Judge orders liquor lawsuit to Omaha tribal court

By Timberly Ross
Omaha, Nebraska (AP) 10-07

A federal judge has ordered a lawsuit protesting a tax on liquor sales in Pender be heard in Omaha tribal court.

A group of liquor establishments there filed the lawsuit in April, arguing that they aren’t subject to the Omaha Tribe’s regulations because the land is no longer part of the reservation – a claim the tribe disputes.

In a ruling issued October 4th, U.S. District Court Judge Richard Kopf said he would stay the lawsuit until the tribal court in Macy weighs in on the claim. He noted, though, that he has not decided whether he will defer to that court’s decision.

The tribe had argued in court papers that the lawsuit should be dismissed because the Pender business owners should have sought a decision in tribal court before filing the federal lawsuit, as specified by tribal exhaustion doctrine.

Kopf said October 4th that neither side had presented compelling evidence for or against sending the case to tribal court, so he must “read the ‘tea leaves”’ and hear the tribal court’s decision.

A man who answered the phone September 30th at the Omaha Tribe’s office said no one would be available to comment until October 1st.

A message left September 29th for Gene Summerlin, the attorney representing the Pender group, was not immediately returned.

The liquor regulations, which started Jan. 1, include a 10 percent tribal liquor tax and requirements for a tribal license to sell liquor.

A temporary restraining order bars the tribe from enforcing them.

The Pender business owners and the village itself – which was added as a plaintiff on October 4th– contend the tribe has no authority to levy such a tax in Pender.

But the tribe has argued in court documents that the liquor regulations are legal, having been authorized by the U.S. Department of the Interior and being within the jurisdiction granted to the Omaha Tribe by Congress.

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-American Indians, resulting in a “checkerboard” pattern of land ownership that has caused confusion about tribal lines.

On the Net:

U.S. District Court of Nebraska: http://www.ned.uscourts.gov/