Judge halts enforcement of new tribal liquor tax


By Timberly Ross -- Associated Press

OMAHA, Neb. (AP) - A U.S District Court judge granted a temporary restraining order on April 17 that bars the Omaha Indian Tribe from enforcing a new tax on liquor sales in Pender.

A group of Pender liquor establishments asked for the restraining order, 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.

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

The restraining order from U.S. District Judge Richard Kopf comes after Nebraska Attorney General Jon Bruning said in an opinion Feb. 15 that while the tribe has the authority to enact liquor regulations within the reservation, Pender residents and businesses that are taxed should be advised to 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.

''We are very comfortable with our authority to issue the opinion and with the conclusion in that opinion,'' said Bruning spokeswoman Holley Hatt.

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.

Bertucci said Bruning's opinion led the state Department of Revenue to terminate an agreement with the Omaha Tribe that had allowed the tribe to collect a gas tax in Pender.

The lawsuit seeks a declaration of Bruning's misconduct.

Associated Press Writer Anna Jo Bratton contributed to this report.