Read trial2001.pdf text version

Trial Court Ninham Trucking and Excavation Shannon Ninham Petitioner v. Oneida Development Division, Respondent Case Settled Temporary Injunction Lifted Case Dismissed This case has come before the Oneida Appeals Commission Trial Court. Judicial Officer Stanley R. Webster, presiding. On December 4, 2000, Petitioner Ninham Trucking, and Indian owned business, filed a motion to prevent the Oneida Development Division from executing a contract with Ed Gersek, General Contractor, a non-Indian vendor. Petitioner Ninham claimed that the Oneida Development Division failed to solicit a bid from an Indian owned business on the Oneida Indian Preference Vendor list, and that his business is listed on the Oneida Indian Vendor list. The information presented showed that the Oneida Development Division intended to enter into a contract with Ed Gersek General Contractor, but it was unclear whether or not the Oneida Development Division had already signed the contract. This court found that the Petitioner had established grounds for the issuance of a temporary injunction and issued a temporary injunction on December 8, 2000. A hearing on the temporary injunction was held on December 14, 2000. Both parties agreed to settle thismatter and agreed to inform this court of the settlement agreement on or about January 2, 2001. On January 5, 2001, Petitioner Ninham informed this court that is was not feasible to come in at a lower bid than the non-Indian Vendor, on the Language Road Project. Therefore, the Oneida Development Division can proceed with the project as originally planned. ORDER The temporary injunction against the Oneida Development Division is lifted. The matter of Ninham Trucking and Excavation vs. Oneida Development Division, Docket No. 00-TC-026, is hereby dismissed.

Docket No. 00-TC-026 Date: January 9, 2001

7 O.N.R. 2 - 1

Trial Court Kelly D. Stevens, Petitioner v.

Docket No. 00-TC-025 Date: January 16, 2001

Artley Skenandore, Debra Powless, Josephine Oudenhoven, Wanda Webster, Don White, Sandy Fulwilder, Patricia Brzezinski, Deborah Skenandore(Doxtator), Cleveland J. Doxtator, Carolyn Skenandore, Mark Ninham, Dennis Powless, Marty Antone, Jason Kurowski, Vern Doxtator, Fred A. Laitnen, Owen Somers, Dale Metoxen, Janice Hirth, Stanley R. Webster, Z. Ron Skenandore, James Danforth, Fred Muscavitch, David Doxtator, Respondents Motion to Dismiss This case has come before the Oneida Appeals Commission Trial Court. Judicial Officers David Raasch, Joseph Martin, Eugene White-Fish, presiding. I Background This is a claim by the Petitioner against several current and former officers and employees of the Oneida Tribe of Indians of Wisconsin. In the Petitioner's complaint, the Petitioner seeks monetary damages of one million dollars from three of the Respondents, and an order of injunction against the behavior of the remaining respondents. The Respondents en masse have filed a joint motion to dismiss, arguing that the Petitioner has failed to establish a right to the requested relief. II Issues Have the Respondents established the grounds for a motion to dismiss?

III Analysis Under Rule 14(B)(4) of the Oneida Appeals Commission Rules of Civil Procedure, a case may be dismissed for the failure of a party to establish a right to relief based on the facts and law presented. In this case, the Petitioner presents no specific factual allegations. Throughout the course of the pleadings and arguments to date, the Petitioner has failed to establish any event, fact or occurrence performed by any of the Respondents which might give this court an indication of what laws are applicable in this case or which might have been violated by one or more of the Respondents. Under Rule 6 of the Rules of Civil Procedure, the minimum requirements for a Petitioner's complaint are established. In this instance, the Petitioner has not been able to provide this court 7 O.N.R. 2 - 2

with specific instances of events, including any dates, places, persons, or actions, which would meet the specificity requirements of the Rules of Civil Procedure. IV Decision Based upon this lack of specific factual allegations, it is the finding of this court that this case should be dismissed without prejudice. The Petitioner may appeal this decision in accordance with the Oneida Appeals Commission Rules of Appellate Procedure. It is the considered opinion of this body that the Petitioner should seek professional legal counsel if he chooses to exercise his appellate rights, so as to eliminate the deficiencies of the pleadings to date.

7 O.N.R. 2 - 3

Trial Court Lisa Benson, Petitioner v. C. Steven Hill, Respondent Motion for Injunction This case has come before the Oneida Appeals Commission Trial Court. Judicial Officers Stanley R. Webster, Kathy Hughes, Carole Liggins, presiding. I Background The Petitioner has filed a motion for a temporary restraining order and requests for subpoenas of documentation. The basis for the complaint is the petitioner's assertion that the respondent has consistently harassed and intimidated both the petitioner and staff within the Background Investigations Department. Included in this request is the petitioner's documentation of incidents and conversations between both the petitioner and respondent and the petitioner and other employees regarding the respondent's behavior. Among other things, the petitioner asserts that the respondent has filed false complaints against the petitioner , both with Tribal Departments and the Oneida Police Department, has directly and indirectly harassed the petitioner, and has consistently attempted to undermine the petitioner's position as Director of Background Investigations. The petitioner asserts that she has suffered emotional distress and now fears for her physical safety. As such, the petitioner asserts that immediate and irreparable harm are evident from the complaint and she is seeking a temporary restraining order against the respondent. In addition, the petitioner asserts that she has failed to receive copies of complaints filed by the respondent with various entities. The petitioner therefore is seeking subpoenas for the submission of these documents. II Issues Has the petitioner met the criteria for injunctive relief and a temporary restraining order? Has the petitioner met the requirements for the issuance of one or more subpoenas? III Analysis The rules governing injunctions are found in Rule 31 of the Oneida Appeals Commission Rules of Civil Procedure. In Order for a petitioner to receive a temporary restraining order, the petitioner must meet the criteria for injunctive relief and establish a clear impression that there is a threat of immediate and irreparable harm to the petitioner if a temporary restraining order is not issued by the court. 7 O.N.R. 2 - 4

Docket No. 01-TC-001 Date: January 25, 2001

In this case, the petitioner includes a year's worth of conflicts between herself and the respondent, documenting meetings, complaints, and her attempts to resolve the matter with the respondent, either individually or through the respondent's supervisor. However, the petitioner acknowledges that no formal complaint has been filed with the respondent's supervisor. The first ground for an injunction, under Rule 31(E)(1) is: When it appears by the pleadings on file that a party is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act complained of, either for a limited period of time or perpetually. On the face of the pleading, the petitioner has established that there are ongoing problems with the behavior of a co-worker which have been unaddressed by the employee's supervisor. However, there are significant procedural issues raised by the nature of the case and background of the complaint does not compel the finding that immediate and irreparable harm is likely in the event that a temporary restraining order is not issued. First, this is a harassment complaint. This is a matter that is generally best resolved by management, as it is not the role of the court system to become managers in the day to day employment practices of Tribal departments. Second, while the petitioner raises the questions of injunctive relief against continued harassment, it would appear from the pleadings that the petitioner expects such an injunction to somehow remove the respondent from the workplace. Any injunction issued by this court will be reasonably related to the goal of remedying the situation and will not necessarily prevent the respondent from doing his job. Third, this situation has been ongoing for approximately one year. While the petitioner has presented the assertion that she fears for her physical well being, there is no direct evidence that the respondent has done anything physically threatening to the petitioner or any other coworker. This court is therefore not persuaded that immediate and irreparable harm are a likely result of the respondent's continued actions. The petitioner's motion for subpoenas is premature and insufficient. While this court is authorized to issue subpoenas for the presentation of documents or the appearance of witnesses, this is done in the context of a pending litigation and only after the moving party has established that the opposing party has refused or failed to deliver discoverable documents or material. The petitioner has not presented evidence of her attempt to receive copies of complaints filed against her or the refusal of the entities holding those complaints to deliver copies to her. IV Decision A hearing on the petitioner's motion for injunctive relief will be scheduled at the parties' and this court's earliest convenience, as per Rule 31 of the R.C.P. The motion for a temporary restraining order is denied at this time. The motion for subpoenas to be issued is denied at this time.

7 O.N.R. 2 - 5

Trial Court Lisa Benson Petitioner vs. Backgrounds Coordinator C. Steve Hill Respondent Final Decision This petition has come before the Oneida Appeals Commission for trial. Judicial Officers Stanley R. Webster, Kathy Hughes and Carole Liggins presiding. Docket No. 01-TC-001

Date: February 7, 2001

I Background Petitioner Lisa Benson filed a motion for injunction requesting a temporary restraining order against Respondent C. Steve Hill on January 25, 2001. Respondent C. Steve Hill, on January 30, 2001, filed a motion to dismiss the Petitioner Benson's motion for injunction claiming lack of proper jurisdiction in this action and that the case was not yet ripe for any review. Petitioner Benson, on February 1, 2001, withdrew her motion for injunction because the Respondent was granted protection under the Employee Protection Policy by the Oneida Personnel Commission

II Decision Any party may voluntarily move to have his or her case dismissed. This case is hereby dismissed.

7 O.N.R. 2 - 6

Trial Court Khiem T, Tran, M.D. Petitioner vs. Oneida Tribe of Indians of Wisconsin, Oneida Community Health Center Respondent

Docket No. 01-TC-002

Date: February 8, 2001

Motion requesting permission for Petitioner to be excused form hearing This petition has come before the Oneida Appeals Commission, Trial Court. Lead Judicial Officer Stanley R. Webster presiding. I Background Attorneys F. Thomas Olson, and Cynthia L. Manlove of Hall Charne Bruce & Olson, S.C., on behalf of Khiem T. Tran, filed a motion requesting permission for his attorney to represent him at the hearing. Petitioner Tran is currently working in New York state and asked permission not to appear at the hearing scheduled for March 1, 2001. In addition, the motion requests a prehearing conference in lieu of a full hearing be held on March 1, 2001. IV Decision The hearing scheduled for March 1, 2001 is a pre-hearing conference. Counsel representing the Petitioner will appear with full authority to make decisions on behalf of his client, therefore the Petitioner is excused from appearing at the pre-hearing conference.

7 O.N.R. 2 - 7

Trial Court Oneida Tribe, Division of Land Management Petitioner vs. Franklin J. Nicholas, Jacquelyn Metoxen Respondents Decision This petition has come before the Oneida Appeals Commission Trial Court. Judicial Officers Carole Liggins, Mary Adams and Leland Wigg-Ninham presiding

Docket No. 00-TC-018

Date: February 26, 2001

I Background This case is for a claim of judgement for money based on contractual obligations involving a Tribal Loan Credit (TLC) agreement. The Respondents, both single enrolled Oneida Tribal members, entered into a TLC agreement with the Oneida Tribe of Indians of Wisconsin-Division of Land Management on August 14, 1992. The TLC's purpose was for improvements on individual fee property located at 1861 Cormier Ave, Green Bay, Wisconsin, on the Oneida Reservation. The Respondents failed to comply with the terms of the 1st mortgage with Associated Kellogg Bank which caused a foreclosure, which terminated all rights to the property to satisfy the 1st mortgage debt. The 2nd mortgage, TLC, remains an outstanding debt owed to the Oneida Tribe. Neither Franklin J. Nicholas or Jacquelyn Metoxen was present for the hearing. II Issue Did the Respondents breach a legal contract with the Petitioner by not fulfilling their obligation to repay a TLC loan? Are the Respondents responsible to negotiate a repayment schedule in the amount of $11,407.87 to the Petitioner? III Analysis Under the Real Property Law of the Oneida Nation in Wisconsin, Resolution 5-29-96-A, the Division of Land Management has been delegated the authority to manage land transactions, including collecting funds obligated in loan agreements. The Respondents entered into a TLC 7 O.N.R. 2 - 8

agreement on August 14, 1992, which was a 2nd mortgage on the property located at 1861 Cormier Avenue, Green Bay, Wisconsin. The 1st mortgage was held by Associated Kellogg Bank for the payment of the real estate. The Respondents failed to comply with the terms of the 1st mortgage, which caused a foreclosure and terminated all rights to the property in order to satisfy the mortgage debt. The property was sold to satisfy the 1st mortgage leaving a balance from the 2nd mortgage. The balance remaining of the 2nd mortgage, TLC agreement, is $11,407.87, this amount includes attorney fees. Both Respondents willfully entered into a contractual TLC agreement as joint tenants on August 14, 1992. The Oneida Tribal Loan Credit Agreement, "Termination and Assignability (3)," states; "All provisions exclusive of financial obligations upon satisfaction shall remain in effect for the term of the (joint) tenancy." This assigns responsibility to both parties until the debt is satisfied.

IV Decision It is found by this court that the Respondents Franklin J. Nicholas and Jacquelyn Metoxen breached the mortgage agreement between the two Respondents and the Petitioner Division of Land Management. As such, the balance of the Oneida Tribal Loan Credit agreement in the sum of $11,407.87 will be divided equally between the Respondents and a repayment schedule shall be administered by the Division of Land Management.

7 O.N.R. 2 - 9

Trial Court Kheim T. Tran, M. D. Petitioner vs. Oneida Tribe of Indians of Wisconsin Oneida Community Health Center Respondent Pretrial Schedule This petition has come before the Oneida Appeals Commission for Pretrial Conference. Judicial Officers Stanley R. Webster, Anthony Benson and Kathy Hughes presiding. I Background In September of 1999, Petitioner Dr. Tran entered into a written Employment Agreement with the Oneida Tribe of Indians of Wisconsin, as a physician at the Oneida Health Center from September 1, 1999 to September 30, 2002. In October of 2000, the Oneida Health Center terminated Petitioner's contract because of information received that Petitioner's application for privileges at Bellin Hospital in Green Bay had been denied. Petitioner filed a complaint contesting the termination of his contract by the Oneida Health Center. Prior to the pretrial conference, the Respondent filed a motion to dismiss. The pretrial conference was held on March 1, 2001. Attorneys Nelsen R. Wahlstrom and Jennifer Carleton, Oneida Law Office appeared representing the Respondent. Attorneys F. Thomas Olson, and Cynthia L. Manlove of Hall Charne Bruce & Olson, S.C., appeared representing the Petitioner. II Issues Parties arguments will be limited to two primary issues: 1. Breach of contract concerning the Employment Agreement between Dr. Tran and the Oneida Tribe of Indians of Wisconsin, Oneida Health Center. 2. Indian Civil Rights Act, 1968. III Trial Schedule Due to the fact that the motion to dismiss was receive on February 26, 2001, two days prior to pretrial, Petitioner is granted a ten day extension to reply. 1. Reply to the motion to dismiss is due on March 26, 2001. 2. Respondents rebut to Petitioner's response to motion to dismiss, due April 9, 2001. 3. Petitioner's brief outlining damages is also due on March 26, 2001. 7 O.N.R. 2 - 10

Docket No. 01-TC-002

Date: March 05, 2001

4.

5.

Discovery will be informal, however in the event formal discovery becomes necessary, parties will file their briefs on or before July 2, 2001, for consideration at the motions hearing on July 12, 2001. Trial date is set for August 2, 2001.

It is so ordered.

7 O.N.R. 2 - 11

Trial Court Oneida Utilities Petitioner vs. Richard Powless Respondent

Docket No. 00-TC-024

Date: March 12, 2001 Summons and Complaint

This petition has come before the Oneida Appeals Commission for Trial. Judicial Officers Stanley Webster, Mary Adams, and Leland Wigg-Ninham, presiding. I Background In 1993, the Petitioner installed a septic system on the Respondents trust land in accordance with the Oneida Tribal Sanitary District Ordinance. The Petitioner filed an original complaint seeking payment for utility services that have been provided to the Respondent from May 1993 to September 2000, in the amount of $1,984.24. II Issues Does the Respondent owe the Petitioner $1,984.24 for utility services provided by the Petitioner for the past seven years? Is Respondent obligated to pay for sewer services if notice to connection to public sewer was not provided to him by the Petitioner? Is Respondent obligated to pay for sewer services if the Petitioner did not restore Respondent's property to its original form? III Analysis Does Respondent owe the Petitioner $1,984.24 for sewer services provided to him by Petitioner for the past seven years? Petitioner has provided a copy of the Oneida Sanitary District Ordinance and the On-Site Waste Disposal Ordinance to this court. Under the On-Site Waste Disposal Ordinance, adopted by the Oneida Tribe on October 28, 1988; The Oneida Tribe has the right to exercise jurisdiction over tribal members within its boundaries. On-Site Waste Disposal Ordinance, Article I. 01, Applicability. 1). This ordinance shall apply to all Oneida Tribal entities, the Oneida Tribe itself, and members of the Oneida Tribe of Indians of Wisconsin within the exterior boundaries of the Oneida Tribe of Indians of Wisconsin Reservation. According to the On-Site Waste Disposal Ordinance, the Respondent is responsible for 7 O.N.R. 2 - 12

1. 2. 3.

1.

payment of sewer services provided to him for the past seven years. Article VII., Sanitary District Charges and Fees. A. Charges and Fees, Permit Fees, connection charges, service charges, and other fees shall be set by the Commission in such sums as the Commission shall fix by resolution from time to time in a manner consistent with all federal and tribal statutes and regulations. 2. Is Respondent obligated to pay for sewer services if notice was not provided to him by Petitioner? The Petitioner failed to provide documentation, or prove that the Respondent was notified of sewer connection in accordance with the Oneida sanitary District Ordinance, Article V. F. Connection to Public Server. 1. (a.) Such order may be issued only after proper notice to the owner stating that the owner has a right to a hearing before the commission on the matter. If the owner cannot be located, notice of said right to a hearing shall be attempted to be served and/or published pursuant to tribal law. Also the On-Site Waste Disposal Ordinance Article II. .09, Public Sewer Connection states:

When public sewers become available to any building intended for human habitation, or occupancy, the use of the private sewage system shall be discontinued within that period of time required by order, but not to exceed one year. The building sewer shall be disconnected from the private sewage systems and be connected to the public sewer. Had the Respondent been given proper notice, he would have been provided knowledge of the right to a hearing before the Commission on the matter. Even though it appears Respondent did not receive proper notice, Respondent did use sewer services, therefore he is responsible for paying for his use of the sewer services provided by Petitioner. Article VII., Sanitary District Charges and Fees. D. District Customer Charge System. All customers shall be classified as: (a.) Residential (b.) Commercial/institutional (c.) Industrial (3.) Residential customer charges shall consist of a minimum of quarterly billings on the basis of customer charge equivalents. The until price per volume shall be sufficient to pay the annual cost of operation and maintenance including a replacement fund. 3. Is Respondent obligated to pay for Utilities's sewer services if Petitioner failed to restore Respondent's property? The Utilities Commission has the authority to assess connection charges, service charges, and other fees on participants. If customers contest billing and payments, they can appeal to the Sanitary District and Utilities Commission, according to the Oneida Sanitary District Ordinance. 7 O.N.R. 2 - 13

Article VII., Sanitary District Charges and Fees, A. Charges and Fees. Permit fees, connection charges, service charges, and other fees shall be set by the Commission in such sums as the Commission shall fix by resolution from time to time in a manner consistent with all federal and tribal statutes and regulations. C. Contested and/or Appealed Billings and delinquent Payments. Contested and/or appealed billings and payments shall be dealt with pursuant to appropriate procedures adopted by the Oneida Tribe which shall be available to all customers of the Sanitary District. The Respondent claims that after making several requests to the Utility Department to restore his property; he withheld payment as a protest against the Utility Department. The Respondent further claims that after the sewer system was connected in 1993, a huge hole was left as a result of the Petitioner's failure to restore Respondent's property. For the past seven years, the Respondent's front yard contained the remains of disturbed landscape. The Respondent argues his withholding of payment is justified because his property was not restored. The fact that the Petitioner did not restore Respondent's property, does not release the Respondent from paying for his use of sewer services. In the spirit of "equity" which denotes fairness, it is only equitable that the Petitioner restore Respondent's property to its original state. IV. Decision It is the finding of this court that the Petitioner is entitled to payment for sewer services from Respondent. However, the Petitioner is not without wrong doing in this matter for the following two reasons: 1.) The Petitioner's failure to provide documentation of notice to Respondent, which would have informed the Respondent of his right to a hearing on the sewer connection and, 2.) The Petitioner's failure to repair the respondent's property in a timely manner. Because of these failures, the amount of payment to Petitioner by Respondents shall be assessed at $992.12, which is half of the requested amount and shall not include court costs. Petitioner is ordered to repair Respondents property, within six months from the date of this decision. Respondent is ordered to bring his utility payments up to date and pay this assessed amount.

7 O.N.R. 2 - 14

Trial Court Oneida Personnel Commission, Petitioner v. Oneida Business Committee, Respondent Voluntary Dismissal This case has come before the Oneida Appeals Commission Trial Court. Judicial Officer David Raasch, presiding. I Background On March 13, 2001, the Oneida Personnel Commission (OPC) filed a motion for temporary restraining order and permanent injunction against the implementation of Resolution 3-06-A, passed by the Oneida Business Committee (OBC). On March 19, 2001, the OPC filed a motion for voluntary dismissal of its claim. Attached with this request were minutes from a special meeting of the OBC where action was taken to rescind the Resolution being challenged. II Decision Any party may move for the voluntary dismissal of its own claim. The motion to dismiss is granted.

Docket No. 01-TC-003 Date: March 22, 2001

7 O.N.R. 2 - 15

Probate In the Matter of the Estate of: Leah King Krause Docket No.: 01-TC-006

Date: April 3, 2001 Petition for Administration This case has come before the Oneida Appeals Commission. Judicial Officers Carole Liggins, Anthony Benson, Kathy Hughes presiding. Background John Krause, as interested heir in the matter of the estate of Leah King Krause, has petitioned this court to issue an order designating him as the Personal Representative of the estate of Leah King Krause as stated in her last will and testament dated August 8, 1997

Decision By order of this court, John Krause is designated as the Personal Representative of the estate of Leah King Krause.

7 O.N.R. 2 - 16

Probate In the Matter of the Estate of: Leah King Krause Docket No.: 01-TC-006

Date: April 3, 2001

Order for Administration This case has come before the Oneida Appeals Commission. Judicial Officers Carole Liggins, Anthony Benson, Kathy Hughes presiding. A petition has been filed for the administration of the estate of the above named person requesting that John Krause be named as the administrator of the estate. The Court has found that: 1. The petition came on for a hearing 9 upon waiver of all interested parties. S upon notice given under the Real Property Law of the Oneida Nation in Wisconsin. 9 upon notice given under the Oneida Appeals Commission Rules of Civil Procedure. The above named person died on October 15, 2000, was domiciled in the Oneida Reservation, leaving: 9 no will. S a will, dated August 8, 1997. 9 a codicil(s), dated . 9 a marital property agreement, dated . 9 other designation of heirship or administration, dated

2.

.

3.

There 9 has S has not been a marriage or divorce since the date of the execution of the will or date of the death of the deceased.

It is hereby ordered that: 1. The petition for administration is granted, without bond, and the will including codicil(s), if any, is admitted.

7 O.N.R. 2 - 17

Trial Court Rory E. Dilweg, Petitioner v. Oneida Business Committee, Respondent Voluntary Dismissal This case has come before the Oneida Appeals Commission Trial Court. Judicial Officer Carole Liggins, presiding. I Background The Petitioner filed an original complaint with the Oneida Appeals Commission contesting a decision by the Oneida Treasurer and Vice-Chairperson to suspend the Petitioner from his position of Chief Counsel for four days. Since the filing of this complaint, the full Business Committee has taken action to reverse the decision by two of its members and the Petitioner has filed a motion for a voluntary dismissal of his complaint. II Decision The Petitioner's motion for dismissal of his own complaint is granted. This case is dismissed without prejudice.

Docket No. 01-TC-005 Date: April 4, 2001

7 O.N.R. 2 - 18

Trial Court

Gerald Kurowski Appellant vs. Department of Public Works Respondent

Docket No. 01-TC-004

Date: April 11, 2001 Authorization to Appear and Act

This petition has come before the Oneida Appeals Commission Trial court. Judicial Officers Stanley R. Webster, Mary Adams and Leland Ninham presiding.

Gerald Kurowski Petitioner has filed notice requesting permission for his advocate Rena Metoxen to appear on his behalf at the Pretrial conference scheduled for 9:00 AM on April 19, 2001. Petitioner states he will not be in the area at this time. The request is reasonable and timely. Petitioner's request is granted.

7 O.N.R. 2 - 19

Trial Court

Gerald Kurowski Petitioner vs. Department of Public Works Respondent Scheduling Order

Docket No. 01-TC-004

Date: April 19, 2001

This petition has come before the Oneida Appeals Commission Trial court. Judicial Officers Stanley R. Webster, Mary Adams and Leland Ninham presiding.

Order The pretrial hearing was held on April 19, 2001. Issues to be argued at trial are: Petitioner claims that verbal agreement exists, and that the Respondent has not lived up to the terms of the agreement. Specifically, Petitioner is claiming back wages from September 1997 to present, plus outstanding bonus money owed for contracts generated by, and granted to, Petitioner's department. The Respondent claims that the Petitioner did not sign a contract, and therefore a contract does not exist.

Scheduling Order Discovery will be completed on May 9, 2001. Motion hearing May 10, 2001, at 9:00 AM. Witness list May 19, 2001. Trial date May 24, 2001, at 9:00 AM. It is so ordered.

7 O.N.R. 2 - 20

Trial Court Kheim T. Tran, M.D., Petitioner v. Oneida Tribe of Indians of WisconsinOneida Community Health Center, Respondent Motion to Dismiss This case has come before the Oneida Appeals Commission Trial Court. Judicial Officers Stanley R. Webster, Anthony Benson, Jr., Kathy Hughes, presiding. I Background On September 13, 1999, Dr. Kheim T. Tran, Petitioner, entered into an employment contract with the Oneida Tribe to provide medical services for the Oneida Community Health Center (Health Center). On October 12, 2000, the Respondent sent notification to the Petitioner of nullification of the contract because of the receipt of a letter from Bellin Hospital which denied the Petitioner practice privileges in the hospital. On November 15, 2000, the Respondent reversed this decision and offered the Petitioner reinstatement and back pay, though reinstatement was to be delayed on the grounds that the Respondent had received information that the Petitioner was under police investigation. On January 5, 2001, the Petitioner filed an original complaint with the Oneida Appeals Commission, alleging a breach of contract by the Respondent. The Respondent has filed a motion to dismiss, arguing that the Petitioner did not receive or otherwise respond to the reinstatement offer made by the Respondent and that the two month delay between the offer and the filing of this original complaint should be construed as a failure to prosecute the Petitioner's claim. II Issues Has the Petitioner failed to pursue prosecution of his claim, warranting dismissal under the Rules of Civil Procedure? III Analysis This case presents an allegation of breach of contract by the Petitioner. The Respondent asserts that certified letters were sent in November and December of 2000 in an attempt to offer the Petitioner reinstatement to his former position. The documents mailed in December included a settlement agreement. The Petitioner did not respond to either mailing.

Docket No. 01-TC-002 Date: April 23, 2001

7 O.N.R. 2 - 21

A dismissal for failure to pursue prosecution of a claim generally refers to the failure of a party to diligently participate in the completion of a pending case, such as when a party fails to appear, file required briefs, or acts to unreasonably delay some proceedings. The Respondent presents an argument for failure to prosecute a claim based upon the original filing of the Petitioner's complaint. This argument fails in several respects. First, the Respondent's correspondence to the Petitioner which would grant reinstatement was not sent until a month after the Respondent nullified the employment contract. Why the Petitioner did not receive this mailing remains a question of fact to be determined at trial, as will the legal effect. The Petitioner implies, but does not assert, that he had moved residences and could not sign for the documents. In addition, the Respondent's correspondence can hardly be characterized as an unambiguous offer of reinstatement when it declared that the Petitioner would be on investigative leave, without pay, until a police investigation was completed. Second, this is a contract dispute, making adherence to the Oneida Personnel Policies and Procedures, specifically the time lines for employment grievances, inapplicable to the case at hand. The delay of three months between contract nullification and the Petitioner's filing of the original complaint is not beyond the bounds of reason. The Petitioner's failure to receive the Respondent's offers will be a matter of argument and a factor in the final decision in this case, but it is not evidence of a failure to prosecute a claim. The Respondent has additionally asked that damages in this case be limited to reinstatement and back pay. Such a decision, prior to discovery and completion of the question of liability in this contract dispute, would be premature. The question of damages will therefore be reserved for a later date. IV Decision The motion to dismiss is denied.

7 O.N.R. 2 - 22

Trial Court Gerald Kurowski Appellant vs. Department of Public Works, Area Manager Bruce Danforth Respondent

Docket No. 01-TC-004

Date: May 09, 2001

Joint Motion To Dismiss The parties have submitted a Joint Motion To Dismiss without prejudice, to the Oneida Appeals Commission Appellate Court, Lead Judicial Officer Stanley R. Webster, presiding. I Background A pre-trial hearing was held on April 19, 2001, to determine if the Appellant should receive back pay from September 1997 and if a contract existed. Discovery was scheduled for completion by May 09, 2001. On May 4, 2001, a Joint Motion To Dismiss without prejudice was filed with the Oneida Appeals Commission. It appears that both parties have reached a settlement agreement. IV. Decision Under the Judicial Code of Rules of Civil Procedure; Rule 14, A. 1. A party may move the trial court to dismiss the parties claim and the trial court shall do so with, or without prejudice as is just and proper given the stage of the proceedings. The motion to dismiss without prejudice is granted. It is so ordered.

7 O.N.R. 2 - 23

Probate Court In the Matter of the Estate of Raymond T. Denny,

Docket # 99-OHB-0025 Date: May 16, 2001 Dismissal

This case has come before the Oneida Appeals Commission. Judicial Officers Carole Liggins, Mary Adams, and Lee Wigg-Ninham, presiding Background This is a probate of the estate of Raymond T. Denny, deceased October 24, 1992. On November 9, 1999 the Oneida Land Commission filed a Probate Petition on behalf of Alice Denny. The probate hearing took place at the Appeals Commission on December 30, 1999. Issue 1. Can this probate matter continue? Analysis On November 3, 1999, the Oneida Land Commission approved the Petitioner, Alice Denny wife of the deceased, the right to petition the Appeals Commission in the matter of the estate of Raymond T. Denny. The hearing was held on December 30, 1999. At the December 30, 1999 hearing, it was noted that the Petitioner requested changes to the language in the will. This court decided that a second hearing was necessary to provide this court with documentation to clarify the specific changes to the will and to contact all heirs involved, particularly Kelly Jo DennySpruce, an heir named within the will. The hearing was scheduled for January 20, 2000. The Petitioner, Alice Denny, was unavailable for the hearing and requested to reschedule. After several attempts to reschedule the hearing by the court, a certified letter was sent to the Petitioner, Alice Denny, on April 5, 2001 with a deadline response date of April 20, 2001. The Petitioner did not respond by the April 20, 2001 deadline. Without clarification from the petitioner to continue this hearing can not proceed. In the Rules of Civil Procedure under Involuntary Dismissal, 14(B)1, Failure of the adverse party to pursue prosecution of the claim. This court has no remedy other than to dismiss this case. Decision This court orders no alterations to the existing will, the will is to remain as is. This case is dismissed for failure to prosecute a claim.

7 O.N.R. 2 - 24

Trial Court Oneida Paralegal Department Petitioner vs. Oneida Law Office Respondent Motion to Recuse This petition has come before the Oneida Appeals Commission for Review. Lead Judicial Officer Stanley R. Webster presiding Order Several motions since the motion for Declaratory Ruling were filed including a motion to recuse. Prior to the filing of the motion to recuse, the Oneida Appeals Commission in judicial conference replaced Judicial Officers Mary Adams and Leland Ninham with Kirby Metoxen and Anthony Benson. The motion to recuse is a moot issue. A written response to the other motions may be filed, however all other motions will be argued and decided at the hearing on June 14, 2001. So ordered.

Docket No. 01-TC-010

Date: June 1, 2001

7 O.N.R. 2 - 25

Trial Court Mary Whitewing and Daniel Skenandore Stacy Krenzke, Petitioners vs. Oneida Housing Authority Respondent Declaratory Ruling This petition came before the Oneida Appeals Commission trial court. Judicial Officers Stanley R. Webster, Kirby Metoxen and Marjorie Stevens presiding. I Background Petitioners, Daniel Skenandore and Mary Whitewing were tenants with a leased unit in the low income housing project known as Sandhill Circle. The address of their unit was N5860 Sandhill Circle, DePere, WI. 54115. Petitioner Stacy Krenzke was a tenant with a leased unit in the low income housing project known as Site 2. The address of her unit was N6475 Deerpath Drive, Oneida WI, 54155. Judicial notice is taken that the Oneida Housing Authority manages, constructs, rents and sells low income housing project units to benefit the housing needs of Oneida people on the Oneida reservation. Therefore, it is logical to conclude that one or more of the tenants in each unit managed by the Oneida Housing Authority are enrolled Oneidas. Petitioners Mary Whitewing, with Daniel Skenandore, and Stacy Krenzke filed separate complaints. The Petitioners asked the Oneida Appeals Commission to assume jurisdiction over their respective cases; to issue a temporary restraining order against agents of the Oneida Housing Authority; to issue a declaratory ruling on whether or not the due process rights of the Petitioners were violated by the Respondent; and to decide whether or not the Oneida Appeals Commission has exclusive jurisdiction over Oneida Housing Authority cases. Both complaints present identical issues and were consolidated. This dispute between the petitioners and the Oneida Housing Authority arose when the Oneida Housing Authority used Wisconsin County Courts to enforce eviction of the Petitioners from the low income housing projects. The County Courts granted enforcement orders for the two evictions. The first was for the eviction of Mary Whitewing and Daniel Skenandore for breach of a prior settlement agreement. The second order was for the eviction of Stacy Krenzke, for arrearage of rent payments. Both court orders were turned over to the Outagamie County Sheriffs' Department for enforcement. The Outagamie County Sheriff transferred the eviction

Docket No. 00-TC-021 Docket No. 00-TC-022

Date: June 4, 2001

7 O.N.R. 2 - 26

orders over to the Oneida Police Department to enforce. After Mary Whitewing / Daniel Skenandore, and Stacy Krenzke were served with the eviction notice, they petitioned the Oneida Appeals Commission to stay the eviction orders issued by the State courts. Due to the unusual circumstances involving two separate sovereigns, the Oneida trial court issued a temporary injunction and ordered a hearing on the Petitioners' motion to stay. Prior to the November hearing the Petitioners were evicted making the stay a moot issue. On December 1, 2000, Petitioners Mary Whitewing, with Daniel Skenandore, and Stacy Krenzke filed a joint petition and asked for the Oneida Appeals Commission to assume jurisdiction over their cases. The Petitioners ask the Oneida trial court to render a Declaratory Ruling in this matter and state the following reasons for requesting the Declaratory Ruling: 1. They are residents of Oneida on Oneida trust land located within the original exterior boundaries of the Oneida reservation; 2. Their due process rights were violated when the Oneida Housing Authority used Wisconsin courts; 3. The Oneida Housing Authority's use of Wisconsin courts denied them redress in the proper forum; 4. That the Oneida Appeals Commission is the proper forum for Tribal members on the reservation; 5. Petitioners are subject to, and protected by, the Oneida Constitution, as well as the law making authority of the Oneida Tribe; 6. The Indian Civil Rights Act of 1968, extends specific civil rights protection to Oneida tribal members; 7. The Oneida Administrative Procedures Act creates law making and judiciary procedures for the Oneida Tribe; 8. Resolution 8-19-91-A, delegates authority to the Oneida Appeals Commission to hear contested cases of controversy between entities of the Tribe and individuals; and 9. The Oneida Appeals Commission Rules of Civil Procedure set guidelines for the Oneida judiciary to follow. The Respondent argues that according to the 1976 Oneida Tribal Housing Ordinance, the Wisconsin County Courts are the appropriate forum to be used by the Oneida Housing Authority. And the Respondent asserts that: 1. The Oneida Housing Authority is bound by the 1976 Oneida Tribal Housing Ordinance to enforce evictions, or other breach of contract claims, in the appropriate county (circuit) court until a Tribal Court is created; 2. The Oneida Appeals Commission (OAC) is not a Tribal Court; 3. The Oneida Hearing and Appeals Commission, as mentioned in the 1985 amendment to the Oneida Tribal Housing Ordinance, is distinguished from the Oneida Appeals Commission (OAC), and neither is a Tribal Court; 4. There is no method to enforce a "judgement" order, or decision of the Oneida Appeals Commission.

7 O.N.R. 2 - 27

A hearing for the Declaratory Ruling was held on January 3, 2001. Prior to the hearing the parties were ordered to submit briefs presenting their position and opposing arguments on whether or not the Oneida Appeals Commission has jurisdiction over Oneida Housing Authority cases. Attorney Robert Sweeney appeared as counsel for the Oneida Housing Authority. Lois Powless and Warren Skenandore appeared in person for the Oneida Housing Authority. Ernie Stevens and Edward Delgado appeared as advocates for the Petitioners. Stacy Krenzke and Mary Whitewing appeared in person. II Jurisdiction The Petitioners assert that the Oneida Appeals Commission has authority to assume jurisdiction over this matter. Petitioners ask the Oneida trial court to render a declaratory ruling on whether or not the Oneida Appeals Commission has jurisdiction over Oneida Housing Authority cases. Jurisdiction for the Oneida Appeals Commission to hear this case is pursuant to Resolution 8-1991-A, Addendum I B 1 & 7, and the Oneida Administrative Procedures Act X & XI. The Oneida Appeals Commission held in Bernice Metoxen vs. Oneida Housing Authority, 4 O.N.R. 1-143 (98-CVL-0008, 12/22/98), 5 O.N.R. 3-13, (98-CVL-0008, 2/17/99), that the Oneida Appeals Commission has appellate jurisdiction over the Oneida Housing Authority hearing body decisions. In this case, the Oneida trial court has personal, subject matter and territorial jurisdiction. Arguments raised on whether the Oneida Appeals Commission has subject matter jurisdiction over the Oneida Housing Authority in actions arising within the jurisdiction of the Oneida Nation, where Oneidas are a party, are irrelevant when preparing a declaratory ruling. The declaratory ruling rests on the interpretation of laws and regulations of the Oneida Nation as they apply to the Oneida Housing Authority, and as such the Oneida Appeals Commission has jurisdiction based on the above citations. III Issues Does the Oneida Business Committee have authority to amend Oneida law concerning the Oneida Housing Authority? Does the Oneida Housing Authority have the authority to go outside the jurisdiction of the Oneida Nation to bring actions into a State court? Does the adoption of the Oneida Administrative Procedures Act in 1990 further affect the Oneida Housing Authority ability to go outside the jurisdiction of the Oneida Nation to bring actions in a State court?

A. B. C.

IV Finding of Facts and Analysis including Conclusions of Law A. Does the Oneida Business Committee have authority to amend Oneida law concerning the Oneida Housing Authority? The Petitioners assert, that they relied to their detriment, on information from the Oneida

7 O.N.R. 2 - 28

Housing Authority, specifically, that the Petitioners had to use Wisconsin Courts to redress decisions from the Oneida Housing Authority. The Petitioners assert that the Oneida Housing Authority Ordinance pushed them (Petitioners) into Wisconsin courts. The Petitioners challenge any and all ordinances, policies and case law that prohibit access to the Oneida Appeals Commission. The Petitioners cite the following cases in their brief: 1. Bernice R. Metoxen vs. Oneida Housing Authority Board of Commissioners, Docket No. 98-CVL-0008, (May 25, 1999). Decision granted to the Oneida Appeals Commission, jurisdiction over decisions of the Oneida Housing Authority cases.

2.

California, et al. Vs. Cabazon Band of Mission Indians et al, No. 85-1708, 480 U.S. 202, 107 S. Ct., (February 25, 1986). [Decision included language pertaining to PL 280, and mandates that a determination must be made on whether subject matter is criminal/prohibitory or civil/regulatory. If issue is civil/regulatory in nature, state has no jurisdiction over issue in Indian country.] The U.S. Supreme Court held that (1) Public Law 280, while granting state criminal jurisdiction over reservation did not authorize enforcement of statue regulating bingo, since statue was regulatory, rather than criminal law; (2) application of state and county gambling laws to tribal bingo enterprises was not authorized by Organized Crime Control Act; and (3) state's interest in preventing infiltration of tribal bingo enterprises by organized crime did not justify state regulation of such enterprises in light of compelling federal and tribal interests supporting them. The court distinguished state prohibitory/criminal law from state civil/regulatory law, saying that the game of bingo and card playing is not generally prohibited in the state of California, and held that the state cannot regulate bingo and card playing on the Cabazon Band of Mission Indian reservation. The factual circumstances in the Cabazon case concerns California's attempt to regulate bingo and card playing on Cabazon land as state prohibitory/criminal law under PL 280. The state statute was regulatory, and the Court therefore held that the state cannot regulate bingo and card playing on Cabazon reservation. The Oneida trial court finds this case to have some relevance, in that the Oneida Housing Ordinance is regulatory in nature. There is no state regulation or state law or state interest in question in this case. 3. Fisher vs. District Court of Montana, N0. 75-5366, 424 U.S. 382, 96 S. Ct. 943, March 1, 1976. This decision concludes that Indian Tribes have exclusive jurisdiction over their own members within Indian country, but it is distinguished by the fact that Montana is not a PL 280 state like Wisconsin. PL 280 gives State courts concurrent jurisdiction over tribal civil issues such as evictions from tribal housing. Williams vs. Lee, No. 39, 358 U.S. 217, 79 S. Ct. 269, January 12, 1959. This Decision concludes that non-Indian vs. Indian disputes arising in Indian country, at least when the non-Indian is in Indian country voluntarily, are under the exclusive jurisdiction of Indian tribes.

4.

7 O.N.R. 2 - 29

This case is also distinguished because Arizona is not a PL 280 state, as is Wisconsin. The Oneida trial court finds some relevance in the Petitioners' reasoning that if a non-Indian can voluntarily be included under a tribe's jurisdiction, then an entity of Oneida government such as the Oneida Housing Authority comes under such jurisdiction, but the argument is unnecessary in this case which requests a Declaratory Ruling on tribal law. 5. Oklahoma Tax Commission vs. Potawatomi Tribe, 498 U.S. 505 (1991) [Decision under the doctrine of sovereign immunity, a State that has not asserted jurisdiction over Indian lands under PL 280 may not tax sales of goods to tribesmen occurring on land held in trust for a federally recognized Indian tribe, but is free to collect taxes on such sales to nonmembers of the tribe.] This case is distinguished because the subject State does not come under PL 280, as does the State of Wisconsin, and because Indian taxation law is irrelevant in the case at hand. The Oneida trial court takes judicial notice that PL 280 does not restrict the Oneida Tribe of Indians of Wisconsin from making their own laws and being ruled by them. In 1953, Congress passed concurrent resolution 108, more commonly known as PL 280, 18 U.S.C.S. § 1162, and 28 U.S.C.S. § 1360, granting Wisconsin courts general jurisdiction over Indian country within its boundaries. The interpretive notes of 18 USCS § 1162 state in part: 18 USCS § 1162 was designed to curtail problem of lawlessness on many reservations which had developed due to inadequate Indian institutions for law enforcement; § 1162 was enacted at a time when Congress favored assimilation of Indian culture with American culture, and would seem to give state jurisdiction over all matters that were not expressly reserved to Indians; in recent years, however, it is clear federal policy of Indian self-government rather than assimilation is dominant and there have appeared judiciallycreated restrictions on state jurisdiction. "Indian institutions for law enforcement" is a broad term which includes, at a minimum, tribal police and a tribal dispute resolution system of some kind. At the time that U.S. Congress passed PL 280, the Oneida Tribe of Indians of Wisconsin had not yet developed either of these governmental functions. The interpretive note shows there were changes in the federal policy of "Indian self-government." This policy supports the development of Oneida laws and regulations. The governmental structure of the Oneida Nation has evolved and has in its growth, established its own police department and its own judicial system to handle disputes arising within its governmental structure to ensure the rights of the people are protected. As the judicial system evolves and enforcement of its laws develop, its internal agencies/entities are restricted from using State courts to resolve dispute arising within the jurisdiction of the Oneida Tribe of Indians of Wisconsin. 28 USCS § 1360 transferred civil jurisdiction to Wisconsin and provides in part in (a): to the same extent that such State has jurisdiction over other civil causes of actions, (b) provides, in part that: Nothing in this section shall . . . confer jurisdiction upon the State to adjudicate, in probate proceedings or other wise, the ownership or right to possession of property [real

7 O.N.R. 2 - 30

property . . . belonging to any Indian or Indian Tribe, band, or community that is held in trust by the United States or is subject to restriction against alienation] or any interest therein, (c) provides in part, that: Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise of any authority which it may possess shall, if not inconsistent with any applicable civil law of the State, be given full force and effect in the determination of civil causes of action pursuant to this section. 28 USCS § 1360 (b) & (c), further support Oneida law as it develops. An eviction by the Oneida Housing Authority is a "civil cause of action" arising on Oneida land within the jurisdiction of the Oneida Tribe of Indians of Wisconsin, regulated by the Oneida Tribal Housing Ordinance, enacted under authority of the Oneida Constitution, and because the Oneida Housing Authority is an agency/entity of Oneida government according to the Oneida Administrative Procedures Act, the Oneida Housing Authority falls under the jurisdiction of the Oneida Tribe of Indians of Wisconsin. The Oneida trial court finds that the Oneida Business Committee has the authority to amend the Oneida Tribal Housing Ordinance concerning the Oneida Housing Authority. B. Does the Oneida Housing Authority have the authority to go outside the jurisdiction of the Oneida Nation to bring actions into state court? The Respondent argues that the Petitioner's due process rights were not violated, that the Oneida Housing Authority is bound by the 1976 Oneida Tribal Housing Ordinance to enforce evictions, or other breach of contract claims, in the appropriate county (circuit) court until a Tribal Court is created. According to the 1976 Oneida Housing Ordinance, Article VIII § (f): The appropriate County Courts shall have jurisdiction to hear and determine an action for eviction of a tenant or home-buyer. The Tribal Government hereby declares that the powers of the County Courts shall be vigorously utilized to enforce eviction of a tenant or home-buyer for nonpayment or other contract violation until a Tribal Court shall be established. The Respondent argues that the Petitioners did appear in the County Courts to present their arguments against the Oneida Housing Authority, and although the County Courts did not decide in their favor, their due process rights were not violated. The Petitioners, in claiming that their due process rights were violated, do not dispute this point. The Respondent further argues that the Oneida Appeals Commission (OAC) is not a Tribal Court, further, the "Oneida Hearing and Appeals Commission", as mentioned in the 1985 amendment to the Oneida Tribal Housing Ordinance, is distinguished from the Oneida Appeals Commission (OAC), and neither is a Tribal Court. The Respondent further argues that according to the powers established in Article V § 2 of the 1963 Oneida Tribal Housing Ordinance, the Ordinance cannot be amended and cites Article V § 2 as follows: The Authority shall have the following powers which it may exercise consistent with the purpose for which it is established; However, the language in Article V § 2 of the 1963 Ordinance was amended in1976 to:

7 O.N.R. 2 - 31

The Council hereby gives its irrevocable consent to allowing the Authority to sue and be sued in its corporate name, upon any contract, claim or obligation arising out of its activities under this ordinance and hereby authorizes the Authority to agree by contract to waive any immunity from suit which it might otherwise have; but the Tribe shall not be liable for the debts or obligations of the Authority. The Respondent argues that "irrevocable consent" implies that the ordinance cannot be changed. In addition, the Respondent argues that Article V § 3 (1) of the 1976 amended Ordinance, empowers the Oneida Housing Authority to: terminate any lease or rental agreement or lease-purchase agreement when the tenant or home-buyer has violated the terms of such agreement, or failed to meet any of its obligations thereunder, or when such termination is otherwise authorized under the provisions of such agreement; and to bring action for eviction against such tenant or home-buyer. The Respondent further argues that according to Article V § 2 of the 1976 amended Ordinance, the term "irrevocable consent" prevents the Oneida Business Committee from changing or amending the Ordinance in the future, because changing or amending the Ordinance would effect the waiver of sovereign immunity and receipt of federal funds under Article V § 5: No ordinance or other enactment of the Tribe with respect to the acquisition, operation, or disposition of Tribal property shall be applicable to the Authority in its operations pursuant to this ordinance. The Respondents argue that Article V § 2 of the 1976 amended Ordinance shows that the Oneida Housing Authority was established as a separate entity that can sue and be sued, and any sovereign immunity that the Oneida Housing Authority might otherwise have, has been waived. Finally, third parties would be reluctant to enter into a contract with the Oneida Housing Authority if sovereign immunity was not waived. The sue and be sued clause allows the Oneida Housing Authority to receive federal funding and enter into third party contracts. We find that "irrevocable consent" in Article V § 2 of the 1976 amended Ordinance, specifically relates to the sue and be sued clause, not to whether or not the 1976 amended Ordinance can be changed. The Respondents' use of articles in the news media and the Oneida community opinions regarding the Oneida Tribal Judicial System to support their argument that the Oneida Appeals Commission is taken out of context. In 1982, the Oneida General Tribal Council enacted Resolution 2-25-82, directing the Oneida Business Committee to develop a Tribal Court. The draft for establishing a Tribal Court was modeled closely to the State and Federal court systems, with the strong requirement for licensed attorneys to implement the entire system. This concept was turned down twice, by the Oneida General Tribal Council. In 1990, another proposed judicial system was presented to the Oneida Business Committee. In May of 1990 the Oneida Business Committee adopted the Oneida Tribal Judicial System. The Oneida General Tribal Council adopted the proposed judicial system by Resolution 8-19-91-A. Adoption of this Resolution reaffirmed the Oneida Business Committee action and the Oneida General Tribal

7 O.N.R. 2 - 32

Council formerly enacted the Administrative Procedures Act and established the Oneida Tribal Judicial System under the jurisdiction of the Oneida Appeals Commission. The Oneida Appeals Commission was established by the Oneida General Tribal Council under authority of the Oneida Constitution as the judicial arm of government to ensure that individual rights are protected, and that the people have a right to petition for redress of grievances. The Oneida Appeals Commission has authority to resolve disputes that arise within the jurisdiction of the Oneida Tribe of Indians of Wisconsin. The judicial system under the Oneida Appeals Commission, continues to grow and change over the years. It is expected that the Oneida Judicial System will continue to change in order to meet the changing demands of Oneida Nation and its people. Although the Oneida Nation does not call the Oneida Appeals Commission a "court," to argue that it is not a court, is mere semantics. The Oneida Appeals Commission can and does resolve disputes in ways similar to state and federal courts, but also in ways uniquely designed for the Oneida community. We find that the Oneida Appeals Commission meets the intent of the Oneida General Tribal Council's directive to develop a court. The Respondent further argues that Resolution 5-10-85-B mentions the "Oneida Hearing and Appeals Commission", is different from the "Oneida Appeals Commission" (OAC), and neither is a Tribal Court. The Respondent argues that the "Oneida Hearing and Appeals Commission" does not exist and that while some eviction cases did go through the "Oneida Hearing & Appeals Commission", the Respondent does know or has no explanation why the hearings stopped. The Respondent also argues that adoption of Resolution 5-10-85-B, by the Oneida Business Committee is without approval of the Bureau of Indian Affairs. Finally, Resolution 5-10-85-B's modification of the Ordinance violates and conflicts with Article V § 5 of the 1976 Ordinance, because no ordinance or other enactment of the tribe will apply to the operation of the Oneida Housing Authority pursuant to the Oneida Tribal Housing Ordinance. We find that on May 10, 1985, the Oneida Business Committee adopted Resolution 5-10-85-B. Resolution 5-10-85-B specifically amends Article VIII § 1 (f) of the 1976 Ordinance. In review of the action taken by the Oneida Business Committee on May 10, 1985, we find that the intent of Resolution 5-10-85 B, was to strike the language as it appeared in Article VIII § (f) of the 1976 Oneida Tribal Housing Ordinance: The appropriate County Courts shall have jurisdiction to hear and determine an action for eviction of a tenant or home-buyer. The Tribal Government hereby declares that the powers of the County Courts shall be vigorously utilized to enforce eviction of a tenant or home-buyer for nonpayment or other contract violation until a Tribal Court shall be established. To be replaced with the following language: "The Oneida Hearing Appeals Commission shall have jurisdiction to hear appeals of final decisions on evictions and contract violations of a tenant or homebuyer. The tribal

7 O.N.R. 2 - 33

government hereby declares that the powers of the Oneida Tribe shall be vigorously utilized to enforce eviction of a tenant or home-buyer for nonpayment or other contract violation and that the Oneida Business Committee shall establish appropriate appeal procedures, rules and regulations." Judicial notice is taken that with the adoption of Resolution of 5-10-85-B, the Oneida Business Committee deleted the use of County Courts until a Tribal Court is established and replaced it with using the Oneida Hearing Appeals Commission. The amendment has no requirement for a "court." In addition, according to the number (7) of the Footnotes section of the Oneida Tribal Housing Ordinance: Article VIII, Section I (f) may be modified to insert the name of the appropriate court, or it may be deleted where it is demonstrated to HUD that the jurisdiction for evictions is vested in other than tribal courts (e.g., State courts or Courts of Indian Offenses). We find the Oneida Business Committee to be the proper body to provide such modification, not the Oneida Housing Authority. The Respondent chose to ignore Resolution 5-10-85-B rather than comply. The Respondent argues that Resolution 5-10-85-B was not approved by the Bureau of Indian Affairs, but does not cite the authority, or federal case law to prove the relevancy of this argument. The Respondent also fails to establish a law or policy that would prevent the Oneida Nation from regulating its internal affairs of government, or any of its agencies, organizations, or members of the Oneida Nation within the jurisdiction of the Oneida Reservation. The Respondent asserts that according to Article V § 5 of the 1976 Amended Ordinance: No ordinance or other enactment of the Tribe with respect to the acquisition, operation, or disposition of Tribal property shall be applicable to the Authority in its operations pursuant to this ordinance. The Respondent argues that the "irrevocable consent" in Article V § 2 of the 1976 amended Ordinance prevents the Oneida Business Committee from changing or amending this Ordinance. We found earlier that the term "irrevocable consent" as it appears in this Ordinance, applies to the sue and be sued clause, not the entire Oneida Tribal Housing Ordinance. Article V § 5 of the 1976 Ordinance does not prevent the Oneida Business Committee from changing or amending the Ordinance. The Respondent's argument cannot hold true because the language in the Ordinance contravenes the authority of the Oneida Nation as a sovereign government, which can and does make and amend its own laws and ordinances. In practice, the Oneida Business Committee took action in 1976 and adopted major amendments to the 1963 Ordinance. In 1985, the Oneida Business Committee amended the 1976 amended Ordinance, specifically Article VIII 1 § (f). Changing the venue for resolving disputes does not affect the acquisition, operation, or disposition of Tribal property. An Oneida Ordinance is a law that can be adopted and amended or rescinded by Oneida government. We find that Article V § 5 of the 1976 amended Oneida Tribal Housing Ordinance is not affected

7 O.N.R. 2 - 34

by the language amending Article VIII 1 § (f). The Oneida Business Committee acted within its authority in adopting Resolution 5-10-85-B, according to the powers of government delegated by the Oneida General Tribal Council under Article IV (h) & (i) of the Oneida Constitution. The Respondent argues that there is no method to enforce a Judgement order or a decision of the Oneida Appeals Commission and that the Oneida Appeals Commission cannot issue a warrant for someone that fails to appear in response to an order to appear. The Oneida trial court finds both these arguments to be inaccurate. Respondent further argues that Wisconsin Statute Section 806.245 sets forth requirements a tribal court must have in order for state courts to grant full faith and credit to tribal court decisions. The question of full faith and credit is not the issue to be decided here. Based upon federal and Oneida law, we conclude that any authority that the Oneida Housing Authority may have had to go outside the jurisdiction of the Oneida Nation to bring action against Oneidas in state court was stopped with the adoption of Resolution 5-10-85-B. C. Did the Administrative Procedures Act further restrict the authority of the Oneida Housing Authority to initiate cases in State court? The Oneida Nation created the Oneida Housing Authority as part of its internal structure of government, and thus is defined in the Oneida Administrative Procedures Act as an "agency" under definitions section III: "Agency". Any tribal entity, board commission, committee department, or officer authorized by the Oneida Tribe to propose ordinance/rules for adoption by the Oneida Business Committee or a decision maker for the contested cases. The term "Agency" shall not include the Oneida Business Committee or a tribal appeals body. The Oneida Housing Authority is a governmental "Agency" that operates under the authority of the Oneida Tribal Housing Ordinance. This Ordinance adopted in 1963 and amended by the Oneida Business Committee in 1976. The amended 1976 Ordinance was amended again in 1985, by the Oneida Business Committee. In 1991 the Oneida Administrative Procedures Act (OAPA) was passed which provided further requirements for processing cases through an internally regulated Appeals System, and directed all agencies or internal tribal entities to change their ordinances so they comply with the OAPA under XVII B, Repeal: All other Tribal laws, rules, or regulations which are inconsistent with this Act and are held subject to this Act are hereby repealed, but such shall not affect pending proceedings. All ordinances adopted previously shall be consistent with this Act. It also gave all agencies or tribal entities the authority to comply with the OAPA under XVII B, . . . Every agency or commission is granted authority to comply with the requirements of this Act. It further stated that all previously enacted laws which relate to tribal judicial proceedings are repealed. All three of the above quoted citations from the Oneida Administrative Procedures Act are clear directives that apply to the Oneida Housing Authority, as well as other agencies of the Oneida Nation. IV Conclusion Now we must decide what effect, if any, this Declaratory Ruling has on the cases at hand. We

7 O.N.R. 2 - 35

acknowledge that the 1976 Oneida Tribal Housing Ordinance did direct the Oneida Housing Authority to use County Courts until a Tribal Court was adopted. That directive was effectively changed with the 1985 amendment to the Housing Ordinance. Up until the time that the Petitioners requested a Declaratory Ruling on the issue of jurisdiction, the Oneida Housing Authority's use of County Courts was not challenged. Now that the Oneida trial court has drafted a Declaratory Ruling on the issue of jurisdiction, the Oneida Housing Authority can no longer go outside the jurisdiction of the Oneida Nation to bring suit in State (County) Court. The Declaratory Ruling in this matter has no affect on the past County Court decisions, and as a general rule decisions rendered by Wisconsin County Courts in that sovereign, cannot be appealed to the Oneida Appeals Commission which is a different sovereign. The County Courts' decision in both of the Petitioner's cases stands. V Decision The Oneida Appeals Commission trial court has reached a Declaratory Ruling in this matter. 1. The Oneida Business Committee has authority to pass laws regulating activities within its jurisdiction. 2. Resolution 5-10-85-B is a legal and binding amendment and replaces the language in Article VIII § 1 (f) of the Oneida Tribal Housing Ordinance adopted in 1976. 3. The 1985 amendment to the Oneida Tribal Housing Ordinance hereby stops the Oneida Housing Authority from going outside the Jurisdiction of the Oneida Nation for enforcement of evictions and contract violations of tenants and homebuyers from this day forth. 4. The 1985 amendment to Article VIII § 1 (f) of the Oneida Tribal Housing Ordinance transferred the jurisdiction to hear appeals of the Oneida Housing Authority final decisions on evictions and contract violations of a tenant or homebuyer from County Courts, to an internal tribal judicial body, known as the Oneida Appeals Commission. 5. Under the 1985 amendment to Article VIII § 1 (f) of the Oneida Tribal Housing Ordinance, which was created as part of the internal structure of Oneida government, County Courts do not have jurisdiction to hear final decisions on evictions and contract violations of a tenant or homebuyer. 6. The Oneida Administrative Procedures Act, as passed in 1991 by the Business Committee and the General Tribal Council, further directs the agencies of the tribe to file their disputes with an internal judicial Appeals Body, now known as the Oneida Appeals Commission.

7 O.N.R. 2 - 36

Trial Court Smitty's Painting and David Smith, owner Petitioner vs. Oneida Construction and Randy Jourdan Respondents

Docket No. 01-TC-013

Date: June 07, 2001 Motion to Postpone Hearing

This petition has come before the Oneida Appeals Commission, Judicial Officer, Leland Wigg-Ninham, presiding. I Background This is a postponement and request for a pre-trial hearing scheduled for July 5th, 2001, at 9:00A.M. on behalf of the Petitioner, Smitty's Painting and David Smith, owner. The Petitioner, and his attorney Charlene Sanders, respectfully request a postponement of the pre-hearing date in this matter because of a scheduling conflict of his attorney, Charlene Sanders, on the same date. Petitioner is requesting an alternate date of; July 12, 2001. IV. Decision The Petitioner's request is reasonable. The present due date for the Petitioner's pre-trial hearing is July 5th, 2001. The requested alternate date is granted. Pre-trial is now set for July 12, 2001, at 2:00P.M.

7 O.N.R. 2 - 37

Trial Court Oneida Paralegal Department, Petitioner v. Oneida Law Office, Respondent Motion to Dismiss Motion to Stay Pending Additional Briefs This case has come before the Oneida Appeals Commission Trial Court. Judicial Officers Stanley R. Webster, Anthony Benson Jr., Janice McLester, presiding. I Background This is a declaratory ruling action where the petitioner is seeking a ruling on the authority of the Oneida Law Office to require an employee to enter into a settlement agreement with the Oneida Tribe after the employee has received a judgement for reinstatement and/or back pay from a judicial body. The Respondent has filed a motion to dismiss, arguing that the Petitioner's request does not meet the definition for a rule/regulation for purposes of a declaratory ruling. In addition, the Respondent has requested that no order be entered until additional briefs have been submitted by additional parties. II Issues Has the criteria for dismissal been met by the Respondent's arguments? III Analysis The primary issue to this case is the authority of the Oneida Law Office to require settlement agreements for cases resolved by the Oneida judiciary. Part of the Respondent's argument in favor of its authority is based upon a memorandum from the Oneida Treasurer, who is listed as a witness in this case. A declaratory ruling is a judgement by the Oneida Appeals Commission which resolves an issue of law or clarifies the application of law under a particular set of fact. The ruling assigns rights and responsibilities under the law. A key question to this case is the validity of the Treasurer's memo and its applicability as an enforceable law, ordinance, rule, or regulation. This question can only be resolved after hearing testimony and reviewing the briefs of the parties and interested parties. As such, dismissal is not appropriate at this time.

Docket No. 01-TC-010 Date: June 14, 2001

7 O.N.R. 2 - 38

The parties, in a pre-trial hearing, have identified several interested parties from whom additional position briefs will be requested. These interested parties are the Human Resources Department, Oneida Accounting, Oneida Pay Roll, the Oneida Business Committee, and Senior Management. Under Oneida Appeals Commission procedures for a declaratory ruling, additional information and briefs from additional interested parties is required prior to resolution. IV Decision The motion to dismiss is denied. The motion to stay the final decision pending additional briefs is granted. The listed interested parties will have until July 6, 2001 to submit briefs on the issues raised by the parties. The hearing in this matter is set for July 10, 2001, to begin at 9:00 a.m.

7 O.N.R. 2 - 39

Trial Court Kheim T. Tran, M.D., Petitioner v. Oneida Tribe of Indians of WisconsinOneida Community Health Center, Respondent

Docket No. 01-TC-002

Date: June 14, 2001

Motion to Postpone Hearing This petition has come before the Oneida Appeals Commission for Review. Lead Judicial Officer Stanley R. Webster presiding.

Order The Respondent's motion to postpone the August 2, 2001 hearing due to the unavailability of a witness, is not opposed by the Petitioner. Therefore the hearing is rescheduled for August 16, 2001, at 9:00 AM. It is so ordered.

7 O.N.R. 2 - 40

Trial Court Celene Elm Petitioner vs. Management Review Committee Respondent Docket No. 01-TC-008

Date: June 26, 2001

Declaratory Judgment/Ruling This petition has come before the Oneida Appeals Commission Trial Court. Judicial Officers Stanley R. Webster, Mary Adams and Leland Ninham presiding. I Background On May 01, 2001, Celene Elm petitioned the Oneida Appeals Commission for a hearing. The petitioner requested a Declaratory Judgment to define the law or authority of the Management Review Committee. Petitioner Elm asserts she filed this petition at the direction of the Oneida Personnel Commission. The issue of whether or not the Management Review Committee is a legally existing committee was originally brought before the Oneida Personnel Commission at the April 18, 2001 hearing. The Oneida Personnel Commission found that this question would be more appropriately before the Oneida Appeals Commission. The Clerk notified the Respondent of Ms. Elm's petition and the Respondent filed a response on May 17, 2001. A hearing was scheduled before the Oneida trial court for May 31, 2001. Celene Elm appeared at the hearing and acted as her own advocate. Attorney Jennifer Carleton appeared at the hearing as counsel on behalf of the Respondent. II Issue The issue before the Oneida trial court is whether or not the request for a Declaratory Judgment was meant as a request for a Declaratory Ruling, is sufficient for consideration. III Analysis The Petitioner's opening statement informed the trial court of her request to the Oneida Personnel Commission for a Declaratory Judgment, but her request was denied. The Oneida Personnel Commission found the request for a Declaratory Judgment to define what law or authority the Management Review Committee has, belongs before the Oneida Appeals Commission. The Petitioner asserts this committee was created as an interim committee by the Oneida Business Committee according to continuing budget Resolution BC-09-24-97B. The Petitioner argues that the committee has no authority over wage and salary of personnel, and is not an entity under the Oneida Personnel Policies and Procedures, yet continues to make

7 O.N.R. 2 - 41

decisions on wages for personnel. The Petitioner further argues that the committee was interim until the budget was approved by the General Tribal Council, then it should have been disbanded. The Legislative Operating Committee recommended eliminating the Management Review Committee to the Oneida Business Committee on April 6, 2001, and the committee has since been eliminated. The Petitioner is asking the Oneida trial court to determine the validity of this committee during its operation as a committee. The Respondent argued that the petition was untimely, if the Petitioner had any concerns over the Management Review Committee, she should have challenged the committee's authority when the committee was created in 1997. In addition, the Petitioner cites no law or rule to explain how the existence of the committee violates the law. The Respondent argued that the Petitioner has no standing to challenge the action of the committee, because according to the Oneida Administrative Procedures Act, the Petitioner's complaint does not meet the requirements to ask for a Declaratory Judgment, or explain how Resolution BC-09-24-97B, was violated. The Respondent moved to dismiss the case. A recess was called for deliberation on the motion to dismiss. After reconvening the hearing, this court informed the parties of its decision to grant the motion to dismiss. This case was dismissed under the Oneida Appeals Commission Rules of Civil Procedure, Rule 14 (B)(4): Failure of the adverse party to establish a right to relief based on the facts and law presented; In addition, the request for Declaratory Judgment does not meet the requirements of IX (B) in the Oneida Administrative Procedures Act. The court reminded the parties that a verbal decision rendered at the hearing is not official until a written decision is rendered. Upon further deliberation, this court finds that the Petitioner, in requesting a Declaratory Judgment from the Oneida Appeals Commission, acted at the direction of the Oneida Personnel Commission. We find that the Petitioner's expressed concern is that the Management Review Committee made decisions concerning wages and salary, and claims that this committee is not listed in the Oneida Personnel Policies and Procedures, and is questioning this committee's authority to make such decision. This court further finds that the Petitioner, in requesting a Declaratory Judgment, does not challenge the validity of the law based upon conformity with the Oneida Constitution, or the law making authority of the legislative body to make the law, or adhere to the law making procedures. Rather, the Petitioner is challenging the application of law, Resolution BC-09-2497B, , and whether this resolution grants the Management Review Committee authority to make decisions concerning wages and salaries. The Petitioner's complaint qualifies s a request for a Declaratory Ruling, not a Judgment. During the trial, the Petitioner admitted that she did not understand the procedures for requesting a Declaratory Judgment, and that she was acting at the direction of the Oneida Personnel Commission. According to the Oneida Appeals Commission Rules of Civil Procedure, this court has discretion to liberally construe the pleadings.

7 O.N.R. 2 - 42

As such, we find that although the Petitioner did ask for a Declaratory Judgment, the elements of her request more closely resemble a request for a Declaratory Ruling. Nevertheless, the Petitioner's claim fails to meet the requirements for consideration under the Oneida Appeals Commission Rules of Civil Procedure, Rule 33 (B)(1)(2)(a)-(d): (B) Declaratory Rule Procedure (1) A Petitioner whose status, rights, duties, or other responsibilities under any Rule or Ordinance may petition the agency with enforcement authority over the Rule/Ordinance in question or the OAC trial court in order to settle the question raised. Priority of resolution forum shall lie with the agency if the agency has an established hearing body. (2) The petitioner shall file a petition for a declaratory ruling, which shall include, but not be limited to, (a) a complete copy of the Rule/Ordinance in question, (b) all relevant facts and circumstances related to the question raised, (c) one or more proposed interpretations of application, which may be in the alternative and need not be consistent with one another. (d) names and addresses of all persons or entities known to the petitioner to have an interest or knowledge in the Rule/Ordinance and its application. The criteria for requesting a Declaratory Ruling has not been met. The Petitioner provides a copy of Resolution BC-09-24-97B, which she claims is the law that provides the basis for establishing the Management Review Committee. Specifically, the Petitioner cites paragraph 5 of the Now Therefore Be It Resolved section of Resolution BC-09-24-97B as the basis for establishing the Management Review Committee. Review of paragraph 5: If the need for any items covered under the restraints become detrimental to the organization, justification must be reviewed by the General Managers and CFO. The language in paragraph 5 of the resolution makes no reference or gives no indication that a committee or a Management Review Committee should be formed. This language indicates review by the General Manager and CFO, but makes no mention of forming any type of committee. The Petitioner did not show a connection between the resolution and the Management Review Committee or a connection between the resolution to the committee's authority or the connection between the committee's authority to recommend salary or wage changes for personnel and the Petitioner. IV Decision The Respondent's motion to dismiss is granted. This matter is hearby dismissed. So ordered.

7 O.N.R. 2 - 43

Trial Court Division of Land Management Petitioner vs. Michael Thomas Respondent Foreclosure Decision This case has come before the Oneida Appeals Commission Trial Court. Judicial Officers Mary Adams, Carole Liggins and Marjorie Stevens presiding. I Background This is an original complaint by the Petitioner, Division of Land Management, seeking foreclosure of the residence of the Respondent Michael Thomas. The basis for the foreclosure is the failure of the Respondent to comply with the payment terms of a Dream Loan mortgage agreement between the Respondent and Petitioner for the property located at 3089 W. Mason Street, Green Bay Wisconsin, and located within the boundaries of the Oneida Reservation. The Petitioner has filed six demands for relief. The first is foreclosure of the mortgaged premises. The second is transfer title of the residential personal property at 3089 West Mason Street, Green Bay, Wisconsin to the Petitioner. The third is a claim for deficiency against the Respondent should the appraised value of the residence not cover the stated expenses. The fourth is that the Respondent be barred from all claim and right of equity of redemption in said premises, unless all outstanding debts are satisfied, within 30 days after the judgement is issued. The fifth is an order that the Respondent and all persons claiming under him be enjoined from committing waste or doing any act that may impair the value of the mortgaged premises from the date of the decision. The sixth is an order that the Respondent vacate the premises within 30 days after the Appeals Commission Judgement is issued, and notification to the Land Management staff when this occurs so the residence can be secured. II Issues Is foreclosure properly established as the remedy? III Analysis The Respondent Michael Thomas entered into a mortgage with the Petitioner in an original amount of $123,564.88. The Petitioner asserts failure on the part of the Respondent Thomas to fulfill payment obligations under the terms of the mortgage contract and seeks transfer of title to the Petitioner, Division of Land Management. The Division has stipulated a purchase price of

Docket No. 01-TC-011

Date: July 5, 2001

7 O.N.R. 2 - 44

the Tribal land in the amount $128,942.92. The Respondent did not appear today at the scheduled hearing. IV Decision It is found by this court that the Respondent Michael Thomas has breached the mortgage agreement entered into between the Respondent and the Petitioner Division of Land Management. As such, the remedy of foreclosure is duly available under the terms of the mortgage and the Oneida Real Property Law, Resolution 5-29-96-A. Title of the property subject to the mortgage shall be transferred to the Petitioner for the stipulated purchase price established by the Petitioner in the amount of $ 128,942.92 in order to satisfy the claim held by the Division of Land Management. The Respondent Thomas is ordered to vacate the property within 30 days of the date on this decision and is enjoined from committing waste or damage to the property. Further, the Petitioner's claim for deficiency is granted.

7 O.N.R. 2 - 45

Trial Court Oneida Compliance Division, Paralegal Department Petitioner v. Oneida Law Office Respondent

Docket No. 01-TC-010

Date: July 5, 2001 Motion For Extension to Submit Brief

This petition has come before the Oneida Appeals Commission Trial Court. Lead Judicial Officer Stanley R. Webster presiding. Extension Order Judy Cornelius on behalf of the Oneida Business Committee filed a motion to extend the time for submitting their brief due to pre-approved vacation and personal schedules of the members of the Oneida Business Committee. The request is reasonable and is granted. The granting of the extension means that the date of the hearing is also changed. The new hearing date is July 26, 2001, at 1:30 PM. So Ordered.

7 O.N.R. 2 - 46

Trial Court

Division of Land Management Petitioner vs. Stephanie E. Hull Respondent Judgement Order

Docket No. 01-TC-015

Date: July 9, 2001

This case has come before the Oneida Appeals Commission Trial Court. Judicial Officers Mary Adams, Carole Liggins and Leland Wigg-Ninham presiding. I Background This is an original complaint by the Petitioner, Division of Land Management. The Petitioner seeks a money judgment to insure payment of a Rental Lease Agreement between Stephanie Hull and the Oneida Tribe of Indians of Wisconsin-Division of Land Management. The basis for the claim is based on the failure of the Respondent to comply with the contractual obligations arising from the terms of a Rental Lease Agreement between the Respondent and Petitioner for the property located at 2777 West Mason St., Green Bay, WI within the boundaries of the Oneida Reservation. The Petitioner was evicted on November 11, 2000, leaving rental arrears for August 2000, September 2000, October 2000, and partial payment for the month of November 2000. The Petitioner has filed a demand for relief.

II Issues Is a claim for money judgment properly established as the remedy? III Analysis The Respondent Stephanie Hull entered into a Rental Lease Agreement with the Petitioner in an original amount of $325.00 per month. The Petitioner asserts failure on the part of the Respondent Ms. Hull, to fulfill contractual obligations under the terms of the rental lease agreement. The Division of Land Management has stipulated rental arrears, late payments and attorney cost in the amount $1,242.59, which includes subtracting the security deposit of $350.00. The Respondent did not appear today at the scheduled hearing.

7 O.N.R. 2 - 47

IV Decision It is found by this court that the Respondent Stephanie Hull has breached the rental lease agreement entered into between the Respondent and the Petitioner, Division of Land Management. As such, the remedy of a money claim is duly available under the terms of the rental agreement and the Oneida Real Property Law, Resolution 5-29-96-A. Therefore, a money judgment in the amount of $1,242.59 is so ordered to satisfy the claim held by the Division of Land Management for rental arrears, late payments and attorney cost established by the Petitioner. The Petitioner's motion for a default judgment is granted.

7 O.N.R. 2 - 48

Trial Court

Division of Land Management Petitioner vs. Jolene Parker Respondent Judgement Order

Docket No. 01-TC-014

Date: July 09, 2001

This case has come before the Oneida Appeals Commission Trial Court. Judicial Officers Mary Adams, Carole Liggins and Leland Wigg-Ninham presiding. I Background This is an original complaint by the Petitioner, Division of Land Management. The Petitioner seeks a money judgment to insure payment of a Rental Lease Agreement between Jolene Parker and the Oneida Tribe of Indians of Wisconsin-Division of Land Management. The basis for the claim is based on the failure of the Respondent to comply with the contractual obligations arising from the terms of a Rental Lease Agreement between the Respondent and Petitioner for the property located at 1237 Western Meadows, Green Bay WI., within the boundaries of the Oneida Reservation. The Petitioner was evicted on November 11, 1999, leaving rental arrears for June-October 1999, and bills in the amount of $2,202.06. The Petitioner has filed a demand for relief. II Issues Is a claim for money judgment properly established as the remedy? III Analysis The Respondent Jolene Parker entered into a Rental Lease Agreement with the Petitioner in an original amount of $400.00 per month. The Petitioner asserts failure on the part of the Respondent Ms. Parker, to fulfill contractual obligations under the terms of the rental lease agreement. The Division of Land Management has stipulated rental arrears, late payments and attorney cost in the amount $2,700.06, which includes subtracting the security deposit of $50.00. The Respondent did not appear today at the scheduled hearing. IV Decision It is found by this court that the Respondent, Jolene Parker, has breached the rental lease agreement entered into between the Respondent and the Petitioner, Division of Land

7 O.N.R. 2 - 49

Management. As such, the remedy of a money claim is duly available under the terms of the rental agreement and the Oneida Real Property Law, Resolution 5-29-96-A. Therefore, a money judgment in the amount of $2,700.06 is so ordered to satisfy the claim held by the Division of Land Management for rental arrears, late payments and attorney cost established by the Petitioner. The Petitioner's motion for a default judgment is granted.

7 O.N.R. 2 - 50

Trial Court Smitty's Painting Petitioner vs. Oneida Construction Respondent

Docket No. 01-TC-013

Date: July 6th, 2001

Extension Order This petition has come before the Oneida Appeals Commission, Appellate Court. Lead judicial Officer Leland Wigg-Ninham, presiding. Background Respondent Oneida Construction has filed a motion for extension of brief due date which is July 6th, 2001. The Respondent states a conflicting schedule with the parties involved as the reason for his motion for extension. Decision In this particular instance, the extension will be granted. The new filing date is July 23rd, 2001. Since this new filing date is past the current hearing date of July 12th, 2001, the new hearing date will be July 24th 2001, at 2:00 P.M. It is so ordered.

7 O.N.R. 2 - 51

Trial Court In the Matter of the Estate of James S. Benson, Docket No. 01-TC-009 Date: July 18, 2001

Probate Decision This case has come before the Oneida Appeals Commission Trial Court. Judicial Officers Winnifred L. Thomas, Anthony Benson, Jr., Carole Liggins, presiding. I Background This matters involved the probate of land interests and an Individual Indian Monies (IIM) account owned by the deceased, James S. Benson. The decedent died on October 2, 1997. The decedent, not a member of the Oneida Tribe of Indians of Wisconsin, was married to Ramona King-Wilson, who died in 1986. Mrs. King-Wilson was a tribal member, and it is from her estate that Mr. Benson received a 1/30 interest in property located within the boundaries of the Oneida Reservation. The property is described as Lot 8, Section 30, Twp. 24 N, Range 19 E, Outagamie County, Wisconsin and consists of approximately 25.6 acres, known as the Kate Johnson Allotment. II Issues Has the petition for probate established designated heirs and proper disbursements under the Oneida Real Property Law?

III Analysis The decedent died without children. Listed heirs in the petition for probate are the decedent's eight brothers and two wives of prior deceased brothers. There is no controversy or dispute with regard to designated heirs. The heirs are Harold Benson, Ronald Benson, Bruce Benson, David Benson, Jerome Benson, Mike Benson, Maurice Benson, Milo Benson, Rose Ann Richter (wife to Wallace Benson, deceased), and Doris Benson (wife to Gordon Benson, deceased). Under the Oneida Real Property Law, when land to be inherited is listed as less than two percent (2%) of the full lot or incapable of generating more than $100.00 in any year in the five years since the owner's death, ownership of the land transfers to the Oneida Tribe, provided that just and fair compensation is paid to the heirs for their interest. The Division of Land Management has based the value of the full lot on assessed values for an adjacent lot. Granting even disbursement of funds, each heir will receive 1/300 of $26,000.00, or

7 O.N.R. 2 - 52

$87.67, for their interest in the real property. No objection or dispute has been listed with this amount, though the record lacks an affidavit or copies of notice to the heirs of this determination. This court approves this disbursement and transfer of title to the Oneida Tribe, provided that such notice and affidavit is submitted by the petitioner prior to disbursement. Also included in assets were funds in an IIM held by the decedent's deceased wife. The total amount is listed as less than $100. This fund will be transferred to the petitioner, for redistribution to individual heirs in equal shares. Also missing from the primary record is a copy of the minutes of the Land Commission which approved the filing of this petition. A copy is required for the file prior to implementation of this decision. IV Decision The designation of heirs and disbursement of funds for the real property and IIM account are approved in accordance with the petition filed by the petitioner, Division of Land Management. Prior to disbursement and implementation, the deficiencies in the record listed by this decision must be satisfied by the petitioner.

7 O.N.R. 2 - 53

Trial Court Alan R. King, Petitioner v. Oneida Bingo & Casino David Webster, Amy Gutierrez, Respondent Motion to Dismiss This case has come before the Oneida Appeals Commission Trial Court. Judicial Officers Mary Adams, Carole Liggins and Kathy Hughes, presiding. I Background On July 2, 2001, Alan R. King, Petitioner, filed an original complaint with the Oneida Appeals Commission requesting an injunction against the Oneida Bingo & Casino. The Petitioner's complaint consisted of five (5) statements, asserting: (1) Petitioner is an adult Native American who resides at Green Bay, Brown County, WI.; (2) That on July 28, 2001 there is a professional boxing show scheduled at the Oneida Bingo & Casino; (3) That the Petitioner holds a permit from the State of Wisconsin to put on professional boxing shows through a corporation known as Little Chief Ltd.; (4) That the Petitioner should have been offered the first opportunity to put on the July 28, 2001 boxing match under Oneida Nation laws requiring that preferences be given to Native American businesses; and (5) That unless an injunction is issued the petitioner will suffer irreparable injury. A hearing was scheduled for July 9, 2001. On July 6, 2001 the Respondent filed a Motion to Dismiss, based on the Oneida Appeals Commission's Rules of Civil Procedure, Rule 31 (E) 1 & 2. The Respondent included Rules of Civil Procedure, Rule 14 Dismissal of Actions, (B) Involuntary Dismissal (2,4 & 5). II Issues Has the Petitioner established grounds for an injunction under the Rules of Civil Procedure? Has the Respondent established grounds for a dismissal under the Rules of Civil Procedure? III Analysis Under Oneida Appeals Commission Rules of Civil Procedure, Rule 14 (B) the grounds for a dismissal state: Involuntary Dismissal: A party against whom a claim has been made may move the trial court to dismiss the claim of the adverse party upon any of the following grounds, to include but not be limited to: 2) Failure of the adverse party to comply substantially with these rules;

Docket No. 01-TC-016 Date: July 19, 2001

7 O.N.R. 2 - 54

4) Failure of the adverse party to establish a right to relief based on the facts and law presented; 5) Failure of the adverse party to prove a claim, for which dismissal is the proper relief afforded to the moving party. The Respondent argues that the Petitioner, Allen King, failed to clearly indicate which laws were violated and failed to describe the manner in which Oneida rules, laws and ordinances, and statutes have been circumvented. The Petitioner claims that the Oneida Indian Preference laws have been violated in that since he is Oneida and owns a business, he should have been given the first opportunity to bid on the boxing event scheduled for July 28, 2001, at the Oneida Bingo & Casino. Further, that the Oneida Indian Preference laws require Oneida preferences in awarding contracts. The Petitioner alleges that a number of laws have been violated by the Respondent. However, the Petitioner does not provide this court with any exact instances in which particular laws have been violated. Nor does the Petitioner describe exactly how the act would produce irreparable injury. The Petitioner has stated that Oneida Law requires that preferences be given to Oneida owned businesses when bids are accepted by the Oneida Bingo & Casino, but fails to provide any evidence that such preferences were not given or considered by the Respondent. When filling a complaint, it is important to establish the foundation of the complaint. The alleged violation must be supported by facts in the statements of the initial complaint. The Petitioner failed to establish facts sufficient to lead this court to believe that Oneida Law has been violated by the Respondent. The Petitioner did not refute the assertion that his business is not on the Oneida Tribe's vendor list, which is the compilation of all businesses which are licensed to do business with the Oneida Tribe and which are marked as subject to Indian Preference benefits. The Petitioner did not substantiate his own assertions that he is licensed to promote and hold boxing matches, or counter the principle that Tribally owned businesses such as the Casino need not solicit bids for services that it provides for itself. Therefore, this court finds that the Initial Request for an injunction as submitted by the Petitioner is incomplete and insufficient. It does not allege facts sufficient to establish grounds for his claim. Furthermore, it does not show any loss, harm, or defect in procedure that would allow a cause of action. The motion for dismissal is hereby granted, without prejudice to the Petitioner. IV Decision The Respondent's motion to dismiss is granted.

7 O.N.R. 2 - 55

Trial Court Oneida Paralegal Department, Petitioner v. Oneida Law Office, Respondent Motion for Postponement This case has come before the Oneida Appeals Commission Trial Court. Chief Judicial Officer Kirby Metoxen, presiding. I Background The Petitioner has filed a motion to postpone a hearing scheduled for July 26, 2001. The basis for this request is to grant the Petitioner an opportunity to prepare a written response to a motion to dismiss filed by the Respondent on July 16, 2001. Under Oneida Appeals Commission Rules of Civil Procedure, a party has fifteen days to submit a response to any motion. II Decision While the hearing currently scheduled could take place without consideration of the motion to dismiss, it is the opinion of the court that a postponement is reasonable. The hearing is rescheduled for August 9, 2001, to commence at 9:00 a.m.

Docket No. 01-TC-010 Date: July 23, 2001

7 O.N.R. 2 - 56

Trial Court Smitty's Painting Petitioner Docket No. 01-TC-013 vs July 27, 2001 Oneida Construction Respondent Order This complaint has come before the Oneida Appeals Commission Trial Court, Judicial Officers Leland Wigg-Ninham, Mary Adams and Winnifred L. Thomas presiding. Background Respondent Oneida Construction requested a second extension at the hearing on July 24th, 2001. The reason given is that the General Manager requires more time to conduct the necessary administrative and legal actions to address this matter. In addition, the Respondent brought forth the issue of conflict of interest involved with the Attorney, Charlene Sanders, representing the Petitioner. The Respondent questions the authority of an attorney employed by the Oneida Tribe representing a tribal member no employed by the Oneida Tribe. The Petitioner objects to both issues and argues that the request for extension was no filed timely and that there is no conflict of interest in her representing a tribal member. Summary Due to the questions raised at the hearing, the Court feels that more information is needed to clarify the issues. The Respondent has not filed a proper brief answering the questions posed by the Petitioner in his original complaint. The Court, using its discretion, is requiring that a brief be filed in the proper format to include answers to the issues in the original complaint and all issues covered in oral discussion. The brief must also include the Respondent's witness list and potential discovery material. The Petitioner will then have the right to rebut the Respondent's brief, since new issues have been raised by the Respondent. Order The Respondent will file a brief by the end of the day on July 31st, 2001. The Petitioner will file a rebuttal of the Respondent's brief by the end of the day on August 7th, 2001. New hearing date is set for August 14th, 2001 at 9:00 am.

7 O.N.R. 2 - 57

Trial Court Khiem T Tran Petitioner vs. Oneida Tribe of Indians of Wisconsin Oneida Community Health Center Respondent Docket No. 01-TC-002

Date: August 2, 2001

Motion Hearing Order This petition has come before the Oneida Appeals Commission for Hearing. Judicial Officer Stanley R. Webster presiding. The Respondent's motion for Summary Judgment, is denied because there are disputed issues of material fact. The Respondent's motion to quash Petitioner's response to the motion for summary judgment for being one day late is denied as harmless error. Petitioner's motion for discovery; for Dr. Mardan to submit his resume at time of hire to opposing counsel, is so ordered.

7 O.N.R. 2 - 58

Trial Court Denow, Gary, Petitioner vs Oneida Tribe of Indians of WI, HRD Benefits and Crawford Insurance, Respondent Motion for Extension This motion has come before the Oneida Appeals Commission Trial Court, Judicial Officer Mary Adams presiding. I Background The Petitioner filed a motion requesting a fifteen (15) day extension to perfect his complaint. The Petitioner retained Attorney Thomas O. Schultz for legal representation and therefore seeks additional time to perfect his complaint. The basis for this request is to grant the Petitioner an opportunity for the attorney to prepare a proper brief. II Decision The Court feels that the motion for a fifteen (15) day extension is not unreasonable. The Petitioner's brief is due at the Oneida Appeals Commission, with copies to the Respondent(s), by 4:30 P.M., August 24, 2001.

Docket No. 01-TC-017 August 14, 2001

7 O.N.R. 2 - 59

Trial Court Oneida Division of Land Management, Petitioner v. Oneida Housing Development, Respondent Stipulation and Motion to Dismiss This case has come before the Oneida Appeals Commission Trial Court. Judicial Officer Carole Liggins, presiding. I Background This case originated as a request for injunctive relief for the Petitioner in order to force the Respondent to comply with Oneida construction ordinances. The parties were granted six months to generate forms and a process for compliance prior to the commencement of any building construction by the Respondent. The parties submitted a stipulation in which it is asserted that these forms have been generated. The parties now ask that the case be dismissed, with prejudice. II Decision The parties reached a mutually agreeable settlement to the present dispute and entered a joint motion to dismiss. The motion is granted and this case is closed.

Docket No. 00-TC-027 Date: August 16, 2001

7 O.N.R. 2 - 60

Trial Court Khiem T. Tran, M.D., Petitioner v. Oneida Health Center, Respondent Motion for Subpoena This case has come before the Oneida Appeals Commission Trial Court. Judicial Officers Stanley R. Webster, Anthony Benson, Jr., Kathy Hughes, presiding. I Background The Petitioner has requested that a subpoena be issued for the appearance of Dr. Ali Mardan, who is employed by the Respondent. Within the context of a hearing held on August 2, 2001, a request for the submission of Dr. Mardan's resume was submitted and approved by this court. Prior attempts to receive documents and compel the appearance of Dr. Mardan have been unsuccessful. II Decision As a general rule, subpoena are only issued after a showing that voluntary appearance of a witness is unlikely. Dr. Mardan has established himself as an uncooperative witness and he is hereby ordered by this court to appear as witness in this case on September 28, 2001. His time of arrival will be 9:00 a.m. In addition, the requested resume shall be filed by the Respondent with this court and the Petitioner as part of discovery by September 20, 2001.

Docket No. 01-TC-002 Date: August 29, 2001

7 O.N.R. 2 - 61

Trial Court Division of Land Management, Petitioner vs. Philip Jordan, Respondent Decision This case has come before the Oneida Appeals Commission Trial Court. Judicial Officers Mary Adams, Anthony Benson and Janice McLester presiding. I Background This is an original complaint by the Petitioner, Division of Land Management, seeking a claim of money against the Respondent Philip Jordan. The basis for the money judgement is the failure of the Respondent to comply with the contractual obligations arising from a Rental Lease Agreement between the Respondent and Petitioner for a rental unit located at 3334 West Mason Street, Green Bay, WI., which is located within the boundaries of the Oneida Reservation. The Petitioner has filed a demand for a money judgement relief. The Respondent Philip Jordan entered into a Rental Lease Agreement with the Petitioner on January 1, 2000 for a home at 3334 W. Mason Street, Green Bay, Wisconsin, as the legal guardian of the Cerise Slove children. The Slove children were removed from the home on October 10, 2000. The Petitioner provided three monthly notices of default to the Respondent. The lease was terminated and the Respondent was evicted on January 17, 2001, leaving a rental arrearage amounting to $1,207.60. II Issues Is a money judgement properly established as the remedy? III Analysis The Respondent Philip Jordan entered into a Rental Lease Agreement with the Petitioner. First, the Addendum to Rental Agreement (1/10/00) stipulates, "Should guardianship change due to the final court order, current guardian will vacate the residence within forty eight (48) hours from the date of court order." A change in guardianship was effective October 10, 2000, therefore the Respondent had no other alternative but to vacate the premises. Secondly, the Petitioner asserts failure on the part of the Respondent to fulfill rental payment obligations under the terms of the Rental Agreement. The Petitioner provided three monthly notices of default. The Respondent did not appear today at the scheduled hearing. Date: September 20, 2001

Docket No. 01-TC-019

7 O.N.R. 2 - 62

IV Decision It is found by this court that the Respondent Philip Jordan has breached the Rental Agreement entered into between the Respondent and the Petitioner, Division of Land Management. As such, the remedy of a money judgement is duly available under the terms of the Rental Agreement and the Oneida Real Property Law, Resolution 5-29-96-A. The Petitioner request the amount of $1,707.60 in arrears and includes a $500.00 Attorney fee, in order to satisfy the money claim held by the Division of Land Management. The court's record shows notification was mailed to both the Petitioner and the Respondent, the Respondent did not appear, therefore a default judgement is entered in favor of the Petitioner. The Petitioner's claim for deficiency is granted in the amount of $1,707.60.

7 O.N.R. 2 - 63

Trial Court Kheim T. Tran, M. D. Petitioner vs. Oneida Tribe of Indians of Wisconsin, and Oneida Community Health Center Respondent Voluntary Dismissal This petition has come before the Oneida Appeals Commission for review. Judicial Officers Stanley R. Webster, Anthony Benson and Kathy Hughes presiding. I Background This case filed on January 5, 2001, and was originally based upon three claims. The first was breach of contract. The second was due process under the Indian Civil Rights Act, (1968). The third was based on tortious interference. At the prehearing conference we found that tortious interference without a third party fails and will not be an issue in the case. At the pretrial conference, the parties agreed to narrow down the issues to be argued to the breech of contract concerning the Employment Agreement and issues related to claims under the Indian Civil Rights Act, (1968). The Petitioner entered into a written Employment Agreement with the Oneida Tribe of Indians of Wisconsin, as a physician for the Oneida Community Health Center from September 1, 1999 to September 30, 2002. In October 2000, the Oneida Health Center terminated the Petitioner's contract because of information received that the Petitioner's application for privileges at Bellin Hospital in Green Bay had been denied. The Petitioner has filed a motion for voluntary dismissal and order of dismissal. The Respondent does not object to the entry of the order as requested and has indicated that a tentative settlement has been reached between the parties. II Issue Have grounds for dismissal been established by the parties? III Analysis Rule 14 (A)1, of the Oneida Appeals Commission Rules of Civil Procedure provides: A party may move the trial court to dismiss that party's claim and the trial court shall do so with or without prejudice as is just and proper given the stage of the proceedings.

Docket No. 01-TC-002

Date: September 21, 2001

7 O.N.R. 2 - 64

The Petitioner has asked that all claims presented before this court be dismissed with the exception of claims for emotional distress, humiliation and loss of reputation. These additional claims have already been disregarded in accordance with the parties' agreement in pre-trial hearings. Dismissal is available and appropriate given the request and the possible settlement. IV Decision The voluntary dismissal request of the Petitioner is granted. All claims and issues raised by the parties are dismissed without prejudice in accordance with the Appeals Commission Rules of Civil Procedure.

7 O.N.R. 2 - 65

Trial Court David Webster, Denise Vigue, Amy Gutierrez, Jennifer Van Bellinger, Petitioners v. Oneida Gaming Commission, Respondent

Docket No. 01-TC-023

Date: September 27, 2001

Motion for Stay of Action Motion for Temporary Restraining Order This case has come before the Oneida Appeals Commission Trial Court. Judicial Officers Stanley R. Webster, Mary Adams, Leland Wigg-Ninham, presiding. I Background The Petitioners have filed a joint action in an attempt to reverse a decision by the Initial Review Body (IRB) of the Respondent Gaming Commission. The IRB has issued letters of suspension for the gaming licenses of the Petitioners based upon information from an investigative report from an independent investigative company, API. The Petitioners assert that they maintain a right to appeal this suspension under the Oneida Comprehensive Gaming Ordinance, Article XVI(10). The Petitioners raise several arguments regarding the process by which their licenses were suspended pending an investigation and seek reversal of this decision. II Issues Have the Petitioners established grounds for a temporary restraining order against their gaming license suspension? III Analysis This matter was raised by the Oneida Business Committee on September 24, 2001, as a request for a temporary restraining order against the issuance of the expected letters of suspension. This request was denied for several reasons. First, the letters had not been issued. Second, the grounds for an injunction were not found to have been met by the Business Committee. Finally, it was pointed out that the employees for whom the Business Committee filed their motion, retained rights of redress through a hearing before the Oneida Gaming Commission. The Petitioners in this case have presented similar claims and their arguments suffer from similar

7 O.N.R. 2 - 66

flaws. The Petitioners have received notice of suspension of their gaming licenses from the IRB of the Oneida Gaming Commission. Procedurally, the next step to contest this decision is for the Petitioners to present their case to the Oneida Gaming Commission for a hearing before that entity's original hearing body. The Petitioners' arguments related to due process, policy and procedure violations, breaches of confidentiality requirements, and arbitrary decisions, are all available for review and presentable to the Oneida Gaming Commission initially. The Oneida Gaming Commission has not rendered a final decision, and the appellate process in accordance with the Gaming Ordinance, Article XVI, has not yet been properly invoked. The decisions of the Oneida Gaming Commission are subject to appellate review, but only after a hearing has occurred and a final decision is rendered. All of the Petitioners' arguments are available at original hearing level, and will be subject to additional review if raised and argued at the original hearing body level. IV Decision The Petitioners' motion for a stay of action and a temporary restraining order is hereby denied.

7 O.N.R. 2 - 67

Trial Court Oneida Division of Land Management, Petitioner v. Laura Hill, Timothy Hill, Respondents Decision This case has come before the Oneida Appeals Commission Trial Court. Judicial Officers Winnifred L. Thomas, Mary Adams, Janice McLester, presiding. I Background This complaint from the Petitioner, Land Management, is seeking damages in the form of unpaid rental payments from the Respondents. The Petitioner additionally seeks reimbursement for attorney's fees in the preparation of this complaint. The rental agreement existed for a home located at 3016 Freedom Road, Oneida WI, 54155. Respondent Tim Hill attempted to have his name removed from the lease and Laura Hill moved out of the residence in April of 2001 and had not paid rent for the residence from January of 2001. II Issues Has the Petitioner established a right to relief for rental arrears and attorney's fees?

Docket No. 01-TC-012 Date: October 1, 2001

III Analysis The rental contract between the parties is signed by the parties and dated from November 12, 1998. The term of the lease ran from May 1 to April 30. Mr. Hill asked to have his name removed from the rental contract in August of 1999. The effective date of this removal is listed through a memorandum from the Petitioner as August 17, 1999. However, as is pointed out in this memorandum, without formal notice of divorce and division of debt, Mr. Hill was not specifically removed from debt liability for this agreement. Mrs. Hill stopped making rental payments in January of 2001. Notices of non payment were sent to Mrs. Hill each month until this case was filed in April of 2001. A prior agreement between Mrs. Hill and the Petitioner had been signed in November of 2000 in order to address other non payment problems between the parties.

7 O.N.R. 2 - 68

It is the finding of this court that the Respondents have failed to make rental payments in accordance with a signed rental agreement between the parties. The Respondents are found to be in arrears for January through April 10, 2001 in rental payments. The Respondents are responsible and liable for repayment of rental payments not made, plus attorney's fees and costs in accordance with the rental agreement. IV Decision Judgment is made in favor of the Petitioner. The Respondents are found to owe the Petitioner $2,003.35. This amount is based upon back rent, repair costs, and attorney's fees provided for in the rental agreement. The Respondents have 60 days from receipt of this decision to satisfy judgment or enter into a payment plan negotiated with the parties in order to satisfy this judgment.

7 O.N.R. 2 - 69

Trial Court Rita Lara Mary C. Kestell, Petitioners v. Oneida Human Resources Department Oneida Gaming Management, Respondents Decision upon Remand This case has come before the Oneida Appeals Commission Trial Court. Judicial Officers Carole Liggins, Kirby Metoxen, Marjorie Stevens, presiding. I Background This is an employment original complaint in which the Petitioners have alleged sex discrimination and improper hiring practices by the Respondents. Both Petitioners applied and were interviewed for the position of Table Games Director, though the position went to another person, Mr. Frank Cornelius. This court rendered judgement in favor of the Respondent on November 9, 2000, finding that the Respondent had reasonably used a table of equivalencies (Table) to admit Mr. Cornelius into the interview pool for this position. Upon appeal, the appellate court remanded the case to the trial court to rehear and reconsider the case based upon issues raised by the Petitioners but which were not found to have been addressed by the trial court final decision. After seeking clarification of the issues unresolved according to the opinion of the appellate court, it was determined by this trial court to issue a decision based upon the clarification, in conjunction with the original decision issued on November 9, 2000. Each additional issue identified by the appellate court will be reviewed and analyzed based upon the testimony in the hearings and the record presented by the parties. In addition, the appellate court considered the findings of fact and conclusions of law within the original final decision to be inadequate, and additional information shall be presented. II Issues 1. Was the screening process for the position utilized in accordance with the Oneida Personnel Policies and Procedures (Blue Book), granting the Petitioners fair and equal treatment. 2. Given that the table of equivalencies is not found in the Blue Book, were the Petitioners given notice that the selection process would include use of the Table, and was such notice necessary? III Analysis The Petitioners assert in their complaint and arguments that the screening process established in the Blue Book was not followed by the Respondents in determining the applicant pool for the

Docket No. 00-TC-010 Date: October 2, 2001

7 O.N.R. 2 - 70

position of Table Games Director. They also assert that procedural irregularities in the interview process existed and resulted in the selection of an unqualified person for the position, to their detriment. The Respondents, in both briefs and testimony, went into some detail as the screening process and job description development in this case. The primary factual issue raised by the Petitioners is the use of the Table to expand the pool of job applicants. The Petitioners contend that G.T.C. Resolution 8-8-94-A and the pool expansion language of that Resolution should have prevented the choice for the position from being in the applicant pool. This Resolution created a final paragraph for all job descriptions, and said in part that if none of the applicants for a position met educational requirements, applicants who did not meet these requirements would be permitted to interview for the position if they had comparable education and experience and were able to submit an education plan and time table for its completion. The job description, as developed by the Respondent, included job requirement language that allowed a person without a bachelor's degree the opportunity to develop an educational career plan. Included in evidence packets were job descriptions which did not have this allowance. It was determined, in advance by the Area Manager, that the applicant pool for this position be as expansive as reasonable. The first question of clarification defined by the appellate court was related to the fairness of the process. Fairness is related to equality of treatment. It is the Petitioners' position that they were treated unfairly because the application pool was expanded to include applicants who did not have the same educational qualifications of the Petitioners. The Petitioners maintain the position that they were treated unfairly based upon their gender, presuming that because a less educated man received the position, that the Respondents acted unfairly. However, this assertion by the Petitioners is without foundation and never addresses the basic arguments first presented by the Respondents. The Petitioners rely upon the Resolution and insist that since some of the applicants met educational requirements, no applicants should have been interviewed unless they met these requirements as well. However, this argument ignores two basic facts. The first fact ignored is that the Resolution was rescinded in 1996. This makes the Resolution and its provisions generally unenforceable as a matter of law. It is only through a theory of equity that this final paragraph is even remotely enforceable. Under this theory, the Petitioners present an argument that despite the repeal of the Resolution, the continued existence of the paragraph created a reasonable reliance upon the provisions of the paragraph. The argument is one based on equity and fair treatment. The first issue raised by the appellate court is also one of equity, questioning whether or not the screening process was clearly established and if the Petitioners were treated fairly and equally. A

7 O.N.R. 2 - 71

clearly established screening process is a finding of fact. It is the finding of this court that the screening process is clearly established, and was followed in this case. The testimony of employees of HRD and Gaming Management detailed the decision to post the position. A need to fill the position of Table Games Director was identified by the Respondent. The Area Manager for the position worked with members of HRD in the development and posting of the job description, and detailed the job requirements for that position. The only job requirement truly at issue in this case is that of a bachelor's degree. In this case, the Petitioners both hold degrees and the person selected by the Respondents to fill the position does not. In the original opinion of this court, there was a dissenting opinion which was persuaded by the Petitioners' arguments and considered a requirement to be just that, a requirement. It is the argument of the Petitioners that anyone without a degree is not qualified for the position and therefore should not have been permitted to interview. It is the Petitioners' argument that they were treated unfairly. This argument, however, does not consider the basic fact that a college degree for this position was not a prerequisite. The job description specifically permitted the development of an education plan in lieu of a degree. The degree, therefore, was not a requirement for the job in the sense that it must have been acquired prior to commencement in the position. Because an educational plan was permissible under the terms of the job description, the Respondents chose to implement the Table of Equivalencies (Table) to determine who was qualified to interview for the position. This decision was made before the job was posted and before any applicants were reviewed. The Petitioners' claim that the screening process was flawed or somehow unfair to them lacks credible evidence. When the Petitioners originally complained of the selection, the Respondents reviewed the complaint and supplied the Petitioners with a complete explanation of the point totals for the applicants who were interviewed. Interviews take place with members of the Personnel Commission, an officer of HRD, and the supervisor or Area Manager for the position. Questions are asked of the applicant, and each interviewer assesses points for answers. Some of these points are objective and not discretionary, such as acquiring points for tribal membership or veteran status. Others are discretionary, such as answers to goal oriented questions and questions related to education and experience. The Respondents, before any case was presented to this Commission, provided a detailed explanation of the screening process and point calculation for the person selected to fill the Table Games Director position. The job description development for a position is clearly established and was followed in this case. The screening process for applicants was clearly established and followed by the Respondents in this case. The Petitioners maintain their argument for gender discrimination by listing the educational

7 O.N.R. 2 - 72

qualifications of all known applicants. However, this argument does not address the basic fact that qualifications other than a degree were permitted in the applicant interview pool. The Petitioners conclude that because of their education and experience, it was impossible for someone without that education or experience to score higher than them in the interview process. The Petitioners therefore conclude that because two men scored higher than they did, that they must have been discriminated against. This argument is based purely on assumption. As was stated in a memo from HRD to the Petitioners, and restated in testimony, there are a large number of factors in scoring an applicant in the interview. Education and experience are only a part of it. In getting to the interview, the Petitioners suffered no special harm by the inclusion of other applicants. Applications were reviewed anonymously, based solely upon resumes and listed qualifications. For purposes of screening applicants, those applicants without a degree were put on more equivalent footing with the Petitioners through use of the Table. This is not a case of exclusion of the Petitioners based on gender, but of inclusion of other applicants based upon experience. Even without consideration of the final paragraph created by the now repealed Resolution 8-8-94-A, the job description created the opportunity for use of the Table. The Petitioners received an interview, as did others. The inclusion of these others who might not have had a degree at the time of their application is not unfair or unequal treatment of the Petitioners. They were not excluded from anything. They were qualified for an interview but scored less points in the interview process. The second primary issue raised by the appellate court for consideration on remand is whether or not the use of the Table was proper and if notice of use of the Table was necessary. The Petitioners argued that because the Table was not part of the Personnel Policies and Procedures, it could not be used or be considered legally enforceable. The primary flaw with the Petitioners' argument is based on general principles of statutory interpretation established by the Appeals Commission. That principle is one of permissible silence, meaning that when a law is silent on an issue, action is generally permitted. The law of the Personnel Policies and Procedures permits the development of a job description and screening of applicants. The exact process for how this is to be done is not set forth in the Personnel Policies and Procedures, and there is no prohibition against the use of something like the Table. In fact, while this court has acknowledged the repeal of Resolution 8-8-94-A and held that the last paragraph created for job descriptions as a result of that Resolution is not generally enforceable, a tool like the Table is designed for the exact purpose of fulfilling the intent of that Resolution. Oneida law permitted the use of equivalent experience to fulfill an educational requirement. The Table was created and used to provide a formula for achieving equivalencies. The Table's existence and use did not violate existing tribal laws. As to the issue of whether or not the Petitioners were given notice of the use of the Table, there is

7 O.N.R. 2 - 73

no evidence that such notice was given. Of more important inquiry is the question of whether or not any such notice was necessary. The answer to that question is, "no." The Table was developed for use by the Respondents in determining which applicants for any particular job were qualified for an interview. It is used for screening purposes. It is generally of no concern to an applicant who other applicants might be. When the Petitioners asked how the applicant pool was selected in a complaint to the Respondents, their questions were answered. However, this does not imply an obligation to preemptively inform applicants of the screening process or tool use by hiring agents. There is no requirement that applicants be informed of the number of other applicants, how many have been screened out for interviews, the qualifications of these applicants, or how these applicants rated in their interviews. The job description for this position clearly stated that applicants willing to formulate and complete an educational plan would be considered for the position. The educational requirement of a bachelor's degree was not listed as absolute. The Petitioners, as well as other applicants, had no reasonable expectation, let alone a right, to be aware of the screening process or that a previously established Table would be utilized by the Respondents in that process. To hold that such notice is necessary would be a creation of law, and which would open the door to other currently unknown and unwritten notice requirements that would overly burden the Oneida Tribe in its attempts to fulfill job positions. IV Decision Judgement is rendered in favor of the Respondents. It is the finding of this court that the screening process used by the Respondents was clearly established, followed, and did not harm the Petitioners. The use of the Table was permissible under existing procedures and the job description intentionally created the opportunity for applicants without a degree to apply for the position. The point total for applicants is generally a matter of interviewer discretion and the testimony supported a position that applicants without a degree scored higher than applicants with a degree.

7 O.N.R. 2 - 74

Trial Court Oneida Gaming Commission, Petitioner v. Oneida Business Committee, Law Office, Respondents Motion to Dismiss This case has come before the Oneida Appeals Commission Trial Court. Judicial Officer Mary Adams, presiding. I Background The Oneida Gaming Commission, Petitioner, first filed a complaint/order of enforcement on October 27, 2001. The complaint requested the Respondents to release a report made by Attorney's Process and Investigation Services, Inc. to the Petitioner. The parties have since resolved the complaint and now wish to dismiss the complaint. On October 9, 2001 the Petitioner filed a Motion to Dismiss. II Decision The Court feels that the motion for a dismissal is proper under Rule 14 (A) Voluntary Dismissal, therefore the motion for dismissal shall be granted.

Docket No. 01-TC-024 Date: October 11, 2001

7 O.N.R. 2 - 75

Trial Court

Smitty's Painting and David Smith Petitioner vs. Oneida Construction Respondent Date: October 12, 2001 Docket No. 01-TC-013

Judgement Order This case has come before the Oneida Appeals Commission Trial Court. Judicial Officers Leland Wigg-Ninham, Mary Adams, and Winnifred Thomas presiding. I Background In 1999, the petitioner entered into a contract with the Oneida Tribe of Wisconsin for painting to be performed at the Norbert Hill Center under the supervision of Oneida Construction. The term of the contract was from August 15 to November 30, 1999. On March 10, 2000, the respondent sent the petitioner a punch list of additional work required to repair damaged areas previously painted by the petitioner. The respondent sent the petitioner a certified letter, dated March 27, 2000, declaring that if the work on the punch list was not completed, the petitioner would be ordered off the job. In correspondence, dated March 30, 2000, received by the petitioner, the respondent ordered the petitioner off the job. The respondent objected to the Compliance Department Attorney, Charlene Smith (formerly Sanders), serving as the petitioner's legal representative on the grounds that an Oneida Tribal Attorney cannot represent Oneida Tribal Members. II Issues 1) 2. 3. Has respondent established grounds that Attorney Smith cannot represent Oneida Tribal members? Did the petitioner fulfill his contract with Oneida Construction? Is the petitioner obligated to pay the respondent $5,276.00 for rework respondent did? III Analysis Has respondent established grounds that Attorney Smith cannot represent Oneida Tribal

7 O.N.R. 2 - 76

members? The respondent argues that there is no tribal authority, in the scope of her employment with the Oneida Tribe, for Attorney Smith to represent tribal members. The respondent goes on to argue that representation of the petitioner in this matter may be a violation of her contract with the Oneida Tribe. The contract for Attorney Smith is ambiguous in regard to whether or not she can represent Oneida Tribal members. However, in Resolution #8-8-94B, the second whereas states; "The Oneida General Tribal Council deems it necessary to reassert its commitment to protect and insure the Constitutional rights of Tribal members and employees... C. Practices of the Paralegal. Guidelines and Work Standards "The Paralegal Department is committed to advise and assist Tribal members and Tribal employees with issues of Tribal or Employment policies, procedures, or laws." It would appear that the General Tribal Council (G.T.C.) intended for the Paralegal Department to assist both employees and Tribal members with issues of not only procedures and policies, but also laws and legal disputes. There is a clear intent that the offices of the Paralegal Department and its resources be made available to employees and Tribal members. It is the Commission's opinion that the intent of the G.T.C. in adopting Resolution #8-8-94B, is to have the Paralegal Department use all its resources to protect both Tribal members and employees. Therefore, it would seem only reasonable that the duties of the Paralegal Department Attorney, acting in that capacity, should include legal representation of both Tribal employees and Tribal members. Did the petitioner fulfill his contract with Oneida Construction? Is the petitioner obligated to pay the respondent $5,276.00 for rework? The respondent argues that the petitioner did not complete services to the respondent under the terms of the contract, effective from August 15, 2000 to November 30, 2000 and because of this, the petitioner should reimburse the Oneida Tribe $5,276.00 for its rework. This amount reflects the cost to the tribe to complete the petitioner's unfinished work. The respondent further argues that the petitioner's work was inferior. The respondent did not establish its burden of proof to this Commission that the petitioner did not fulfill his part of the contract. The petitioner was contracted to paint the interior of the Oneida Day Care Center and exterior metal rails. Testimony shows that the petitioner painted the interior walls and had to wait for other walls to be constructed because the project was behind schedule. When Oneida Construction came in to construct new walls, damage to the existing painted walls already painted by the petitioner occurred for various reasons beyond the control of the petitioner. All witnesses testified to the fact that the project was behind schedule. The former Project Manager of the project testified that, "If there are no walls to paint, petitioner's work is at a stand still." That the project was behind schedule was no fault of the petitioner. The petitioner established to this Commission that he did complete the painting according to the terms of his contract. He also completed rework ordered by the respondent, though the necessity for this rework was caused by other persons and not, as the respondent would argue, inferior workmanship.

7 O.N.R. 2 - 77

In regard to exterior work, the petitioner could not apply paint to the railings because the weather had become too cold by the time the railings were placed. However, the petitioner agreed to return and paint the railings when the weather was warm enough for that task. Prior the to the petitioner's return to paint the completed railings, he was ordered off the job by the respondent. Because of this fact, petitioner could not complete any further work and therefore fulfilled his obligation to the respondent according to his contract. Mr. Matzke, who was the Project Manager at that time, testified that he was satisfied with the petitioner's work. Furthermore, witnesses testified that they were satisfied with petitioner's work. The Project Manager, who oversaw the petitioner's work at the time the petitioner was contracted with Oneida Construction, testified that he had high praise for the quality of the petitioner's work. Because of the fact the petitioner has been in the painting profession for (20) years and the witnesses's testimony that they were satisfied with the petitioner's work, it is only reasonable this Commission must conclude that petitioner did quality work. IV Decision It is the decision of this Hearing Body to rule in favor of the Petitioner. 1) The respondent did not provide burden of proof that Attorney Smith could not represent the petitioner. The Paralegal Department has been clearly established to work on behalf of employees and Tribal members and Attorney Smith's work through that department fulfills that intent. 2) The respondent did not provide burden of proof that petitioner did not fulfill his contract. The contract period expired due to scheduling not under the control of the petitioner. Additional work was agreed to but it was the respondent who prevented its completion. 3) The petitioner is not responsible for the sum of $5,276.00 to the respondent. The rework done by the respondent has not been shown to be a consequence of the petitioner's failure to fulfill his contract with the respondent or of any inferior workmanship. This Commission orders that this claim against the petitioner be dismissed and expunged from any vendor record related to the petitioner. The petitioner shall be reinstated to the full status of an Oneida Tribal Vendor with all the benefits that come with such status.

7 O.N.R. 2 - 78

Trial Court David Webster, Denise Vigue, Amy Gutierrrez, Jennifer Van Bellinger, Petitioners v. Oneida Gaming Commission, Respondent Motion to Extend Time This case has come before the Oneida Appeals Commission Trial Court. Judicial Officer Carole Liggins, presiding. I Background The Petitioners in this case have filed an original complaint against the Respondent based upon the Respondent's suspension of the Petitioners' gaming licenses. The Respondent has requested an extension of time to file an answer to this amended complaint filed by the Petitioners on October 15, 2001. II Issues Is the extension of time permissible under the Rules of Civil Procedure? III Analysis Under Oneida Appeals Commission Rules of Civil Procedure, Rule 9(A)(1), the filing of an amended complaint automatically grants the Respondent ten (10) additional days to file an answer. The original due date for the answer was October 25, 2001. The amended complaint provides the Respondent 10 additional days. IV Decision The motion for extension is granted. The due date for the Respondent's answer is set for Monday, November 5, 2001. Additional scheduling and issues may be identified by the parties and this court in the pre-trial hearing scheduled for November 2, 2001.

Docket No. 01-TC-025 Date: October 24, 2001

7 O.N.R. 2 - 79

Trial Court David Webster et al, Petitioners v. Oneida Gaming Commission, Respondent Motion for Extension This case has come before the Oneida Appeals Commission Trial Court. Judicial Officer Carole Liggins, presiding. I Background The Petitioners in this case have filed an original complaint in response to their gaming licenses being suspended by the Respondent. A pre-trial hearing is currently scheduled for November 2, 2001. The Petitioners have filed a motion for a postponement of this hearing on the grounds that they have jointly retained an attorney. The first meeting with this attorney is scheduled for November 1, 2001. The Petitioners ask that hearing be rescheduled to November 15, 2001. II Decision The motion for a postponement is timely and reasonable. The Clerk will contact parties to determine the most appropriate date and time for a rescheduled pre-trial hearing.

Docket No. 01-TC-025 Date: October 25, 2001

7 O.N.R. 2 - 80

Trial Court Oneida Compliance Division Oneida Paralegal Department, Tami Hill, Paralegal Petitioner vs. Oneida Tribe of Indians of Wisconsin Oneida Law Office Respondent

Docket No. 01-TC-010

Date: October 29, 2001

Motion for Declaratory Ruling This petition has come before the Oneida Appeals Commission Trial Court. Judicial Officers Stanley R. Webster, Anthony Benson and Janice McLester presiding.

I Background Petitioner Oneida Paralegal Department, on May 4, 2001, filed a motion for a Declaratory Ruling with the Oneida Appeals Commission Trial Court. The motion lists four issues: (1) Does the Oneida Law Office have authority to require all employees, who have prevailed at any level of the disciplinary appeal process, to enter into a "settlement agreement" in order to receive their judiciously awarded back pay and benefits compensation? (2) Are employees required to forfeit their rights, pursuant to the language of the Personnel Settlement Agreement? (3) Does the Oneida Law Office have the authority to limit the award amount? (4) Where does the authority exist in regard to determining an award, when the award will be paid, and by whom? The grounds stated by the Petitioner for requesting the Declaratory Ruling are that: 1. Oneida Law Office claims that a memo from former Treasurer, Kathy Hughes, establishes authority for the Law Office to require Personnel Action Settlement Agreements in all personnel actions, 2. The memo that all personnel actions be concluded by settlement is ambiguous, and is without formal action of the Oneida Business Committee, 3. The Oneida Law Office requires all employees winning their appeal, to enter into a Personnel Action Settlement Agreement in order to receive their award, 4. The Personnel Action Settlement Agreement requires the employee to forfeit their right to seek further claims on the matter, if the employee does not sign the Agreement, the employee cannot receive the award,

7 O.N.R. 2 - 81

5. 6. 7.

The memo merely directs the Law Office to monitor the amount paid to the employee as a result of the personnel action, The Law Office claims that if the employee is away from the job site less than three weeks, the employee will not be granted accrued vacation/personal time, This determination is not supported by any legal authority, and undermines the decision of Area Managers, Oneida Personnel Commission and Oneida Appeals Commission.

On May 29, 2001, the Respondent filed a motion to recuse Judicial Officer Leland Wigg-Ninham claiming he had a personal interest in this litigation. Prior to the motion, Judicial Officers Ninham, Adams and Metoxen had been replaced by Judicial Officers Webster, Benson and McLester in judicial conference. On May 29, 2001, the Respondent filed a motion to stay the order regarding supplemental briefs claiming the interested parties identified at the pre-hearing should be allowed to file a brief regarding this matter. On June 4, 2001, the Respondent filed a motion to dismiss claiming that the Petitioner failed to prove a claim or establish a right to relief based on the facts and law presented. On June 14, 2001, the motion to dismiss was denied. On June 14, 2001, the motion to stay was granted. Following is a list of the interested parties identified, Human Resources Department, Oneida Accounting, Oneida Pay Roll, Oneida Business Committee and Senior Management. The interested parties had until July 6, 2001, to submit their briefs. On July 2, 2001, the Treasurer, Judy Cornelius filed a motion for extension to submit a brief from July 6, 2001 to July 16, 2001. On July 5, 2001, the motion for extension to submit a brief was granted. On July 16, 2001, the Respondent filed a second motion to dismiss claiming that the Petitioner's claim was moot due to Resolution BC-7-11-01-E, adopted by the Oneida Business Committee on July 11, 2001. The resolution directs the Oneida Human Resources Department to develop a back pay award standard. On July 19, 2001, the Petitioner filed a motion for postponement of the July 26, 2001 hearing. On July 23, 2001, the motion to postpone was granted. The hearing was held on August 15, 2001. Attorney Charlene Sanders and Paralegal Tami Hill, appeared on behalf of the Petitioner. Attorney Jennifer Carleton appeared on behalf of the Respondent. II Issue Does the Petitioner have standing to file this motion for Declaratory Ruling for consideration under the Oneida Administrative Procedures Act? III Analysis The hearing on June 14, 2001, was recessed and the hearing was reconvened on August 15, 2001. The Petitioner opened by objecting to admitting a brief that was filed on July 16, 2001, without a

7 O.N.R. 2 - 82

signature, arguing that unless the brief is signed, it is not authentic. The Respondent argued that objection was untimely, and that this was a minor error that could have been clarified earlier by contacting the interested party. The Petitioner argued they thought they got the only copy that was not signed, but was not sure until today. The Petitioner also argued that it was the Respondent's responsibility to make sure that all documents filed, are signed. The Respondent agreed, but pointed out that the Respondent does not represent any of the interested parties. The interested parties are independent. Neither the Petitioner and the Respondent has any responsibility to make sure that briefs filed by the interested parties are signed. The Petitioner's objection was sustained and the unsigned brief submitted by the Human Resources Department (HRD) was not admitted. Based the principle of Rule 7 (e) of the Oneida Appeals Commission Rules of Civil Procedure, every pleading, motions, or other paper shall be signed. HRD has access to the Oneida Appeals Commission Rules and should be aware that the principle of a signature stands for all documents, not just those submitted by the parties. The Petitioner referenced the four issues listed in the motion for the Declaratory Ruling. These issues are the grounds for requesting the Declaratory Ruling. The Petitioner stated that the Oneida Law Office claims their authority to enter settlement agreements is in a memo from Kathy Hughes dated March 26, 1998. The Petitioner referenced the memo which is quoted in part: "I am requesting that all payments dealing with claim settlement issue be processed through the Law Office." The Petitioner argued "that all this memorandum grants the Law Office is to issue the back pay compensation." But the memo does not direct that "each employment matter must be concluded with a settlement agreement." The Petitioner then asked "In regard to settlement agreements, do they have to enter them?" The Petitioner then argued that the resolution or statement of facts do not address the second issue of forfeiting rights. On the third issue, the Petitioner asks the question "does the Law Office have authority to limit the award amount?" The Petitioner argues that the resolution does not grant "them any authority to interpret or insert their own interpretation or limit what is granted by the Court." On the forth issue, the Petitioner asks where the authority exists to determine the award, "if they want to have a back pay policy," and argues that "the Law Officer must not be allowed to interpret or interject their own interpretation of what the employees will or will not receive. The resolution addresses none of these issues." The Respondent opened by referencing the Oneida Administrative Procedures Act and argues that "in order for a party to maintain an action for declaratory judgement, there must be a rule or ordinance in question". The Respondent made reference to Article IX Section B, and defined an ordinance as "a Tribal law that provides to and governs persons, activities, and properties subject to Tribal jurisdiction." The Respondent defined a rule or regulation as "any order, directive or regulation of general applicability enacted into law and approved by the Oneida Business Committee," as referenced under III.6.p. of the Oneida Administrative Procedures Act. The Respondent argued that "a rule or regulation is not a statement concerning internal management of an area" as referenced under III.6.a.. of the Oneida Administrative Procedures Act.

7 O.N.R. 2 - 83

The Respondent then argued the trial court needed more information on the memo from Ms. Hughes to decide if a rule or ordinance is in question. The brief filed by the Oneida Business Committee shows that "the OBC is unable to retrieve any action of the prior OBC that had approved the delegation for the Oneida Law Office to process settlement agreements." The Respondent argued that without any official action of the Oneida Business Committee, the Petitioner has no standing. The Respondent argued however, that the Appeals Commission did take official action on this issue in Sandra Orie vs. Oneida Tribal School Board, 3 O.N.R.3-56, 58. The issue in the motion for enforcement concerned a dispute over the language in the settlement agreement where it was found that " the proposal submitted by the Petitioner to be insufficient as a full and final settlement and mutual release claims against the Oneida Tribe and the Oneida Tribal School." The Respondent read into the record, the language that was ordered into the contested portion of the Settlement Agreement: "Orie, on behalf of herself and anyone claiming through her, hereby releases and agrees not to sue Oneida or any of its employees, representatives, or agents (collectively the Released Parties), with respect to any and all known claims which Orie has ever had while employed with the Oneida Tribal School up to the date of this Agreement, including all claims that could have been asserted under any fair employment, contract, or tort law, or any other Tribal, federal, state, or local law, regulation or ordinance such as the Oneida Personnel Policies and Procedures, the Oneida Administrative Procedures Act, the Indian Civil Rights Act, Title VII of the Civil Rights Act of 1964, the Civil Rights of 1991, the Employee Retirement Income Security Act, the Americans With Disabilities Act, or any other compensation, bonus, vacation, retirement or other benefit plan. Orie expressly warrants that she has not transferred or assigned any rights or causes of action that she might have against any of the Released Parties." The decision concluded with "upon signing by all parties, the amended Settlement Agreement as set forth in this decision, this case will be closed." The Respondent argued that the Petitioner refused to meet with the Law Office to reach a mutual agreement on this issue and that now the Oneida Business Committee has passed a resolution for HRD to develop a policy. The Respondent argued that "the Law Office has never interjected their interpretation into a decision of the Appeals Commission or the Personnel Commission, the Area Manager, or the supervisor.", but a policy is needed for consistent handling of back pay by accounting and the payroll departments. The Respondent argued that "there needs to be a consistent policy" that can be signed by the employee. The Respondent argued that the Petitioner has no standing and except for a memo, did not cite any rule or ordinance that was violated for the trial court to interpret. The Oneida Law Office asked the Appeals Commission trial court to deny this matter with prejudice and dismiss this case. The Petitioner argued that attorney Carleton claimed that the Business Committee directed the two GMs and the Law Office to handle all personal settlement matters and to create a "consistent policy to deal with these settlements." and that the attorney claims "the rule is the memo" and "we're saying that this doesn't give them any authority."

7 O.N.R. 2 - 84

The Respondent argued that she never said the BC gave a directive and apologized to Ms. Hill if she mistook the e-mail to mean a directive was issued. The trial court asked the Respondent if their argument was about the second motion to dismiss and that was correct. The trial court called a recess and went into deliberation. The trial court reviewed the motion for declaratory ruling to determine whether or not the motion met the Oneida Administrative Procedures Act requirements under IX Declaratory Ruling and Judgements on Validity of Ordinance/Rule which states: IX A. Declaratory Rulings. Declaratory Rulings shall be initially made by the agency or any interested person may petition an agency for a Declaratory Ruling with respect to the applicability to any person, property, or state of facts of any Ordinance/Rule enforceable by such agency. The motion does not involve an agency, or give any statement of any facts of any Ordinance or Rule required under IX A of the Oneida Administrative Procedures Act. The Act does not define the Oneida Law Office as an agency, nor is the Law Office considered an agency of the Tribe, and Ordinances or Rules are not enforceable by the Law Office. The trial court also considered the precedent set in the Orie decision in its review of the Petitioner's motion for Declaratory Ruling. The Appeals Commission previously ruled on the Settlement Agreement when it amended the Agreement language in the Orie decision. Review of the motion for Declaratory Ruling under both the Administrative Procedures Act and the previous Appeals Commission decision in Orie, the trial court finds that the Petitioner has no standing. Without standing, the Petitioner's arguments cannot be considered.

IV Decision The motion for Declaratory Ruling is denied and dismissed

7 O.N.R. 2 - 85

Trial Court Oneida Division of Land Management Petitioner vs. Linden Bain Respondent Date: November 13, 2001

Docket No. 01-TC-021

Original Complaint This petition has come before the Oneida Appeals Commission for Trial. Judicial Officers Leland Wigg-Ninham, Anthony Benson, and Linn Cornelius presiding. I Background In 1998, the Respondent purchased a mobile home from the Oneida Tribe of Wisconsin. That mobile home occupied a lot in the Oneida Tribe's Green Earth Mobile Center from July 14, 1998 to October 12, 1998, without a lease. The Respondent entered into a lease agreement with the Oneida Tribe of Wisconsin for the rental space from July 1998 thru June 30, 1999. The Respondent failed to pay utility bills and on January 21, 2000, was notified that this was a violation of the lease agreement. In April of 2000, the Oneida Utilities discontinued his water service. On May 15, 2000, after receiving complaints of the poor condition of Respondent's mobile home, the Oneida Tribe Property Manager sent the Respondent a letter requesting an inspection of the property and did not receive a response. The Property Manager requested an inspection of the property on June 6, 2000, an again on June 19, 2000, with no response, the Division of Land Management sent the Respondent a notice of termination if he didn't allow the property to be inspected. On August 8, 2000 the property was inspected by the Division of Land Management Property Manager and the Oneida Zoning Inspector. On August 15, 2000 the Respondent was notified of the termination of his rental lot agreement because of the condition of the property and was given 30 days to remedy the problem. After receiving the notice, the Respondent failed to remedy the situation. In July 2001, the Division of Land Management removed the Respondent's mobile home at its expense. II Issues Should the Petitioner be granted motion for default? Does the Respondent owe the Petitioner $1,837.00 plus $500.00 for Attorney expenses? III Analysis The Respondent failed to appear. Rules of Civil Procedure state: "Rule 16 Default (A) Appearance required: Parties to a case are required to appear before the trial court at

1. 2.

1.

7 O.N.R. 2 - 86

2.

any scheduled hearing or proceeding, whether or not that party is represented by an attorney or other advocate. The Petitioner established its case that the Respondent owes the Department of Land Management the amount of $1,837.00 for lease, expenses of moving the trailer, plus attorney fees of $500.00.

IV Decision It is the finding of this court that the Petitioner is entitled to all claims against the Respondent. Default judgment is granted in favor of the Petitioner. Respondent is ordered to pay the Department of Land Management the amount of $1837.00 for lease arrears, expenses of moving the trailer, plus attorney fees of $500.00.

7 O.N.R. 2 - 87

Trial Court David Webster, Denise Vigue, Amy Gutierrez, Jennifer Van Bellinger, Petitioners v. Oneida Gaming Commission, Respondent

Docket No. 01-TC-025

Date: November 16, 2001 Decision

This case has come before the Oneida Appeals Commission Trial Court. Judicial Officers Mary Adams, Kathy Hughes and Carole Liggins, presiding. I Background The Petitioners, David Webster, Denise Vigue, Amy Gutierrez and Jennifer Van Bellinger, gaming licenses were suspended on September 24, 2001 by the Oneida Gaming Commission's Investigation Review Body. A hearing was scheduled on October 9, 2001 by the Oneida Gaming Commission, but was later canceled by the Oneida Gaming Commission on October 5, 2001. The Petitioners have filed a complaint to request the Oneida Appeals Commission to assume jurisdiction over the case. The Petitioners assert that they maintain a right to appeal this suspension under the Oneida Comprehensive Gaming Ordinance, Article XVI(10). The Petitioners raise several arguments regarding the process by which their licenses were suspended pending an investigation and seek the Oneida Appeals Commission to assume jurisdiction. II Issues Does the Oneida Appeals Commission have jurisdiction to hear this case? III Decision Issues other than jurisdiction may be addressed once the decision of jurisdiction is rendered. Both parties will submit a brief arguing jurisdiction. Briefs are due at this court as well as to the opposing party by November 30, 2001. The response brief is due at this court as well as to the opposing parties by December 10, 2001. Discovery materials are due December 30, 2001. In the interest of time, the trial date is scheduled for January 10, 2001 at 9:00 am.

7 O.N.R. 2 - 88

Trial Court Veronica Fust, Petitioner vs. Oneida Human Resource Department, and Crawford Insurance, Respondents Final Decision This petition has come before the Oneida Appeals Commission for trial. Judicial Officers Mary Adams, Marjorie Stevens, and Leland Wigg-Ninham, presiding. I Background The Petitioner, Veronica Fust, filed a complaint against Respondents Oneida Human Resource Department (HRD) and Crawford Insurance. This complaint involves the Oneida Worker's Compensation Law. The Petitioner began her employment with the Oneida Tribe on July 23, 2000. On February 26, 2001 the Petitioner reported an injury while on duty at the Oneida Casino. The Petitioner has been receiving compensation as well as medical benefits for the injury. The Respondents paid the injury claim from February 26, 2001 to June 11, 2001. After reviewing the Petitioner's medical history records, the Respondents barred the Petitioner from recovering any benefits based on the Oneida Workers Compensation Law. The Respondents requests reimbursement of benefits totaling $2,425.18, and indemnity payments of $6,619.70 in medical expenses. A hearing was held on October 30, 2001 at 9:00 AM. II Issues 1. Is the Petitioner entitled to Worker's Compensation benefits? 2. If not, is the Petitioner liable to pay back the benefits and medical benefits collected? III Analysis The Petitioner alleged that the injuries reported on February 26, 2001, to the Oneida Casino Security was an injury to the left side of her lower back, which is revealed within a memo from Theresa A. Oswald, MD, dated May 1, 2001, that states; "She will hand carry her CT scan, which reveals disk bulging at L4-5 with mild to moderate central stenosis at that level." The Petitioner admits to a prior lower back injury to her right side four (4) years ago. Petitioner is currently unemployed. The Respondent alleges the Petitioner violated the conditions of the Oneida Worker's Docket No. 01-TC-020

Date: November 26, 2001

7 O.N.R. 2 - 89

Compensation Law by not disclosing prior health conditions. The Respondent further alleges the Petitioner violated the Injury Disclosure Obligation. The Petitioner was not honest within her employment application with the Oneida Tribe. The Petitioner stated on the Self-Disclosing Physical Questionnaire, Notice to Applicant form: (1). I am physically able to perform the following work, the Petitioner initialed both (B). Light Work: Lifting 20 lbs and (C). Medium Work: Lifting 50 lbs. Also on the same sheet, number six (6), Please explain any special condition, limitations or any other information you feel is important for us to know in order to evaluate your physical ability to perform this job: Petitioner writes "None". The Respondent alleges the Petitioner gave false information on the Oneida Employment Application. The original Employment Application for the Customer Services Host, Employment History: Provide the following information from your past employers starting with most recent. Petitioner writes "Home Maker" leaving all employment history areas blank. The Respondent identifies this to mean the Petitioner did not have a work history. On February 26, 2001, a Security Officer took an injury statement from the Petitioner. The Oneida Casino Security Voluntary Statement dated February 26, 2001, signed by the Petitioner, when asked by the Security Officer, "if she [Petitioner] had this injury before she replied, yeah, I know what it is. Its my syotic nerve. It happened two years ago." The Respondent identifies this to mean the Petitioner had a previous injury. Once an employee submits a Worker's Compensation claim, the Respondent begins a thorough investigation. The Respondent orders all medical history statements related to the Petitioner beginning with present physician. Therefore medical records were requested in June 2001. Memo dated May 8, 2001 from Theresa A. Oswald, MD, states; "She [Petitioner] states that this has been going on for 4 years. When I initially saw her in March, she told the nurses this was a new condition and not the condition she saw Dr. Robinson for in the past. Apparently this has a continuation of an ongoing problem with episodic flare-ups. And further states, "She has had numerous procedures by Bellin Pain Clinic in the past for the back pain symptoms that she initially saw Dr. Robinson for in 1997 and 1998." The memo dated February 18, 1998, states; "She [Petitioner] reports pain after driving at work. The bouncing of her truck bothers her. The memo dated December 22, 1997, states; "This is a 32-year-old female who reports low back pain related to a fall on January 21, 1997. She reports that she was at her ususal job as a truck driver. She was exiting the truck and slipped on some ice." The Respondent alleges the Petitioner admitted to a history of ongoing lower back problems, that the injury she suffered in 1998 from her previous employment. 1. Is the Petitioner entitled to Worker's Compensation benefits? Under the Worker's Compensation Law, Article III. (3-13). Not Covered Injury/Accidents. (j) The employee's failure, prior to commencement of employment, to disclose a physical condition

7 O.N.R. 2 - 90

which prevented the employee from safely performing the work for which the employee was hired and which was a substantial contributing factor to the injury. The Respondent denied the Petitioner's claim. If the Petitioner disclosed a physical condition that limited the employee from performing the work for which she was hired for, the Respondent would be responsible to pay the claim. The court supports the allegations made by the Respondent, because the Petitioner failed to provide information to the Human Resource Department showing a prior injury. It is perceived that the Petitioner was trying to hide a prior injury by not sharing this information. This court is convinced that the Petitioner had a prior injury, which was not disclosed. 2. If not eligible for Worker's Compensation, is the Petitioner liable to pay back the benefits and medical benefits collected? It is the Petitioner's responsibility to supply this court with any documentation to support their claim. There is not enough evidence to support if in fact this injury is a new injury. The medical reports indicated a prior injury to the Petitioner's lower back in January 1997. The report did not state whether the injury was either to the left or right. The Petitioner did not provide documentation to support the claim of a new injury. Furthermore, the Petitioner's original application supports deception, first when the Petitioner fails to include an accurate work history and again when the Petitioner initials her ability to lifting 50 lbs on the Self-Disclosing Physical Questionnaire. Documentation supports that Dr. Robinson limited the Petitioner to Light Duty work in April 1998. The Respondent is correct, if this information was shared with the tribe, the Petitioner would be ineligible for medical coverage. The Oneida Worker's Compensation Law is the governing document that the Benefits Department must follow. Under the Worker's Compensation Law, Article X. (10-9). Fraud and Misrepresentation. Intentional misrepresentation by an employee resulting in benefits paid under this law shall allow the employer to bring an action at law in any court of competent jurisdiction against the employee to collect benefits paid as a result of the intentional misrepresentation. The Petitioner gave false information on the original application in several areas. The court is confident that, if the tribe had known the Petitioner's limitations, the Petitioner would not have been given a job that would violate such restrictions and possibly aggravate a previous injury. Due to the false information given by the Petitioner, the Respondent has the right to collect benefits paid as a result of the intentional misrepresentation. According to Black's Law, benefits are defined as "Financial assistance received in time of sickness, disability, unemployment, etc. either from insurance public programs such as social security." Therefore, all benefits associated with Worker's Compensation will be collected from the Petitioner. III Decision The Petitioner is hereby ordered to reimburse the Oneida Worker's Compensation benefits totaling $2,425.18 and indemnity payments of $6,619.70 in medical expenses.

7 O.N.R. 2 - 91

Dissenting opinion by Judicial Officer Marjorie Stevens. While I agree with the majority decision on the background and basic facts and findings of this case, it is my opinion that the Respondents in this case have failed to mitigate potential damages and should not be entitled to the full reimbursement granted by the majority. My reason for dissenting is due to the length of time HRD and Crawford Insurance took to investigate the case. The Petitioner, based on the Security Officer's report of February 26, 2001, told the officer that her injury was related to a prior incident with her sciatic nerve and that this prior injury happened two years ago. The Respondents failed to investigate this immediate acknowledgment of a prior injury at the time of the report and did not obtain the Petitioner's medical records until four months had passed.. While I concur with the finding that the Petitioner falsified her application and is not eligible for worker's compensation payments, it is my opinion that the Respondents, had they been diligent in their research and judgment, would have denied payments immediately and we would not now be in the position of forcing an unemployed person to pay approximately $9,000.00 to the Respondents. The Respondents may be entitled to reimbursement under Oneida law, but this does not address the basic principle that parties who are injured under the law have an obligation to mitigate damages. They cannot rely upon the law and do nothing, knowing that a higher damage award will be granted at a later date, but must act in a reasonable manner so as to minimize such damages. In my opinion, the Respondents did not minimize the damage done to them by the Petitioner's false information in her employment application and it would be inequitable to require the Petitioner to now reimburse the Tribe this money.

7 O.N.R. 2 - 92

Trial Court John Beauchamp, Petitioner vs. Oneida Human Resource Department, and Crawford Insurance, Respondents Decision This petition has come before the Oneida Appeals Commission for trial. Judicial Officers Mary Adams, Stanley R. Webster, and Leland Wigg-Ninham, presiding. I Background The Petitioner, John Beauchamp, filed a complaint against Respondents, Oneida Human Resource Department (HRD) and Crawford Insurance. This complaint involves the Oneida Worker's Compensation Law. The Petitioner began his employment with the Oneida Tribe on August 11, 1986. On February 14, 2000 the Petitioner reported an injury while on duty as a Food Service Buyer. The Petitioner is seeking full reimbursement for all expenses related to his February 14, 2000 work injury. The Respondents state all medical treatment relating to the Petitioner's head injury, including milage, has been paid and is not in dispute. After reviewing the Petitioner's medical report, the Respondents dispute medical coverage for shoulder surgery as well as other continuing complaints. A pretrial hearing was held on November 15, at 8:30 AM. II Issues Is the Petitioner entitled to Worker's Compensation benefits for coverage to a shoulder injury and other related complaints? III Analysis The Petitioner stated he was unable to secure the evidence needed for the hearing and requested an extension. The Petitioner argues the documentation is critical to this case. The Respondent argues several reasons for denial. First, the Petitioner submitted a Hearing Application form with the Oneida Human Resources Department that was dated September 20, 2001. The Petitioner's request for a hearing notice was sent by the Appeals Commission to the Human Resources Department on October 18, 2001.

Docket No. 01-TC-026

Date: November 30, 2001

7 O.N.R. 2 - 93

The Respondents are alleging, based on the time frame from receiving the Hearing Application and hearing notice, that the Petitioner did not file his claim in a timely manner. Second, Robert Fieden, M.D., submitted an Independent Medical Evaluation Report. Robert Fieden, M.D., report states the shoulder injury, that the Petitioner claims to have injured on February 14, 2000, was actually a prior injury and has no relation to the fall in question. At the time of the incident, the Petitioner did not mention shoulder pain. Also, the Petitioner reported other health complaints. Crawford Insurance found the other health complaints to be unsupported and unrelated to the February 14, 2000 injury. This court can not make a reasonable conclusion at this time without reviewing the Petitioner's documentation, therefore another pretrial is scheduled. Under the Rules of Civil Procedure, Rule 22, documents must be submitted to the court not less than five (5) days prior to the scheduled hearing. Petitioner must also provide a copy of the documents to the Respondents no less than five (5) days prior to the hearing. III Decision A pre-trial hearing is scheduled for Thursday, December 13, 2001 at 9:00 am.

7 O.N.R. 2 - 94

Trial Court Rositta Migel, Petitioner vs. Oneida Human Resource Department, and Crawford Insurance, Respondents Decision This petition has come before the Oneida Appeals Commission for trial. Judicial Officers Mary Adams, Stanley Webster, and Leland Wigg-Ninham, presiding. I Background The Petitioner, Rositta Migel, filed a complaint against Respondents Oneida Human Resource Department (HRD) and Crawford Insurance. This complaint involves the Oneida Worker's Compensation Law. The Petitioner began her employment with the Oneida Casino on May 10, 1994. On June 11, 2001 the Petitioner reported an injury while on duty in the Customer Service department. The Petitioner is seeking coverage for medical expenses related to a June 11, 2001 work injury. The Respondents stated they are unclear as to the relief the Petitioner is seeking. The Respondents previously denied medical coverage for Petitioner's wrist/thumb injury. II Decision During pre-trial the parties agreed to a settlement. Therefore, this case is dismissed. Docket No. 01-TC-027

Date: November 30, 2001

7 O.N.R. 2 - 95

Trial Court Monique Gore, Petitioner vs. Oneida Human Resource Department, and Crawford Insurance, Respondents Decision This petition has come before the Oneida Appeals Commission for trial. Judicial Officers Mary Adams, Stanley R. Webster, and Leland Wigg-Ninham, presiding. I Background The Petitioner, Monique Gore, filed a complaint against, Respondents Oneida Human Resource Department (HRD) and Crawford Insurance. This complaint involves the Oneida Worker's Compensation Law. The Petitioner began her employment with the Oneida Tribe on August 29, 1996. On December 6, 2000 the Petitioner reported an injury while on duty in the Social Service department. The Petitioner is seeking coverage for medical expenses related to the December 6, 2000 work injury. The Petitioner claims she did not know there was a time limit to file the incident report. The Respondents denied the claim for several reasons. First, the Petitioner allegedly reported the injury to her supervisor more than forty-eight hours after the incident. Second, the Petitioner submitted an Incident Report on August 14, 2001, that was received by the Human Resources Department on August 28, 2001, eight (8) months later, which is beyond the time limit set by the Oneida Worker's Compensation Law. II Issue Is the Petitioner entitled to Worker's Compensation coverage? III Analysis On December 6, 2000 the Petitioner grabbed a stack of records with both hands and shifted them to her left arm and suddenly felt pain in her left shoulder. The Petitioner alleges her supervisor was not available at the time of her injury, but reported the injury about two (2) days later. The Petitioner claims her supervisor should have filed the report. In January 2001 the Petitioner began seeing Dr. Sturgis, Chiropractor, for twenty-one visits. The Petitioner was referred to an orthopedist who requested further testing at St. Mary's Hospital.

Docket No. 01-TC-028

Date: November 30, 2001

7 O.N.R. 2 - 96

Further testing is on hold pending this court's decision. The Petitioner offers no tangible evidence to prove she reported the injury to her supervisor within the time limit set by the Oneida Worker's Compensation Law. The Respondent claims she was not aware of the time limits. The Respondents claim each tribal member received a copy of the Worker's Compensation Law brochure during a tribal massive mailing in November 1999. The Petitioner acknowledged receiving the brochure. The brochure specifically states the employee has 48 hours to report the accident to their supervisor and "that no compensation or benefits will be paid if a written notice is not given to the Benefits Department within 10 calendar days of the date the employee first reports injury." It would be reasonable to believe the Petitioner's injury was related to the December 6, 2000 incident if the Petitioner sought medical attention within days of the accident. The Petitioner offers no evidence that she informed her supervisor that she injured herself at work within the 48 hours specified in the Oneida Worker's Compensation Law. The Petitioner began doctor visits six (6) months after the incident. The Petitioner did not provide the Human Resources Department with an Incident Report until eight (8) months after the injury. The Petitioner claims she did not know she had to report the incident to her supervisor within 48 hours. The Petitioner agrees that she received a copy of the brochure. The Petitioner missed the timelines for filing a claim and therefore can not be covered under the Oneida Worker's Compensation. This court must base its findings on fact, therefore without evidence to support the Petitioner's claim this court has no alternative except to dismiss this case. IV Decision The court dismisses this case with prejudice in favor of the Respondents.

7 O.N.R. 2 - 97

Trial Court Carla Goffard, Petitioner vs. Oneida Human Resource Department, and Crawford Insurance, Respondents Decision This petition has come before the Oneida Appeals Commission for trial. Judicial Officers Mary Adams, Stanley Webster, and Leland Wigg-Ninham, presiding. I Background The Petitioner, Carla Goffard, filed a complaint against Respondents Oneida Human Resource Department (HRD) and Crawford Insurance. This complaint involves the Oneida Worker's Compensation Law. The Petitioner began her employment with the Oneida Tribe on November 14, 1995. On June 28, 2001the Petitioner suffered an injury while on duty as a Cook at the Anna John Nursing Home. The Petitioner is seeking payment of medical expenses to be paid to Pro Care Chiropractic in the amount of $186.00. The Respondents argue the Injury Report Form has no date or signature of the Petitioner's supervisor and was not received within the 10 day limit. A pretrial hearing was held on November 15, at 11:30 AM. II Issues Is the Petitioner entitled to Worker's Compensation benefits? Is the Petitioner responsible to file a written report with the Benefits Department? III Analysis The Petitioner argues she fulfilled her obligation by reporting the incident to her supervisor. Furthermore, alleges the supervisor did not follow through by filing the report within 10 days with the Benefits department. An Injury / Medical Report Form is included with the Petitioner's brief. The Respondent presents several reasons for the denial; (1) the Injury / Medical Report Form is not signed by the Supervisor or dated; (2) there was no written report submitted to Benefits within the 10 day limit. The Injury Reports were received by HRD Benefits on July 12, 2001, exceeding the 10 days. According to the Oneida Worker's Compensation Law Article IX. 9.1 Docket No. 01-TC-029

Date: November 30, 2001

7 O.N.R. 2 - 98

Notices, Reports and Limitations, the employee must report the injury to the supervisor within 48 hours and a written notice of injury must be given to the Benefits department within 10 calendar days of the date of reported injury. According to the Worker's Compensation Law, Article IX (9-2) "..., the employer will complete a report of injury and file it with the Administrator within 48 hours." shifts the responsibility of filing the report onto the employer. It is reasonable that the injured employee has the responsibility to report the incident to the employer. The employer then assumes the responsibility to file a written report. However, without a signed Injury / Medical Report Form or witnesses to show the Petitioner reported the injury within the timelines, the Petitioner has no evidence to persuade this court that she reported the injury to her employer within the 48 hours of her injury. The parties have agreed, once this court receives a signed and dated Injury / Medical Report Form from the Petitioner's supervisor, the employee will be entitled to Oneida Worker's Compensation benefits. Thereby allowing payment for the medical expenses incurred by the Petitioner. III Decision The Petitioner was given five (5) days to supply this court with a copy of the Injury / Medical Report Form with the supervisor's signature and date. The Injury / Medical Report Form was received by this court within the five (5) day time limit, therefore this case is dismissed.

7 O.N.R. 2 - 99

Trial Court Jamie Prokash Petitioner vs. Oneida Tribe of Indians of Wisconsin Human Resources Department Crawford Insurance Arlene L. Danforth, Benefits Respondent Date: December 14, 2001 Oneida Worker's Compensation This petition has come before the Oneida Appeals Commission trial court. Judicial Officer Stanley R. Webster presiding. Docket No. 01-TC-034

Order Jamie Prokash has agreed to settle his claim for the short term disability that he will receive from Met Life. Mr. Prokash filed notice to drop his case with the Clerk on December 10, 2001. This matter is therefore dismissed and this matter is closed.

7 O.N.R. 2 - 100

Trial Court Oneida Division of Land Management Petitioner vs. Josephson, Sheri & Juan Respondent

Docket No. 01-TC-033

Date: December 18, 2001

Original Complaint This petition has come before the Oneida Appeals Commission for Trial. Judicial Officers Leland Wigg-Ninham, Linn Cornelius, and Kathy Hughes presiding. I Background The Respondents signed a rental agreement in January 1, 1997, with the division of Land Management for a rental unit located at 2650 Clive Street, Green Bay, Wisconsin, 54313. The respondents were notified they were in default for rental arrearage in the amount of $2990.70 in December 2000. The Respondents were allowed to live in their rental unit on a month to month basis under a rental agreement entered into with the Division of Land Management because of their rental arrearage. The Respondents continued to have rental arrearage problems and they were referred to the Oneida Land Commission. On August 13, 2001, a motion was made by the Oneida Land Commission to cancel the rental agreement with the Respondents. On September 14, 2001, the Respondents were notified to vacate their rental unit at 2650 Clive Street, Green Bay, Wisconsin. On September 14, 2001, the Respondents vacated their rental unit at 2650 Clive Street, leaving rental arrearage of $3,906.60. The division of Land Management conducted a home inspection of the Respondents rental unit after the Respondents vacated and found dog damage to many parts of the home. Petitioner is asking for an award of money damages from the Respondents in the amount of $3,906.60 for rental arrears, $500.00 for attorney fees, $6,000.00 for damages to the rental property by Respondents dog, and court costs of $500.00. The total cost is $10,906.60. II Issues Should Petitioner be granted motion for default? Does the Respondent owe the Petitioner $3,906.60 for rental arrears, $500.00 for attorney fees, $6,000.00 for damages to the rental property by Respondents dog, and court costs of $500.00?

1. 2.

7 O.N.R. 2 - 101

1.

2.

III Analysis The Respondents failed to appear. Rules of Civil Procedure Rule 16 Default (A) states: Appearance required: Parties to a case are required to appear before the trial court at any scheduled hearing or proceeding, whether or not that party is represented by an attorney or other advocate. The Petitioner established its case that $10,906.00 is due the Petitioner, Division of Land Management, for rental arrears, property damage, attorney fees and court costs.

V Decision Default judgment is granted in favor of the Petitioner. It is the finding of this court that the Petitioner is entitled to all claims against the Respondents. Respondents are ordered to pay the Petitioner the amount of $10,906.60.

7 O.N.R. 2 - 102

Trial Court Leon D. Jandrey Appellant vs. Oneida Tribe of Indians of Wisconsin Human Resources Department Crawford Insurance Respondent

Docket No. 01-TC-030

Date: December 20, 2001

Oneida Worker's Compensation This petition has come before the Oneida Appeals Commission for pre-trial. Judicial Officers Stanley R. Webster, Mary Adams and Leland Wigg Ninham presiding. Order Petitioner Leon D. Jandrey disagreed with the Administrator's decision to discontinue payments for Doctor Farah's chiropractor treatment for Mr. Jandrey after October 24, 2001. Mr. Jandrey had been receiving chiropractor treatment for cervical strain and does not agree that Crawford Insurance should deny his request for more chiropractor treatment from Dr. Farah. Mr. Jandrey states that he is in good health and was unable to provide this court with any evidence to support his request for continued chiropractor treatment. Therefore Mr. Jandrey's claim is hereby denied and dismissed.

7 O.N.R. 2 - 103

Trial Court

Oneida Division of Land Management, Appellant v. Oneida Housing Development, Respondent

Docket No. 00-TC-027 Date: February 2, 2001

Order to Continue Temporary Restraining Order This case has come before the Oneida Appeals Commission. Judicial Officers, Carole Liggins, , Mary Adams and Winnifred Thomas, presiding. I Background The Oneida Division of Land Management has filed a motion for a continuance of a temporary restraining order against the planned commencement of construction of a "Replacement Home" by the Respondent. The Petitioner asserts that the Respondent has consistently constructed buildings without regard to Oneida laws on real estate transactions, construction codes, and zoning requirements. The home at issue is located at W1745 Poplar Lane, Seymour, Wisconsin. The Petitioner asserts that the failure of the Respondent to acquire proper permits before commencing construction undermines the ability of the Oneida Tribe to develop and govern its territory and land. In addition, through the compact agreement with the Bureau of Indian Affairs, the Division of Land Management is responsible for maintenance of all real estate transactions within the reservation that are owned by the tribal government. II Issues Has the Petitioner established the grounds for a continuance of injunctive relief and a temporary restraining order? III Analysis The Oneida Appeals Commission Rules of Civil Procedure set forth the criteria and procedure for grounds for injunctions and temporary restraining orders. An injunction is in order when it appears by the pleadings on file that a party is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act complained of, either for a limited period of time or perpetually.1

1

Rule 31 (E) (1)

7 O.N.R. 2 - 104

The Petitioner has provided a required "checklist" that includes; Tribal Lease, Owner Acknowledgment, Designation of Heirs, Title Report, Land Commission Approval, etc, and requires Land Management's approval prior to construction. The Petitioner has established that a deviation from this checklist will result in violation of existing Oneida laws. The Residential Lease #RL-2393(93), additional provisions # 15. states, "All buildings and improvements made under the terms of this lease shall be constructed in a good and workmanlike manner in all respects in compliance with applicable codes, ordinances, regulations, and laws." The Division of Land Management has been delegated the authority to manage transactions, including leases and title transfers on tribally owned lands, through Real Property Law, effective 8/29/96; and on individual trust lands through a BIA Compact signed annually by the Oneida Tribe of Wisconsin. The Respondent's testimony indicates that this home has been waiting for approval. In 1997, the funding was not approved; 1998, no homes were built; 1999, a list of replacement homes were approved, but this home was not included: this replacement home was approved for the 2000, funding cycle. It is possible that loss of funding could result due to waiting for a full disclosure of all Replacement Homes files from the beginning of the program, therefore, this court will not accept further delays. There is no dispute that Replacement Home files are not needed for the Division of Land Management, however, parties are expected to work together cooperatively for the best interest of their clients, which includes updating leases and title transfer files. Forms that require signatures from tribal entities ensure communication and provide a safety net that defines responsibility. IV Decision It is the finding of this court that the Petitioner has established the grounds for injunctive relief. This court hereby issues an injunction to remain in effect until copies of building and zoning permits are filed with the Oneida Appeals Commission. Once permits have been filed, construction may commence based upon recommendation from Mike Casey (memo 10/28/97), and provided that that memo is strictly followed.

"Based on the field observations made, this site could be buildable, subject to the following; 1. The septic system would require replacement, with a JET BAT System, with a chlorinator and dechlorinator, and an at grade trench system. Check with W ell and Septic to see if IHS assistance is available. 2. Any foundation should be constructed on footings that would be located just below the top soil line and built up from there and back filled properly. 3. Garage floor or lowest opening to the foundation must be located no less than 2 feet above the road center. 4. site will require filling after the foundation is in. 5. Any basement should have 2 sump pump pits, to help keep the basement dry. A basement is recommended for this family. 6. The existing dwelling must be razed as soon as the new dwelling is occupied."

The Petitioner's request for full disclosure of all Replacement Homes files from the beginning of the program is denied. The Petitioner failed to indicate how providing paperwork "full disclosure" from former replacement homes has a direct bearing on this home or stated legal reasoning for the delay. 7 O.N.R. 2 - 105

Housing Development Attorney, the Oneida Law Office and Division of Land Management Attorney are directed to collectively develop forms addressing the assignment of leasehold title trust land for each department to follow, which include addressing transfers of title and/or ownership, and encumbrances. A report to be filed within six (6) months of the date of this order.

7 O.N.R. 2 - 106

Ethics Board In the Matter of Stanley R. Webster Docket No. 00-ETH-05 Date: January 10, 2001 Final Decision This case has come before the Oneida Appeals Commission Ethics Board. Judicial Officers Kirby Metoxen, Kathy Hughes, Marjorie Stevens, presiding. I Background This case originated as a three part complaint against Commissioner Stanley R. Webster. The complaint was filed by Commissioner Leland Wigg-Ninham. The complaint consisted of three allegations, which read in their entirety: 1. Violation of contract as full time Appeals Commissioner 2. Violation of travel policy 3. Possible conflict of interest with NJC. After an investigation by the Investigative Panel, that body dismissed the first charge, and rendered findings of violations of the O.A.C. Judicial Code of Conduct for the charges regarding the travel policy and the possible conflict of interest with NJC. The Panel recommended the following disciplinary action: 1. Suspend Commissioner Webster's travel for a period of one year. 2. Attend training on the Oneida Travel Policy. 3. Repay any personal charges placed upon tribal credit cards. 4. Disclose any and all associations with NJC and any other organization with which the OAC has contact. 5. A sixty day suspension of all duties and responsibilities. II Issues Did Commissioner Stanley R. Webster act in violation of the Judicial Code of Conduct when he made improper use of a Tribal credit card while traveling in between two separate training seminars? Does the working relationship that Commissioner Webster has with the National Judicial College (NJC) create a conflict of interest or appearance of impropriety? III Analysis 1. Violation of Travel Policy The first allegation found by the Investigative Panel (Panel) to be a violation of the Judicial Code

7 O.N.R. 2 - 107

of Conduct is related to the behavior of Commissioner Webster while traveling. In May of 2000, Commissioner Webster attended two training sessions on behalf of the O.A.C. The first was in Florida, the second in Nevada. Commissioner spent several vacation days in Florida in between the timing of these two sessions. An audit was completed which reviewed the travel expenditures of Commissioner Webster over the course of his tenure with the O.A.C. This audit indicated that during the period of May 1013, 2000, while Commissioner Webster was on vacation between training sessions, he used the Tribal American Express Card. The Oneida Travel Policy has been adopted by the Oneida Appeals Commission and is found in Resolution 4-7-99B. Article XI details the use and procedure for utilizing the credit card. Article 11-1 state: "American Express is the official credit card company for the Oneida Tribe of Indians of Wisconsin and the credit card is to be utilized for official business travel only." A review of the record before the Investigative Panel shows that Commissioner Webster was on vacation during a time period in which he used the Tribal American Express Card. The money spent in this time frame has been repaid by Commissioner Webster. The use of the credit card, however, is a clear violation of the Travel Policy. However, contained within the Travel Policy is a procedure for remedying errors and misuse of the credit card. Under 11-6.a., the Travel Coordinator is supposed to contact a traveler when a questionable cost is detected, and unapproved charges are to be repaid by the traveler. Under 116.b., when misuse of the credit card is detected, a letter is to be sent to the traveler, the traveler's supervisor and Area Manager, and either the General Manager, Gaming General Manager, or Treasurer. The GM, GGM, or Treasurer have four listed options. He or she may remove the traveler from company sponsored payment privileges, require the traveler to fund his or her own business related expenses, require the expenses incurred to be reimbursed, or subject the traveler to disciplinary action. In this case, there was no contact with Commissioner Webster as the traveler. The Treasurer became aware of the questions regarding Commissioner Webster's use of the credit card while on vacation and requested that an audit take place of his travel. That audit request prompted the complaint which is now under review. However, this is not the procedure established in the Travel Policy and does not reflect the practice of the Travel Office in normal reconciliations of travel expenses. At the time of the Treasurer's request for an audit, the Treasurer preemptively suspended travel approval for Commissioner Webster. This request and that instruction occurred in April of 2000. The Panel found that Commissioner Webster violated the Judicial Code of Conduct, Article 4-4, which states, "Judicial Officers shall adhere to the laws of the Tribe", and Article 5-1, which states, "Judicial Officers should respect and comply with the laws of Oneida and should at all

7 O.N.R. 2 - 108

times act in a manner that promotes confidence in the integrity and impartiality of the Appeals Commission as the Oneida judiciary. Commissioner Webster argued that his travel and training was pre-approved by the OAC and that since he did not receive a travel advance prior to departure, it was his understanding that use of the credit card was acceptable during this time. Commissioner Webster argued that it was his intent and the past practice of the OAC and Travel Office to simply reconcile charges and allow repayment of costs incurred which would not normally be permitted. It is the finding of this Ethics Board that Commissioner Webster improperly used a Tribal credit card while on vacation. Despite past practices and Commissioner Webster's expectations, it was improper to use the Oneida American Express Card for purchases not related to his official duties and travel on behalf of the OAC. However, it is further found that the Tribal Travel Office did not follow its own procedure in the reconciliation process of this case. In addition, it is clear from training performed by the Travel Office for the full OAC that travelers regularly have improper charges reconciled without problem or severe consequence. In addition, while the OAC has adopted tribal wide travel practices for the sake of convenience, there are significant issues of separation of powers and the independent administration of the OAC raised by the actions of the Treasurer and the process by which this case originated. It is the opinion of this body that a one year suspension of travel of a common error that was mishandled administratively is excessive. As such, in accordance with the Rules of Discipline, this body modifies the recommended discipline to a six month suspension of travel privileges. In addition, because of the preemptive use of suspension by the Treasurer, this body finds that the suspended time has been served by Commissioner Webster already. 2. Conflict of Interest with National Judicial College The complaint filed against Commissioner Webster alleged that he may have a relationship with the NJC which creates a conflict of interest with the OAC. As part of its investigation, the Panel examined past proposals by NJC to conduct evaluations of the OAC operations. The Panel concluded that while it could not find any evidence of a clear conflict of interest in Commissioner Webster's association with NJC, it did find that Commissioner Webster's failure to disclose this relationship created an appearance of impropriety. Commissioner Webster testified as to his relationship with NJC. Since 1994, Commissioner Webster has been a student at NJC, attending numerous seminars and classes provided by that body. In the last year, Commissioner Webster has also been asked to provide his services to NJC as a panel lecturer and teacher for at least one class conducted at NJC. For these services, Commissioner Webster did not receive any payment, but was provided with travel, food and lodging expenses. There is no evidence that this is not the case, nor is there any restriction upon a Commissioner being employed by, or receiving money from, another entity.

7 O.N.R. 2 - 109

The Judicial Code of Conduct specifically refers to outside activities by Commissioners in Article X of the Code. 10-1 allows a judicial officer to speak, teach, or lecture on issues of legal systems and the Oneida judiciary. Article 10-4 permits a judicial officer to serve, work for, or join any organization which is devoted to the improvement or development of justice. Commissioner Webster's connection with NJC meets both of these permissible actions. He lectured on issues that had been dealt with by the Oneida Appeals Commission and spoke to what the OAC has done in its practices. His status as a member of the faculty is not a paid position, and even if it were, there is no prohibition to such status. NJC is clearly an organization devoted to the development and improvement of justice and the law. NJC serves as one of the premiere organizations for judicial training throughout the country. The Panel found that Commissioner Webster's failure to disclose his status with NJC created the appearance of impropriety. Impropriety is defined in Article V of the Judicial Code of Conduct as any act which violates any law, any act or inaction contrary to the duties of judicial office. It is an act which is clearly improper and in violation of the oath to follow and uphold the law, or which creates the appearance of impropriety. Commissioner Webster violated no law when he acted as teacher for NJC. The proposals filed by NJC were for an evaluation of the practices of the OAC and did not confer upon Commissioner Webster any material benefit. There was no "clearly improper" behavior performed by Commissioner Webster. If anything, Commissioner Webster is specifically in compliance with the Judicial Code of Conduct in that he did something that is specifically permitted under Article X of the Code. In addition, Commissioner Webster's actions with NJC have been discussed in front of the full Commission in a monthly meeting on at least two occasions, and while concerns were raised, no decision was reached other than to direct Commissioner Webster to perform his teaching activities with NJC outside on his own time, which he did. IV Decision Commissioner Webster did use the Tribal credit card while on vacation in violation of the Travel Policy. However, given that: 1) he has already spent more than six months under a travel prohibition; 2) the Travel Office did not follow its own procedures for dealing with issues of credit card misuse; 3) Commissioner Webster reimbursed the Tribe all money spent while on his vacation through a normal reconciliation process; and 4) Commissioner Webster and all judicial officers and staff have attended training on compliance with the Travel Policy for future travel: it is the holding of this body that any suspension of travel shall be lifted and this matter is closed. Commissioner Webster is found not to have created an appearance of impropriety by failing to disclose his connection to NJC. This connection is in compliance with the Judicial Code of Conduct and is found to be a benefit to the credibility and reputation of the OAC. By acting as a lecturer in a nationally recognized forum, Commissioner Webster serves as an enhancement to the Oneida Judiciary.

7 O.N.R. 2 - 110

Information

110 pages

Report File (DMCA)

Our content is added by our users. We aim to remove reported files within 1 working day. Please use this link to notify us:

Report this file as copyright or inappropriate

440971


You might also be interested in

BETA