Judge subjects Oneida fee land to local jurisdiction

A federal judge on Friday gave approval for a local government in Wisconsin to assert jurisdiction over fee lands owned by the Oneida Nation.

In a 47-page decision, Judge William Griesbach acknowledged that the Indian Reorganization Act put an end to allotment of the tribe's 64,000-acre reservation. But he said the tribe must go through the land-into-trust process before asserting properties it recently acquired.

"Congress established a procedure which would permit the orderly return of reservation lands to protected status by the Secretary of the Interior upon consideration of the interests of all concerned," Griesbach wrote in describing the provisions of the IRA that authorized the land-into-trust process.

The decision relied in part on a U.S. Supreme Court ruling from 2003 in which the Oneida Nation of New York was told to follow the IRA process. The tribe is now waiting on action from the Bureau of Indian Affairs to have about 13,000 acres in two counties placed in trust.

The Oneidas of Wisconsin have submitted land-into-trust applications in the past but not for every parcel the tribe owns in the Village of Hobart. Until all of the land is placed in trust by the BIA, the village has jurisdiction, Griesbach ruled.

The village "has condemnation, special assessment and taxation authority over lands purchased in fee ... unless and until the tribe's application to place such land in trust pursuant to 25 U.S.C. § 465 is granted," the decision stated.

Thanks to gaming revenues, the tribe has reacquired about 6,800 acres in the village of Hobart. But only 1,034 acres are actually in trust, according to the court decision.

The parcel that spurred the court dispute is part of a proposed industrial park. In hopes of limiting development, the tribe purchased more than 75 percent of the 490-acre site.

The tribe has paid more than $1 million in special assessments on the parcel since 2001, according to the decision. That hasn't stopped the village from trying to condemn the land in order to develop the industrial park.

In ruling for Hobart, Griesbach noted that local governments in New York are trying to foreclose on fee land owned by the Oneida Nation. A federal judge has said the Oneidas of New York are protected by sovereign immunity.

Griesbach, however, said such a holding runs contrary to the Supreme Court's decision in Sherrill v. Oneida Nation and other jurisdictional disputes. "Unless a state or local government is able to foreclose on Indian property for nonpayment of taxes, the authority to tax such property is meaningless, and the [Supreme] Court’s analysis ... amounts to nothing more than an elaborate academic parlor game," he said.

"Since it hardly seems likely that the Court was simply playing a game in those cases, I conclude, contrary to the district court in the Oneida Indian Nation cases on remand from Sherrill, that implicit in the Court's holding that Indian fee lands are subject to ad valorem property taxes is the further holding that such lands can be forcibly sold for nonpayment of such taxes," he added.

The Hobart case is being closely watched by Indian law practitioners. The Native American Rights Fund and the National Congress of American Indians, through their joint Tribal Supreme Court Project, helped the Great Lakes Intertribal Council file a brief in the case.

Court Decision:
Oneida Nation v. Hobart (March 28, 2008)

Sherrill v. Oneida Nation Decision:
Syllabus | Opinion [Ginsburg] | Concurrence [Souter] | Dissent [Stevens]

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Anti-Indian figure takes position in Wisconsin (3/10)
Oneida Nation, village at odds over sovereignty (3/5)
Oneidas challenge leader of anti-sovereignty group (9/20)