January 23, 2017

Omaha Tribe wins round in Pender booze tax fight

OMAHA, Neb. (AP) – The Omaha Tribe has won a round in its struggle with the village of Pender and alcohol retailers regarding the reservation boundaries and the tribe’s authority to tax alcohol sales.

The Omaha Tribal Court ruled earlier this month that the village and the retailers’ locations were within Omaha Reservation boundaries, which would make the retailers subject to the tax.

Attorney Gene Summerlin, who represents Pender and the retailers, said Tuesday that the case will return to federal court, which has final jurisdiction.

Omaha Tribal Council Chairman Rodney Morris said through the tribe’s lawyers that the tribe was pleased by the court’s decision. Morris also said the tribe “welcomes the continued right to exercise regulatory authority throughout the Omaha Reservation and will work with federal, state and local authorities to advance the public interest of the community.”

The tribe’s liquor regulations require licenses for businesses that sell alcohol and a 10 percent tax on alcohol purchases.

A group of Pender retailers sued in federal court in 2007, arguing they weren’t subject to the tribe’s regulations because the land is not part of the Omaha Reservation in northeast Nebraska.

In an 1854 treaty, the United States defined the reservation as stretching from the west bank of the Missouri River across the portion of northeast Nebraska that later became part of Thurston, Cuming, Burt and Wayne counties and Iowa’s Monona County.

In the 1860s, part of the Omaha Tribe’s northern land was ceded to the Winnebago Tribe, and over time, some of the remaining Omaha land came to be owned by non-Native Americans, resulting in a “checkerboard” pattern of land ownership that has caused confusion about tribal lines.

The part that was opened for sale to white settlers included what became the village of Pender.

U.S. District Judge Richard Kopf referred the lawsuit to the Omaha Tribal Court and issued a temporary restraining order barring the tribe from collecting the tax.

The primary question presented to the Tribal Court, said one of the tribe’s lawyers, Patricia Zieg, was whether Pender was part of the reservation. The court found it was.

The retailers’ attorney, Summerlin, said he expected the restraining order will remain in place while the U.S. District Court considers the case.

Both sides likely will file motions for summary judgment, Summerlin said, because there wasn’t much disagreement on the case facts, which would let the court rule on the legal issues without a trial.

He also said he wasn’t sure whether the federal judge would treat the Tribal Court ruling as merely advisory or give it more weight.

Zieg said her firm’s reading of recent decisions is that the district court will give the Tribal Court’s decision “some deference, but we don’t know to what degree.”

The Omaha Tribal Court is a trial court, Zieg said, so it’s possible the U.S. District Court might require the case to be heard by a Native American appellate court. For the Omaha Tribal Court, Zieg said, that would be the Northern Plains Intertribal Court of Appeals in Aberdeen, S.D.