Law | Opinion

Dennis Hastings: Omaha tribal sovereignty for 2015 and beyond

Friday, December 26, 2014

A historic photo of an Omaha tribal gathering. Photo from Omaha Tribal Historical Research Project

Remarks on Omaha Tribal Sovereignty for 2015 and Beyond
By Dr. Dennis Hastings
Omaha Tribal Historical Research Project

The importance and impact that this determination has on the entire community of Pender and its residents is not lost on this court. As Appellants point out, this is not a matter of mere historical curiosity or academic interest. Yet, as we have stated throughout, the district court conducted the appropriate analysis and we agree. Accordingly, we therefore affirm for the reasons stated by the district court in its well-reasoned opinion.

-- Smith v. Parker, Eighth Circuit Court of Appeals, No 14-1642P, December 19, 2014

In the two century “paper history” (1815-2014) imposed by the U.S. Government through Treaty, legislative law, case law and administrative codes upon the sovereign Omaha Nation – an Indigenous People of the Americas - the Omaha have endured the forced cession of ancestral lands and the natural and material capital thereof.

These lands comprised of several million acres situated in what is now both the northwestern portions of Iowa and northeastern portions of Nebraska. Eventually the Omaha in 1854 were remanded to a Reservation in the northeast central portion of then-Nebraska Territory, consisting of some 330,000 acres, which through later sale, stealth and outright thievery was further reduced to the present 31,000-plus acres owned in trust under auspices of the Bureau of Indian Affairs of the Department of the Interior by the Federally-recognized Omaha Tribe of Nebraska and Iowa, Inc, a corporation formed under the Howard-Wheeler, or Indian Reorganization Act (IRA) of 1934.

A view of the Omaha Reservation in Nebraska. Photo from Omaha Tribe

Through passage of Tribal Resolutions (or law) of the Omaha Tribal Council established under Constitutional provisions of the corporation created in 1934 under the IRA, the Omaha Tribal Historical Research Project (OTHRP), formed in 1991, was designated in 2002 as the Official Cultural Authority of the Omaha Tribe. As such, OTHRP is charged with a contemporary interpretation of ancestral tribal culture and history, responsible for both documenting and dissemination through research and education a factual and accurate record for a living, ancestrally-derived tribal people.

The recent Smith vs Parker litigant case brought before the Federal Court in 2007 by the Village of Pender challenged the external boundaries of Reservation lands imposed upon the Omaha by the U.S. Government originally through an 1854 Treaty. These 1854 external boundaries were reaffirmed by Congress through the Omaha Severalty Act of 1882, and upheld in the adjudicate process of Smith vs Parker in three separate court decisions - including the Omaha Tribal Court, a Federal District Court, and on appeal to a three-judge panel of the Eighth Circuit Court of Appeals.

In OTHRP's opinion, the 2007 litigation was an unnecessary exercise of “judicial fantasy” on behalf of the residents of Pender rather than acknowledging the reality of actual history, and working collaboratively thereof with an ancestrally different ethnicity and culture rather than just north European-derived peoples, who make up the lineage of the majority of the Village's residents.

A small group of disgruntled business folk were persuaded to file this case, encouraged by a socio-political climate of increasingly hostile agitation against the resident Aboriginals that was deliberately pursued from 2000-2010 by a small cadre of local elected officials, who then left the scene after convincing the Village to finance the case via a one percent sale tax passed by Village voters in 2008 and again in 2012 - in effect to 2017. To date, $860,595 has been collected, with legal fees costing the Village some $686,600 that could have been allocated instead for the town's economic development, the other purpose for which the sales tax was imposed.

Schrieb's Bar on Main Street in Pender. Image from Google Maps

The case was doomed from the beginning, however, since the Village of Pender's own pronounced history proffered on the Internet for years prior to the the court filing (reproduced in full in the forthcoming “Grandfather Remembers Broken Treaties/Stolen Lands The Omaha Land Theft,” 2015) admitted that the Village had, in fact, been platted illegally, before non-tribal people were permitted to venture onto Reservation lands in the first place.

“The laws opening the land to settlement forbade entrance 'until 12-noon of the appointed day'....April 30, 1884....” the webpage still reads, yet “...W.E.Pebbles, a store owner from Oakland, visited the reservation in 1883. He was certain that when the land was opened, an important town would spring up along the railroad, so he took steps to secure a favorable location.” (italics added).

Moreover, the lawyers contracted by the Village to litigate this case failed to properly vet their presumed historical “expert,” a Yale University graduate with a published dissertation who had in mid-career bought into a firm as a partner; prior to being retained by Pender, the firm's website had posted up to seven examples (since replaced) of this historian's “expertise.” Unwittingly the firm revealed through adjacent links how this partner had lost as many as three legal cases, being named in at least two instances by the examining judges (as in the Smith vs Parker matter as well) implying having employed erroneous logic buttressed by faulty research.

Finally, after the District Court's decision affirming the Tribal Court's earlier rendering in favor of the Omaha, the logic of the Village's appeal to the Eighth Circuit was that, under Federal court rules, the entire court record, portions of which had been set aside in the earlier reviews as being the least relevant and thereby least important, would nonetheless be included de novo, “as if the case were being heard anew,” without prejudice.

In spite of the State of Nebraska's intervention in becoming the lead Appellant in this matter, rather than counsel that an appeal, given the strength of argument of two previous court decisions, would be ill-advised in this instance, the Village's lawyer simply exploited the legal ignorance of the local governing body of Pender, and “took the money and ran.”

Experienced followers of Indian law knew that the decision of Federal District Court Judge Richard Kopf to defer to the local tribal court until all judicial means were exhausted was both prudent and wise. The basis for the “well-reasoned opinions” noted by the Eighth Circuit panel regarding “the relevant legislative history, contemporary historic context, subsequent congressional and administrative references to the reservation and demographic trends” were first articulated in the 44 page decision of Chief Omaha Tribal Judge Mick Scarmon, released on February 14, 2013:

"Applying the traditional canons of construction for cases involving Tribal jurisdiction to the facts and law of this case, the Court finds that both the 'Act and its legislative history fail to provide substantial and compelling evidence of a congressional intention to diminish' Omaha tribal lands, and therefore this Court is bound by the traditional solicitude of Courts toward Indian tribes to 'rule that diminishment did not take place and that the old boundaries survived the opening' of the Omaha Reservation pursuant to the Act of 1882.”

A year later, Judge Kopf went even farther in his 49 page decision to affirm the tribal court's original determination:

“Once a block of land is set aside for an Indian Reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise...Congress did not explicitly indicate otherwise here, as neither the 1882 Act’s statutory language, the legislative history and circumstances surrounding the passage of the Act, nor the demographic history of the land west of the right-of-way demonstrate clear congressional intent to diminish the boundaries of the Omaha Indian Reservation or a widely-held, contemporaneous understanding that Congress’s action would diminish those boundaries.”

Building on this history, the Eighth Circuit panel unanimously concluded in its five-page decision how the previous court rulings were constructed “...in such a fashion that any additional analysis would only be unnecessary surplus,” thus effectively signaling the Appellants that further appeal to either the Eighth Circuit's full eleven judge panel or the U.S. Supreme Court would unlikely warrant a different outcome.

The Omaha now have an undisputed right to exercise their tribal sovereignty among the ancestral lands of the original 1854 Reservation external boundaries, including the levying of taxes, fees and other revenue-generating polices, regulating environmental provisions and other administrative oversight, and formulating new institutional structures, including the handling and resolution of jurisdictional matters, such as the siting of jails and governmental offices.

Dr. Dennis Hastings, a member of the Omaha Tribe, is the founder and director of the Omaha Tribal Historical Research Project. The OTHRP can be found on Facebook or reached at 834 Highway 77, Walthill, Nebraska 68067

8th Circuit Decision:
Smith v. Parker (December 19, 2014)