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Obama backs Omaha Tribe in dispute over reservation boundaries

Monday, August 24, 2015

Veterans of the Omaha Tribe of Nebraska participate in an annual parade. Photo from Facebook

The Obama administration is backing the Omaha Tribe of Nebraska in a reservation boundary dispute that's pending in the U.S. Supreme Court.

The high court hasn't heard a reservation diminishment case in nearly 20 years. The Department of Justice hopes to keep it that way by preventing Nebraska v. Parker from joining the docket.

Government attorneys filed a brief last week explaining why they believe the case does not merit additional review. They argued that the 8th Circuit Court of Appeals made the right call by holding that the reservation boundaries weren't changed when Congress opened a part of the tribe's land base to non-Indian settlers in 1882.

"This Court has explained that courts should begin with a 'presumption that Congress did not intend to diminish the reservation,'" Solicitor General Donald B. Verelli, Jr. wrote in the brief, quoting from Solem v. Bartlett, a Supreme Court reservation boundary case from 1984. "That presumption may be overcome only by 'substantial and compelling evidence of a congressional intention to diminish Indian lands.'"

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

Since the reservation hasn't been diminished, DOJ notes that the tribe will be able to exercise jurisdiction over non-Indian businesses in the village of Pender. At issue is the regulation of liquor in the community of about 1,000 people.

Despite Pender's small size, it is home to seven bars and liquor stores. A 10 percent tax, along with registration fees, could generate revenues to help the tribe address the health, safety and other impacts of alcohol on the reservation.

The state of Nebraska acknowledged as much in asking the Supreme Court to hear the case. In addition to annual fees ranging from $500 to $1,500 for each establishment, fines for non-compliance run $10,000 per violation, the petition for certiorari noted.

One liquor store has been operating in Pender for 38 years, the petition stated. The owner of Smitty City has refused to submit to the tribe's jurisdiction since 2006 so fees and violations for that business alone could run upwards of $150,000, assuming the tribe imposed only one $10,000 non-compliance fine per year.

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

After the 8th Circuit issued its ruling last year, tribal leaders met with officials in Pender on May 26 to talk about the case. Chairman Vernon Miller thought the discussion was productive but he found out that the petition was filed with the Supreme Court the very next day, according to Docket Sheet No. 14-1406.

"We are gravely disappointed that the state of Nebraska continues to waste the funds of Nebraska taxpayers by supporting Pender in this litigation which seeks to diminish our boundary and challenge our sovereignty while turning its back on the original citizens of this state, who are also tax paying citizens of the state of Nebraska," Miller said in a press release at the time.

The tribe has encouraged its members and other consumers to boycott businesses in Pender. A portion of the sales tax collected in the village goes to fund litigation in the case, Miller said.

The Supreme Court's last decision in a reservation boundary case came in 1998 with South Dakota v. Yankton Sioux Tribe. Although the justices held that the reservation of the Yankton Sioux Tribe was in fact diminished, subsequent rulings by the 8th Circuit have prevented further erosion of the land base.

Omaha Tribe Chairman Vernon Miller met with Nebraska Gov. Pete Ricketts (R) in March, before the state asked the U.S. Supreme Court to hear the case. Photo from Twitter

The Supreme Court refused to hear the state of South Dakota's latest appeal in June 2011. Both Nebraska and South Dakota fall in the 8th Circuit.

The state of Nebraska and the village of Pender will file one more brief before the Supreme Court considers whether to grant or deny the petition. If the justices accept the case, another round of briefs on the merits will be submitted by the parties.

So far, the Supreme Court has agreed to hear two Indian law cases. One is Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal court dispute that will determine whether a Dollar General, a publicly-traded company with $17.5 billion in revenues can avoid the jurisdiction of the Mississippi Band of Choctaw Indians.

The second is Menominee Indian Tribe of Wisconsin v. US, a contract support cost case affecting the Menominee Nation of Wisconsin.

Both cases will be argued during the court's 2015-2016 term, which starts in October.

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