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Lawsuit between Hobart and Oneida Nation close to judgment

By Ben Rodgers

HOBART – The village of Hobart and the Oneida Nation both looked for a favorable judgment in federal court on July 19 in a lawsuit that dates back to September 2016.

The case relates to when the Oneida Nation sued the village because of a permitting dispute after it did not apply for a permit for the annual Big Apple Fest.

According to court documents, the Big Apple Fest in 2016 attracted more than 8,000 visitors, was open and advertised to the public and occured on land owned in fee and land owned in trust by the Oneida Nation.

Land owned in trust is not taxable while land owned in fee is.

At the event, the tribe used public roads to shuttle participants, as well as requested a permit from the Wisconsin Department of Transportation and Brown County to close Wisconsin State Highway 54, while neglecting to submit an application to the village of Hobart.

In Hobart’s summary motion for judgment, it states that a fee for Big Apple Fest should be applied because the event was held on land not considered to be Indian country.

“It is undisputed that 2016 Big Apple Fest occured on land that is within the Village that is not owned in trust, including land the nation owns in fee-simple and on a public road maintained by the Village,” the summary motion read.

This suit has the potential to determine if the tribe’s reservation still exists under a 180-year-old treaty.

Hobart contends that the Oneida Nation wants “to reassert the Nation’s sovereignty over lands that have been under state and local jurisdiction for over a century,” in its request for a summary judgment.

Hobart also contends the court could rule the Oneida Reservation was actually terminated in 1906 by a federal law which authorized the Department of the Interior to grant fee simple land patents to tribe members, because Congress “intended that allotments for which fee patents were issued would no longer be considered part of a reservation under federal protection.”

“Here, the driving purpose behind the federal government’s allotment policy in the late nineteenth and early twentieth centuries was the dissolution of the reservation system,” the defense’s motion read. “Congress had an ‘expectation that allotments would lose their reservation status as they passed out of Indian ownership into white hands.’”

Therefore, if the court were to determine the reservation still exists, the village’s permit ordinance would apply to Big Apple Fest.

The motion said the site of the Big Apple Fest is not on the reservation and must be subject to village ordinances and regulations, thus requiring the permit the tribe failed to apply for.

“Here, history and the law require the court conclude the Oneida Reservation, as defined by its 1838 boundaries, no longer exists,” the motion read.

Oneida Nation asked the Eastern District of Wisconsin Court for a judgment that would rule Hobart unable to regulate the tribe through an ordinance for special events.

“I think it’s important to know that in support of its attempt to impose its regulations on the Oneida Nation, Hobart is offering a one-sided and distorted history of the Nation and its Reservation, and is attempting to change long-settled law that allotment of an Indian reservation does not disestablish or diminish the reservation,” said Bobbi Webster, public relations director for the Oneida Nation.

The tribe also stated the serious implications this case has on precedence for the future in court documents.

“(The suit) extends far beyond the conduct of a single event … the village challenges the very existence of the Nation’s reservation and the Nation’s ability to govern itself therein,” the Oneida request read.

“The event takes place on tribal trust and fee parcels within the boundaries of the tract set aside by the Treaty of 1838,” the tribe’s summary read. “Specifically it is held on the Nation’s Cultural Heritage Grounds, a parcel held in trust by United States for the Nation since 2006, and the Nation’s Apple Orchard, portions of which have been held in trust by the United States for the nation since 1995 and another portion of which is owned in fee by the Nation.”

The tribe’s argument also stated that Congress has not restricted the right of self-governance held by the nation, and Hobart lacks the authority to regulate the tribe itself.

In the motion, the Oneida Nation also stated that there is a special rule of federal preemption that applies in Indian country to prohibit state regulatory authority over tribes.

“Because the Reservation was created by a treaty, only Congress can diminish or disestablish it,” the plaintiff’s motion read. “This is a function of the Supremacy Clause in the United States Constitution, which includes Indian treaties and reserves for Congress the sole authority to abrogate or modify an Indian treaty.”

The tribe also argued its reservation at 65,000 acres has not been diminished since it was created by treaty in 1838.

Therefore, according to the motion, there are no circumstances that would allow Hobart the ability to exercise authority in a regulatory capacity on tribal lands.

“This is a case where the Village challenges the very existence of of the Nation’s Reservation and the nation’s ability to govern itself therein,” the plaintiff’s conclusion reads. “Congress has not restricted this fundamental right of self governance held by the Nation and the village of Hobart lacks the authority to do so itself.”

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