Oneida Tribe of Wi v. Village of Hobart, Wi

Decision Date28 March 2008
Docket NumberNo. 06-C-1302.,06-C-1302.
CourtU.S. District Court — Eastern District of Wisconsin

Amy C. Hertel, Mary J. Streitz, Vernle C. Durocher, Dorsey & Whitney LLP, Minneapolis, MN, James R. Bittorf, Rebecca M. Webster, Oneida Law Office, Oneida, WI, for Plaintiff.

Abigail C.S. Potts, Paul G. Kent, Anderson & Kent SC, Charles G. Curtis, Jr., Heller Ehrman LLP, Madison, WI, William S. Woodward, Hanaway Ross SC, Green Bay, WI, Dawn Sturdevant Baum, Native American Rights Fund, Washington, DC, for Defendant.



At issue in this important case is the status of land located within the original boundaries of the Oneida Reservation that has been reacquired by the Oneida Tribe of Indians of Wisconsin ("the Tribe") several generations after title to the land lawfully passed to non-Indians. The Tribe filed this action against the Village of Hobart ("the Village") seeking a declaration that the Village has no authority to condemn a portion of its newly acquired property for a public roadway or to charge such property with the costs of public improvements in the form of a special assessment. The Tribe also seeks an injunction directing the Village to return to the Tribe the special assessments on its land that have already been paid. Though its complaint asserts ten separate counts against the Village, the Tribe's essential argument is that federal law recognizing tribal sovereignty and prohibiting the alienation of tribal lands prevents municipalities like the Village from exercising their statutory powers to condemn, and levy special assessments upon, reacquired tribal lands without the consent of the Tribe and/or Congress. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1362, and 1367(a).

In its answer, the Village denied that the Tribe was entitled to the relief it was seeking and asserted a counterclaim for declaratory relief confirming its authority to condemn the Tribe's newly acquired land for public roadways and to assess the property for the costs of improvements pursuant to state law. The case is presently before the Court on cross-motions for summary judgment. In addition to the briefs and arguments of the parties, the Court has also benefitted from the amicus curiae briefs filed by the Great Lakes Inter-Tribal Council ("GLITC") and a group of property owners, taxpayers and voting citizens of the Village of Hobart. Having considered fully the arguments set forth, I conclude that the Village is not barred from instituting condemnation proceedings and levying special assessments on the Tribe's reacquired lands in accordance with state law. Accordingly and for the reasons set forth below, the Tribe's motion will be denied, and the Village's motion will be granted.


Although the dispute between the parties arises out of relatively recent land purchases by the Tribe and the Village's efforts to implement its current development plan, the resolution of that dispute requires consideration of the Tribe's history in Wisconsin and the various shifts in federal policy toward Indians over the nation's history that are reflected in the laws governing Indians and their lands. I therefore begin with that history.

A. The Oneida Tribe and Federal Indian Policy

The Oneida Tribe of Indians of Wisconsin is a federally-recognized Indian tribe organized under the Indian Reorganization Act of 1934 ("IRA"), 48 Stat. 984 (1934), codified at 25 U.S.C. § 461 et seq. (Tribe's Proposed Findings of Fact (hereinafter "TPFOF") ¶ 2.) Its history, however, goes back much further. When European settlers first arrived on the North American continent, the Oneida Indians were one of the Six Iroquois Nations living in the area that later became New York. By the early 1800's, there was increasing pressure from the State of New York to move the Oneida west. In 1822-23, a small group of Oneidas known as the First Christian Party settled around the Fox River near Green Bay on land held by the Menominee Indians. A second group of Oneidas known as the Orchard Party settled in this area in 1830. The Menominee Indians ceded a portion of their land to the Oneidas in separate treaties in 1831 and 1832. Then, in 1938 the Oneida entered into a treaty with the United States in which they ceded to the United States their claims under their treaties with the Menominee Indians in return for a reservation area that consisted of 100 acres for each adult Oneida Indian then living in the Green Bay area. The Tribe's Reservation, established by the Treaty with the Oneida, Feb. 3, 1838, 7 Stat. 566, consisted of approximately 64,000 acres in what would later become parts of Brown and Outagamie Counties in the State of Wisconsin.1 (Village's Proposed Findings of Fact (hereinafter "VPFOF") ¶¶ 4-7.)

The nation's official policy toward Indian tribes at this time proceeded from the premise that the "several Indian nations [constitute] distinct political communities, having territorial boundaries, within which their authority is exclusive...." Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 556-57, 8 L.Ed. 483. (1832). The Constitution granted Congress the authority both "[t]o regulate Commerce ... with the Indian Tribes: and to make treaties, U.S. Const., Art. I, § 8, cl. 3; Art. II, § 2, cl. 2, [and Congress] had determined by law and by treaty `that all intercourse with [the tribes] would be carried on exclusively by the Federal Government.'" County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 257, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992). It was thus well established that within the reservations, state and local jurisdiction would not lie. Id.

Federal policy toward Indians dramatically changed in the late 19th century, however, when Congress terminated the process of treaty-making with individual tribes, 25 U.S.C. § 71, and moved to a policy of allotment and assimilation. In 1887, Congress enacted the General Allotment Act, 25 U.S.C. § 331 et seq., 24 Stat. 388, also known as the Dawes Act, the purpose of which was the eventual assimilation of the United States Indian population into the general population and the gradual elimination of Indian reservations.2 Under the Dawes Act, the President was authorized to select Indian reservations for the allotment of land in severalty to the Indians residing on those reservations. The Dawes Act further provided that the Secretary of the Interior would issue initial patents for each allotment to the individual Indian allottee under which the United States would continue to hold the allotted land in trust for the benefit of the allottee for a period of 25 years. At the conclusion of the trust period, the United States was to issue another patent conveying the land to the allottee in fee simple. Section 5 of the Act provided that "at the expiration of said [trust] period the United States will convey [the allotted lands] by patent to said Indian ... in fee, discharged of said trust and free of all charge or incumbrance whatsoever...." 25 U.S.C. § 348.

The allotment process began on the Oneida Reservation in 1889, and by 1891, the final schedule of allotments was made with no surplus land remaining. (VPFOF ¶ 10.) In general, allotments of 90-acre parcels were made to heads of families; 45-acre parcels to individuals age 18 and older, and orphans under age 18; and 26-acre parcels to minors with surviving parents. The Secretary approved the allotments, and the initial trust patents were issued to 1,520 allottees on June 13, 1892. This is not to say, however, that all land within the Reservation was allotted. Approximately 120 acres over which Congress had previously granted a now-abandoned railroad easement was not allotted; nor was another tract of approximately 40 acres that was used as an Episcopalian mission to the Oneidas. (Aff. of James W. Oberly, ¶ 21.)

In 1906, Congress amended the General Allotment Act through the Burke Act, 34 Stat. 182, 25 U.S.C. § 349, which authorized the Secretary of the Interior to immediately issue fee patents to competent Indian allottees without waiting the entire twenty-five years required under the Dawes Act. Section 6 of the Burke Act explicitly 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 session, Congress also enacted a specific provision authorizing the issuance of fee patents to allotted lands on the Oneida Reservation. This provision explicitly provided that "the issuance of such patent shall operate as a removal of all restrictions as to the sale, taxation and alienation of the lands so patented." 34 Stat. 325 ch. 3504 (hereinafter the "Oneida Provision").

In apparent response to the allotment process, the Wisconsin legislature enacted 1903 Wis. Laws ch. 339, which created two new towns within the Oneida Reservation boundaries: the Town of Hobart and the Town of Oneida. The Town of Hobart included "all that part of the territory embraced within the Oneida reservation situated in Brown County," which consisted of approximately 40% of the reservation. The Town of Oneida was comprised of the remaining portion of the reservation situated in Outagamie County.

Over the years that followed, fee patents were issued for the vast majority of allotted land on the Oneida Reservation and most of that land, including all of the land at issue here, fell out of Indian ownership. (TPFOF ¶ 8; VPFOF ¶¶ 16, 38, 59.) There were essentially four ways in which fee land passed from Indian ownership during this period of time. First, beginning in 1902, the Secretary of the Interior and the Commissioner of Indian Affairs, pursuant to a new act of Congress, the Act of May 27, 1902, ch. 888, § 7, 32 Stat. 245, authorized the sale of...

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