Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Parker

United States Court of Appeals, Eighth Circuit

December 19, 2014

Richard M. Smith; Donna Smith; Doug Schrieber; Susan Schrieber; Rodney A. Heise; Thomas J. Welsh; Jay Lake; Julie Lake; Kevin Brehmer; Ron Brinkman; Village of Pender, Plaintiffs - Appellants State of Nebraska, Intervenor Plaintiff - Appellant
v.
Mitch Parker, In his official capacity as Chairman of the Omaha Tribal Council; Barry Webster, In his official capacity as Vice-Chairman of the Omaha Tribal Council; Amen Sheridan, In his official capacity as Treasurer of the Omaha Tribal Council; Rodney Morris, In his official capacity as Secretary of the Omaha Tribal Council; Orville Cayou, In his official capacity as Member of the Omaha Tribal Council; Eleanor Baxter, In her official capacity as Member of the Omaha Tribal Council; Ansley Griffin, In his official capacity as Member of the Omaha Tribal Council and as the Omaha Tribe's Director of Liquor Control, Defendants - Appellees the United States, Intervenor Defendant - Appellee

Submitted October 7, 2014

Appeal from United States District Court for the District of Nebraska - Lincoln.

For Richard M. Smith, Donna Smith, Doug Schrieber, Susan Schrieber, Rodney A. Heise, Thomas J. Welsh, Jay Lake, Julie Lake, Kevin Brehmer, Ron Brinkman, Village of Pender, Plaintiffs - Appellants: Mark Davis Hill, HUSCH & BLACKWELL, Omaha, NE; Marnie Jensen, Gene Summerlin, HUSCH & BLACKWELL, Lincoln, NE.

For State of Nebraska, Intervenor Plaintiff - Appellant: Jon Cumberland Bruning, Attorney General, David D. Cookson, Deputy Assistant Attorney General, Blake E. Johnson, Assistant Attorney General, David A. Lopez, Assistant Attorney General, Ryan Post, Assistant Attorney General, Katherine J. Spohn, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Lincoln, NE.

For Mitch Parker, In his official capacity as Chairman of the Omaha Tribal Council, Barry Webster, In his official capacity as Vice-Chairman of the Omaha Tribal Council, Amen Sheridan, In his official capacity as Treasurer of the Omaha Tribal Council, Rodney Morris, In his official capacity as Secretary of the Omaha Tribal Council, Orville Cayou, In his official capacity as Member of the Omaha Tribal Council, Eleanor Baxter, In her official capacity as Member of the Omaha Tribal Council, Ansley Griffin, In his official capacity as Member of the Omaha Tribal Council and as the Omaha Tribe's Director of Liquor Control, Defendants - Appellees: Nora Marie Kane, Patricia A. Zieg, STINSON & LEONARD, Omaha, NE; Mark Jon Peterson, PETERSON LAW OFFICE, Omaha, NE.

For The United States, Intervenor Defendant - Appellee: Katherine J. Barton, Daron Carreiro, Mary Gabrielle Sprague, U.S. DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Appellate Section, Washington, DC.

Before LOKEN, BEAM, and COLLOTON, Circuit Judges.

OPINION

Page 1167

BEAM, Circuit Judge.

Appellants, the Village of Pender, Nebraska, and resident owners or agents of establishments in or near Pender engaged in the sale of alcoholic beverages, appeal the district court's[1] denial of Appellants' motion for summary judgment requesting declaratory and injunctive relief from the Omaha Tribe's attempt to enforce its liquor-license and tax scheme on them, and the court's corresponding grant of summary judgment in favor of the Omaha Tribe. The Omaha Tribal Court as well as the federal district court determined that Pender and the relevant areas involved in this action are located on Omaha tribal land. Appellants challenge the district court's determination that the Omaha Indian Reservation was not diminished by an 1882 act of Congress. We affirm.

In 2006, the Secretary of the Interior approved amendments to Title 8 of the Omaha Tribal Code, which modified the tribe's Beverage Control Ordinance and allowed the tribal government to impose a ten percent sales tax on the purchase of alcohol from any licensee on tribal land. The Omaha Tribe attempted to enforce this alcohol tax on the individual plaintiffs, resulting in this action. Appellants claimed that they were not located within the boundaries of the Omaha Indian Reservation and thus not subject to the tax.

As noted by the district court, the pivotal issue in this case is whether Congress intended to " diminish" the boundaries of the Omaha Indian Reservation in Nebraska when it enacted an 1882 Act that ratified an agreement for the sale of Omaha tribal lands to non-Indian settlers. If it did, the district court stated, " the area involved would no longer constitute Indian country, and the Omaha Tribe could not regulate and tax alcohol sales in Pender, Nebraska." We review de novo a grant of summary judgment. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc).

The extensive legislative history surrounding the 1882 Act is discussed by the district court. Most relevant to the required analysis--the touchstone, really--is language contained in the 1882 Act and the effect it had on the Omaha Indian Reservation, especially an area comprising approximately 50,000 acres that lie in the western portion of the reservation and include the land upon which the Village of Pender now sits. The Act of August 7, 1882, § 1, provided:

That with the consent of the Omaha tribe of Indians, expressed in open council, the Secretary of the Interior be, and he hereby is, authorized to cause to be surveyed, if necessary, and sold, all that portion of their reservation in the State of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.