Check out the U.S. Court of Appeals' opinion in Oneida Nation v. Village of Hobart, No. 19-1981 (July 30, 2020). The question was whether a local municipality has the power to regulate activity within the Village's jurisdiction when that municipality is also wholly within the Oneida Nation.
The Nation runs the Big Apple Fest. The Village asserted that the Nation needed a Special Event Permit. Nope, the Nation responded, the Village is entirely within the reservation boundary, and this is taking place in Indian Country where local laws don't apply. The Village asserted that the Nation had been diminished because allotted land had passed into fee simple ownership, and those portions were not in Indian Country.
After the Nation sought a declaratory judgment on these issues, the district court agreed with the Village. In the first post-McGirt decision, the Seventh Circuit reversed, concluding that the Nation -- as established by a 1838 treaty -- has not been subsequently diminished and "remains intact."
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 disestablish or diminish a reservation. The Oneida Nation prevails under both the Solem framework and the adjustments made in McGirt.
Slip op. at 2-3.
The opinion focuses on history and statutory text, but is still a fascinating read.
Oneida Nation v. Village of Hobart, No. 19-1981 (7th Cir. July 30, 2020)
