Omaha tribe asks judge to dismiss lawsuit protesting liquor tax 6-25-07

OMAHA, Neb. (AP) - The Omaha Indian Tribe has asked a U.S. District Court judge to dismiss a lawsuit protesting a tax on liquor sales in Pender.

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

In a separate, related dispute, Nebraska's Attorney General wants a state court to dismiss a complaint brought by a tribal elder.

In documents filed in federal court last week, the tribe said the liquor regulations imposed in Pender 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.

The tribe also argued that the lawsuit should be dismissed because the Pender business owners should have sought a decision in Tribal Court before filing the lawsuit in District Court, as specified by tribal exhaustion doctrine.

Gene Summerlin, the lawyer representing the business owners, said Monday he'll argue against the tribe's jurisdiction claim.

U.S. District Judge Richard Kopf hasn't scheduled a hearing on the request.

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.

Kopf issued the restraining order after Attorney General Jon Bruning issued an opinion about the tribe's authority on Feb. 15. Bruning said the tribe has the authority to enact liquor regulations within the reservation, but Pender residents and businesses the tribe has taxed should pursue legal action.

Bruning 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.

In April, an Omaha tribal elder filed a lawsuit against Bruning, claiming his opinion regarding the tribe's liquor regulations was part of an agenda to diminish the Omaha reservation's boundaries.

Gail Bertucci said in the civil complaint in Lancaster County District Court that Bruning exceeded his statutory powers by soliciting a question about tribal lands rather than simply responding to queries already before him.

The opinion in dispute was issued in response to two requests from Nebraska Liquor Control Commission executive director Hobert Rupe.

Rupe initially asked the attorney general's office whether the Omaha Tribe had the authority to regulate liquor sales on its reservation and whether that conflicted with state and federal liquor laws. In Rupe's second request, a third question was added: Is Pender considered part of the Omaha reservation?

According to Bertucci's attorney Maurice Johnson, Bruning solicited the Pender question from Rupe in order to opine on the reservation boundaries.

Bruning has filed a motion to dismiss the complaint, saying the District Court has no jurisdiction in the matter because the state has not waived sovereign immunity.

Also, Bertucci has shown no standing to file the complaint and has not stated an action for relief, according to Bruning's motion.

District Court Judge Jeffre Cheuvront is scheduled to rule on the request on Friday.

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.