New Age Border Wars: Omaha Tribe of Nebraska v. the Village of Pender

Courtesy Everett Baxter Jr. / For many years, Native and non-Native residents have co-existed peacefully, for the most part, on Omaha’s tribal lands.

This is a familiar, age-old story, really. It’s about land rights. Boundaries.

Debates over sovereignty. Feuds between neighbors. Boycotts. Resistance over taxation. And a little violence at a football game thrown in the mix, too.

In one corner is the Omaha Tribe of Nebraska, a federally recognized tribe on the 307-square-mile Omaha Reservation in Northeastern Nebraska and Western Iowa.

In the other corner, the village of Pender—one of five tribal communities on the Omaha Reservation, and the county seat.

For many years, Native and non-Native residents have co-existed peacefully, for the most part, on Omaha’s tribal lands. Families were raised. Businesses thrived. The Omaha’s sovereignty was acknowledged and respected by the neighboring communities.

But in 2006, trouble started to brew in the town of Pender, when the Omaha Tribal Council elected to tax and regulate liquor sales on the reservation to help stimulate economic development. Perfectly within the tribe’s sovereign rights, but Pender business owners and residents saw it differently. “As far as they were concerned, they were already being taxed by the state and didn’t understand why they were being taxed additionally by the tribe,” said Vernon Miller, chairman of the Omaha Tribe. “So they got together with their village board and decided to fight this.”

And the legal war drums sounded.

At issue is whether Pender is on tribal lands or not. “It’s a boundary dispute,” said Miller. “These individuals in Pender believe that they are not on the reservation because when they bought the land from tribal members, status was relinquished, and it never was.”

Miller is referring to the act passed by Congress on August 7, 1882, in which individual allotments of a portion of reservation land were designated to Native Americans, and permitted that a portion could be sold to non-Natives.

The big question is: Were the reservation’s boundaries diminished by the sale of land to Pender settlers? The village has spent more than $685,000 in appeals over the last eight years to prove that they were, according to The Pender Times. However, three different courts—Omaha Tribal Court, the U.S. District Court and the 8th Circuit Court of Appeals—have all ruled in favor of the Omaha Tribe, affirming that Pender is, indeed, within the boundaries of the reservation.

Unwilling to accept the ruling, the Village of Pender, joined by the State of Nebraska, are taking their case to the highest court. On May 27, 2015, they filed a Petition for a Writ of Certiorari with the Supreme Court of the United States (SCOTUS). Basically, they are saying: “Our case has merit. Please hear us out.”

“When Congress passed these surplus land acts, they often did not clearly indicate whether they intended for the land to be part of the reservation or if it should be separated from the reservation when it was settled,” Gene Summerlin, the attorney representing Pender, explained the town’s position. “There is ambiguity there.”

It’s a Hail Mary pass, said Maurice Johnson, Attorney General of the Omaha Tribe of Nebraska. “We don’t think there is ambiguity. The statute is clear on its face, and the rulings below are very clear, too.”

Chairman Miller said of the appeal to SCOTUS: “It’s very disappointing. The state and Pender are wasting taxpayer’s money. Everyone knows what the outcome is going to be.”

So, how has all this legal wrangling affected relations between tribal members and Pender residents? “We’ve had little battles here and there,” said the tribe’s chairman. While the neighbors certainly haven’t experienced Hatfield-and-McCoy-type hostilities, there was that one incident after a football game that some tribal members have referred to as an “act of terrorism.”

“The state never schedules athletic competitions between us and Pender because our communities don’t participate well together. But last October, they had us play each other in football,” Miller told ICTMN. “A bus transporting Umonhon Nation Public School coaches, student athletes and cheerleaders was shot at by projectiles while leaving the football game.”

Local news sources did not report that a bullet hit the bus, but instead, referred to it, as Miller did, as a “low-velocity projectile.” The chairman said no suspects were arrested and different theories have been thrown around about why this happened. “Maybe it was an accident. But our tribal members know the bias toward us that is prevalent in that community.”

For one, Pender does not honor the Omaha tribe’s sovereignty. Miller said the village has assessed a 1 percent sales tax on everything to help pay for its legal defense, and it requires tribal members who are exempt from paying reservation taxes to pony up, too. “Our members show a tribal I.D. and tax-exempt card issued by the state, and they won’t even honor that,” he explained.

In 2014, the tribe passed a resolution to officially boycott Pender businesses that assess the tax. “I told them not to frequent some businesses there because you are paying for them to fight our tribe,” Miller explained the purpose of the boycott. It remains in place today.

Miller said he has tried to extend an olive branch to the neighboring town. On May 26, he met with members of the village board for the first time in years to discuss the liquor tax issue. “We were under the impression that we were beginning to rebuild the relationship,” said Miller. The very next day the tribe received notice that Pender would be appealing to the Supreme Court. Miller was incredulous. “They blindsided us,” he said.

Pender attorney Summerlin claimed that he had given the tribe’s attorneys a heads-up about the appeal weeks earlier, so he thought there was no need to mention it at the meeting. “We regret that there was a miscommunication,” he said.

If SCOTUS does decide to take on the Pender case next year, the outcome could reach far beyond the boundaries of the Omaha reservation. “It will be precedent-setting to other tribes in that there is already case law in the 8th Circuit supportive of the tribe’s right under federal law to regulate liquor within its reservation boundaries,” said Attorney General Johnson. “And for other tribes facing diminishment issues, this could make positive case law for them, too.”

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