Nebraska v. Parker (14-1406)

argument 14-1406

Nebraska v. Parker

Supreme Court of the United States 58 min 7 speakers 8 chapters transcribed 5 days ago official recording ↗

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What historical facts does the Court consider when deciding if the Omaha reservation was diminished?

John G. Roberts 0:00

We'll hear argument first this morning, Case 14-1406, Nebraska v. Parker. Mr. Smith.

Unknown 0:08

MR. Mr. Chief Justice, and may it please the Court, for over a century, the following three things have been true in the disputed area. First, the non-Indian population has always been greater than 98 percent. Second, the tribe never exercised jurisdiction. And third, by contrast, the state of Nebraska has governed the disputed area. The story of the disputed area is that of a land that long ago lost its Indian character, if it ever had any. The three things I mentioned at the outset happened for a reason. They happened because it was the intent of Congress in the context of the times of the 1882 Act that the disputed area would be diminished from the reservation.

Elena Kagan 1:01

If I understand your position correctly, you're not asking us to overrule Solum?

Unknown 1:07

No. No, Your Honor, we are not asking you to overrule Solum. In fact, what we are asking the Court to do is to apply the entire Solum rule and in particular, the compelling third factor of the subsequent circumstances of the land's jurisdictional history.

Sonia Sotomayor 1:27

From what you just said and from your brief, I gathered, perhaps I was wrong, that you are arguing for a de facto diminishment test. That is, you pointed out the area has been overwhelmingly populated by non-Indians. And they haven't attempted before to exercise governing authority?

Unknown 1:51

MR. Your Honor, we think the de facto diminishment does fit within the third element of the Solemn Test, which is the subsequent circumstances of — after the enactment. And so — Obviously, we would not be opposed to the Court concluding and reaching this decision on the grounds of de facto diminishment, but we also think this case fits within this Court's precedent under Solum, which would involve, in our view, the third element of the test is particularly strong and compelling in this case, while in Solum, in that particular case, it was, I guess I would call fairly easy to distinguish because as Solom talks about, as far as the events, what took place after the act, the focus should be, if you're looking at intent of Congress, you should be looking at

Unknown 2:55

what Congress is doing after the act that is reflective of not understanding essentially that they've diminished the reservation? JUSTICE

Stephen G. Breyer 3:03

BREYER- It's a different Congress. I mean, to say, you know, a later Congress did thus and so and therefore the earlier Congress, when they enacted a particular statute, must have diminished, that doesn't make any sense. And moreover, if the third factor is dispositive, as you assert, you would not — we would not need the de facto diminishment doctrine, whereby by a sort of, you know, adverse possession of a jurisdiction, whether it's Indians or even a state that used to have — jurisdiction over a particular area has forfeited it by long, long accepted usage to the contrary. If that is true, and if the third factor is as important as you say, we would not need that doctrine. We would just find diminishment.

Unknown 4:02

Well, and that would be consistent with the concept that if a party just, if they belatedly assert a claim to having sovereign authority over this, as in this case it was over 100 and some years after the land was opened for settlement, that there — at least the Sherrill case, some of the principles in that case would be supportive of de facto

Sonia Sotomayor 4:26

diminishment. JUSTICE KAGAN. The Sherrill case didn't involve the diminishment. Diminishment was not an issue.

Unknown 4:35

That is true. What I was referring to was the principle, at least it's cited in the case, as far as a longstanding assumption of jurisdiction by the state over an area that is primarily non-Indian in population land creates justifiable expectations. And if they did have any sovereignty over it, they had long since forfeited. But that's not what

Stephen G. Breyer 5:02

you're arguing here. I understand you're arguing — Diminishment, not adverse possession, so to speak.

Unknown 5:10

We are arguing that it is no longer part of the reservation. We are not saying — court could not find it under the de facto, but we do think the facts of this case does fit within SOLEM, and if the court applies the SOLEM test, the state should prevail in this case, which is — You don't —