Case could now be heard by federal
district court judge

After more than a five-year wait, the Omaha Tribal Court has handed down its decision in Pender’s legal attempt for clarification of the Omaha Indian Reservation’s boundaries as they pertain to Pender.

Chief judge Mick Scarmon ruled against Pender on Monday, Feb. 4, denying the village’s motion claiming that the 47th Congress of the United States intended to diminish the boundaries of the Omaha Indian Reservation during an 1882 land sale act.

The 44-page decision states that there was not sufficiently clear language in the land sale act that states Congress intended to make the reservation smaller when it authorized the sale of about 50,000 acres west of a railroad right-of-way for settlement with proceeds going to the tribe via a trust fund that would pay out at 5 percent per annum.

Pender’s legal team led by Gene Summerlin of Lincoln argued that Congress’ intent is evident in how history has treated the acres sold, which since the time of the settlement about 130 years ago until the present day has been occupied by people who are as much as 99 percent non-tribal members.

The case was heard by the tribal court after originating in the federal courtroom of U.S. District Court judge Richard Kopf more than five years ago.

Kopf sent the case to tribal court in order to exhaust any local jurisdiction before hearing the case again.

Summerlin was scheduled to attend a special meeting of the village board at noon Wednesday of this week to update the members and community on the tribal court’s decision and to discuss the potential next steps in the legal process.

The legal battle began as a reaction to the Omaha Tribe’s attempt at leveling a 10 percent liquor tax on establishments that sell alcohol throughout much of Thurston County within its historical boundaries.

A number of bars and convenience stores joined forces to challenge the tax, and the Village of Pender eventually lent its resources.

A 1 percent sales and use tax was approved by Pender voters in May 2008 with 78 percent in favor of it to raise funds to pay for the legal battle.

The liquor tax was extended by five more years in May of this year when 72 percent of voters said it could continue through 2018 instead of expiring at the end of 2013.

For those who would like to read the full decision rendered by the tribal court, find it online for download at