Two recent legal victories strengthen Indian Country’s jurisdictional landscape
History professor Doug Kiel discusses the ‘most important federal Indian law case in half a century’
Indian Country had a big win earlier this summer in the U.S. Supreme Court, with the 5-4 ruling in McGirt v. Oklahoma, determining that approximately one-third of Oklahoma remains reservation for jurisdictional purposes.
In addition and more recently, the 7th U.S. Circuit Court of Appeals in Chicago in Oneida Nation v. Village of Hobart upheld the 1838 federal treaty with the Oneida Nation, an agreement that established the tribe’s reservation in Wisconsin with approximately 65,000 acres of land and mandated “to include all their settlements and improvements in the vicinity of Green Bay.”
“They are both landmark cases,” said Doug Kiel, assistant professor in the Weinberg College of Arts and Sciences at Northwestern and a faculty affiliate with the University’s Center for Native American and Indigenous Research (CNAIR). “The Oneida Nation case is the first test of these new legal rules about reservation ‘diminishment,’ and that we prevailed is significant.”
Kiel, a citizen of the Oneida Nation, testified as an expert witness in the Hobart case, and discusses the implications of both cases, as well as his journal article “Nation v. Municipality: Indigenous Land Recovery, Settler Resentment and Taxation on the Oneida Reservation,” published recently by the University of Minnesota Press.
Q: What are the implications of McGirt v. Oklahoma and why is it considered a landmark case?
KIEL: Most of all, this case represents a win for treaties. It had long been presumed that the Oklahoma Enabling Act of 1906 disestablished reservation boundaries, and as a result, the State of Oklahoma exercised criminal jurisdiction over the lands in question. In the absence of explicit Congressional action to disestablish reservation boundaries, Oklahoma’s argument was that disestablishment was Congress’ implicit intent.
The dissenting opinion reflected this same logic, also pointing to the territory’s demographics with a longstanding non-Native majority. McGirt rejected these arguments that take the territory’s “Indian character” into consideration, and instead upheld the treaty with the Creek Nation as the “supreme law of the land,” per the U.S. Constitution.“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law,” Justice Gorsuch wrote in the majority opinion, “because Congress has not said otherwise, we hold the government to its word.”
In the immediate wake of McGirt, the state has lost criminal jurisdiction over eastern Oklahoma, which is expected to open numerous appeals. Creek, U.S., and Oklahoma officials will need to negotiate the road ahead in that regard. The oil and gas industry is likely to be affected as well, facing potential regulatory and tax changes. McGirt’s implications also extend far beyond Oklahoma. Cases about the disestablishment or diminishment of reservation boundaries, such as Oneida Nation v. Village of Hobart, benefit from the Supreme Court upholding that only explicit Congressional action can modify reservation boundaries. The McGirt decision will long be remembered for its unambiguous support for holding the United States to past treaties; Justice Gorsuch’s words open a lot of possibilities for tribes in the federal courts.
Q: What was at issue in Oneida Nation v. Village of Hobart?
KIEL: The Village of Hobart is a wealthy suburban community west of Green Bay, a majority-white municipality located entirely within the boundaries of the Oneida Nation’s reservation. Prior to most Oneidas relocating from New York to Wisconsin in the early 19th century, the Oneida people allied with the United States during the Revolutionary War.
The Oneida Nation and Village of Hobart have been in longstanding conflict with one another over their area of shared jurisdiction. The Nation’s jurisdiction overlaps with several municipalities and two Wisconsin counties — Brown and Outagamie — making for a complex jurisdictional landscape.
In September 2016, Village of Hobart officials issued a $5,000 citation to the Oneida Nation for having failed to acquire a special-events permit to hold the tribe’s annual Big Apple Fest on the reservation. Over 8,000 visitors participated in apple picking, apple pie contests and other family activities. The Village argued that their ordinance applied, and that the Oneida Nation lacked jurisdiction, because part of the festival took place on parcels that — although the Nation owned the property in fee simple — were not yet held in federal trust.
Further, the Village argued, the Nation lacked jurisdiction over any parcels not held in federal trust, even if it is within the boundaries of the Oneida Reservation set by Congress in 1838. The Village argued that the 1838 boundaries no longer remained valid, and that they had been either diminished or completely disestablished under the terms of the General Allotment Act (GAA, 1887).
For many years, the Village of Hobart’s leadership has described the Oneida Reservation as a set of historical boundaries only, challenging the legitimacy of their sovereign neighbor. For decades, non-Oneidas owned nearly all of the land within the boundaries of the reservation, and the Village argued that changes in land ownership resulted in permanent changes to the reservation’s boundaries. In April 2019, U.S. District Judge William Griesbach in Green Bay held that the reservation boundaries had been diminished, implicitly by fulfilling Congress’ intent for the GAA to eliminate reservations. Diminishment meant that until the lands are held in federal trust for the Oneida Nation, their status is as if they were not within the reservation at all. The Village pointed to a 1933 federal court decision that described the Oneida Reservation as having been discontinued through allotment.
The recent decision by the 7th Circuit overturned that incorrect interpretation of the GAA and held that the Nation is not bound by the 1933 case.
Q: Why has Hobart been contesting the tribe’s legitimacy and jurisdiction?
KIEL: After losing ownership of almost all of the land within the reservation by the beginning of the 20th century, the Oneida Nation first began reacquiring parcels in the 1930s. Land recovery was a slow process to start, but after the Oneida Nation opened a casino in 1994, the pace and scale of reacquisition increased dramatically. Each acre that the Oneida Nation successfully buys back in Hobart and returns to federal trust status is another acre that the Village government can no longer tax. The Village of Hobart is worried about their ability to survive with a diminishing tax base. Their primary goal is to stop or at least slow down the process of Oneida land recovery.
Although this takes the form of a dispute over taxes and jurisdiction, it is ultimately about power. The Oneida Nation has long negotiated service agreements with the municipalities overlapping the reservation. These service agreements provide payments in lieu of taxes in compensation for municipal services provided to households regardless of the trust status of the land where they reside. Lost revenue isn’t Hobart’s real frustration, it’s having to acknowledge that where they reside is legally classified as “Indian Country,” and that they need to share jurisdiction with a tribal government, negotiating rather than dictating the future of the reservation. The two governments have fundamentally different aims with the land: The Oneida Nation wants to preserve their reservation’s rural and agricultural character, while the Village of Hobart sees vacant land in need of development to increase its market value.
Q: What are the main takeaways in your journal article “Nation v. Municipality: Indigenous Land Recovery, Settler Resentment, and Taxation on the Oneida Reservation”?
KIEL: I’ve sought to demonstrate that Indigenous nation rebuilding and resentful settler backlash go hand-in-hand. There is not an obstructed path to recovery for tribal communities. As Indigenous nations continue to strengthen their institutions and flex their political and economic muscles, they are perceived by some as an innate threat to settler existence. This article focuses mostly on events from 2008 to 2019, and one of my aims is to highlight how the increasingly toxic political landscape of the past decade — from the Tea Party and Great Recession, to the embattled (Wisconsin) governorship of Scott Walker and the rise of “Trumpism” — have played out in the context of Indigenous-settler relations in the U.S.
Q: In your article, you write that the Oneida Nation defies American expectations of Native people, how so?
KIEL: The Oneida Nation is an enterprising community, and we have demonstrated ourselves to be highly capable of thriving in a competitive marketplace. Popular misunderstandings of Native American history also typically presume that Indigenous-settler relations ceased to be an important force in U.S. politics in the late-19th century. The conflict between the Oneida Nation and the Village of Hobart points the other direction, toward a future in which strengthened tribal institutions means a louder voice in U.S. politics, and a greater ability to protect Indigenous interests.