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