Published on January 6, 2013 by Amy
The Omaha Reservation of the federally recognized Omaha tribe is located mostly in Thurston County, Nebraska, with sections in neighboring Cuming and Burt counties, in addition to Monona County in Iowa. As of the 2000 federal census, the reservation population was 5,194. The tribal seat of government is in Macy. The villages of Rosalie, Thurston, Pender and Walthill located within reservation boundaries. Due to land sales in the area since the reservation was established, Pender has disputed tribal jurisdiction over it.
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The 12,421 acres (50.27 km2) reservation was established by a treaty dated March 16, 1854. The tribe chose the lands with the President’s approval on May 11, 1855. A treaty on March 6, 1865, followed by two acts of Congress on June 10, 1872 and June 22, 1874, ratified the agreement.
On July 31, 1874, the tribe deeded part of its reservation to the Winnebago (also known as Ho-Chunk) to form the Winnebago Reservation just north of the Omaha Reservation. This action was ratified on August 7, 1882 and by an act on Congress dated March 3, 1893. 129,470 acres (523.9 km2) were allotted to 1,577 Indians with the remaining land, 12,421 acres (50.27 km2), unallotted.
Boundary claims and areas of jurisdiction have continued to be issues for the Omaha Indian Reservation. In the late nineteenth century, Congress authorized sales of land to non-Omaha in the western portion of the reservation, where European-American farmers had settled. Due to the sales and federal legislation subsequent to the treaty establishing the reservation, a Nebraska state court in 2000 ruled that the western boundary of the reservation ended at railroad tracks east of Pender, Nebraska.
The Omaha Tribe contends that Pender is within tribal jurisdiction, as Congress did not change the boundaries of reservation, which includes most of Thurston County. The tribe says that the state does not have the power to redefine the boundary set by the Omaha treaty with the US government in 1865. It holds that although Congress authorized land sales in this area, it did not diminish the jurisdiction of the tribe within the reservation boundaries. “Under Supreme Court precedent, only Congress can diminish a reservation.”
Asked for its opinion on a related matter related to the Omaha Tribe’s law that liquor merchants on the reservation had to pay tribal license fees and sales taxes (see section below), the Nebraska state attorney general noted its opinion, based on Congressional laws and a field ruling during the Ronald Reagan administration, that Pender was outside the reservation boundaries. It also noted that ultimately this was a matter of federal jurisdiction.
There have been continuing issues related to tribal jurisdiction in Pender and other areas along its western boundary. For instance, in 2003 the tribal police tried to stop non-Omaha people from entering the reservation from Pender. The tribe negotiated with the state in 2003-2004 related to its policing functions in this area, but the parties signed no agreement. Prior to this period, the state generally had policing functions on the roads and in Pender.
In December 2006, the Omaha Tribe issued notices to the seven liquor stores in Pender (which has a population of 1,000), as well as those in Rosalie and Walthill, Nebraska, informing them that as of January 1, 2007, the merchants would have to pay the Omaha Tribe liquor licensing fees and a 10 percent sales tax to continue to operate within the reservation. The executive director of the Nebraska State Liquor Commission said that he would be consulting with the state attorney general on the issue. Ben Thompson, an Omaha attorney who represents the tribe, notes that it has the legal right to establish such laws within the reservation. The Nebraska Attorney General offered the opinion that the Omaha Tribe had the authority to regulate liquor sales on its reservation and it did not interfere with the Nebraska Liquor Commission. While offering an opinion, he said the tribal boundary was a federal jurisdictional issue.
In April 2007, liquor merchants in Pender (later joined by the village) filed a federal lawsuit challenging the tribe’s authority to demand the liquor taxes, based on their contention that Pender was outside the reservation boundaries. In October 2007 the US District Court ordered the parties first to take their challenge to the Omaha Tribal Courts, as part of the tribal exhaustion doctrine, and denied the plaintiffs’ request for dismissal. Judge Richard Kopf said he may not be bound by the tribal court, but wanted to hear their opinion. He required the parties to report back to him regularly until a ruling was made by the Omaha Tribal Courts. While the case was pending, the judge ordered a temporary stay on the merchants’ paying the liquor sales tax.
In January 2012, the plaintiffs in Pender v. Omaha Tribe filed a request with the Omaha Tribal Courts for a summary judgment due to the length of time the case had taken. The defendants had requested that no hearing be held before June 2012. The plaintiffs had submitted a report to them by an expert witness on transactions related to Pender and the western boundary. In 2008 the village had voted for a five-year, 1% sales tax to finance its lawsuit on the boundary and liquor tax, as well as to promote economic development in the town. Residents voted in May 2012 on whether to renew the sales tax, as the boundary issue continued.