Roger Welsch &…; 409; Mark Scherer

I don't know what that is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is, but I don't know what it is But I don't know what it is, but I don't know what it is, but I don't know what it is Joining Roger this evening is Mark Sherer author of imperfect victories Good evening and welcome I go bonkers every time I hear someone snarling about that damned Indians, and why don't they just obey the same laws Everyone else does and why don't they just become

Americans like the rest of us and why are they always getting all of those government handouts You've heard it. Statements like that come from people who haven't the faintest notion what they're talking about. Mark Sherer is a history professor at the University of Nebraska at Omaha. And he's published a new very important book about the legal history and status of the Omaha tribe in perfect victories, the legal tenacity of the Omaha tribe. And as many of you know, the Omaha's are very close to my own heart. Mark, thank you very much for coming by. And I appreciate also the terrific book. It's a contribution, I think, not only to Nebraska history, but to the tribe and to Nebraska in general. Thanks for having me. I think you've done a remarkable thing and I wonder if you won't be in trouble for it. You've taken an extraordinarily difficult, complicated situation, tribal law, federal law, state law, and made it a very readable book. I think it's a market book. It's the kind of thing somebody could pick up almost as a mystery and adventure and read it. Isn't that a violation of the lawyers of rules of order? Aren't you

supposed to make things more complicated? Well, you know, that's the impression that's out there on occasion. But certainly there's a movement within the legal profession to try to reduce the amount of legal ease that's out there and to make legal issues more understandable and palatable to the general public. And certainly that's part of what I'm trying to do with this work. How did you wind up focusing on the Omaha tribe? It kind of a combination of personal interest and professional good fortune on my part. I grew up in Central and Southern Ohio and meshed in the legends of the Great Tacumpsa and grandparents that told me of Indian lore in those regions of the country, Central Ohio and Southern Ohio. And then we came to Omaha in 1988 and a professional move, really for my wife. She's a professor at UNO

and continued to practice law here for several years before deciding I wanted to go back to school myself, pursue a PhD in history. One thing led to another I wound up working with my Tate at a professor of history at UNO who was one of the foremost national authorities on Native American history and law. And then as I pursued my PhD here at Lincoln, I had the great fortune to work with and continue to work with John Wunder here at UNL who was one of the great authorities in the country on Native American law and history. So those things just in combination just led me to an interest in the Omahas and the work that you see here. And I can tell you from my own experience once you wind up being involved with Native American people and I think especially the Omahas, you're doomed. You're never going to be able to escape it. As I looked out I was surprised when you came into the studio just a few minutes ago because after reading the book I expected a great and grizzled veteran of the legal wars. Oh,

the gray is coming. But I should have known because as I read through your credentials in your distinguished educational career, distinguished legal career, very impressive credentials. But the one that moved me most that I thought I'm going to like this guy is hearing your resume. It says assistant cub master come back 408 Saint Wentz's Laws Parish. That is a credential. Well, we have three sons and they're a huge part of our life. And frankly, that one is one I've just recently moved out of as our children move beyond that age. But you can never lose sight of the fact that our lives kind of revolve around the kids at this point and that kind of reflects that. Even I've been involved with the Omaha tribes since really since 1958 but intensely since about 1964. But your book had a lot of surprises for me in it. Even there were things that I simply didn't know. In some cases, very personal things. People like Eddie Klein, who was a very quiet tribal elder, peaceful sort of a guy, very

serene and quiet. Yet he was a hero of the Omaha people in the legal battles that I didn't know about. You came from the outside, were you surprised to about what has happened to these American people? I didn't really have a good, not having been a lifelong Nebraska. I didn't have a feel for how big a force this had been in Nebraska history or how much public consciousness there was of what had gone on up in and around Thurston County and around the Nebraska, the Omaha Reservation. But yeah, as I began the work, it did become apparent to me that people just kind of take things for granted up there. I mean, we even take for granted the fact that the city of Omaha is named Omaha. In Nebraska is an Omaha word. Yes, exactly. And that people really don't think about those kinds of connections and the legacy and the common heritage that we all share in this region. And so yeah, I think there are some untold stories here. That's why, as an historian, we write things to try to tell some of the untold story. Well, I think that's what makes it an exciting book. I said it was something of a mystery and an

adventure because part of it is not only are people like Eddie Klein, very peaceful and quiet guys, but the Omaha people have their farmers and they've always been farmers. They've never fought a battle with a white man and they were surrounded by the mighty warriors, the Pawnee, the Lakota, and the Omaha's have generally been being in corn farmers throughout all of history. But already in the introduction to the book, I got a sense of what you were going to say. And it's what I think makes the book the kind of adventure some reading it is. He wrote, the Omaha's have become notably tenacious legal warriors, achieving a prominence in the annals of federal Indian relations that belies their relatively small population and their relatively obscure geographic presence in Northeastern Nebraska. So while these people did not make their mark in Indian warfare in the 19th century, I've always known that there were a lot of legal things going on. My Omaha brothers, buddy Gilpin, who was mentioned throughout the book, is being

very active in all of the problems you discuss in here. So to me, these were all legal problems. We're always interesting and important, but I didn't understand until I read your book. But these really are precedents of national importance. Yeah, no question about it. The Omaha's, as I say, they are relatively obscure tribe in terms of the national stage. And yet, for a number of different reasons, they've kind of borne more than their fair share of the buffeting of federal Indian policy over the past two centuries. They have been, I think I used the phrase sociological guinea pigs in many ways, as government policy would ab and flow and shift from one extreme to another. For whatever reason, the Omaha's have sort of been at the vanguard of some of this experimentation. And they have forged a very prominent niche for themselves in the legal annals of Native American history, through some of their adventures

in the courts that I try to describe here. And not always the ones they won, but the ones in which they've made a mark. Yeah, and that's the essence of what I'm trying to convey with the title in perfect victories. Their legal struggles have resulted most often in partial successes, but they've always come at great expense and after great turmoil and travail and a great deal of agonizing. Really, on the part of both the Omaha's and many of their non -Indian neighbors. The title is a clue, I think, to the tone of the book, imperfect victories. There's already hint there, but the subtitle is the legal tenacity of the Omaha tribe. Tenacity is a kind of a positive word. It suggests a kind of heroism. And I'm not sure within the field of law or history you're supposed to have this kind of subjectivity, but these days, but I think it's always been the heart of history. I once heard a woman at a conference say something that etched itself in my mind.

She was in a wheelchair, so she didn't exactly rise to her feet, but she rose above the crowd as she said this. She said history, which was once the queen of the humanities, is now the skull remade and the social sciences. And it's partially because it's lost that sense of the humanities, the passion that goes with us. And the passion in this book is on the side of the Omaha tribe, which I, of course, resonated with right away. Sure. I try to present as balanced a presentation of these legal issues as I possibly can, but having said that and having professed that kind of intent, it's virtually impossible when you begin working in these things in depth, to not come away with a good deal of admiration and respect for what the Omahas went through. While still being able to acknowledge the other side of the coin in these legal controversies, the Blackbird bin litigation being a perfect example, you can admire what the Omahas were trying to do in that litigation, and yet still understand and acknowledge the feelings and the

sentiment being expressed on the other side of the coin as well. But yeah, tenacity is what really comes through here, and that's the reason we use that in the subtitle, is that many of these legal struggles that the Omahas got involved in in the 1940s, 50s and 60s were incredibly prolonged, and took the Blackbird bin litigation extended well, you know, 18, 19 years in total, the ICC litigation that we discussed in the book, you know, there were 12, 15 -year struggles, the public law to 80 years that I described in the first couple of chapters, that was a period of some 16 years where we had jurisdictional chaos and lawlessness in some ways on the reservation, and so yeah, it took a great deal of resiliency and tenacity, as I say, for the Omahas to survive these episodes and continue to thrive today as they do. The Blackbird bin issue was particularly poignant and painful

for me because you're right, you can see both sides of the issue. Here was a piece of river of land which had belonged to the Omahas, and then you've got mother nature doing the crazy things she does in the Missouri River doing the crazy things it does, moving over, and suddenly land that was on the reservation side is now on the Iowa side, it becomes farmland, and as somebody who's a recent occupant of farmland, I bought my place 25 years ago, but that's recent, I know what land means, and you come to love it like a member of the family, so here was land which was sacred to the Omahas, it was Omaha land, but families' generations of Iowa people had lived on this ground, and they don't want to see it go, they don't want to lose it, it's not that they have anything against the Indians, but it's their land. And yet there has to be a resolution to it, it was extremely painful. Yeah, and Blackbird bin was an emotional issue for all concerned, as a matter of fact the little epigraph we use at the beginning of that chapter reflects

that. At one point during the con controversy and when all the emotionalism was bubbling up, a sheriff up in that region, I think it was the sheriff of Monona County, I believe, he warned that the river will run red if the Omahas continue with this, and obviously never came to that, no blood will shed at Blackbird bin, but it certainly reflects the emotionalism of the times. And again, as you said earlier, I think it's a kind of a hidden story. Everyone's aware of the Red Power movement of the early 1970s, Alcatraz and Wounded Knee and those kind of big events, but we had a kind of a similar story going on right here in Northeastern Nebraska and Northwestern Iowa in that same time frame that I don't think has gotten the same kind of attention. I don't even remember it happening, and I think that was already associated with the tribe at that time. We know how it came up for me is when we moved here and then the

Omahas began to develop their casino up there, I began to wonder what's going on, how you got the Omaha reservation on the Nebraska side, how do they wind up with this little casino, this little sped of land over on the Iowa side, where they built their casino, how that come about, and that's really where the story begins is from the end, you know, how they wind up with this land on the Iowa side of the river. Another point that certainly has been a major understanding in my life is the mistreatment of Native Americans for a long period of time, and I've been an apologist and probably a radical one and people can very often dismiss my rantings as precisely that, but again, even I was surprised at some of the perfetti that was involved in some of this. So often people will say, why don't the Indians just forget it's all in the past, forget it, you know, but then you read some of these things that you wrote, more than 50 years after the 1854 treaty, the Omahas says still not been paid for the additional acreage north of the Iowa line that they had ceded by virtue of their acceptance of the 300 ,000 acres south of the line. 50 years after the

treaty, they still hadn't been paid, and then, you know, I was flabbergasted when I got down here, that then with the government did wind up paying on the huge amounts of land that they had literally stolen it because they didn't pay for it. 50 years later, they paid 19 .6 cents per acre. Oh, my God. Well, ultimately that got raised up to 75 cents. Oh, boy. Indian claims commission made that whole thing good, you know, and so yeah, I mean, the history of federal government relationships with the Native American tribes is fraught with those kinds of stories and the details of the various treaty negotiations, annuity payments were frequently late or not didn't come at all. You know, there's an awful lot of those kinds of stories out there in the woodwork, so to speak. Well, and as I say, I was predisposed to take the Indian side on these things, but I just, I would sputter sometimes when I would get

something you were telling about that it is beyond comprehension that it could have happened in America. And one of those things was in the Blackbird bend issue when the lawyer who was named to represent the Indians in this federal case was as a result state of Iowa formally represented by the same man who now purported to represent the Omaha's. In other words, the Omaha's wound up with the same lawyer who had been on the other side because of a federal designation of him as representative of the tribe. The Blackbird bend allegation is one of the more difficult pieces of litigation to describe and tell because there are so many issues. It wasn't just the question of getting the land back or the question of title to the land over in Iowa. There was also the dispute within the Indian side of the equation itself. There was great deal of conflict between the Omaha's and

their attorneys from the federal government who purported to represent them. The Omaha's didn't feel like the federal government attorneys were adequately representing them. The lawsuit that they filed only sought a small portion of the total acreage that the Omaha's thought they were entitled to. They were conflicts of interest or they were perceived conflicts of interest. The Omaha's felt that prevented their governmentally designated representatives from adequately representing their interest. That's sort of the story within the story at Blackbird Bend. Even those people who are familiar with the land litigation itself aren't necessarily familiar with the fact that the Omaha's spent as much time trying to get the land back. They spent as much time fighting with their own designated representatives. Their own designated attorneys as they did in trying to get the land back from the Iowa claimants. It's a very messy story that I try to clear up as best we can with this book. In a way, what is happening to the Omaha tribe, as

described in your book, is what's happening to individual Omaha's too, that the Omaha's who are fairly recent, you know, they're not migrants to this culture. The culture is sort of migrated to them, but they've learned as a tribe how to work in both worlds so that they've saved the very most important parts of their traditional culture, which is they've seen no reason to abandon it. It's a beautiful culture. It's a rich culture. It's a spiritually fulfilling culture. And yet they've learned how to function as a social unit within the larger mainstream in the individual Omaha's. Of course, we're doing this too. My Omaha son is an electrician at a nuclear power plant, but he also is a traditional leader within the Native American church. It's very much like being, I suppose, a check in Wilbur that you can dress and check costume during the festival and do check dances and order pivo instead of beer. And so you can do that as a check. They can also do this as Omaha's. I think this is the ascendance, really, of the Omaha tribe now,

is not as recreating the old culture, but keeping that part of it, but really becoming part of the mainstream, being lawyers. Sure. One of my sources in the book is Edson Dayhoss, who is a Omaha tribal member and who is an attorney and he has been a tribal judge up there. As you know, there's factionalism within the tribe and there are some political ins and outs in the various tug and pull that goes on in any kind of political entity, which the Omaha's are. There are cultural and a political entity. But yes, I mean, Edson Dayhoss, I think is an example of those who Omaha tribal members who are going out and mainstreaming as it were, although I know some people don't like that word and yet still maintaining their ties and their roots and their cultural heritage and I admire people who are able to do that. And I think that's one of the things that's most attractive about the Omaha's as a group to be studied and admired.

I was once at a meeting with the Historical Society and the Pawnee tribe in which the Pawnee tribe was doing an honoring dance for the Historical Society, which had turned around and become a friend of the Pawnees. And Bunky Echo Hawk, who was a friend of mine, was in his dance costume, very tall, very handsome guy carrying a dance axe, a war axe. You can imagine I was telling my daughter what it must have been like to be a settler out here on the plains and see the approach, especially on horseback of a Pawnee warrior like Bunky Echo Hawk and that kind of costume. And then you find out he's a lawyer. Then it's really scary. Run the other way. You've gotten to know the tribe not only within its legal status and its history, but also you've gotten to know some of the members of the tribe. I saw names like Weinema Morris and Doran Morris and Elmer Blackbird in your book. Have you gotten to a sense of who the Omaha people are? Not as much as I would like to, frankly, Roger. You know, so much of my work here

has been, you know, enmeshed in the legal files and the archives and the presidential libraries and all. And certainly some of my work did go into the background of the Omahas, how they got to be here, what their relationships have been with neighboring tribes, et cetera. Certainly a good deal of my background work comes from the same line of research that Judy Bookter did. And then you had Judy on your program several months ago and she's a good friend and a colleague of mine. So yeah, I have a generalized sense, but I certainly wouldn't claim to be any kind of an expert in terms of the cultural background and the social history as it were of the Omaha tribe. That's simply not been my area of pursuit. But you're not, they're not alone in that. I don't think it's anything to be embarrassed by because I'm always surprised at Nebraska. It's here in Nebraska. It's never been to the sand hills, which I just find baffling you. You, I don't think you should have Nebraska citizenship unless you've taken highway two all the way up to the northwestern part of the state. I also don't think you should be an American citizen unless you've attended an Omaha or Winnebago or punk a powwow.

And here, here's a chance to see another culture you'd have to travel around the world to see somewhere else. A chance to try different food to hear a different music and it's within 45 minutes of Omaha and people don't do it. So I always urge people to take advantage of it. It's just a little bitty toe dipped into another culture and that's no way to really understand the Omaha's, but it's least a way to see the landscape and to learn a little bit. And of course, another way then is to read books like yours. Have you had a chance to talk with any Omaha's yet about how they feel about the book? Not since the publication. No, I haven't. As you mentioned, Dorne Morris and my name are Morris. Morris were important sources for me and resources. They were most gracious in their time and their willingness to talk with me. But frankly, no, since it's been out in late June, I have not had any contact with them. You know, events run a pace and I just simply have not had to. I certainly hope to be able to talk with them in the near future. Maybe, maybe you can make some

connections for me. Tell them, hey, she wants to hear some feedback. You know, that kind of thing. One of the, you call it tenacity. In some cases, it's just a matter of patience. There's Indian time runs differently from white men. Your essay Indian Time is one of my all -time favorites. I think it ought to be required reading in Native American culture classes. Well, that means that there's plenty of time for you to get up there and spend some time and talk to some of the people. And they have plenty of time before they read it. So things just move nice a little more slowly and a little more reasonably. Is there a broader application of the legal principles you talk about here with other tribes in Nebraska or outside of Nebraska? Is this a kind of book that you think will contribute to understanding of other tribes' legal problems? Yeah, I particularly, again, with the Blackbird bin litigation. The Blackbird bin litigation probably is one of the prototypical examples of the inherent problems and the continuing trust relationship between the federal government and Indian tribes. And

this, this trust relationship has, it's been out there for 80, 90 years now and no one can define exactly what it means. It remains a very murky kind of description of the relationship between the federal government and the Native American tribes. And certainly, I think as the Blackbird bin litigation suggests, there needs to be a better understanding of exactly what this trust relationship actually is and how it needs to be. Operationalized as we saw in Blackbird bin, the trust relationship did not work for the Omaha's. The Omaha's felt that they were betrayed by their so -called trustee by not going after all the land that they wish that they thought that they were entitled to in Omaha. And so yeah, in terms of the nature and the impact of this trust relationship where we have to go in the future with respect to the, with respect to the trust relationship, I think this book suggests some of the problems. I don't know how much I do in terms of answers, but I think we certainly describe

some of the problems there. And I think that that particular issue is applicable across the board because that trust relationship extends to all the Native American tribes, not just the Omaha's. Certainly the stories I tell about the Indian claims commission and some of the the frailties of that process and the attempt, the well intentioned attempt to try to correct some of the complaints and causes of action. That arose out of 150 years of of broken treaties. I think that's a, I think those stories can be told in the context of other tribes as well because virtually every tribe in the country went through the ICC process as well. The earlier chapters of the book relating to PL 280 public law 280 and the jurisdictional chaos on the Omaha reservation, those are probably a little more specific to the Nebraska story because there were only five or six states that went through the PL 280, the transfer of jurisdiction back in the 1950s from the federal government to the state government. So that's a more specific kind of a Nebraska specific story.

But yeah, I think there are themes and issues dealing with the continuing problems and the relationship between the native between Native American tribes and the federal government in this book that resonate throughout the rest of the country. You were using trust in the legal sense of trustees and holding land in trust, but there's another understanding of the word trust too that I think is important that needs to be built up and that is the trust between two very different cultures and two very different peoples. And I don't happen to share the politics of Mayor of Governor Joe Hans. He was Mayor and I was Governor Joe Hans, but Mike is friend of mine. And one of the things I keep encouraging him to do is simply to listen, which he has done a wonderful job of. Maybe these problems aren't solvable. It's like the Blackbird Ben thing. I mean, you can reach a compromise, but I'm not sure the agony can ever be totally taken care of, but the sense that the Native Americans have had so long that nobody's bothering to listen to what their problems are seems

to be meeting a resolution. Now, as more people are listening to what they have to say and maybe not accommodating them exactly, but taking the time. And I think this book is important in that regard too, because here's someone else who has come in and at least listened to Omaha problems and dealt with them in a way that isn't unfavorable to them. I think it is favorable to them, in fact, which I appreciate. So it's a terrific book and it's a readable book. I think not just if you're interested in the Omaha Tribe Native American issues, Nebraska issues, this is a book that takes a very complicated problem and makes it not just readable, but interesting. Mark, thank you very much for being here with you this evening. Thank you for myself from Nebraska and from the Omaha Tribe for your terrific book. And thanks for taking the time to come here and talk with me about it. Thanks very much for having me. I've been talking with Mark Sharer about his terrific new book from the University of Nebraska Press and perfect victories, the legal tenacity of the Omaha Tribe. I recommend it highly. It's a book that I

read almost like a novel. It was so interesting. Thank you very much for being here, Mark. Thank you for being here. And I hope you'll join me here again next week at the same time. And I introduce you to another fascinating person from this wonderful place called Nebraska. Thank you.