the contemporaneous and subsequent under-
standing 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 dimin-
ish 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 dimin-
ished,” Solem, supra, at 470–471. Similarly, a statutory
provision restoring portions of a reservation to “the public
Cite as: 577 U. S. ____ (2016) 7
Opinion of the Court
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 exam-
ple, 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 diminish-
ment. The 1882 Act empowered the Secretary to survey
and appraise the disputed land, which then could be pur-
chased in 160-acre tracts by nonmembers. 22 Stat. 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 juris-
8 NEBRASKA v. PARKER
Opinion of the Court
diction 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. 10 Stat.
1043–1044; see also 14 Stat. 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 peti-
tioners’ 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 im-
portant 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 pro-
posed 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 extratex-
tual 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
Cite as: 577 U. S. ____ (2016) 9
Opinion of the Court
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 duel-
ing 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 state-
ments 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 exam-
ple, recorded negotiations between the Commissioner of
——————
1 Until this Court’s 1903 decision in Lone Wolf v. Hitchcock, 187 U. S.
553, 566–568, the question whether Congress could unilaterally abro-
gate treaties with tribes and divest them of their reservation lands was
unsettled. Thus, what the tribe agreed to has been significant in the
Court’s diminishment analysis. See, e.g., South Dakota v. Yankton
Sioux Tribe, 522 U. S. 329, 351–353 (1998). Historical evidence of how
pre-Lone Wolf sales of lands were negotiated has been deemed compel-
ling, whereas historical evidence of negotiations post-Lone Wolf might
be less so. See, e.g., Hagen v. Utah, 510 U. S. 399, 416–417 (1994).
10 NEBRASKA v. PARKER
Opinion of the Court
Indian Affairs and leaders of the Yankton Sioux Tribe
unambiguously “signaled [the Tribe’s] understanding that
the cession of the surplus lands dissolved tribal govern-
ance of the 1858 reservation.” 522 U. S., at 353. No such
unambiguous evidence exists in the record of these negoti-
ations. 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 bounda-
ries 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 dimin-
ishment 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, 604–605 (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—
Cite as: 577 U. S. ____ (2016) 11
Opinion of the Court
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 reserva-
tion.” Yankton Sioux, 522 U. S., at 356.
Evidence of the subsequent treatment of the disputed
land by Government officials likewise has “limited inter-
pretive 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 Nebras-
ka’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 res-
ervation, as well as inconsistencies in maps and state-
ments 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
12 NEBRASKA v. PARKER
Opinion of the Court
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 dimin-
ishment,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, 217–221 (2005).
The judgment of the Court of Appeals for the Eighth
Circuit is affirmed.
It is so ordered.
——————
2 See, e.g., Plaintiff’s Brief in Support of Motion for Summary Judg-
ment in No. 4:07–cv–03101 (D Neb.), pp. 31, 38 (defendants cannot
“impose an alcohol tax and licensing scheme outside the boundaries of
the Omaha Reservation”); Plaintiff Intervenor’s Brief in Support of
Plaintiff’s Motion for Summary Judgment in No. 4:07–cv–03101 (D
Neb.), pp. 1–2; see also Smith v. Parker, 996 F. Supp. 2d 815, 834 (Neb.
2014) (“In this case, I must decide whether Congress’s Act of August 7,
1882 . . . diminished the boundaries of the Omaha Indian Reservation,
or whether the Act simply permitted non-Indians to settle within
existing Omaha Reservation boundaries”); Smith v. Parker, 774 F. 3d
1166, 1167 (CA8 2014) (“Appellants challenge the district court’s
determination that the Omaha Indian Reservation was not diminished
by an 1882 act of Congress”).