Following McGirt decision, Oneida Nation case continues string of Indigenous court victories
Longhouse dancer Quanah Pocan of Oneida, 16, performs at the 22nd annual Ethnic Fest celebration, Sep. 20, 2014, in Two Rivers, Wis. The Oneida Nation has just scored a major victory in a case against the Village of Hobart's attempt to enforce its ordinances on Indigenous reservation land. | Matthew Apgar / Herald-Times via AP

The Oneida Nation of Wisconsin won a long legal battle with the recent decision by the 7th Circuit Court of Appeals in Oneida Nation v. Village of Hobart that its reservation is still intact. The decision is the direct result of the Supreme Court ruling in McGirt v. Oklahoma, issued on July 9, declaring that the Creek Reservation in that state still exists. The legal issues in both cases are basically the same—allotment, non-Indian intrusion by a state or municipal entity on reservation land, the Indian Reorganization Act of 1934, and current reservation status.

The legal opponent was the Village of Hobart, a town located completely within the treaty boundaries of the Oneida Nation. The Village had attempted to impose an ordinance on Oneida Reservation land. The 7th Circuit issued its decision against Hobart on July 30, a mere three weeks after McGirt.

Judge David Hamilton wrote: “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.”

A history of encroachment and theft

Some history of the Oneida people and also some delving into the complicated and often convoluted world of Federal Indian Law are in order to understand and appreciate the 7th Circuit’s ruling. Because of colonialism, wars, relentless white encroachment, harassment by federal and state governments, and the resultant relocations, there are today four Oneida nations: The Oneida Nation of New York; the Oneida Nation of the Thames, in Canada; the Oneida Nation of Wisconsin; and the Oneida at Six Nations of the Grand River, also in Canada.

The Oneidas’ original homeland was in central New York, where they were members of the powerful Iroquois Confederacy, which held the balance of power in early colonial America between the colonists and England. With the onset of the American Revolution, most Native nations, because of white settler aggression, allied with the British. After the colonists defeated the British, the Oneidas, over a protracted period of time, found themselves bereft of their ancient homeland, which was reduced from 6 million acres to an astonishingly small 32 acres in fraudulent land transactions carried out by the State of New York.

Many Oneidas left New York and migrated to Wisconsin in the 1820s and 1830s, relocating in the Green Bay area. Others went to Canada and established sovereign independent nations in what was then still known as British North America. This was during the period of the genocidal Indian Removal policy pursued by the U.S. government.

White settlers relentlessly encroached on even the remaining 32 acres of Oneida land. In 1838, Oneida leaders in Wisconsin negotiated a treaty with the U.S. for those in that state to remain there and hold their land communally in accordance with Indigenous tradition. The 1838 Treaty was the culmination of almost two decades of relocation. The Wisconsin Oneida Reservation at that time comprised 65,000 acres.

But by 1917, because of the allotment process under the Dawes Act of 1887, over 50,000 of the original 65,000 acres of the Oneida Nation was owned by non-Indians. Judge Hamilton said, “The results of the allotment policy were disastrous for Indians….” But by 1934, the political winds had shifted once again with the passage of the Indian Reorganization Act. The Nation made use of this Act to re-establish tribal government and rebuild its land base.

In 2002, the town of Hobart incorporated as the Village of Hobart and, located entirely within the treaty lands of the Oneida Nation, decided to spread its racist wings and impose its jurisdiction over reservation land. In 2016, the Village passed its Special Event Ordinance requiring permits for large gatherings.

In 2009, the Nation held its first annual cultural event, the Big Apple Fest, a gathering free and open to the public. This event educates the public about Oneida history and culture and features an array of activities overseen by Oneida Nation police, who enforce tribal laws and regulations. After the 2016 Big Apple Fest, Hobart issued a citation charging the Nation with holding an event without a permit in violation of its Special Event Ordinance. The penalty for such a citation is $5,000.

But before the 2016 Big Apple Fest, the Nation, in defense, had filed a federal lawsuit in response to the Village’s continued demand for compliance with the ordinance. The Oneida defense was that enforcement of the ordinance was an impermissible infringement on the Nation’s power of self-government—its sovereignty over Reservation land.

The 7th Circuit’s ruling makes it clear that the land on which Hobart sits is still Indian Country and the Village has no jurisdiction. The Reservation, though allotted in part and owned by non-Indians, was neither diminished nor disestablished.

Effect of McGirt v. Oklahoma

There can be doubt about the effect of the Supreme Court’s recent McGirt v. Oklahoma decision in favor of the Muskogee Creek Nation (MCN) concerning the restoration of its reservation. This decision was rendered just three weeks before the 7th Circuit ruled in Oneida. The Creek Reservation was allotted in severalty, broken up into small, individualized plots by agreement with the MCN in 1901. Congress proceeded to allot almost all of this Reservation.

The MCN tribal government’s authority was severely curtailed by various acts of Congress at that time. Congress dissolved the MCN tribal courts, made tribal ordinances subject to presidential approval, empowered the U.S. president to remove the MCN Principal Chief, authorized the Secretary of the Interior to take control of the Creek educational system, and compelled MCN officials to relinquish all “tribal properties” to the Secretary of the Interior. This was the most egregious de facto violation of the Treaty of 1866 between the MCN and the United States.

Judge Hamilton of the 7th Circuit further stated in pertinent part, “The Court (Supreme Court) held that all of this was not enough to disestablish the Creek Reservation.” The Judge continued, “The Court held that the allotment of the Creek Reservation had no effect on reservation status because the statute implementing the allotment contained no hallmark language of diminishment.” There is no “hallmark language” (what I would call “magic words”) indicating Congressional intent to dissolve or diminish the Reservation.

Hamilton further wrote, “…the Court reiterated that ownership of land by non-Indians (on a reservation) was entirely consistent with continued reservation status.” Legally speaking, non-Indians could own all the land on a given reservation, but that land would still be a reservation.

Looking further at McGirt—from the majority opinion written by Justice Neal Gorsuch to the dissent written by Justice John Roberts—is also encouraging in terms of further interpreting and expanding the ruling. Roberts writes in pertinent part:

“In addition to undermining state authority, reservation status adds an additional, complicated layer of governance over the massive territory here [Eastern Oklahoma], conferring on tribal governments power over numerous areas of life—including powers over non-Indian citizens and businesses. Under our precedents, tribes may regulate non-Indian conduct on reservation land, so long as the conduct stems from a ‘consensual relationship with the tribe or its members’ or directly affects ‘the political integrity, the economic security, or the health and welfare of the tribe’…. Tribes may also impose certain taxes on non-Indians on reservation land…and in this litigation, the Creek Nation contends that it retains the power to tax non-Indians doing business within its borders.”

Roberts wrote his dissent in opposition to the majority decision, citing a so-called “disruption,” the “potential for cost and conflict” caused by the majority decision, but ironically, his dissent portends another huge victory for U.S. Indigenous nations because it acknowledges the power of Native nations over non-Indians and their activities on reservation land.

In the meanwhile, let’s just think back to the “disruption” caused by the dismantling of the Indigenous republics in Eastern Oklahoma, the thousands of Native lives upended, indeed lives lost in Native American and African-American communities by crushing poverty and in Black communities by slaughters typified by the Tulsa Massacre (this atrocity would have never happened under tribal jurisdiction) which followed in the wake of Oklahoma statehood.

Indeed, history would not have seen the rise of the savage racism of Jim Crow and racist impoverishment under the Indigenous governments. This was a traumatic disruption far outweighing any disruption to be potentially seen in Eastern Oklahoma in the 21st century.

Decision puts Hobart under tribal jurisdiction

It’s clear now that the Oneida Nation can “turn the tables” on Hobart, and it can begin by imposing tribal taxes on the Village. The Nation has taxing authority over Hobart based on long established Federal Indian Law precedent. The McGirt decision reinforces the multifaceted authority, acknowledged by the Roberts dissent, of tribal law over non-Indians and their businesses on reservation land.

It has not been enough that reservations, for the most part, look like pepper specks on the national U.S. map, but even those pepper specks have not been exempt from the avarice of racist, greed-obsessed white America.

The Supreme Court, for the time being, is making decisions based on a rule of law that can bring a semblance of justice to this country’s Indigenous nations. It remains to be seen if the Village of Hobart will, in the spirit of cooperation, come to the negotiating table with the Oneida Nation when the time comes for the fulfillment of its responsibilities and duties as decided by the Nation.


CONTRIBUTOR

Albert Bender
Albert Bender

Albert Bender is a Cherokee activist, historian, political columnist, and freelance reporter for Native and Non-Native publications. He was an organizer and delegate to the First and Second Intercontinental Indian Conferences held in Quito, Ecuador and Quetzaltenango, Guatemala. Recently, he has been an active participant and reporter in the Standing Rock struggle in North Dakota. He is an attorney and is currently writing a legal treatise on Native American sovereignty. He is also writing a book on the war crimes committed by the U.S. against the Maya people in the Guatemalan civil war of the late 20th century. He is also the recipient of several Eagle Awards by the Tennessee Native American Eagle Organization and a former Director of Native American Legal Departments and a Tribal Public Defender.

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