Land held in fee no longer part of Oneida Reservation, local laws apply
By Ben Rodgers
GREEN BAY – A ruling in federal court that the Oneida Reservation has been diminished last month leaves more questions than answers, and the argument is far from over.
Chief U.S. District Judge William Griesbach ruled March 28 that any land held in fee by the Oneida Nation or its tribe members within the boundaries of the reservation, which includes all of Hobart, is no longer considered part of the reservation.
The land held in trust remains, but his ruling diminished the reservation by roughly 50,000 acres.
From a municipal standpoint, the difference between land held in fee and land held in trust is that land held in fee is taxable, while land held in trust is not.
Griesbach’s ruling has the most potential for change for land held in fee, said Frank Kowalkowski, Hobart’s attorney in the lawsuit.
“The jurisdictional controls that the state-based governments such as the village, the city, the county, and even the state itself has, have significantly increased as a result of the decision that this is no longer a reservation,” Kowalkowski said. “The jurisdiction the federal government and the tribe would be able to assert would be diminished because that jurisdiction was based upon the premise that there was in a fact a reservation, which according to Judge Griesbach, to a large extent there no longer is.”
As a result of the ruling, roughly 14,000 acres of land held in trust remain in the reservation.
“Trust land is all or nothing, state and local control goes away,” Kowalkowski said. “Fee land is a sliding scale of who has jurisdiction.”
One example would be if a person owns a lot surrounded by lots held in fee.
Those lots are no longer considered part of the reservation, and therefore any village, city or state ordinances or rules would apply to them.
Some examples are junk and noise ordinances or requiring a permit to hold an event, the impetus for the initial lawsuit.
Previously land in fee was considered part of the reservation and only the federal government or tribe itself had any authority on that land.
Now that they are not part of the reservation, local governmental authority would apply.
Headed back to court
The Oneida Nation announced April 11 it will appeal Griesbach’s ruling to the U.S. Court of Appeals for the Seventh Circuit in Chicago.
“Judge Griesbach committed reversible errors of law, and the Oneida Nation is confident his decision will be overturned on appeal,” a statement said.
The statement from the tribe goes on to say a reservation cannot be diminished without an act by the United States Congress and the tribe has a large economic impact in the area.
“The Nation has entered into numerous agreements with the federal government, the State of Wisconsin, and other governments based upon the common understanding that the reservation has never been disestablished or diminished,” the statement read. “The Nation has been and continues to be a strong economic partner, and Judge Griesbach’s decision threatens these long-standing and long-settled expectations and the $744 million impact the Nation has on the local, regional and state economy. The Nation will take all measures necessary to avert these harms.”
As the defendant in the original case, Hobart will need to defend the appeal in Chicago.
“The Village is confident federal Judge William Griesbach’s decision that the Oneida reservation was diminished will be upheld on appeal,” the village’s statement said. “As the Chief United States Judge for the Eastern District of Wisconsin, Judge Griesbach has earned the reputation of drafting thoughtful decisions withstanding appellate review.”
Hobart’s statement also said this decision holds enormous potential for ordinance enforcement, not just in the village, but the state as well.
“The decision is a significant step in ensuring the uniform and consistent application of not only the Village’s ordinances and other jurisdictional controls under a representative democratic form of government, but as the court noted, those of a substantial portion of the City of Green Bay, Brown and Outagamie Counties, and the state of Wisconsin,” Hobart’s statement read. “The Village is confident Judge Griesbach’s confirmation of the Village’s long time belief, that the vast majority of the reservation ceased to exist over a century ago, lands totaling more than 50,000 acres, will be upheld on appeal by the Seventh Circuit Court of Appeals.”