CITY OF SHERRILL, NEW YORK v. ONEIDA INDIAN NATION OF NEW YORK ET AL.
No. 03-855
Supreme Court of the United States
Argued January 11, 2005—Decided March 29, 2005
544 U.S. 197
Ira S. Sacks argued the cause for petitioner. With him on the briefs was Esther S. Trakinski.
Caitlin J. Halligan, Solicitor General of New York, argued the cause for the State of New York as amicus curiae urging reversal. With her on the brief were Eliot Spitzer, Attorney General, Daniel Smirlock, Deputy Solicitor General, Peter H. Schiff, Andrew D. Bing, Assistant Solicitor General, and Dwight A. Healy.
Michael R. Smith argued the cause for respondents. With him on the brief were William W. Taylor III, David A. Reiser, Thomas B. Mason, Richard G. Taranto, and Peter D. Carmen.
Malcolm L. Stewart argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Clement, Assistant Attorney General Sansonetti, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Clark, William Lazarus, David C. Shilton, and Ethan G. Shenkman.*
*Briefs of amici curiae urging reversal were filed for Cayuga and Seneca Counties, New York, et al. by Gus P. Coldebella, William L. Dorr, Daniel J. Moore, and Brian Laudadio; for the Town of Lenox, New York, et al. by Charles G. Curtis, Jr., and E. Joshua Rosenkranz; for the Counties of Madison and Oneida, New York, by G. Robert Witmer, Jr., David M. Schraver, John J. Field III, and Randal B. Caldwell; and for the Citizens Equal Rights Foundation by Woodruff Lee Carroll.
Briefs of amici curiae urging affirmance were filed for the Cayuga Nation of New York et al. by Arlinda F. Locklear, Martin R. Gold, James T. Meggesto, Robert T. Coulter, Curtis G. Berkey, Marsha K. Schmidt, Carey R. Ramos, and Jeanne S. Whiteing; for the Puyallup Tribe of Indians et al. by Harry R. Sachse, Arthur Lazarus, Jr., Richard A. Guest, Thomas H. Shipps, John Howard Bell, and Peter C. Chestnut; for the National Congress of American Indians by Carter G. Phillips, Virginia A. Seitz, Mark E. Haddad, and Riyaz A. Kanji; and for United South and Eastern Tribes, Inc., by Ian Heath Gershengorn and Donald B. Verrilli, Jr.
This case concerns properties in the city of Sherrill, New York, purchased by the Oneida Indian Nation of New York (OIN or Tribe) in 1997 and 1998. The separate parcels of land in question, once contained within the Oneidas’ 300,000-acre reservation, were last possessed by the Oneidas as a tribal entity in 1805. For two centuries, governance of the area in which the properties are located has been provided by the State of New York and its county and municipal units. In County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226 (1985) (Oneida II), this Court held that the Oneidas stated a triable claim for damages against the County of Oneida for wrongful possession of lands they conveyed to New York State in 1795 in violation of federal law. In the instant action, OIN resists the payment of property taxes to Sherrill on the ground that OIN‘s acquisition of fee title to discrete parcels of historic reservation land revived the Oneidas’ ancient sovereignty piecemeal over each parcel. Consequently, the Tribe maintains, regulatory authority over OIN‘s newly purchased properties no longer resides in Sherrill.
Our 1985 decision recognized that the Oneidas could maintain a federal common-law claim for damages for ancient wrongdoing in which both national and state governments were complicit. Today, we decline to project redress for the Tribe into the present and future, thereby disrupting the governance of central New York‘s counties and towns. Generations have passed during which non-Indians have owned and developed the area that once composed the Tribe‘s historic reservation. And at least since the middle years of the 19th century, most of the Oneidas have resided elsewhere. Given the longstanding, distinctly non-Indian character of the area and its inhabitants, the regulatory authority constantly exercised by New York State and its counties and towns, and the Oneidas’ long delay in seeking judicial relief against parties other than the United States, we hold that
I
A
OIN is a federally recognized Indian Tribe and a direct descendant of the Oneida Indian Nation (Oneida Nation), “one of the six nations of the Iroquois, the most powerful Indian Tribe in the Northeast at the time of the American Revolution.” Id., at 230. At the birth of the United States, the Oneida Nation‘s aboriginal homeland comprised some six million acres in what is now central New York. Ibid.; Oneida Indian Nation of N. Y. v. County of Oneida, 414 U. S. 661, 664 (1974) (Oneida I).
In the years after the Revolutionary War, “the State of New York came under increasingly heavy pressure to open the Oneidas’ land for settlement.” Oneida II, 470 U. S., at 231. Reflective of that pressure, in 1788, New York State and the Oneida Nation entered into the Treaty of Fort Schuyler. For payments in money and kind, the Oneidas ceded to New York “all their lands.” App. to Pet. for Cert. A136. Of the vast area conveyed, “[t]he Oneidas retained a reservation of about 300,000 acres,” Oneida II, 470 U. S., at 231, “for their own use and cultivation,” App. to Pet. for Cert. A137 (internal quotation marks omitted).1 OIN does
The Federal Government initially pursued a policy protective of the New York Indians, undertaking to secure the Tribes’ rights to reserved lands. See Oneida II, 470 U. S., at 231-232; Oneida I, 414 U. S., at 667; F. Cohen, Handbook of Federal Indian Law 418-419 (1942 ed.); F. Cohen, Handbook of Federal Indian Law 73-74 (1982 ed.) (hereinafter Handbook). In 1790, Congress passed the first Indian Trade and Intercourse Act, commonly known as the Nonintercourse Act.
New York State nonetheless continued to purchase reservation land from the Oneidas. The Washington administration objected to New York‘s 1795 negotiations to buy 100,000 acres of the Oneidas’ Reservation without federal supervision. Oneida II, 470 U. S., at 229, 232. Later administrations, however, “[made not] even a pretense of interfеr[ing] with [the] State‘s attempts to negotiate treaties [with the Oneidas] for land cessions.” Oneida Nation of N. Y. v. United States, 43 Ind. Cl. Comm‘n 373, 385 (1978); see also id., at 390; Campisi, The Oneida Treaty Period, 1783–1838, in The Oneida Indian Experience: Two Perspectives 48, 59 (J. Campisi & L. Hauptman eds. 1988) (hereinafter Campisi). See generally Gunther 6 (“New York acquired much land from Indians through treaties—perhaps as many as 200—not participated in, though apparently known and not objected to, by the national government.” (footnote omitted)).
The Federal Government‘s policy soon veered away from protection of New York and other east coast reservations. In lieu of the commitment made in the Treaty of Canandaigua, the United States pursued a policy designed to open reservation lands to white settlers and to remove tribes westward. D. Getches, C. Wilkinson, & R. Williams, Cases and Materials on Federal Indian Law 94 (4th ed. 1998) (After the Louisiana Purchase in 1803, federal policymakers “began to debate the tactics of inducing [eastern Indians] to exchange their remaining ancestral lands for a permanent territory in the West.“). As recounted by the Indian Claims Commission in 1978, early 19th-century federal Indian agents in New York State did not simply fail to check New York‘s land purchases, they “took an active role ... in encouraging the removal of the Oneidas ... to the west.”
Pressured by the removal policy to leave their ancestral lands in New York, some 150 Oneidas, by 1825, had moved to Wisconsin. Horsman, The Wisconsin Oneidas in the Preallotment Years, in The Oneida Indian Experience, supra, at 65, 67. In 1838, the Oneidas and the United States entered into the Treaty of Buffalo Creek, which envisioned removal of all remaining New York Indians, including the Oneidas, to Kansas.
In Article 13 of the Buffalo Creek Treaty, the Oneidas agreed to remove to the Kansas lands the United States had set aside for them “as soon as they c[ould] make satisfactory arrangements” for New York State‘s “purchase of their lands at Oneida.”
The Oneidas who stayed on in New York after the proclamation of the Buffalo Creek Treaty continued to diminish in number and, during the 1840‘s, sold most of their remaining
The United States eventually abandoned its efforts to remove the New York Indians to Kansas. In 1860, the Federal Government restored the Kansas lands to the public domain, and sold them thereafter. New York Indians, 170 U. S., at 24, 28-29, 31.
B
Early litigation concerning the Oneidas’ land claims trained on monetary recompense from the United States for past deprivations. In 1893, the United States agreed to be sued for disposing of the Kansas lands to settlers, and the Oneidas in New York shared in the resulting award of damages. See New York Indians, 170 U. S. 1; New York Indians, 40 Ct. Cl. 448 (identifying the Tribes qualified to share in the distribution of the sum recovered).
Seeking further compensation from the United States a half century later, the New York and Wisconsin Oneidas initiated proceedings before the Indian Claims Commission in 1951. Oneida Indian Nation of N. Y. v. County of Oneida, 622 F. 2d 624, 626 (CA2 1980). They sought redress for lands New York had acquired through 25 treatiеs of cession concluded between 1795 and 1846. The Oneidas alleged, and the Claims Commission agreed, that under the Nonintercourse Act of 1790 and successor statutes, the Federal Government had a fiduciary duty to ensure that the Oneidas received from New York “conscionable consideration” for the lands in question. Oneida Nation of N. Y. v. United States, 26 Ind. Cl. Comm‘n 138, 145 (1971). The Court of Claims affirmed the Commission‘s core determination, but held that the United States’ duty extended only to land transactions of which the Government had knowledge. United States v. Oneida Nation of N. Y., 201 Ct. Cl. 546, 554, 477 F. 2d 939, 944 (1973). Accordingly, the Court of Claims directed the Commission to determine whether the Government actually or constructively knew of the land transactions at issue. Id., at 555, 477 F. 2d, at 945.
On remand, the Commission found that the Federal Government had actual or constructive knowledge of all of the treaties and would be liable if the Oneidas had not received conscionable consideration. Oneida Nation of N. Y., 43 Ind. Cl. Comm‘n, at 375, 406-407. The Commission anticipated further proceedings to determine the Federal Government‘s ultimate liability, but the Oneidas had by then decided to pursue a different course. On the Oneidas’ request, the Court of Claims dismissed the proceedings. See Oneida Nation of N. Y. v. United States, 231 Ct. Cl. 990, 991 (1982) (per curiam).
In lieu of concentrating on recovery from the United States, the Oneidas pursued suits against local governments. In 1970, the Oneidas of New York and Wisconsin, asserting federal-question jurisdiction under
In the next round, the Oneidas prevailed in the lower courts. On review in Oneida II, we rejected various defenses the counties presented that might have barred the action for damages, 470 U. S., at 240-250, and held that the Oneidas could maintain their claim to be compensated “for violation of their possessory rights based on federal common law,” id., at 236. While upholding the judgment of the Court of Appeals regarding the counties’ liability under federal common law, we noted that “[t]he question whether equitable considerations should limit the relief available to the present day Oneida Indians was not addressed by the Court of Appeals or presented to this Court.” Id., at 253, n. 27. Accordingly, “we express[ed] no opinion as to whether other considerations m[ight] be relevant to the final disposition of this case.” Ibid. On remand, the District Court entered a final judgment which fixed the amount of damages payable by the counties. Allowing setoffs for the counties’ good-faith improvements to the land, the court ordered recoveries of $15,994 from Oneida County and $18,970 from Madison County, plus prejudgment interest. Oneida Indian Nation of N. Y. v. County of Oneida, 217 F. Supp. 2d 292, 310 (NDNY 2002).
In 2000, litigation resumed in an action held in abeyance during the pendency of the test case. In that revitalized action, the Oneidas sought damages from Oneida and Madison Counties for a period spanning over 200 years. The amended complaint alleged that, through a series of agreements concluded during the years 1795 to 1846, approximately 250,000 acres of the Oneidas’ ancestral land had been unlawfully conveyed to New York. Oneida Indian Nation of N. Y. v. County of Oneida, 199 F. R. D. 61, 66–68 (NDNY 2000).
has been ongoing,” id., at 92. Referring to the “practical concerns” that blocked restoration of Indians to their former lands, the court found it high time “to transcend the theoretical.” Ibid. Cases of this genre, the court observed, “cr[ied] out for a pragmatic approach.” Ibid. The District Court therefore excluded the imposition of any liability against private landowners. Id., at 93-95.
Because the parcels lie within the boundaries of the reservation originally occupied by the Oneidas, OIN maintained that the properties are exempt from taxation, and accordingly refused to pay the assessed property taxes. The city of Sherrill initiated eviction proceedings in state court, and OIN sued Sherrill in federal court. In contrast to Oneida I
A divided panel of the Second Circuit affirmed. 337 F. 3d 139. Writing for the majority, Judge Parker ruled that the parcels qualify as “Indian country,” as that term is defined in
We granted the city of Sherrill‘s petition for a writ of certiorari, 542 U. S. 936 (2004), and now reverse the judgment of the Court of Appeals.
OIN and the United States argue that because the Court in Oneida II recognized the Oneidas’ aboriginal title to their ancient reservation land and because the Tribe has now acquired the specific parcels involved in this suit in the open market, it has unified fee and aboriginal title and may now assert sovereign dominion over the parcels. Brief for Respondents 1, 12-19; Brief for United States as Amicus Curiae 9-10. When the Oneidas came before this Court 20 years ago in Oneida II, they sought money damages only. 470 U. S., at 229; see also id., at 244, n. 16 (recognizing that the suit was an “action at law“). The Court reserved for another day the question whether “equitable considerations” should limit the relief available to the present-day Oneidas. Id., at 253, n. 27; supra, at 209.6
“The substantive questions whether the plaintiff has any right or the defendant has any duty, and if so what it is, are very different questions from the remedial questions whether this remedy or that is preferred, and what the measure of the remedy is.” D. Dobbs, Law of Remedies § 1.2, p. 3 (1973); see also Navajo Tribe of Indians v. New Mexico, 809 F. 2d 1455, 1467 (CA10 1987) (“The distinction between a claim or substantive right and a remedy is fundamental.“). “[S]tandards of federal Indian law and federal equity practice” led the District Court, in the litigation revived after Oneida II, see supra, at 210-211, to reject OIN‘s plea for ejectment of 20,000 private landowners. Oneida Indian Nation of N. Y., 199 F. R. D., at 90 (internal quotation marks omitted); ibid. (“[T]here is a sharp distinction between the existence of a federal common law right to Indian hоmelands and how to vindicate that right ...“). In this action,
The appropriateness of the relief OIN here seeks must be evaluated in light of the long history of state sovereign control over the territory. From the early 1800‘s into the 1970‘s, the United States largely accepted, or was indifferent to, New York‘s governance of the land in question and the validity vel non of the Oneidas’ sales to the State. See generally Gunther 23-25 (attributing much of the confusion and conflict in the history of New York Indian affairs to “Federal inattention and ambivalence“). In fact, the United States’ policy and practice through much of the early 19th century was designed to dislodge east coast lands from Indian pos-
This Court has observed in the different, but related, context of the diminishment of an Indian reservation that “[t]he longstanding assumption of jurisdiction by the State over an area that is over 90% non-Indian, both in population and in land use,” may create “justifiable expectations.” Rosebud Sioux Tribe v. Kneip, 430 U. S. 584, 604-605 (1977); accord Hagen v. Utah, 510 U. S. 399, 421 (1994) (“jurisdictional history” and “the current population situation ... demonstrat[e] a practical acknowledgment” of reservation diminishment; “a contrary conclusion would seriously disrupt the justifiable expectations of the people living in the area” (internal quotation marks omitted)).9 Similar justifiable expectations, grounded in two centuries of New York‘s exercise of regula-
The wrongs of which OIN complains in this action occurred during the early years of the Republic. For the past two centuries, New York and its county and municipal units have continuously governed the territory. The Oneidas did not seek to regain possession of their aboriginal lands by court decree until the 1970‘s. See supra, at 210, n. 4. And not until the 1990‘s did OIN acquire the properties in question and assert its unification theory to ground its demand for exemption of the parcels from local taxation. 337 F. 3d, at 144.11 This long lapse of time, during which the Oneidas did not seek to revive their sovereign control through equitable relief in court, and the attendant dramatic changes in the
The principle that the passage of time can preclude relief has deep roots in our law, and this Court has recognized this prescription in various guises. It is well established that laches, a doctrine focused on one side‘s inaction and the other‘s legitimate reliance, may bar long-dormant claims for equitable relief. See, e. g., Badger v. Badger, 2 Wall. 87, 94 (1865) (“[C]ourts of equity act upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, refuse to interfere where there has been gross laches in prosecuting the claim, or long acquiescence in the assertion of adverse rights.” (internal quotation marks omitted)); Wagner v. Baird, 7 How. 234, 258 (1849) (same); Bowman v. Wathen, 1 How. 189, 194 (1843) (“[The] doctrine of an equitable bar by lapse of time, so distinctly announced by the chancellors of England and Ireland, . . . should now be regarded as settled law in this court.“).
. . .
This Court applied the doctrine of laches in Felix v. Patrick, 145 U.S. 317 (1892), to bar the heirs of an Indian from establishing a constructive trust over land their Indian ancestor had conveyed in violation of a statutory restriction. In the nearly three decades between the conveyance and the lawsuit, “[a] large part of the tract ha[d] been platted and recorded as an addition to the city of Omaha, and . . . sold to purchasers.” Id., at 326. “[A]s the case stands at present,” the Court observed, “justice requires only what the law . . . would demand—the repayment of the value of the [illegally conveyed] scrip.” Id., at 334. The Court also recognized the disproportion between the value of the scrip issued to the Indian ($150) and the value of the property the heirs sought to acquire (over $1 million). Id., at 333. The sort of changes to the value and character of the land noted by the Felix Court are present in even greater magnitude in this suit. Cf. Galliher v. Cadwell, 145 U.S. 368, 373 (1892) (“[L]aches is not . . . a mere matter of time; but principally
As between States, long acquiescence may have controlling effect on the exercise of dominion and sovereignty over territory. Ohio v. Kentucky, 410 U.S. 641, 651 (1973) (“The rule, long-settled and never doubted by this court, is that long acquiescence by one state in the possession of territory by another and in the exercise of sovereignty and dominion over it is conclusive of the latter‘s title and rightful authority.” (quoting Michigan v. Wisconsin, 270 U.S. 295, 308 (1926))); Massachusetts v. New York, 271 U.S. 65, 95 (1926) (“Long acquiescence in the possession of territory and the exercise of dominion and sovereignty over it may have a controlling effect in the determination of a disputed boundary.“). The acquiescence doctrine does not depend on the original validity of a boundary line; rather, it attaches legal consequences to acquiescence in the observance of the boundary. California v. Nevada, 447 U.S. 125, 131 (1980) (No relationship need exist “between the origins of a boundary and the legal consequences of acquiescence in that boundary. . . . Longstanding acquiescence by California and Nevada can give [the boundary lines] the force of law whether or not federal authorities had the power to draw them.“).
This Court‘s original-jurisdiction state-sovereignty cases do not dictate a result here, but they provide a helpful point of reference: When a party belatedly asserts a right to present and future sovereign control over territory,12 longstanding observances and settled expectations are prime considerations. There is no dispute that it has been two centuries since the Oneidas last exercised regulatory control over the properties here or held them free from local taxation.
Finally, this Court has recognized the impracticability of returning to Indian control land that generations earlier passed into numerous private hands. See Yankton Sioux Tribe v. Unitеd States, 272 U.S. 351, 357 (1926) (“It is impossible . . . to rescind the cession and restore the Indians to their former rights because the lands have been opened to settlement and large portions of them are now in the possession of innumerable innocent purchasers . . . .“); Felix, 145 U.S., at 334 (observing, in declining to award equitable relief, “[t]hat which was wild land thirty years ago is now intersected by streets, subdivided into blocks and lots, and largely occupied by persons who have bought upon the strength of Patrick‘s title, and have erected buildings of a permanent character“). The District Court, in the litigation dormant during the pendency of Oneida II, see supra, at 209-211, rightly found these pragmatic concerns about restoring Indian sovereign control over land “magnified exponentially here, where development of every type imaginable has been ongoing for more than two centuries.” Oneida Indian Nation of N. Y., 199 F. R. D., at 92.
In this case, the Court of Appeals concluded that the “impossibility” doctrine had no application because OIN acquired the land in the open market and does not seek to uproot current property owners. 337 F. 3d, at 157. But the unilateral reestablishment of present and future Indian sovereign control, even over land purchased at the market price, would have disruptive practical consequences similar to those that led this Court in Yankton Sioux to initiate the impossibility doctrine. The city of Sherrill and Oneida County are today overwhelmingly populated by non-Indians. See supra, at 211. A checkerboard of alternating state and tribal jurisdiction in New York State—created unilaterally
Recognizing these practical concerns, Congress has provided a mechanism for the acquisition of lands for tribal communities that takes account of the interests of others with stakes in the area‘s governance and well-being.
In sum, the question of damages for the Tribe‘s ancient dispossession is not at issue in this case, and we therefore do not disturb our holding in Oneida II. However, the distance from 1805 to the present day, the Oneidas’ long delay in seeking equitable relief against New York or its local units, and developments in the city of Sherrill spanning several generations, evoke the doctrines of laches, acquiescence, and impossibility, and render inequitable the piecemeal shift in governance this suit seeks unilaterally to initiаte.14
*
*
*
For the reasons stated, the judgment of the Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
I join the opinion of the Court with one qualification that goes to the appropriateness of considering the long dormancy of any claim to tribal authority over the parcels in question, as a basis to hold that the Oneida Indian Nation is not now immune from the taxing authority of local government. The Tribe‘s claim, whether affirmative or defensive, see ante, at 214, n. 7, is one of territorial sovereign status entitled to recognition by the territorial state sovereign and its subdivisions. The claim of present sovereign status turns not only on background law and the provisions of treaties, but also on the Tribe‘s behavior over a long period of time: the absence of the Tribe and tribal members from the particular lots of land, and the Tribe‘s failure to assert sovereignty over them. The Tribe‘s inactiоn cannot, therefore, be ignored here as affecting only a remedy to be considered later; it is, rather, central to the very claims of right made by the contending parties. Since the subject of inaction was not expressly raised as a separate question presented for review, see ante, at 214, n. 8, there is some question whether we should order reargument before dealing with it. I think that is unnecessary; the issue was addressed by each side in the argument prior to submission of the case, notwithstanding the terms of the questions on which review was granted.
JUSTICE STEVENS, dissenting.
This case involves an Indian tribe‘s claim to tax immunity on its own property located within its reservation. It does not implicate the tribe‘s immunity from other forms of state jurisdiction, nor does it concern the tribe‘s regulatory authority over property owned by non-Indians within the reservation.
For the purposes of its decision the Court assumes that the District Court and the Court of Appeals correctly resolved the major issues оf fact and law that the parties debated in those courts and that the city of Sherrill (City) pre
Since the outset of this litigation it has been common ground that if the Tribe‘s properties are “Indian Country,” the City has no jurisdiction to tax them without express congressional consent.1 For the reasons set forth at length in the opinions of the District Court and the Court of Appeals, it is abundantly clear that all of the land owned by the Tribe within the boundaries of its reservation qualifies as Indian country. Without questioning the accuracy of that conclusion, the Court today nevertheless decides that the fact that most of the reservation has been occupied and governed by non-Indians for a long period of time precludes the Tribe “from rekindling embers of sovereignty that long ago grew cold.” Ante, at 214. This is a novel holding, and in my judgment even more unwise than the Court‘s holding in County of Oneida v. Oneida Indian Nation of N. Y., 470 U.S. 226 (1985), that the Tribe may recover damages for the alleged illegal conveyance of its lands that occurred in 1795. In that case, I argued that the “remedy for the ancient wrong established at trial should be provided by Congress, not by judges seeking to rewrite history at this late date,” id., at 270 (opinion dissenting in part). In the present case, the
Without the benefit of relevant briefing from the parties, the Court has ventured into legal territory that belongs to Congress. Its decision today is at war with at least two bedrock principles of Indian law. First, only Congress has the power to diminish or disestablish a tribe‘s reservation.2 Second, as a core incident of tribal sovereignty, a tribe enjoys immunity from state and local taxation of its reservation lands, until that immunity is explicitly revoked by Congress.3 Far from revoking this immunity, Congress has specifically reconfirmed it with respect to the reservation lands of the New York Indians.4 Ignoring these principles, the Court
has done what only Congress may do—it has effectively proclaimed a diminishment of the Tribe‘s reservation and an abrogation of its elemental right to tax immunity. Under our precedents, whether it is wise policy to honor the Tribe‘s tax immunity is a question for Congress, not this Court, to decide.
As a justification for its lаwmaking decision, the Court relies heavily on the fact that the Tribe is seeking equitable relief in the form of an injunction. The distinction between law and equity is unpersuasive because the outcome of the case turns on a narrow legal issue that could just as easily, if not most naturally, be raised by a tribe as a defense against a state collection proceeding. In fact, that scenario actually occurred in this case: The City brought an eviction proceeding against the Tribe based on its refusal to pay property taxes; that proceeding was removed to federal court and consolidated with the present action; the District Court granted summary judgment for the Tribe; and the Court of Appeals affirmed on the basis of tribal tax immunity.5 Either this
. . . .
In any event, as a matter of equity I believe that the “principle that the passage of time can preclude relief,” ante, at 217, should be applied sensibly and with an even hand. It seems perverse to hold that the reliance interests of non-Indian New Yorkers that are predicated on almost two centuries of inaction by the Tribe do not foreclose the Tribe‘s enforcement of judicially created damages remedies for ancient wrongs, but do somehow mandate a forfeiture of a tribal immunity that has been consistently and uniformly protected throughout our history. In this case, the Tribe reacquired reservation land in a peaceful and lawful manner that fully respected the interests of innocent landowners—it purchased the land on the open market. To now deny the Tribe its right to tax immunity—at once the most fundamental of tribal rights and the least disruptive to other sovereigns—is not only inequitable, but also irreconcilable with the principle thаt only Congress may abrogate or extinguish tribal sovereignty. I would not decide this case on the basis of speculation about what may happen in future litigation over other regulatory issues.6 For the answer to the ques-
Accordingly, I respectfully dissent.