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Dispute over event permits lands in Seventh Circuit

By Lisa Klein
Courthouse News Service

CHICAGO – The Seventh Circuit heard oral arguments via telephone Monday, April 13, in a dispute over whether the Village of Hobart can force the Oneida Nation to get a permit for an annual festival on the tribe’s reservation.

Although the original lawsuit centered on a special events permit that the tribe refused to obtain, the April 13 arguments focused on deeper issues of the current state of Native American reservations and tribal land rights.

The hearing was held by phone in light of COVID-19 precautions taken by the Chicago-based federal appeals court.

The Oneida Nation sued the Village of Hobart in 2016 looking for declaratory and injunctive relief as to the village’s ability to enforce its permitting ordinance on the reservation.

The village told the tribe it would have to obtain an events permit for its Big Apple Fest, but the tribe refused, saying all of Hobart’s laws were preempted by federal ones stating tribes have inherent powers of self-regulation on reservation land.

The Oneida Nation maintains their reservation still has its original 1838 boundaries encompassing 65,400 acres that cross into Hobart, Green Bay and the Town of Oneida.

A federal judge agreed with Hobart in the tribe’s land had been diminished over time and now only takes up 14,078 acres held in trust by the U.S. government, and granted a summary judgment in favor of the village last year, which the tribe appealed to the Seventh Circuit.

A three-judge panel – made up of U.S. Circuit Judges Amy St. Eve, Diane Sykes and David Hamilton, appointed by Donald Trump, George W. Bush and Barack Obama, respectively – heard arguments from both sides centering on whether the Oneida Nation’s reservation still even existed.

Hobart Village Attorney Frank Kowalkowski argued the reservation had been at the very least greatly diminished in size.

Pointing to the Dawes Act of 1887, which allowed for reservation lands to be parceled out to individual tribe members, Kowalkowski said at the time Congress “believed reservations were a thing of the past.”

“Congress acted to break up tribal territories through allotments,” he said. “That was the purpose of these allotment acts. To extinguish reservations.”

Kowalkowski said by 1906 “the Oneida Nation already had the allotments handed out to the tribal members, with 95 percent of its land gone,” calling the tribe “one of the extreme cases of allotment.”

White settlers took over the area in the early 1900s and tribe members began selling and conveying their parcels of land to those settlers, according to Hobart’s brief to the Seventh Circuit.

Up through the 1970s, documents show that federal officials and the tribe itself no longer considered the reservation to be in existence, the brief adds.

The current reservation land was only later returned to Oneida ownership through the Indian Reorganization Act of 1934, after which the tribe worked with the U.S. government to repurchase parcels.

“It was not believed that a reservation would exist once it fell out of Indian ownership,” Kowalkowsi said. “There’s 14,000 acres that are Indian country and the rest is not.”

Washington, D.C.-based attorney Arlinda Locklear, representing the Oneida Nation, said that numerous U.S. Supreme Court decisions have held otherwise.

“The district court made a decision here that was unprecedented,” Locklear said, adding that it “directly contradicts a 100-year-old body of Supreme Court authority.”

Locklear said although the reservation land had been reduced to individual parcels over time, known as “checkerboarding,” there is a widely held view the original boundaries still remain intact.

She claimed even if parts of original reservation land had been sold to non-Indians, “nonetheless those parcels remain a part of the Indian reservation.”

“The Oneida Nation was in occupation of a reservation, by specific reference to the 1838 boundaries,” as late as 1936, Locklear said.

The tribe’s brief says the State of Wisconsin recognized those same boundaries in 1981.

Only Congress can change the boundaries of a reservation, the brief states. They are not diminished simply by handing out titles to the land.

Kowalkowski said no matter the current size of the reservation, parts of the Big Apple Fest took place on non-reservation land and the Oneida Nation must still adhere to village’s permitting rules.

“The judgment is that the village ordinance can be applied to Apple Fest,” he said. “The Nation shut down and barricaded a village road.”

If the tribe is allowed to continue following its own rules, “the issues that could stem from that are far-reaching,” he said. Locklear worried about the implications of the outcome of the case, saying that the tribe’s right to its own law enforcement, taxation and gaming licensing could be put in jeopardy.

“There’s no question that there would be an expansion of the judgment,” she said.

The panel took the case under advisement and did not indicate when the court will issue a decision.

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