Century-old boundary dispute brings Omaha Tribe before US Supreme Court
By Bill Kelly , Senior Producer/Reporter Nebraska Public Media
March 22, 2016, 3 a.m. ·
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UPDATED: MARCH 22, 2016
A unanimous U.S. Supreme Court decision handed a huge victory for the Omaha Tribe in its effort to tax liquor stores in the Village of Pender, Nebraska.
But the story is not over. In a quicker than expected ruling, the justices reaffirmed the traditional reading of law, that only Congress can change the boundaries of tribal land. Justice Clarence Thomas authored the opinion. Pender businesses, backed by the Nebraska Attorney General, failed to convince the court that the tribe’s lack of presence or use of its authority for more than 100 years had, in effect, also reduced the tribe’s traditional borders.
A unanimous U.S. Supreme Court decision handed a huge victory for the Omaha Tribe in its effort to tax liquor stores in the Village of Pender, Nebraska. But the story is not over. In a quicker than expected ruling , the justices reaffirmed the traditional reading of law, that only Congress can change the boundaries of tribal land. Justice Clarence Thomas authored the opinion. Pender businesses, backed by the Nebraska Attorney General, failed to convince the court the tribe’s lack of presence or use of its authority for more than 100 years had, in effect, also reduced the tribe’s traditional borders.
Justice Thomas wrote: Though the village might “wish that Congress would have spoken differently in 1882, we cannot remake history.”
In a prepared statement posted on the Omaha Tribe's Facebook page, Tribal Chair Vernon Miller said he was “thankful to each and every person who has advocated for…ensuring that our treaty rights are upheld. The Umonhon people are strong and resilient and will continue to practice our way of life on our land.” ("Umonhon" translates to "Omaha" in the tribes traditional language).
The decision does leave the village the option of returning to a lower federal court to challenge the tax on other grounds, however Nebraska Attorney General Doug Peterson, in a statement issued following the ruling, said he “does not contemplate taking additional legal action unless the Tribe attempts to exercise future governing or taxing authority over the disputed area.” Although the ruling is a defeat for the state’s claim over where the boundary lines lie, Peterson contends “the Tribe’s legal authority to tax and exercise governing authority over the disputed area has not been decided,” adding “we appreciate the Supreme Court’s statement that our concerns “about upsetting the justifiable expectations of the almost exclusively non-Indian settlers who live on the land are compelling”.
THE ORGINAL NET NEWS BACKGROUND STORY
The United States Supreme Court is scheduled to hear arguments tomorrow in a case pitting the Omaha Indian Nation against its uneasy neighbors in the Village of Pender, Nebraska. The legal battle stretches back 130 years to when the tribe chose to sell 50,000 acres located on its reservation.
The case has “huge implications” for Indian tribes across the country, according to Jessica Shoemaker, a tribal law specialist with the College of Law at the University of Nebraska-Lincoln.
If a majority of the court rules against the Omaha Tribe it could raise questions about governance of non-Indians on tribal lands, where native people now share authority with state and local governments.
The most recent conflict began in 2006 when the Omaha Tribe attempted to license and tax bars and liquor stores on reservation land in Thurston County.
“The tribe has always had jurisdiction within the boundaries of the reservation," said Vernon Miller, the chair of the Omaha Tribal Council. “Before the state of Nebraska was a state, our tribe has always been here. It has always been our land. The village was founded on a reservation.”
In 1854 the United States Congress agreed to a treaty which set aside approximately 300,000 acres for the Omaha Tribe. The area that would become Pender was within that block of land. Over the years there were divisions and sales (including setting aside thousands of acres for the Winnebago Tribe reservation) with the approval of the tribe.
One of those sales, suggested by the tribe and made possible through an Act of Congress in 1882, opened up land to the rush of non-Indians arriving in the hopes of making a new life in the rich farmland of the Great Plains. The Omaha, in the hopes of collecting much needed funds at the time, wished to sell land west of a railroad right-of-way that divided the reservation. The sale required the approval of Congress and, after much debate, was granted.
Selling off that land to the settlers in the years that followed the 1854 agreement gave rise to the lawsuit filed in 2007 by the businesses in Pender.
The Pender businesses won their case at a trial in Thurston County District Court. When the case moved to the federal courts all other rulings have favored the tribe. The Omaha prevailed in the officially sanctioned Tribal Court, later in Federal District Court and under appeal to a three-judge panel in the 8th Circuit Court of Appeals.
The Pender businesses, with the support of the Nebraska Attorney General, asked the U.S. Supreme Court to hear the case. Oral arguments, in response to the briefs filed over the past year, will be heard Wednesday.
“The three courts below (the Supreme Court) got this right,” said the Attorney General of the Omaha Tribe, Maurice Johnson.
The justices are being asked to determine whether the settler’s purchase removed the land from the reservation’s governance or if the non-Indians move onto tribal land keeps them under the sovereign authority of the Omaha’s council.
“The key issue, the only issue, is what are the boundaries of the Omaha Reservation and is Pender, Nebraska within the boundaries of the reservation,” said Nora Kane, part of the team that represented the Omaha Tribe as the case made its way through the federal courts.
If Pender falls within the reservation, the tribe, according to lower court rulings, has the authority to collect a tax on taverns and liquor stores.
In the past, the Supreme Court dealt with similar disputes involving other tribes.
“It’s an area of law that has been relatively well settled in the past couple of decades,” said Shoemaker, the UNL tribal law specialist, adding “we’ve had a pretty clear test” guiding whether century-old treaties and laws diminished specific areas of land held by Native Americans.
Patricia Zieg, who helped prepare and argue the case in the federal courts, explained “ordinarily you would look at a map and call a surveyor to ascertain the boundaries of a given property.”
When the question is whether a reservation has been diminished, “you don't start with a map, you start with the language of the statute,” Zieg said. “What did Congress intend when they passed the statute?”
In this case, Zieg argued “the law is crystal clear.”
After examining the documented wording of actions taken by Congress, the court reviews the perceived intent of the government, examining comments made in floor debate. Finally, other matters of history are considered, including actions of the tribes, governments, and residents which might highlight how the lands were governed and tended to by all involved.
The third section of the Supreme Court’s test gives Pender and the state of Nebraska “our strongest argument” in the view of Nebraska Attorney General Doug Peterson.
“The reality is that after (1882), when this property starts being sold off in parcels to non-tribe members, it became very apparent the tribe had no interest in trying to maintain jurisdiction over that property.”
Peterson says the lack of action taken by the tribe left state and local government to fill the void. As proof he points to how long it took the tribe to exercise its taxing authority.
The liquor tax proposal was a surprise to the village because the tribe had not attempted any type of governance over the land since the original land sale to incoming non-Indian settlers.
“For the last hundred and thirty years neither the Omaha Tribe nor the federal government have ever sought to assert jurisdiction west of the right of way until the alcohol tax,” noted Tom Nitzschke, chair of the village board.
In 1854, the Washington D.C. National Intelligencer reported on the beginning of the creation of the Omaha Tribe's reservation in Nebraska. (National Archives)
There is speculation among interested tribal law experts that, by taking the up the case against the Omaha tribe, one or more Supreme Court justices could be signaling openness to reconsider the traditional three-part test which has often worked in the favor of Native American governments in their border disputes.
“Essentially what the court is going to be grappling with is whether there is essentially some sort of ‘use-it-or-use-it,’” said Shoemaker of UNL. “So when a tribe does not exercise specific jurisdiction in a specific portion of a reservation, does that ultimately change the tribe’s right to do so now?”
The ethnic make-up of the village also looms large in the proceedings. Gene Summerlin, representing the village’s interest through the ten-year history of the case, said its an important element for Pender’s legal argument. In his legal briefs he refers to it as “a near-total absence of Indian character.”
Relying on United State Census data over the previous century, Summerlin notes “almost immediately from the time that the land was opened up until the present day, it's been between 98 to 99 percent occupied by non-tribe members.”
Attorneys for the tribe find the argument baseless since, as attorney Kane says, “they're starting with an assumption that there was an Indian character to the village to begin with” since the tribe knowingly sold the land to settlers who they knew would populate the land and incorporate the town.
Kane wonders if basing the governance of an area using Pender’s legal theory wouldn’t lead to a constant reassessment to “determine the boundaries of reservations by what the particular racial characteristics are at a particular point in time.”
“I just I think that that argument's not sustainable,” Kane adds.
While broad legal issues will determine tribal boundaries, the more specific issue for the Omaha Tribe and the people of Pender, turns on how much authority the tribal council can command over its neighbors.
Miller, chair of the Omaha, says its an important extension of the tribe’s expanding effort to establish its own economic development programs. The tribe looks at the tax as one revenue source to help fund projects needed to lower a brutally high unemployment rate on the reservation.
“That was another avenue the tribe wanted to utilize for dealing with some of those issues that go along with the consumption and sale of liquor,” Miller said. “We are sovereign nation and we're going to do what we have to do to make sure our quality of life is better.”
No liquor taxes have been collected by the tribe while the case makes its way through the system.
When letters announcing the tax arrived at businesses in Pender there was disbelief and uncertainly about the tribe’s long-term intentions.
In the short term, village board chair Nitzschke says he fears the tax could hurt local businesses and impact the town’s budget.
“Absolutely we could lose revenue,” Nitzschke said. He believes all would certainly have to raise prices and potentially lose customers and potentially be a loss of revenue for the village as well. Seven Pender businesses, including the private golf course outside the village, were asked to collect the tax.
“It would be a… hardship for a lot of different businesses in town,” Nitzshke said.
There is much speculation in Pender about future mandates from the tribal government should the Supreme Court rule in the tribe’s favor.
“The bottom line is it's a jurisdictional authority change and they can do what they want so it makes the future very uncertain,” Nebraska Attorney General Peterson said. He suggests if the Omaha Tribe is allowed to tax Pender more conflicts could arise over who has authority over a variety of areas of governance.
Peterson said leadership in the Omaha Tribe “like to suggest (if they) get the 10 percent tax on the liquor everything will be fine,” but adds with a favorable Supreme Court ruling in “five or ten years if the tribe decides they want to exercise more authority in those areas it's within their jurisdiction to do that.”
Leaders of the Omaha Tribe state an expansion of their authority in Pender is neither the Council’s intent nor is it an easy matter to create rules governing non-Indian people living on reservation land.
“We're not hiding anything. There is no hidden or secret agenda,” Chair Miller said.
Attorneys supporting the tribe point out before tribes can propose rules governing non-Indian people they complete a complex review process with oversight by the Bureau of Indian Affairs.
When asked to go on the record few Pender residents wished to publicly share concerns about Omaha Tribe authority. Most privately worried zoning laws could be changed, about a feared shift in law enforcement jurisdiction, and additional taxes. Those who shared opinions noted decisions would be made by a Tribal Council they did not elect and cannot remove from office as they can with other government representatives.
Speculation frustrates Maurice Johnson, the tribe’s attorney general, calling them “the parade of horribles.” He says some residents don’t realize there is no authority for the tribe to supercede the Pender Village Board and county commissioners.
“The scope of powers that Indian tribes can exercise over white people on reservations are quite contracted,” attorney Nora Kane said. “This isn't a ‘Katie-bar-the-door” type of situation and there are strict boundaries on what Indian tribes can do.”
While tempers have been running high, there was a moment of conciliation at the most recent village board meeting. Members of the Omaha Tribe attended to share plans for a spiritual prayer ride in advance of the arguments before the Supreme Court in Washington D.C.
The plans were for native people to travel on horseback across the Winnebago and Omaha reservations, ending their ride in Pender.
“The intention is to offer prayers for the pending litigation before the Supreme Court,” explained Marisa Miakonda Cummings, the tribe’s director of operations.
Members of the board offered to make sure there was adequate water and feed for the horses and accommodations for the participants in the ride. One board member asked about the spiritual significance of the event. Surprised but smiling, Cummings conceded she “didn’t see that question coming!”
Sharing space in the tiny meeting room, the opposing parties seemed relieved the talk was about cooperation at a time when tempers have been running high.
As the members of the tribe left the meeting, Cummings added she hoped “this peaceful and prayerful (event) will encourage better relationships.”
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