Omaha Tribe of Nebraska v. Village of Walthill

• Decision Date: 23 November 1971
• Docket Number: Civ. 71-0-114.
• Citation: 334 F. Supp. 823
• Parties: OMAHA TRIBE OF NEBRASKA et al., Plaintiffs, v. VILLAGE OF WALTHILL et al., Defendants.
• Court: U.S. District Court — District of Nebraska

334 F. Supp. 823

OMAHA TRIBE OF NEBRASKA et al., Plaintiffs, v. VILLAGE OF WALTHILL et al., Defendants.

Civ. 71-0-114.

United States District Court, D. Nebraska.

November 23, 1971.

COPYRIGHT MATERIAL OMITTED

William K. Schaphorst, Asst. U. S. Atty., D. Nebraska, for plaintiffs.

Robert G. Scoville, South Sioux City, Neb., Ronald K. Samuelson, Walthill, Neb., and Mel Kammerlohr, Asst. Atty. Gen., for defendants.

MEMORANDUM

RICHARD E. ROBINSON, Chief Judge.

This matter comes before me upon the motion of plaintiffs and the cross-motion of defendants for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Said motions having been made verbally at the end of a hearing regarding plaintiffs' motion for a temporary injunction. Filing #2.

Jurisdiction is vested by virtue of 28 U.S.C. § 1362.

All of the counsel appearing in this matter have been of considerable assistance to me in presenting the legal issues involved.

The plaintiffs in this action are the Omaha Tribe of Nebraska, the Tribal Council, and the Membership of the Tribe. The defendants are the Village of Walthill, Thurston County, The State of Nebraska, and certain named county and state officials.

In 1953 the United States Congress, by virtue of 67 Stat. 588,¹ provided that Nebraska should have both civil and criminal jurisdiction over all the Indian country,² within the State of Nebraska, to the same extent as the State exercised jurisdiction in the rest of the State. The Act did not call for any formal acceptance by the State but apparently conferred jurisdiction automatically.³ In any event, Nebraska did in fact commence exercising jurisdiction pursuant to the federal act, and it is thus clear that the State representatives did not deem it necessary to formally accept.

In 1968 Congress authorized the United States to accept retrocession by any state "* * * of all or any measure of the criminal or civil jurisdiction. * * *" granted by 67 Stat. 588.⁴ The United States Secretary of Interior was designated by the President to accept such retrocession on behalf of the United States.⁵

In 1969 the Nebraska Unicameral by resolution⁶ purportedly offered to retrocede to the United States all of the criminal jurisdiction over offenses committed by Indians in Indian country located in Thurston County, Nebraska, excepting motor vehicle offenses. The Indian country of Thurston County consisted of the Omaha and the Winnebago Indian Reservations.⁷

Since the retrocession offered by Nebraska concerned criminal jurisdiction the Secretary was required under the President's Executive Order⁸ to consult with the Attorney General. The Secretary did so, and a letter from the Office of the Solicitor of the Department of the Interior, addressed to an Assistant Attorney General in the Criminal Division of the Department of Justice, dated February 6, 1970 shows that the Secretary had contacted both the Winnebago and Omaha Tribes in Thurston County, Nebraska, in regard to the retrocession. The letter states that although the Omaha Indian Tribe desired to be under federal jurisdiction the Winnebagos equally desired to remain under state jurisdiction. A copy of the letter is appended hereto

A letter dated December 11, 1969, from the Executive Board of Nebraska's Legislative Council indicates that that Board approved the transfer back to the federal government of the criminal jurisdiction over the Omaha Tribe alone. A copy of the letter is appended hereto.

Consistent with the desires of the two Indian tribes, and the approval of the aforesaid State Legislative Board, the Secretary of Interior accepted a retrocession of criminal jurisdiction as to the Omaha Indian Reservation in Thurston County, Nebraska, but not as to the Winnebago Indian Reservation in that Country.

Shortly after the purported retrocession had occurred the United States Bureau of Indian Affairs set up a Tribal Court and a temporary Tribal jail. A judge for the Tribal Court was appointed, and nine Indian policemen were employed. A substantial federal grant financed these implementations.

Despite the purported retrocession and the aforesaid change of circumstances, the non-Indian law enforcement agencies in Thurston County continued to arrest Omaha Indians on criminal charges, and non-Indian County and Municipal judges of the County continued to try members of the Omaha Tribe for offenses allegedly committed within the confines of the Omaha Indian Reservation. And, on February 1, 1971, the Nebraska Legislature purported to withdraw and rescind its previous offer of retrocession by a legislative resolution.⁹

THE VALIDITY OF THE NEBRASKA RESOLUTION OFFERING A RETROCESSION.

The Legislative Resolution which was passed by the Nebraska Unicameral in 1969¹⁰ purporting to offer the aforementioned retrocession of criminal jurisdiction over all Indian country in Thurston County, Nebraska, was not presented to the Governor of the State, contrary to a State Constitutional requirement.

Article IV, § 15 of the Nebraska Constitution now provides in pertinent part, as follows:

"Every bill passed by the legislature, before it becomes a law, and every order, resolution or vote to which the concurrence of both Houses may be necessary except on questions of adjournment shall be presented to the Governor. * * *"

In 1934 Article III, § 1 of the Nebraska Constitution was amended to provide for only a one house legislature, and to abolish the two house system. That section also provides:

"All provisions in the constitution and laws of the state relating to the legislature, the Senate, the House of Representatives, joint sessions of the Senate and House of Representatives, Senator, or Member of the House of Representatives, shall in so far as said provisions are applicable, apply to and mean said Legislature of one chamber hereby created and the members thereof."

In this Judge's opinion the aforesaid Constitutional Amendment, in effect also amended Article IV, § 15 of the Constitution so as to require all orders, resolutions and votes of the Legislature to be presented to the Governor, whether or not such orders, resolutions or votes were of a type which theretofore had required the concurrence of both houses. Thus the 1969 retrocession resolution should have been presented to the Governor.

My view of how Article IV, § 15 of the Constitution was to be interpreted after 1934, is supported by Nebraska Legislative Bill 301, as found in the 1971 Nebraska Session Laws. That Bill is entitled in pertinent part as follows:

" A BILL

For an Act for submission to the electors of an amendment to Article IV sections 7 and 15, of the Constitution of Nebraska, relating to the executive: * * * to remove obsolete matter; * * *."

The proposed amendment would delete from Article IV, § 15 the reference to a concurrence of both Houses, so that that section if amended would then read as follows:

"Every bill passed by the Legislature, before it becomes a law, and every order, resolution or vote except on questions of adjournment shall be presented to the Governor."

Thus, when the preamble to the Bill is read together with the proposed amendment it is apparent that the drafters of the Bill considered the reference to a concurrence of both houses as "obsolete matter." The only thing which could have made the language obsolete, was the aforementioned 1934 Constitutional Amendment.

Since the reference to two houses in Article IV, § 15, has been obsolete since 1934 that provision should have been thereafter read by the Courts as the Constitutional Amendment proposed by Legislative Bill 301 would now make it read in actuality. In other words the amendment proposed by the aforesaid Bill is not an amendment of substance, but merely an amendment to conform the language of the provision to the manner in which it must already be read as a matter of Constitutional interpretation.

Based upon the foregoing interpretation it is my conclusion that the Nebraska Constitution required that the 1969 retrocession resolution passed by the Unicameral be presented to the Governor of the State.

The question now presented is: What, if any, effect the failure of the Legislature to present the resolution to the Governor has upon the legal validity of the retrocession of jurisdiction being considered herein? For the reasons hereafter stated, it is my opinion that the failure of Nebraska's Legislature to present the resolution to the Governor had absolutely no effect whatsoever upon the legal validity of the retrocession.

I find it significant that the same resolution herein under consideration was before the Nebraska Supreme Court in the case of State v. Goham, 187 Neb. 35, 187 N.W.2d 305 1971, and that Court did not inquire into its procedural or Constitutional validity.

Since the Nebraska Supreme Court in Goham deemed the validity of the retrocession an important issue in whether or not it had subject matter jurisdiction of the case before it, that Court was under a duty to inquire into all aspects of the question which it deemed important, as is any Court which has its subject matter jurisdiction questioned in a particular case. Also, that Court surely must be charged with knowledge and notice of its own state Constitution, and the provisions therein.

The State of Nebraska, was a party in Goham, and is a party in this case. However, I do not deem it necessary to inquire into the technical subtleties of res judicata or collateral estoppel, as it would be extremely difficult to say that under those doctrines the failure of the State to raise the procedural correctness of the resolution in Goham would be a bar to this Court's inquiry into the matter.

In any event, this Court does give a good deal of weight in deciding this matter to the fact that the validity of Nebraska Resolution No. 37 was not raised by either the parties or the Court in Goham.

In the Nebraska case of Miller v. Hurford, 13 Neb. 13, 17, 12 N.W. 832, 834 1882, a...