good morning thank you your honor may please the court my name is jean summerlin appearing on behalf of the appellant's if this court finds that congress diminished the western portion of the indian reservation absolutely nothing will change in the manner in which jurisdiction ha been exercised over that reservation in which social services have been provided on the western portion of the reservation and the manner in which governmental services have been provided on the reservation since the early eighty's until the very recent past  that's correct but that is definitely your honor but again that's a that's a development that's occurred in the very recent past so i was referring more t very recently and this is true because the land west of the railroad right of way will never possessed any indian character prior to the eight hundred seventy two act the tribe was not utilizing that land they didn't have any improvements on the land houses fencing anything like that the tribes primary area of residence and use was east the eastern portion of the reservation secondly the tribe saw it on a continual basis to get rid of the western portion of the reservation to sell that so that they could raise funds for farming and other uses beginning and eight hundred seventy one the tribe petition congress to separate and sell that area west at that point west of a boundar line that would run north and south along the section lines definitely but the actual language that the tribe used was to separate this land from the remainder of the reservation and in eight hundred seventy two when congress passed the eight hundred seventy two act they repeated that language the eight hundred seventy two act provided this area on the western portion of the reservation would be separated from the remainder of the reservation and offered for sale are you saying now that the eight hundred seventy two act was a diminishment itself was a diminishment of the reservation i don't believe that that's the case ok that's what i thought was your position but you just said well you two hundred seventy two act uses the language of separation and i thought your diminishment argument hinged on language of separation so it would seem to follow that you must think the eight hundred seventy two act of minish well i thought it did and then separation language apparently isn't dispositive it's not dispositive at all but it does it does fall into the act again there you're talking about legislation which treats the western portion of the reservation quite differently than the eastern portion so with risp back to the western portion of the reservation that act provides all of the western portion west of the railroad right of way will be opened for settlement by non tribal members on the other hand looking at the eastern portion of the reservation that area will be allotted open for allotment to tribe members with the with the land it's not a of a lot of the tribe members then being deeded to the tree or patented to the tribe in common so there you've got an indication of congressional intent certainly not the type of congressional intent that this court has previously found yankton where they took a number of kind of related acts in the one thousand nine hundred and they used some of the earlier acts to inform as to the language of the later acts and what congress is was intent was here again looking at the eight hundred eighty two act on the eastern side of the reservation you've got tribal interests that are being retained in that land on the western side there is none and i think that that is a key distinction because when you look at the cases where the courts have not found diminishment there generally is some type of tribal interest whether it's a mineral right timber rights land that's been retained for sun some tribal purpose there are some continuing tribal interest in the land which you know is being claimed to be diminished where here i think you've got a very clear separation not only do you not have been in character in the past or current use at the time of these acts but congress is not you began with representative valentine statement that you know he's spoken with the tribe and the tribes desire is to sell this western portion west of the railroad right of way so that the non tribe members will settle that area create improvements they will grow up they will develop the area up from the western side the tribe itself will then develop the area up to the eastern side and the railroad right of way will serve the boundary i mean that and convey language or some certain so there's no question that we don't follow it then kind of that almost a rebuttable presumption of the management honor what we would refer the court to is the fact that you have to consider all of the surrounding circumstances so it's not simply a matter where the ledge of the statutory language clearly will say you diminish this or you don't  it's an analysis of the statutory language the legislative history the immediate surrounding circumstances and then to a lesser extent kind of the subsequent development of the land and what happened there so our position is that when you look at of it and it does require more of a nuanced analysis this is not a formulaic approach where you can rely on the statutory language to say clearly there was a diminishment here and again going through the legislative history not only do you have senator or representative valentine statement but you've got senator saunders also explaining that this eight hundred eighty two act will practically break up that portion of the reservation at least that which is to be sold and that the lands of the tribe occupy will be will be segregated and going back for a moment i mean thinking about what diminishment is you know the supreme court has said you look at did congress intend to reduce the size of the reservation did congress inten alter the boundaries of the reservation and as this court said in gappy diminishment suggests that a discrete easily identifiable parcel of land has been removed from reservation status so looking at the legislative history and senator sonner statement that this is practically breaking up that portion of the reservation which is to be sold if it fits neatly within that  the other aspect here is that there was an congressional understanding that the act would reduce the size of the rep of the reservation statements in the in the congressional record show that senator  concerned that you know would this leave enough land for the omaha try if fifty thousand acres were removed from the reservation and so he went to the commission of indian parents he went to the indian agent to assure himself that that would leave us sufficiently sized reservation it's also important i think that even though the eight hundred eighty two act alternately allowed tribe members to select allotments west of the railroad right of way it was certainly congress's understanding at the time that no tribe members would do so going back in history when the tribe entered into their eight hundred fifty four treaty and that allowed allotments all of those whether you know this act was actually taking the best land of the reservation away from the tribe members and opening that for settlement suggested that none of the tribe members desire to live on the western portion of the reservation portion of the land on the eastern part of the reservation on indian land today i think a vast majority there there are some tables that we haven't our brief that are also in the much many of them are a lot much that were later so on indians that right that is correct so we look to subsequent development tell us very much as i think particularly as you move out in time it tells us l but if you look at the period like immediately after the eight hundred eighty two act was was adopted what you see there is that from the very beginning west of the railroad right of way was populated i believe ninety nine percent non tri land acts as that land was owned by tribe members in fee it ended up going out of tribal hands as you look at that post to act evidence there are a number of things that i think are important the fact that the commissioner of indian affairs no longer reported that fifty thousand acres west of the railroad right away as being part of the acreage of the omaha  reservation in eight hundred ninety the indian agent described the land sold west of the railroad right of way as not being part of the ohio reservation in one thousand know one the indian agent reported that the railroad right of way served as the southwest boundary of the omaha reservation and again as you look at this subsequent history and obviously is the court is recognized using subsequent history in an attempt to determine congressional intent is a somewhat perilous matter but but certainly the closer you are in time to the actual act of congress the more relevant that evidence would be your honor i'd like to reserve two minutes of my time for rebuttal and i feel right at you minute thank you my name is boyd johnson appearing on behalf of the state of which is intervened in this matter in support of the opponents the state's consistent and virtually uncontested exercise of jurisdiction and provision of services in the area  number native americans live on board all that sort of thing in your name i think and i think that the record would indicate that there have been some instances in which that has occurred in the states not not attempting to thousand nine hundred the census figures have shown that oftentimes the native american population of the actual area in question is as low as one percent and when you have that overwhelming population  supreme court has recognized that it potentially creates a in administrative and governmental burden on the state and local governments unless there are in the us there are necessarily a finding of de facto diminishment which can if there are if you see a settlement population like that it does bear on the intent of congress and the intent of the parties when they initially passed the act the tribes recent attempt to impose the alcohol ordinance is really the the only instance in which medical services child perspective protective services or welfare services west of the right away and nor does it operate a school industry or business west of the right way is that in fact any factor certainly i believe that's a believe that's absolutely a factor i think that's a that's an indication that not only the tribe but the federal government understood that the state would assume actual jurisdiction over the area west of the right away you certainly but if you go back to back to eight back to the eight you know the eighteen eighties and the early one thousand nine hundred the situation seemed to remain the same throughout time there are some acts of congress and if i'm remembering correctly after eight hundred eighty two  refer to the land west as part of the reservation i think that the record is mixed on the legislative history i think there are the acts may have not of been purporting to necessarily define the boundaries of the reservation but there was some ambiguity or some some mixed evidence in terms of where the boundaries were again i think that from the state's perspective what has happened here is that you've had what this what this court in the supreme court  recognized as the potential doctrine where you see a de facto diminishment and in duncan energy the courts certainly acknowledge the existence of that doctrine they found that you found that the doctrine was in a political under those circumstances because there the area in question contained the tribal seat of government half of the population was native american and and the native americans had reserved the mineral rights underlying the land in the area be i think that the questions of jurisdiction and the question of administrative burden is unsettled i think we've gotten some guidance from the supreme court on those questions but i'm not sure that it's that it's clear the greater concern  really is the protection in the end up holding the justifiable expectations of the residents of pender nebraska that have lived there and did have developed their businesses and relationships based on the understanding that they were residing within the state of nebraska rather than on the omaha tribes reservation that would be versus the expectations of the native americans right certainly but i think the expectations of the of the tribe are that the boundary line was the the right of the railroad right  no no your honor i think that the state's few is that the boundary line is the is the right of way the railroad right away and everything west of that despite the you know the the primary population center being pender nebraska the entire fifty thousand acres was what the eighty two act intended to separate from the reservation thank you  three prongs and what i consider the problems of which we are to look at that is first and foremost the language of the statute itself that we're dealing with secondly the historical context of that statute and the statutes treaties around that and third and and third only if the other two are ambiguous do we look at what our opponents want to look at and that's that third prong and that's a subsequent passage in acts or subsequent to the passage of the agreed by separate agreement to cede cell relinquish all title right to the property that agreement which i believe this probably properly in the second prong but that agreement was incorporated into those statutes in the legislative history throughout so the rose but case uses that same language as well the hagen case which is the only other case which is has found diminishment used the language of restoring it to the public domain and i think there's two things about that first of all as is that we don't have in this particular act that we're dealing with the omagh tribe in a language drift restoring it to the public domain the other thing that may be not as  clear in the briefing is that in the hague and case they talk a lot about restoring it to the public domain and that meant that it was restored back to the united states government which doesn't allow the united states government to homestead the property and did indeed homestead it to various settlers what's interesting about this cases is that when they depart the interior was specifically asked about that the property west of the railway line in this particular statute they said no that property is not subject to homestead laws which tells you that they at that point in eighty two through eight hundred ninety two never thought that this land was part of the reservation if they did was not relinquished or diminished from the reservation if they did they would have allowed homesteading laws to apply they did not the clear implication there is is that there was always a belief that this remain think if they i think of the department of interior was referring to this property i mean they were looking back to the eighty two well your honor the partner of interior throughout and the statutes throughout even before and after the d with respect to this particular statute continually went back to the omagh tribe and asked them if they would allow for the payments to continue all right so if it was if if it left the reservation if it was separated why would they go back to the tribe at that point it would have been us government property i mean if if the opponents argument is right there is no reason to go back but they did year after year after year and continually and in response to your honor's question earlier the eight hundred ninety the they specifically said that the purchasers of the land west of the railway line were part of the land of the omaha tribe i mean specifically that that way and continued to be omaha tribal territory what do you think separate means instead you just said if it had been separated as though separated means means any link would well not all the way you said a minute ago sounded like separate language is found in the seventy two act it is not found in the up and as as judge cup said in his order and looking at this if that language had any relevance the fact that it's absent in the eighty two act is mitigates in favor of the tribe that this was not diminished and i think that's a that's an important point is there any  honor and that stands for good reason if that were true as the court pointed out just a few minutes ago if that if that were true then we'd have you know the rev reservation would be checkerboard there'd be all sorts of i mean there would be no reservation and that's and that's been laid out is just simply wrong there hasn't been that sort of issue we've always had that that is the only thing that changes for the state is a state goes back and continues to abide by the agreement they signed with the tribe and share in the tax revenue from the you know your honor the the good news is i am unaware of a major crime involving an american indian in the pender area that that issues come up it just hasn't been an issue in the past and i think  that the fed you know out of almost as indicated that if that comes up it's their intent to do so but i do think that leads to another good point in that to this is that you know with the reservation you know extending as it always has through the area you know the criminal matters now the the ability for the tribe to affect criminal matters against non tribal members is very limited and very very limited by statu nd that would i mean she's that's been true you know throughout time i mean i think they believe that they would yeah i really don't see that your honor i mean it's  tribe sets in respect to to the city of oman where that seat is for prosecuting major crimes i don't see that being a major issue at all i think that office has continually believed just as we all have that that western portion the boundaries always been reservation and if those if an unfortunate incident like that came about she would have prosecuted it straight away thank you know i'm not i'm not sure if there's the tribal consent into the record itself i'm not sure it's not specifically in the we record well your honor i don't there is certainly nothing in the record that's even remotely close to an agreement such as rose bud or any other cases that founded management where the tribe specifically said and agreed to the fact that we  is that there is certainly language that the tribe wished to receive funds in the sale of the property that is there is absolutely no or i have certainly not found any and judge cup did not find any in the record dealing with any historical evidence or comments ever made that there was to be a change in the boundaries of the reservation and the in the concept of selling land inside a reservation to non indian is certainly not unique not maybe two or before after the idea of simply selling land for the benefit of the tribe that needed money at that point was not unusual at all but the idea of actually seeding the land and selling it and changing the reservation line was indeed different and unique and certainly not done in this case we believe thank you  the court let me quickly recap on the statutory language prong of the diminishment analysis why that is compellingly in our favor and that is because the eight hundred eighty two is not only a run of the mill surplus land act of the sort that has consistently been found not to affect a diminishment but it also includes a provision for making a lot mints from the reservation at the same time that the reservation is open for sale and the language in the act expressly says that they may take allot diminished by fifty thousand acres but as the supreme court consisted therefore no as the supreme court consistently has the use of the term diminishment even in statutes including the solemn statute and other statutes at that time often was used generally was used to refer to the amount of land and at issue not diminishment of reservation boundaries and diminishment like as i said has been used in a number statutes in which the court has found there not to be diminishment two congress still viewed the reservation to be totally intact so whatever however the interior department is using that language it's meaningless for the purposes here because it's inconsistent with congress's understanding as of eight hundred eighty two that the those you know session of all right relinquishment exactly posing here the exact same kind of contrasts that this court in duncan energy  was particularly illuminating and it that it would be contrary to the canon to resolve ambiguities in favor of the try to hold that the tribe had intended the same thing by two different companies such different language now on the context and the legislative history of course the courts were so compelling on the statute you have to find an unequivocal evidence that the context of the legislative history was demonstrated an intent to diminish and it did not and you know the main reason we know that so compellingly is because the eight hundred seventy two act did not to minish and the eight hundred seventy two act had basically the same language except less favorable to the tribe because it did not provide for the allotments so congress cannot have intended to do something completely different in the eight hundred eighty two act with the exact same language look so the cont that congress understood that eight hundred seventy two acted not diminish the reservation and and it didn't do so in the eight hundred eighty two act either and of course as we set forth in our brief it couldn't have because the boundary was changed i mean some of the land that would have been out of the and there's really and i have to say in the reply briefs the plaintiffs opponents completely make no response to that argument on our part they went totally to the demographics and the subsequent history which is basically all they have which this court also said in duncan that exclusive reliance the subsequent events you find inappropriate and it's inappropriate here but in any event the subsequent history is very much as much in our favor in the years after the eight hundred eighty two act up through night hundred ninety four in which it referred to the rest of the lands west as a right away as reservation lands which again solemn relied to find for support for its finding and in particular particularly important just rather than just calling it reservation the eight hundred eighty five statute this is all in our brief so that they were reservation that the western side continued to be reservation land after the eighty two act was passed and the plaintiffs appellants provide no theory under which diminishment could have occurred if it wasn't placed back in the public domain at the time of the eight hundred eighty two act there are only theory it could be that it came out one by one as the parcels were acquired and that is cut totally contrary to the supreme court case law that would mean that in every case w well i'm i mean i understand i think that the one of the hardest parts of the yankton case is the theory that which isn't an issue here is what happens to the land after it goes out of allotment which is you know sort of a next stage issue that doesn't it doesn't have to be here anyway i believe that's correct and if you look at the the history by our by the tribes expert you know it was there was a minority actually that approved it but they were a vocal minority but i don't think we consider that relevant one way or the other but it's true that there has never been a diminishment found in a situation where a surplus land act was approved by a tribe because otherwise the tribes acquired a some certain right  tribe just give up all their reservation based on the possibility that some of the land would be sold which is particularly true here because only two parcels or three hundred acres were sold under the eight hundred seventy two act i mean the tribe knew it was risky whether there would be the land would actually be sold in the eight hundred eighty two x so they certainly certainly were not giving up all sovereignty and all you know authority over those lands for all time i did want to clarify one point or maybe the reservation because it was reservation land and that is at page twenty one of our brief and found in appendix page one forty two on the major crimes discussion  sixty's and other states the united states gave its criminal jurisdiction in indian country to this to nebraska then allowed that to be ceded back to the united states which nebraska did changed if there's no more questions thank you very much thank you your honor first i'd like to clarify in response to judge colton's question i misspoke the percentage of indian population east of the railroad right of way according to the census data from one thousand eight hundred to two thousand has ranged from fifteen percent to seventy percent and currently as of the two thousand and seventy and as of the two thousand census it's currently seventy percent try member yeah i apologize i think i was thinking in terms of property ownership rather than percentage and i don't know that there's a specific property ownership per percentage in the record and importantly the tribe continues to have tribal offices east of the railroad right of way schools they offer tribal services east of there are right of way and as the record reflected the tribe has never imposed its tribal code west of the railroad right of way so there is no evidence the tribe has ever attempted to assert jurisdiction west of the river right of way as they have east of the railroad right of way thank you very much  irish refresh my recollection what the history vance has caused this liquor taxation issue to pop up at this time well i think that history stems from the fact that for you know a period of you know more than one hundred years there's really been no provide alcohol and education and rehabilitation but in terms of why that occurred you know in the mid two thousand and four the crime to do this or is this just inherent in their governmental structure that they have the authority to impose taxes like well my understanding is that the tribe as a sovereign has the authority to enact that language but then it's subject to approve i thought there may be had been i thought from the record there maybe had been some action that led to this but what was the last thing you said is subject to approval what well i know that it had to be published in the federal register and so i but i apologize or not i'm not absolutely certain established not to try it would have been the federal government