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Oneida Nation v. Village of Hobart

United States District Court, E.D. Wisconsin

March 28, 2019



          William C. Griesbach, Chief Judge

         This case represents another episode in the ongoing dispute between the Oneida Nation and the Village of Hobart over land use regulation and control. The Oneida Nation filed this action for declaratory and injunctive relief challenging the legal authority of the Village to enforce its Special Events Permit Ordinance, Chapter 250 of the Village Code, against the Nation, its officers, and its employees within the Village, which lies entirely within the 1838 boundaries of the Oneida Reservation. The action arises out of the Village's effort to enforce the Ordinance by requiring the Nation to obtain a permit for its annual Big Apple Fest. The Nation argues that as a federally recognized Indian tribe, it is immune from state and local regulations within its reservation and not subject to the Ordinance. The Village, on the other hand, challenges the Nation's claim that the boundaries of the original Oneida Reservation remain intact and contends that it is entitled to enforce the Ordinance to the extent necessary to protect the health, safety, and welfare of its residents and the public. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1362.

         Presently before the court are the parties' cross-motions for summary judgment. The Nation moves for summary judgment, claiming that its reservation was created by its Treaty of February 3, 1838, with the United States and that the original Reservation boundaries remain intact. It thus follows, the Nation contends, that the Nation and its officials and employees are not subject to the Ordinance as a matter of law and the Village should be enjoined from attempting to enforce it against them. The Village filed a cross-motion for summary judgment in which it argues that the 1838 Treaty under which the Oneida received their land did not create a reservation. Even if the Treaty did create a reservation, the Village argues that a 1933 decision by this court held that the Oneida Reservation was disestablished and that the Nation is collaterally estopped from relitigating its status. Alternatively, the Village argues that, even aside from the 1933 decision, this court should find that the Oneida Reservation has been disestablished or, at a minimum, diminished. The United States filed a brief in support of the Nation as amicus curiae. The motions have been fully briefed and argued by the parties.

         Having fully considered the arguments set forth, I conclude that the Treaty of 1838 created a reservation that has not been disestablished. 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 the benefit of the Nation. In addition, I conclude that the Nation's sovereign immunity forecloses the Village's counterclaim for monetary damages. Accordingly, and for the reasons set forth below, the Nation's motion will be only partially granted as to the Village's counterclaim for damages. The Village's motion for summary judgment dismissing the Nation's claims for declaratory and injunctive relief will be granted. Summary judgment on the Village's counterclaim for declaratory relief that the Ordinance may be enforced as to covered activities on fee land owned by the Nation, as well as activities on public roadways, rights-of-way, and neighboring properties is also granted.


         A. The Present Dispute

         The Nation is a federally-recognized Indian tribe and is listed in the Notice of the Indian Entities Recognized and Eligible to Receive Services from the United States Department of the Interior, Bureau of Indian Affairs. Joint Stipulated Statement of Material Fact (SSOMF) ¶ 1, ECF No. 86; Pl.'s Statement of Proposed Undisputed Material Facts (PSUMF) ¶ 1, ECF No. 93. The Village is an incorporated municipality in Brown County, Wisconsin and is located wholly within the boundaries of the area set aside for the Nation by the Treaty of February 3, 1838. SSOMF ¶ 2; PSUMF ¶ 2. According to U.S. Census Bureau population estimates, as of July 1, 2017, the total Village population was 8, 896, of which “White alone” residents comprise 79.9% and “American Indian and Alaska Native alone” comprise 12.2%. Def.'s Statement of Proposed Undisputed Material Facts (DSUMF) ¶ 127, ECF No. 91.

         The Nation has conducted an annual event known as the Big Apple Fest since 2009. PSUMF ¶ 52. The event is held on the Nation's Cultural Heritage Grounds and Apple Orchards and includes activities such as apple picking, an apple pie contest, an apple press demonstration, a petting zoo, children's games, face painting, cardboard cow painting, hay rides, horse demonstrations, pottery and corn husk doll making, basket weaving, Indian and non-Indian food and produce vendors, and tours of the preserved historic Oneida homes. Id. ¶ 53. The 2016 Apple Fest drew as many as 8, 128 attendees to the event. DSUMF ¶ 140.

         Richard Figueroa, the Nation's Special Events Coordinator in the Tourism Division, is responsible for planning the Big Apple Fest. Figueroa coordinates the event with the Oneida Compliance Division, the Oneida Risk Management Department, the Oneida Environmental Health and Safety Division, Oneida Conservation, the Oneida Utilities Department, the Oneida Public Works Department, Oneida Security, and the Oneida Police Department to ensure compliance with the Nation's laws. PSUMF ¶ 56. The Nation conducts the Big Apple Fest in conformity with its laws, specifically the Emergency Management and Homeland Security Ordinance; the Oneida Safety Law; the Oneida Vendor Licensing Ordinance; the Oneida Food Service Code; the Nation's On-Site Waste Disposal Ordinance; the Recycling and Solid Waste Disposal Law; the Sanitation Ordinance; and Oneida Tribal Regulation of Domestic Animals Ordinance. Id. ¶ 55.

         On March 1, 2016, the Village adopted amended Ordinance No. 03-2016, Special Events Permit Ordinance. Id. ¶ 17; Chapter 250, Village of Hobart Municipal Code, ECF No. 86-1. The Ordinance provides:

No person shall conduct a special event within the Village of Hobart without first having obtained a rental and/or special event permit. A special event permit may be issued to any person that the Village Administrator or his/her designee find appropriate.

         ECF No. 86-1 at 3. The Ordinance defines “person” as “[a]ny person, firm, partnership, association, corporation, company, governmental entity, or organization of any kind.” Id.

         On September 2, 2016, counsel for the Village informed the Nation that it needed to apply for a permit under the Ordinance or the Village would enforce the Ordinance's penalty provisions. SSOMF ¶ 18. Although it submitted an Application by Municipality for Permission to Detour State Trunk Highway Traffic to the Wisconsin Department of Transportation and Brown County Public Works Director, id. ¶ 20, the Nation declined to apply for a permit from the Village and, on September 9, 2016, filed a motion for a preliminary injunction seeking to enjoin the Village from requiring that the Nation's 2016 Big Apple Fest comply with the provisions of the Ordinance. The court denied the Nation's motion on September 13, 2016, finding that the Nation did not demonstrate that it would suffer irreparable harm since the Village agreed it would not seek to prevent the event from going on. The Nation held the Big Apple Fest as planned on September 17, 2016. Id. ¶ 19.

         Some activities associated with the 2016 Big Apple Fest occurred on non-trust land owned by the Nation in fee simple, including parking and apple picking. DSUMF ¶ 134. During the Apple Fest, security officers, six Oneida Nation police officers, and a registered nurse were on site. PSUMF ¶¶ 58, 60. Two officers of the Hobart-Lawrence Police Department attended the 2016 Big Apple Fest. SSOMF ¶ 22. The Nation contracted with a third-party vendor to place road closure barricades for the event at the intersection of North Overland Road and Riverside Drive and to block both lanes of traffic for the portion of North Overland Road between the North Overland Road/Highway 54 intersection. DSUMF ¶¶ 135-36.

         On September 21, 2016, the Village's Chief of Police issued Citation No. 7R80F51TJS against the Nation for failing to act in accordance with the Ordinance. The Nation filed an amended complaint on September 28, 2016, asserting that it, its officials, and its employees are immune from the Ordinance in the conduct of special events on the Nation's trust land and Reservation and that the Village lacks the authority to enforce the Ordinance against the Nation, its officials, and its employees. It seeks to enjoin the Village's attempt to impose the Ordinance on the Nation, its officials, and its employees and to enforce the Ordinance through citation or municipal court proceedings. It also seeks to enjoin the Village from enforcing Citation No. 7R80F51TJS against the Nation.

         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. For this reason, both parties sought a significant period of time for discovery and have submitted extensive documentation and briefing in support of their respective positions. Recognizing the importance of the issues raised to both parties, the court begins its analysis with a consideration of the history to which both appeal.

         B. Historical Background

         The Oneida Tribe of Indians was one of six Iroquois Nations living in the area that later became the State of New York. In the years following the Revolutionary War, encroachment by the new Americans on their ancestral lands, as well as other factors, gave rise to a plan for the Oneida to move west to the Wisconsin Territory. On February 8, 1831, the United States entered into a treaty with the Menominee Tribe, which was already located in the Wisconsin Territory, under which the Menominee agreed to cede a tract of land to be set apart as a home to the several tribes of the New York Indians, including the Oneida. The tract of land was to be apportioned among the New York tribes “so as not to assign any tribe a greater number of acres than may be equal to one hundred for each soul actually settled upon the lands.” PSUMF ¶ 3 (quoting Treaty with the Menominee, 1931, signed Feb. 8, 1831, 7 Stat. 342, ECF No. 92-10 at 4). The Treaty stated that ceded lands “are to be held by those tribes, under such tenure as the Menomonee [sic] Indians now hold their lands, subject to such regulations and alteration of tenure, as Congress and the President of the United States shall, from time to time, think proper to adopt.” Id. ¶ 4 (quoting Treaty with the Menominee, 1931, signed Feb. 8, 1831, 7 Stat. 342, ECF No. 92-10 at 4). The Treaty with the Menominee was amended on February 17, 1831, to extend the three-year deadline by which the New York tribes were to relocate to the ceded Menominee lands. Id. ¶ 6. On October 27, 1832, the United States entered into a third treaty with the Menominee to amend the February 8, 1831 Treaty to alter the boundaries of the tract ceded to the United States for the benefit of the New York tribes. The October 27, 1832 treaty provided that the terms of the February 8, 1831 Treaty, as amended, were otherwise confirmed. Id. ¶ 7.

         Then, on February 3, 1838, the Oneida entered into a treaty with the United States in which it ceded to the United States their title and interest in the 1831 Menominee cession in return for reserving “to the said Indians to be held as other Indian lands are held a tract of land containing one hundred (100) acres, for each individual, and the lines of which shall be so run as to include all their settlements and improvements in the vicinity of Green Bay.” Id. ¶ 8 (quoting Treaty with the Oneida, 1838, signed Feb. 3, 1838, 7 Stat. 566, Arts. 1 and 2, ECF No. 92-13 at 3). The number of Oneida who had emigrated to the Duck Creek area totaled 654, resulting in a tract of land consisting of approximately 65, 400 acres. DSUMF ¶ 1. The United States agreed to survey the reserved tracts as soon as practicable. PSUMF ¶ 9. In December 1838, John Suydam surveyed the tract of land set aside in the Treaty of 1838. Id. ¶ 10. The map he created of the survey, labeled “Oneida Reservation, ” consisted of land in what would later become parts of Brown and Outagamie Counties in the State of Wisconsin. ECF No. 92-14. Commissioner of Indian Affairs Crawford wrote to Secretary of War Poinsett on February 7, 1839, advising that the terms of the Treaty of 1838 had been carried out. PSUMF ¶ 11.

         Federal Indian policy changed dramatically as the nation grew, and in the late 19th century, Congress terminated the treaty-making process with individual tribes, 25 U.S.C. § 71, and moved toward a policy of allotment and assimilation. In 1887, Congress enacted the General Allotment Act, commonly referred to as the Dawes Act, 25 U.S.C. § 331, et seq., the purpose of which was the eventual assimilation of tribal members into the general population and the elimination of Indian reservations through the allotment of the land in severalty to the Indians residing on those reservations. The allotted lands were to be held in trust by the United States for a period of at least 25 years, after which Indian allottees were to receive fee patents, which removed all restraints on alienation and allowed transfer of the land to non-Indians. See 25 U.S.C. § 348. Once allottees received their patents, they were to “have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside.” Act of February 8, 1887, 24 Stat. 388 at 390. It was believed that, within a generation or two, “the tribes would dissolve, their reservations would disappear, and individual Indians would be absorbed into the larger community of white settlers.” South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 335 (1998) (citing Hearings on H.R. 7902 before the House Committee on Indian Affairs, 73rd Cong., 2d Sess., 428 (1934)).

         On September 16, 1887, Commissioner of Indian Affairs J.D.C. Atkins recommended to Secretary of the Interior John Noble that “the President be asked to authorize allotments in severalty to be made to the Indians on the Oneida Reservation, in Wisconsin, under the Act of February 8, 1887.” PSUMF ¶ 14 (quoting ECF No. 92-17); DSUMF ¶ 5. The Secretary concurred and relayed the recommendation to President Benjamin Harrison in May 1889. PSUMF ¶ 17; DSUMF ¶ 5. The allotment of the Oneida Reservation to tribal members began in 1889. By 1891, with the exception of approximately eighty acres reserved for boarding school and day school purposes, as well as the small allotments of land for use in the satisfaction of additional claims to entitlement, a schedule containing 1, 530 allotments with no surplus land remaining was submitted for approval. PSUMF ¶¶ 19, 22; DSUMF ¶ 6. In accordance with the provisions of the Dawes Act, trust patents dated June 13, 1892, were issued to Oneida allottees, to remain in trust for twenty-five years. PSUMF ¶ 21; DSUMF ¶ 8.

         After the individual tribal members, including members of the Oneida Tribe, received their allotments, but before the twenty-five-year trust period expired, they repeatedly petitioned the federal government for legislation granting the individual members fee simple title to their land. In response to such requests, Congress amended the Dawes Act through the Burke Act, 34 Stat. 182, 25 U.S.C. § 349, on May 8, 1906. The Burke Act gave the Secretary of the Interior the discretion to immediately issue fee patents to competent Indian allottees before the expiration of the twenty-five-year trust period required under the Dawes Act. Section 6 of the Burke Act provided that, upon issuance of the patent conveying the allotment in fee simple, “all restrictions as to sale, incumbrance, or taxation of said land [would] be removed.” 25 U.S.C. § 349. During the same year, Congress passed an act making “appropriations for the current and contingent expenses of the Indian Department, for fulfilling treaty stipulations with various Indian tribes, and for other purposes.” Act of June 21, 1906, 34 Stat. 325 ch. 3504. The June 21, 1906 Act included a provision authorizing the Secretary of the Interior to issue fee patents to fifty-six named Oneida allottees and, in the Secretary's discretion, “to issue a patent in fee to any Indian of the Oneida Reservation in Wisconsin for the lands heretofore allotted him.” Id. The issuance of the patents would operate as a “removal of all restrictions as to the sale, taxation, and alienation of the lands so patented.” Id.

         In response to the allotment process, the Wisconsin state legislature in 1903 enacted legislation creating the towns of Hobart and Oneida in the area within the boundaries of the Oneida reservation in Brown County and Outagamie County. DSUMF ¶ 37. In 1908, the Brown County Board of Supervisors vacated the town of Hobart as created in 1903 and reorganized the town from “all that portion of the Oneida reservation, situated in Brown County, Wisconsin.” Id. ¶ 38 (quoting ECF No. 89-43).

         Over the years that followed, Congress authorized the sale of trust patents held by non-competent allottees for their benefit, 34 Stat. 1015, at 1018, and authorized the issuance of fee patents to allotment purchasers, 35 Stat. 444, resulting in the issuance of fee patents for much of the allotted land. The twenty-five-year trust period for those allotments that remained in trust was set to expire on June 12, 1917. DSUMF ¶ 33. On March 24, 1917, a three-person competency commission recommended that fee patents be issued immediately to ten named Oneida allottees, that fee patents be issued to an additional twenty-two named Oneida allottees upon the expiration of the trust period on June 12, 1917, and that the trust period for all other allottees still holding allotments in trust on the area set aside in the Treaty of 1838 be extended. PSUMF ¶ 29; DSUMF ¶ 32. By 1917, over 50, 000 acres of the 65, 400-acre reservation fell out of Indian ownership. DSUMF ¶ 30. On May 4, 1918, President Woodrow Wilson signed an executive order extending the trust period by nine years for thirty-five named Oneida allottees. PSUMF ¶ 34; DSUMF ¶ 35. President Calvin Coolidge signed an executive order on March 1, 1927, extending the trust period for twenty-one named Oneida allottees. PSUMF ¶ 38; DSUMF ¶ 36. By the early 1930s, the Oneida Tribe owned less than 90 acres of the approximately 65, 400 acres within the original boundaries of the area set aside in the 1838 treaty. DSUMF ¶ 98. Several hundred additional acres of individual allotments continued to be held in trust. Id. At least 95% of the land was no longer owned by Indians. Id. ¶ 95.

         In 1934, Congress once again changed federal policy toward tribes through the passage of the Indian Reorganization Act (IRA), 25 U.S.C. § 450, et seq. The IRA put an end to the allotment process, 25 U.S.C. § 461; continued periods of trust upon Indian lands and restrictions on alienation indefinitely, 25 U.S.C. § 462; authorized the Secretary of the Interior to restore to tribal ownership the remaining surplus lands of any Indian reservation previously opened for public sale, acquire through purchase or otherwise any lands within or without existing reservations, and place them in trust for the purpose of providing land for Indians, 25 U.S.C. §§ 463, 465; and authorized tribes to adopt constitutions and by-laws, and organize their own governments under the supervision of the Secretary, 25 U.S.C. § 476. In 1936, less than two years after the enactment of the IRA, the Nation adopted its Constitution and Bylaws. PSUMF ¶ 49.

         LEGAL ...

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