Vol. 9 No. 11 (November 1999) pp. 476-478.

IMPERFECT VICTORIES : THE LEGAL TENACITY OF THE OMAHA TRIBE, 1945-1995 by Mark R. Scherer. Lincoln: University of Nebraska Press, 1999. 166 pp. Cloth $35.00.

Reviewed By Jill Norgren, Department of Government, John Jay College and University Graduate Center, The City University of New York.

In this case study, Mark Scherer set out "to examine the localized effect of recent federal policymaking" (p. xi) on the Omaha Tribe of Nebraska. He argues that while considerable study has been given to vacillating federal policy toward Native Americans "only at the grassroots level can the tangible, human effects of the shifting tides of federal policy be truly assessed" (p. xi). The considerable use of legal action by the Omaha made them, in Scherer's view, an excellent lens through which to understand the local impact of legislative, administrative, and judicial decisions made in Washington. The Omaha were "tenacious legal warriors" who, according to the author, "have achieved a cultural and economic renaissance in the 1980s and 1990s that can be traced in large part to their legal perseverance over the last fifty years" (p. xi).

The people ultimately referred to as the Omaha Tribe of Nebraska came to the Great Plains hundreds of years ago. By the late eighteenth century the Omaha had established themselves in what is today northeastern Nebraska and were practicing a semi-nomadic Plains Indian lifestyle that combined the cultivation of crops and far-ranging bison hunts. Their homelands consisted of millions of acres of land. The tribe began treaty making with the American government in 1815. By 1854 the United States claimed title to all of these lands, and pushed the Omaha onto a 300,000-acre reservation in the Black-Bird Hills of northeastern Nebraska. Beginning in the 1880s, nearly all of this reservation was lost as the result of Washington's new enthusiasm for a policy of detribalization through the allotment of reservation lands to individual tribal members. Defended as the way to bring Native Americans into the liberal democratic, capitalist mainstream, by 1960 less than 30,000 acres of their former homelands were in the hands of Omaha people.

Scherer has organized his examination of the impact of post-war federal policy making at the grass roots level into three broad sections: the experience of the Omaha tribe after passage of Public Law 280, the so-called "termination" policy; the two money damages claims filed by the Omaha before the Indian Claims Commission; and the tribe's effort to regain 11,000 acres of land in what became known as the Blackbird Bend litigation.

In 1953, the United States Congress and President Dwight Eisenhower accepted the arguments presented by a small group of members of Congress and approved a new federal Indian policy designed to free the federal government from its unique guardianship role over Indian tribes and to bring about the dissolution of tribes. Formalized in House Concurrent Resolution

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108 and Public Law 83-280, the immediate effect of the legislation was to mandate that Nebraska and four other states assume civil and criminal jurisdiction over all "Indian country" within their boundaries. Other states were extended the option of assuming such jurisdiction. Criticized by the NEW YORK TIMES as legislation "whipped through Congress so rapidly that practically no one interested in Indian affairs - least of all the Indians themselves - knew what was happening until it had already happened" (p. 9), termination policy was predicted to have dire consequences for Indian peoples. The former commissioner of Indian Affairs (1933-1945), John Collier, rebuked Congress and the White House and argued that the new law would result in "a dragon's nest of legal and administrative confusion."(p. 9)

Scherer argues that the legislative history of P. L. 280 reflects sponsors "ostensibly motivated by concern over the confusing and overlapping jurisdictional bounds between state, federal, and tribal law enforcement services and the resulting problems of law enforcement on and around specific reservations" (p. 8). He notes, however, that the legislation provided no consent requirement for the affected tribes. His research suggests a cloudy record with respect to the consent of the Omaha, certification made difficult by tribal factionalism and the erroneous exercise of criminal jurisdiction by the state of Nebraska over the Omahas "for some seventy years prior to 1953!" (p. 15). Scherer's research demonstrates that, although the exercise of jurisdiction over Indian matters did not change after P. L. 280, the new law did alter the pattern of criminal law enforcement on the Omaha reservation. Prior to termination legislation, the reservation desperately needed more effective law enforcement. A federal official had, in fact, urged that the Bureau of Indian Affairs arrange for the funding of two new positions for Indian policemen. The legislation, however, resulted in diminished federal resources with no concomitant increase in state funding. Until the termination of termination policy, the Omaha, like other affected tribes, experienced a deterioration of law-and-order on the reservation along with exacerbated tensions with local non-Indians.

The specific conditions created by the abrogation of federal responsibility are detailed by Scherer along with the struggle to win retrocession of state jurisdiction. The story is instructive both as a description of the experience of the Omaha with Nebraska officials and also as a case study in federalism. After fifteen years, opponents of termination were able to demonstrate its failures and to establish new federal policy on Indian matters in Titles II-VII of the Civil Rights Act of 1968. Scherer writes that "for the Omaha, by far the most significant change was contained in Title IV, section 403(a), which provided: "The United States is authorized to accept a retrocession by any State of all or any measure of the criminal or civil jurisdiction. . ." (p. 36). One year later, despite the opposition of local non-Indian residents, Nebraska legislators, anxious to save money, supported retrocession. In 1970 the tribe was once again under the jurisdiction of the federal government and, importantly, on the way to the control of its own law enforcement operations. Senate hearings in the mid-l970s suggest that, while local non-Indians viewed the change with alarm, tribal officials believed retrocession had been a "godsend. . . allowing its members to escape abuse and discriminatory prosecution . . . retrocession of criminal jurisdiction and the maintenance of the law

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and order system has been the first step to self-determination for the Omaha Tribe" (p. 45).

In the period that the Omaha were fighting the effects of termination policy, they were also engaged in three significant land claims. The first two of these actions were presented to the Indian Claims Commission and involved money damages. The third presented the Omaha case for the return of eleven thousand acres of land. The Indian Claims Commission was established in 1946. Its creation was intended to guarantee Indians access to a forum in which even hundred-year-old claims could be asserted. The United States waived its sovereign immunity but many Indian and non-Indian observers condemned the process for forcing tribes to exchange valid land claims for money damages, thereby precluding them from regaining land rights vital to their continued existence as a tribe . IMPERFECT VICTORIES sketches the two claims - Case 225 (1951-1964) and Case 138 (1951-1966) - brought to the Commission by the Omaha. In two brief chapters, Scherer provides an accessible overview of the lengthy process of review and the ultimate decisions that gave the tribe modest per capita and communal monetary awards. Although the discussion is useful, any student seeking deep understanding of the Commission will be disappointed. Readers would no doubt benefit from using Scherer's study in conjunction with Lieder and Page's recently published WILD JUSTICE (1999) (reviewed LAW & POLITICS BOOK REVIEW 9: 402- 406, 1999). Scherer does explore some of the politics surrounding the use of the communal judgment fund. He calls attention to the tensions that developed between tribal members living on, and off, the reservation. The discussion of this important and ongoing tribal factionalism is interesting and the reader wishes that the author had explored the topic more fully. In the end, the tribe agreed upon educational, economic and social improvement projects to be funded by the awards, efforts that the author asserts almost certainly would not have been possible without the ICC actions.

The book concludes with a brief presentation of the tribe's effort to regain land in the so-called Blackbird Bend litigation. A torturous experience for the Omaha, the litigation resulted in twelve published decisions but the award of title to only a small portion of the total acreage claimed by the tribe. According to Scherer, tribal members felt that they were "the victims of fraud and breach of trust on the part of the federal judiciary and the Department of Justice throughout the proceedings", feelings that have resulted in "lingering discontent and resentment on both sides of the litigation" (pp. 90-91).

So little attention is paid to Native American issues in general, and federal Indian law, in particular, that any serious study of these issues is welcome. In this instance, the author has produced a slim volume that clearly outlines the post-war experience of one tribe as it faced the various branches and offices of the federal government. The author makes a conscious effort to present a fair and balanced picture. Although study never quite makes up its mind whether to be a legal, or sociological, study and therefore suffers repeatedly from a frustrating superficiality, it does offer the first time explorer a useful introduction.

REFERENCE

Lieder, Michael and Jake Page. 1999. WILD JUSTICE: THE PEOPLE OF GERONIMO VS. THE UNITED STATES. Norman, OK: The University of Oklahoma Press.


Copyright 1999