Ruling expected soon in Omaha-Winnebago dispute

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PIERRE, S.D. - It will be at least three weeks before a federal judge rules on a land dispute between Nebraska's two largest tribes, said Terry Pechota, a Rapid City attorney representing the Omaha Tribe of Nebraska.

The Omaha Tribe of Nebraska filed suit against the Winnebago Tribe of Nebraska in an attempt to oust the tribe from land it allowed a then-homeless Winnebago Tribe to inhabit on its northeastern Nebraska reservation.

Under a treaty signed in 1865, the Winnebago could remain on the land as long as the two tribes coexisted peacefully, but a provision cited by the Omaha allows the tribe to buy back the land for $50,000, the amount the federal government paid the tribe on behalf of a settlement for the Winnebagos.

Earlier this month, U.S. District Judge Joseph Bataillon agreed during a hearing in Omaha to interpret the meaning of a century-old treaty and determine if is binding and relevant today.

The challenge is whether the Omaha can invoke a treaty provision allowing it to buy back the lands it sold to the federal government more than 136 years ago to create the Winnebago reservation.

"The Omahas have always known of this provision. We are asking this court to enforce it," said Pechota.

Mark Hubble, an attorney for the Winnebagos argued that its treaty with the federal government, signed two days after the treaty with the Omaha was signed, gave the Winnebago the reservation land in perpetuity.

Hubble said the treaty says the Winnebago can have the land forever.

There is no dispute that the U.S. government entered into a treaty with the Omaha Tribe in 1865 for sale of the land on behalf of the Winnebago who had been wandering on the plains, cold and starving after being removed from their ancestral home in Wisconsin.

But Article 10 of the treaty held that if the Omaha and their new neighbors ever failed to get along, the Omaha could buy back the land under the original terms of the sale.

The Omaha, upset with the Winnebagos and the federal government over a recent decision to build a joint hospital for the two tribes on the Winnebago reservation, say the tribes aren't getting along.

The Omaha Tribe offered the federal government $50,000 for the large tract of Thurston County land.

Attorneys arguing on behalf of the United States and the Winnebago Tribe asked the federal judge to dismiss the suit on grounds the court had no right to hear the case.

Treaty provisions make Congress, not the courts, the arbiter of disputes between tribes, said the attorneys.

The Winnebago Tribe is a sovereign nation and immune from being sued, but is an indispensable party in the dispute between the Omahas and the federal government because its members live on the disputed land. That makes it impossible for the case to go forward, they said.

However, Pechota said it would be unfair to the Omaha to have the suit thrown out on that basis, when it has a valid treaty with the government.

"Never in their wildest dreams would they enter this treaty only to have the government say, 'We sold you a bill of goods, again."'

Bataillon noted the confusing nature of the agreement and suggested the federal government had entered into two treaties with inconsistent provisions.

Pechota said the judge is expected to rule within 30 days of the May 1 hearing.

Should the case go forward, Pechota said the matter could be in the courts months or even years.