Legal Case Summary

We'll hear argument first this morning, case 14-0-6, Nebraska versus Parker. Mr. Smith? 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%. 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 content or the intent of Congress in the context of the times of the 1882 Act that the disputed area would be diminished from the reservation. If I understand your position correctly, you're not asking us to overrule Solum. 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. As a matter of fact, from what you just said, and from your brief, I gathered perhaps I was wrong that you are arguing for a day 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. Your Honor, we thank the de facto diminishment does fit within the third element of the Solum 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 the Solum talks about, as far as the events, what took place after the act, the focus should be, if you are looking at a 10 of Congress, you should be looking at what Congress is doing after the act that is reflective of not understanding essentially that they have diminished the reservation. It's a different Congress. I mean, to say, you know, a later Congress did not 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 a 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 a diminishment

. 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 open for settlement, that there, at least the Cheryl case, some of the principles in that case would be supportive of de facto diminishing. That's not true. The case didn't involve the diminishment. The diminishment was not an issue. That is true. What I'm referring to was the principle, at least the cited in the case, as far as a long standing assumption of jurisdiction by the State over an area that is primarily non-Indian and population land creates justifiable expectations. And if they did have any sovereignty over it, they had long since forfeited. I mean, that's not what you're arguing here. I understand you're arguing diminishment, not adverse possession, so to speak. We are arguing that it is no longer part of the reservation. We are not saying it, Court could not find it under the de facto, but we do think the facts of this case does fit within Solum and if the Court applies to Solum test, the State should prevail in this case, which you don't. The other side says you did not raise a city of Cheryl argument. Do you agree with that? We have a lot of the arguments you make seem to sound more in a city of Cheryl type proposition, but you haven't raised that argument, have you? I believe in paragraph or pages 22, I think it's 25 of our brief. If we are at least citing Cheryl as precedent for the principle of loss of sovereignty, loss of sovereign control by the fact that the State has long exercised the jurisdiction, but are both of these? What Solum said, Solum did bring up de facto diminishment. This is on page 417, one of the opinions. It says on a more pragmatic level, we have recognized that who actually moved on to the open reservation lands is also relevant to deciding whether a surplus land act diminished a reservation, where non-Indian settlers flooded into the opening portion of the reservation, and the area has long since lost its Indian character. We have acknowledged that de facto, if not de jure, diminishment may have occurred. This was the theme that was picked up in Cheryl, but it's stated in Solum. Yes. Yes. May I ask a preliminary question? We're talking about a liquor license or alcoholic beverage license and a sales tax on alcoholic beverages. Does the State itself impose such requirements that is a licensing requirement and a sales tax? The State itself does impose liquor license requirements. They can't, State and Nebraska have sales taxes, yes, Your Honor. This tax was not imposed by the tri, a quad tri. This was a statute of Congress that permitted the Indian's to do this, correct? My recollection was the Interior Department approved the tribe's request to have such an ordinance, and then the tribe's ordinance then was in a fire

. If I ask jurisdiction, tribes can't tax it will. They have to get approval for taxation, correct from the Federal Government? Your point would be correct, Your Honor. The tribe has to request it. They have to have an ordinance. It has to be approved by agency of the Federal Government. Yes, that is true, but it still involves granting authority to another task. What else do you lose if this ruling is against you? We've already circumscribed the powers of the tribes on their own reservations greatly. So what powers do you lose? You've already seated to the Federal Government criminal prosecution powers, so you're not losing out on that. What are you losing out on? Well, Your Honor, I take this would be in the context of what are the justifiable expectations of those who live in the disputed area? What would be significantly disrupted as far as their justifiable expectations? I would start off with the first principle is just who governs you. You would be introducing an additional sovereign, the tribe, into an area of which for over 130 years, the tribe has not exercised any sovereign authority at all. Can I take you back to Justice Scalia's question? You know, because usually, at least now, we don't think much of subsequent history of any kind. Now, maybe they thought a little bit more highly of it, and the days when Solem was written. But now, it would, it's pretty much of a stretch to use subsequent legislative history or subsequent history generally, one where dealing with interpreting a statute. And I'm just wondering, is there a reason why it should be more credited here than in any other context? The Court's precedent, I believe, recognizes in the area of land surplus acts that the Indian land surplus acts are a unique animal from your normal legislative analysis. And that would be because in the context of the times back before the turn of, I guess, two centuries ago in the 1800s, Congress would be doing land surplus acts in which the concept of, are we diminishing or not diminishing a reservation was really nothing that Congress thought of. You put that on the basic principle that only Congress can diminish a reservation, it then becomes the problem of how do we determine what Congress intended. When, frankly, the reality of the Court's precedent is, it's something that the Court or Congress generally did not think of, they were inconsistent. And so the, the soleum test really evolves out of an attempt to determine what was the intent of Congress at the time, which then is why legislative history or subsequent circumstances takes on greater significance. And when, when did this diminishment idea as a legal concept? You said it, when Congress acted, it weren't thinking in terms of diminishment. When did diminishment become the big question? Well, it becomes, it becomes a big question when the issue is, is it part of the reservation. But at what point in time, because you, I thought you just made this statement that in 1882, Congress wasn't thinking in terms of diminishment. It becomes a big issue when the issue is who, frankly, who has authority to govern is this still part of the reservation or not? Does the tribe have any authority over this area at all? And if it's part of the reservation, it has authority acknowledged. It is limited authority, but it would have authority over it because if it's part of the reservation. Now, we get on that question as a practical matter. If the tribe were to exercise the, go to the outer limits of its authority, what could it do in the city of Pender? Well, sides imposing this, this liquor tax

. Well, what it, what it can do, it would, it can displace state jurisdiction over environmental regulations, that this is a rural farming area. The environment is very important. State regulation is very important. It's what the people have expected, and I could give an example if you're a farmer and the guy across the road drops a load of manure in your pond that's being used, feed cattle. You call the state of Nebraska, you want them to come out and you want them to do something. Those regulations would be replaced. You call the state of Nebraska and the responses. I'm sorry you've called wrong number. What about municipalities? What about self-governing, or more or less self-governing municipalities? Are there any of those within this area? Yes, there are self-governing municipalities, there are villages, county, obviously. What would happen to them? Would they continue to exist? They would continue to exist, but you're going to have what I would say, the ambiguity of the extent of their authority versus the extent of the tribe's authority. You would have this ambiguity in which is going to be, I mean, people for 130 years, if you've expected the State of Nebraska, your City Council, to be exercising local control and you bring in this outside authority. Why would they continue to exist? I mean, aren't they creatures of the State? They are, can the State create the municipalities on Indian reservations? I believe the State can create the municipalities to issue as what authority they have when you also have it on tribal land because the tribe has- the environment and in all sorts of things. Have they threatened to take away the State's activities in this village? Not yet. The issue is going to be- This tribe is awfully small. You think they're going to have the power to implement all of these things that you are fearful to do substitute services to- they can't tax for it without the government's permission. So how are they going to do all these- and why would they do all these horrible things? Well, I don't think it's- I mean, it's nice to have the power of taxation, but they still need the government's approval. I don't think it's simply the test of being what- what will they do? I think the issue is once they have the authority- Well, the question is, City of Cheryl says if they try to exercise their powers in a way that's harmful to settled expectations, they might have a remedy in the wall. That's what City of Cheryl says, but that didn't take away. The City of Cheryl didn't say the Indians were at Sovereign. It just said they can't exercise the sovereignty. It didn't say it was a diminishment. What they said is they couldn't exercise it because of latches. Well, if you say we've introduced a tribe with- that in theory has authority, but because they've never exercised it, they really have no authority that- that by itself I would say is the inherent ambiguity of what is actually the limits of their authority. You get litigations that start disputing whether like under the Montana factors is far as they could regulate conduct. Threatens has some direct effect on their tribe's integrity, economic security, health and welfare

. That's very, very broad. And to me, the answer would be simply to say this is not part of the reservation rather than every case that comes up when we have litigation and then decide while you're stopped from doing that. That would- That would have- That's the tribe exercise authority in the part of the reservation. That's not an issue here. Yes. The tribe absolutely exercises authority in the part that's not part of the reservation. They've stipulated to that that on the part that's not part of the reservation, that they- that they have ordinances, they provide services, that they enforce their ordinances on the east- in the eastern part of the railroad, which is clearly within the tribe, and not on the west. So they have had no presence and they've acknowledged that. They have no tribal offices, schools, industries, businesses. They've admitted that all of these governmental services are provided by state and local agencies not the tribe. That's the public expectation. That's what they expect is- In the- in the western part. In the western part. But what about in the eastern part? I'm sorry, and if I wasn't clear- In the eastern part, the tribe does have its ordinances, it does provide services, it does enforce its ordinances and laws in the eastern part, but not in the western part, never has. All of those services are provided by the State of Nebraska. The State of Nebraska, you name it in the form of government services, have been provided by the State of Nebraska. Its municipalities not by the tribe. This comes in, we come in, we're going to tax you, we're going to take the money, and maybe you get services, maybe you don't. And in fact, the idea of local control is if the people in the disputed area are unhappy about what the tribe is doing, unlike if it's their local city council, they don't get to vote, they don't get to remove them from office. Mr. Smith, I can understand why people might be concerned for all the reasons that you're talking about. We do have pretty clear and subtle law in this area with respect to diminishment. That we've said only Congress can diminish, that the idea is that we're supposed to look to congressional intent. And you say Congress didn't really think in these terms, and there's something that's fair about that. But Congress did use very different language in different ones of these acts

. And we've looked to that language as a pretty good guide to suggesting which ones diminish and which ones do not. And it seems as though the language here in the act in which we're concerned, it's none of the language that would suggest that Congress diminished this act. So I was wondering if you could talk to that. Is there anything in the language of this statute that suggests a diminishment, any of the usual kind of we seed everything, we relinquish everything? Like what's the best you can do on that? I appreciate that, Your Honor. And yes, the standard diminishment test starts with looking at the act as their language in the act. Hagen and Solen both specifically say no particular form of words are required. What we do have in this act is we've got two areas of the reservation. The area west of the reservation, it's a very well-defined area. It doesn't create a checkerboard effect. What is significant is the different? The act treats the area west of the railroad different than the area east of the railroad. Specifically, and this is a major distinction in Solen. There is nothing reserved for the tribe in the land on the west of the railroad, the disputed area. There is nothing reserved in the bullpen, so to speak. There is no reservation of land use rights. There is no reservation of land use rights for schools, agency, tribal religious purposes, no reservation in mineral rights. In Solen, those are considered significant factors because what you end up with is that the tribal headquarters, its governmental headquarters, ended up in Solen being in the disputed area. Do you agree that City of Cheryl did nothing more than deny particular equitable relief and did not repudiate the proposition of Indian sovereignty over the land in question? Because if you agree with that, then I guess I'm more inclined to give greater weight to the third factor, but if you disagree with it, as I think you ought to, then I don't see why we need the third factor. Well, City of Cheryl, it does have the element of the tribe trying to unilaterally just by the way. It says that the tribe doesn't have sovereignty is what it says. It says that the tribe doesn't have sovereignty just to buy land back and get back sovereignty that had long ago lost. And it applies equitable principles to say you're- Sotomayor to say that the tribe does not have sovereignty. Yes, and I think it's perfectly reasonable for the Court to reach that conclusion with a land which long ago lost its Indian character. Long ago, they've never exercised anti-soverty and then show up after the public, the descendants, everyone who's lived there and after 130 years, you 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

. If we don't like what we're going to do, I guess we can complain to somebody, but we can't recall members of the tribal council. It's a recognition that those things happens because that's what Congress intended to have happen and as Solum looks in the context of the times, as far as that legislative history or what happened afterwards, Solum emphasizes the decades of media immediately after the act. And in the decades immediately after this act, we don't have what Solum talks about the rife with inconsistencies. What we have is a total 100% consistent record that everyone understood. This land was diminished. It's not part of the reservation. Congress in 86 years later, and I understand the point about subsequent congressional intent, but at least they did not take an action that would reflect Congress didn't understand what they did. Kagan-Mr. Smith, on the city of Sherrill point, the Chief Justice asked you before. Do you agree whether this was waived? And you said, well, we cite city of Sherrill on page 25 or something like that. Below, what was the status of the city of Sherrill argument in the lower courts? The argument was made as far as that de facto diminishment can be found. The eight-circuit opinion is what I would call a significant summary. Kagan-Mr. Smith, I'm not sure quite what that means. Does that mean de facto diminishment under Solum, or does that mean Solum, or does that mean that you talked about city of Sherrill as an independent ground? We talked about de facto diminishment as an independent ground. I didn't argue it in the, but my recollection as Sherrill is not cited for, as authority for that, but we did bake the argument that it was de facto because Solum does say we have recognized de facto diminishment. Mr. Chief Justice, if I may reserve the remainder of my time if there's no further questions. Thank you. Mr. Clement? Mr. Chief Justice, and may it please the Court. The question in this case is whether an 1882 Act of Congress diminished the Omaha Reservation and redrew its boundaries. We think multiple considerations make clear that the Act of Congress did not diminish the reservation, but simply opened up a portion of the reservation for settlement within the existing boundaries. Now, the first and probably most significant factor is that the text of the statute uses the classic language this Court has identified for opening up a reservation for settlement without creating a diminishment

. But secondly, and I think very telling and specific to this statute, at the same time there is no language in the statute that supports a finding of diminishment, I think there is language in the statute, specifically the final proviso of Section 8, that is very inconsistent with the idea that what Congress did is draw a new Western boundary to the reservation, because that proviso gave tribal members the right to take their allotments east or west of the right of way. And the record reflects that many, that a number of members of the tribe took their allotments west of the right of way, and importantly, a number of them took their allotments that actually straddle the right of way. Well, a number, what is the number? There were 15, I think, well the party is confused, between 10 and 15 about 850 to 900 acres. But I don't think the fact of how many that took allotments. How many tribal members? I think there were roughly 300 plus allotments, so it was, you know, 3 percent. But I think the fact that they were allowed, even though there are small numbers, I'm not trying to make a volume argument here, I'm making an argument that if what Congress just did was draw a new Western boundary to the reservation, it would have been very odd to allow tribal members to take their allotments off the reservation. And maybe otters still to allow them to take an allotment that essentially was bisected by the new boundary. Why would that be odd? They could have taken allotments anywhere, couldn't they? Anywhere. Anywhere it was opened up, couldn't they have chosen to purchase their allotments outside the reservation? I don't think that would have been a logical assumption given the conception of the time where I think Congress was thinking in the main that tribal ownership or Indian ownership went with the reservation status. And I think, again, if you think of this as being a surplus land act that simply opens the reservation up, a portion of it, to settlement, then it makes perfect sense to say that tribal members can take their allotments anywhere on the reservation. But if you think you've really drawn a new boundary to the reservation, then I think it's more than passing strange that you can take allotments to the west of it, or you can take an allotment and the new border is smack dabbed through the middle of it. That's the answer. I don't understand your answer to the Chief Justice's question. An Indian who wanted to have an allotment off the reservation and allotments were generally available could take that allotment off the reservation if the Indian chose to do so correct? No. My position is no. They couldn't. And they could take it west of the right of way. But I am saying that's how- A lot of notments were only open to non-Indians? No, no. Before any settlers, non-Indians came in, the existing tribal members were allowed to take their allotments. And they were allowed to take their allotments anywhere on the pre-existent- All right, so we're not talking about allotments open to the general population. No, no. The specific- And this is clear from the Proviso and Section 8. It's the allotment only for members of the tribe. And they can take consistent with the historical understanding and allotment anywhere on the reservation, including west of the right of way. And that seems to me to be very consistent with the idea that the right of way is an interesting thing that the tribe granted through their reservation, but it's not some new boundary

. And I think the subsequent history really supports that as well. I mean, my friend on the other side. What do you make me to comment of the language that I read from Solom itself, which seems to fit this case? Well, I take that language, Justice Ginsburg, as Justice Marshall writing for the court saying that when you're in the third factor, when you witness de facto immunity, I'm sorry, de facto sort of a diminishment, that that may ultimately support a conclusion that there was, in fact, diminishment as a matter of law. I don't take him to be opening up an entirely different route to finding immunity, a diminishment rather, that doesn't go through an act of Congress. And I think that's the only way to read the opinion as a whole. Because when the court starts the opinion, it says the very first principle in this area is that only Congress can diminish a reservation. And it's perfectly compatible with that to say that when we get to the third factor, and we're looking at all sorts of things, we'll look at settlement patterns as part of that, but I don't think it's consistent with that worldview to then say that actually the third factor is a standalone alternative route to find diminishment, not by congressional action, but by market reaction to a surplus land. Did we cite Solum in Cheryl? I don't really recall. I don't recall. If it had held that, it would have been cited, and Cheryl would not have been any big deal. Well, I thought Cheryl was a big deal. Well, I think- Justice Ginsburg wrote it. I think she thought it was a big deal. I'm not here to tell you it's not a big deal. I'm telling- I'm here to tell you two things, though. One is that Solum went out of its way to not decide the diminishment issue. So it is clearly an alternative way of thinking about the cases, and I don't think they're co-extensive, which is to say I think there could be a particular assertion of tribal authority that you might say violates city of Cheryl principles, even within an undiminished reservation. And I do think it's then critically important that my friend on the other side has not raised this argument below. I certainly did not understand it to be an independent argument in this Court. It's all well-in-good to cite the case, but that doesn't make an independent argument. Even his amic- Who thought that they wanted to bring before this Court, the City of Cheryl argument, admitted that the petitioners hadn't made a City of Cheryl argument. But Solum did talk about de facto diminishment, and it seems to me that you've got to recognize when they do that. They're talking about something other than de Jurey, in other words, pursuant to the law. It's pursuant to the facts on the ground. I understand Mr

. Chief Justice, but I think there's two ways to talk about de facto versus de Jurey. One way to talk about it is that there are two totally alternative retens. Another way is to say de facto diminishment means the settlement patterns, and that's something that can inform the ultimate conclusion of whether there's diminishment. And I really think the Court in Solum was using it in that passage in the latter respect. And I think that's the only way to make sense of the case as a whole. It's presented before the Court turns to apply the principles. Sotomayor, you're right. That's right. It's part of the general principles of the Court. It's not tied to the third factor. Kagan, I take it though that it actually is, in my view, tied to the third factor. I think Justice Marshall was laying out all of the factors, starting with the first and governing principle, being that only Congress can diminish, and he winds up this sort of general principle section with this last thing about de facto de Jurey, de facto diminishment, and then that ties up exactly to his discussion of settlement patterns in the third factor of Solum. And I really think that's the right way to read that opinion. I would like to make one other very important point here, though, is I think the Court should understand that if you were to rule in favor of petitions in this case, the parties would essentially have to go back and reconstruct the right of way. Because the railroads no longer there. There's no rails for trails program in Thurston County. So if you take a Google map and look at this area, you can't even tell where the right of way was. Now, I think that's significant because if there really was a contemporaneous understanding in the 1950s and 1960s when the railroad literally pulled up its tracks and left, that the right of way was the boundary of the reservation, that I think there would have been some effort to sort of preserve that jurisdiction boundary. Please correct me if I'm wrong from the record. My understanding was that in the West portion, the tribe had exercised no jurisdiction until the beverage control ordinance recently put on the East portion that they had. Then you say, well, we can't tell the difference in East and West. Well, I mean, is that reading of the record mistaken? Well, I think what there is is a practical understanding as just a so-to-my-war indicated, this is not a wealthy tribe that's looking to assert jurisdictions in places that are impractical. So it's made a judgment that most of its efforts are directed at the Eastern portion of the reservation. But what I'm saying is that- The fact that nothing, if the record is correct, let's assume the record shows that the tribe has exercised no jurisdiction over the Western portion until this alcoholic beverage control ordinance. Is that relevant to the case at all? I don't think it's dispositive

. I think yes, it's relevant. Yes, relevant. Why is it relevant to what point? I think it could be relevant to the third factor of Salam in a case where the situation was very cloudy. But one of the things also to keep in mind is that even before Montana, the authority that a tribe would have over a principal non-Indian settlement on a reservation is fairly limited. And it varies- What is that? What is at stake beside the alcohol tax, sales tax? What else on your theory could the tribe do in the way of governance in this area? I think as a practical matter, Justice Ginsburg, there's two other things that are at stake here, and they both go to the equities of the Indians on the reservation, not the non-Indians because the non-Indians on the reservation, the tribal authorities, very, very limited. So one thing that is at issue here is the potential to continue the revenue sharing agreement with the State. And this is something that the State actually came to the tribe about. And the theory of the revenue sharing agreement for the fuel taxes is that there are going to be transactions in the Western portion of the reservation where it's actually tribal members that are buying gasoline over there, which does happen because there are a lot of gas stations over there. And of course, the tribe would have authority to tax tribal members on the reservations for those transactions. So what- Justice Ginsburg asked your question. He said, is it a practical matter? I thought maybe I'm just interpreting a question. You're like as a legal matter. As a legal matter, if you prevail, can the tribe cast any doubt on the authority and the jurisdiction of the existing municipality? No, not at all. What they can do is they can make cooperative agreements with the State of Nebraska to tax Indians when they make purchases in Pender. And the other thing they can do is that when two tribal members get in a scuffle in the village of Pender, the tribal authorities can be contacted, and that matter can be handled in the tribal court. If the City of Pender is in a reservation, under what authority could the town of Pender regulate things that go on in Pender? Under its authority? First of all, I mean, you know, let me say two things. One is, I'm not even sure because of the retrocession under- after public law 280. It's not even clear to me that Nebraska is seated at civil jurisdiction that it enjoyed under 280. The retrocession, as I understand it, was criminal retrocession with the exception of the motor vehicle laws. The second thing, as a practical matter, I think this is very important to understand. The next town east from Pender is the town of Walte Hill. It is unambiguously in the reservation boundaries. It is an incorporated municipality of the sort of civil government in Nebraska. In the Winnebago reservation? Well, just educating you because I don't know the law on this point. Can, excuse me, can a state incorporate municipalities within the boundary of an Indian reservation? Yes, it can. And it does, and it's quite common. And with this Court, in fact, this Court in the Seymour case, one of its early its diminishment cases, confronted a federal township, O'Mac Washington, that I was in a township, there's civil authority there, but it's still on the reservation. And that is actually quite common. Does that displace tribal authority in that area? No, because, again, remember, the tribal authority over the non-Indians is so small. Well, we're talking about the area. Can tribal police patrol within the municipality? I think they probably could, though only really within eye towards seeing if there were Indians there who were, you know, needing patrolling. And there's some evidence in the record, this is a joint appendix 371 and 372, that there were occasional patrols at the tribe in Depender. There's also a footnote in that same section that says that it's a practical matter when a tribal member was apprehended in the village of Depender, the police officer would call over to the tribal authorities and have them take over the person. So there's overlapping jurisdiction, the municipality and the tribe within the city? Within the city. And one other aspect. Doesn't that create conflict? No, it really hasn't created significant conflict. And what eliminates the conflict is your Montana decision which substantially limits the tribe's authority over the non-Indians. The liquor tax that we're talking about is not imposed only on Indians, right? It's imposed on everybody who buys liquor in Depender. It is, but that is the exception that proves the rule because alcohol on reservations has been a unique Federal authority for as long as there have been Indian reservations. In fact, this Court had a case in 1911 arising out of the Omaha reservation where it reaffirmed the Federal authority. So- On Indian reservation lands, I take a tribal police have jurisdiction over non-Indians as to minor offenses. I don't think that's actually true on the ground in Nebraska, at least as to the highways because when they retroceded authority in 1970- Well, you had the example of a scuffle, suppose an Indian and a non-Indian or a scuffle. If there's a minor criminal statute making this a minor offense, the tribe have jurisdiction over the non-Indian. I don't think that it would within the village of Pender. And I think that is a reflection of the very limited authority that the tribe has over non-Indians. And that's true with reference to all Indian tribes. Can you cite me any proposition for that? Well, I ultimately, it might be, it might turn on the scope of the Montana decision. And obviously, this Court has the dollar general decision in front of it. I want to make one more point if I could about the overlapping authorities here. Because the other authority here is Thurston County

. And it does, and it's quite common. And with this Court, in fact, this Court in the Seymour case, one of its early its diminishment cases, confronted a federal township, O'Mac Washington, that I was in a township, there's civil authority there, but it's still on the reservation. And that is actually quite common. Does that displace tribal authority in that area? No, because, again, remember, the tribal authority over the non-Indians is so small. Well, we're talking about the area. Can tribal police patrol within the municipality? I think they probably could, though only really within eye towards seeing if there were Indians there who were, you know, needing patrolling. And there's some evidence in the record, this is a joint appendix 371 and 372, that there were occasional patrols at the tribe in Depender. There's also a footnote in that same section that says that it's a practical matter when a tribal member was apprehended in the village of Depender, the police officer would call over to the tribal authorities and have them take over the person. So there's overlapping jurisdiction, the municipality and the tribe within the city? Within the city. And one other aspect. Doesn't that create conflict? No, it really hasn't created significant conflict. And what eliminates the conflict is your Montana decision which substantially limits the tribe's authority over the non-Indians. The liquor tax that we're talking about is not imposed only on Indians, right? It's imposed on everybody who buys liquor in Depender. It is, but that is the exception that proves the rule because alcohol on reservations has been a unique Federal authority for as long as there have been Indian reservations. In fact, this Court had a case in 1911 arising out of the Omaha reservation where it reaffirmed the Federal authority. So- On Indian reservation lands, I take a tribal police have jurisdiction over non-Indians as to minor offenses. I don't think that's actually true on the ground in Nebraska, at least as to the highways because when they retroceded authority in 1970- Well, you had the example of a scuffle, suppose an Indian and a non-Indian or a scuffle. If there's a minor criminal statute making this a minor offense, the tribe have jurisdiction over the non-Indian. I don't think that it would within the village of Pender. And I think that is a reflection of the very limited authority that the tribe has over non-Indians. And that's true with reference to all Indian tribes. Can you cite me any proposition for that? Well, I ultimately, it might be, it might turn on the scope of the Montana decision. And obviously, this Court has the dollar general decision in front of it. I want to make one more point if I could about the overlapping authorities here. Because the other authority here is Thurston County. If I just finish this one point, Pender is the county seat of Thurston County. Thurston County has, I was by state statute since 1922. Its Western boundary has been defined as co-extensive with the reservation. And there are tribal members who is one of the council members on the county. It's a tribal member. Thank you, Your Honor. Thank you, Council. Mr. Kierme. Mr. Chief Justice, and may it please the Court. In solemn versus Bartlett, this Court explained that once a block of land is set aside as an Indian reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise. It has not done so here. I'd like to start, if I may, with the question, what would change if this Court were to rule that the reservation is still intact? First of all, with respect to services, states can provide services to members of tribes and nonmembers alike anywhere within the reservation. And the State of Nebraska provides services not only in the disputed area, but on the east side as well. Let me give you a very specific example. There's a town called Bankraft, which is split in half by the right of way. There's another town called Rosalie, which is clearly within the eastern undisputed part of the reservation. There's a school district called the Bankraft Rosalie School District, which is administered under the auspices of the State of Nebraska. And that's true notwithstanding the fact that much of the land is on the east side, and true notwithstanding the fact that many members, many students who go to that school are members of the tribe. Similarly. What the State can do, but the State wouldn't be obliged to do that. Wouldn't be obliged to provide schools. I see no basis for the State to refuse to provide services to its own citizens, especially if they are not members of the tribe. Well, it would be a question of sovereignty

. If I just finish this one point, Pender is the county seat of Thurston County. Thurston County has, I was by state statute since 1922. Its Western boundary has been defined as co-extensive with the reservation. And there are tribal members who is one of the council members on the county. It's a tribal member. Thank you, Your Honor. Thank you, Council. Mr. Kierme. Mr. Chief Justice, and may it please the Court. In solemn versus Bartlett, this Court explained that once a block of land is set aside as an Indian reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise. It has not done so here. I'd like to start, if I may, with the question, what would change if this Court were to rule that the reservation is still intact? First of all, with respect to services, states can provide services to members of tribes and nonmembers alike anywhere within the reservation. And the State of Nebraska provides services not only in the disputed area, but on the east side as well. Let me give you a very specific example. There's a town called Bankraft, which is split in half by the right of way. There's another town called Rosalie, which is clearly within the eastern undisputed part of the reservation. There's a school district called the Bankraft Rosalie School District, which is administered under the auspices of the State of Nebraska. And that's true notwithstanding the fact that much of the land is on the east side, and true notwithstanding the fact that many members, many students who go to that school are members of the tribe. Similarly. What the State can do, but the State wouldn't be obliged to do that. Wouldn't be obliged to provide schools. I see no basis for the State to refuse to provide services to its own citizens, especially if they are not members of the tribe. Well, it would be a question of sovereignty. The State- This is the reservation, yet your argument, it's the reservation, and that's not the State land. So we're going to spend our money for schools or whatever on the, in the State, not in the reservation. The State retains regulatory sovereignty to make laws with respect to its own citizens and non-members on a reservation. That's true on the east side. It's true on the west side. I think you were also maybe left with the impression after my friend's argument that the State would stop issuing environmental permits, and all of a sudden the tribe would start issuing them, that is not correct. First of all, the Environmental Protection Agency has been administering on the west side of the reservation, including providing permits for animal feedlots. There's also a permit for a wastewater- What's the Environmental Protection Agency, which the State or Federal? Federal. Federal. Including a permit for a wastewater treatment facility, although I believe it discharges into Logan Creek on the east side, so it may not tell us all that much about the jurisdiction. But our questions have been, suppose that you prevail, what can the State do? And we say, well, it's a practical matter, don't worry, they won't do it. The tribe won't do anything. The tribe won't do anything. What could the tribe do? What could the tribe do? Yes. To regulate non-tribal members. Right. So the things that the tribe could do would be any express delegation of authority from Congress. The only one that we've heard about is the alcohol ordinance. Beyond that, the State and tribe could go back to the- We heard about the few, the revenue sharing. That's right. There was an agreement to share revenue fuel, although that was something that the State entered into voluntarily with the tribe. Beyond that, the tribe would have to fall under one of the two Montana exceptions, which are, as this Court is very aware, because of the dollar general case, very limited. I want, I suppose, one reason the tribe might not provide services is because the area is 98. Whatever percent, non-tribal, right? I think that's absolutely correct. So they would be if any services would be for the how many nine- nine Indians in the area or 15 Pardon? How many non-Indians own land in the Western part? It's almost entirely non-Indian in the Western part

. The State- This is the reservation, yet your argument, it's the reservation, and that's not the State land. So we're going to spend our money for schools or whatever on the, in the State, not in the reservation. The State retains regulatory sovereignty to make laws with respect to its own citizens and non-members on a reservation. That's true on the east side. It's true on the west side. I think you were also maybe left with the impression after my friend's argument that the State would stop issuing environmental permits, and all of a sudden the tribe would start issuing them, that is not correct. First of all, the Environmental Protection Agency has been administering on the west side of the reservation, including providing permits for animal feedlots. There's also a permit for a wastewater- What's the Environmental Protection Agency, which the State or Federal? Federal. Federal. Including a permit for a wastewater treatment facility, although I believe it discharges into Logan Creek on the east side, so it may not tell us all that much about the jurisdiction. But our questions have been, suppose that you prevail, what can the State do? And we say, well, it's a practical matter, don't worry, they won't do it. The tribe won't do anything. The tribe won't do anything. What could the tribe do? What could the tribe do? Yes. To regulate non-tribal members. Right. So the things that the tribe could do would be any express delegation of authority from Congress. The only one that we've heard about is the alcohol ordinance. Beyond that, the State and tribe could go back to the- We heard about the few, the revenue sharing. That's right. There was an agreement to share revenue fuel, although that was something that the State entered into voluntarily with the tribe. Beyond that, the tribe would have to fall under one of the two Montana exceptions, which are, as this Court is very aware, because of the dollar general case, very limited. I want, I suppose, one reason the tribe might not provide services is because the area is 98. Whatever percent, non-tribal, right? I think that's absolutely correct. So they would be if any services would be for the how many nine- nine Indians in the area or 15 Pardon? How many non-Indians own land in the Western part? It's almost entirely non-Indian in the Western part. And for that- Could the tribe enact ordinances that govern the Indians in the- in the Western part? They could, but if we're talking about the effect on non-members, they would have to fall under the one- one-of-the-two Montana exception. But at least as to tribal members in the West. That's right. Tribal members on the- I would be subject to the tribe's jurisdiction, which they otherwise would not. I think that that's accurate. If I could go to the City of Cheryl argument, which got brought up a lot today, I think this case is extremely different from City of Cheryl for a number of reasons, but let me give you two big ones. In City of Cheryl, this Court held that principles of equity restrained the tribe from trying to resurrect a claim of inherent sovereign immunity. In this case, by contrast, first of all, we're not just talking about the tribe's jurisdiction, we're talking about the jurisdiction of the United States as well. And second of all, we're not talking about a claim of inherent authority. This is authority exercised pursuant to a Federal statute, 18 U.S.C. 1161. And for that reason, principles of equity simply don't apply here. Moreover, in City of Cheryl, the- I don't understand that. Try it again. Sure. Principles of equity do not apply here. They don't apply in the same way. So in City of Cheryl, the Court applied a latches-type reasoning, but latches would not apply to prevent the exercise of authority under a Federal statute, an express delegation of authority under Federal law. Why not? Because that's what the Court said, for instance, in the copyright decision that Justice Ginsburg recently wrote, which is that when you have background principles of equity, they are presumed not to be applied and be displaced when there is a substantive law that Congress passes to deal with the same issue. The law that authorized the imposition of these taxes in the Western part of the reservation. The law authorizes the exercise of this authority if there is a reservation and if the tribe applies to the Department of the Interior, which has to approve the ordinance. What doesn't that beg the question? The question is whether or not this reservation has been diminished. So it's not the reservation

. And for that- Could the tribe enact ordinances that govern the Indians in the- in the Western part? They could, but if we're talking about the effect on non-members, they would have to fall under the one- one-of-the-two Montana exception. But at least as to tribal members in the West. That's right. Tribal members on the- I would be subject to the tribe's jurisdiction, which they otherwise would not. I think that that's accurate. If I could go to the City of Cheryl argument, which got brought up a lot today, I think this case is extremely different from City of Cheryl for a number of reasons, but let me give you two big ones. In City of Cheryl, this Court held that principles of equity restrained the tribe from trying to resurrect a claim of inherent sovereign immunity. In this case, by contrast, first of all, we're not just talking about the tribe's jurisdiction, we're talking about the jurisdiction of the United States as well. And second of all, we're not talking about a claim of inherent authority. This is authority exercised pursuant to a Federal statute, 18 U.S.C. 1161. And for that reason, principles of equity simply don't apply here. Moreover, in City of Cheryl, the- I don't understand that. Try it again. Sure. Principles of equity do not apply here. They don't apply in the same way. So in City of Cheryl, the Court applied a latches-type reasoning, but latches would not apply to prevent the exercise of authority under a Federal statute, an express delegation of authority under Federal law. Why not? Because that's what the Court said, for instance, in the copyright decision that Justice Ginsburg recently wrote, which is that when you have background principles of equity, they are presumed not to be applied and be displaced when there is a substantive law that Congress passes to deal with the same issue. The law that authorized the imposition of these taxes in the Western part of the reservation. The law authorizes the exercise of this authority if there is a reservation and if the tribe applies to the Department of the Interior, which has to approve the ordinance. What doesn't that beg the question? The question is whether or not this reservation has been diminished. So it's not the reservation. Well, that's the question with respect to the application of the statute. But when we're talking about City of Cheryl, we're talking about background equitable principles. And I'm simply making the point that those principles don't apply when you have an expressed congressional statute dealing with the same issue. If the City of Cheryl did apply, if the City of Cheryl did apply hypothetically, I'm not may saying all the differences you're pointing out. Would you lose? No. Because again, we're not talking about just what the tribe can do. We're also talking about the jurisdiction of the United States as well. And there is certainly nothing in City of Cheryl, which suggests that the jurisdiction of the United States pursuant to a congressional creation of a reservation can be curtailed by the tribe's failure to exercise authority in the disputed nation. Right. I'm more inclined to vote your way if the City of Cheryl does apply than if the City of Cheryl doesn't apply. Well, what you're telling me is, unless you get there through Solom, it doesn't matter whether the State and non-Indians have for generations viewed this land as their own. That's what you're telling me, right? Well, I'm telling you that to the extent City of Cheryl applies, it applies to a very different question, not the question as to where the borders of the reservation are. It applies to the question, what can the tribe as a basis of its inherent sovereignty do? Now, it might under different circumstances if the tribe tried to repurchase a bunch of plans. That's not what City of Cheryl said. Cheryl said the tribe had no jurisdiction. They said it had no sovereignty over the area anymore. Again, the diminishment question goes not just to the tribe's sovereignty, but the jurisdiction as well of the United States. And if we're talking about expectations, another point that I would make is that the single best evidence of what these parties could have expected is the retrocession. Because that was a unique moment in which the State of Nebraska and the United States talked directly and officially to one another about the burdens and responsibilities for exercising jurisdiction in reservation. And the United States, in the Federal Register, as official as can be, said the entire reservation remains intact. And the State of Nebraska, as we point out in our brief, had exactly the same understanding. The Assistant Attorney General, for Nebraska, came and testified before Congress that all of Thurston County is within the Winnebago and within the Omaha reservation. That determines the meaning of the 1882 statute. Not in the least. It goes to the- That's what I think

. Well, that's the question with respect to the application of the statute. But when we're talking about City of Cheryl, we're talking about background equitable principles. And I'm simply making the point that those principles don't apply when you have an expressed congressional statute dealing with the same issue. If the City of Cheryl did apply, if the City of Cheryl did apply hypothetically, I'm not may saying all the differences you're pointing out. Would you lose? No. Because again, we're not talking about just what the tribe can do. We're also talking about the jurisdiction of the United States as well. And there is certainly nothing in City of Cheryl, which suggests that the jurisdiction of the United States pursuant to a congressional creation of a reservation can be curtailed by the tribe's failure to exercise authority in the disputed nation. Right. I'm more inclined to vote your way if the City of Cheryl does apply than if the City of Cheryl doesn't apply. Well, what you're telling me is, unless you get there through Solom, it doesn't matter whether the State and non-Indians have for generations viewed this land as their own. That's what you're telling me, right? Well, I'm telling you that to the extent City of Cheryl applies, it applies to a very different question, not the question as to where the borders of the reservation are. It applies to the question, what can the tribe as a basis of its inherent sovereignty do? Now, it might under different circumstances if the tribe tried to repurchase a bunch of plans. That's not what City of Cheryl said. Cheryl said the tribe had no jurisdiction. They said it had no sovereignty over the area anymore. Again, the diminishment question goes not just to the tribe's sovereignty, but the jurisdiction as well of the United States. And if we're talking about expectations, another point that I would make is that the single best evidence of what these parties could have expected is the retrocession. Because that was a unique moment in which the State of Nebraska and the United States talked directly and officially to one another about the burdens and responsibilities for exercising jurisdiction in reservation. And the United States, in the Federal Register, as official as can be, said the entire reservation remains intact. And the State of Nebraska, as we point out in our brief, had exactly the same understanding. The Assistant Attorney General, for Nebraska, came and testified before Congress that all of Thurston County is within the Winnebago and within the Omaha reservation. That determines the meaning of the 1882 statute. Not in the least. It goes to the- That's what I think. I was simply responding to the point that the expectations here might be all in the same direction. I would also point to 30 years of Nebraska revenue rulings, all of which say point blank, Pender is still part of the reservation. I would also point to the definition of Thurston County. As my friend pointed out, Pender is the county seat. I think it's implausible to know that the- to assert that the State of Nebraska wouldn't know that its own law specifies that all of Thurston County is within the reservations of the Omaha and the Winnebago's. I would also like to address if I could the tipping point theory that I think emerges from petitioners reply brief. And that's the idea that in 1872, Congress tried but failed to diminish the reservation because there were only about 300 acres sold. But in 1882, it succeeded because a lot more land was sold. I think there are a lot of problems with this theory. First of all, if that was what Congress had in mind, presumably it would have specified some way to know when the tipping point had been reached, some percentage of land sales, some other measure of success. There's nothing about that in the text. There's nothing about that in the legislative history. Second of all, the concept that Congress could attempt but fail to diminish reservation, as my friend said that it did in 1872, is a concept that is wholly foreign to this Court's jurisprudence, which makes clear that Congress has plenary power. And finally, I think this Court should be very reluctant to assume that Congress implicitly transferred any part of its authority to change the borders of an Indian reservation to private parties and made it contingent on what this Court in Dakota referred to as uncertain future sales. Well, is that saying there's no such thing as de facto diminishment? I think that de facto diminishment, if you think of it as some sort of freestanding alternative path to change the boundaries of a reservation, I do agree that it doesn't exist. But if you're talking about it. How is that consistent with the language and soul in the Justice Ginsburg Red? I think it's a little bit hard to know exactly what the Court meant. This Court has never found de facto diminishment. All seven of its surplus land cases were decided on the basis of congressional intent. And then there were sometimes a few sentences thrown in about how the status quo wouldn't change very much. I want to leave you with one more point. What about Sheryl? Pardon? What about Sheryl? Sheryl is very explicit that it is not a diminishment ruling. There's a footnote in City of Sheryl, which makes very clear that it is not deciding the diminishment issue or the jurisdiction of the United States. What's vague about the language where non-Indian settlers flooded into the open portion of a reservation and the area has long since lost its Indian character, we have acknowledged that de facto, if not desury, diminishment may have occurred? I think you have to read that sentence in light of Yangtonsu, which says that when you're talking about the subsequent treatment of the area and the pattern of settlement, those are relevant only in so far as they bear on the touchstone of the inquiry, which is congressional intent. If I could find a look at the passage, it goes on then to discuss in addition to that, then we look to subsequent demographic history as an additional clue as to what Congress meant

. I was simply responding to the point that the expectations here might be all in the same direction. I would also point to 30 years of Nebraska revenue rulings, all of which say point blank, Pender is still part of the reservation. I would also point to the definition of Thurston County. As my friend pointed out, Pender is the county seat. I think it's implausible to know that the- to assert that the State of Nebraska wouldn't know that its own law specifies that all of Thurston County is within the reservations of the Omaha and the Winnebago's. I would also like to address if I could the tipping point theory that I think emerges from petitioners reply brief. And that's the idea that in 1872, Congress tried but failed to diminish the reservation because there were only about 300 acres sold. But in 1882, it succeeded because a lot more land was sold. I think there are a lot of problems with this theory. First of all, if that was what Congress had in mind, presumably it would have specified some way to know when the tipping point had been reached, some percentage of land sales, some other measure of success. There's nothing about that in the text. There's nothing about that in the legislative history. Second of all, the concept that Congress could attempt but fail to diminish reservation, as my friend said that it did in 1872, is a concept that is wholly foreign to this Court's jurisprudence, which makes clear that Congress has plenary power. And finally, I think this Court should be very reluctant to assume that Congress implicitly transferred any part of its authority to change the borders of an Indian reservation to private parties and made it contingent on what this Court in Dakota referred to as uncertain future sales. Well, is that saying there's no such thing as de facto diminishment? I think that de facto diminishment, if you think of it as some sort of freestanding alternative path to change the boundaries of a reservation, I do agree that it doesn't exist. But if you're talking about it. How is that consistent with the language and soul in the Justice Ginsburg Red? I think it's a little bit hard to know exactly what the Court meant. This Court has never found de facto diminishment. All seven of its surplus land cases were decided on the basis of congressional intent. And then there were sometimes a few sentences thrown in about how the status quo wouldn't change very much. I want to leave you with one more point. What about Sheryl? Pardon? What about Sheryl? Sheryl is very explicit that it is not a diminishment ruling. There's a footnote in City of Sheryl, which makes very clear that it is not deciding the diminishment issue or the jurisdiction of the United States. What's vague about the language where non-Indian settlers flooded into the open portion of a reservation and the area has long since lost its Indian character, we have acknowledged that de facto, if not desury, diminishment may have occurred? I think you have to read that sentence in light of Yangtonsu, which says that when you're talking about the subsequent treatment of the area and the pattern of settlement, those are relevant only in so far as they bear on the touchstone of the inquiry, which is congressional intent. If I could find a look at the passage, it goes on then to discuss in addition to that, then we look to subsequent demographic history as an additional clue as to what Congress meant. I read those since the two different paragraphs is making two different points. I think you could definitely read it that way if you just had solemn. I think if you read solemn in light of Yangtonsu, you reach a different result. If I could make one final point about unsettling expectations, there are more than 300 federally recognized Indian reservations all throughout the United States. 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 wear. If there are no further questions. Thank you, Council. Mr. Smith, you have four minutes remaining. Thank you, Your Honor. Where do I start? Wood start first with pointed out to me by Code Council that on this statement I made in response to Justice Kagan. The eight-circuit briefs do cite Sheryl and supported the proposition for de facto of diminishment. My apology, I hadn't argued at that point, but it is there in the eight-circuit. I would cite to the joint appendixes, so the Court is aware, exactly where it can find that it is undisputed as far as the demographics, the jurisdictional history, J.A. 215 to J.A. 216, J.A. 318 to J.A. 319, J.A. 609 to J.A

. I read those since the two different paragraphs is making two different points. I think you could definitely read it that way if you just had solemn. I think if you read solemn in light of Yangtonsu, you reach a different result. If I could make one final point about unsettling expectations, there are more than 300 federally recognized Indian reservations all throughout the United States. 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 wear. If there are no further questions. Thank you, Council. Mr. Smith, you have four minutes remaining. Thank you, Your Honor. Where do I start? Wood start first with pointed out to me by Code Council that on this statement I made in response to Justice Kagan. The eight-circuit briefs do cite Sheryl and supported the proposition for de facto of diminishment. My apology, I hadn't argued at that point, but it is there in the eight-circuit. I would cite to the joint appendixes, so the Court is aware, exactly where it can find that it is undisputed as far as the demographics, the jurisdictional history, J.A. 215 to J.A. 216, J.A. 318 to J.A. 319, J.A. 609 to J.A. 611. The concept that nothing really big is going to change, having the tribal police show up in their police vehicles patrolling the streets because it's on tribal land is going to be a huge disruption of expectations. My background is in criminal law. I know if you have a crime you're investigating, you don't know, not all crimes. You know there's not a science saying, gee, this was committed by an Indian, this was committed by non-Indian. You have a lot of who done it, and which the question is who's supposed to investigate. You have this overlapping jurisdiction where law enforcement itself is confused as to who's supposed to be investigating when they don't even know maybe who the perpetrator is. The idea that a tribal member of a state governmental authority somehow shows. Excuse me. Wouldn't the latter be the case with respect to any municipality that's within a reservation? We've been told there are a lot of those. And wouldn't that be a problem in all of those? Namely that you have overlapping jurisdiction of tribal police and municipal police and until you know who the perpetrator is, you don't know which one has jurisdiction. It's a problem if you know and chose to live on an Indian reservation. I mean that exists. What's different in this case is the history is of 130 years of people who believe and chose and they are not living on an Indian reservation. They're living in the state of Nebraska. I call the State Patrol. I know the tribal police are not patrolling up and down my street. That's the difference. It's the justifiable expectations of the people who live there. The point is the government says, fine, make that argument, make it under the rubric city of Cheryl. Maybe you make it when you go down on remand or something. But it is workable to divide the issue into two parts. The first issue is what's the reservation? And the second issue is what can you do on the reservation? When you get to question two, if the tribe has made no assertion of jurisdiction, nobody even knows about it for 150 years. Maybe it's basically unfair to let them do what they want to do. And that depends on a lot of factors such as what Congress says

. 611. The concept that nothing really big is going to change, having the tribal police show up in their police vehicles patrolling the streets because it's on tribal land is going to be a huge disruption of expectations. My background is in criminal law. I know if you have a crime you're investigating, you don't know, not all crimes. You know there's not a science saying, gee, this was committed by an Indian, this was committed by non-Indian. You have a lot of who done it, and which the question is who's supposed to investigate. You have this overlapping jurisdiction where law enforcement itself is confused as to who's supposed to be investigating when they don't even know maybe who the perpetrator is. The idea that a tribal member of a state governmental authority somehow shows. Excuse me. Wouldn't the latter be the case with respect to any municipality that's within a reservation? We've been told there are a lot of those. And wouldn't that be a problem in all of those? Namely that you have overlapping jurisdiction of tribal police and municipal police and until you know who the perpetrator is, you don't know which one has jurisdiction. It's a problem if you know and chose to live on an Indian reservation. I mean that exists. What's different in this case is the history is of 130 years of people who believe and chose and they are not living on an Indian reservation. They're living in the state of Nebraska. I call the State Patrol. I know the tribal police are not patrolling up and down my street. That's the difference. It's the justifiable expectations of the people who live there. The point is the government says, fine, make that argument, make it under the rubric city of Cheryl. Maybe you make it when you go down on remand or something. But it is workable to divide the issue into two parts. The first issue is what's the reservation? And the second issue is what can you do on the reservation? When you get to question two, if the tribe has made no assertion of jurisdiction, nobody even knows about it for 150 years. Maybe it's basically unfair to let them do what they want to do. And that depends on a lot of factors such as what Congress says. Now, so what do you think of that argument? Let's leave it for later. Nobody's argued it. I'm glad I didn't answer what I thought of that argument. Your Honor, what it is still the invites the litigation over what is the extent of the power? Who's got the power to govern? What is the extent of their power? Uncertainty when you have expectations, you live in an area where the State governs you and then to say we can go back and litigate all these issues is, is just not what the public expects. The people in Pender, this is a big deal. They care about this. They have expectations. It's a big deal whether a tribal counsel has authority over us. We don't get to vote for them. Their Constitution doesn't even allow us to appear at their public meetings. The concept that somehow or other we can't find the right way because it's not on Google is frankly silly. It's very easy to go back, do surveys, find exactly where the right way is. Thank you, Counsel. The case is submitted.

We'll hear argument first this morning, case 14-0-6, Nebraska versus Parker. Mr. Smith? 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%. 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 content or the intent of Congress in the context of the times of the 1882 Act that the disputed area would be diminished from the reservation. If I understand your position correctly, you're not asking us to overrule Solum. 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. As a matter of fact, from what you just said, and from your brief, I gathered perhaps I was wrong that you are arguing for a day 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. Your Honor, we thank the de facto diminishment does fit within the third element of the Solum 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 the Solum talks about, as far as the events, what took place after the act, the focus should be, if you are looking at a 10 of Congress, you should be looking at what Congress is doing after the act that is reflective of not understanding essentially that they have diminished the reservation. It's a different Congress. I mean, to say, you know, a later Congress did not 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 a 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 a diminishment. 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 open for settlement, that there, at least the Cheryl case, some of the principles in that case would be supportive of de facto diminishing. That's not true. The case didn't involve the diminishment. The diminishment was not an issue. That is true. What I'm referring to was the principle, at least the cited in the case, as far as a long standing assumption of jurisdiction by the State over an area that is primarily non-Indian and population land creates justifiable expectations. And if they did have any sovereignty over it, they had long since forfeited. I mean, that's not what you're arguing here. I understand you're arguing diminishment, not adverse possession, so to speak. We are arguing that it is no longer part of the reservation. We are not saying it, Court could not find it under the de facto, but we do think the facts of this case does fit within Solum and if the Court applies to Solum test, the State should prevail in this case, which you don't. The other side says you did not raise a city of Cheryl argument. Do you agree with that? We have a lot of the arguments you make seem to sound more in a city of Cheryl type proposition, but you haven't raised that argument, have you? I believe in paragraph or pages 22, I think it's 25 of our brief. If we are at least citing Cheryl as precedent for the principle of loss of sovereignty, loss of sovereign control by the fact that the State has long exercised the jurisdiction, but are both of these? What Solum said, Solum did bring up de facto diminishment. This is on page 417, one of the opinions. It says on a more pragmatic level, we have recognized that who actually moved on to the open reservation lands is also relevant to deciding whether a surplus land act diminished a reservation, where non-Indian settlers flooded into the opening portion of the reservation, and the area has long since lost its Indian character. We have acknowledged that de facto, if not de jure, diminishment may have occurred. This was the theme that was picked up in Cheryl, but it's stated in Solum. Yes. Yes. May I ask a preliminary question? We're talking about a liquor license or alcoholic beverage license and a sales tax on alcoholic beverages. Does the State itself impose such requirements that is a licensing requirement and a sales tax? The State itself does impose liquor license requirements. They can't, State and Nebraska have sales taxes, yes, Your Honor. This tax was not imposed by the tri, a quad tri. This was a statute of Congress that permitted the Indian's to do this, correct? My recollection was the Interior Department approved the tribe's request to have such an ordinance, and then the tribe's ordinance then was in a fire. If I ask jurisdiction, tribes can't tax it will. They have to get approval for taxation, correct from the Federal Government? Your point would be correct, Your Honor. The tribe has to request it. They have to have an ordinance. It has to be approved by agency of the Federal Government. Yes, that is true, but it still involves granting authority to another task. What else do you lose if this ruling is against you? We've already circumscribed the powers of the tribes on their own reservations greatly. So what powers do you lose? You've already seated to the Federal Government criminal prosecution powers, so you're not losing out on that. What are you losing out on? Well, Your Honor, I take this would be in the context of what are the justifiable expectations of those who live in the disputed area? What would be significantly disrupted as far as their justifiable expectations? I would start off with the first principle is just who governs you. You would be introducing an additional sovereign, the tribe, into an area of which for over 130 years, the tribe has not exercised any sovereign authority at all. Can I take you back to Justice Scalia's question? You know, because usually, at least now, we don't think much of subsequent history of any kind. Now, maybe they thought a little bit more highly of it, and the days when Solem was written. But now, it would, it's pretty much of a stretch to use subsequent legislative history or subsequent history generally, one where dealing with interpreting a statute. And I'm just wondering, is there a reason why it should be more credited here than in any other context? The Court's precedent, I believe, recognizes in the area of land surplus acts that the Indian land surplus acts are a unique animal from your normal legislative analysis. And that would be because in the context of the times back before the turn of, I guess, two centuries ago in the 1800s, Congress would be doing land surplus acts in which the concept of, are we diminishing or not diminishing a reservation was really nothing that Congress thought of. You put that on the basic principle that only Congress can diminish a reservation, it then becomes the problem of how do we determine what Congress intended. When, frankly, the reality of the Court's precedent is, it's something that the Court or Congress generally did not think of, they were inconsistent. And so the, the soleum test really evolves out of an attempt to determine what was the intent of Congress at the time, which then is why legislative history or subsequent circumstances takes on greater significance. And when, when did this diminishment idea as a legal concept? You said it, when Congress acted, it weren't thinking in terms of diminishment. When did diminishment become the big question? Well, it becomes, it becomes a big question when the issue is, is it part of the reservation. But at what point in time, because you, I thought you just made this statement that in 1882, Congress wasn't thinking in terms of diminishment. It becomes a big issue when the issue is who, frankly, who has authority to govern is this still part of the reservation or not? Does the tribe have any authority over this area at all? And if it's part of the reservation, it has authority acknowledged. It is limited authority, but it would have authority over it because if it's part of the reservation. Now, we get on that question as a practical matter. If the tribe were to exercise the, go to the outer limits of its authority, what could it do in the city of Pender? Well, sides imposing this, this liquor tax. Well, what it, what it can do, it would, it can displace state jurisdiction over environmental regulations, that this is a rural farming area. The environment is very important. State regulation is very important. It's what the people have expected, and I could give an example if you're a farmer and the guy across the road drops a load of manure in your pond that's being used, feed cattle. You call the state of Nebraska, you want them to come out and you want them to do something. Those regulations would be replaced. You call the state of Nebraska and the responses. I'm sorry you've called wrong number. What about municipalities? What about self-governing, or more or less self-governing municipalities? Are there any of those within this area? Yes, there are self-governing municipalities, there are villages, county, obviously. What would happen to them? Would they continue to exist? They would continue to exist, but you're going to have what I would say, the ambiguity of the extent of their authority versus the extent of the tribe's authority. You would have this ambiguity in which is going to be, I mean, people for 130 years, if you've expected the State of Nebraska, your City Council, to be exercising local control and you bring in this outside authority. Why would they continue to exist? I mean, aren't they creatures of the State? They are, can the State create the municipalities on Indian reservations? I believe the State can create the municipalities to issue as what authority they have when you also have it on tribal land because the tribe has- the environment and in all sorts of things. Have they threatened to take away the State's activities in this village? Not yet. The issue is going to be- This tribe is awfully small. You think they're going to have the power to implement all of these things that you are fearful to do substitute services to- they can't tax for it without the government's permission. So how are they going to do all these- and why would they do all these horrible things? Well, I don't think it's- I mean, it's nice to have the power of taxation, but they still need the government's approval. I don't think it's simply the test of being what- what will they do? I think the issue is once they have the authority- Well, the question is, City of Cheryl says if they try to exercise their powers in a way that's harmful to settled expectations, they might have a remedy in the wall. That's what City of Cheryl says, but that didn't take away. The City of Cheryl didn't say the Indians were at Sovereign. It just said they can't exercise the sovereignty. It didn't say it was a diminishment. What they said is they couldn't exercise it because of latches. Well, if you say we've introduced a tribe with- that in theory has authority, but because they've never exercised it, they really have no authority that- that by itself I would say is the inherent ambiguity of what is actually the limits of their authority. You get litigations that start disputing whether like under the Montana factors is far as they could regulate conduct. Threatens has some direct effect on their tribe's integrity, economic security, health and welfare. That's very, very broad. And to me, the answer would be simply to say this is not part of the reservation rather than every case that comes up when we have litigation and then decide while you're stopped from doing that. That would- That would have- That's the tribe exercise authority in the part of the reservation. That's not an issue here. Yes. The tribe absolutely exercises authority in the part that's not part of the reservation. They've stipulated to that that on the part that's not part of the reservation, that they- that they have ordinances, they provide services, that they enforce their ordinances on the east- in the eastern part of the railroad, which is clearly within the tribe, and not on the west. So they have had no presence and they've acknowledged that. They have no tribal offices, schools, industries, businesses. They've admitted that all of these governmental services are provided by state and local agencies not the tribe. That's the public expectation. That's what they expect is- In the- in the western part. In the western part. But what about in the eastern part? I'm sorry, and if I wasn't clear- In the eastern part, the tribe does have its ordinances, it does provide services, it does enforce its ordinances and laws in the eastern part, but not in the western part, never has. All of those services are provided by the State of Nebraska. The State of Nebraska, you name it in the form of government services, have been provided by the State of Nebraska. Its municipalities not by the tribe. This comes in, we come in, we're going to tax you, we're going to take the money, and maybe you get services, maybe you don't. And in fact, the idea of local control is if the people in the disputed area are unhappy about what the tribe is doing, unlike if it's their local city council, they don't get to vote, they don't get to remove them from office. Mr. Smith, I can understand why people might be concerned for all the reasons that you're talking about. We do have pretty clear and subtle law in this area with respect to diminishment. That we've said only Congress can diminish, that the idea is that we're supposed to look to congressional intent. And you say Congress didn't really think in these terms, and there's something that's fair about that. But Congress did use very different language in different ones of these acts. And we've looked to that language as a pretty good guide to suggesting which ones diminish and which ones do not. And it seems as though the language here in the act in which we're concerned, it's none of the language that would suggest that Congress diminished this act. So I was wondering if you could talk to that. Is there anything in the language of this statute that suggests a diminishment, any of the usual kind of we seed everything, we relinquish everything? Like what's the best you can do on that? I appreciate that, Your Honor. And yes, the standard diminishment test starts with looking at the act as their language in the act. Hagen and Solen both specifically say no particular form of words are required. What we do have in this act is we've got two areas of the reservation. The area west of the reservation, it's a very well-defined area. It doesn't create a checkerboard effect. What is significant is the different? The act treats the area west of the railroad different than the area east of the railroad. Specifically, and this is a major distinction in Solen. There is nothing reserved for the tribe in the land on the west of the railroad, the disputed area. There is nothing reserved in the bullpen, so to speak. There is no reservation of land use rights. There is no reservation of land use rights for schools, agency, tribal religious purposes, no reservation in mineral rights. In Solen, those are considered significant factors because what you end up with is that the tribal headquarters, its governmental headquarters, ended up in Solen being in the disputed area. Do you agree that City of Cheryl did nothing more than deny particular equitable relief and did not repudiate the proposition of Indian sovereignty over the land in question? Because if you agree with that, then I guess I'm more inclined to give greater weight to the third factor, but if you disagree with it, as I think you ought to, then I don't see why we need the third factor. Well, City of Cheryl, it does have the element of the tribe trying to unilaterally just by the way. It says that the tribe doesn't have sovereignty is what it says. It says that the tribe doesn't have sovereignty just to buy land back and get back sovereignty that had long ago lost. And it applies equitable principles to say you're- Sotomayor to say that the tribe does not have sovereignty. Yes, and I think it's perfectly reasonable for the Court to reach that conclusion with a land which long ago lost its Indian character. Long ago, they've never exercised anti-soverty and then show up after the public, the descendants, everyone who's lived there and after 130 years, you 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. If we don't like what we're going to do, I guess we can complain to somebody, but we can't recall members of the tribal council. It's a recognition that those things happens because that's what Congress intended to have happen and as Solum looks in the context of the times, as far as that legislative history or what happened afterwards, Solum emphasizes the decades of media immediately after the act. And in the decades immediately after this act, we don't have what Solum talks about the rife with inconsistencies. What we have is a total 100% consistent record that everyone understood. This land was diminished. It's not part of the reservation. Congress in 86 years later, and I understand the point about subsequent congressional intent, but at least they did not take an action that would reflect Congress didn't understand what they did. Kagan-Mr. Smith, on the city of Sherrill point, the Chief Justice asked you before. Do you agree whether this was waived? And you said, well, we cite city of Sherrill on page 25 or something like that. Below, what was the status of the city of Sherrill argument in the lower courts? The argument was made as far as that de facto diminishment can be found. The eight-circuit opinion is what I would call a significant summary. Kagan-Mr. Smith, I'm not sure quite what that means. Does that mean de facto diminishment under Solum, or does that mean Solum, or does that mean that you talked about city of Sherrill as an independent ground? We talked about de facto diminishment as an independent ground. I didn't argue it in the, but my recollection as Sherrill is not cited for, as authority for that, but we did bake the argument that it was de facto because Solum does say we have recognized de facto diminishment. Mr. Chief Justice, if I may reserve the remainder of my time if there's no further questions. Thank you. Mr. Clement? Mr. Chief Justice, and may it please the Court. The question in this case is whether an 1882 Act of Congress diminished the Omaha Reservation and redrew its boundaries. We think multiple considerations make clear that the Act of Congress did not diminish the reservation, but simply opened up a portion of the reservation for settlement within the existing boundaries. Now, the first and probably most significant factor is that the text of the statute uses the classic language this Court has identified for opening up a reservation for settlement without creating a diminishment. But secondly, and I think very telling and specific to this statute, at the same time there is no language in the statute that supports a finding of diminishment, I think there is language in the statute, specifically the final proviso of Section 8, that is very inconsistent with the idea that what Congress did is draw a new Western boundary to the reservation, because that proviso gave tribal members the right to take their allotments east or west of the right of way. And the record reflects that many, that a number of members of the tribe took their allotments west of the right of way, and importantly, a number of them took their allotments that actually straddle the right of way. Well, a number, what is the number? There were 15, I think, well the party is confused, between 10 and 15 about 850 to 900 acres. But I don't think the fact of how many that took allotments. How many tribal members? I think there were roughly 300 plus allotments, so it was, you know, 3 percent. But I think the fact that they were allowed, even though there are small numbers, I'm not trying to make a volume argument here, I'm making an argument that if what Congress just did was draw a new Western boundary to the reservation, it would have been very odd to allow tribal members to take their allotments off the reservation. And maybe otters still to allow them to take an allotment that essentially was bisected by the new boundary. Why would that be odd? They could have taken allotments anywhere, couldn't they? Anywhere. Anywhere it was opened up, couldn't they have chosen to purchase their allotments outside the reservation? I don't think that would have been a logical assumption given the conception of the time where I think Congress was thinking in the main that tribal ownership or Indian ownership went with the reservation status. And I think, again, if you think of this as being a surplus land act that simply opens the reservation up, a portion of it, to settlement, then it makes perfect sense to say that tribal members can take their allotments anywhere on the reservation. But if you think you've really drawn a new boundary to the reservation, then I think it's more than passing strange that you can take allotments to the west of it, or you can take an allotment and the new border is smack dabbed through the middle of it. That's the answer. I don't understand your answer to the Chief Justice's question. An Indian who wanted to have an allotment off the reservation and allotments were generally available could take that allotment off the reservation if the Indian chose to do so correct? No. My position is no. They couldn't. And they could take it west of the right of way. But I am saying that's how- A lot of notments were only open to non-Indians? No, no. Before any settlers, non-Indians came in, the existing tribal members were allowed to take their allotments. And they were allowed to take their allotments anywhere on the pre-existent- All right, so we're not talking about allotments open to the general population. No, no. The specific- And this is clear from the Proviso and Section 8. It's the allotment only for members of the tribe. And they can take consistent with the historical understanding and allotment anywhere on the reservation, including west of the right of way. And that seems to me to be very consistent with the idea that the right of way is an interesting thing that the tribe granted through their reservation, but it's not some new boundary. And I think the subsequent history really supports that as well. I mean, my friend on the other side. What do you make me to comment of the language that I read from Solom itself, which seems to fit this case? Well, I take that language, Justice Ginsburg, as Justice Marshall writing for the court saying that when you're in the third factor, when you witness de facto immunity, I'm sorry, de facto sort of a diminishment, that that may ultimately support a conclusion that there was, in fact, diminishment as a matter of law. I don't take him to be opening up an entirely different route to finding immunity, a diminishment rather, that doesn't go through an act of Congress. And I think that's the only way to read the opinion as a whole. Because when the court starts the opinion, it says the very first principle in this area is that only Congress can diminish a reservation. And it's perfectly compatible with that to say that when we get to the third factor, and we're looking at all sorts of things, we'll look at settlement patterns as part of that, but I don't think it's consistent with that worldview to then say that actually the third factor is a standalone alternative route to find diminishment, not by congressional action, but by market reaction to a surplus land. Did we cite Solum in Cheryl? I don't really recall. I don't recall. If it had held that, it would have been cited, and Cheryl would not have been any big deal. Well, I thought Cheryl was a big deal. Well, I think- Justice Ginsburg wrote it. I think she thought it was a big deal. I'm not here to tell you it's not a big deal. I'm telling- I'm here to tell you two things, though. One is that Solum went out of its way to not decide the diminishment issue. So it is clearly an alternative way of thinking about the cases, and I don't think they're co-extensive, which is to say I think there could be a particular assertion of tribal authority that you might say violates city of Cheryl principles, even within an undiminished reservation. And I do think it's then critically important that my friend on the other side has not raised this argument below. I certainly did not understand it to be an independent argument in this Court. It's all well-in-good to cite the case, but that doesn't make an independent argument. Even his amic- Who thought that they wanted to bring before this Court, the City of Cheryl argument, admitted that the petitioners hadn't made a City of Cheryl argument. But Solum did talk about de facto diminishment, and it seems to me that you've got to recognize when they do that. They're talking about something other than de Jurey, in other words, pursuant to the law. It's pursuant to the facts on the ground. I understand Mr. Chief Justice, but I think there's two ways to talk about de facto versus de Jurey. One way to talk about it is that there are two totally alternative retens. Another way is to say de facto diminishment means the settlement patterns, and that's something that can inform the ultimate conclusion of whether there's diminishment. And I really think the Court in Solum was using it in that passage in the latter respect. And I think that's the only way to make sense of the case as a whole. It's presented before the Court turns to apply the principles. Sotomayor, you're right. That's right. It's part of the general principles of the Court. It's not tied to the third factor. Kagan, I take it though that it actually is, in my view, tied to the third factor. I think Justice Marshall was laying out all of the factors, starting with the first and governing principle, being that only Congress can diminish, and he winds up this sort of general principle section with this last thing about de facto de Jurey, de facto diminishment, and then that ties up exactly to his discussion of settlement patterns in the third factor of Solum. And I really think that's the right way to read that opinion. I would like to make one other very important point here, though, is I think the Court should understand that if you were to rule in favor of petitions in this case, the parties would essentially have to go back and reconstruct the right of way. Because the railroads no longer there. There's no rails for trails program in Thurston County. So if you take a Google map and look at this area, you can't even tell where the right of way was. Now, I think that's significant because if there really was a contemporaneous understanding in the 1950s and 1960s when the railroad literally pulled up its tracks and left, that the right of way was the boundary of the reservation, that I think there would have been some effort to sort of preserve that jurisdiction boundary. Please correct me if I'm wrong from the record. My understanding was that in the West portion, the tribe had exercised no jurisdiction until the beverage control ordinance recently put on the East portion that they had. Then you say, well, we can't tell the difference in East and West. Well, I mean, is that reading of the record mistaken? Well, I think what there is is a practical understanding as just a so-to-my-war indicated, this is not a wealthy tribe that's looking to assert jurisdictions in places that are impractical. So it's made a judgment that most of its efforts are directed at the Eastern portion of the reservation. But what I'm saying is that- The fact that nothing, if the record is correct, let's assume the record shows that the tribe has exercised no jurisdiction over the Western portion until this alcoholic beverage control ordinance. Is that relevant to the case at all? I don't think it's dispositive. I think yes, it's relevant. Yes, relevant. Why is it relevant to what point? I think it could be relevant to the third factor of Salam in a case where the situation was very cloudy. But one of the things also to keep in mind is that even before Montana, the authority that a tribe would have over a principal non-Indian settlement on a reservation is fairly limited. And it varies- What is that? What is at stake beside the alcohol tax, sales tax? What else on your theory could the tribe do in the way of governance in this area? I think as a practical matter, Justice Ginsburg, there's two other things that are at stake here, and they both go to the equities of the Indians on the reservation, not the non-Indians because the non-Indians on the reservation, the tribal authorities, very, very limited. So one thing that is at issue here is the potential to continue the revenue sharing agreement with the State. And this is something that the State actually came to the tribe about. And the theory of the revenue sharing agreement for the fuel taxes is that there are going to be transactions in the Western portion of the reservation where it's actually tribal members that are buying gasoline over there, which does happen because there are a lot of gas stations over there. And of course, the tribe would have authority to tax tribal members on the reservations for those transactions. So what- Justice Ginsburg asked your question. He said, is it a practical matter? I thought maybe I'm just interpreting a question. You're like as a legal matter. As a legal matter, if you prevail, can the tribe cast any doubt on the authority and the jurisdiction of the existing municipality? No, not at all. What they can do is they can make cooperative agreements with the State of Nebraska to tax Indians when they make purchases in Pender. And the other thing they can do is that when two tribal members get in a scuffle in the village of Pender, the tribal authorities can be contacted, and that matter can be handled in the tribal court. If the City of Pender is in a reservation, under what authority could the town of Pender regulate things that go on in Pender? Under its authority? First of all, I mean, you know, let me say two things. One is, I'm not even sure because of the retrocession under- after public law 280. It's not even clear to me that Nebraska is seated at civil jurisdiction that it enjoyed under 280. The retrocession, as I understand it, was criminal retrocession with the exception of the motor vehicle laws. The second thing, as a practical matter, I think this is very important to understand. The next town east from Pender is the town of Walte Hill. It is unambiguously in the reservation boundaries. It is an incorporated municipality of the sort of civil government in Nebraska. In the Winnebago reservation? Well, just educating you because I don't know the law on this point. Can, excuse me, can a state incorporate municipalities within the boundary of an Indian reservation? Yes, it can. And it does, and it's quite common. And with this Court, in fact, this Court in the Seymour case, one of its early its diminishment cases, confronted a federal township, O'Mac Washington, that I was in a township, there's civil authority there, but it's still on the reservation. And that is actually quite common. Does that displace tribal authority in that area? No, because, again, remember, the tribal authority over the non-Indians is so small. Well, we're talking about the area. Can tribal police patrol within the municipality? I think they probably could, though only really within eye towards seeing if there were Indians there who were, you know, needing patrolling. And there's some evidence in the record, this is a joint appendix 371 and 372, that there were occasional patrols at the tribe in Depender. There's also a footnote in that same section that says that it's a practical matter when a tribal member was apprehended in the village of Depender, the police officer would call over to the tribal authorities and have them take over the person. So there's overlapping jurisdiction, the municipality and the tribe within the city? Within the city. And one other aspect. Doesn't that create conflict? No, it really hasn't created significant conflict. And what eliminates the conflict is your Montana decision which substantially limits the tribe's authority over the non-Indians. The liquor tax that we're talking about is not imposed only on Indians, right? It's imposed on everybody who buys liquor in Depender. It is, but that is the exception that proves the rule because alcohol on reservations has been a unique Federal authority for as long as there have been Indian reservations. In fact, this Court had a case in 1911 arising out of the Omaha reservation where it reaffirmed the Federal authority. So- On Indian reservation lands, I take a tribal police have jurisdiction over non-Indians as to minor offenses. I don't think that's actually true on the ground in Nebraska, at least as to the highways because when they retroceded authority in 1970- Well, you had the example of a scuffle, suppose an Indian and a non-Indian or a scuffle. If there's a minor criminal statute making this a minor offense, the tribe have jurisdiction over the non-Indian. I don't think that it would within the village of Pender. And I think that is a reflection of the very limited authority that the tribe has over non-Indians. And that's true with reference to all Indian tribes. Can you cite me any proposition for that? Well, I ultimately, it might be, it might turn on the scope of the Montana decision. And obviously, this Court has the dollar general decision in front of it. I want to make one more point if I could about the overlapping authorities here. Because the other authority here is Thurston County. If I just finish this one point, Pender is the county seat of Thurston County. Thurston County has, I was by state statute since 1922. Its Western boundary has been defined as co-extensive with the reservation. And there are tribal members who is one of the council members on the county. It's a tribal member. Thank you, Your Honor. Thank you, Council. Mr. Kierme. Mr. Chief Justice, and may it please the Court. In solemn versus Bartlett, this Court explained that once a block of land is set aside as an Indian reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise. It has not done so here. I'd like to start, if I may, with the question, what would change if this Court were to rule that the reservation is still intact? First of all, with respect to services, states can provide services to members of tribes and nonmembers alike anywhere within the reservation. And the State of Nebraska provides services not only in the disputed area, but on the east side as well. Let me give you a very specific example. There's a town called Bankraft, which is split in half by the right of way. There's another town called Rosalie, which is clearly within the eastern undisputed part of the reservation. There's a school district called the Bankraft Rosalie School District, which is administered under the auspices of the State of Nebraska. And that's true notwithstanding the fact that much of the land is on the east side, and true notwithstanding the fact that many members, many students who go to that school are members of the tribe. Similarly. What the State can do, but the State wouldn't be obliged to do that. Wouldn't be obliged to provide schools. I see no basis for the State to refuse to provide services to its own citizens, especially if they are not members of the tribe. Well, it would be a question of sovereignty. The State- This is the reservation, yet your argument, it's the reservation, and that's not the State land. So we're going to spend our money for schools or whatever on the, in the State, not in the reservation. The State retains regulatory sovereignty to make laws with respect to its own citizens and non-members on a reservation. That's true on the east side. It's true on the west side. I think you were also maybe left with the impression after my friend's argument that the State would stop issuing environmental permits, and all of a sudden the tribe would start issuing them, that is not correct. First of all, the Environmental Protection Agency has been administering on the west side of the reservation, including providing permits for animal feedlots. There's also a permit for a wastewater- What's the Environmental Protection Agency, which the State or Federal? Federal. Federal. Including a permit for a wastewater treatment facility, although I believe it discharges into Logan Creek on the east side, so it may not tell us all that much about the jurisdiction. But our questions have been, suppose that you prevail, what can the State do? And we say, well, it's a practical matter, don't worry, they won't do it. The tribe won't do anything. The tribe won't do anything. What could the tribe do? What could the tribe do? Yes. To regulate non-tribal members. Right. So the things that the tribe could do would be any express delegation of authority from Congress. The only one that we've heard about is the alcohol ordinance. Beyond that, the State and tribe could go back to the- We heard about the few, the revenue sharing. That's right. There was an agreement to share revenue fuel, although that was something that the State entered into voluntarily with the tribe. Beyond that, the tribe would have to fall under one of the two Montana exceptions, which are, as this Court is very aware, because of the dollar general case, very limited. I want, I suppose, one reason the tribe might not provide services is because the area is 98. Whatever percent, non-tribal, right? I think that's absolutely correct. So they would be if any services would be for the how many nine- nine Indians in the area or 15 Pardon? How many non-Indians own land in the Western part? It's almost entirely non-Indian in the Western part. And for that- Could the tribe enact ordinances that govern the Indians in the- in the Western part? They could, but if we're talking about the effect on non-members, they would have to fall under the one- one-of-the-two Montana exception. But at least as to tribal members in the West. That's right. Tribal members on the- I would be subject to the tribe's jurisdiction, which they otherwise would not. I think that that's accurate. If I could go to the City of Cheryl argument, which got brought up a lot today, I think this case is extremely different from City of Cheryl for a number of reasons, but let me give you two big ones. In City of Cheryl, this Court held that principles of equity restrained the tribe from trying to resurrect a claim of inherent sovereign immunity. In this case, by contrast, first of all, we're not just talking about the tribe's jurisdiction, we're talking about the jurisdiction of the United States as well. And second of all, we're not talking about a claim of inherent authority. This is authority exercised pursuant to a Federal statute, 18 U.S.C. 1161. And for that reason, principles of equity simply don't apply here. Moreover, in City of Cheryl, the- I don't understand that. Try it again. Sure. Principles of equity do not apply here. They don't apply in the same way. So in City of Cheryl, the Court applied a latches-type reasoning, but latches would not apply to prevent the exercise of authority under a Federal statute, an express delegation of authority under Federal law. Why not? Because that's what the Court said, for instance, in the copyright decision that Justice Ginsburg recently wrote, which is that when you have background principles of equity, they are presumed not to be applied and be displaced when there is a substantive law that Congress passes to deal with the same issue. The law that authorized the imposition of these taxes in the Western part of the reservation. The law authorizes the exercise of this authority if there is a reservation and if the tribe applies to the Department of the Interior, which has to approve the ordinance. What doesn't that beg the question? The question is whether or not this reservation has been diminished. So it's not the reservation. Well, that's the question with respect to the application of the statute. But when we're talking about City of Cheryl, we're talking about background equitable principles. And I'm simply making the point that those principles don't apply when you have an expressed congressional statute dealing with the same issue. If the City of Cheryl did apply, if the City of Cheryl did apply hypothetically, I'm not may saying all the differences you're pointing out. Would you lose? No. Because again, we're not talking about just what the tribe can do. We're also talking about the jurisdiction of the United States as well. And there is certainly nothing in City of Cheryl, which suggests that the jurisdiction of the United States pursuant to a congressional creation of a reservation can be curtailed by the tribe's failure to exercise authority in the disputed nation. Right. I'm more inclined to vote your way if the City of Cheryl does apply than if the City of Cheryl doesn't apply. Well, what you're telling me is, unless you get there through Solom, it doesn't matter whether the State and non-Indians have for generations viewed this land as their own. That's what you're telling me, right? Well, I'm telling you that to the extent City of Cheryl applies, it applies to a very different question, not the question as to where the borders of the reservation are. It applies to the question, what can the tribe as a basis of its inherent sovereignty do? Now, it might under different circumstances if the tribe tried to repurchase a bunch of plans. That's not what City of Cheryl said. Cheryl said the tribe had no jurisdiction. They said it had no sovereignty over the area anymore. Again, the diminishment question goes not just to the tribe's sovereignty, but the jurisdiction as well of the United States. And if we're talking about expectations, another point that I would make is that the single best evidence of what these parties could have expected is the retrocession. Because that was a unique moment in which the State of Nebraska and the United States talked directly and officially to one another about the burdens and responsibilities for exercising jurisdiction in reservation. And the United States, in the Federal Register, as official as can be, said the entire reservation remains intact. And the State of Nebraska, as we point out in our brief, had exactly the same understanding. The Assistant Attorney General, for Nebraska, came and testified before Congress that all of Thurston County is within the Winnebago and within the Omaha reservation. That determines the meaning of the 1882 statute. Not in the least. It goes to the- That's what I think. I was simply responding to the point that the expectations here might be all in the same direction. I would also point to 30 years of Nebraska revenue rulings, all of which say point blank, Pender is still part of the reservation. I would also point to the definition of Thurston County. As my friend pointed out, Pender is the county seat. I think it's implausible to know that the- to assert that the State of Nebraska wouldn't know that its own law specifies that all of Thurston County is within the reservations of the Omaha and the Winnebago's. I would also like to address if I could the tipping point theory that I think emerges from petitioners reply brief. And that's the idea that in 1872, Congress tried but failed to diminish the reservation because there were only about 300 acres sold. But in 1882, it succeeded because a lot more land was sold. I think there are a lot of problems with this theory. First of all, if that was what Congress had in mind, presumably it would have specified some way to know when the tipping point had been reached, some percentage of land sales, some other measure of success. There's nothing about that in the text. There's nothing about that in the legislative history. Second of all, the concept that Congress could attempt but fail to diminish reservation, as my friend said that it did in 1872, is a concept that is wholly foreign to this Court's jurisprudence, which makes clear that Congress has plenary power. And finally, I think this Court should be very reluctant to assume that Congress implicitly transferred any part of its authority to change the borders of an Indian reservation to private parties and made it contingent on what this Court in Dakota referred to as uncertain future sales. Well, is that saying there's no such thing as de facto diminishment? I think that de facto diminishment, if you think of it as some sort of freestanding alternative path to change the boundaries of a reservation, I do agree that it doesn't exist. But if you're talking about it. How is that consistent with the language and soul in the Justice Ginsburg Red? I think it's a little bit hard to know exactly what the Court meant. This Court has never found de facto diminishment. All seven of its surplus land cases were decided on the basis of congressional intent. And then there were sometimes a few sentences thrown in about how the status quo wouldn't change very much. I want to leave you with one more point. What about Sheryl? Pardon? What about Sheryl? Sheryl is very explicit that it is not a diminishment ruling. There's a footnote in City of Sheryl, which makes very clear that it is not deciding the diminishment issue or the jurisdiction of the United States. What's vague about the language where non-Indian settlers flooded into the open portion of a reservation and the area has long since lost its Indian character, we have acknowledged that de facto, if not desury, diminishment may have occurred? I think you have to read that sentence in light of Yangtonsu, which says that when you're talking about the subsequent treatment of the area and the pattern of settlement, those are relevant only in so far as they bear on the touchstone of the inquiry, which is congressional intent. If I could find a look at the passage, it goes on then to discuss in addition to that, then we look to subsequent demographic history as an additional clue as to what Congress meant. I read those since the two different paragraphs is making two different points. I think you could definitely read it that way if you just had solemn. I think if you read solemn in light of Yangtonsu, you reach a different result. If I could make one final point about unsettling expectations, there are more than 300 federally recognized Indian reservations all throughout the United States. 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 wear. If there are no further questions. Thank you, Council. Mr. Smith, you have four minutes remaining. Thank you, Your Honor. Where do I start? Wood start first with pointed out to me by Code Council that on this statement I made in response to Justice Kagan. The eight-circuit briefs do cite Sheryl and supported the proposition for de facto of diminishment. My apology, I hadn't argued at that point, but it is there in the eight-circuit. I would cite to the joint appendixes, so the Court is aware, exactly where it can find that it is undisputed as far as the demographics, the jurisdictional history, J.A. 215 to J.A. 216, J.A. 318 to J.A. 319, J.A. 609 to J.A. 611. The concept that nothing really big is going to change, having the tribal police show up in their police vehicles patrolling the streets because it's on tribal land is going to be a huge disruption of expectations. My background is in criminal law. I know if you have a crime you're investigating, you don't know, not all crimes. You know there's not a science saying, gee, this was committed by an Indian, this was committed by non-Indian. You have a lot of who done it, and which the question is who's supposed to investigate. You have this overlapping jurisdiction where law enforcement itself is confused as to who's supposed to be investigating when they don't even know maybe who the perpetrator is. The idea that a tribal member of a state governmental authority somehow shows. Excuse me. Wouldn't the latter be the case with respect to any municipality that's within a reservation? We've been told there are a lot of those. And wouldn't that be a problem in all of those? Namely that you have overlapping jurisdiction of tribal police and municipal police and until you know who the perpetrator is, you don't know which one has jurisdiction. It's a problem if you know and chose to live on an Indian reservation. I mean that exists. What's different in this case is the history is of 130 years of people who believe and chose and they are not living on an Indian reservation. They're living in the state of Nebraska. I call the State Patrol. I know the tribal police are not patrolling up and down my street. That's the difference. It's the justifiable expectations of the people who live there. The point is the government says, fine, make that argument, make it under the rubric city of Cheryl. Maybe you make it when you go down on remand or something. But it is workable to divide the issue into two parts. The first issue is what's the reservation? And the second issue is what can you do on the reservation? When you get to question two, if the tribe has made no assertion of jurisdiction, nobody even knows about it for 150 years. Maybe it's basically unfair to let them do what they want to do. And that depends on a lot of factors such as what Congress says. Now, so what do you think of that argument? Let's leave it for later. Nobody's argued it. I'm glad I didn't answer what I thought of that argument. Your Honor, what it is still the invites the litigation over what is the extent of the power? Who's got the power to govern? What is the extent of their power? Uncertainty when you have expectations, you live in an area where the State governs you and then to say we can go back and litigate all these issues is, is just not what the public expects. The people in Pender, this is a big deal. They care about this. They have expectations. It's a big deal whether a tribal counsel has authority over us. We don't get to vote for them. Their Constitution doesn't even allow us to appear at their public meetings. The concept that somehow or other we can't find the right way because it's not on Google is frankly silly. It's very easy to go back, do surveys, find exactly where the right way is. Thank you, Counsel. The case is submitted