Indian Law

• 1854 Treaty: Omaha Tribe's authority over reservation lands upheld.

• Legal Opposition: Challenges from State of Nebraska and local businesses.

• Liquor-Control Law: 10% tax on liquor sales on the reservation.

• Court Support: State and Appellate Courts support the tribe's jurisdiction.

• Supreme Court Review: Case currently under review.

• Tribal Sovereignty: Reflects a shift towards honoring treaty obligations and supporting sovereignty.

The Omaha Tribe occupies reservation lands in Nebraska that were negotiated under an 1854 treaty with the federal government.  In 1854 the Omaha Reservation was reduced by 800,000 acres then the treaty created a new reservation for the nearby Winnebago Tribe and then sold the remaining land to the federal government.  In 1882 the Congress passed a law that allowed for a burgeoning white population to begin settlement activity inside the western area of the reservation.  As a result, the reservation now hosts a number of small non-native communities, including the town of Pender, Nebraska, population 1,006.  Many of the businesses in Pender rely on liquor sales as a significant portion of their revenues, including a liquor store, three bars, a bowling alley, a veteran’s club, and a golf club.  In 2004 the Omaha Tribe enacted a liquor-control law that included a 10% tax on sales of liquor on the reservation.  The federal government quickly passed a concurring law and began notifying liquor stores on reservation lands of the new laws and taxes.  Then in 2007 the business community, liquor suppliers, and the State of Nebraska sued the Omaha Tribe claiming that the 1882 law that reduced the borders of the Omaha Tribe’s reservation also reduced their right to exercise authority in those areas.  But in a victory for the Omaha peoples and American Indian law two courts so far have unequivocally agreed that federal government and the tribe have not relinquished any such authority.  (Denniston, 1-3)

The case is now before the Supreme Court of the United States, with oral arguments having just concluded on the 20th of January this year, 2016.  And although the liquor lobby, the State of Nebraska, and some local entities have entered the fray on the side of Pender’s business community, an even more impressive line-up is to be found in tribe’s supporters.  The federal government, a large number of academics and scholars, the NCAI, and advocacy groups filed briefs on behalf of the tribe.  As a result, both the State and Appellate Courts agreed with the tribe when they claimed that its ongoing relationship with the federal government and the language of the 1882 act did not affect the language of the original treaty.  The 1854 treaty has been the guiding language for the Courts, overriding later and more recent claims of non-Indian inhabitants of the reservation.  The treaty is short, and gracious toward the Omaha people stating in part “the whole of the lands, assigned or unassigned, in severalty, shall constitute and be known as the Omaha reservation, within and over which all laws passed or which may be passed by Congress, regulating trade and intercourse with the Indian tribes shall have full force and effect, and no white person, except such as shall be in the employ of the United States, shall be allowed to reside or go upon any portion of said reservation without the written permission of the superintendent of Indian affairs or the agent for the tribe.”  (Kappler, 873)

The Omaha people are finding success in a new era of American Indian law in which courts are returning to the “spirit” of treaties and the original intent of the Trust Doctrine embodied therein.  They are engaging new businesses and looking to lessen the impacts of alcohol and drugs on their reservation in an effort to remain vital in an otherwise sparsely populated area of the country.  (Omaha)  And they are exercising control over the business activities of individuals on the reservation as manufacturing and new businesses begin to take hold in Pender and other Nebraska townships inside its borders.  If all goes well at the Supreme Court this term, Nebraska v Parker will be a clear indication that the American court system has started listening to the conversation about sovereignty and cultural heritage happening in American Indian law today.  Hopefully this represents a shift in American jurisprudence, and it turns back to the spirit of the Trust Doctrine to allow American indigenous peoples “to continue to pursue the concepts of sovereignty and self-determination” that scholar Thomas King considers so integral to overcoming the challenges that American Indians face in the 21st century and beyond.  (King 265)

References

Denniston, Lyle. "Argument Preview: The Indians vs. the Settlers, a Modern Sequel (UPDATED)." SCOTUSblog RSS. SCOTUSBlog.com, 12 Jan. 2016. Web. 02 Feb. 2016.

King, Thomas. The Inconvenient Indian: A Curious Account of Native People in North America. 9th ed. N.p.: Anchor Canada, 2013. Print.

Kappler, Charles J. "INDIAN AFFAIRS: LAWS AND TREATIES." Indian Affairs: Laws and Treaties. Oklahoma State University, 1904. Web. 2 Feb. 2016.Omaha Tribe. "Omaha Tribe Alcohol Program." Omaha Tribe. Omaha Tribe, 2013. Web. 02 Feb. 2016.