Personal Jurisdiction – Ordinance

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7^th Circuit Court of Appeals

Case Name: Oneida Nation v. Village of Hobart

Case No.: 19-1981

Officials: SYKES, Chief Judge, and HAMILTON and ST. EVE, Circuit Judges.

Focus: Personal Jurisdiction – Ordinance

The Oneida Nation’s Big Apple Fest has become a test of power and jurisdiction between the Nation and the Village of Hobart, Wisconsin. The Oneida Nation in Wisconsin hosts its annual Big Apple Fest on land partially located in the Village of Hobart. In 2016 the Village demanded that the Nation obtain a permit under a Village ordinance and submit to some of the Village’s laws. The Nation sued for declaratory and injunctive relief, arguing that the Village may not subject the Nation to state and local law on its own reservation. In the meantime, the Nation held the festival without a permit, and the Village issued a citation for violating the ordinance.

To resolve this dispute, we must trace the history of the Oneida Reservation from its establishment by treaty in 1838 through a series of allotment acts passed by Congress around the turn of the twentieth century. If the Reservation remains intact, then federal law treats the land at issue as Indian country not subject to most state and local regulation. The Village argues that the Reservation was diminished piece by piece when Congress allotted the Reservation among individual tribe members and allowed the land to be sold eventually to non‐Indians. The district court agreed and granted summary judgment in favor of the Village.

We reverse. The Reservation was created by treaty, and it can be diminished or disestablished only by Congress. Congress has not done either of those things. The governing legal framework—at least when the issue was decided in the district court and when we heard oral argument—was clear. Under Solem v. Bartlett, 465 U.S. 463 (1984), we look—from most important factor to least—to statutory text, the circumstances surrounding a statute’s passage, and subsequent events for evidence of a “clear congressional purpose to diminish the reservation.” Id. at 476. After this case was argued, the Supreme Court decided McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). We read McGirt as adjusting the Solem framework to place a greater focus on statutory text, making it even more difficult to establish the requisite congressional intent to dis establish or diminish a reservation. The Oneida Nation prevails under both the Solem framework and the adjustments made in McGirt.

The undisputed facts show no congressional intent to diminish. First, the statutory texts provide no clear indication that Congress intended to eliminate all tribal interests in allotted Oneida land. Second, the Supreme Court has rejected— time and time again—the Village’s argument that diminishment can be the result of Congress’s general expectation in the late nineteenth and early twentieth centuries that its actions would lead eventually to the end of the reservation system. These general expectations do not show an “unequivocal[]” contemporary understanding that the statutes would diminish the Reservation and effectively abrogate the United States’ treaty with the Oneida. Solem, 465 U.S. at 471. The Village’s argument that Congress intended to diminish the Reservation by allowing land to pass out of Indian hands is antithetical to Solem and the well‐established legal framework for diminishment. Third, events following Congress’s enactment of the relevant statute (or statutes) cannot alone support a finding of diminishment in the absence of textual or contextual support. Even if they could, the evidence offered by Village is so inconclusive that it could not justify a finding that the United States unilaterally broke the 1838 Treaty.

The Village’s alternative arguments for affirmance also fail. The Nation is not bound by a 1933 judgment in a federal case brought by some of its individual members. And the Village has not shown “exceptional circumstances” that could justify imposing its Special Events Ordinance on the Nation within the boundaries of the Reservation. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 215 (1987). 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.

Reversed and remanded with instructions

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.