By Ben Rodgers
GREEN BAY – A federal judge may decide whether the Oneida Reservation still legally exists in determining a lawsuit dating back to September 2016.
Chief U.S. District Judge William Griesbach heard oral arguments from attorneys representing Hobart, the Oneida Tribe and the federal government.
The hearing was held Thursday, Nov. 29, in U.S. District Court for the Eastern District of Wisconsin.
“I’ve gone through the extensive briefing, it’s an awful lot to read,” Griesbach said. “I’m sure I’ve absorbed what I’m capable of absorbing with a couple of readings, but I’m certainly interested in hearing more.”
The Oneida Nation sued Hobart claiming the village was not authorized to require a special events permit for the tribe’s annual Big Apple Fest.
Furthermore, Hobart contends the court could rule the Oneida Reservation was actually terminated in the early 1900s by a process of allotments.
These 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,” according to the village’s request for summary judgment.
Both Hobart and the Oneidas requested summary judgment in July.
Representing the Oneidas on Nov. 29 was Arlinda Locklear, an expert in Native American law and tribal recognition litigation, as well as the first Native American woman to argue before the U.S. Supreme Court.
Locklear explained how since 2009 the cultural Big Apple Fest is held on land that falls in the confines of 64,400 acres of a reservation that was established in 1838.
The festival is held on 14 parcels of land, with the majority in Green Bay and others in Hobart.
The ordinance over which the tribe is suing the village was created in 2016.
“The target here is the Nation itself, on its own event, on its own land in the boundaries of its own reservation,” Locklear said.
Frank Kowalkowski, Hobart attorney, countered that the festival doubled the population of Hobart during its duration and is more than a cultural event.
“It was a means to gain sales for their apple orchard and get rid of their apple harvest and sell that,” Kowalkowski said. “They invited hundreds and hundreds of non-members onto their property to pick apples and sell their apples.”
He went further to say the issue of disestablishment of the Oneida Reservation was litigated and decided in Stevens v. County of Brown in district court on Nov. 3, 1933.
“There is no escape from the proposition that the government, in passing and applying the Dawes Act, conceived itself in duty bound to carry out its provisions in the interest of the tribe and its members,” Kowalkowski said.
“Plainly this resulted in a discontinuance of the reservation, and recognition of the power of the state to incorporate the lands in towns in question.”
Locklear countered the fact that the Oneidas weren’t even party in the Stevens case.
“It would be grossly unfair to the Nation as a nonparty to that case, to be bound to its result, which we believe was wrong at the time,” she said.
Locklear also said only one group can disestablish or discontinue a reservation, the United States Congress.
She went on to say when Congress does disestablish a reservation, it requires clear, direct and explicit language to do so.
“The village lifts language from a decision that is clearly limited to a cession agreement, and once again there is no cession agreement tied to the Oneida,” Locklear said.
Kowalkowski argued the boundaries of the Oneida Reservation, as defined by the treaty of 1838, no longer exist.
Kowalkowski said the Dawes Act of 1887 was intended to terminate reservations.
He provided quotes from Sens. Richard Coke and Henry Dawes who were involved in the creation of the Dawes Act.
Kowalkowski cited Congressional intent to terminate reservations and quoted from the Yankton v. Gaffey decision, an 8th Circuit Court case from 1999.
“Congress in the late 19th century was operating on the assumption that reservations would soon cease to exist… and on the belief that allocating lands, and purchasing those left unalloted, were steps in the process of eventually dismantling the reservation system,” a document Kowalkowski presented read.
He said Hobart views any land having passed through non-tribal members and going back to the tribe, or land held in fee, is not part of the reservation. He said the village feels only land held in trust is part of the reservation.
Moreover, Kowalkowski contended a recent Supreme Court ruling in Nebraska v. Parker that gave the Omaha Tribe the ability to tax beyond federal and state levels is of concern when deciding this case.
He said it could have an impact because all of Hobart and 14 percent of the city of Green Bay is on the Oneida Reservation.
“The Oneida Nation themselves I believe did do some research related to their ability to tax within the confines of their nation,” Kowalkowski said. “That isn’t that far-fetched from the situation.”
Griesbach will likely issue his decision in the coming months.