Omaha and Winnebago Tribes, Nebraska: To understand the factors
contributing to Nebraska’s eventual retrocession of jurisdiction over the Omaha and
Winnebago Tribes, one must appreciate the precipitous decline in law enforcement
conditions caused by Public Law 280 in Thurston County, Nebraska, where the tribes’
reservations are primarily located:
Criminal cases involving Indians in Thurston County
increased from 249 in 1954 to 353 in 1958. Likewise,
expenses for the county jail increased over 178 percent
from 1950 to 1959. The Thurston County jail had lodged
93 Indians at some time during 1949; by 1958, that number
has risen to 334.8
In 1956, though Indians constituted only one-third of the Thurston County population,
they made up 84% of the county’s total jail population. By 1970, according to the
Thurston County attorney, total criminal cases in the county had risen from 380 in 1955
to more than 1,120 in 1970;9 while neighboring counties’ per capita spending on law
enforcement was below $1.00, Thurston County’s was nearly $5.50.10 Conditions were
such that Montana representative Arnold Olden, when introducing a 1961 bill that would
have required tribal consent before permitting states to assume jurisdiction under Public
Law 280, identified the Omaha reservation as an object lesson in Public Law 280 gone
awry.
Public Law 280 specifically provided that the State of
Nebraska shall exercise full criminal jurisdiction over all
Indian country within the State. Yet, the administration of
the criminal laws of Nebraska is the responsibility of the
412
8 Mark. R. Scherer, Imperfect Victories: The Legal Tenacity of the Omaha Tribe, 1945-1995 at 26 (Univ. of
Neb. Press, 1999).
9 Id.
10 Id. at 26-27.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
county governments. The counties in which the Omaha
Reservation is located refused to assume this jurisdiction.
The Federal Government and the Omaha Tribe were
deprived of jurisdiction by the act. A lawless area was
created .... Murdered men have lain in the street within the
Omaha Reservation for over 24 hours before police have
investigated the crime.11
Non-Indian and Indian perceptions have differed as to the cause of Public Law
280’s dismal effects. Nebraska politicians and law enforcement personnel lay the blame
at Public Law 280’s unfunded mandate. Under Public Law 280, Nebraska, like other
mandatory states, became responsible for both major crimes and misdemeanors in Indian
country,
12 but was given little additional federal funding to handle the increased law
enforcement responsibilities. The State’s responses to Thurston County’s appeals for
additional funding were woefully inadequate and, in one notable instance, perversely
counterproductive.13 In 1961, the Nebraska Legislature introduced Legislative Bill 713,
which would “provide funding for up to three additional deputy state sheriffs in the
counties affected by PL 280 jurisdiction.”14 The Bill enjoyed support from Indians and
non-Indians alike, all of whom recognized the dire conditions prevailing on the State’s
reservations.15 LB 713 passed in 1961, but with a significant last-minute addition: Only
counties in which at least 60% of the persons convicted of violating state law were
Indians would be eligible for the three additional deputy sheriffs.16 The perverse effects
transformed “a well-intentioned measure into an ‘Indian Bounty Act.’ Indians and their
supporters contended that the county now believed that the most expedient method to
obtain increased state funding was to arrest more and more Indians.”17
In the minds of most Omahas, funding shortfalls and ineffective state legislation
were not the primary contributors to the woeful administration of law enforcement.
Rather, the fundamental flaw of Public Law 280 was that it vested authority in deeply
racist and discriminatory local governments, whose “officials lacked the fundamental will
413
11 107 Cong. Rec. H. 2576 (Statement of Rep. Arnold Olsen, Feb. 22, 1961).
12 See Chapter 1.
13 Scherer, supra note 8, at 27-28.
14 Id. at 28.
15 Id. at 29.
16 Id.
17 Id. at 30.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
to police the reservation fairly and efficiently.”18 Edward Cline, Omaha’s Tribal Council
chairperson, alleged that
(the Omahas)
were subject to physical abuse and
discriminatory prosecution. Rehabilitation was
nonexistent. Indians would be placed in jail upon arrest for
minor offenses for which non-Indians would merely be told
to appear in court. The county sheriff would refuse to set
bail for an Indian, making him sit in jail until he could
appear before the judge for arraignment.19
It’s little wonder that when Congress amended Public Law 280 in 1968 to permit
retrocession of state jurisdiction over reservation Indians,20 the Omahas quickly adopted a
resolution (in January 1969) confirming their desire for retrocession. Though the
Omahas regarded retrocession “as the long-awaited deliverance from their problems,”
many local non-Indian factions opposed the presence of a “state within a state, complete
with its own police force and tribal courts,” that would result if the state retroceded
jurisdiction to the United States.21 The feeling among many was that the local
governments could redress the previous shortcomings if sufficient funding were made
available. Nonetheless, in 1969, the Nebraska Unicameral passed Legislative Resolution
37, by which the State offered to retrocede all criminal jurisdiction, save for traffic
offenses, over the Omaha and Winnebago Reservations, both located primarily in
Thurston County.
22 Resolution 37 identified several reasons for retroceding jurisdiction,
including:
• the assumption of such jurisdiction has led to steadily
increasing costs for law enforcement in certain counties of
Nebraska, and particularly in Thurston County;
• because of restrictions in original grants of land in Thurston
County to Indians and Indian tribes,
Thurston County has
not had a sufficient tax base to meet the increasing costs of
law enforcement; and
414
18 Id.
19 Id.
20 See Act of April 11, 1968, Pub L No 90-284, Title IV, § 403, 82 Stat 78, 79, codified at 25 U.S.C. § 1321.
21 Scherer, supra note 8, at 37.
22 See Leg. Res. 37, 80th Leg., 1st Sess. (Neb. 1969). See also Omaha Tribe of Nebraska v. Walthill, 334 F.
Supp. 823, 827-28 (D. Neb. 1971), aff’d per curiam, 460 F.2d 1327 (8th Cir. 1972); United States v. Brown,
334 F. Supp. 536, 538 (D. Neb. 1971).
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
• since 1957, state assistance has been provided for law
enforcement purposes in Thurston County, and the cost of
this assistance has increased each biennium.23
In October 1970, the Department of the Interior accepted Nebraska’s retrocession of
jurisdiction over criminal offenses (except those involving the operation of motor
vehicles over public roads or highways) committed by or against Indians on the portion
of the Omaha reservation within Thurston County.
24 The Omaha Tribe became the first
to undergo retrocession.
Soon thereafter, Nebraska attempted to revoke its retrocession on two grounds.
First, LB 37 had not been presented to the governor for his signature, in violation of the
State Constitution.25 Second, the Secretary of the Interior’s acceptance of jurisdiction
was invalid because it did not comport with the State’s offer: Nebraska had offered
retrocession of all criminal jurisdiction, except for traffic offenses, over Indian Country
in Thurston County (which included both the Omaha and Winnebago Reservations), but
the Department accepted retrocession only over the Omahas.26 The federal courts
rejected Nebraska’s arguments and upheld the retrocession of criminal jurisdiction over
the Omahas.27
Upon the Secretary’s acceptance of retrocession, Congress appropriated $100,000
in interim funding to establish a BIA law enforcement presence on the reservation,
including a tribal court and judge, a police captain, and several tribal police officers; by
1971, construction of a new courthouse, jail, and police station was completed.28
Predictably, relations between tribal law enforcement and Thurston County started
off poorly. The tribal court’s lack of criminal jurisdiction over non-tribal members “led
to substantial uncertainty in the investigation and prosecution of crimes. Until the
specific ethnic identity of a criminal offender or suspect was determined, it was
415
23 Omaha Tribe of Nebraska v. Walthill, 334 F. Supp. 823, 827 n.6 (D. Neb. 1971), aff’d per curiam, 460 F.
2d 1327 (8th Cir. 1972).
24 35 FR 16,598 (Oct. 24, 1970).
25 See Leg. Res. 16, 82nd Leg., 1st Sess. (Neb. 1971). See also Omaha Tribe of Nebraska v. Walthill, 334
F. Supp. 823, 828 (D. Neb. 1971), aff’d per curiam, 460 F.2d 1327 (8th Cir. 1972); United States v. Brown,
334 F. Supp. 536, 538-39 (D. Neb. 1971).
26 State v. Goham, 187 N.W.2d 305, 312 (Neb. 1971)
(holding that retrocession was invalid); Walthill, 334
F. Supp. at 828 (rejecting Goham and upholding retrocession); Brown, 334 F. Supp. at 541-43; Scherer,
supra note 8, at 40-42.
27 Walthill, 334 F. Supp. at 828-29; Brown, 334 F. Supp. at 538, 541-43.
28 Scherer, supra note 8, at 40; Walthill, 334 F. Supp. at 828.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
impossible for county or tribal police to know which force had jurisdiction.”29 The
State’s retention of criminal jurisdiction over traffic offenses on the reservation’s public
highways created additional uncertainty.
The friction between the Tribe and the County has persisted. In 1985, nearly 15
years after retrocession, Thurston County Sheriff Clyde Storie complained that the
Omahas “ ‘should be assimilated into the white man’s culture’ and that retrocession had
been a ‘step backward’ for the tribe.”30 Moreover, friction has arisen when the Tribe has
attempted to enforce traffic laws against nonmembers driving on the reservation, a power
the State believes it has, exclusive of the Tribe.31 Attempts to negotiate a crossdeputization agreement like the one in place between the State and the Winnebago Tribe
have failed. Nonetheless
, the Tribe considers retrocession a crucial step to tribal selfdetermination that has increased its members’ self-esteem and satisfaction.32
Unlike the Omahas, the Winnebago Tribe, “[w]ith no budget to pay for law
enforcement and court services at the reservation ... [and] fearing total withdrawal of state
and local police services on the reservation,” declined the State’s 1969 offer to retrocede
its jurisdiction.33 Instead, the Winnebagos set about rebuilding their governmental and
economic infrastructure “to ready [themselves] for the eventual retrocession.”34 In 1974,
the Winnebago Tribal Council petitioned Nebraska to retrocede its civil and criminal
jurisdiction over the Winnebago reservation. The Tribe was dissatisfied with the
Thurston County law enforcement services, and believed that a reservation-based tribal
law enforcement and court system, reflecting tribal customs and standards, including its
preference for rehabilitation of criminal offenders and not mere confinement in jail,
would provide more sensitive and better quality law enforcement on the reservation.
Nebraska state senator Walter George introduced a measure in the Nebraska
legislature supporting retrocession, but the bill met with strong opposition. The Thurston
County Board of Supervisors passed a resolution adamantly opposing the retrocession of
criminal jurisdiction “on any land or county owned by or leased by non-Indian persons
within Thurston County,”35 while “[n]on-Indians who owned and operated businesses and
416
29 Scherer, supra note 8, at 43.
30 Id. at 45 (quoting Sheriff Storie).
31 Paul Hammel, "State Seeks Agreement on Tribal Ticketing," Omaha World Herald. Jan. 9, 2003, p.3b.
32 Scherer, supra note 8, at 43.
33 Milo Colton, “Self-Determination And The American Indian: A Case Study,” 4 Scholar 1, 24-25 (2001).
See also Charles F. Wilkinson, “Civil Liberties Guarantees When Indian Tribes Act As Majority Societies:
The Case Of The Winnebago Retrocession,” 21 Creighton L. Rev. 773, 791-92 (1987).
34 Colton, supra note 33, at 24.
35 Walthill Citizen (May 2, 1975).
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
farms on the reservation lobbied against retrocession.”36 The bill stalled, failing to make
it out of judiciary hearings.
In 1984 the Nebraska Indian Commission conducted hearings concerning the
interaction between Thurston County and its American Indian population. Four main
findings emerged:
[1] There was a lack of understanding and communication
between tribal and county officials;
[2] The county had failed to recognize, appreciate or
provide for the cultural and rehabilitative needs of
Winnebago arrestees;
[3] The lack of cooperation and mutual working
relationships, coupled with inadequate funding and
accountability had led to Indian perceptions of disparate
and retaliatory treatment” and to “inadequate and below
standard services and facilities;” and
[4] There was a mutual reluctance by both county and tribal
officials to recognize the validity of each other’s law
enforcement.37
On the heels of these hearings, and after years of continued economic and governmental
development, including the creation of a tribal court system, the Winnebagos, assisted by
Native American Rights Fund attorney Bob Peregoy,
38 resumed their campaign for
retrocession. The Tribe wanted “to assume more responsibility for its own people and
affairs and thereby endeavor to remedy the many problems associated with the high arrest
rate of its members and the present P.L. 280 jurisdictional arrangement.”39
To counter non-Indians’ views that the Winnebagos were not competent to assume
jurisdiction over their reservation, the Tribe took up a public relations campaign touting
417
36 Id.
37 Id. at 25-26. See also Colton, supra note 33, at 25 n.191 (“Looking specifically at 1983, the following
statistics describe the difference between Indian and non-Indian arrest records: between 60-65% of the
Indians arrested were charged with alcohol-related offenses, compared with 21% for non-Indians; 62% of
Indian arrests may have been accomplished without an arrest warrant, compared with only 47.8% for nonIndians; 80% of Indians were held for pretrial reasons, compared with 64% of non-Indians; Indians also
completed their sentences in greater percentages than non-Indians.”).
38 “Winnebago Tribe Regains Jurisdiction,” Indian Country Today, Mar. 5, 1986, p.1.
39 Native American Rights Fund, Abstract of Briefing Document: Public Law 280 and Retrocession
Affecting the Winnebago Indian Reservation 4 (Feb. 1985).
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
their accomplishments since the government’s move away from Termination policy.
40
According to a study conducted by Professor Milo Colton,
The first accomplishment was the increase in the level of
qualifications held by tribal officials. During the 1960s, a
Tribal Council member’s average age was sixty-five years,
while their average formal educational level was limited to
eight years of schooling.
By 1985, the average age of a
Tribal Council member was forty-eight years, and the
average educational level was fourteen years. One member
of the Council had a master’s degree, two had bachelor’s
degrees, and several others had two to three years of
college. The attainment of higher education levels and the
increase in the tribal budget demonstrate the considerable
advancement of the Winnebago Tribe. After the
amendment to the federal termination policy, the Tribe
created a strong tribal government. It also built a number of
enterprises on the reservation. The annual tribal budget
grew from a mere $6,000 in the 1960s to $ 2.7 million in
1985.
