By Emily Zantow/Courthouse News
GREEN BAY, Wis. (CN) – A federal judge in Wisconsin ruled Monday that a village must prove it has jurisdiction over the Oneida Nation to enforce a permit requirement for an annual festival on the tribe’s reservation.
The Oneida Nation filed a federal lawsuit last year against the village of Hobart seeking to enjoin it from enforcing an ordinance that would require the tribe to obtain a special-events permit for events involving 50 or more people. The ordinance includes a penalty of up to $10,000 per violation.
Hobart first contacted the tribe in 2015 regarding the ordinance and Oneida Nation’s annual Big Apple Fest.
The tribe said it would not apply for the special-events permit and that year’s festival took place without further objection or interference, according to the complaint.
The next year, the Hobart repealed and replaced the ordinance with a new one requiring special-event permits, which “purports to apply to all private and public land located within the village,” the tribe’s lawsuit states.
Oneida Nation argued that the ordinance is preempted by federal regulation of the tribe’s lands and violates its inherent powers of self-government.
The Oneida reservation was created by a treaty reached with the federal government in 1838. It spans approximately 65,400 acres in northeast Wisconsin.
The Big Apple Fest takes place at the tribe’s apple orchard and cultural heritage site, both of which are held in trust by the United States pursuant to the Indian Reorganization Act.
That 1935 law allows the Secretary of the Interior to take lands into trust for tribes. Oneida Nation says the parcels of land on which the festival is held were placed into trust in 1995, 1996 and 2006.
On Monday, U.S. District Judge William Griesbach granted Oneida Nation’s motion to clarify the parties’ burdens of proof ahead of their expert disclosures.
The judge found that the tribe only needs to prove the creation of its reservation through the 1838 treaty and the applicability of Indian Reorganization Act to the tribe and its reservation, “except for the Nation’s actual title to the trust parcels at issue.”
Griesbach found that Hobart, on the other hand, must prove “that the Oneida Reservation has been diminished or disestablished by an act of Congress,” or that the village has jurisdiction over the tribe and reservation for some other reason.
“The entire village is considered Indian country under federal law, unless the village is able to establish that Congress diminished the original Oneida reservation’s boundaries,” the judge wrote.
He added, “The village seeks to regulate the conduct of the Nation and its members within the boundaries of the Nation’s reservation…Absent Congressional authorization, a state may only regulate the property or conduct of a tribe or tribal-member in Indian country in ‘exceptional circumstances.’”
Hobart must therefore prove that exceptional circumstances call for the enforcement of the special-events permit ordinance for the Big Apple Fest.
The village did not immediately respond to an email request for comment Monday.
Oneida Nation also did not respond to an email seeking comment.
The first group of Oneida settled near Duck Creek in Wisconsin in 1822. The tribe is broken up into the wolf, turtle and bear clans.