05-6408-cv (L); 06-5168-cv (CON); 06-5515-cv (CON)
Oneida Indian Nation v. Madison County
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2007
4 (Argued: November 6, 2007 Final Submission: July 20, 2009
5 Decided: April 27, 2010)
6 Docket No. 05-6408-cv (L); 06-5168-cv (CON); 06-5515-cv (CON)
7 -------------------------------------
8 ONEIDA INDIAN NATION OF NEW YORK,
9 Plaintiff-Counter-Defendant-Appellee,
10 - v -
11 MADISON COUNTY AND ONEIDA COUNTY, NEW YORK,
12 Defendants-Counter-Claimants-Appellants,
13 STOCKBRIDGE-MUNSEE COMMUNITY, BAND OF MOHICAN INDIANS,
14 Putative Intervenor-Appellant.*
15 -------------------------------------
16 Before: CABRANES, SACK, and HALL, Circuit Judges. Judge
17 Cabranes, joined by Judge Hall, concurs in a separate
18 opinion.
19 Appeal from a judgment of the United States District
20 Court for the Northern District of New York (David N. Hurd,
21 Judge). In separate actions consolidated on appeal, the Oneida
22 Indian Nation of New York (the "OIN") brought suit against
23 Madison and Oneida Counties to enjoin them from foreclosing on
24 OIN-owned property for non-payment of taxes. On cross-motions
*
The Clerk of Court is directed to amend the official
caption of this appeal in accordance with the foregoing.
1 for summary judgment, the district court ruled in favor of the
2 OIN. We agree. We conclude that the OIN is immune from the
3 Counties' foreclosure actions under the principle that "[a]s a
4 matter of federal law, an Indian tribe is subject to suit only
5 where Congress has authorized the suit or the tribe has waived
6 its immunity." Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523
7 U.S. 751, 754 (1998). City of Sherrill, N.Y. v. Oneida Indian
8 Nation of N.Y., 544 U.S. 197 (2005) is not to the contrary.
9 Separately, we conclude that the district court did not abuse its
10 discretion by denying the motion to intervene brought by the
11 Stockbridge-Munsee Community, Band of Mohican Indians. Judge
12 Cabranes concurs in the judgment and opinion of the Court and
13 files a separate opinion, in which Judge Hall concurs.
14 Affirmed.
15 DAVID M. SCHRAVER, Nixon Peabody LLP,
16 Rochester, NY, for Defendants-Counter-
17 Claimants-Appellants.
18 MICHAEL R. SMITH, Zuckerman Spaeder LLP
19 (David A. Reiser, of counsel; Peter D.
20 Carmen of Oneida Nation Legal
21 Department, Verona, NY, on the brief),
22 Washington, DC, for Plaintiff-Counter-
23 Defendant-Appellee.
24 DON B. MILLER, Don. B. Miller, P.C.,
25 Boulder, CO, for Putative Intervenor-
26 Appellant.
27 ANDREW D. BING, Assistant Solicitor
28 General, State of New York (Andrew M.
29 Cuomo, Attorney General, on the brief;
30 Barbara D. Underwood, Solicitor General;
31 Daniel Smirlock, Deputy Solicitor
32 General; and Peter H. Schiff, Senior
33 Counsel, of counsel; Dwight A. Healy,
2
1 White & Case LLP, co-counsel), New York,
2 NY, for Amicus Curiae State of New York.
3 RONALD J. TENPAS, Assistant Attorney
4 General; Samuel C. Alexander, Elizabeth
5 Ann Peterson, and Kathryn E. Kovacs,
6 U.S. Department of Justice Environment &
7 Natural Resources Division, Appellate
8 Section; and Thomas Blaser, U.S.
9 Department of the Interior, Washington,
10 DC, for Amicus Curiae United States.
11 SACK, Circuit Judge:
12 This appeal is but the latest chapter in a lengthy
13 dispute over the payment of state and local taxes by the
14 plaintiff-appellee Oneida Indian Nation of New York (the "OIN").
15 The Supreme Court most recently addressed the OIN's tax
16 obligations in City of Sherrill, N.Y. v. Oneida Indian Nation of
17 N.Y., 544 U.S. 197 (2005) ("Sherrill"). The Court rejected the
18 OIN's contention that parcels of lands allegedly within the
19 boundaries of an Indian reservation once occupied by the Oneidas,
20 which were sold to non-Indians during the early 19th century and
21 bought back by the OIN on the open market in the 1990s, thereby
22 came under the sovereign dominion of the OIN and were therefore
23 exempt from municipal taxation.1 The OIN nonetheless now seeks
1
The OIN's suit against Madison County, which is one of
the actions consolidated in this appeal, was once consolidated
with three other actions involving the City of Sherrill. See
Oneida Indian Nation of N.Y. v. Madison County, 401 F. Supp. 2d
219, 223 (N.D.N.Y. 2005) (explaining history). In Oneida Indian
Nation of N.Y. v. City of Sherrill, N.Y., 337 F.3d 139 (2d Cir.
2003), this Court ruled in favor of the OIN with respect to those
three other actions, but vacated the Madison County action, which
we found to have been dealt with in a "procedurally improper"
manner by the district court. Id. at 170; see also id. at 145-
46, 171. The Supreme Court granted certiorari with respect to
the three actions in which we had ruled in the OIN's favor, and
3
1 to enjoin the defendants-appellants Madison and Oneida Counties
2 (the "Counties") from foreclosing on this property for non-
3 payment of county taxes. On cross-motions for summary judgment
4 brought in both of the cases that are consolidated on this
5 appeal, the district court ruled in favor of the OIN. See Oneida
6 Indian Nation v. Oneida County, 432 F. Supp. 2d 285, 292
7 (N.D.N.Y. 2006) ("Oneida County"); Oneida Indian Nation of N.Y.
8 v. Madison County, 401 F. Supp. 2d 219, 232-33 (N.D.N.Y. 2005)
9 ("Madison County"). We affirm on the ground that the OIN is
10 immune from suit under the long-standing doctrine of tribal
11 sovereign immunity. The remedy of foreclosure is therefore not
12 available to the Counties.
13 The Stockbridge-Munsee Community, Band of Mohican
14 Indians ("Stockbridge")2 filed a motion to intervene in Oneida
15 County pursuant to Federal Rule of Civil Procedure 24(a), with
16 the goal of obtaining dismissal of that action to the extent that
17 the land at issue was found to overlap with Stockbridge's
18 purported six-square-mile reservation. The district court
19 rejected Stockbridge's motion, finding that Stockbridge could not
20 demonstrate an interest in the Oneida County litigation. See 432
reversed in Sherrill, 544 U.S. 197. The instant case is thus
closely related to Sherrill, although it does not involve any
identical actions.
2
Stockbridge is referred to by various similar names in
the papers before us. We employ that used by its counsel in its
brief submitted to this Court.
4
1 F. Supp. 2d at 291-92. We conclude that this was not an abuse of
2 discretion.
3 BACKGROUND
4 The history of the land at issue here and transactions
5 affecting it has been set forth at some length in several other
6 opinions of this and other courts. See, e.g., Sherrill, 544 U.S.
7 at 203-12; Oneida Indian Nation of N.Y. v. City of Sherrill,
8 N.Y., 337 F.3d 139, 146-52 (2d Cir. 2003) ("Oneida Indian Nation
9 of N.Y."), rev'd, Sherrill, 544 U.S. 197; Oneida Indian Nation of
10 N.Y. v. City of Sherrill, N.Y., 145 F. Supp. 2d 226, 232-36
11 (N.D.N.Y. 2001), aff'd in part, vacated and remanded in part,
12 Oneida Indian Nation of N.Y., 337 F.3d 139, rev'd, Sherrill, 544
13 U.S. 197. We recite only those facts that we think are necessary
14 for an understanding of our resolution of this appeal.
15 The OIN's Land
16 The OIN is a federally recognized Indian Tribe that is
17 directly descended from the Oneida Indian Nation ("Oneida
18 Nation").3 The Oneida Nation's lands once encompassed some six
3
Despite our use of the "OIN" acronym, the
Oneida Indian Nation of New York should not
be confused with the original Oneida Indian
Nation, which is not a federally recognized
tribe and is not a party to these
consolidated cases. . . . [T]he original
Oneida Indian Nation became divided into
three distinct bands, the New York Oneidas,
the Wisconsin Oneidas, and the Canadian
Oneidas, by the middle of the nineteenth
century.
Oneida Indian Nation of N.Y., 337 F.3d at 144 n.1.
5
1 million acres in what is now central New York State. In 1788,
2 pursuant to the Treaty of Fort Schuyler between the Oneida Nation
3 and the State of New York, the Nation ceded title to nearly all
4 of its land to the State, retaining a reservation of only
5 approximately 300,000 acres. Sherrill, 544 U.S. at 203.
6 In 1790, Congress passed the first Indian Trade and
7 Intercourse Act. See Act of July 22, 1790, ch. 33, 1 Stat. 137
8 ("Nonintercourse Act"). The Nonintercourse Act, which remains
9 substantially in force today, bars the sale of tribal land
10 without federal government acquiescence. Sherrill, 544 U.S. at
11 204. In spite of the provisions of the Act, towards the end of
12 the 18th century and at the beginning of the 19th century, the
13 Oneida Nation sold substantial portions of the remaining
14 reservation land to New York State and to private parties without
15 the federal supervision that the Act required. See id. at 205-
16 06; Oneida Indian Nation of N.Y., 337 F.3d at 147-48. See also
17 United States v. Oneida Nation of N.Y., 477 F.2d 939, 940 (Ct.
18 Cl. 1973) (concluding that the federal government owed a
19 fiduciary duty to protect members of the Oneida Nation in
20 connection with their land dealings with New York State between
21 1795 and 1846). That land was subsequently sold to non-Indians
22 in free-market transactions. See Oneida Indian Nation of N.Y. v.
23 City of Sherrill, N.Y., 145 F. Supp. 2d at 234 & n.3. By 1838,
24 the Oneida Nation had sold all but 5,000 acres of the reservation
25 that had been created by the Treaty of Fort Schuyler. See
6
1 Sherrill, 544 U.S. at 206. By 1920, that number had dwindled to
2 thirty-two acres. Id. at 207.
3 Beginning in 1970, descendants of members of the Oneida
4 Nation pursued federal litigation against local governments in
5 New York in an effort to assert that certain of New York State's
6 purchases of reservation land during the late 18th and early 19th
7 centuries had been in violation of the Nonintercourse Act, and
8 therefore had not terminated the Oneidas' right to possess the
9 land. See id. at 208-11 (summarizing cases). In the 1990s, OIN
10 tribe members also began to purchase, through open-market
11 transactions, land that had once been a part of the Oneida
12 Nation's reservation. See Oneida Indian Nation of N.Y., 337 F.3d
13 at 144.
14 The Supreme Court's Decision in Sherrill
15 At issue in Sherrill were parcels of land in the city
16 of Sherrill (located in Oneida County, New York) that had
17 originally been part of the Oneida Nation reservation as
18 established by the Treaty of Fort Schuyler, but that had been
19 transferred by the Oneida Nation to one of its members in 1805,
20 and then in 1807 sold by that person to a non-Indian. Sherrill,
21 544 U.S. at 211. The OIN re-acquired these parcels on the open
22 market in 1997 and 1998. Id. In Sherrill, the OIN asserted that
23 these properties were exempt from taxation, arguing
24 that because the Court in [Oneida County,
25 N.Y. v. Oneida Indian Nation of N.Y., 470
7
1 U.S. 226 (1985)4] recognized the Oneidas'
2 aboriginal title to their ancient reservation
3 land and because the Tribe has now acquired
4 the specific parcels involved in this suit in
5 the open market, it has unified fee and
6 aboriginal title and may now assert sovereign
7 dominion over the parcels.
8 Id. at 213. Based on that contention, the OIN had brought suit
9 in the United States District Court for the Northern District of
10 New York seeking injunctive and declaratory relief that would
11 require recognition of its present and future sovereign immunity
12 from local taxation on the land. Id. at 214. We agreed on the
13 basis that "land in Indian country . . . is not subject to state
14 taxation absent express congressional authorization." Oneida
15 Indian Nation of N.Y., 337 F.3d at 154 (citing, inter alia,
16 Worcester v. State of Ga., 31 U.S. 515, 557 (1832), White
17 Mountain Apache Tribe v. Bracker, 448 U.S. 136, 151 (1980), and
18 Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 765 (1985)).
19 The Supreme Court reversed. It "reject[ed] the
20 unification theory of OIN and the United States and h[e]ld that
21 'standards of federal Indian law and federal equity practice'
22 preclude[d] the Tribe from rekindling embers of sovereignty that
23 long ago grew cold." Sherrill, 544 U.S. at 214. Noting that
24 "justifiable expectations, grounded in two centuries of New
25 York's exercise of regulatory jurisdiction, until recently
4
In this 1985 case, the Court permitted the OIN to seek
monetary damages for the sale of its land in the late 18th and
early 19th centuries, but "reserved for another day the question
whether 'equitable considerations' should limit the relief
available to the present-day Oneidas." Sherrill, 544 U.S. at 213
(citing Oneida County, N.Y., 470 U.S. at 253, n.27).
8
1 uncontested by OIN, merit heavy weight," id. at 215-16, the Court
2 concluded:
3 [T]he distance from 1805 to the present day,
4 the Oneidas' long delay in seeking equitable
5 relief against New York or its local units,
6 and developments in the city of Sherrill
7 spanning several generations, evoke the
8 doctrines of laches, acquiescence, and
9 impossibility, and render inequitable the
10 piecemeal shift in governance this suit seeks
11 unilaterally to initiate.
12
13 Id. at 221.
14 Madison County's Actions
15 Madison County has regularly assessed taxes with
16 respect to the parcels of land in the county that were purchased
17 by the OIN in the 1990s that are claimed to lie within the
18 boundaries of the reservation described in the Treaty of Fort
19 Schuyler. See Madison County, 401 F. Supp. 2d at 223. Each year
20 in which the OIN failed to pay property taxes, Madison County
21 would initiate foreclosure proceedings against the OIN-owned
22 parcels as part of its yearly foreclosure actions in state court.
23 Madison County would then abandon the foreclosure proceedings
24 against the OIN-owned parcels, in anticipation of a resolution of
25 the taxability question in Sherrill, when it became clear that
26 the Sherrill litigation would continue for another year. Id.
27 Madison County initiated and then abandoned foreclosure
28 proceedings in this manner in each year until 2003, id., when
29 this Court effectively separated the on-going Madison County
30 litigation from the Sherrill litigation and remanded it to the
9
1 district court for further proceedings, see Oneida Indian Nation
2 of N.Y., 337 F.3d at 171.
3 On November 14, 2003, the county instituted a
4 foreclosure action with respect to such OIN-owned property in New
5 York State court. Madison County, 401 F. Supp. 2d at 223. This
6 time, however, the county did not abandon these foreclosure
7 proceedings as it has done in previous years. A Petition and
8 Notice of Foreclosure was mailed to the owners of property that
9 the county was seeking foreclosure upon for non-payment of taxes,
10 including the OIN, on December 8, 2004, and was published in
11 December 2004 and January 2005. Id. It specified March 31,
12 2005, as the last day for redemption of these properties.5 Id.
13 The Supreme Court decided Sherrill on March 29, 2005, just two
14 days before this final day of redemption. Id. On April 28,
15 2005, Madison County moved for summary judgment in the 2003 state
16 court foreclosure action. Id. In the instant federal
17 proceedings, however, which had been pending in the district
18 court following this Court's remand in 2003, the district court
19 issued a preliminary injunction enjoining the state foreclosure
5
New York Real Property Tax Law § 1110 requires at least
two years of notice prior to the expiration of a redemption
period. The OIN contends, and the district court agreed, that it
was a violation of constitutional due process guarantees for the
county to fail to comply with this two-year notice provision by
issuing notice on December 8, 2004, that the redemption period
would expire on March 31, 2005, less than two years later.
Because we decide this case on other grounds, we need not and do
not reach this ruling. We also do not reach a similar due
process argument that is made with respect to Oneida County's
foreclosure procedures.
10
1 proceedings. See id.; Oneida Indian Nation of N.Y. v. Madison
2 County, 376 F. Supp. 2d 280, 283 (N.D.N.Y. 2005).
3 Oneida County's Actions
4 Oneida County follows a property tax foreclosure
5 procedure that is different from Madison County's. Pursuant to
6 county law, the county arranges for and advertises a tax auction
7 for the sale of any property on which taxes, which are uniformly
8 due on January 31, are delinquent by six months or more.
9 See Oneida County, 432 F. Supp. 2d at 287. The tax sale is held
10 on the last business day of December. Id. The delinquent
11 taxpayer then has three years to redeem the property, and an
12 additional thirty days following receipt of a Final Notice Before
13 Redemption. Id. at 287-88. This process was adhered to with
14 respect to all 280 OIN-owned parcels located within both Oneida
15 County and, allegedly, the reservation boundaries established by
16 the Treaty of Fort Schuyler. During the summer and early autumn
17 of 2005, Final Notices Before Redemption were delivered to the
18 OIN regarding 187 of those parcels. Id. at 288. On October 28,
19 2005, the OIN sought and received a restraining order preventing
20 further foreclosure efforts against any of the 280 parcels,
21 pending this outcome of this litigation. See id.
22 Stockbridge
23 Stockbridge seeks to intervene in these proceedings
24 based on its contention that fifty-two land parcels (two in
25 Oneida County and fifty in Madison County) are part of an
26 undiminished reservation of the Stockbridge Band rather than the
11
1 Oneidas. There is litigation pending addressing this claim in
2 the Northern District of New York. See Stockbridge-Munsee v.
3 State of New York, No. 3:86-CV-1140 (N.D.N.Y. Oct. 15, 1986).
4 Stockbridge argues that the Treaty of Fort Schuyler set aside a
5 six-square-mile permanent reservation for the Stockbridge Band,
6 separate from a surrounding 250,000 acre tract reserved for the
7 Oneidas.
8 District Court Proceedings
9 In both of the cases consolidated on appeal, the
10 district court concluded that the remedy of foreclosure was not
11 available to the Counties on four independent grounds: 1) the
12 Nonintercourse Act renders the OIN's properties inalienable and
13 therefore not subject to foreclosure, see Madison County, 401 F.
14 Supp. 2d at 227; Oneida County, 432 F. Supp. 2d at 289; 2) tribal
15 sovereign immunity bars suit against the OIN, see Madison County,
16 401 F. Supp. 2d at 228-29; Oneida County, 432 F. Supp. 2d at 289;
17 3) the Due Process Clause of the Fifth Amendment was violated by
18 the Counties' failure to give the OIN adequate notice of the
19 expiration of the redemption period, see Madison County, 401 F.
20 Supp. 2d at 230; Oneida County, 432 F. Supp. 2d at 289-90; and 4)
21 the land in question is exempt from taxation under New York State
22 law, see Madison County, 401 F. Supp. 2d at 231; Oneida County,
23 432 F. Supp. 2d at 290.
24 The district court denied Stockbridge's motion to
25 intervene in Oneida County on the ground that Stockbridge could
12
1 not demonstrate sufficient interest in the litigation. See 432
2 F. Supp. 2d at 291-92.
3 The Counties appeal from the grant of summary judgment
4 against them. Stockbridge appeals from the district court's
5 denial of its motion to intervene. The State of New York appears
6 as amicus curiae in support of the Counties, urging us to reverse
7 the decision of the district court. Upon order of this Court,
8 the United States also submitted a brief as amicus curiae. In
9 that brief, the United States urges us to affirm on the ground
10 that the OIN's tribal sovereign immunity bars the Counties'
11 efforts to foreclose on OIN-owned land.
12 Since this Court heard oral argument in this matter,
13 there have been several developments that affect the practical
14 implications of this Court's decision on Madison and Oneida
15 Counties. While these developments do not render moot any of the
16 issues before this Court on appeal, we think it useful to
17 describe them briefly.
18 In a Record of Decision issued on May 20, 2008, in
19 response to the OIN's application, the Department of the Interior
20 determined that it would take 13,003.89 acres of the OIN-owned
21 land at issue in this appeal into trust, pursuant to 25 U.S.C.
22 § 465 and 25 C.F.R. Part 151. See Department of the Interior,
23 Record of Decision, May 20, 2008 ("Record of Decision"). Notice
24 of this decision was published in the Federal Register on May 23,
25 2008. 73 Fed. Reg. 30144. This land will no longer be subject
26 to state or local taxation. 25 U.S.C. § 465. As a result, only
13
1 approximately 4,000 of the 17,000 acres of property originally at
2 issue in this case will remain subject to state and local
3 taxation in the future.
4 In connection with the land trust, in order to satisfy
5 the trust regulations, the OIN has posted letters of credit
6 securing the payment of all taxes, penalties, and interest
7 determined by the courts to be due on the land at issue and has
8 agreed to supplement or replace those letters to secure payment
9 of any additional penalties and interest that may accrue while
10 litigation concerning the trust decision is pending. Record of
11 Decision at 53. These letters cover substantially all taxes,
12 penalties, and interest assessed on all of the OIN-owned property
13 at issue in this case, including those parcels that the
14 Department of the Interior has decided not to take into trust.
15 Accordingly, notwithstanding this Court's decision on this
16 appeal, it appears that the Counties will receive back payment of
17 all taxes, penalties, and interest due on the property at issue
18 in this lawsuit. Despite this development and the practical
19 implications it has for the parties in this case, we reiterate
20 that it does not render moot any of the issues raised on nor
21 affect our consideration of this appeal.
22 DISCUSSION
23 I. Standard of Review
24 "We review a district court's grant of summary judgment
25 de novo, construing the evidence in the light most favorable to
26 the non-moving party and drawing all reasonable inferences in its
14
1 favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir.
2 2005). "[S]ummary judgment is appropriate where there exists no
3 genuine issue of material fact and, based on the undisputed
4 facts, the moving party is entitled to judgment as a matter of
5 law." D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998);
6 see also Fed. R. Civ. Pro. 56(c).
7 II. Tribal Sovereign Immunity
8 A. The Distinction Between Sovereign Authority Over
9 Reservation Lands And Sovereign Immunity From Suit
10
11 The Counties assert that the Supreme Court's decision
12 in Sherrill requires reversal here because the Sherrill Court
13 ruled that the land in question is not sovereign tribal land, and
14 it is therefore subject to taxation. The Counties interpret
15 Sherrill to hold that the OIN cannot assert sovereign immunity to
16 prevent a foreclosure action on such land.
17 We think that this argument improperly conflates two
18 distinct doctrines: tribal sovereign authority over reservation
19 lands and tribal sovereign immunity from suit. The freedom from
20 state taxation, in the broader context of immunity from state
21 regulation, which is addressed in Sherrill, arises from a tribe's
22 sovereign authority over its reservation lands. This sovereign
23 authority was examined by the Supreme Court as early as 1832:
24 From the commencement of our government,
25 congress has passed acts to regulate trade
26 and intercourse with the Indians; which treat
27 them as nations, respect their rights, and
28 manifest a firm purpose to afford that
29 protection which treaties stipulate. All
30 these acts . . . manifestly consider the
31 several Indian nations as distinct political
15
1 communities, having territorial boundaries,
2 within which their authority is
3 exclusive . . . .
4 Worcester v. State of Ga., 31 U.S. 515, 556-57 (1832) (Marshall,
5 C.J.), abrogated on other grounds as recognized by Nevada v.
6 Hicks, 533 U.S. 353, 361-62 (2001) (remarking that "the Indians'
7 right to make their own laws and be governed by them does not
8 exclude all state regulatory authority on the reservation.").
9 "The conceptual clarity of Mr. Chief Justice Marshall's view in
10 Worcester . . . has given way to more individualized treatment of
11 particular treaties and specific federal statutes." Mescalero
12 Apache Tribe v. Jones, 411 U.S. 145, 148 (1973).
13 But the Supreme Court has "categorical[ly]" maintained
14 that "[a]bsent cession of jurisdiction or other federal statutes
15 permitting it, . . . a State is without power to tax reservation
16 lands and reservation Indians." County of Yakima v. Confederated
17 Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 258
18 (1992) (internal quotation marks omitted). This principle has
19 been traced in later Supreme Court decisions to Worcester and
20 other cases of its era. See, e.g., id. at 257-58; Mescalero, 411
21 U.S. at 148; Montana v. Blackfeet Tribe of Indians, 471 U.S. 759,
22 764 (1985).
23 When the Supreme Court held in Sherrill that the OIN
24 could not "rekindl[e] embers of sovereignty that long ago grew
25 cold," 544 U.S. at 214, the sovereignty to which it was referring
26 was of the sort described in Worcester and its progeny. Indeed,
27 the decision of this Court that Sherrill reversed had focused on
16
1 this land-based "Indian sovereignty doctrine," Oneida Indian
2 Nation of N.Y., 337 F.3d at 155 (internal quotation marks
3 omitted), that had emerged from Worcester and other 19th century
4 cases, see id. at 153-55. The Supreme Court applied this
5 doctrine to the facts at hand in Sherrill when rejecting the
6 OIN's prayer for relief.
7 That doctrine is different, however, from the doctrine
8 of tribal immunity from suit. While the tax exemption of
9 reservation land arises from a tribe's exercise of sovereignty
10 over such land, and is therefore closely tied to the question of
11 whether the specific parcel at issue is "Indian reservation
12 land," Cass County, Minn. v. Leech Lake Band of Chippewa Indians,
13 524 U.S. 103, 110 (1998), a tribe's immunity from suit is
14 independent of its lands.6 See Kiowa Tribe of Okla. v. Mfg.
6
Thus, we need not reach the Counties' argument that the
OIN's reservation has been disestablished. Our conclusion does
not depend upon it. We note, however, that the Supreme Court in
Sherrill explicitly declined to resolve the question of whether
the Oneida reservation had been "disestablished," thus rendering
the land in question no longer part of a reservation or otherwise
part of "Indian country" as defined by 18 U.S.C. § 1151. Compare
Sherrill, 544 U.S. at 214 n.8 ("We resolve this case on
considerations not discretely identified in the parties'
briefs . . . .") with City of Sherrill, N.Y. v. Oneida Indian
Nation of N.Y., 2004 WL 1835364 at *i, 2004 U.S. S. Ct. Briefs
LEXIS 492 at **1 (U.S. Aug. 12, 2004) (Appellate Br. for Pet.)
(stating that one of the questions presented for review was
"[w]hether alleged reservation land is Indian country pursuant to
18 U.S.C. § 1151 . . . ."). Our prior holding on this question
-- that "the Oneidas' reservation was not disestablished," Oneida
Indian Nation of N.Y., 337 F.3d at 167 -- therefore remains the
controlling law of this circuit. See, e.g., Roman v. Abrams, 822
F.2d 214, 226 (2d Cir. 1987) (deciding that remand by the Supreme
Court did not disturb the precedent set by the portions of the
remanded case that the Supreme Court did not reach).
17
1 Tech., Inc., 523 U.S. 751, 754 (1998) ("[O]ur cases have
2 sustained tribal immunity from suit without drawing a distinction
3 based on where the tribal activities occurred.").
4 The doctrine of tribal immunity from suit has a
5 distinctive history in the Supreme Court. As the Court explained
6 in Kiowa:
7 Though the doctrine of tribal immunity [from
8 suit] is settled law and controls this case,
9 we note that it developed almost by accident.
10 The doctrine is said by some of our own
11 opinions to rest on the Court's opinion in
12 Turner v. United States, 248 U.S. 354 (1919).
13 Though Turner is indeed cited as authority
14 for the immunity, examination shows it simply
15 does not stand for that proposition.
16 . . . .
17 Turner's passing reference to immunity,
18 however, did become an explicit holding that
19 tribes had immunity from suit. We so held in
20 [United States v. U.S. Fidelity & Guar. Co.,
21 309 U.S. 506 (1940)], saying: "These Indian
22 Nations are exempt from suit without
23 Congressional authorization." [Id.] at 512
24 (citing Turner, supra, at 358). As
25 sovereigns or quasi sovereigns, the Indian
26 Nations enjoyed immunity "from judicial
27 attack" absent consent to be sued. Later
28 cases, albeit with little analysis,
29 reiterated the doctrine.
30 The doctrine of tribal immunity came under
31 attack a few years ago in [Okla. Tax Comm'n
32 v. Citizen Band] Potawatomi [Indian Tribe of
33 Okla., 498 U.S. 505 (1991)] . . . . We
34 retained the doctrine, however, on the theory
35 that Congress had failed to abrogate
36 it . . . .
37 [There are] considerations [that] might
38 suggest a need to abrogate tribal immunity,
39 at least as an overarching rule. Respondent
40 does not ask us to repudiate the principle
41 outright, but suggests instead that we
42 confine it to reservations or to
43 noncommercial activities. We decline to draw
18
1 this distinction in this case, as we defer to
2 the role Congress may wish to exercise in
3 this important judgment.
4 Congress has acted against the background of
5 our decisions. It has restricted tribal
6 immunity from suit in limited circumstances.
7 And in other statutes it has declared an
8 intention not to alter it.
9 . . .
10 Congress "has occasionally authorized limited
11 classes of suits against Indian tribes" and
12 "has always been at liberty to dispense with
13 such tribal immunity or to limit it."
14 Potawatomi, supra, at 510. It has not yet
15 done so.
16 523 U.S. at 756-59 (citations omitted).
17 The Kiowa Court highlighted the separate and
18 independent natures of the doctrines of tribal immunity from
19 taxation and other powers of the state, and tribal immunity from
20 suit that controls the case at bar:
21 We have recognized that a State may have
22 authority to tax or regulate tribal
23 activities occurring within the State but
24 outside Indian country. To say substantive
25 state laws apply to off-reservation conduct,
26 however, is not to say that a tribe no longer
27 enjoys immunity from suit. In Potawatomi,
28 for example, we reaffirmed that while
29 Oklahoma may tax cigarette sales by a Tribe's
30 store to nonmembers, the Tribe enjoys
31 immunity from a suit to collect unpaid state
32 taxes. There is a difference between the
33 right to demand compliance with state laws
34 and the means available to enforce them.
35 Id. at 755. (citations omitted).
36 While the doctrine of tribal sovereign authority over
37 land has "undergone considerable evolution [in the Supreme Court]
38 in response to changed circumstances," McClanahan v. State Tax
19
1 Comm'n of Ariz., 411 U.S. 164, 171 (1973), the doctrine of tribal
2 immunity from suit has not. The Kiowa Court indicated in the
3 portion of the opinion set forth above that it looks to Congress
4 for any such change.
5 In light of this history, we do not read Sherrill as
6 implicitly abrogating the OIN's immunity from suit. No such
7 statement of abrogation was made by the Sherrill Court, nor does
8 the opinion call into question the Kiowa Court's approach, that
9 any such abrogation should be left to Congress. Sherrill dealt
10 with "the right to demand compliance with state laws." Kiowa,
11 523 U.S. at 755. It did not address "the means available to
12 enforce" those laws. Id.
13 B. Application to the Case at Bar
14 We are left then with the rule stated in Kiowa: "As a
15 matter of federal law, an Indian tribe is subject to suit only
16 where Congress has authorized the suit or the tribe has waived
17 its immunity." Id. at 754. We therefore agree with the district
18 court that the remedy of foreclosure is not available to the
19 Counties unless and until Congress authorizes such suits or the
20 OIN consents to such suits. Because neither of these events has
21 occurred, the foreclosure actions are barred by the OIN's
22 immunity from suit.
23 The Counties argue that the notion that they may tax
24 but not foreclose is inconsistent and contradictory. To be sure,
25 the result is reminiscent of words of the nursery rhyme:
26 Mother, may I go out to swim?
20
1 Yes, my darling daughter;
2 Hang your clothes on a hickory limb,
3 And don't go near the water.7
4 Or, as the Counties more soberly assert, such a rule
5 "eviscerates" Sherrill, "making that essential right of
6 government [to tax properties] meaningless." Appellants' Br. at
7 51.
8 But a similar argument was rejected by the Supreme
9 Court in Potawatomi.8 There, the Court held that Oklahoma had
10 the authority to tax certain cigarette sales made at the tribe's
11 convenience store. Potawatomi, 498 U.S. at 512. The Court also
12 ruled that the tribe's immunity from suit prevented the state
13 from bringing suit to collect unpaid taxes. The Court reconciled
14 these two rulings thus:
7
Quoted in, e.g., Rose Cecil O'Neill, "The Hickory Limb"
(1907), available at www.gutenberg.org/files/28886/28886-8.txt
(last visited Mar. 19, 2010).
8
The Counties argue that a right without a remedy is
meaningless. Despite Chief Justice Marshall's eloquent statement
that the government of the United States cannot be called a
government of laws "if the laws furnish no remedy for the
violation of a vested legal right," Marbury v. Madison, 5 U.S. (1
Cranch) 137, 163 (1803), our courts often conclude that there is
no remedy to vindicate the violation of a right. Consider the
doctrine of qualified immunity. In cases raising the issue of
qualified immunity, a state actor may have violated the
plaintiff's constitutional rights, but the court nevertheless
decides that the actor is entitled to qualified immunity. See,
e.g., Moore v. Andreno, 505 F.3d 203 (2d Cir. 2007) (holding that
plaintiff's Fourth Amendment rights were violated but that
defendants were entitled to qualified immunity because that right
was not clearly established). In these cases, there was a
"violation of a vested legal right," but the "laws furnish no
remedy." Marbury, 5 U.S. at 163.
21
1 Oklahoma complains that, in effect, decisions
2 such as Moe[ v. Confederated Salish and
3 Kootenai Tribes of Flathead Reservation, 425
4 U.S. 463 (1976),] and [Washington v.
5 Confederated Tribes of] Colville
6 [Reservation, 447 U.S. 134 (1980),
7 (authorizing taxation in certain
8 circumstances)] give them a right without any
9 remedy. There is no doubt that sovereign
10 immunity bars the State from pursuing the
11 most efficient remedy, but we are not
12 persuaded that it lacks any adequate
13 alternatives. We have never held that
14 individual agents or officers of a tribe are
15 not liable for damages in actions brought by
16 the State . . . . States may also enter into
17 agreements with the tribes to adopt a
18 mutually satisfactory regime for the
19 collection of this sort of tax. And if
20 Oklahoma and other States similarly situated
21 find that none of these alternatives produce
22 the revenues to which they are entitled, they
23 may of course seek appropriate legislation
24 from Congress.
25 498 U.S. at 514 (citations omitted).
26 Individual tribal members and tribal officers in their
27 official capacity remain susceptible to suits for damages and
28 injunctive relief. See Puyallup Tribe, Inc. v. Dep't of Game of
29 State of Wash., 433 U.S. 165, 171 (1977) ("[W]hether or not the
30 Tribe itself may be sued in a state court without its consent or
31 that of Congress, a suit to enjoin violations of state law by
32 individual tribal members is permissible."). They may therefore
33 be enjoined from violations of state law. But if such
34 enforcement mechanisms fail and if no agreement can be reached
35 between the Counties and the OIN, the Counties' ultimate recourse
36 will be to Congress, as we understand the Supreme Court to have
37 instructed.
22
1 Because we affirm on the ground that the foreclosure
2 actions are barred by the OIN's sovereign immunity from suit, we
3 need not and do not reach the other three rationales relied upon
4 by the district court.
5 III. Abstention
6 The Counties argue that the district court "erred as a
7 matter of law in refusing to abstain from interfering with the
8 Counties' tax foreclosure process." Appellants' Br. at 105. "We
9 evaluate a district court's determination not to abstain . . . de
10 novo, because it implicates the court's subject matter
11 jurisdiction." Hartford Courant Co. v. Pellegrino, 380 F.3d 83,
12 90 (2d Cir. 2004). We agree with the district court, see Madison
13 County, 401 F. Supp. 2d at 225, that abstention is not
14 appropriate here.
15 The Counties' abstention argument appears to be based
16 on 28 U.S.C. § 1341, which states that "[t]he district courts
17 shall not enjoin, suspend or restrain the assessment, levy or
18 collection of any tax under State law where a plain, speedy and
19 efficient remedy may be had in the courts of such State." As the
20 Counties note, though, in Moe v. Confederated Salish and Kootenai
21 Tribes of Flathead Reservation, 425 U.S. 463 (1976), the Supreme
22 Court created an "exception to the general rule barring federal
23 interference with state tax administration." Appellants' Br. at
24 106. The Moe Court concluded that Indian tribes should be
25 permitted to bring federal lawsuits that the United States could
26 have brought on a tribe's behalf as trustee -- a principle that
23
1 the Court found expressed in the legislative history of 28 U.S.C.
2 § 1362, which provides that "[t]he district courts shall have
3 original jurisdiction of all civil actions, brought by any Indian
4 tribe or band with a governing body duly recognized by the
5 Secretary of the Interior, wherein the matter in controversy
6 arises under the Constitution, laws, or treaties of the United
7 States." The Court decided that inasmuch as "the United States
8 [was] not barred by § 1341 from seeking to enjoin the enforcement
9 of a state tax law, . . . the Tribe [was] not barred from doing
10 so . . . ." Moe, 425 U.S. at 474-75 (citation omitted).
11 The Counties argue that this exception is inapplicable
12 here because "Sherrill held that local government -- and not OIN
13 -- has full sovereignty over the land at issue." Appellants' Br.
14 at 106. But Moe does not depend on whether a tribe has
15 sovereignty over any particular land. We perceive no reason why,
16 because of Sherrill or otherwise, the holding of Moe should not
17 apply to the case at bar. Accordingly, we decline to order the
18 district court to abstain from exercising jurisdiction over this
19 matter.
20 IV. Stockbridge's Motion to Intervene
21 Stockbridge appeals from the district court's denial of
22 its motion to intervene in the Oneida County litigation as a
23 matter of right pursuant to Federal Rule of Civil Procedure
24 24(a)(2).9 We review the district court's denial of a Rule 24(a)
9
Stockbridge does not appeal the district court's denial
of its motion to intervene in the Madison County case.
24
1 motion for abuse of discretion. Brennan v. N.Y. City Bd. of
2 Educ., 260 F.3d 123, 128 (2d Cir. 2001).
3 Rule 24(a)(2) states: "On timely motion, the
4 [district] court must permit anyone to intervene who . . . claims
5 an interest relating to the property or transaction that is the
6 subject of the action, and is so situated that disposing of the
7 action may as a practical matter impair or impede the movant's
8 ability to protect its interest, unless existing parties
9 adequately represent that interest."
10 Intervention as of right under Rule 24(a)(2)
11 is granted when all four of the following
12 conditions are met: (1) the motion is timely;
13 (2) the applicant asserts an interest
14 relating to the property or transaction that
15 is the subject of the action; (3) the
16 applicant is so situated that without
17 intervention, disposition of the action may,
18 as a practical matter, impair or impede the
19 applicant's ability to protect its interest;
20 and (4) the applicant's interest is not
21 adequately represented by the other parties.
22 MasterCard Int'l Inc. v. Visa Int'l Serv. Ass'n, Inc., 471 F.3d
23 377, 389 (2d Cir. 2006).
24 Stockbridge sought to intervene for the sole purpose of
25 seeking dismissal of this case insofar as it relates to the
26 parcels of land that are allegedly part of the Stockbridge
Stockbridge does, however, argue as amicus curiae, see
Stockbridge Br. at 11 n.4 and 40 n.10, that it was an abuse of
discretion for the district court to deny Madison County's motion
to file a Rule 19 motion to dismiss for failure to join an
indispensable party in that case. For the reasons set forth in
the Rule 24 analysis, we conclude that Stockbridge is not an
indispensable party to these actions, and that the district court
therefore did not abuse its discretion in denying Madison
County's Rule 19 motion to dismiss.
25
1 reservation. The ground for dismissal that Stockbridge proposed
2 to assert was that "Stockbridge is a necessary and indispensable
3 party which enjoys sovereign immunity from suit and cannot be
4 forced to join this action. In its absence, the suit cannot
5 proceed and must be dismissed as to all Oneida County lands
6 situated within the 1788 Stockbridge treaty reservation."
7 Stockbridge Mot. to Intervene at 2, Oneida County, dated November
8 25, 2005. In other words, Stockbridge asserts that it is a
9 required party under Federal Rule of Civil Procedure 19(a)(1),
10 but that joinder is not feasible as a result of Stockbridge's
11 immunity from suit, and dismissal is therefore warranted under
12 Rule 19(b) because Stockbridge is an indispensable party under
13 that rule.
14 Rule 19(a), governing "Required Joinder of Parties,"
15 and Rule 24(a)(2), covering "Intervention of Right,"10 under
16 which Stockbridge asserts its claim here, "are intended to mirror
17 each other." MasterCard, 471 F.3d at 390. Rule 19(a) requires
18 parties to be joined if joinder is feasible and if the parties
19 are necessary to "accord complete relief among existing parties,"
20 Fed. R. Civ. P. 19(a)(1)(A), or if, under specified
21 circumstances, disposing of the case without that party might
22 "(i) as a practical matter impair or impede the person's ability
23 to protect the interest; or (ii) leave an existing party subject
10
This subsection covers such intervention other than that
provided for by federal statute, which is covered by subsection
(a)(1) and is not at issue here.
26
1 to a substantial risk of incurring double, multiple, or otherwise
2 inconsistent obligations because of the interest," Fed. R. Civ.
3 P. 19(a)(1)(B).11 "[I]f a party is not 'necessary' under Rule
4 19(a), then it cannot satisfy the test for intervention as of
5 right under Rule 24(a)(2)." MasterCard, 471 F.3d at 389.
6 Stockbridge argues that it is a necessary party under
7 both Rule 19(a)(1)(B)(i) and (ii) because disposing of this
8 matter in its absence might "as a practical matter impair or
9 impede Stockbridge's ability to protect its interest" relating to
10 the subject of the action, Stockbridge Br. at 8, and might also
11 "leave the County subject to a substantial risk of incurring
11
Federal Rule of Civil Procedure 19(a)(1) reads in its
entirety:
(a) Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is subject to
service of process and whose joinder will not deprive
the court of subject-matter jurisdiction must be joined
as a party if:
(A) in that person's absence, the court
cannot accord complete relief among existing
parties; or
(B) that person claims an interest relating
to the subject of the action and is so
situated that disposing of the action in the
person's absence may:
(i) as a practical matter impair or
impede the person's ability to
protect the interest; or
(ii) leave an existing party subject to
a substantial risk of incurring
double, multiple, or otherwise
inconsistent obligations because of
the interest.
Id. (emphasis in original).
27
1 double, multiple, or otherwise inconsistent obligations," id. at
2 48.12 But under either theory, Stockbridge must first show that
3 it "claims an interest relating to the subject of the action."
4 Fed. R. of Civ. P. 19(a)(1)(B). As explained in MasterCard, 471
5 F.3d at 390, and discussed above, Rule 24 requires a similar
6 showing if Stockbridge is to establish the ability to intervene
7 as a matter of right.
8 The district court determined that Stockbridge lacked
9 an interest in the instant litigation and therefore denied its
10 motion to intervene. Oneida County, 432 F. Supp. 2d at 292. We
11 agree.
12 [F]or an interest to be cognizable under Rule
13 24(a)(2), it must be direct, substantial, and
14 legally protectable. An interest that is
15 remote from the subject matter of the
16 proceeding, or that is contingent upon the
17 occurrence of a sequence of events before it
18 becomes colorable, will not satisfy the rule.
19 Brennan, 260 F.3d at 129 (citations and internal quotation marks
20 omitted). Stockbridge's purported interest in this case stems
21 from the fact that it is currently involved in litigation in
22 which it is asserting that a portion of the land at issue here is
23 in fact part of the Stockbridge reservation. See Stockbridge-
24 Munsee v. State of New York, No. 3:86-CV-1140 (N.D.N.Y. Oct. 15,
12
Although Stockbridge includes this statutory language in
its argument, it has failed to identify any possibility that a
failure to join them would subject the existing parties to
inconsistent obligations.
28
1 1986).13 Stockbridge is therefore concerned that the present
2 litigation could hinder its efforts to protect its property
3 interest in that land.
4 The parties to this litigation do not, however, purport
5 to put at issue the boundaries of the OIN's or Stockbridge's
6 reservation. Nor, with the exception of the OIN's claims under
7 state law, do the Tribe's arguments so much as touch on the issue
8 of the continued existence of the reservation irrespective of its
9 boundaries. We think that Sherrill's rejection of the
10 "unification theory," 544 U.S. at 214, under which the OIN argued
11 that it had "unified fee and aboriginal title and may [therefore]
12 assert sovereign dominion over the parcels," id. at 213, has
13 taken the question of the reservation boundaries off the table
14 for purposes of this appeal. What is relevant now is the OIN's
15 assertion that it is immune from suit even if it does not have
16 sovereign control over the land in question. The Counties'
17 contrary assertion is that they can foreclose on land owned by
18 the OIN irrespective of whether it is now or ever was part of the
19 tribe's reservation. Stockbridge's interest in this litigation
20 is therefore remote at best, because these assertions are
21 unrelated to the question of reservation boundaries.14
13
The OIN and both of the Counties are parties to that
litigation.
14
The Madison County district court did refer to "[t]he
properties at issue" in the litigation being "located within the
[Oneida] Nation's reservation." 401 F. Supp. 2d at 231. We
hardly think that this sort of comment made by a district
court -- or an appellate court for that matter -- in this case,
29
1 Finally, we note that the manner in which we decide
2 this appeal also renders minimal the likelihood that Stockbridge
3 will be prejudiced by its failure to be allowed to intervene.15
4 CONCLUSION
5 For the foregoing reasons, we affirm the judgment of
6 the district court.
where neither the issue nor a party claiming otherwise is before
the court, is cause for a legitimate concern on the part of
Stockbridge that its rights may be adversely affected in this
litigation.
15
In light of our conclusion, we need not reach the
argument raised by the United States, as amicus curiae, that the
appeal of the denial of the motion to intervene was not timely
filed.
30
JOSÉ A. CABRANES, Circuit Judge, with whom JUDGE PETER W. HALL joins, concurring:
The holding in this case comes down to this: an Indian tribe can purchase land (including land
that was never part of a reservation); refuse to pay lawfully-owed taxes; and suffer no consequences
because the taxing authority cannot sue to collect the taxes owed.1
This rule of decision defies common sense. But absent action by our highest Court, or by
Congress, it is the law. In the last twenty years, the Supreme Court has twice held that, although states
may have a right to demand compliance with state laws by Indian tribes, they lack the legal means to
enforce that right. See Kiowa Tribe of Okla. v. Mfg. Tech., Inc., 523 U.S. 751, 755 (1998) (“There is a
difference between the right to demand compliance with state laws and the means available to enforce
them.”); Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 514 (1991)
(holding that states have a right to collect taxes on certain cigarette sales on an Indian reservation, but
the tribe is immune from suit seeking to enforce that right). In light of this unambiguous guidance
from the Supreme Court, I am bound to concur with the conclusion that, although the Counties may
tax the property at issue here, see City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005),
they may not foreclose on those properties because the tribe is immune from suit.
This result, however, is so anomalous that it calls out for the Supreme Court to revisit Kiowa and
Potawatomi. I wish that we were empowered to revisit those decisions, but, alas, that is not a privilege
extended to intermediate appellate courts. If law and logic are to be reunited in this area of the law, it
will have to be done by our highest Court, or by Congress.
Accordingly, I concur in the judgment of the Court and in the careful and comprehensive
opinion of Judge Sack.
1
The Department of the Interior has agreed to accept roughly 13,000 of the tribe’s 17,000
acres into trust. Department of the Interior, Record of Decision, May 20, 2008. Once the land is
held in trust, it will no longer be subject to state and local taxation. 25 U.S.C. § 465. To be taken
into trust, however, the tribe must pay all back taxes, penalties, and interest owed on the land before
it was taken into trust. 25 C.F.R. § 151.13. Accordingly, the practical effect on the Counties of our
holding is limited to the 4,000 acres that will remain out of the trust.