(Slip Opinion) OCTOBER TERM, 2015 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

NEBRASKA ET AL. v. PARKER ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE EIGHTH CIRCUIT 

No. 14–1406. Argued January 20, 2016—Decided March 22, 2016 

In 1854, the Omaha Tribe entered into a treaty with the United States

agreeing to establish a 300,000-acre reservation and to “cede” and 

“forever relinquish all right and title to” its remaining land in present-day Nebraska for a fixed sum of money. In 1865, the Omaha 

Tribe again entered into a treaty with the United States agreeing to 

“cede, sell, and convey” land for a fixed sum. When, in 1872, the 

Tribe sought to sell more of its land to the United States, Congress

took a different tack. In lieu of a fixed-sum purchase, Congress authorized the Secretary of the Interior to survey, appraise, and sell

tracts of reservation land to western settlers and to deposit any proceeds from the land sales in the U. S. Treasury for the Tribe’s benefit.

Congress took the same approach in 1882 when it passed the Act in

question. That Act authorized the Secretary of the Interior to survey, 

appraise, and sell roughly 50,000 acres of reservation land lying west 

of a railroad right-of-way. W. E. Peebles purchased a tract under the 

terms of the 1882 Act and established the village of Pender. 

In 2006, the Tribe amended its Beverage Control Ordinance and 

sought to subject Pender retailers to the amended ordinance. See 18 

U. S. C. §1161 (permitting tribes to regulate liquor sales on reservation land and in “Indian country”). Pender and its retailers brought a 

suit against the Tribe in Federal District Court to challenge the ordinance, and the State intervened on their behalf. They alleged that

they were not within the reservation boundaries or in Indian country

and therefore could not be subject to the ordinance. They sought declaratory relief and a permanent injunction prohibiting the Tribe 

from asserting its jurisdiction over the disputed land. Concluding

that the 1882 Act did not diminish the Omaha Reservation, the District Court denied relief, and the Eighth Circuit affirmed. 
 

 

 

2 NEBRASKA v. PARKER 

Syllabus 

Held: The 1882 Act did not diminish the Omaha Indian Reservation. 

Pp. 5–12.

(a) Only Congress may diminish the boundaries of an Indian reservation, and its intent to do so must be clear. Solem v. Bartlett, 465 

U. S. 463, 470. This Court’s framework for determining whether an

Indian reservation has been diminished is well settled and starts 

with the statutory text. Hagen v. Utah, 510 U. S. 399, 411. Here, the 

1882 Act bears none of the common textual indications that express

such clear intent, e.g., “[e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests” or “an unconditional commitment from Congress to compensate

the Indian tribe for its opened land,” Solem, supra, at 470. The Act’s 

language opening the land “for settlement under such rules and regulations as [the Secretary] may prescribe,” 22 Stat. 341, falls into a

category of surplus land acts that “merely opened reservation land to

settlement,” DeCoteau v. District County Court for Tenth Judicial 

Dist., 420 U. S. 425, 448. A comparison of the text of the 1854 and

1865 treaties, which unequivocally terminated the Tribe’s jurisdiction 

over its land, with the 1882 Act confirms this conclusion. Pp. 5–8.

(b) In diminishment cases, this Court has also examined “all the

circumstances surrounding the opening of a reservation,” Hagen, supra, at 412, including the contemporaneous understanding of the 

Act’s effect on the reservation. Here, such historical evidence cannot 

overcome the text of the 1882 Act, which lacks any indication that

Congress intended to diminish the reservation. Dueling remarks by

legislators about the 1882 Act are far from the unequivocal evidence 

required in diminishment cases. Pp. 8–10.

(c) Finally, and to a lesser extent, the Court may look to subsequent demographic history and subsequent treatment of the land by

government officials. See Solem, supra, at 471–472. This Court has 

never relied solely on this third consideration to find diminishment,

and the mixed record of subsequent treatment of the disputed land in

this case cannot overcome the statutory text. Petitioners point to the

Tribe’s absence from the disputed territory for more than 120 years, 

but this subsequent demographic history is the “least compelling” evidence in the diminishment analysis. South Dakota v. Yankton Sioux 

Tribe, 522 U. S. 329, 356. Likewise, evidence of the subsequent

treatment of the disputed land by government officials has similarly

limited value. And, while compelling, the justifiable expectations of

the non-Indians living on the land cannot alone diminish reservation 

boundaries. Pp. 10–12. 

(d) Because the parties have raised only the single question of diminishment, the Court expresses no view about whether equitable

considerations of laches and acquiescence may curtail the Tribe’s 
Cite as: 577 U. S. ____ (2016) 3 

Syllabus 

power to tax the retailers of Pender. Cf. City of Sherrill v. Oneida 

Indian Nation of N. Y., 544 U. S. 197, 217–221. P. 12. 

774 F. 3d 1166, affirmed. 

THOMAS, J., delivered the opinion for a unanimous Court. 
 

 

_________________ 

_________________ 

 

Cite as: 577 U. S. ____ (2016) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 14–1406 

NEBRASKA, ET AL., PETITIONERS v.
 

MITCH PARKER, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT
 

[March 22, 2016]

 JUSTICE THOMAS delivered the opinion of the Court. 

The village of Pender, Nebraska sits a few miles west of 

an abandoned right-of-way once used by the Sioux City 

and Nebraska Railroad Company. We must decide whether 

Pender and surrounding Thurston County, Nebraska,

are within the boundaries of the Omaha Indian Reservation or whether the passage of an 1882 Act empowering 

the United States Secretary of the Interior to sell the 

Tribe’s land west of the right-of-way “diminished” the

reservation’s boundaries, thereby “free[ing]” the disputed

land of “its reservation status.” Solem v. Bartlett, 465 

U. S. 463, 467 (1984). We hold that Congress did not 

diminish the reservation in 1882 and that the disputed 

land is within the reservation’s boundaries. 

I 

A 

Centuries ago, the Omaha Tribe settled in present-day 

eastern Nebraska. By the mid-19th century, the Tribe 

was destitute and, in exchange for much-needed revenue,

agreed to sell a large swath of its land to the United 

States. In 1854, the Tribe entered into a treaty with the 
 

 

2 NEBRASKA v. PARKER 

Opinion of the Court 

United States to create a 300,000-acre reservation. Treaty

with the Omahas (1854 Treaty), Mar. 16, 1854, 10 Stat.

1043. The Tribe agreed to “cede” and “forever relinquish 

all right and title to” its land west of the Mississippi River,

excepting the reservation, in exchange for $840,000, to be 

paid over 40 years. Id., at 1043–1044. 

In 1865, after the displaced Wisconsin Winnebago Tribe

moved west, the Omaha Tribe agreed to “cede, sell, and 

convey” an additional 98,000 acres on the north side of the 

reservation to the United States for the purpose of creating a reservation for the Winnebagoes. Treaty with the 

Omaha Indians (1865 Treaty), Mar. 6, 1865, 14 Stat. 667–

668. The Tribe sold the land for a fixed sum of $50,000. 

Id., at 667. 

In 1872, the Tribe again expressed its wish to sell portions of the reservation, but Congress took a different tack

than it had in the 1854 and 1865 Treaties. Instead of 

purchasing a portion of the reservation for a fixed sum, 

Congress authorized the Secretary of the Interior to survey, appraise, and sell up to 50,000 acres on the western

side of the reservation “to be separated from the remaining portion of said reservation” by a north-south line 

agreed to by the Tribe and Congress. Act of June 10, 1872 

(1872 Act), ch. 436, §1, 17 Stat. 391. Under the 1872 Act, 

a nonmember could purchase “tracts not exceeding one

hundred and sixty acres each” or “the entire body offered.” 

Ibid. Proceeds from any sales would be “placed to the

credit of said Indians on the books of the treasury of the 

United States.” Ibid. But the proceeds were meager. The 

1872 Act resulted in only two sales totaling 300.72 acres. 

Then came the 1882 Act, central to the dispute between

petitioners and respondents. In that Act, Congress again

empowered the Secretary of the Interior “to cause to be

surveyed, if necessary, and sold” more than 50,000 acres

lying west of a right-of-way granted by the Tribe and

approved by the Secretary of the Interior in 1880 for use 
 

Cite as: 577 U. S. ____ (2016) 3 

Opinion of the Court 

by the Sioux City and Nebraska Railroad Company. Act of 

Aug. 7, 1882 (1882 Act), 22 Stat. 341. The land for sale 

under the terms of the 1882 Act overlapped substantially

with the land Congress tried, but failed, to sell in 1872. 

Once the land was appraised “in tracts of forty acres

each,” the Secretary was “to issue [a] proclamation” that

the “lands are open for settlement under such rules and 

regulations as he may prescribe.” §§1, 2, id., at 341. 

Within one year of that proclamation, a nonmember could 

purchase up to 160 acres of land (for no less than $2.50 per 

acre) in cash paid to the United States, so long as the

settler “occup[ied]” it, made “valuable improvements 

thereon,” and was “a citizen of the United States, or . . . 

declared his intention to become such.” §2, id., at 341. 

The proceeds from any land sales, “after paying all expenses incident to and necessary for carrying out the 

provisions of th[e] act,” were to “be placed to the credit of

said Indians in the Treasury of the United States.” §3, id., 

at 341. Interest earned on the proceeds was to be “annually expended for the benefit of said Indians, under the

direction of the Secretary of the Interior.” Ibid. 

The 1882 Act also included a provision, common in the 

late 19th century, that enabled members of the Tribe to

select individual allotments, §§5–8, id., at 342–343, as a 

means of encouraging them to depart from the communal

lifestyle of the reservation. See Solem, supra, at 467. The 

1882 Act provided that the United States would convey

the land to a member or his heirs in fee simple after holding it in trust on behalf of the member and his heirs for 25 

years. §6, 22 Stat. 342. Members could select allotments 

on any part of the reservation, either east or west of the 

right-of-way. §8, id., at 343. 

After the members selected their allotments—only 10 to

15 of which were located west of the right-of-way—the 

Secretary proclaimed that the remaining 50,157 acres

west of the right-of-way were open for settlement by non-
 

 

4 NEBRASKA v. PARKER 

Opinion of the Court 

members in April 1884. One of those settlers was W. E. 

Peebles, who “purchased a tract of 160 acres, on which he

platted the townsite for Pender.” Smith v. Parker, 996 F. 

Supp. 2d 815, 828 (Neb. 2014). 

B 

The village of Pender today numbers 1,300 residents. 

Most are not associated with the Omaha Tribe. Less than 

2% of Omaha tribal members have lived west of the rightof-way since the early 20th century.

Despite its longstanding absence, the Tribe sought to

assert jurisdiction over Pender in 2006 by subjecting 

Pender retailers to its newly amended Beverage Control 

Ordinance. The ordinance requires those retailers to 

obtain a liquor license (costing $500, $1,000, or $1,500 

depending upon the class of license) and imposes a 10% 

sales tax on liquor sales. Nonmembers who violate the 

ordinance are subject to a $10,000 fine.

The village of Pender and Pender retailers, including

bars, a bowling alley, and social clubs, brought a federal

suit against members of the Omaha Tribal Council in their 

official capacities to challenge the Tribe’s power to impose 

the requirements of the Beverage Control Ordinance on 

nonmembers. Federal law permits the Tribe to regulate

liquor sales on its reservation and in “Indian country” so 

long as the Tribe’s regulations are (as they were here)

“certified by the Secretary of the Interior, and published in

the Federal Register.” 18 U. S. C. §1161. The challengers

alleged that they were neither within the boundaries of 

the Omaha Indian Reservation nor in Indian country and,

consequently, were not bound by the ordinance.

The State of Nebraska intervened on behalf of the plaintiffs, and the United States intervened on behalf of the 

Omaha Tribal Council members. The State’s intervention 

was prompted, in part, by the Omaha Tribe’s demand that 

Nebraska share with the Tribe revenue that the State 
 

 

Cite as: 577 U. S. ____ (2016) 5 

Opinion of the Court 

received from fuel taxes imposed west of the right-of-way.

In addition to the relief sought by Pender and the Pender 

retailers, Nebraska sought a permanent injunction prohibiting the Tribe from asserting tribal jurisdiction over the

50,157 acres west of the abandoned right-of-way.

After examining the text of the 1882 Act, as well as the

contemporaneous and subsequent understanding of the 

1882 Act’s effect on the reservation boundaries, the District Court concluded that Congress did not diminish the 

Omaha Reservation in 1882. 996 F. Supp. 2d, at 844.

Accordingly, the District Court denied the plaintiffs’ request for injunctive and declaratory relief barring the 

Tribe’s enforcement of the Beverage Control Ordinance. 

The Eighth Circuit affirmed. Smith v. Parker, 774 F. 3d 

1166, 1168–1169 (2014). We granted certiorari to resolve

whether the 1882 Act diminished the Omaha Reservation. 

576 U. S. ___ (2015). 

II 

We must determine whether Congress “diminished” the

Omaha Indian Reservation in 1882. If it did so, the State 

now has jurisdiction over the disputed land. Solem, 465 

U. S., at 467. If Congress, on the other hand, did not 

diminish the reservation and instead only enabled nonmembers to purchase land within the reservation, then

federal, state, and tribal authorities share jurisdiction

over these “opened” but undiminished reservation lands. 

Ibid. 

The framework we employ to determine whether an 

Indian reservation has been diminished is well settled. 

Id., at 470–472. “[O]nly Congress can divest a reservation

of its land and diminish its boundaries,” and its intent to 

do so must be clear. Id., at 470. To assess whether an Act 

of Congress diminished a reservation, we start with the 

statutory text, for “[t]he most probative evidence of diminishment is, of course, the statutory language used to open 
 

 

 

 

6 NEBRASKA v. PARKER 

Opinion of the Court 

the Indian lands.” Hagen v. Utah, 510 U. S. 399, 411 

(1994). Under our precedents, we also “examine all the 

circumstances surrounding the opening of a reservation.” 

Id., at 412. Because of “the turn-of-the-century assumption that Indian reservations were a thing of the past,” 

many surplus land Acts did not clearly convey “whether

opened lands retained reservation status or were divested 

of all Indian interests.” Solem, supra, at 468. For that 

reason, our precedents also look to any “unequivocal evidence” of the contemporaneous and subsequent understanding of the status of the reservation by members and 

nonmembers, as well as the United States and the State of 

Nebraska. South Dakota v. Yankton Sioux Tribe, 522 

U. S. 329, 351 (1998). 

A 

As with any other question of statutory interpretation,

we begin with the text of the 1882 Act, the most “probative 

evidence” of diminishment. Solem, supra, at 470; see, e.g., 

United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 

241 (1989) (“The task of resolving the dispute over the 

meaning of [a statutory text] begins where all such inquiries must begin: with the language of the statute itself”).

Common textual indications of Congress’ intent to diminish reservation boundaries include “[e]xplicit reference to

cession or other language evidencing the present and total 

surrender of all tribal interests” or “an unconditional 

commitment from Congress to compensate the Indian

tribe for its opened land.” Solem, supra, at 470. Such 

language “providing for the total surrender of tribal claims 

in exchange for a fixed payment” evinces Congress’ intent

to diminish a reservation, Yankton Sioux, supra, at 345, 

and creates “an almost insurmountable presumption that

Congress meant for the tribe’s reservation to be diminished,” Solem, supra, at 470–471. Similarly, a statutory 

provision restoring portions of a reservation to “the public 
 

 

Cite as: 577 U. S. ____ (2016) 7 

Opinion of the Court 

domain” signifies diminishment. Hagen, 510 U. S., at 414. 

In the 19th century, to restore land to the public domain 

was to extinguish the land’s prior use—its use, for example, as an Indian reservation—and to return it to the

United States either to be sold or set aside for other public 

purposes. Id., at 412–413. 

The 1882 Act bore none of these hallmarks of diminishment. The 1882 Act empowered the Secretary to survey 

and appraise the disputed land, which then could be purchased in 160-acre tracts by nonmembers. 22 Stat. 341. 

The 1882 Act states that the disputed lands would be

“open for settlement under such rules and regulations as 

[the Secretary of the Interior] may prescribe.” Ibid. And 

the parcels would be sold piecemeal in 160-acre tracts. 

Ibid. So rather than the Tribe’s receiving a fixed sum for

all of the disputed lands, the Tribe’s profits were entirely 

dependent upon how many nonmembers purchased the

appraised tracts of land.

From this text, it is clear that the 1882 Act falls into 

another category of surplus land Acts: those that “merely

opened reservation land to settlement and provided that

the uncertain future proceeds of settler purchases should

be applied to the Indians’ benefit.” DeCoteau v. District 

County Court for Tenth Judicial Dist., 420 U. S. 425, 

448 (1975). Such schemes allow “non-Indian settlers to 

own land on the reservation.” Seymour v. Superintendent 

of Wash. State Penitentiary, 368 U. S. 351, 356 (1962). 

But in doing so, they do not diminish the reservation’s

boundaries. 

Our conclusion that Congress did not intend to diminish 

the reservation in 1882 is confirmed by the text of earlier 

treaties between the United States and the Tribe. See 

Mattz v. Arnett, 412 U. S. 481, 504 (1973) (comparing 

statutory text to earlier bills). In drafting the 1882 Act, 

Congress legislated against the backdrop of the 1854 and

1865 Treaties—both of which terminated the Tribe’s juris-
 

 

 

8 NEBRASKA v. PARKER 

Opinion of the Court 

diction over their land “in unequivocal terms.” Ibid. 

Those treaties “ced[ed]” the lands and “reliquish[ed]” any

claims to them in exchange for a fixed sum. 10 Stat. 

1043–1044; see also 14 Stat. 667 (“The Omaha tribe of 

Indians do hereby cede, sell, and convey to the United 

States a tract of land from the north side of their present 

reservation . . . ” (emphasis added)). The 1882 Act speaks 

in much different terms, both in describing the way the

individual parcels were to be sold to nonmembers and the 

way in which the Tribe would profit from those sales.

That 1882 Act also closely tracks the 1872 Act, which 

petitioners do not contend diminished the reservation. 

The change in language in the 1882 Act undermines petitioners’ claim that Congress intended to do the same with

the reservation’s boundaries in 1882 as it did in 1854 and 

1865. Petitioners have failed at the first and most important step. They cannot establish that the text of the 

1882 Act evinced an intent to diminish the reservation. 

B 

We now turn to the history surrounding the passage of

the 1882 Act. The mixed historical evidence relied upon 

by the parties cannot overcome the lack of clear textual

signal that Congress intended to diminish the reservation.

That historical evidence in no way “unequivocally reveal[s]

a widely held, contemporaneous understanding that the 

affected reservation would shrink as a result of the proposed legislation.” Solem, 465 U. S., at 471 (emphasis 

added); see also Exxon Mobil Corp. v. Allapattah Services, 

Inc., 545 U. S. 546, 568 (2005) (describing the “often

murky, ambiguous, and contradictory” nature of extratextual evidence of congressional intent). 

Petitioners rely largely on isolated statements that some

legislators made about the 1882 Act. Senator Henry

Dawes of Massachusetts, for example, noted that he had

been “assured that [the 1882 Act] would leave an ample 
 

 

Cite as: 577 U. S. ____ (2016) 9 

Opinion of the Court 

reservation” for the Tribe. 13 Cong. Rec. 3032 (1882) 

(emphasis added). And Senator John Ingalls of Kansas

observed “that this bill practically breaks up that portion 

at least of the reservation which is to be sold, and provides

that it shall be disposed of to private purchasers.” Id., at 

3028. Whatever value these contemporaneous floor

statements might have, other such statements support the

opposite conclusion—that Congress never intended to

diminish the reservation. Senator Charles Jones of Florida, for example, spoke of “white men purchas[ing] titles to

land within this reservation and settl[ing] down with the

Indians on it.” Id., at 3078 (emphasis added). Such dueling remarks by individual legislators are far from the 

“clear and plain” evidence of diminishment required under 

this Court’s precedent. Yankton Sioux, 522 U. S., at 343 

(internal quotation marks omitted); see also Solem, 465 

U. S., at 478 (noting that it was unclear whether statements referring to a “‘reduced reservation’” alluded to the 

“reduction in Indian-owned lands that would occur once 

some of the opened lands were sold to settlers or to the 

reduction that a complete cession of tribal interests in the

opened area would precipitate”). 

More illuminating than cherry-picked statements by 

individual legislators would be historical evidence of “the

manner in which the transaction was negotiated” with the 

Omaha Tribe. Id., at 471.1 In Yankton Sioux, for example, recorded negotiations between the Commissioner of 

—————— 

1Until this Court’s 1903 decision in Lone Wolf v. Hitchcock, 187 U. S. 

553, 566–568, the question whether Congress could unilaterally abrogate treaties with tribes and divest them of their reservation lands was

unsettled. Thus, what the tribe agreed to has been significant in the 

Court’s diminishment analysis. See, e.g., South Dakota v. Yankton 

Sioux Tribe, 522 U. S. 329, 351–353 (1998). Historical evidence of how 

pre-Lone Wolf sales of lands were negotiated has been deemed compelling, whereas historical evidence of negotiations post-Lone Wolf might 

be less so. See, e.g., Hagen v. Utah, 510 U. S. 399, 416–417 (1994). 
 

10 NEBRASKA v. PARKER 

Opinion of the Court 

Indian Affairs and leaders of the Yankton Sioux Tribe 

unambiguously “signaled [the Tribe’s] understanding that 

the cession of the surplus lands dissolved tribal governance of the 1858 reservation.” 522 U. S., at 353. No such 

unambiguous evidence exists in the record of these negotiations. In particular, petitioners’ reliance on the remarks 

of Representative Edward Valentine of Nebraska, who 

stated, “You cannot find one of those Indians that does not 

want the western portion sold,” and that the Tribe wished 

to sell the land to those who would “‘reside upon it and 

cultivate it’” so that the Tribe members could “benefit of 

these improvements,” 13 Cong. Rec. 6541, falls short. 

Nothing about this statement or other similar statements

unequivocally supports a finding that the existing boundaries of the reservation would be diminished. 

C 

Finally, we consider both the subsequent demographic

history of opened lands, which serves as “one additional

clue as to what Congress expected would happen once land

on a particular reservation was opened to non-Indian

settlers,” Solem, 465 U. S., at 472, as well as the United 

States’ “treatment of the affected areas, particularly in the 

years immediately following the opening,” which has 

“some evidentiary value,” id., at 471. Our cases suggest

that such evidence might “reinforc[e]” a finding of diminishment or nondiminishment based on the text. Mattz, 

412 U. S., at 505; see also, e.g., Rosebud Sioux Tribe v. 

Kneip, 430 U. S. 584, 604–605 (1977) (invoking subsequent 

history to reject a petitioner’s “strained” textual reading of 

a congressional Act). But this Court has never relied 

solely on this third consideration to find diminishment.

As petitioners have discussed at length, the Tribe was

almost entirely absent from the disputed territory for

more than 120 years. Brief for Petitioners 24–30. The 

Omaha Tribe does not enforce any of its regulations— 
 

Cite as: 577 U. S. ____ (2016) 11 

Opinion of the Court 

including those governing businesses, fire protection,

animal control, fireworks, and wildlife and parks—in

Pender or in other locales west of the right-of-way. 996 F. 

Supp. 2d, at 832. Nor does it maintain an office, provide

social services, or host tribal celebrations or ceremonies 

west of the right-of-way. Ibid. 

This subsequent demographic history cannot overcome

our conclusion that Congress did not intend to diminish

the reservation in 1882. And it is not our role to “rewrite” 

the 1882 Act in light of this subsequent demographic 

history. DeCoteau, 420 U. S., at 447. After all, evidence of 

the changing demographics of disputed land is “the least 

compelling” evidence in our diminishment analysis, for 

“[e]very surplus land Act necessarily resulted in a surge of

non-Indian settlement and degraded the ‘Indian character’ 

of the reservation, yet we have repeatedly stated that not 

every surplus land Act diminished the affected reservation.” Yankton Sioux, 522 U. S., at 356. 

Evidence of the subsequent treatment of the disputed

land by Government officials likewise has “limited interpretive value.” Id., at 355. Petitioners highlight that, for 

more than a century and with few exceptions, reports from

the Office of Indian Affairs and in opinion letters from 

Government officials treated the disputed land as Nebraska’s. Brief for Petitioners 24–38; see also 996 F. Supp. 2d, 

at 828, 830. It was not until this litigation commenced 

that the Department of the Interior definitively changed 

its position, concluding that the reservation boundaries 

were in fact not diminished in 1882. See id., at 830–831. 

For their part, respondents discuss late-19th-century

statutes referring to the disputed land as part of the reservation, as well as inconsistencies in maps and statements by Government officials. Brief for Respondent 

Omaha Tribal Council et al. 45–52; Brief for United States 

38–52; see also 996 F. Supp. 2d, at 827, 832–833. This 

“mixed record” of subsequent treatment of the disputed 
 

 

12 NEBRASKA v. PARKER 

Opinion of the Court 

land cannot overcome the statutory text, which is devoid of 

any language indicative of Congress’ intent to diminish. 

Yankton Sioux, supra, at 356. 

Petitioners’ concerns about upsetting the “justifiable 

expectations” of the almost exclusively non-Indian settlers 

who live on the land are compelling, Rosebud Sioux, supra, 

at 605, but these expectations alone, resulting from the

Tribe’s failure to assert jurisdiction, cannot diminish 

reservation boundaries. Only Congress has the power to

diminish a reservation. DeCoteau, 420 U. S., at 449. And 

though petitioners wish that Congress would have “spoken

differently” in 1882, “we cannot remake history.” Ibid. 

* * * 

In light of the statutory text, we hold that the 1882 Act 

did not diminish the Omaha Indian Reservation. Because 

petitioners have raised only the single question of diminishment,2 we express no view about whether equitable 

considerations of laches and acquiescence may curtail the

Tribe’s power to tax the retailers of Pender in light of the 

Tribe’s century-long absence from the disputed lands. Cf. 

City of Sherrill v. Oneida Indian Nation of N. Y., 544 U. S. 

197, 217–221 (2005). 

The judgment of the Court of Appeals for the Eighth

Circuit is affirmed. 

It is so ordered. 

—————— 

2See, e.g., Plaintiff’s Brief in Support of Motion for Summary Judgment in No. 4:07–cv–03101 (D Neb.), pp. 31, 38 (defendants cannot 

“impose an alcohol tax and licensing scheme outside the boundaries of 

the Omaha Reservation”); Plaintiff Intervenor’s Brief in Support of

Plaintiff’s Motion for Summary Judgment in No. 4:07–cv–03101 (D

Neb.), pp. 1–2; see also Smith v. Parker, 996 F. Supp. 2d 815, 834 (Neb.

2014) (“In this case, I must decide whether Congress’s Act of August 7,

1882 . . . diminished the boundaries of the Omaha Indian Reservation, 

or whether the Act simply permitted non-Indians to settle within 

existing Omaha Reservation boundaries”); Smith v. Parker, 774 F. 3d 

1166, 1167 (CA8 2014) (“Appellants challenge the district court’s 

determination that the Omaha Indian Reservation was not diminished 

by an 1882 act of Congress”).