Omaha Tribe's court to hear non-Indian challenge

Tuesday, October 9, 2007  

A bitter fight over the borders of the Omaha Reservation in Nebraska has been sent to tribal court for potential resolution.

A group of non-Indians filed suit against the Omaha Tribe in January. They challenged the tribe's ability to impose a liquor tax on their businesses.

At issue is whether the tribe has jurisdiction over the village of Pender, where the businesses are located. According to the plaintiffs, Pender was removed from the reservation by an act of Congress in 1882.

But the tribe believes that Pender, home to about 1,200 people -- mostly non-Indian -- still lies within its jurisdiction. The act of Congress authorized land sales but did not diminish the reservation, according to chairman Mitch Parker.

This "fascinating and difficult question" was put before Judge Richard G. Kopf, who barred the tribe from imposing the liquor tax pending resolution of the case. Instead of answering the question, however, Kopf said it would be "wise" to hear from the tribe's court first.

"Because a federal court's exercise of jurisdiction over matters relating to reservation affairs can impair the authority of tribal courts, the Supreme Court has concluded that, as a matter of comity, the examination of tribal sovereignty and jurisdiction should be conducted in the first instance by the tribal court itself," Kopf wrote in an October 4 order, citing U.S. Supreme Court precedent.

The plaintiffs, who own several liquor establishments in Pender, must now make their case in Omaha court. Only until they exhaust all of their tribal remedies -- or if the tribe moves too slow -- will they be able to return to federal court, Kopf said.

The case highlights long-running tensions over sovereignty and race relations. Over the years, non-Indians have questioned the Omaha Tribe's policing powers, a cross-deputization agreement with the state and a gasoline tax agreement.

Thurston County, where the Omaha Reservation and the neighboring Winnebago Reservation are located, is over 50 percent Native American. But the western part of the Omaha Reservation where Pender is located is largely populated by non-Indians.

It's the western part that has been the source of many disagreements. The Nebraska attorney general's office has opined that Pender is no longer part of the reservation.

According to the plaintiffs in the alcohol tax suit, even the Interior Department says the reservation has been diminished. During the Reagan administration, a field solicitor suggested in a letter to the Bureau of Indian Affairs that the western part of the reservation, including Pender, "went out of Indian control when it was opened for settlement" under the 1882 act of Congress.

In his October 4 order, Kopf said he was aware of the legal opinions. "Nonetheless, it is not disputed that the land was once part of the reservation," he wrote.

Under Supreme Court precedent, only Congress can diminish a reservation. But there are a number of factors that must be considered, such as the exact language of the statute, payments to a tribe and historical factors.

Chairman Parker, one of the named defendants in the case, said the tribe was happy with the court's order because it respects the sovereignty of the tribal court system. The tribe's liquor law -- which authorized the tax -- was approved by the Bureau of Indian Affairs.

Court Decision:
Pender v. Omaha Tribe (October 4, 2007)