U.S. Supreme Court Hears “Checkerboarding” Case That Could Expand Tribal Sovereignty

Checkerboarding refers to the federal government practice of breaking up what had been communally owned tribal reservations into individually owned parcels, called allotments. That way, non-Natives could buy land from individual Native Americans and weaken Native control of the reservation.

Leech Lake in northern Minnesota is one of the extreme examples of what can happen under this allotment system. According to Cris Stainbrook, president of the Indian Land Tenure Foundation, the Leech Lake Band and individual allotees own a mere 4 percent of the land within their historic reservation boundaries.

Downtown Pender
Downtown Pender (Wikimedia Commons)

A case now before the U.S. Supreme Court — Nebraska v. Parker — is bringing an interesting challenge to this historical effort to diminish Native control over traditional reservation lands. The case started when Omaha Tribal members tried to impose liquor licenses and taxes on alcohol sales in Pender, Nebraska.

According to Wikipedia, Pender had a population of 1,002 in 2010 and supports seven liquor stores. The Omaha Tribe tried to gain revenue in 2006 by imposing taxes on these “nuisance” businesses.

Business owners affected by the proposed tax sued to block them, arguing they were not on the reservation and the tribe had no jurisdiction. The state of Nebraska joined the plaintiffs. The Omaha Tribe argues that while they no longer own land in Pender, it is still within the historic boundaries of its reservation.

The legal website Oyez.org summarizes the history of Nebraska v. Parker:

The trial court held that Pender, Nebraska, was under the jurisdiction of tribal law because the U.S. Senate’s passage of an 1882 Act that allowed the Omaha tribe to sell allotments of its tribal land did not diminish the tribal boundaries of jurisdiction. The U.S. Court of Appeals for the Eighth Circuit affirmed the lower court’s decision.

The U.S. Supreme Court heard oral arguments in the case on Jan. 16, but has not issued a ruling yet. (A transcript of the oral arguments is available on the Oyez website.) According to the plaintiff’s attorney, the population in the “disputed area” where the Omaha Tribe is trying to levy taxes is 98 percent non-Indian. Still, the question before the U.S. Supreme Court is whether the 1882 states gives Omaha tribe legal control over the historic reservation boundaries, including lands now predominantly owned by white people.

What is not immediately clear is the impact this case could have on Leech Lake and other reservations should the U.S. Supreme Court rule in favor of the Omaha Tribe. The main law driving the federal allotment policy was the Dawes Act of 1887, also known as the General Allotment Act. The 1882 law in play in this particular case could be unique.

However, it appears that other communities that are near Indian reservations are worried about this ruling. Mike Myers, the founder and CEO of Network for Native Futures, wrote a column in Indian Country Today on this case, headlined: The Supreme Court’s ‘Just Cuz’ Doctrine for Cheating Natives. He notes that the Village of Hobart Wisconsin, which is next to the Oneida reservation, has filed an Amicus brief in this case on the side of the plaintiffs. Hobart, he wrote, “has been fighting against Oneida sovereignty and jurisdiction for decades.”

Myers expressed strong concern that the Supreme Court would simply make up the law as it goes, and rely on a similar argument that it used in the City of Sherill v. Oneida Nation (2005). In an effort to recreate its historic reservation, the Oneida tribe in New York began repurchasing land inside what was now the city of Sherill. The city began taxing the land. The Oneida countered it should be tax exempt since it was inside the reservation boundaries. In this case, the Court ruled against the Oneida. According to Oyez:

In an 8-1 opinion delivered by Justice Ruth Bader Ginsburg, the Court held that standards of federal Indian law and federal equity precluded the Tribe from unilaterally reviving its ancient sovereignty over the land at issue. The Court pointed to the “longstanding, distinctly non-Indian character of central New York and its inhabitants” and the fact that regulatory authority over the land had been exercised by state and local government for 200 years.

The crux of the injustice here is that the Courts are penalizing tribes for not having brought their challenges sooner, which ignores the fact that tribes were at an extreme power disadvantage for most of that time and could not press their cases. As Myers puts it in his article: “How quickly they forget that they made it impossible for any Indigenous nation to mount an argument in any American court.”

 

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