Richard Smith v. Mitch Parker , 774 F.3d 1166 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1642
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Richard M. Smith; Donna Smith; Doug Schrieber; Susan Schrieber; Rodney A.
Heise; Thomas J. Welsh; Jay Lake; Julie Lake; Kevin Brehmer; Ron Brinkman;
Village of Pender
lllllllllllllllllllll Plaintiffs - Appellants
State of Nebraska
lllllllllllllllllllllIntervenor Plaintiff - Appellant
v.
Mitch Parker, In his official capacity as Chairman of the Omaha Tribal Council;
Barry Webster, In his official capacity as Vice-Chairman of the Omaha Tribal
Council; Amen Sheridan, In his official capacity as Treasurer of the Omaha Tribal
Council; Rodney Morris, In his official capacity as Secretary of the Omaha Tribal
Council; Orville Cayou, In his official capacity as Member of the Omaha Tribal
Council; Eleanor Baxter, In her official capacity as Member of the Omaha Tribal
Council; Ansley Griffin, In his official capacity as Member of the Omaha Tribal
Council and as the Omaha Tribe's Director of Liquor Control
lllllllllllllllllllll Defendants - Appellees
The United States
lllllllllllllllllllllIntervenor Defendant - Appellee
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: October 7, 2014
Filed: December 19, 2014
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Before LOKEN, BEAM, and COLLOTON, Circuit Judges.
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BEAM, Circuit Judge.
Appellants, the Village of Pender, Nebraska, and resident owners or agents of
establishments in or near Pender engaged in the sale of alcoholic beverages, appeal
the district court's1 denial of Appellants' motion for summary judgment requesting
declaratory and injunctive relief from the Omaha Tribe's attempt to enforce its liquor-
license and tax scheme on them, and the court's corresponding grant of summary
judgment in favor of the Omaha Tribe. The Omaha Tribal Court as well as the federal
district court determined that Pender and the relevant areas involved in this action are
located on Omaha tribal land. Appellants challenge the district court's determination
that the Omaha Indian Reservation was not diminished by an 1882 act of Congress.
We affirm.
In 2006, the Secretary of the Interior approved amendments to Title 8 of the
Omaha Tribal Code, which modified the tribe's Beverage Control Ordinance and
allowed the tribal government to impose a ten percent sales tax on the purchase of
alcohol from any licensee on tribal land. The Omaha Tribe attempted to enforce this
alcohol tax on the individual plaintiffs, resulting in this action. Appellants claimed
that they were not located within the boundaries of the Omaha Indian Reservation and
thus not subject to the tax.
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
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As noted by the district court, the pivotal issue in this case is whether Congress
intended to "diminish" the boundaries of the Omaha Indian Reservation in Nebraska
when it enacted an 1882 Act that ratified an agreement for the sale of Omaha tribal
lands to non-Indian settlers. If it did, the district court stated, "the area involved
would no longer constitute Indian country, and the Omaha Tribe could not regulate
and tax alcohol sales in Pender, Nebraska." We review de novo a grant of summary
judgment. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en
banc).
The extensive legislative history surrounding the 1882 Act is discussed by the
district court. Most relevant to the required analysis–the touchstone, really–is
language contained in the 1882 Act and the effect it had on the Omaha Indian
Reservation, especially an area comprising approximately 50,000 acres that lie in the
western portion of the reservation and include the land upon which the Village of
Pender now sits. The Act of August 7, 1882, § 1, provided:
That with the consent of the Omaha tribe of Indians, expressed in open
council, the Secretary of the Interior be, and he hereby is, authorized to
cause to be surveyed, if necessary, and sold, all that portion of their
reservation in the State of Nebraska lying west of the right of way
granted by said Indians to the Sioux City and Nebraska Railroad
Company under the agreement of April nineteenth, eighteen hundred
and eighty, approved by the Acting Secretary of the Interior, July
twenty-seventh eighteen hundred and eighty. The said lands shall be
appraised, in tracts of forty acres each, by three competent
commissioners, one of whom shall be selected by the Omaha tribe of
Indians, and the other two shall be appointed by the Secretary of the
Interior.
Although not definitive, notably absent from this language is any explicit reference
to "cession" combined with "sum certain" payment, both of which have been found
"precisely suited to terminating reservation status." South Dakota v. Yankton Sioux
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Tribe, 522 U.S. 329, 344 (1998) (internal quotation omitted). As noted by the parties,
§ 3 of the 1882 Act did not provide a sum certain to be paid to the Omaha Tribe but,
rather,
the proceeds of such sale, after paying all expenses incident to and
necessary for carrying out the provisions of this act, including such clerk
hire as the Secretary of the Interior may deem necessary, shall be placed
to the credit of said Indians in the Treasury of the United States, and
shall bear interest [at five percent annually], which income shall be
annually expended for the benefit of said Indians, under the direction of
the Secretary of the Interior.
The district court held that this language did not clearly evince Congress' intent to
change boundaries of the Omaha Reservation, but rather "indicates that the United
States intended to act as the Omaha Tribe's sales agent for purposes of surveying and
auctioning its reservation land . . . with the proceeds held in trust in the United States
Treasury for the benefit of members of the Omaha Tribe."
As the district court also highlighted, the historical facts in this action are
undisputed and all are relevant to the instant analysis in varying degrees because in
this case, while the touchstone of our determination is the congressional purpose
expressed through relevant statutory language, we also consider the historical context
surrounding the passage of the act(s) at issue, and, to a lesser extent, the subsequent
treatment of the area in question and the pattern of settlement there. Yankton Sioux
Tribe, 522 U.S. at 351.
Based on our de novo review, we discern that the district court has thoroughly,
thoughtfully, and accurately considered the evidence in light of the guideposts
provided by the Supreme Court as well as this court. These guideposts allow courts,
sitting in judgment much later in time, a mechanism to most accurately discern the
contemporaneous intent and understanding of the relevant parties as it pertained to
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the relevant reservation land in question. See id.; Hagen v. Utah, 510 U.S. 399, 421
(1994); Solem v. Bartlett, 465 U.S. 463, 470 (1984); Rosebud Sioux Tribe v. Kneip,
430 U.S. 584, 586-87 (1977).
Based upon the record evidence, the district court in this matter has done just
that–accurately discerned the contemporaneous intent and understanding of the 1882
Act. The court carefully reviewed the relevant legislative history, contemporary
historical context, subsequent congressional and administrative references to the
reservation, and demographic trends, and did so in such a fashion that any additional
analysis would only be unnecessary surplus. Ever mindful to "resolve any
ambiguities in favor of the Indians," there is nothing in this case to overcome the
"presumption in favor of the continued existence" of the Omaha Indian Reservation.
Yankton Sioux Tribe, 522 U.S. at 344 (quotation omitted); Yankton Sioux Tribe v.
Podhradsky, 606 F.3d 985, 991 (8th Cir. 2010) (quotation omitted).
The importance and impact that this determination has on the entire community
of Pender and its residents is not lost on this court. As Appellants point out, this is
not a matter of mere historical curiosity or academic interest. Yet, as we have stated
throughout, the district court conducted the appropriate analysis and we agree.
Accordingly, we therefore affirm for the reasons stated by the district court in its
well-reasoned opinion. See 8th Cir. R. 47B.
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