By Ben Rodgers
Editor
GREEN BAY – A federal judge ruled the Oneida Reservation has been diminished after claims made by the Village of Hobart in a lawsuit dating back to September 2016.
Chief U.S. District Judge William Griesbach ruled March 28 in the case where the Oneida Nation sued the village of Hobart over an ordinance that required the tribe to buy a permit for the Big Apple Fest.
Furthermore, Hobart contended the court could rule the Oneida Reservation was actually terminated in the early 1900s by a process of allotments, but Griesbach didn’t rule to that extent.
“Having fully considered the arguments set forth, I conclude that the Treaty of 1838 created a reservation that has not been disestablished,” Griesbach wrote in his 39-page decision. “But the Nation’s reservation has been diminished such that the Village may enforce the Ordinance on those lands not held in trust by the United States for benefit of the Nation.”
Griesbach furthered ruled the tribe’s sovereign immunity forecloses the village’s counterclaim for any monetary damages, but a permit will be required in the future for any upcoming Big Apple Fests held on land not held in trust.
“I also conclude that, while there is no evidence of congressional intent to disestablish the Reservation, Congress’s intent to at least diminish the Reservation is manifest in the Dawes Act and Act of 1906, and that intent was effectuated with the issuance of unrestricted fee patents for the allotted land within the Reservation,” Griesbach wrote. “To the extent the Nation’s special event was held on property not held in trust by the United States, it is subject to the Ordinance.”
Oneida history
The judge considered the historical background of the Oneida and Menominee tribes, and the original treaty of 1831.
“While the present dispute between the parties arises out of these recent events, its resolution requires consideration of the Nation’s history in Wisconsin and the various shifts in federal Indian policy in the United States over the last 150 years,” Griesbach wrote.
In the original treaty, the Menominee agreed to cede a tract of land to several tribes from New York, including the Oneida.
Griesbach also considered an 1838 treaty with the Oneida and the United States, which created a tract of land that consisted of 65,400 acres, or 100 acres for each individual tribal member at that time.
“Although it is true that certain individual members of the Oneida Tribe sought to trade their participation in the Oneida reservation for more land elsewhere, the principal tribal leaders intended to establish a permanent home for the Tribe in Wisconsin and ultimately entered into a treaty with the United States to do so,” he wrote.
The Dawes Act, or General Allotment Act of 1887, had the purpose of the eventual assimilation of tribal members into the general population and the elimination of reservations through the allotment of land, Griesbach wrote.
Hobart contended this was congressional intent to disestablish or diminish the reservation.
“But even though the complete assimilation of the Indians and the elimination of the reservation system was the ultimate intent of the Dawes Act and related legislation, those acts did not themselves abolish the reservations,” Griesbach wrote. “In fact, they assumed the reservations would continue at least until the trust patents were replaced with fee patents giving individual tribal members complete control over their own land.”
In response to the allotment process, the Wisconsin legislature in 1903 enacted legislation creating the towns of Hobart and Oneida within the boundaries of the Oneida Reservation in Brown and Outagamie counties.
By 1917, more than 50,000 of the original 65,400-acre reservation fell out of Indian ownership.
Presidents Woodrow Wilson (in 1918) and Calvin Coolidge (in 1927) extended the trust period. By the early 1930s, the Oneida Nation owned less than 90 acres of the original 65,400.
The Indian Reorganization Act of 1934 ultimately stopped any allotment of tribal lands, Griesbach wrote. But, any lands previously allotted eventually would lose their trust status and the lands were transferred to individual tribal members for ownership.
Precedents
Griesbach then reviewed a series of cases that involve the Yankton Sioux Tribe of South Dakota.
“Just as the Eighth Circuit concluded in ‘Gaffey’ and ‘Podhradsky’ that fee lands conveyed to non-Indians were no longer part of the Yankton Sioux Reservation, so also I conclude that the fee lands within the original boundaries of the Oneida Reservation that were sold to non-Indians, unless reacquired and placed into trust by the federal government, are no longer a part of that Reservation,” Griesbach wrote.
He went on to write the nation’s purchase of property on the open market does not increase the size of the reservation.
“In truth, the implications of the Nation’s argument are quite breathtaking,” Griesbach wrote. “If accepted, then not only are the nation and its members immune from the regulatory measures of the Village, but also those of a substantial portion of the City of Green Bay, Brown and Outagamie Counties, and the State of Wisconsin. To hold in its favor would mean that the Nation has primary jurisdiction over land largely populated by people who have no say in its governing body. Because the Oneida Reservation has been diminished, however, and does not include land held in fee, the nation’s argument fails.”
In his ruling, Griesbach stated just more than 14,000 acres on the reservation remain in trust, resulting in a diminishment of roughly 50,000 acres.
Oneida response
The Oneida Nation released a statement in regards to the diminishment.
“Unfortunately, Judge Griesbach also ruled that the Oneida Reservation has been diminished through the allotment of reservation land under the General Allotment Act, the issuance of fee patents and sale of land to non-Indians,” the statement said. “While we are pleased the court rejected Hobart’s claims regarding the creation and supposed disestablishment of the Reservation, we disagree with the court’s determination that the Reservation has been diminished and are reviewing all of our options.”
Hobart response
In Hobart’s statement, the village said it looks forward to working with the nation in the future.
“Hobart’s defense in this case, as it was the defendant, was that the Village has the legal authority to enforce all of its ordinances in a fair and consistent manner,” the statement read. “The intent of the Ordinance is to encourage cooperation and collaboration with all residents involved in a large, public event to address public safety, road closures, emergency services, and other concerns. The Village’s intent was not and has never been to diminish or eliminate Apple Fest, which is an event we encourage everyone to attend. With this most recent legal battle resolved, we look forward to working with Oneida officials on future Apple Fest planning, to insure a safe and family-friendly event for all to attend, in the same manner that is accomplished for all other large public events conducted within the Village.”
Hobart’s statement also said all ordinances are now applicable to all land in the village.
“The Village stands firm in its belief, which has been now confirmed by the Federal courts, that all of its ordinances, not just the Special Events ordinance, have been and remain applicable to all lands within the Village, including those deemed to be held in fee by the Tribe,” the statement read.