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Omaha tribe uses 1864 treaty as leverage

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The Winnebago Tribe of Nebraska is asking a federal judge to dismiss a lawsuit filed by the Omaha Tribe of Nebraska asking for the return of the land the Winnebago tribe calls home.

Winnebago Chairman John Black Hawk dubbed the lawsuit, filed nearly two months ago in federal district court in Omaha, a political maneuver in response to locating a new Indian Health Service hospital in Winnebago to serve both tribes.

More than a century ago, the Omaha tribe gave up part of its northeast Nebraska reservation to make a home for a homeless, cold and starving Winnebago tribe forced from its Wisconsin home. They relocated to northeastern Iowa, then to Minnesota and then to the Crow Creek region in South Dakota.

They later moved to what were the Omaha lands in 1864 when a federal agent struck a treaty agreement allowing the Winnebago to remain so long as the two tribes coexisted peacefully.

In the lawsuit the Omaha cited a provision in the 1865 treaty allowing them to buy back the land for $55,000 - the amount the federal government paid the tribe in the name of the Winnebagos - if the two tribes didn't get along. Omaha tribal officials have tendered to the U.S. Treasury certificates of deposit for that amount.

Nearly 25 years ago, an outpatient clinic opened on the Omaha reservation, but inpatient hospital care is based in Winnebago.

When the Indian Health Service decided to replace that hospital, the Omahas wanted it on their reservation. During the site selection process, the Omahas claimed they were being left out and attempted to withdraw their patient numbers from the project.

Omaha tribal officials presented several options for the hospital, including five sites, but Black Hawk said one of the key factors in determining where the hospital would be located was use of an existing treatment center which helped provide sufficient patient numbers to qualify the two reservations for priority listing for a new facility.

"We're still continuing to do work there, but it is a little bit of a frustration. If there were some major issues there we would always try to work them out," he said.

"It has become a real political scenario for the Omaha tribe and its membership. They are real disappointed in not getting the hospital there," Black Hawk said.

"We're a little saddened by what happened, but we understand the politics they have to contend with. They say they are losing the hospital. The Indian Health Service kind of did them a disservice when we went to actual site selection. The Omahas had four or five sites identified. In reality, the IHS couldn't construct a new hospital" except on the current site "because of the drug dependency unit." He said IHS told the Winnebago it didn't have the authority to construct a new drug dependency unit.

"They have the authority to renovate and do something with existing structures, but there is a threshold for new construction."

The IHS requires an average daily patient load of 15 before such facilities are considered, but because the treatment center provides acute care and serves patients beyond the hospital, it provided sufficient daily patient numbers to qualify the site for new construction, Black Hawk said.

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"That allowed us to realistically move down the road and get on the construction list."

For the Omahas, the hospital location is the latest in a 120-year history of federal decisions that favored the Winnebagos while slighting the larger and more established tribe.

"The Omahas deserve some recognition or consideration," said Rudi Mitchell former tribal chairman.

The lawsuit accuses the Winnebago tribe of colluding with federal agencies and members of Congress to deny the Omahas meaningful input in the hospital project.

In addition to return of the reservation land, the suit seeks to halt hospital construction, but Black Hawk said construction continues.

Mark Hubble, an attorney for the Winnebagos, said there's no merit to the suit which includes the Department of the Interior and other federal agencies. Hubble said it's doubtful the treaty provision, even if enforceable today, applies in the hospital dispute. He said he considers the case a frivolous lawsuit.

"One of the comments we had made to the feds is, if you are seriously contemplating giving this land back to the Omahas, you probably should - in all fairness - give back the Black Hills first," Black Hawk said.

Officials in the U.S. Solicitor's Office in Minneapolis are reviewing the Omaha treaty and its history. The Omahas claim to be "the first Nebraskans" and say their ancestors called eastern Nebraska home for more than a century before the white settlers arrived.

In 1996, the Omaha Tribal Council voted to invoke Article 5 of the 1865 treaty and asked the BIA to return their land. The bureau took no action, and site work on the hospital began in Winnebago last fall.

The Omahas invoked the treaty clause again, wrote to President Clinton requesting action and then took the case to federal court in Omaha. The suit indicates the tribe tried to invoke the treaty provision in 1992, when the Winnebagos fought an Omaha effort to build a casino in Council Bluffs, Iowa. It also speaks of the Winnebagos' general failure to treat the Omahas "with the dignity and respect they deserve."

Hubble said a buy back of the land is unlikely even under the terms set forth by the treaty. Some terms in the original treaty have expired, he said.

Mitchell said there's no doubt his tribe is using the old treaty provision to gain leverage in the hospital dispute.

Hubble said a federal judge is waiting for response from the remaining defendants before acting on the motion to dismiss.