Federal Court Dismisses Complaint Asking an Order to Force Oneida Business Committee to Hold Meeting on Per Caps

Here are the materials in Dallas v. Hill (E.D. Wis.):

11 Amended Complaint

16 Motion to Dismiss

20 Opposition

22 Reply

25 DCT Order

Texas v. Zinke (ICWA Challenge) April Update

There were some thirty entries on the Texas v. Zinke docket this month. Relevant documents are on the case page.

Since our last update, the feds filed another motion to dismiss. The plaintiffs’ seperated into private and state parties for briefing–so the state plaintiffs have filed one brief, and the individual plaintiffs filed another (up to 70 pages each). Both, however, filed a combined opposition to the government’s motion to dismiss and motions for summary judgment.

Ohio and Goldwater have filed amicus briefs on the opposition to the motion to dismiss.

Navajo Nation motioned to intervene for the purpose of a Rule 19 dismissal.

The federal government and the plaintiffs are going back and forth on the scheduling of additional briefing, but there are no orders yet.

Rebecca Webster on cooperative land use planning on the Oneida Reservation

Rebecca Webster has published “This land can sustain us: cooperative land use planning on the Oneida Reservation” in Planning Theory & Practice.

Here is the abstract:

Land use planning in indigenous communities often takes place within state-based planning initiatives, leaving indigenous governments to serve as token participants. Through these initiatives, state-based governments have the ability to wield their power and control the planning process to the detriment of indigenous governments. This study sets forth an alternative option involving cooperative land use planning practices where neither government controls the planning process. Drawing upon a case study of the Oneida Reservation in Wisconsin, USA, this study explores ways to increase cooperative land use planning relationships between indigenous and state-based governments. As one of the few empirical studies to apply critical planning theory to advocate for increased cooperative land use planning, this paper proposes a series of recommendations that can help indigenous and state-based governments avoid conflicts and work toward cooperative relationships.

Who Won American Indian Law and Policy 2014, Second Round, Bracket 1 of 4

32 are in, 32 are out. Let’s proceed to the eight remaining in Category 1, Indian nations.

#1 Alaska Native tribes v. #8 Omaha Tribe

The Alaska Natives tribes, my overall top seed, took 95 percent of the first round vote. The Omaha Tribe took 75 percent, easily routing the Kialegee Tribal Town.

#4 Cayuga Indian Nation v. # 12 Oneida Tribe of Wisconsin

All-Haudenosaunee quarterfinal! Cayuga took a narrow victory over the Big Lagoon Rancheria, with 58 percent of the vote. MHA Nation is taking some bad press lately, and the Wisconsin Oneidas wiped the floor with them, taking 77 percent of the vote.

#2 Sault Ste. Marie Tribe of Chippewa Indians v. #7 Gun Lake Tribe

All Michigan ‘Shinob quarterfinal. Sault Tribe took 64 percent of the vote over Fond du Lac, and I’m sure it’s not because of their sheer enrollment numbers. Or was it? Gun Lake, which took 2/3 of the vote from the Wind River Tribes, better hope not.

#3 Bay Mills Indian Community v. # 11 Lac Courte Oreilles and other Wisconsin treaty tribes

Bay Mills eked its way out of the first round with 51 percent of the vote over Cowlitz; apparently winning a Supreme Court case isn’t all that impressive compared to a win in federal district court. Huh.

Unlike Sault Tribe, enrollment numbers didn’t help Navajo, which lost handily to the Wisconsin treaty tribes, 63-37. Wisconsin’s not giving up on that treaty case, so stay tuned there.



New Scholarship on Zablocki v. Red Hail

Tonya L. Brito, Raymond Kirk Anderson, and Monica Ashley Wedgewood have posted “Chronicle of a Debt Foretold: Zablocki v. Red Hail, 434 U.S. 374 (1978),” on SSRN. Here is the abstract:

Zablocki v. Red Hail is a canonical case in family law jurisprudence. One of the few Supreme Court decisions addressing the fundamental right to marry, the case involves a successful challenge to Wisconsin’s “permission to marry” statute. However, the conventional understanding of the case addresses only part of the story. The narrative threads uncovered as part of this oral history research study reveal a more multifaceted and complicated story than has been previously appreciated. The story behind Zablocki v. Red Hail spans the 1970s in Milwaukee, a period of great inequality and dynamic social change. It also engages the American Indian experience in the United States, particularly the experience of urban Indians who have been uprooted from their native lands and disconnected from their heritage and history. Finally, although Zablocki v. Red Hail was a significant constitutional victory, the ruling did not secure justice for Roger Red Hail because the pursuit of a rights-based claim left standing an economically unjust (and apparently unending) child support order.

Highly recommended!

Wisconsin COA Decides First Case under State Tribal Court Transfer Rule

Here is the opinion in Kroner v. Oneida Seven Generations Corp. (and here are the briefs we have):


John Kroner appeals an order transferring his civil suit to the Oneida Tribal Judicial System pursuant to WIS. STAT. § 801.54, titled, discretionary transfer of civil actions to tribal court. Kroner argues the circuit court erred because the record did not support its determination that the tribal court had concurrent jurisdiction. Kroner further contends the court failed to properly consider the statutory discretion factors. We conclude the record supports the circuit court’s exercise of discretion, and affirm.

Wisc. SCT Justice Unhappy with Teague Protocol

News article here.

Tribal court judges assert there’s no problem with consent to tribal court transfer:

Oneida Chief Judge Winifred Thomas told the Supreme Court this week that the results have been excellent. She said the tribal courts try very hard to create a win-win situation, even though the parents have agreed to disagree.

Thomas says the transfers to tribal courts are important, because she believes many Native Americans don’t get a fair shake in circuit courts.

Baylake Bank v. TCGC & Village of Hobart — Covenant Against Tribal Ownership of Land

In a very interesting, even disturbing, development, the Village of Hobart, which has taken lands of the Oneida Indian Nation of Wisconsin through the power of eminent domain (Oneida v. Hobart), has now begun to use restrictive convenants running with the land to thwart the Nation. Here is the district court opinion upholding the restriction (from the same judge who found that the Village had the power of eminent domain against the tribe).

In this case, the Village sold a golf course to TCGC, which later went bankrupt. During bankruptcy, the village asserted its rights under a restrictive covenant that ran with the land. The covenant, added to the property when the Village sold it, prevents any owner (especially a sovereign nation like Oneida) from taking the land off the property rolls. It is clear from the opinion that the Village of Hobart did this expressly to deny the Oneida Indian Nation the right to seek a fee-to-trust acquisition by the Secretary under 25 U.S.C. 465.

We suggest that Shelley v. Kraemer and/or the 14th Amendment precludes such covenants, but it is a close question.

Continue reading