Litigation Updates

David V. Dillenburg & Thomas G. Sladek v. Midwest Regional Director, Bureau of Indian Affairs, Docket Nos. IBIA 15-005, 15-006, 15-007, 15-008 (Interior Board of Indian Appeals, Washington, D.C.)

In 2014, Dillenburg and Sladek appealed four decisions of the Midwest Regional Director to acquire properties in trust for the Nation. They claim the Nation was not under federal jurisdiction in 1934, and therefore is not eligible to have land taken into trust under the Indian Reorganization Act. They also claim the Indian Reorganization Act is unconstitutional. They filed their opening brief with the Interior Board of Indian Appeals in December of 2014. The Nation and the Department of Interior filed answer briefs on March 23, 2015. Dillenburg and Sladek filed reply briefs on April 27, 2015. The appeals are now fully briefed, and we expect the Interior Board of Indian Appeals will issue a decision in 12-36 months.

Oneida Tribe of Indians of Wisconsin v. Village of Hobart, Wisconsin, 891 F.Supp.2d 1058 (E.D. Wis. 2012); aff’d 732 F.3d 837, (7th Cir. 2013)

In 2010, the Tribe initiated its first lawsuit against Hobart, asking the court to declare that Hobart does not have the authority to impose storm water charges against the Tribe’s trust property. The Tribe’s complaint set forth three claims for relief: 1) Hobart’s storm water charges are a tax on trust land, and federal law provides that trust land is not subject to taxation; 2) even if the charge is deemed to be a fee, the charges are still impermissible because the Tribe’s trust land is subject to comprehensive federal regulations and Hobart’s storm water charges interfere with those federal regulations; and 3) the Tribe has the inherent right to self-government and Hobart’s storm water charges interfere with the Tribe’s right to self-government. In response to the Tribe’s lawsuit, Hobart filed a third-party complaint against the United States. The Tribe moved for Summary Judgment on its first two claims for relief and the United States moved for dismissal of the third-party complaint. In 2012, the court ruled that the charges are taxes and are precluded by federal law. Hobart appealed. In 2013, the 7th Circuit Court of Appeals upheld the decision. Hobart petitioned for review by the United States Supreme Court. The Supreme Court denied Hobart’s petition. In May, 2015, the Tribe filed a Motion for Contempt against Hobart because Hobart refused to remove the taxes from a number of parcels, claiming the parcels were not properly held in trust. This issue is currently being briefed and the Tribe’s motion is still pending.

In 2014, the ACF plaintiffs sued the Nation, Oneida Seven Generations Corporation (“OSGC”), and Green Bay Renewable Energy LLC (“GBRE”) in relation to contracts between ACF Leasing/ACF Services and GBRE for a proposed plastics-to-oil project. Among other things, the ACF plaintiffs claim the Nation, OSGC and GBRE breached the contracts and were unjustly enriched by learning about ACF’s technology. They also claim the Nation and OSGC intentionally interfered with the contracts, interfered with ACF’s prospective economic advantage, interfered with ACF’s business expectancy, and are vicariously liable for all of the debts and obligations of GBRE. The Nation and OSGC moved to dismiss the claims against them on the grounds of sovereign immunity and lack of personal jurisdiction. GBRE moved to dismiss the claims against it for failure to state a claim. The court ruled in favor of the Nation and OSGC, and dismissed all of the claims against the Nation and OSGC. The court also dismissed some of the claims against GBRE, but allowed the ACF plaintiffs to amend their complaint to restate those claims. The ACF plaintiffs have appealed the court’s order dismissing the claims against the Nation and OSGC. On April 7, 2015, the ACF plaintiffs filed their opening brief with the Illinois Court of Appeals. On May 11, 2015, the Nation and OSGC filed their response brief, and the ACF plaintiffs have filed their reply brief. We anticipate the Illinois Court of Appeals will issue a decision in 12-18 months.

Between January 24, 2007, and September 20, 2007, the Oneida Nation submitted fee-to-trust applications for eight properties known as the Boyea, Buck, Calaway, Catlin, Cornish, DeRuyter, Gerbers, and Lahay parcels (Hobart Parcels). We have reviewed the legal description and maps and determined this acquisition qualifies for processing under the regulations found at 25 CFR §151.10 for on-reservation acquisitions. The parcels are located in the Village of Hobart, Brown County, Wisconsin, and are described in Exhibit A (enclosed).

In 2010, the Regional Director issued six notices of decision of intent to accept into trust the eight properties, consisting of 21 parcels and 499.022 acres, for the Nation. Subsequently, the Village of Hobart timely appealed each decision. Through a series of Orders in 2010, the IBIA consolidated the six appeals, docketed as listed below:
Docket No.                                  Property Name                               Date of Notice of Decision
10-091                                          Boyea                                                 Mar. 17, 2010
10-092                                          Cornish                                             Mar. 17, 2010
10-107                                           Gerbers                                             May 5, 2010
10-131                                            Buck                                                  July 8, 2010
11-002                                           Catlin                                                Aug. 16,2010
11-002                                           Calaway                                            Aug. 16,2010
11-002                                           DeRuyter                                          Aug. 16,2010
11-045                                            Lahay                                                Nov. 23, 2010

The IBIA remanded portions of the decisions for reconsideration by the Regional Director. Village of Hobart v. Acting Midwest Reg’/ Dir., Bureau of Indian Affairs, 57 IBIA 4, 5 (2013). Upon remand, additional comments were solicited from interested parties through the issuance of a supplemental Notice of Application.

On May 9, 2013, the Interior Board of Indian Appeals (IBIA) affirmed in part, vacated in part, and remanded, the six Notices of Decisions issued by the Midwest Regional Director to accept eight properties-consisting of 21 parcels and 499.022 acres-into trust on behalf of the Oneida Tribe of Indians of Wisconsin (Oneida Nation or Nation).1 The IBIA affirmed the Regional Director’s decisions as to: (1) her authority to accept land into trust on behalf of the Nation under the Indian Reorganization Act {IRA), 25 U .S.C. § 51082 (25 C.F.R. § 151.1 O(a)); (2) her consideration of the Nation’s need for the land (25 C.F.R. § 151.1 O(b)); (3) the Nation’s purposes for and uses of the land (25 C.F.R. § 151.10(c)); and (4) the Bureau of Indian Affairs’ (BIA) ability to absorb any additional responsibilities (25 C.F.R. § 151.10(g)).3

The IBIA vacated and remanded the Regional Director’s decisions as to loss of tax revenue (25 C.F.R. § 151.10(e)) and jurisdictional and land use conflicts (25 C.F.R. § 151.10(f)).4 Additionally, the Regional Director, on remand, was directed to address the Village’s arguments regarding environmental concerns (25 C.F.R. § 151.10(h)).5 Finally, the Regional Director was instructed to consider the Village of Hobart’s claim of alleged bias in decision making.6 This Notice of Decision specifically addresses the matters vacated or otherwise remanded by the IBIA.