Village Of Hobart’s Filings Regarding Fraud Upon The Federal Court By Attorney Rebecca Webster Of The Oneida Business Committee’s Law Office [11/16/2015 UPDATE: U.S. District Court Eastern Wisconsin Denies OTIW’s Motion For Contempt Against Village Of Hobart]

UPDATE:

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Starting on the bottom of page 6:

…[T]his Court has been defrauded into concluding the federal government holds this land “in trust.” It does not. The federal government has never recognized this land as trust land, despite years-worth of requests by the Tribe to do so. The Tribe has consistently represented to this Court that the subject parcels are “in trust,” without once confessing to the Court that the federal government does not share this view.

The Tribe further convinced the Brown County Register of Deeds’ office to change the deed to “USA in Trust for Oneida Tribe of Indians of Wisconsin,” without the federal government’s knowledge, permission, or imprimatur. …Desperate for a way to avoid the federal government’s refusal to acknowledge these parcels “in trust,” the Tribe unilaterally drafted, re-worded, and filed with the Brown County Register of Deeds’ office an Affidavit of Easement Cancellation, which directed the County to thereafter change the ownership to the United States in trust for the Tribe. …The Tribe’s tampering with the adminstration of justice continued with the Tribe then using the County’s records, now showing the parcels as trust land (because of the Tribe’s unilateral actions to manipulate this information), to form the basis of its claim that 149 parcels are “in trust.” (See Affidavit of Rebecca M. Webster ¶¶ 6-7 [#84]). The Village relied upon that designation to sign its Stipulation, which was presented to this Court for consideration, and was used to render its Decision and Order. …

In furtherance of its scheme, the Tribe argued in its case the [Indian Reorganization Act] was the source of its ability to be shielded from municipalities charging storm water fees, and thus was the source of its claim that its land was “in trust.” It presented no other theory upon which that land was “in trust.” But, it argued an entirely different theory to the executive branch. In viewing its correspondence with the federal government, the Tribe argued to the executive branch that the subject parcels always retained trust status, and thus did not need to be placed “in trust” under the IRA. …The Tribe never argued, or even informed the Court about this theory, despite making this argument at the time of the lawsuit to the executive branch. Importantly, the executive branch has not agreed to this theory. Nor should it. …This theory does not consider the effect of the Dawes Act on these parcels.

Page 12:

Whether through the theory argued before this Court, or the theory secreted from this Court, these parcels are not “in trust.” The Tribe’s actions, representations, and omissions to block this knowledge from the Court and the Village represents a scheme to defraud the administration of justice, which is precisely what Rule 60(d)(3) contemplates when it authorizes a court to correct judgments procured through fraud. As such, this Court can use its inherent power under Rule 60(d)(3) to amend the judgment due to the fraud on this Court.

 

See also this:

Starting on page 3:

On October 18, 2007, without the knowledge of the Village, the Tribe recorded a document it called an “Affadavit of Easement Cancellation” with the County, which instructed the County to change the title of the railroad parcels from Fox Valley and Western Ltd. (the successor in interest to the Green Bay and Lake Pepin Railway Company) to being owned by “United Staes of America in Trust for the Oneida Tribe of Indians of Wisconsin.” …Immediately prior to this date, and the railroads abandonment of its interest, the property was in the name of the railroad with no reference to tribal or U.S. ownership. …

In its May 2, 2014 Answer to the Village’s FOIA litigation, Case No. 14-CV-00201-WCF, the U.S. responded to the Village’s allegation that the Tribe filed the Affidavit with Brown County on October 18, 2007. The U.S. answered by saying it was “without information to form a belief as to the truth of the allegations,” and them denied the same. …In that same Answer, the U.S. stated that the “Department of the Interior has not issued any decision accepting the parcels into trust for the benefit of the Tribe.” …The subject parcels are designated as in trust only at the Brown County Register of Deeds Office and only as a result of the Tribe’s own self-serving Affidavit of Easement Cancellation.

The Tribe, therefore, took the step to change the title to these parcels itself, without the knowledge, permission, or imprimitur of the federal government or the Village. It is the County’s listing of trust parcels was then used by the Tribe to create its list of 148 parcels it claimed to be in trust. …

Page 6:

The Tribe, throughout this case, alleged that the subject parcels were “in trust” and strongly suggested if not outright stated, the [Indian Reorganization Act] was the means by which the land came into trust. However, when the Village submitted FOIA requests in 2013 and 2014, the documents are responses therefrom revealed the subject parcels are not in trust and perhaps more significantly, that the Tribe was fully aware that the federal government had consistently refused to agree with numerous requests spanning many years to recognize these parcels as trust land. …

 …In reality, as of May 2, 2014, in response to the Village’s FOIA requests, the U.S. had specifically stated that the “Department of the Interior has not issued any decision accepting the parcels into trust for the benefit of the Tribe.” …

In other words, immediately before and in the midst of this lawsuit, while filing its Complaint, its Stipulation, and its brief, all of which unequivocally state the parcels are in trust, the Tribe knew the U.S. did not agree. …

Page 13:

[W]hile the Tribe represented to the Court, the Village, and the Brown County Register of Deeds’ office that these parcels were “in trust,” it neglected to even mention its ongoing dispute with the federal government and the federal government’s refusal to recognize the subject parcels as trust land, i.e. the government did not, and still does not recognize that these lands are “in trust.”

Page 17 on:

[D]espite providing responses to seven separate FOIA requests, containing thousands of documents, the U.S. did not provide one document which indicates the railroad parcels are in trust as far as the U.S. is concerned. …[T]he Tribe has been totally unsuccessful in its attempts to get the U.S. to accept its “theory” that the railroad parcels are in trust. …

More specifically, the documents received included a May 13, 2009 correspondence (9 months before the Tribe commenced this action on February 9, 2010) from the Tribe’s counsel [Atty. Carl Artman of Godfrey & Kahn] to DOI, stating “[t]he Oneida Tribe originally sought, and still seeks, confirmation that the land the Oneida Chiefs and United States Congress approved for a railroad right-of-way also remained titled to the United States of America for the beneficial use of the Tribe.” …

The documents received also included a March 10, 2010 correspondence (19 days after the Tribe filed its Complaint in this action) from [Oneida Business Committee Member Brandon Stevens] to DOI confirming a February 3, 2010 (16 days prior to the filing of this complaint) meeting conercing “Congress’ intent with the railroad right-of-way;” that “the Tribe’s findings and the DOI’s findings concerning the Lamb and Kelsey Allotment Books are inconsistent;” and requesting further discussion on “the status of the land at issue.” The FOIA request also uncovered an April 2, 2010 email from the Tribe’s counsel to DOI stating that “the Tribe desires a definitive determination of the reservation boundary issue …”

The following more recent communications from the Tribe, confirming its knowledge of the U.S.’s unwillingness to give any credence to the Tribe’s trust theory include the following:

4/3/14 Email from Tribe’s counsel to DOI, in which she states “[i]f you recall, the Oneida Tribe claims that an abandoned railroad right-of-way…has reverted to the status of treaty trust land.” …

4/15/14 Email from Tribe’s counsel to DOI stating OTI retained her to help them with the railroad claim and that “the Tribe expects to be in litigation with the Village of Hobart soon on this issue, either as palintiff or defendent.” She also states that “one of the issues on the table for consideration by the business committee is the position of the United States on this issue. As you recall, a few years ago the Tribe had submitted a request to the Solicitor’s office to confirm the trust status of the right-of-way, then agreed to back burner the request. I wonder whether there is any update on the U.S. position on this issue that I can report to the Business Committee.”

4/15/14 Email from DOI to Tribe’s counsel stating “[a]s far as I know there is no U.S. position on this [railroad] issue yet.” …

4/15/14 Email from Tribe’s counsel to DOI, stating: “[a]t this point, I doubt the Tribe will be making a litigation request to the U.S., mostly because of uncertainty where the U.S. is on the issue. But we are concerned because the Village of Hobart has FOIAD all material relating to the right-of-way and is likely, we think, to try and drag the U.S. into any litigation.” …

5/7/14 Email from Tribe’s counsel to DOI Turner stating: “[y]our nemesis bugging you again! Have your folks gotten back to you about a meeting on the Oneida railroad right-of-way?” … 

Consequently, the Tribe knew before, during and after the filing of this lawsuit, while drafting its Stipulation and drafting its brief, all of which unequivocally state the railroad parcels are in fact trust, that the U.S. did not agree. The Tribe should not be rewarded for misleading the County, Village, and this Court. Even in its current motion for contempt and supporting brief, the Tribe has still not disclosed the U.S.’s refusal to agree with the Tribe but instead still unbelievably claims it is absolutely undisputed these parcels are in trust.

In an apparent attempt to divert attention from its misrepresentations, the Tribe claims “these circumstances [questions of land ownership] were clearly known to Hobart,” by virtue of a prior 2006 lawsuit in which the Village sought a declaration as to the ownership of the 20 parcels. …Although the Tribe may wish the parcels were in trust when that lawsuit was filed, it ignores the fact that the land, at that point in time, was titled in the name of the railroad according to Brown County. …The issue created by the erroneous Affidavit of Easement arose after the 2006 lawsuit was over.

It would be unjust to reward the Tribe for hiding the fact that the U.S. does not list these parcels in trust and is continuing to refuse to acknowledge the Tribe’s claims to the contrary. This is especially true when the Village is doing nothing more than the U.S. is doing and considering these parcels as owned in fee. Misrepresentation and gamesmanship employed against the Village and this Court and resulting in land being taken away from its true owners should not be rewarded. The Tribe’s motion should be denied. ….

Indisputable as it may seem to the Tribe, the Village does dispute it, and so does the federal government that has refused to agree with the Tribe’s position for decades. As a result, until the proper IRA procedure is used to place the railroad parcels the Tribe currently owns in fee into trust, a process subject to due process, the Village has the same authority over these parcels as it has over every other fee parcel in the Village. The same is true for the other parcels not owned by the Tribe.

Additionally, the County and the many other owners of land both literally and figuratively on the wrong side of the tracks have their own property rights to protect as the true fee simple owners of these parcels as successors in title to the original allottees. After facing decades of the BIA refusing to recognize these parcels as trust land, and after deciding not to try to use the IRA to place the portions of the railroad the Tribe does own in fee into trust, the Tribe cannot now use this lawsuit as a subterfuge for having these parcels as if they were “in trust.”

As ridiculous as it sounds, the Tribe is asking this Court to punish the Village for treating parcels that are “not in trust” like parcels that are “not in trust.” For all the above reasons, the Village respectfully requests that the Court deny the Tribe’s motion for contempt and declare that the Village may properly assess storm water fees on parcels of land that are not held in trust.

A summary of findings and exhibits showing the federal government’s steadfast refusal to go along with the theory of Oneida Nation in Wisconsin (ONW) Atty. Becky Webster can be found in the Declaration of Village of Hobart’s attorney, Frank W. Kowalkowski:

 


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