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Pender has spent $285,000 on reservation boundary dispute

Village seeks renewal of 1% sales tax as case continues

By Jason Sturek

Pender Times Publisher

Pender voters spoke with a  unified voice when they overwhelmingly approved a 1 percent city sales and use tax at the polls in May 2008.

Knowing then that much of the money raised by the tax would be going to fund a legal fight that promised to one day settle whether Pender sits outside the boundaries of the Omaha Indian Reservation, more than 78 percent of voters were in favor of the tax.

Four years later, the Pender village board has put the sales tax back on the ballot for a five-year extension through 2018 as the legal process churns toward an answer.

More than 60 months after the boundary dispute case began in the courtroom of federal judge Richard Kopf as a reaction to the Omaha Tribe’s attempt at leveling a 10 percent liquor tax on establishments that sell alcohol throughout much of Thurston County, the legal firm representing Pender said it filed early in January 2012 for a “summary judgment” in tribal court.

The case has been in the tribal court system since Judge Kopf ordered that all local jurisdiction be exhausted before his court would render a decision.

Attorney Gene Summerlin of Lincoln-based Ogborn & Summerlin, which represents Pender, said that the long march toward a tribal court decision is owed to several factors, one of which is the time it has taken to finish depositions of tribal officials that proved difficult to arrange.

Another is the time it has taken for an expert witness for the village to finish her work on a detailed report that was submitted as evidence in the case. Emily Greenwald of Historical Research Associates, Inc. of Missoula, Mont., researched and authored a 35-page report that extensively details how about 50,000 acres of land west of the former Sioux City and Nebraska Railroad Company right-of-way were removed from the original Omaha Reservation and opened for settlement more than 125 years ago.

The report also says that the tribe has historically exercised very little political power west of the right-of-way where Pender is situated.

Greenwald holds a doctorate in history from Yale University and has served on the faculty at the University of Nebraska-Lincoln. Her report was finished in August 2011 and was provided as discovery evidence to the legal team representing the tribe in September 2011.

According to Summerlin, tribal attorneys have already responded to the village’s request for a summary judgment with a request of their own — that the tribal court not set a hearing date before June 2012. Summerlin said the village has objected to that extension.

Because the village is the plaintiff in the case and the burden of proof falls with the plaintiff, typically a court will give the defense time to produce its own expert witnesses, but Summerlin said the tribe has already had the report in its hands for about five months and hopes the court agrees that there has been ample time for the tribe to respond.

The attorneys representing both sides have provided updates to the federal court every four months on the progress toward a tribal court decision as Judge Kopf ordered. Summerlin said he didn’t know if the federal court would ever get involved if the tribal court timeline gets extended further.

“We would very much like to see it move quicker,” Summerlin said. “We’ve been providing regular reports (to the federal court) every four months, and we’ll continue to do that.”

The cost so far to the village has been legal expenses of about $285,000, according to figures provided by the village clerk. The sales and use tax has collected more than $400,000 since it went into effect, but those numbers are only accurate through December 2011 and do not include sales and use tax dollars that would have been due Jan. 20 from local businesses.

Pender voters will decide during the May 15 primary election whether or not to extend the sales and use tax by another five years.

The tax, which has been in effect since January 2009, is being collected in part to determine the exact boundaries of the Omaha Indian Reservation as well as further economic development in the village.

At its monthly meeting on Monday, Jan. 16, all five members of the Pender village board voted to place a resolution extending the sales tax an additional five years on the ballot in May.

Voters in the village will be asked: “Shall the governing body for the Village of Pender extend the term of the current one percent sales and use tax (imposed on the same transactions within the municipality on which the State of Nebraska is authorized to impose a tax) for an additional five years beyond the currently scheduled termination date of the local sales tax?”

In May 2008, voters in the village voted 220-62 to approve collecting the 1 percent sales tax for five years.


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