The Oneida Nation and the Village of Hobart gave oral arguments in federal court on Thursday, November 27 in Green Bay, Chief Judge William C. Griesbach presiding. At the core of the hearing was whether Oneida should have obtained a special event permit from Hobart for its annual Big Apple Fest.
Attorney Arlinda Locklear, representing Oneida, explained the one-day event mostly takes place on trust lands within the Oneida Reservation, but there are some tribally owned fee (taxed) lands where parking and apple picking occurs. In 2016 Hobart amended its ordinance for special permits to include other governments. Some of the permit requirements asks that applicants pay a $500 fee, provide proof of insurance, and use the Hobart Police Department for security if deemed necessary by the village.
“The village advised the nation that it’s obliged to apply for and obtain a permit for the conduct of the Big Apple Fest. The nation declined to do so, and as a result the village has prosecuted the nation and attempted to impose a $5000 fine upon the nation itself for its refusal to apply and obtain the permit,” said Locklear.
Locklear stated that the Oneida Nation’s stance was that the permit requirement was an attack on its sovereignty.
“The target here is the conduct of the nation itself, of its own event, on its own land working within the boundaries of its own reservation,” said Locklear. “Given these facts and the terms of this ordinance, this case presents the basic question of whether the village has the authority to impose such a sweeping ordinance of the conduct on the nation itself.”
The Village of Hobart, represented by Attorney Frank Kowalkowski, holds the argument that the Oneida Reservation was diminished by the allotment process under the Dawes Act of 1887, and the village, which is within the Oneida Reservation’s boundaries, has the right to issue the special permit.
Locklear cited several United States Supreme Court cases supporting Oneida’s ability to govern itself within its reservation boundaries. One case, Seymour v. Superintendent, upheld that the State of Washington did not have authority to prosecute a crime committed by a Colville tribal citizen on the Colville Reservation even if the crime was committed on the property of a non-Indian on fee land.
“The first of these contingents rest upon the assertion that the particular parcel of land on which this burglary was committed is held under a patent and fee by a non-Indian. The contingent is that even though the reservation was not dissolved completely by the act permitting non-Indians settlers to come upon it, it’s limits would be diminished by the actual purchase of the land within by non-Indians, because land owned in fee by non-Indians cannot be said to be reserved for Indians. That’s the argument that the village makes here, and that’s the argument the Supreme Court explicitly rejected.”
Kowalkowski argued that the point of the Dawes Act and subsequent allotment of reservation lands to Oneida citizens was to dissolve the reservation.
“The defendants have moved to dismiss on four grounds, one that lists that the Oneida Reservation was lawfully discontinued,” said Kowalkowski.
He cited Montana v. United States which determined that tribes can’t regulate hunting and fishing that takes place on non-tribal member owned fee land within reservation. Kowalkowski argued that the Big Apple Fest, which started in 2009, nearly doubles the population of the village.
“They invited thousands and thousands of non-tribal members onto these properties to pick apples, to purchase apples,” he said.
He expressed Hobart’s desire to be in the loop regarding the event and subsequent road closures that take place for safety reasons.
“All we want from the special event ordinance whether it’s from the nation or anyone else is to start the communication process under which we can make a safe event that’s great for all,” said Kowalkowski.
Arlinda countered that Oneida worked with the Wisconsin Department of Transportation and Brown County to close part of Highway 54 and North Overland Road for the event, and that the Oneida Police Department worked with the Hobart/Lawrence Police Department.
“Were the nation to apply for … a permit, this is the language that the ordinance actually includes. It doesn’t talk about communication and cooperation, let’s work it out, it says that the village is in charge and will tell you how to do it,” said Locklear.
She also argued that the Oneida Reservation was not dissolved or diminished by the General Allotment Act, nor by the creation of the towns of Hobart and Oneida, as Kowalkowski alleged.
“The towns were created in 1909, but the state legislation that authorizes the creation of those towns specifically states that they are created within the Oneida Reservation. There is nothing on the face of that act that indicates that is intended to supplant the Oneida Nation government,” said Locklear.
A decision isn’t expected until after the holidays according to Oneida’s Deputy Chief Council James Bittorf.