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The Wild West Comes to the Supreme Court

By Casey C. Sullivan, Esq. | Last updated on

It was a frontier-themed set of oral arguments in the Supreme Court today, as attorneys debated how to define native tribal territory and the extent of federal regulation over wild lands. The first case involves liquor stores and the boundaries of the Omaha Indian Reservation since 1882. The second concerns a 70-year old elk hunter and his renegade hovercraft.

Here's what went down when the Wild West came east for oral arguments.

This Land Is Whose Land?

There aren't many members of the Omaha Tribe in the small farming community of Pender, Nebraska. But the 1,012 largely non-native residents still pay a 10 percent tax to the Tribe every time they stock up on liquor, as both the Omaha Tribal Court and federal district court agreed that Pender was located on tribal land. Now, Pender and its liquor stores have sued, arguing in Nebraska v. Parker that Congress diminished the boundaries of the tribe's reservation when it authorized non-tribal settlement on reservation land in 1882.

Yes, this is a case of cowboys vs. Indians.

In oral arguments today, Pender argued that for more than a century the "disputed area" had an almost entirely non-Indian population and was governed exclusively by Nebraska, without the Omaha Tribe exercising authority. That, according to Pender, is enough to find under Solem v. Bartlet that the reservation has been de facto diminished, or as Justice Scalia described it "a sort of adverse possession."

More than most, it was an oral argument about history: the history of the land in question, the history of the reduction of native sovereignty, and the history of just what the heck Congress intended in 1882, and whether that can be determined from later congressional acts.

No Hovercrafts Allowed

Jumping a bit farther west, the Court then turned to the case of John Sturgeon, the septuagenarian elk hunter from Alaska. Sturgeon ended up before the Supreme Court after his hovercraft broke down on a hunting trip in the Yukon-Charley Rivers National Preserve. Parks officers told Sturgeon that he couldn't use the hovercraft on the river, since hovercraft could allow transportation into "locations where the intrusion of motorized equipment by sight or sound is generally inappropriate."

The problem, however, was that the National Parks Service does not own the rivers within the Yukon-Charley Rivers preserve. Rather, the river is state land (or water) and the Alaska National Interest Lands Conservation Act limits NPS regulations to federally owned lands.

Longstanding precedent allows the federal government to regulate activities adjacent to and effecting federal lands, but Sturgeon argues that Alaska is different. At oral arguments, Sturgeon argued that ANILCA created a "grand bargain" between state and federal governments, limiting federal regulations to federal lands alone, not the navigable waters that run through them.

But, as Justice Sotomayor pointed out, ANILCA isn't so black and white. It allows for federal regulation of boating and water activities within public lands, for example. Chief Justice Roberts and Justice Scalia were quick to point out, however, that even if ANILCA set a full prohibition on Parks regulations outside of Parks land, the waters at issue wouldn't be out of federal reach. Namely, they would still fall under the jurisdiction of the EPA, U.S. Army Corps of Engineers, and other federal agencies -- just not the Parks Service.

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