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Fuzzy boundaries of Omaha Tribe cause confusion 4-19-07

Associated Press Writer

PENDER, Neb. (AP) - The boundaries of the Omaha Indian Reservation are clearly marked on road maps, encompassing some 30,000 acres in five counties in northeast Nebraska and neighboring Iowa.

But exactly where those lines are drawn are in dispute, and the entities that should know - the Omaha Tribe, the state government, the federal Bureau of Indian Affairs - have different opinions.

The confusion has led to a dispute over what, if any, authority the tribe has over the nonAmerican Indian people who live there.

“It's all a big, mucked up mess,” said Teri Lamplot, who leads the Thurston County Board of Supervisors.

Some fear the mess is fueling a growing animosity between the tribe and nonAmerican Indians, as well as court battles, the most recent involving the tribe's new liquor regulations.

The headquarters for the Omaha Tribe are in Macy, and historically, most of the reservation has been situated in Thurston County.

In an 1854 treaty, the United States defined the reservation - or trust land - 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.

But over time, some of remaining Omaha land came to be owned by nonAmerican Indians, resulting in a checkerboard pattern of ownership.

Messages left for tribe chairman Mitchell Parker have not been returned.

An attorney for the tribe, Leonika Charging, said the federal government still recognizes the Omaha Tribe's land as it was allocated in those early treaties, making the towns of Pender, Rosalie, Walthill and Macy part of the reservation.

Lamplot is adamant that the county seat, Pender, is not on the reservation - and that the tribe has no authority there.

A worn, undated map issued by the U.S. Department of the Interior's Office of Indian Affairs that is kept in the county assessor's office appears to support her assertion. The map puts the reservation's western boundary at the abandoned rail line once used by the Nebraska Railroad (now the Chicago, St. Paul, Minnesota and Omaha Railroad).

That rail line is just east of Pender.

An 1899 agreement between the tribe and the U.S. secretary of the interior allowed for the construction of the rail line and transferred land west of it to the railroad. It also detailed ownership of the land in the event the line was abandoned.

In 1989, a Department of the Interior field surveyor interpreted the agreement to mean that land would revert to the adjacent landowner, even if the holder was no longer the Omaha Tribe.

However, Charging said federal case law or an act of Congress are the only ways to modify the reservation boundaries outlined by treaties. And that's not happened.

The Nebraska Commission on Indian Affairs, a state agency that serves as a liaison for the state's four American Indian tribes, wouldn't weigh in on the boundary dispute.

Nebraska Attorney General Jon Bruning, though, said in a February opinion about the tribe's liquor laws that the Omaha have the authority to enact laws, but he called into question where those laws could be applied.

He cited a 2001 opinion from his office - then led by Don Stenberg - that determined the Omaha reservation had been diminished from the boundaries outlined in government treaties.

Bruning also said Pender residents and businesses that are taxed should be advised to pursue legal action.

The opinion led to a lawsuit this month by a tribal elder who said in court papers that Bruning's opinion was part of an agenda to diminish the Omaha reservation's boundaries.

Gail Bertucci's civil complaint also said Bruning exceeded his statutory powers by soliciting a question about tribal boundaries from the head of the Nebraska Liquor Control Commission.

A U.S District Court judge has granted a temporary restraining order that bars the tribe from enforcing its new tax on liquor sales in Pender.

According to Indian Affairs spokesman Gary Garrison, the tax issue is more complex than determining where the tribal land lies.

He said that in order to collect a tax, the Omaha would have to determine the status of the reservation land - whether it was still trust land or privately held - and whether privately held land was owned by an Omaha Indian.

“You've got to take it on a case by case basis,” he said. “Tribes can't tax nonIndians on reservations.”

Doing so, he said, would amount to taxation without representation because only tribe members can participate in tribal government.

Garrison said an exception would be a business tax, such as a gas or liquor tax, imposed on a business operating on the reservation.

But Carolyn Fiscus, who works in the Native American Studies department at the University of Nebraska at Omaha, said privately held land that was declared Omaha trust land by treaties is still considered Indian territory and can be taxed by the tribe as such.

She said nonAmerican Indians who have come to own that property have essentially stolen the land from the tribe, often through land speculators and questionable land deals.

“A lot of it has to do with flat out racism,” she said of the animosity taxing issues have aroused.

Lamplot said that's not true: “It's not a racial issue; it's a constitutional issue.”