Wisconsin Tribe Wins Fight Over Event Permits at Seventh Circuit

CHICAGO (CN) — The Seventh Circuit on Thursday unanimously sided with the Oneida Nation in its fight with a Wisconsin village over the village’s authority to force the tribe to get permits for the annual apple festival on its reservation.

The tribe’s original 2016 lawsuit started as a fairly simple action centered on a special events permit that the tribe refused to obtain for its Big Apple Fest, but it evolved into a much deeper referendum on the current state of Native American reservations and tribal land rights.

The Oneida Nation, the first group of which initially settled in the Badger State in 1822, sought declaratory and injunctive relief in its suit against the village of Hobart, located near Green Bay in northeastern Wisconsin, when the village attempted to enforce its permitting ordinance for the tribe’s festival since part of its reservation crosses into Hobart.

The tribe maintained that its 65,400-acre reservation still has its original boundaries as outlined in an 1838 treaty and said all of Hobart’s laws were preempted by federal ones stating that tribes have inherent sovereignty and the right to regulate themselves on reservation land.

U.S. District Judge William Griesbach ruled for Hobart in March 2019, opining that since 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, the festival actually took place in the village and is therefore subject to its permit rules. Griesbach granted summary judgment in favor of the village and the tribe promptly appealed to the Seventh Circuit, which held arguments by phone in April.

Thursday’s decision from the Chicago-based federal appeals court, penned by U.S. Circuit Judge David Hamilton, reversed Griesbach’s ruling and remanded with instructions to enter judgment in favor of the tribe.

Hamilton, a Barack Obama appointee, rejected Hobart’s argument that the Oneida reservation had been diminished in piecemeal fashion when Congress allotted the reservation among individual tribe members, eventually resulting in much of the land getting sold off to non-Indians.

“The reservation was created by treaty, and it can be diminished or disestablished only by Congress,” Hamilton wrote. “Congress has not done either of those things.”

The judge found “no clear indication in the record that Congress intended to eliminate all tribal interests in allotted Oneida land,” and further declared that “the Supreme Court has rejected—time and time again — the village’s argument that diminishment can be the result of Congress’s general expectation in the late 19th and early 20th centuries that its actions would lead eventually to the end of the reservation system.”

Hamilton summarily rejected Hobart’s alternative stance that the allotments handed out to the Oneida tribal members in the early 19th century and the subsequent sale of lands to white settlers contributed to exceptional circumstances that give Hobart authority to enforce its permit rules.

Neither the 1887 Dawes Act, nor the 1906 Burkes Act, nor the Oneida Provision of the 1906 Appropriations Act contain language “surrendering all tribal interests in allotted land, so there is no textual basis for diminishment,” according to Hamilton, who was altogether unconvinced by Hobart’s arguments about incremental diminishment and Congress’ general expectation that allotments would ultimately lead to the disappearance of reservations.

Because Congress never specifically called for the diminishment, and because decades of U.S. Supreme Court and lower court rulings fly in the face of what Hobart charged, the Oneida Nation’s reservation is whole and sovereign and not subject to the village’s local regulations.

“In sum,” Hamilton wrote, “as a matter of federal law, the entire reservation as established by the 1838 treaty remains Indian country. The village lacks jurisdiction to apply its ordinance to the nation’s on-reservation activities.”

Rounding out the Seventh Circuit panel were Chief U.S. Circuit Judge Diane Sykes and U.S. Circuit Judge Amy St. Eve, appointed by George W. Bush and Donald Trump, respectively.

Attorneys for Hobart and the Oneida Nation could not be immediately reached for comment on the Seventh Circuit decision Thursday afternoon.

The tribe put out a press release Thursday celebrating what it feels is vindication in a battle for the continued self-governance of its lands.

“Oneida has long asserted our sovereignty and exercised it to protect our people, our lands and our government,” said tribe chairman Tehassi Tasi Hill. “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.”

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