By Ben Rodgers
Editor
HOBART – What started over a permit for an apple festival and turned into the Oneida Nation losing most of its reservation has been reversed by three federal judges.
Now, the defendant, the Village of Hobart, is mulling options on whether or not to appeal the decision from the United States Court of Appeals for the Seventh Circuit.
On July 30, Chief Judge Diane Sykes and circuit judges David Hamilton and Amy St. Eve reversed a ruling from the United States District Court for Eastern Wisconsin made March 28, 2019.
The original lawsuit dates back to September 2016, when the Oneida Nation sued the Village of Hobart for requiring a permit for the Big Apple Festival, a tribe event held on land that partially falls under the jurisdiction of Hobart and the City of Green Bay.
Hobart Village President Rich Heidel said after the tribe initiated a lawsuit against the village, because the village recognized a need to address safety concerns caused by the event, the village was left with no alternative but to defend the application of its special event ordinance.
As a result of that defense, Chief U.S. District Judge William Griesbach ruled in March 2019 “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.”
This ruling effectively shrank the size of the reservation by 50,000 acres held in fee, and only allowed land held in trust, roughly 14,000 acres, as part of the reservation.
Land held in fee is taxable, while land held in trust is not.
The entirety of the Village of Hobart is located on the Oneida Reservation.
Griesbach concluded the intent of the Allotment Act of 1887, also known as the Dawes Act, is “unmistakable,” and therefore found the requisite Congressional intent to diminish the reservation did exist.
Namely, the intent was to move away from the reservation system to private property ownership.
A statement from the village said it believes the district court’s decision was not only correct, but that the Seventh Circuit’s reversal of that decision is at odds with rulings from the Eighth Circuit Court of Appeals, which has concluded once land falls out of Native American ownership, it can no longer be part of a reservation.
The statement said the Seventh Circuit’s conclusion is also inconsistent with a 1930 decision reached by another federal judge that “the Oneida Reservation was lawfully discontinued.”
Heidel said the village is still considering its legal options, especially because, as the district court judge warned: “The implications of the Nation’s argument are quite breathtaking. 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.”
Federal appeal ruling/Oneida response
The Oneida Nation held a press conference about a month ago, where it praised the ruling that allotment of an Indian reservation and the subsequent acquisition of reservation land by non-Indians does not diminish a reservation.
“The Oneida Nation appreciates the support from the Federal Government, the State of Wisconsin, and the National Congress of American Indians and Indian Land Tenure Foundation for their filing of amicus curiae briefs in this case,” said Oneida Chairman Tehassi Hill. “Oneida has long asserted our sovereignty and exercised it to protect our people, our lands and our government. We are vindicated by this ruling today and we look toward the future of continual governance on our lands and in our community. Business will move forward as usual, although we all have been negatively impacted by the COVID pandemic, we are now more confident in how we govern our affairs without the threat of Hobart’s continual litigation.”
The July ruling cited nearly 75 previous case arguments, treaties and acts and other court decisions by various courts, up to the Supreme Court, in matters relating to reservations.
“We reverse,” reads the 46-page ruling from the appeals court. “The Reservation was created by treaty, and it can be diminished or disestablished only by Congress. Congress has not done either of those things. The governing legal framework – at least when the issue was decided in the district court and when we heard oral argument – was clear.”
The most recent federal decision taken into account is the 2020 Supreme Court ruling on McGrit v. Oklahoma, which makes it difficult to establish the requisite congressional intent to disestablish or diminish a reservation.
The ruling found much of eastern Oklahoma remains as Native American lands and was never disestablished by Congress in 1906.
“McGirt’s allotment analysis has turned what was a losing position for the Village into a nearly frivolous one,” the July 30 ruling reads. “McGirt teaches that neither allotment nor the general expectations of Congress are enough to diminish a reservation. The Village has no argument for diminishment grounded in the statutory text. The statutes on which it relies only allow for the allotment of the Oneida Reservation or speed along the allotment process. No statutory text comes close to creating an ambiguity regarding diminishment of Reservation boundaries.”
The ruling was also critical of the village’s argument regarding land held in fee and land held in trust.
“The Village has not argued that the Oneida fee land at issue is checkerboarded with non-Indian land such that uniform regulation is necessary to advance state interests. Nor has it explained why the balance of tribal and state interests would merit a departure from the general rule that the state may not assert jurisdiction over Indians on reservations…” the ruling reads. “There may be circumstances in which isolated fee land may be subject to local regulation, but the Village has presented no reason to believe that such circumstances are present here.”
Hobart’s next options are either asking the entire Seventh Circuit Court of Appeals to hear the case in what is called an en banc review that could overturn the July 30 ruling, to petition the U.S. Supreme Court to hear the case, or to drop it completely.