Oneida Nation v. Vill. of Hobart

• Citation: 968 F.3d 664
• Decision Date: 30 July 2020
• Docket Number: No. 19-1981,19-1981
• Parties: ONEIDA NATION, Plaintiff-Appellant, v. VILLAGE OF HOBART, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

968 F.3d 664

ONEIDA NATION, Plaintiff-Appellant,

v.VILLAGE OF HOBART, Defendant-Appellee.

No. 19-1981

United States Court of Appeals, Seventh Circuit.

Argued April 13, 2020

Decided July 30, 2020

Rehearing Denied September 18, 2020

James R. Bittorf, Attorney, Oneida Tribe of Indians of Wisconsin, Law Office, Oneida, WI, Arlinda F. Locklear, Attorney, Arlinda F. Locklear, Washington, DC, Vanya S. Hogen, Attorney, Hogen Adams PLLC, St. Paul, MN, Paul R. Jacquart, Attorney, Hansen ReynoldS LLC, Milwaukee, WI, Jessica Mederson, Attorney, Hansen Reynolds LLC, Madison, WI, for Plaintiff-Appellant.

Frank W. Kowalkowski, Attorney, Von Briesen & Roper, S.C., Green Bay, WI, Derek John Waterstreet, Matthew J. Thome, Attorneys, Von Briesen & Roper, S.C., Milwaukee, WI, for Defendant-Appellee.

Mary Gabrielle Sprague, Attorney, Department of Justice, Environment & Natural Resources Division, Washington, DC, for Amicus Curiae United States of America.

Joel West Williams, Attorney, Native American Rights Fund, Washington, DC, for Amici Curiae National Congress of American Indians, Indian Land Tenure Foundation.

Thomas C. Bellavia, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Amicus Curiae State of Wisconsin.

Before Sykes, Chief Judge, and Hamilton and St. Eve, Circuit Judges.

Hamilton, Circuit Judge.

The Oneida Nation's Big Apple Fest has become a test of power and jurisdiction between the Nation and the Village of Hobart, Wisconsin. The Oneida Nation in Wisconsin hosts its annual Big Apple Fest on land partially located in the Village of Hobart. In 2016 the Village demanded that the Nation obtain a permit under a Village ordinance and submit to some of the Village's laws. The Nation sued for declaratory and injunctive relief, arguing that the Village may not subject the Nation to state and local law on its own reservation. In the meantime, the Nation held the festival without a permit, and the Village issued a citation for violating the ordinance.

To resolve this dispute, we must trace the history of the Oneida Reservation from its establishment by treaty in 1838 through a series of allotment acts passed by Congress around the turn of the twentieth century. If the Reservation remains intact, then federal law treats the land at issue as Indian country not subject to most state and local regulation. The Village argues that the Reservation was diminished piece by piece when Congress allotted the Reservation among individual tribe members and allowed the land to be sold eventually to non-Indians. The district court agreed and granted summary judgment in favor of the Village.

We reverse. 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. Under Solem v. Bartlett , 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984), we look—from most important factor to least—to statutory text, the circumstances surrounding a statute's passage, and subsequent events for evidence of a "clear congressional purpose to diminish the reservation." Id. at 476, 104 S.Ct. 1161. After this case was argued, the Supreme Court decided McGirt v. Oklahoma , ––– U.S. ––––, 140 S. Ct. 2452, 207 L.Ed.2d 985 (2020). We read McGirt as adjusting the Solem framework to place a greater focus on statutory text, making it even more difficult to establish the requisite congressional intent to disestablish or diminish a reservation. The Oneida Nation prevails under both the Solem framework and the adjustments made in McGirt .

The undisputed facts show no congressional intent to diminish. First, the statutory texts provide no clear indication that Congress intended to eliminate all tribal interests in allotted Oneida land. Second, 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 nineteenth and early twentieth centuries that its actions would lead eventually to the end of the reservation system. These general expectations do not show an "unequivocal[ ]" contemporary understanding that the statutes would diminish the Reservation and effectively abrogate the United States’ treaty with the Oneida. Solem , 465 U.S. at 471, 104 S.Ct. 1161. The Village's argument that Congress intended to diminish the Reservation by allowing land to pass out of Indian hands is antithetical to Solem and the well-established legal framework for diminishment. Third, events following Congress's enactment of the relevant statute (or statutes) cannot alone support a finding of diminishment in the absence of textual or contextual support. Even if they could, the evidence offered by the Village is so inconclusive that it could not justify a finding that the United States unilaterally broke the 1838 Treaty.

The Village's alternative arguments for affirmance also fail. The Nation is not bound by a 1933 judgment in a federal case brought by some of its individual members. And the Village has not shown "exceptional circumstances" that could justify imposing its Special Events Ordinance on the Nation within the boundaries of the Reservation. California v. Cabazon Band of Mission Indians , 480 U.S. 202, 215, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). In sum, 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. We remand with instructions to enter judgment in favor of the Nation.

I. Background

A. History of the Oneida Reservation

In 1838, the Oneida Reservation was established by treaty with the United States. Treaty with the Oneida, Feb. 3, 1838, art. 2, 7 Stat. 566. The Treaty reserved to the Oneida Tribe "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. The Treaty called for the United States to survey land for the reservation "as soon as practicable." Id. art. 3. After taking a census of the Oneida, a reservation of approximately 65,000 acres was surveyed and established in compliance with the Treaty.

This Treaty was the culmination of almost two decades of relocation. The Oneida were members of the Iroquois Federation, with their homeland in New York. Like so many other tribes during the removal period (ca. 1828–1847), some of the Oneida were compelled—after years of encroachment, erosion of their land base, and pressure from both federal and state governments—to move west. This process resulted in the 1838 Treaty, in which the United States agreed to establish a reservation for the Oneida in exchange for the Oneida ceding "all their title and interest" in other land in Wisconsin that had previously been set apart for the Oneida and other New York tribes by earlier treaties. Treaty with the Oneida, art. 1, citing Treaty with the Menominee, Feb. 8, 1831, 7 Stat. 342, and Treaty with the Menominee, Oct. 27, 1832, 7 Stat. 405.¹

Toward the end of the nineteenth century, Congress began a nationwide policy of encouraging individual ownership of Indian reservation land. For nearly fifty years, beginning with the General Allotment Act of 1887 (also known as the Dawes Act), ch. 119, 24 Stat. 388, and ending with the Indian Reorganization Act of 1934, ch. 576, 48 Stat. 984, Congress followed a policy of allotting to individual tribe members reservation lands that had been held in severalty by the respective tribes. "The objectives of allotment were simple and clear cut: to extinguish tribal sovereignty, erase reservation boundaries, and force the assimilation of Indians into the society at large." County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation , 502 U.S. 251, 254, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992), citing In re Heff , 197 U.S. 488, 499, 25 S.Ct. 506, 49 L.Ed. 848 (1905).

The results of the allotment policy were disastrous for Indians, although the policy was driven at least in part by a paternalistic but misguided belief that forced assimilation and individual land ownership would benefit them. E.g., D.S. Otis, The Dawes Act and the Allotment of Indian Lands 8 (1973) (proponents of allotment believed it would "make restitution to the Indian for all that the white man had done to him in the past"), and Francis P. Prucha, The Great Father: The United States Government and the American Indians 895 (1984) ("primary function" of allotment was "to turn the Indians generally into agriculturalists").

The Dawes Act, enacted in 1887, was a generally applicable statute that authorized the allotment of Indian reservation lands to individual tribe members. The Act granted the President discretion to allot any Indian reservation to the members of the tribe and to issue land patents (i.e., titles) to allottees to be held in trust by the United States for twenty-five years. §§ 1, 5. After this trust period, the patents would issue in fee to the individual allottees, though the President was given discretion to extend the trust period indefinitely. § 5. After the government completed the allotment and issued the trust patents, allottees would "be subject to the laws, both civil and criminal, of the State or Territory in which they may reside."

§ 6. The Dawes Act also authorized the President to negotiate with tribes whose reservations had undergone allotment for the "purchase and release" of surplus lands left over after allotment. § 5.

The Oneida Reservation in Wisconsin was allotted soon after passage of the Dawes Act. President Benjamin Harrison approved the allotment, and an agent of the Office of Indian Affairs was assigned in June 1889 to carry it out. The Reservation was split into 1,530 allotments for tribal members with 80 acres reserved for...