DECISION AND ORDER
INTRODUCTION
. This action challenges Seneca County’s ability to impose and collect ad valorem property taxes on parcels of real estate owned by the' Cayuga Indian Nation of New York. The Cayuga Nation contends both that Seneca County cannot impose the property taxes, because the subject properties are “located within an Indian reservation,”
BACKGROUND
Unless otherwise indicated, thé following facts are taken from Seneca County’s “Answer to Amended Complaint and Counterclaim,”
In response to those foreclosure lawsuits, the Cayuga Nation commenced this lawsuit. The Cayugas’ Amended Complaint purports to assert two causes of action. The first cause of action alleges that the County’s attempts to foreclose on the Cayugas’ properties violate federal law, and specifically, the Treaty of Canandaigua, the U.S. Constitution Article I, § 8, and the “Non-Intercourse Act,” 25 U.S.C. § 177. On this point, the Cayugas’ pleading alleges that any properties which the Cayugas own in Seneca County are within the geographic boundary of the 64,000-acre Cayuga Indian Reservation that was “acknowledged [by the United States of America] in the Treaty of Canandaigua, November 11, 1794.”
In sum, the Cayugas’ first cause of action is twofold: 1) the subject properties are part of the federally-recognized Cayuga Indian Reservation, and the County therefore cannot foreclose on the properties, because it lacks the authority to interfere with the ownership or possession of federal Indian reservation lands; and 2) the “Cayuga Indian Nation of New York” is a “sovereign Indian nation,” which is protected from foreclosure lawsuits by the federal doctrine of sovereign immunity from suit.
The Cayugas’ second cause of action alleges that Seneca County violated two New York statutes — New York State Property Tax Law § 454 and New York Indian Law § 6 — by assessing property taxes on their properties. On this point, the pleading contends that both of those statutes forbid the imposition of taxes on “Indian reservation” lands. See, Amended
As for relief, the Cayugas’ pleading seeks two types. First, the Amended Complaint seeks a declaration that the County cannot foreclose on, or otherwise “acquire, convey, sell or transfer title” to, “Nation-owned properties” within Seneca County. Second, the Amended Complaint seeks an injunction, prohibiting the County from making “any further efforts” to foreclose on, acquire, convey or otherwise sell “Nation-owned properties in Seneca County;” prohibiting the County from “interfering in any way with the Nation’s ownership, possession, and occupancy of such lands;” and requiring the County to “rescind all acts taken to acquire, convey, foreclose, sell or transfer title to Nation-owned properties within Seneca County to date.”
When the Cayugas commenced this action, they also filed a motion for preliminary injunctive relief, barring Seneca County from proceeding with pending foreclosure actions, affecting the five parcels identified in the Amended Complaint, on the basis of sovereign immunity. On August 20, 2012, the Court granted such preliminary injunctive relief. Cayuga Indian Nation of New York v. Seneca County, New York,
On August 31, 2015, Seneca County filed its' Answer to Amended Complaint and Counterclaim [# 37]. The counterclaim seeks a declaratory judgment “that the Subject Properties are not now an Indian reservation for purposes of New York Real Property Tax Law § 454 or Indian Law § 6 or Indian country for purposes of 18 U.S.C. § 1151.” The pertinent factual allegations supporting the counterclaim are as follows:
On or about July 27, 1795, the Nation entered into a treaty with the State of New York under which New York acquired the entire “Original Reservation,” except for a three-square mile parcel. In 1807, the State of New York purchased the remaining three-square mile parcel ... from the Nation. The Treaty of Buffalo Creek of 1838 was ratified by the Senate and proclaimed by the President of the United States. The Treaty of Buffalo Creek of 1838 disestablished any Nation reservation in Neiv York. As a result of the foregoing, any and all right, title, and interest of the Nation to the “Original Reservation” had lawfully extinguished and the State of New York held full title to these lands[, which they later sold to] private successors in interest.... The subsequent history and treatment of the land located within what had been the “Original Reservation” demonstrate and confirm that the former Nation reservation was disestablished long ago.
Answer to Amended Complaint with Counterclaim [# 37] at ¶¶ 32-37, 39 (emphasis added; paragraph numbers omitted). Thus, Seneca County’s contention that the Cayuga Indian Reservation does not presently exist has two primary components: First, that the reservation was disestablished by the Treaty of Buffalo Creek; and
On October 8, 2015, the Cayuga Nation filed the subject motion [# 39] to dismiss the counterclaim. The Nation first contends that the counterclaim is “non-justiciable” because it is barred by sovereign immunity. In particular, the Nation asserts that by bringing this action, it “did not expressly or impliedly consent to an adjudication of its reservation status, in the abstract.”
As a second basis for dismissal, the Nation contends that the counterclaim, is barred by collateral estoppel. In particular, the Nation contends that the Seneca County Sheriff and Seneca County District Attorney unsuccessfully litigated the same argument that Seneca County is raising here — that the Cayuga Reservation was disestablished by the Treaty of Buffalo Creek — in Cayuga Indian Nation of New York v. Gould,
As the third and last basis for its motion to dismiss the counterclaim, the Nation contends that the counterclaim fails to state an actionable claim as a matter of law, since “binding precedent” and other Second Circuit case law establishes that the Cayuga Reservation still exists. In particular, the Nation contends that the Second Circuit Court of Appeals has determined that the similarly-situated Oneida Indian Reservation continues to exist, and was not disestablished by the Treaty of Buffalo Creek, citing, inter alia, Oneida Indian Nation of New York v. City of Sherrill, New York,
The Cayuga Nation’s motion to dismiss is purportedly made pursuant to both Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). It appears that the “justiciability” arguments (sovereign immunity and lack of independent case or controversy) are made under Rule 12(b)(1), while the collateral estoppel and merits-based arguments are made under Rule 12(b)(6).
Seneca County opposes every aspect of the Cayuga Nation’s motion to dismiss.
The Cayuga Nation filed a reply in which it reiterates the arguments in its motion to dismiss. Additionally, with regard to collateral estoppel, the Cayugas’ reply raises a new argument, namely, that Seneca County should be deemed to be in privity with the county officials who were involved in the Gould lawsuit, because Seneca County funded and controlled the legal defense for those county officials.' As for the merits of the counterclaim, the Cayugas maintain that the counterclaim fails to plausibly plead how the Cayuga Reservation was disestablished.
On June 16, 2016, the Cayuga Nation submitted a supplemental letter brief, concerning the Supreme Court’s then-recent decision in Nebraska v. Parker, — U.S. —,
The Court indicated, prior to briefing on the motion to dismiss the counterclaim, that it would only schedule oral argument if necessary. (Docket No. [#36]). The Court has determined that oral argument is not necessary.
STANDARDS OF LAW
Where the Court has before it motions under both 12(b)(1) and 12(b)(6), it should address the 12(b)(1) motion first. See, Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass’n,
FRCP 12(b)(1): Sovereign Immunity and Case or Controversy Requirement
“A complaint must be dismissed under Rule 12(b)(1) ‘when the district
In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction. But where jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits. In that case, the party asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.
Tandon v. Captain’s Cove Marina of Bridgeport, Inc.,
The Counterclaim is Not Barred by Sovereign Immunity, and Involves an Actual Case or Controversy
The Cayuga Nation contends that the County’s counterclaim is barred by sovereign immunity from suit. On this point, the Cayugas argue that their sovereign immunity bars a counterclaim that seeks “anything beyond the ‘mirror image’ of the Nation’s affirmative claims,” which, they maintain, the County’s counterclaim does. Alternatively, the Cayugas contend that if the counterclaim “mirrors” their own claim for relief, then it fails to state an independent case or controversy, since the County would face no injury if the Cayugas discontinued this action. Seneca County responds that its counterclaim “mirrors” the Cayugas’ claim, and that the Cayugas waived sovereign immunity on this issue by raising it in the Amended Complaint.
The Court has already determined that the Cayuga Nation cannot be sued in the-underlying foreclosure actions, because it enjoys sovereign immunity from suit. In that regard, the Court pointed out that an Indian tribe generally cannot be sued unless it consents to be sued, or unless Congress authorizes the lawsuit. “This principle extends to counterclaims lodged against a plaintiff tribe — even compulsory counterclaims.” Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah,
The U.S. Supreme Court has held that an Indian tribe does “not waive its sovereign immunity” as to counterclaims “merely by filing an action for injunctive relief.” Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Oklahoma,
The Cayuga Nation concedes that mirror-image counterclaims are not precluded by sovereign immunity.
However, the Court disagrees, and finds that the counterclaim is the “mirror image” of the'Cayugas’ claim. In particular, the counterclaim seeks a declaration that the Cayuga-owned properties in Seneca County “are not now an Indian reservation for purposes of New York Real Property Tax Law § 454 or Indian Law § 6 or Indian Country for purposes of 18 U.S.C. § 1151,”
The Cayugas nevertheless contend, alternatively, that if the counterclaim mirrors the claims in the Amended Complaint, then the Court lacks subject-matter jurisdiction to consider the counterclaim, since the counterclaim fails to present an independent case or controversy. On this point, the Cayugas cite, inter alia, Arista Records LLC v. Usenet.com, Inc., No. 07 Civ. 8822(HB),
However, the Court again disagrees. To begin with, it is clear from the pleadings that there is a real, not speculative, ongoing disagreement between the parties as to whether the Nation-owned properties are taxable, because they are Indian-reservation lands, regardless of whether the County is presently able to collect any taxes imposed.
For the same reason, the Court does not agree with the Cayuga Nation that the counterclaim merely raises an “abstract question.”
The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basiсally, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.
Maryland Cas. Co. v. Pac. Coal & Oil Co.,
Collateral Estoppel
Seneca County’s counterclaim contends that the subject Nation-owned properties in Seneca- County are “neither ‘Indian country’ nor part of an ‘Indian reservation,’” because, after the Cayuga Nation sold all of its lands to the State of New York, “[t]he Treaty of Buffalo Creek of 1838 disestablished any [Cayuga] Nation reservation in New York.”
The Cayuga Nation’s collateral es-toppel argument is made pursuant to FRCP 12(b)(6), and the standard for determining such motions is clear:
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. We construe all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiffs favor.24 In its review, the Court is entitled to consider facts alleged in the complaint and documents attached to it or incorporated in it by reference, documents “integral” to the complaint and relied upon in it, and facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.
Heckman v. Town of Hempstead,
Collateral estoppel is an affirmative defense. See, Austin v. Fischer,
Particularly as to 12(b)(6) motions concerning collateral estoppel, the Second Circuit has stated:
When a defendant raises the affirmative defense of ... collateral estoppel and it is clear from the face of the complaint that the plaintiffs claims are barred as a matter of law, dismissal under Fed. R.Civ.P. 12(b)(6) is appropriate.
The general legal principles concerning the doctrine of collateral estoppel are well settled: “Under the doctrine of collateral estoppel (issue preclusion), a [party] is prevented from relitigating in a subsequent action an issue of fact or law that was fully and fairly litigated in a prior proceeding.” Austin v. Downs, Rachlin & Martin Burlington St. Johnsbury,
a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered. Under New York law, the doctrine of issue preclusion only applies if (1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding.
Mejia v. N.Y. City Health & Hosps. Corp.,
The litigant seeking the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily decided in the prior action against a party, or one in privity with a party. The party to be precluded from relitigating the issue bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination.
Buechel v. Bain,
To be clear, “the party seeking the benefit of the [collateral estoppel] doctrine .,. bears the initial burden of demonstrating that there is privity.” State v. Zurich Am. Ins. Co.,
The New York Court of Appeals has indicated that it can be difficult to determine whether such privity exists, and that doubts should be resolved against the application of the doctrine:
In the context of collateral estoppel, privity does not have a single well-defined meaning. Rather, privity is an amorphous concept not easy of application and includes those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and those who are coparties to a prior action. In addressing privity, courts must carefully analyze whether the par.ty. sought to be bound and the party against whom the litigated issue was decided have a relationship that would justify • preclusion, and whether preclusion, with its -severe consequences, would be fair under the 'particular circumstances. Doubts should be resolved against imposing preclusion -to ensure that the party to be bound can be considered to have had a full and fair opportunity to litigate.
Buechel v. Bain,
When considering the potential preclusive effect of prior federal-court judgments, federal courts generally hold that for purposes of res judicata and/or collateral estoppel, a government entity is considered to be in privity with an official of that same government who was previously sued in his official capacity. See, O’Connor v. Pierson,
However, New York state courts will not necessarily find privity between a municipality and a municipal official sued in his official capacity. Particularly as regards privity between members of the same municipal entity, another District Judge in this Circuit recently stated the applicable New York law as follows:
In analyzing whether privity between two government agencies exists for purposes of collateral estoppel, the New York State Court of Appeals has looked to the Restatement Second of Judgments, which provides that:
- If the second action involves an agency or official whose functions and responsibilities are so distinct- from those of the agency or. official in the first action that applying preclusion would interfere with the рroper allocar tion of authority between them, the earlier judgment should not be given preclusive effect in the second action.
[Juan C. v.] Cortines, 89 N.Y.2d [659,] 669, 679 N.E.2d [1061,] 1066 [657 N.Y.S.2d 581 ] [(1997)] (quoting Restatement (Second) of Judgments § 86, cmt. f). Accordingly, in certain situations, a final decision, on the merits that binds one government agency may not bind a different government agency. This [Court] has noted that New York courts have largely refused to find two -functionally independent governmental entities in privity with each other - for purposes of preclusion.
State of N.Y. v. Mountain Tobacco Co., No. 12-CV-6276(JS)(SIL),
Applying this standard in Juan C. v. Cortines, the New York Court of Appeals found that there was not sufficient privity between members of the same New York City municipal government. Specifically, the Court of Appeals held that the New York City Corporation Counsel, which had represented the City in a Family Court Juvenile Delinquеncy‘proceeding involving a high school student, and New York City School personnel, who subsequently conducted a disciplinary hearing involving the same student, were not in privity. In that regard, the court noted that the City School personnel were not parties to the earlier Family Court proceeding, and that their authority was “distinctively separate from other usual City operations and powers and specifically distinct from the Corporation Counsel’s role [in Family Court proceedings.].” Id.,
In the instant case, the Cayuga Nation cites federal-court decisions for the proposition that governmental officials sued in their official capacities are deemed to be “in privity” with the governmental entity that they serve.
Further, the Court’s own examination of the particular functions and purposes of the governmental entities involved here (Seneca County versus Seneca County Sheriff and Seneca County District Attorney), as well as their relationship in the prior Gould litigation, does not necessarily establish the required privity under New York law. To begin with, the Cayuga Ña
Based upon all of the foregoing, the Court finds that the Cayuga Nation has not demonstrated the necessary privity, between Seneca County and the Gould defendants, for collateral estoppel to arise under New York law. However, even if the Cayuga Nation had made a sufficient showing of privity, the Court would nonetheless find that the Cayuga Nation has failed to show that the issue presented by Seneca County’s counterclaim — whether the 1838 Treaty of Buffalo Creek disestablished the Cayuga reservation — was decided by the Court in Gould. In fact, the court in Gould did not purport to make its own determination of that issue. Rather, the court in Gould merely purported to determine whether, as of that date, the federal government recognized the Cayuga reservation as still existing. As part of that discussion, the court in Gould noted that no federal court had, as of that date, accepted the argument that the 1838 Treaty of Buffalo Creek disestablished the Cayuga reservation.
For all of the reasons discussed above, the Cayuga Nation’s application to dismiss the counterclaim based upon collateral es-toppel is denied.
Motion to Dismiss for Failure to State a Claim
The third and final basis for the Cayuga Nation’s motion to dismiss the counterclaim is that it fails to state an actionable claim, because as a matter of law, the 1838 Treaty of Buffalo Creek did not disestablish the Cayuga Reservation, contrary to what the counterclaim asserts. In the regard, the Cayuga motion refers ■ to ■ the counterclaim as “the County’s disestablishment claim,”
The Court believes that the Cayuga Nation is correct in characterizing the counterclaim as the County’s “disestablishment claim.” On this point, the counterclaim makes the following'factual assertions, in pertinent part:
The Nation concluded a treaty with the State of New York on or about February 25, 1789, under which the Nation ceded all of its lands to New York, except for 64,015 acres of land that constituted the Nation’s “Original Reservation.”
The Subject Properties are located within the “Original Reservation.”
On or about July 27, 1795, the Nation entered into a treaty with the State of New-York under which New York acquired the entire “Original Reservation,” except for a three-square-mile parcel. In 1807, the State of New York purchased the remaining three-square-mile parcel in the “Original Reservation” from the Nation.
The Treaty of Buffalo Creek of 1838 was ratified by the Senate and proclaimed by the President of the United States.
The Treaty of Buffalo Creek of 1838 disestablished any Nation reservation in New York.
As a result of the foregoing, any and all right,, title, and interest of the Nation to the “Original Reservation” had lawfully extinguished and the State of New.-York held full title to these lands.
Answer to Amended Complaint with Counterclaim [# 37] at ¶¶ 30-36 (paragraph numbers omitted). Although the counterclaim seeks a declaration that “the Subject Properties are not now an Indian reservation for purposes of New York Real Property Tax Law § 454 or Indian Law § 6 or “Indian country” for purposes of 18 U.S.C. § 1151,” the counterclaim alleges that the subject lands are not covered by the aforementioned statutes because, and only because, the Cayuga reservation has been disestablished.
Significantly, the counterclaim fails to mention that between the time when the “Original Reservation” was established (February 26,1789) and the time when the State of New York purchased all of the “Original Reservation” (1795-1807), at least. .three important things occurred: First, on March 4,1789, the U.S. Constitution became effective, “grant[ing] the federal government authority over Indian affairs” which had previously belonged to the individual states, Citizens Against Casing Gambling in Erie County v. Hogen, No. 07-CV-0451S,
Because of these events, at . all relevant times the State' of New York lacked’ the authority 'to “disestablish” the Cayuga Reservation in any manner, including its
[Oq]nly Congress can divest a reservation of its land and diminish its boundaries. Once a block of land is set aside for an Indian Reservation and -no matter what happens to the title of individual plots within the area, the entire block, retains its reservation status until Congress explicitly indicates otherwise. -
Solem v. Bartlett,
Consequently, while the counterclaim appears to suggest that the State of New York’s purchases of the Cayuga Nations’ land, in 1795 and 1807, respectively, somehow contributed to the disestablishment of the Cayuga Reservation, that assertion lacks merit since those transactions indisputably violated the Non-Intercourse Act, and were never subsequently approved through the federal treaty-ratification procedures.
For the counterclaim to have merit, therefore, it must plausibly allege that some act of Congress disestablished the Cayuga Reservation. However, the only federal action mentioned in the subject counterclaim that could possibly have disestablished the Cayuga Reservation is the Treaty of Buffalo Creek,
At the outset, the legal standard for detеrmining whether Congress has disestablished an Indian reservation is clear:
Congress possesses plenary power over . Indian affairs, including the power to modify or eliminate tribal rights. Accordingly, only Congress can alter the terms of an Indian treaty by diminishing a reservation, and its intent to do so must be clear and plain.
⅝ ⅝ H»
Our inquiry is informed by the understanding that, at the turn of this century, Congress did not view the distinction between acquiring Indian property and assuming jurisdiction over Indian territory as a critical one, in part because the notion that reservation status of Indian lands might not be coextensive with tribal ownership was unfamiliar, and in part because Congress then assumed that the reservation system would fade over time. Given this expectation, Congress naturally failed to be meticulous in clarifying whether a particular piece of legislation formally sliced a certain parcel of land off one reservation. Thus, although the most probative evidence of diminishment is, of course, the statutory language used to open the Indian lands, we have held that we will also consider “the historical context surrounding the [legislation or treaty], and, to a lesser extent, the subsequent treatment of the area in question and the pattern of settlement there. Throughout this inquiry, we resolve any ambiguities in favor of the Indians, and we will not lightly find diminishment.
S. Dakota v. Yankton Sioux Tribe,
To summarize, the three factors for determining whether a federal treaty has disestablished an Indian reservation are 1) the language of the treaty; 2) the historical context surrounding thе treaty; and 3) the subsequent treatment of the land and the pattern of settlement, which is the least important factor. Explicit treaty language, while obviously the most probative evidence, is nonetheless not always required if the treaty’s legislative history, and/or the subsequent treatment of the land “unequivocally” indicate that disestab
Applying these standards to the 1838 Treaty of Buffalo Creek, District Judges in this Circuit have uniformly concluded that the treaty did not disestablish the Cayuga Reservation, either directly or by belatedly ratifying the 1795 and 1807 sales to the State of New York. See, e.g., Cayuga Indian Nation v. Cuomo,
The Court of Appeals for the Second Circuit has not indicated whether the 1838 Treaty of Buffalo Creek disestablished the Cayuga reservation, although it has at least ■ implied that this position lacks merit, by pointing out that the Treaty of Buffalo Creek fails to even mention “Cayuga land or Cayuga title.”
In arriving at this conclusion, the Second-Circuit began by examining the text of the 1838 Treaty of Buffalo Creek, and noting that the “central bargain” of the treaty was “the cession of New York Indians’ Wisconsin lands in exchange for reservation land in Kansas.” Oneida Indian Nation v. City of Sherrill,
Recause the Oneidas sold, most of their land to the Statе or private- parties well before the Buffalo Creek Treaty and the flood of non-Indians, into the area is not. clearly linked to the Treaty, the gradual reduction in the number of Oneidas living on their reservation does not reflect a clear congressional intent to disestablish it.
Id. at 164 (emphasis added). In sum, the court found that none of the three factors set forth above clearly indicated that Congress intended the 1838 Treaty of Buffalo Creek to disestablish the Oneida reservation.
This determination is essentially disposi-tive of Seneca County’s counterclaim, since there is no appreciable difference between the Oneidas and the Cayugas with regard to the aforementioned analysis. That is, in
To begin with, the treaty provision concerning the Cayuga Nation (Article 11) is at least as ambiguous as the provision concerning the Oneidas (Article 13), and arguably even more so, since it contains no reference whatsoever to Cayuga-owned lands.
Nor does there appear there appear to be any clear contemporaneous evidence of Congressional intent concerning the treaty’s intended effect on the Cayuga Nation. On this point, the Second Circuit’s discussion in Oneida Indian Nation of New York v. City of Sherrill appears to be equally applicable to the Cayuga Nation. See also, Cayuga Indian Nation of New York v. Village of Union Springs,
And finally, Seneca County cannot rely on the post-treaty treatment of the land or
Seneca County nevertheless contends that the aforementioned cases concerning .the Oneida Indians have no bearing in this action, because the counterclaim involves factual issues unique to the Cayugas. Specifically, the County states:
[TJhere are unique factual issues and legal arguments that apply to the Cayugas regarding whether the 1794 Treaty of Canandaigua even recognized a Cayuga reservation under federal law, whether the 1795 and 1807 conveyances by the Nation to the State of New York were made in accordance with the requirements of the Non-Intercourse Act in effect at those times, and whether the 1838 Treaty of Buffalo Creek disestablished any federal Cayuga reservation or implicitly recognized that no federal Cayuga reservation ever existed.
Def. Memo of Law [# 40] at pp. 15-16. However, this contention lacks merit.
To begin with, the counterclaim as currently drafted does not even remotely suggest that the Treaty of Canandaigua failed to recognize the Cayuga reservation under federal law; that the 1795 and 1807 conveyances were made in accordance with the Non-Intercourse act; or that the Treaty of Buffalo Creek “implicitly recognized that no federal Cayuga reservation ever existed.” Rather, the County is making these bare assertions for the first time, with regard to the counterclaim, in its opposition to the motion to dismiss. For example, the counterclaim does not mention the Non-Intercourse Act, let alone suggest that the 1807 and 1795 sales were made in accordance with that statute. Any such allegation would not be plausible in any event, since there is absolutely not a shred of historical evidence that the United States ever ratified those sales/treaties in accordance with federal treaty-ratification procedures. The counterclaim similarly fails to imply, let alone plead any facts to plausibly suggest, that the Treaty of Canandaigua failed to recognize the Cayuga reservation.
The County similarly argues that based upon the Supreme Court’s decision in Sherrill, concerning laches, “the County may rightfully argue that reservation star
As the Court has already explained, the counterclaim, which is succinct, is based upon the contention that 'the Treaty of Buffalo Creek disestablished the Cayuga reservation. See, Answer to Amended Complaint with Counterclaim at p. 7, ¶ 43 (“There is a present controversy over whether the Nation’s reservation has been disestablished.”). The Cayuga Nation tailored its motion to address that claim, and the County cannot evade that motion now by claiming that it pled something other than what it actually pled.
The Court further points out that it conducted its sovereign immunity analysis above based on the counterclaim as actually pleaded, and not on these new arguments. The Cayuga Nation’s claim concerning the County’s ability to tax the properties is not based on the tribe’s ability to exert sovereign authority over the land, but rather is based upon the fact that the land is physically located within the historic reservation which has not been disestablished. The Court found that the counterclaim was the mirror image of such claim, and that the Cayuga Nation had therefore waived sovereign immunity from suit as to that issue. To the extent that the County would attempt to plead these newly-raised claims, they would probably be barred by sovereign immunity, since they go beyond mirroring the Cayugas’ claim.
The counterclaim fails to state an actionable claim. Binding Supreme Court precedent is clear that a reservation-disestablishment claim cannot succeed where there is only ambiguous treaty language and mixed historical evidence of congressional intent. As a matter of law, the 1838 Treaty of Buffalo Creek does not contain “a clear textual signal that Congress intended to diminish the [Cayuga] reservation.”
CONCLUSION
Plaintiffs application [# 39] to dismiss Defendant’s counterclaim is granted, with prejudice.
SO ORDERED.
Notes
. Amended Complaint [# 9] at ¶ 1. .
. This Court has already granted a preliminary injunction, agreeing with the'latter proposition.
. See, Gottlieb, Rackman & Reisman, P.C. v. ZenColor Corp., No. 13 CV. 5715 JGK,
. Amended Complaint [# 9] at ¶ 7.
. See, Amended Complaint [# 9] at ¶ 9 (“All of those transactions and transfers were in violation of federal law and were void ab initio, and the Nation never lost its aboriginal title[.]”).
. Amended Complaint [# 9] at ¶ 8. 18 U.S.C. § 1151 defines "indian country,” in pertinent part, as “all land within the limits of any Indian reservation under the jurisdiction of the United States Government.”
. Amended Complaint [# 9] at ¶ 17.
. Amended Complaint [# 9] at ¶ 20; see also, id. at ¶ 18(d) (referring to “the Nation’s sovereign immunity, which derives from Article I, Section 8 of the United States Constitution and from federal common law[.]”).
. As will be seen below, these allegations track the factors which federal courts apply when determining whether Congress has disestablished a federal Indian reservation.
. Motion to Dismiss, Memo [# 39-1] at p. 1.
. The “case or controversy” aspect of the Cayuga Nation's motion clearly involves the Court’s jurisdiction, and is therefore properly considеred.under FRCP 12(b)(1). See, Montesa v. Schwartz,
. See, Def. Memo of Law [# 40] at p. 7 (“[T]he Nation put the status of its purported reservation ... at issue by bringing its claims.”).
. The Supreme Court’s statement on this point is unequivocal: “Possessing immunity from direct suit, we are of the opinion the Indian nations possess a similar immunity from cross-suits.” Id.,
. See, PI. Memo of Law [# 39-1] at p. 1 ("[I]f the County’s counterclaim seeks anything beyond the ‘mirror image” of the Nation’s affirmative claims, the Nation’s sovereign immunity would preclude it.”) (emphasis in original); see also, Id., at p. 4 (Admitting that such mirror-image counterclaims are not barred by Oklahoma Tax Commission.)
. PL Memo of Law [# 39-1] at. 5.
. Answer with Counterclaim [# 37] at ¶ 25.
. Congress could always enact legislation .allowing the County to sue to collect the taxes, or the Cayuga Nation could agree to pay the taxes.
. See, Nike, Inc. v. Already, LLC,
. PI. Memo of Law [# 39-1] at p. 1.
. Answer with Counterclaim [# 37] at ¶ 35; . see also, id. at pp. 6-7.
. Answer with Counterclaim [# 37] at ¶ 25.
. As noted earlier, the Cayuga Nation’s reply brief makes an additional argument as to why the Sheriff and District Attorney should be deemed to be in privity with Seneca County. Namely, because Seneca County funded and controlled the defense in Gould. In support of this privity argument, the Cayuga Nation has submitted minutes from meetings .of the Seneca County Board of Supervisors, which, the Nation contends, show that the County funded and controlled the .defense in Gould. However, arguments raised for the first time in a reply brief may be disregarded. See, e.g., In re Dobbs,
. The County maintains that "New York courts have consistently held that district attorneys and counties ‘are separate entities which do not stand in sufficient relationship with each other to warrant the invocation of the doctrine of collateral estoppel,” citing Saccoccio v. Lange,
. "Although a court must accept as true all the factual allegations in the complaint, that requirement is inapplicable to legal conclusions.” Shannon v. Venettozzi,
. PI. Memo of Law [# 39-1] at p. 12.
. See, Pi. Memo of Law [# 39-1] at p. 12. Additionally, two of the three cases cited by the Nation involved consideration of the pre-clusivе effect of prior federal-court judgments. Id.
.See, Pi. Memo of Law [# 39-1] at pp. 12-13.
. The Nation contends that the sheriffs and district attorneys were actually acting as “proxies” for the Counties, who allegedly funded and directed the defense in Gould, but the Court has already explained that it is not considering that argument because it was raised for the first time in the Cayuga reply brief.
. Of course, the District Attorney is nevertheless an officer of the County. Claude H. v. Cty. of Oneida,
. Gould,
.Pi. Memo of Law [# 39-1] at p, ^'(emphasis added).
. Answer with Counterclaim [# 37] at ¶ 35.
. The Court points this out preliminarily because, in the County's response [# 40] to the Cayuga Nation’s motion to dismiss, the County’s first argument in defense of the merits of the counterclaim does not pertain to disestablishment. Rather, the County begins by arguing that the counterclaim is not "foreclosed by precedent,” because "the issue of whether the Nation’s claimed lands would constitute a ‘reservation’ under N.Y. Real Property Tax
, See also, id. ("Its adoption removed any doubt, as to, whether, under the Articles of Confederation, certain rights over Indians continued to.be -reserved to the states.”) (citation omitted); Seneca Nation of Indians v. N.Y.,
. Oneida County, N.Y. v. Oneida Indian Nation of New York State,
. Rather, it seems that at most, the federal government declined to exercise its power to set aside the sales, even though it clearly opposed the 1795 sale, and even though both sales violated the Non-Intercourse Act as well as the U.S, Constitution. See, e.g., Cayuga Indian Nation of New York v. Pataki,
. The Counterclaim alleges that "as a result of the foregoing,” the Cayuga Reservation was "extinguished.” Answer to Amended Complaint with Counterclaim [# 37] at ¶ 36. The "foregoing” to which that statement refers are the factual averments concerning the purchases of Cayuga lands by the State of New York and the factual averments concerning the Treaty of Buffalo Creek. Since the purchases of land could not have extinguished the Cayuga Reservation, then the only remaining possibility is that the Treaty of Buffalo Creek did so. These are the only theories presented by the Counterclaim. (The Counterclaim goes on to allege that "[t]he subsequent history and treatment of the land located within what had been the "Original Reservation” demonstrate and confirm that the former Nation reservation was disestablished long ago.”) Id. at ¶ 39.
. See, Oneida Indian Nation of N.Y. v. City of Sherrill, N.Y.,
. Cayuga Indian Nation of N.Y. v. Pataki,
. Accordingly, the County’s argument that this Court should reject the Second Circuit’s ruling in Sherrill, concerning the effect of the Treaty of Buffalo Creek on the Oneida reservation, because the Supreme' Court vacated the decision on other grounds, lacks merit.
. Article 11 states, in its entirety; "The United States will set apart for the Cayugas, on their removing to their new homes at the west, two thousand dollars, and will invest the same in some safe stocks, the income of which shall be paid them annually, at their new homes. The United States further agree to pay to the said nation, on their removal west, two thousand five hundred dollars, to be disposed of as the chiefs shall deem just and equitable.” 7 Stat. 550,
. See, Cayuga Indian Nation of New York v. Village of Union Springs, 317 F.Supp.2d 128, 142 (“By the time of the 1838 Treaty, the Cayugas’ reservation had purportedly been transferred to the State of New York via the 1795 Treaty of Cayuga Ferry. Although said treaty was in violation of the Nonintercourse Act, nonetheless as it relates to the intent of the parties in 1838, the Cayugas could not have intended to relinquish rights to land that they did not believe they held.’.’) (citations omitted).
. Fee title.
. See, Answer to Amended Complaint with Counterclaim [# 37], "Counterclaim,” at pp. 5-7.
. 18 U.S.C. § 1151, NY RPTL § 454 and NY Indian Law § 6.
. Def. Memo of Law [# 40] at p. 18.
. The County has not requested permission to amend its counterclaim to assert these new theories, and the Court would not be inclined to grant any such belated application at this point, for various reasons including unjustifiable delay and futility.
. Nebraska v. Parker,