Oneida Nation will not appeal Hobart eminent domain case

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Damage control is one way to describe the reasoning behind the Oneida Nation of Wisconsin’s decision not to appeal a federal ruling which gave the village of Hobart eminent domain over a portion of land owned by the tribe.

In 2006, the tribe filed suit in federal court to prevent the village from proceeding with a plan to update infrastructure and utilities on Oneida-owned territory in Hobart. This spring, U.S. District Court Judge William C. Griesbach issued a decision upholding Hobart’s right to take the property.

Rather than risk a potentially costly appeal, Oneida staff attorney Rebecca M. Webster said tribe officials agreed to let the 30-day window expire.

But will the decision to not challenge the ruling subject other tribes in the state, and perhaps across the nation, to broader interpretations of the law?

Not necessarily, said Webster, who cited the narrow scope of Griesbach’s March 28 ruling.

“It’s a very limited holding, which stated that the municipality has jurisdiction over the land itself, but not the activities on the land,” said Webster, who added that the Great Lakes Intertribal Council (GLITC) opposed the ruling, but agreed to support whatever decision the tribe made with regard to an appeal.

Potential Impact

Attorney John S. Swimmer, chairman of the State of Bar of Wisconsin’s Indian Law Section, noted that there is little precedent on these types of cases and it remains to be seen what the ruling will mean for other tribes.

“It could have an impact on other tribes, but I think the consensus, at least with regard to the tenor of recent Indian decisions coming out of federal court, is they did not want to see this issue appealed,” said Swimmer.

He cited the 2005 U.S. Supreme Court case, City of Sherrill v. Oneida Indian Nation, 125 S. Ct. 1478 (2005). In the 8-1 ruling, the Supreme Court held that lands within the boundary of the former Oneida reservation in the state of New York did not independently revert to sovereign tribal status when the Oneida Nation repurchased them, although the tribe and lower federal courts had maintained they did.

Had the Hobart case progressed to the Supreme Court, and the Oneida tribe lost, the impact on other tribes could have been more substantial, said Webster. As it stands now, he said other courts can look to the case for guidance, but not precedence.

“If the same thing happens in California, this decision is not binding for the courts there,” said Webster. “We decided to just keep it a bad decision for the Eastern District.”

Attorney Paul G. Kent served as special counsel to the village of Hobart and said the goal was not to casually condemn Oneida lands, but to gain clarity on the law.

“There wasn’t really a lot of law on this, in part because I think for most tribes, there hasn’t been a dispute about taxation and power,” said Kent. “There may have been the assumption that local government had these powers.”

Kent added that the village was not looking to trample on tribal fee land, beyond the normal government functions of laying out roads and extending utilities.

“It’s not a case where the village wants to go out and condemn land to put up a shopping center,” said Kent.

Specific Circumstance

In this case, village officials wanted to expand utilities throughout a 17.4-acre stretch of land in the northern part of Hobart. The tribe had purchased the land in 2006 from developer Tom Juza.

Despite the change in ownership and the intention of the tribe to keep the land undeveloped, village officials announced plans to initiate condemnation proceedings to obtain easements over the area, known as the Forest Road Property.

In 2001, the tribe purchased more than 350 acres of land the village had designated for an industrial park and extension of O’Hare Boulevard. After the tribe objected to the construction, the village withdrew its request.

But in the federal decision, Griesbach said that “The village has condemnation, special assessment and taxation authority over lands purchased in fee by the Oneida Tribe of Indians.”

The ruling essentially clears the way for construction on both sites, although Kent said village officials will have to reevaluate the O’Hare Boulevard area.

The fee land in question was owned by Oneida, but was not in federal trust. Trust land is exempt from a number of taxation laws.

Griesbach said in his ruling that since it is fee land and was owned by a third party before the tribe bought it, it is not subject to exemptions allowed for federal tribal land. The tribe reacquired approximately 6,800 acres of land in Hobart, which was originally part of the reservation, but only about 1,000 acres are in federal trust.

“If the tribe wanted to protect these lands from state and local jurisdiction, the vehicle to do that is to place the land in trust under the federal trust process,” said Kent. “Simply repurchasing the land did not allow the tribe to avoid local jurisdiction over that land.”

Currently, the tribe owns approximately one-third of the 65,000 acres originally on the reservation, according to Webster, who added that the tribe has applied to have all owned lands put into federal trust.