Oneida Indian Nation of NY v. Madison County

(1) this, Stockbridge-Munsee Community, diversity post- such as cases Band Indians, ordinarily be cal- judgment interest should of Mohican Putative Intervenor-Appellant.* culated in accordance with the federal rate 1961(a); § provided for under 28 U.S.C. (L), Docket Nos. 05-6408-cv 06-5168- (CON). (CON), cv 06-5515-cv Although parties may agree to contract, “clear, rate absent different Appeals, United States Court of unambiguous unequivocal” language Second Circuit. particular an intent that a in- expressing Argued: Nov. 2007. apply judgments judg- rate terest debts, general provi- choice-of-law ment July Final Submission: 2009. sion such as the one at issue here does April Decided: application of not alter the the federal the calculation of post-judgment rate to

interest.

Accordingly, judgment we VACATE the only

of the District Court insofar as it

applied New York law to the calculation of interest,

post-judgment and we REMAND

the cause to the District Court for the post-judgment

calculation of interest in ac- provided

cordance with the federal rate 1961(a).

under 28 U.S.C.

ONEIDA INDIAN NATION OF NEW

YORK, Plaintiff-Counter-

Defendant-Appellee,

MADISON and ONEIDA COUNTY

COUNTY, YORK, NEW Defendants-

Counter-Claimants-Appellants, foregoing. *The Clerk of Court is directed amend the with the caption appeal official of this in accordance Schraver, Peabody M. David Nixon LLP, Rochester, NY, for Defendants- Counter-Claimants-Appellants. Smith, (the Spaeder R. Zuckerman Michael Oneida Indian Nation of New York (David Reiser, counsel; “OIN”). LLP A. Peter Court most recent Legal D. of Oneida Nation De- Carmen ly addressed the tax obligations OIN’s Verona, NY, brief), on the partment, City N.Y. v. Oneida Indian DC, Washington, for Plaintiff-Counter- N.Y., Nation 544 U.S. of Defendant-Appellee. {“Sherrill”). 161 L.Ed.2d 386 Miller, Miller, P.C., rejected B. Don. B. The Don Court the OIN’s contention Boulder, CO, Intervenor-Ap- for Putative that parcels allegedly of lands within the pellant. boundaries of an Indian reservation once Oneidas, occupied by the which were sold D. Bing,

Andrew Assistant Solicitor during early to non-Indians 19th centu (Andrew General, State of New York M. ry bought and back Cuomo, General, the OIN on the brief; Attorney on the Underwood, open 1990s, in General; thereby market Barbara D. Solicitor came Smirlock, General; Deputy Daniel Solicitor under the dominion of the OIN Schiff, Counsel, and Peter H. Senior exempt and were therefore municipal counsel; Dwight Healy, A. White & Case taxation.1 The OIN nonetheless now LLP, co-counsel), York, NY, New for Ami- enjoin seeks to defendants-appellants cus Curiae State of New York. (the Madison and Oneida Counties “Coun ties”) from foreclosing on this for Tenpas, Attorney

Ronald J. Assistant nonpayment of General; county taxes. Alexander, On cross- Samuel C. Elizabeth Peterson, Kovacs, summary motions for Kathryn judgment brought Ann E. in Department U.S. of Justice Environment both of the cases that are consolidated on Division, & Natural Appellate Resources this appeal, the district court ruled favor Section; Blaser, Depart- Thomas of the OIN. See Oneida Indian Nation v. Interior, DC, ment Washington, County, Oneida F.Supp.2d Amicus Curiae United States. (N.D.N.Y.2006) (“Oneida ”); County Onei da Indian Nation N.Y. v. Madison CABRANES, SACK, Before: County, F.Supp.2d 232-33 HALL, Judges. Circuit (N.D.N.Y.2005) (“Madison County”). We ground affirm on the CABRANES, the OIN is Judge joined by Judge HALL, immune from suit separate opinion. long-standing concurs under the sovereign immunity. doctrine of tribal SACK, Judge: Circuit remedy The of foreclosure is therefore not appeal chapter This is but the latest in a available the Counties. lengthy dispute payment over the of state plaintiff-appellee and local taxes Stockbridge-Munsee Community, action, against County, ty 1. The OIN's suit Madison which we found to have been dealt which is one of actions consolidated in "procedurally improper” with in a manner appeal, was once with 170; consolidated three the district court. Id. at see also id. involving City other actions of Sherrill. 145-46, granted 171. The See Oneida Indian Nation N.Y. v. Madison respect certiorari with to the three actions in (N.D.N.Y. County, F.Supp.2d favor, which we had ruled in OIN's 2005) (explaining history). In Oneida Sherrill, reversed 544 U.S. Sherrill, N.Y., City Nation N.Y. v. 1478, 161 L.Ed.2d 386. The instant case is (2d Cir.2003), F.3d 139 this Court ruled in SHERRILL, closely although thus related to respect favor of OIN with to those three any does not involve identical actions. actions, other but vacated the Madison Coun- tion”).3 lands once The Oneida Nation’s (“Stoekbridge”)2 Indians of Mohican Band some six million acres encompassed to intervene Oneida filed a motion Rule of Civil central New York State. County pursuant to Federal what is now 24(a), obtaining goal Treaty to the of Fort pursuant Procedure with to the extent Schuyler of that action between the Oneida Nation and dismissal York, with overlap was found to the land at issue of New the Nation ceded the State State, Stockbridge’s six-square-mile purported nearly all of its land to the title rejected The district court retaining only approxi a reservation of reservation. motion, finding that Stockbridge’s Stock- 300,000 mately acres. an interest

bridge could not demonstrate 203, 125 S.Ct. 1478. County litigation. in the See 432 Oneida 1790, Congress passed In the first Indi- that at 291-92. conclude F.Supp.2d Act. Act of an Trade and Intercourse See this was not an abuse of discretion. (“Nonin- 33, ch. 1 July Stat. 137 Act”). Act, The Nonintercourse tercourse BACKGROUND substantially today, in force which remains history at here and of the land issue land without federal bars the sale of tribal affecting it has been set forth transactions Sherrill, government acquiescence. 544 opinions in other of length at several some 204, of the spite U.S. at 125 S.Ct. 1478. Sheirill, See, e.g., this and other courts. Act, provisions of the towards the end of 1478; 203-12, 125 at S.Ct. Oneida 544 U.S. century beginning and at the of the 18th Sherrill, City N.Y. v. Indian Nation of of century, the 19th the Oneida Nation sold (2d Cir.2003) N.Y., 139, 146-52 337 F.3d remaining portions substantial of the res- (“Oneida N.Y.”), rev’d, of Nation land to York and to ervation New State 197, 1478, 125 S.Ct. 161 private parties supervi- without the federal 386; Indian Nation L.Ed.2d Oneida of required. sion that the Act See id. at 205- Sherrill, N.Y., City N.Y. v. 145 06, 1478; Oneida Indian Nation 226, (N.D.N.Y.2001), F.Supp.2d 232-36 N.Y., F.3d at 337 147-48. See also in part, in vacated and remanded aff'd N.Y., United States v. Oneida Nation of N.Y., part, Oneida Indian Nation 337 546, 939, 477 F.2d 940 Ct.Cl. rev’d, Sherrill, 139, 197, F.3d (concluding government that the federal 1478, 161 L.Ed.2d 386. We recite S.Ct. fiduciary duty protect owed a members only those facts that we think are neces of the Oneida Nation connection with sary understanding an of our resolution dealings their with New York State land appeal. of this 1846). That land was between 1795 The OIN’s Land subsequently sold to non-Indians free- federally recognized The OIN is a Indi- market transactions. See Oneida Indian Sherrill, N.Y., directly City an descended from Nation N.Y. v. Tribe (“Oneida F.Supp.2d By Na- at n. the Oneida Indian Nation 3. Stoekbridge party various tribe and is not a to these consolidated 2. is referred to similar papers employ names in the before us. We original [T]he cases.... Oneida Indian Nation bands, that used its counsel in brief submitted its became divided into three distinct Oneidas, Oneidas, to this Court. New York the Wisconsin Oneidas, by the Canadian the middle of Despite acronym, our use of the "OIN” century. the nineteenth Nation of New York should not Oneida Indian N.Y., Oneida Indian Nation 337 F.3d at 144 original be confused with the Oneida Indian Nation, federally recognized n. 1. which is not 5,000 (1985)4] all Oneida Nation had sold but acres L.Ed.2d 169 recognized the reservation had been created aboriginal Oneidas’ title to their ancient Treaty Schuyler. of Fort See Sher- reservation land and because the Tribe rill, By 544 U.S. at 125 S.Ct. 1478. acquired has now specific parcels thirty- that number had dwindled to market, involved in this open suit at two acres. Id. 125 S.Ct. 1478. it has unified fee aboriginal title and may now assert dominion over Beginning descendants of mem- parcels. bers of the Oneida Nation pursued federal litigation against governments local Id. 125 S.Ct. 1478. Based on York in an New effort to assert that cer- contention, brought OIN had suit tain of New York purchases State’s in the United States District Court for the during reservation land the late 18th and Northern District of New York seeking early 19th centuries had been in violation injunctive declaratory relief Act, of the Nonintercourse and therefore require recognition would present of its had not terminated the Oneidas’ to and future sovereign immunity from local possess 208-11, the land. See id. taxation on the land. Id. at cases). (summarizing S.Ct. 1478 In the 1478. agreed on the basis that “land 1990s, OIN tribe began members also in country ... subject is not purchase, through open-market transac- express taxation absent congression- tions, land that part had once been a al authorization.” Oneida Indian Nation Oneida Nation’s reservation. See Oneida N.Y., alia, 337 (citing, F.3d at 154 inter of N.Y., Indian Nation 337 at F.3d 144. of Ga., 515, 557, Worcester v. State 31 U.S. of The Supreme Court’s Decision in Sher- 515, (1832), 6 Pet. 8 L.Ed. 483 White rill Bracker, Mountain Apache Tribe v. 448 136, 151, 2578, U.S. 100 S.Ct. 65 L.Ed.2d At issue in parcels SHERRILL were of (1980), 665 and Montana v. Tribe (located in city land the of Sherrill in Onei- Blackfeet Indians, 759, 765, 105 S.Ct. York) County, da New that had originally 2399, (1985)). 85 L.Ed.2d 753 part been of the Oneida Nation reservation by as established the Treaty of Fort Supreme Court reversed. It “re- Schuyler, but that had been by transferred jected] the theory unification of OIN and the Oneida Nation to one of its members in the United States and that ‘stan- h[e]ld 1805, and then in 1807 that person sold dards of federal Indian law and federal Sherrill, to a non-Indian. 544 U.S. at equity practice’ preclude[d] the Tribe from 125 re-acquired S.Ct. 1478. The OIN rekindling sovereignty embers of that long parcels open these on the in market Sherrill, ago grew cold.” 544 U.S. at SHERRILL, 1998. Id. the OIN 125 Noting “justifiable S.Ct. 1478. properties asserted these were ex- expectations, grounded in two centuries of taxation, empt from arguing New York’s exercise of regulatory jurisdic- tion, because the in OIN, Court Coun- until recently [Oneida uncontested ty, N.Y. v. 215-16, Oneida Indian Nation heavy weight,” merit id. N.Y., 105 S.Ct. 84 S.Ct. the Court concluded: case, 4. permitted In this 1985 the Court limit the present-day relief available to the monetary damages OIN to seek for the sale of Oneidas." 544 U.S. at early its land in the late 18th and 19th centu- N.Y., (citing County, Oneida 470 U.S. at ries, day but ques- "reserved for another 1245). 253 n. ‘equitable tion whether considerations’ should of N.Y., 337 Nation F.3d Oneida Indian present from 1805 to the distance [T]he 171. seeking long delay in day, the Oneidas’ against York or its relief New equitable 14, 2003, county On November insti units, developments city in the

local respect tuted a action with foreclosure spanning genera- several of Sherrill property New York such OIN-owned laches, ac- tions, the doctrines of evoke County, State court. Madison and ren- impossibility, quiescence, time, however, F.Supp.2d at This 223. piecemeal inequitable the shift der these county not abandon foreclosure did unilaterally previous this suit seeks governance as it has done proceedings A years. Petition and Notice Foreclo to initiate. property was to the owners of sure mailed 221, 125 1478. Id. at S.Ct. county seeking was foreclosure taxes, upon non-payment including for County’s Actions Madison OIN, 8, 2004, December and was County has regularly assessed Madison January 2004 and published in December parcels to the of land in respect 31, 2005, taxes with Id. March specified It purchased county that were day redemption prope the last for of these that are to lie rties.5 OIN the 1990s claimed Id. The decided 29, 2005, just days Sherrill on March two within boundaries the reservation redemption. day before this final Id. Treaty Schuyler. in the described Fort County April On Madison moved County, F.Supp.2d at See Madison in the summary judgment 2003 state year 223. Each which OIN failed In the court action. Id. instant foreclosure taxes, pay County Madison would however, proceedings, federal had which proceedings against initiate foreclosure following been in the district court pending part parcels yearly OIN-owned of its this remand in Court’s district actions in state court. Madi- foreclosure injunction court a en preliminary issued County then fore- son would abandon the joining proceedings. foreclosure the state against proceedings closure the OIN- id.; See Oneida Indian Nation of N.Y. parcels, anticipation owned in of a resolu- F.Supp.2d Madison County, 376 283 taxability question in tion of the (N.D.N.Y.2005). when it became clear the Sherrill County’s Oneida Actions litigation year. would continue another County Id. Madison initiated and then County property Oneida follows a tax foreclosure in this proceedings abandoned procedure foreclosure is different 2003, id., year until manner each when County’s. Madison Pursuant effectively separated this Court the on- county law, arranges county for and County litigation going Madison from the any advertises a tax auction for the sale of taxes, litigation Sherrill remanded it to the which which are uni- on proceedings, formly January for further on are delinquent district court see due redemption expire Property period York Real Tax Law 1110 would March New years requires prior two years at least notice two later. Because less than redemption expiration period. of a The grounds, we we case on other decide this contends, agreed, OIN and the district court ruling. need not and do not reach that it was a violation of due constitutional process argu- also do due not reach similar process county guarantees for the to fail to respect to ment with that is made Oneida two-year by comply provision with this notice County’s procedures. foreclosure issuing notice on December that the

155 or more. County, 227; six months See Oneida Coun- Madison F.Supp.2d 401 at ty, F.Supp.2d at 287. The tax sale is 2) 432 County, 289; Oneida 432 F.Supp.2d at day held on the last business of December. tribal immunity bars suit against delinquent taxpayer Id. then has three OIN, see County, Madison years property, to redeem the and an addi- 228-29; F.Supp.2d at County, Oneida thirty days following tional receipt of a 3) F.Supp.2d 289; at the Due Process Redemption. Final Notice Before Id. at Clause of the Fifth Amendment was violat- process 287-88. This was adhered to with ed give Counties’ failure to the OIN respect parcels to all 280 OIN-owned locat- adequate notice of expiration of the and, County ed within both Oneida alleg- redemption period, see Madison County, edly, the reservation boundaries estab- 230; at F.Supp.2d County, Oneida Treaty lished Schuyler. Fort 289-90; 4) F.Supp.2d the land in During early the summer and autumn of question exempt from taxation under 2005, Final Redemption Notices Before law, New York State see County, Madison regarding were delivered to the OIN 231; 401 F.Supp.2d at County, Oneida parcels. of those Id. at 288. On October F.Supp.2d at 290. 28, 2005, the sought OIN received The district court denied Stockbridge’s restraining order preventing further fore- motion to intervene in Oneida County on against any closure efforts of the par- ground that Stockbridge could not cels, pending this outcome of this litiga- demonstrate sufficient interest the liti- tion. See id. gation. See 432 F.Supp.2d 291-92. Stockbñdge The Counties appeal from the grant of Stockbridge seeks to intervene these summary judgment against them. Stock- proceedings based on its contention that bridge appeals from the district court’s (two fifty-two land parcels Oneida Coun denial of its motion to intervene. The ty fifty County) part Madison are State of appears New York as amicus curi- an undiminished reservation of the Stock- in support Counties, ae urging us to bridge Band rather than the Oneidas. reverse the decision of the district court. litigation There is pending addressing this Court, Upon order of this the United claim in the Northern District of New States also submitted a brief as amicus York. Stockbridge-Munsee See v. State of brief, curiae. In that the United States York, (N.D.N.Y. New No. 3:86-CV-1140 urges us to affirm on ground the that the 1986). Oct. Stockbridge argues that sovereign immunity OIN’s tribal bars the Treaty Schuyler the of Fort set aside a Counties’ efforts to foreclose on OIN- six-square-mile permanent reservation for owned land. Band, the Stockbridge separate from a 250,000 surrounding acre tract reserved Since this argument Court heard oral for the matter, Oneidas. this there have been several devel- opments that practical affect the implica-

District Court Proceedings tions of this Court’s decision on Madison In both of the cases consolidated on and Oneida Counties. While devel- these appeal, the district court that concluded opments do not any render moot the of remedy not avail- foreclosure was issues before appeal, this Court on we able to independent the Counties on four briefly. think it useful to describe them 1) grounds: the Nonintercourse Act ren- properties ders the OIN’s inalienable and In a Record of May Decision issued on subject foreclosure, therefore not to see in response to the applica- OIN’s light most favorable to tion, the Interior deter- the evidence the Department the of 13,003.89 of it acres non-moving party drawing mined that would take all the rea appeal land in this at issue the OIN-owned favor.” sonable inferences its Allianz trust, § 465 and to 25 U.S.C. pursuant into Lerner, (2d 416 F.3d Ins. Co. Department Part 151. See 25 C.F.R. Cir.2005). is “[Sjummary judgment ap Decision, Interior, May Record of the genuine where there exists no propriate Decision”). (“Record Notice and, material on issue of fact based the published in the Federal decision was this facts, undisputed moving party enti May Fed.Reg. 2008. 73 Register judgment to a matter of tled law.” subject longer This land will no be City of N.Y., D’Amico v. 132 F.3d § 465. local taxation. 25 U.S.C. to state or (2d Cir.1998); see R. Civ. Pro. also Fed. 4,000 result, only approximately aAs 56(c). 17,000 originally acres subject to in this case will remain issue Immunity II. Tribal Sovereign local taxation in future. state and trust, In connection with the land Sovereign A. The Distinction Between satisfy regulations, the trust order Authority Reservation Lands Over securing posted letters of credit OIN has Sovereign From Immunity And Suit taxes, penalties, of all payment The Counties assert courts to be interest determined requires decision in Court’s Shemll rever- agreed due on the land issue and has here sal because the Sherrill Court ruled replace letters to se- supplement those that the land in question sovereign is not any penalties additional payment cure land, subject tribal and it is therefore litiga- interest accrue while taxation. The interpret Counties Sherrill concerning pend- trust decision is tion Record of Decision at 53. These to hold that the OIN cannot assert sover- ing. taxes, substantially penal- cover all immunity letters eign prevent foreclosure ties, interest on all of the assessed action on such land. case, property at issue in this OIN-owned argument improperly think Depart- those including parcels that two tribal conflates distinct doctrines: sov- of the Interior decided not to ment has authority ereign over reservation lands Accordingly, take into trust. notwith- immunity from and tribal suit. ap- standing this Court’s decision on this taxation, in The freedom from state will re- peal, appears the Counties immunity context broader taxes, payment penalties, ceive back of all regulation, which is addressed and interest due on the at issue sovereign authority arises from tribe’s development

in this lawsuit. this Despite over its reservation lands. This implications for the practical and the it has Supreme authority was examined case, parties this we reiterate early as Court as 1832: any not render of the issues does moot affect raised on nor our consideration of gov- From the of our commencement appeal. ernment, congress passed has acts to trade with regulate and intercourse DISCUSSION Indians; nations, which them as treat of I. Standard Review their and manifest firm respect rights, which purpose protection to afford that grant a district court’s “We review novo, construing acts summary judgment stipulate. treaties All these ... de ro, manifestly 148, 1267; consider several 411 U.S. at 93 S.Ct. Mon- communities, political Indians, nations as distinct tana v. Tribe Blackfeet boundaries, having territorial 'within 759, 764, 2399, U.S. 105 S.Ct. 85 L.Ed.2d authority (1985). which them is exclusive.... Ga., 515, v. State 31 U.S. Worcester Supreme When the Court held in Sher- (1832) 556-57, 515, 6 Pet. 8 L.Ed. 483 rill the OIN could not “rekindl[e] (Marshall, C.J.), abrogated on other sovereignty embers of that long ago grew grounds recognized by v. Nevada cold,” 544 U.S. at 125 S.Ct.

Hicks, 353, 361-62, 533 U.S. 121 S.Ct. sovereignty to which it referring was was (remarking 150 L.Ed.2d 398 of the sort described Worcester and its that “the Indians’ to make their own Indeed, progeny. the decision of this governed by laws be them does not Sherrill reversed had focused regulatory authority exclude all state on on this land-based “Indian sovereignty reservation.”). conceptual clarity “The doctrine,” N.Y., Oneida Indian Nation of of Mr. Chief Justice Marshall’s view 155(internal 337 F.3d at quotation marks ... given way Worcester has to more indi- omitted), emerged that had from Worces- treatment of particular vidualized treaties cases, century ter and other 19th see id. at specific federal statutes.” Mescalero 153-55. Supreme Court applied this Jones, 145, 148, Apache Tribe v. doctrine to the facts at hand in Sherrill (1973). 93 S.Ct. L.Ed.2d 114 rejecting when the OIN’s prayer for relief. But the Supreme “eategori Court has That different, however, doctrine is

eal[ly]” maintained that cession “[a]bsent from the doctrine of immunity tribal from jurisdiction or other federal statutes suit. While the tax it, exemption of ... reserva permitting power a State is without tion land from arises a tribe’s tax exercise of reservation lands and reservation sovereignty land, over such County Indians.” and is there Yakima Confeder closely question fore tied to the ated Tribes and Bands of whether Yakima Indian Nation, 251, 258, specific parcel 502 U.S. issue is “Indian res S.Ct. (1992) (internal land,” ervation quotation County, 116 L.Ed.2d 687 Cass Minn. v. omitted). Indians, principle marks This Leech Lake Chippewa has been Band of Supreme traced later Court decisions to See, (1998),

Worcester and other of its era. immunity cases L.Ed.2d 90 a tribe’s 257-58, e.g., 683; id. at Mescale- suit independent of its lands.6 See Thus, (U.S. argu- 2004) we need not Aug. reach Counties’ (Appel- LEXIS 492 *1 Pet.) ment that the OIN’s reservation has been dis- (stating late Br. for ques- that one of the depend established. Our conclusion does not "[wjhether presented tions for review was note, however, upon it. We that the alleged country reservation land is Indian explicitly Court in Sherrill declined to resolve 1151....”). pursuant pri- to 18 U.S.C. Our question of whether the Oneida reserva- holding question on this “the Onei- —that "disestablished,” tion had been thus render- disestablished,” das’ reservation was not ing question longer part the land in no of a N.Y., Oneida Indian Nation 337 F.3d at part reservation or otherwise of "Indian controlling 167—therefore remains the law of country” by as defined 18 U.S.C. See, Abrams, e.g., this circuit. Roman v. 822 8, Compare 544 U.S. at 214 n. 125 214, (2d Cir.1987) F.2d (deciding 226 ("We S.Ct. 1478 resolve this case on consider- by Supreme remand Court did not disturb discretely parties’ ations not identified in the precedent by portions set of the re- SHERRILL, ....”) briefs with CITY OF N.Y. manded case that the not did N.Y., v. ONEIDA INDIAN NATION OF 2004 reach). WL 1835364 at 2004 U.S. S.Ct. *i. Briefs 158 Inc., might Tech., [that] considerations Mfg. [There are]

Kiowa Tribe Okla. 1700, immu- 754, suggest abrogate 140 need to tribal 751, 118 S.Ct. 523 U.S. (“[0]ur nity, overarching sus- at as an rule. cases have least L.Ed.2d 981 immunity Respondent repudiate from without ask us to tained suit does not tribal outright, suggests based on but in- drawing principle a distinction where occurred.”). it to stead that confine reservations tribal activities we activities. de- or noncommercial from immunity tribal The doctrine case, in cline to this distinction this draw history in the Su- a distinctive suit has Congress may as we to the role defer in explained As the Court preme Court. important judg- wish to exercise this Kiowa: ment. immunity of tribal the doctrine Though Congress against acted the back- has settled law and controls is [from suit] It has ground of our decisions. restricted case, that it al- developed we note from suit limited cir- immunity tribal The doctrine is said most accident. it cumstances. And other statutes has opinions on of our own to rest some to alter declared an intention not it. in Turner v. opinion Court’s United States, 354, 109, 63 248 U.S. S.Ct. (1919). Though Turner

L.Ed. 291 occasionally Congress authorized “has authority immu- cited as for the indeed against limited of suits classes nity, does simply examination shows always liberty tribes” and “has been at proposition. not for that stand dispense immunity tribal or with such Potawatomi, supra,

to limit it.” at yet 905. It has not done so. S.Ct. immunity, reference passing Turner’s (cita- 756-59, U.S. 118 S.Ct. at however, explicit holding an did become omitted). tions immunity from suit. We tribes had Fidelity so States v. [United held The highlighted sepa- Kiowa Court Co., & 309 U.S. Guar. S.Ct. rate and natures independent of the doc- (1940)], saying: 84 L.Ed. 894 “These immunity trines of from tribal taxation exempt Indian Nations are from suit state, powers other immu- tribal Congressional without authorization.” nity from that controls the suit case bar: Turner, 653 (citing [Id.] that a recognized may We have State 109). supra, at As sover- regulate authority have to tax or tribal eigns sovereigns, quasi the Indian occurring activities within but State enjoyed immunity judicial Nations “from country. say To outside Indian substan- attack” absent consent to be sued. La- apply tive state laws to off-reservation cases, analysis, ter albeit with little reit- conduct, however, say is not to that a doctrine. erated the longer enjoys immunity tribe no Potawatomi, immunity example, tribal came suit. we doctrine of years Oklahoma tax ago under attack few reaffirmed while [Okla. cigarette Tax a Tribe’s store to non- v. Citizen Potawa- sales Band] Comm’n Okla., members, enjoys immunity the Tribe Tribe [Indian tomi unpaid from a taxes. L.Ed.2d 1112 suit to collect S.Ct. (1991)].... doctrine, There between the We retained the is a difference however, theory Congress compliance to demand with state laws had it.... and means available enforce them. abrogate failed to (citations omit- 118 S.Ct. 1700. with the court remedy Id. district that the ted). not foreclosure is available to the Counties Congress unless and until authorizes such the doctrine tribal While suits or OIN the consents to such suits. authority “undergone over land has consid Because neither these events oc- has evolution the [in Court] erable curred, the foreclosure actions are barred circumstances,” changed response immunity the OIN’s from suit. v. State McClanahan Tax Comm’n of Ariz., argue that Counties the that notion (1973), they may L.Ed.2d the doctrine tribal tax but not foreclose is inconsis- immunity contradictory. sure, from suit has not. The Kiowa tent and To be the result portion opin indicated is reminiscent of words Court of the nurs- ery rhyme: ion forth above that set looks Con gress any change. such Mother, may goI out Yes, my to swim? darling daughter; your Hang clothes light history, of this not we do read limb, a hickory And don’t go near the implicitly abrogating Sherrill OIN’s water.7 immunity from suit. No such statement of Or,' assert, as the Counties more soberly abrogation was made the Sherrill such a rule “eviscerates” “making Court, ques- nor does into opinion call that right government essential tax [to approach, any tion Kiowa Court’s that properties] meaningless.” Appellants’ Br. abrogation such should be to Con- left at 51. right gress. Sherrill dealt with “the compliance

demand with state laws.” argument But a similar rejected was Kiowa, 523 U.S. at 1700. It the Supreme Court in Potawatomi8 did not address “the means available to There, the Court held that Oklahoma had those laws. enforce” Id. authority to tax certain cigarette sales made at the tribe’s Po convenience store. Application B. to the Case at Bar tawatomi, U.S. at 111 S.Ct. 905. The Court also ruled that the im tribe’s We are left then with the rule munity prevented suit from stated Kioiua: “As a matter of federal bringing to collect unpaid suit taxes. The law, an Indian subject only tribe is suit rulings reconciled these two thus: Congress where has authorized the suit or immunity.” that, the tribe has waived Id. at complains effect, its Oklahoma deci- 754, 118 agree S.Ct. 1700. We therefore sions such as v.Moe[ Sal- Confederated in, O’Neill, Quoted e.g., qualified immunity. raising "The Rose Cecil In cases (1907), Hickory Limb” at www. available qualified immunity, issue of a state actor (last gutenberg. org/files/28886/2 .txt 8886-8 plaintiff's have violated constitutional 19, 2010). Mar. visited rights, but the court nevertheless decides qualified immunity. entitled to actor is argue right 8. The Counties that a without a See, Andreno, (2d e.g., v. Moore 505 F.3d 203 remedy meaningless. Despite Chief Justice Cir.2007) (holding plaintiff's Fourth eloquent gov- Marshall’s statement that the rights were de- Amendment violated but ernment of the United States be called cannot qualified immunity entitled to fendants were government of laws "if the laws furnish no clearly because that was not estab- remedy legal for the violation a vested cases, lished). In these there was a "violation Madison, (1 Cranch) Marbury right,” legal right,” of a but the (1803), vested "laws furnish 2 L.Ed. 60 our courts often remedy.” Marbury, no 5 U.S. at remedy to vindicate conclude there is no right. violation of a Consider the doctrine Cranch 137. 160 suit, sovereign immunity we from Tribes Flathead OIN’s and Kootenai ish of 1634, three

Reservation, 463, and do not reach the other 425 96 S.Ct. need not U.S. (1976),] [Washington court. upon by relied the district L.Ed.2d 96 rationales 48 [Res- Colville v. Tribes of] Confederated 2069, ervation, 134, III. Abstention S.Ct. 100 U.S. (1980), taxa- (authorizing L.Ed.2d 10 argue that the dis Counties circumstances)] them give in certain tion as of law court “erred a matter trict remedy. There is any without a interfering to abstain with refusing from immunity bars that no doubt process.” tax foreclosure the Counties’ most effi- pursuing from the State a Br. at evaluate 105. “We Appellants’ remedy, persuaded but are not cient we to ab court’s determination not district any adequate lacks alternatives. that it novo, implicates ... stain de because never that individual have held We subject matter Hart jurisdiction.” court’s are not agents or of a tribe officers F.3d Pellegrino, Co. Courant ford damages brought by for in actions liable (2d Cir.2004). 83, agree with into may also enter the State.... States court, County, 401 district see Madison adopt a with the tribes to agreements is not F.Supp.2d that abstention col- mutually regime for the satisfactory here. appropriate if of this sort tax. And Okla- lection of argument ap- The Counties’ abstention similarly situated and other homa States § based on pears to be 28 U.S.C. pro- of that none these alternatives find that courts which states district “[t]he they are to which duce revenues enjoin, suspend not or restrain shall entitled, they appro- seek may of course assessment, levy any or tax collection priate legislation Congress. plain, speedy under State law where a (citations 111 S.Ct. remedy may in the courts be had efficient omitted). note, As of such State.” the Counties trib Individual members and tribal though, in Moe v. Salish and Confederated capacity in their remain al officers official Reservation, Tribes Kootenai Flathead in susceptible damages suits 48 L.Ed.2d 96 Tribe, relief. See Inc. v.

junctive Puyallup (1976), an “ex- Court created Wash., 433 U.S. Dep’t Game State general barring to the federal ception rule 53 L.Ed.2d with interference state tax administration.” (“[W]hether not the Tribe itself or Br. at The Moe Court Appellants’ may sued a court without its be state per- that Indian should be concluded tribes that a suit Congress, consent or bring mitted to federal lawsuits enjoin violations of law individual brought could have on United States They members is permissible.”). tribal principle tribe’s behalf trustee—-a enjoined therefore be from violations expressed legisla- found in the state law. But if such enforcement history tive of 28 which U.S.C. agreement fail if no can mechanisms courts shall provides “[t]he district reached between the Counties and be actions, jurisdiction original have of all civil OIN, recourse will the Counties’ ultimate by any or band with brought tribe Congress, as the Su be to we understand duly by the body recognized governing instructed. preme Court have Interior, the mat- Secretary of the wherein controversy the Consti- ground we affirm ter in arises under Because tution, laws, by the of the United the foreclosure actions are barred treaties ing parties that inasmuch adequately represent The Court decided that States.” in- not “the United States barred [was] as terest.” enjoin seeking from to the enforce- Intervention as of under Rule law, ... a tax the

ment of Tribe 24(a)(2) granted is when all four of the ” Moe, doing so.... not barred from [was] (1) following are conditions met: the (citation 474-75, (2) motion is timely; applicant the as- omitted). an relating serts interest to the property argue exception The Counties that or subject transaction that is the of the inapplicable is here because “Sherrill held (3) action; applicant the is so situated government local not OIN—has —and intervention, that without disposition of land at sovereignty full over the issue.” matter, the a may, practical action as Br. at 106. But Moe does not Appellants’ impair or impede applicant’s ability sovereignty on whether a tribe has depend interest; protect to its appli- any particular perceive land. We over no adequately cant’s interest is not repre- why, because of Sherrill or other- reason parties. sented the other wise, the should not holding apply of Moe MasterCard v. Int’l Inc. Int’l Visa Serv. to case at bar. we Accordingly, de- Ass’n, Inc., (2d 471 F.3d Cir. to court cline order the district to abstain 2006). exercising jurisdiction from over this mat- ter. Stockbridge sought to intervene for the sole purpose seeking dismissal of Stockbridge’s

IV. to Motion Intervene this case parcels insofar as it relates to the Stockbridge from the appeals dis of land that allegedly part are of the court’s denial its motion to inter trict Stockbridge ground reservation. The for County litigation vene the Oneida as a Stockbridge dismissal that proposed to as to right pursuant matter Federal Rule “Stockbridge sert was that is a necessary 24(a)(2).9 Procedure We review Civil indispensable party enjoys which sov 24(a) district of a Rule court’s denial ereign immunity suit from and cannot be motion abuse of discretion. Brennan absence, join forced this action. its of Educ., N.Y.C. Bd. F.3d 128 the proceed suit cannot and must be dis Cir.2001). (2d County missed as to all Oneida lands situ 24(a)(2) within Stockbridge treaty ated the 1788 motion, timely Rule states: “On Stockbridge reservation.” Mot. to Inter anyone permit court [district] must vene at County, Oneida dated Novem who ... an intervene claims interest relat- words, 2005. In Stockbridge to the ber other ing or transaction that is subject action, required asserts that it party and is so is under situated 19(a)(1), disposing of the action as a Federal Rule of prac- Civil Procedure joinder matter impair impede tical but feasible movant’s is not result interest, ability to protect Stockbridge’s immunity suit, its unless exist- Stockbridge appeal indispensable party does not the district in that case. For the denial court's of its motion intervene in the analysis, reasons Rule 24 set forth in the we does, County Stockbridge Madison case. Stockbridge indispens- conclude is not an however, curiae, argue as see Stock- amicus actions, party able to these and that the dis- bridge Br. at 11 n. 4 and 40 n. that it was trict court not therefore did abuse its discre- abuse of an discretion for district court to denying County’s tion in Madison Rule 19 deny County's Madison to file a motion Rule motion to dismiss. join failure motion to dismiss for an action, might Br. at Stockbridge under is therefore warranted dismissal 19(b) subject an indis- to a Stockbridge County also “leave sub- Rule because double, pensable under that rule. party incurring multiple, risk of stantial obligations,” or otherwise inconsistent id. 19(a), governing “Required Rule theory, But at 48.12 under either Stock- Parties,” 24(a)(2), cov Rule Joinder of and it bridge must first show that “claims an Right,”10 which ering “Intervention of relating subject of ac- interest to the here, claim “are Stockbridge asserts its 19(a)(1)(B). R. of P. As tion.” Fed. Civ. Master to mirror each other.” intended MasterCard, in 471 F.3d at explained 19(a) Card, requires F.3d at 390. Rule above, 24 requires Rule a and discussed joined joinder if is parties to be feasible showing Stockbridge if is to similar estab- parties necessary if are to “accord and ability a lish the to intervene as matter of existing parties,” complete among relief right. if, 19(a)(1)(A), speci or under Fed.R.Civ.P. circumstances, disposing of the case fied The district court determined that “(i) party practical as a might without in Stockbridge an interest the in- lacked abili impair impede person’s or matter litigation therefore denied its stant and (ii) interest; ty protect the or leave an to County, motion to intervene. Oneida subject risk existing party to a substantial agree. F.Supp.2d 292. We double, incurring multiple, or otherwise an cognizable interest to be under [F]or the in obligations inconsistent because 24(a)(2), direct, Rule it must be substan- 19(a)(1)(B).11 terest,” “[I]f Fed.R.Civ.P. a tial, legally An protectable. interest 19(a), not Rule party ‘necessary’ is under subject that is remote from the matter satisfy interven then it cannot the test for contingent of the or that is proceeding, 24(a)(2).” tion as of under Rule upon sequence of a occurrence MasterCard, 471 F.3d at 389. colorable, events before it becomes will Stockbridge argues necessary that it is a satisfy not the rule. 19(a)(l)(B)(i) party under both Rule (citations (ii) Brennan, 260 F.3d at 129 disposing of this matter because its omitted). quotation might “as a matter im- internal marks practical absence Stock pro- purported in this pair impede Stockbridge’s ability bridge’s or interest case subject from the relating currently tect its interest” to the stems fact that is (B) person relating 10. This subsection such an interest covers intervention claims subject provided than that federal stat- to the of the action and is so situat- other ute, (a)(1) disposing per- ed action in which is covered of the subsection may: here. absence is not at issue son’s (i) practical impair impede as matter or interest; person's ability protect 19(a)(1) 11. Federal Rule of Procedure Civil or entirety: reads in its (ii) existing party subject leave an ato (a) Required Persons to Be Joined if Feasi- double, incurring substantial risk of multi- ble. obligations ple, or otherwise inconsistent (1) Required Party. person who A is because interest. subject process to service of and whose (emphasis original). Id. joinder deprive subject- will not the court of jurisdiction par- Although joined Stockbridge this matter must be includes statuto- ty ry language argument, if: it has failed to its absence, (A) identify any possibility join person’s in that the court can- that a failure to complete among existing parties existing subject not accord relief them would parties; obligations. inconsistent in litigation involved in which it is irrespective assert OIN of whether it is now or ing portion that a of the land at issue here ever part was of the tribe’s reservation. part in fact of the Stockbridge is reserva Stockbridge’s litigation interest in this Stockbridge-Munsee tion. See v. State best, therefore remote at because these (N.D.N.Y. York, New No. 3:86-CV-1140 assertions are question unrelated to the 1986).13 Stockbridge Oct. is therefore reservation boundaries.14 present litigation concerned that the could Finally, we note that the manner protect hinder its efforts to property- its which we decide appeal this also renders interest that land. minimal the likelihood that Stockbridge not, parties litigation do how- will prejudiced by be its failure to al- be ever, purport put to at issue the bound- lowed to intervene.15 aries of the OIN’s or Stockbridge’s reser- Nor,

vation. with the exception of the CONCLUSION law, OIN’s claims under state do the reasons, For the foregoing we affirm the arguments Tribe’s so much as touch on the judgment of the district court. issue of the continued existence of the reservation irrespective its boundaries. CAJBRANES, A. JOSÉ Circuit Judge, rejection We think that Sherrill’s of the Judge with whom PETER HALL W. theory,” “unification 125 joins, concurring: S.Ct. under which argued the OIN The holding this case comes down to that it had “unified fee aboriginal title this: an Indian tribe can purchase land may sovereign [therefore] assert do- (including land that was never part of a minion over parcels,” id. at reservation); refuse pay lawfully-owed to question S.Ct. has taken the of the taxes; and consequences suffer no because reservation off boundaries the table for taxing authority cannot sue to collect purposes of appeal. What is relevant the taxes owed.1 now is the OIN’s that it assertion is im- mune from suit even if it does not have This rule of decision defies common question. control the land in over sense. But absent by action our highest contrary Court, Counties’ by assertion is that Congress, it is the In law. they can on by foreclose land owned twenty years, last Court States, curiae, 13. The OIN and both of the Counties are appeal as amicus that the parties litigation. to that the denial of the motion to intervene was not timely filed. County 14. The Madison district court did re- properties fer to litiga- ''[t]he issue” in Department 1. The agreed of the Interior has being tion "located within the Na- [Oneida] 13,000 17,000 accept roughly to of the tribe’s tion’s F.Supp.2d reservation.” 401 at 231. Interior, Department acres into trust. hardly think that this sort of comment Decision, 20,May Record of 2008. Once the made a appellate district court —or an trust, land is held in longer it will no be case, court for that matter —in this where subject to state and local taxation. 25 U.S.C. party claiming neither the issue nor a other- trust, however, § 465. To be taken into court, legiti- wise is before the is cause for a taxes, pay penalties, tribe must all back part Stockbridge mate concern on the interest owed on the land before it will be rights may adversely its be affected in this taken into trust. 25 C.F.R. 151.13. Accord- litigation. ingly, practical effect on the Counties of conclusion, light 4,000 In holding of our our we need not is limited to the acres that 15. argument reach the raised the United will remain out of the trust. that, although states twice held has America, UNITED STATES of with compliance right demand

have Appellee, tribes, lack the they laws right. See legal means enforce v. Tech., Inc., Mfg. v. Tribe Okla. Kiowa ARENBURG, Jeffrey Robert 523 U.S. Defendant-Appellant. (1998) (“There a difference L.Ed.2d 981 compliance right demand between Docket No. 08-5090-cr. means available laws with state them.”); Tax Comm’n Okla. enforce Appeals, United States Indian Tribe Band Potawatomi Citizen Second Circuit. Okla., 505, 514, 111 S.Ct. Argued: April (1991) (holding that states L.Ed.2d 1112 certain to collect taxes on have 25, 2010. May Decided: reservation, cigarette sales an Indian seeking the tribe is immune from suit but right). light of this

to enforce

unambiguous guidance Supreme from the

Court, I am to concur with bound that, although the Counties

conclusion here, City

tax the issue see

Sherrill, N.Y. v. Indian Nation Oneida

N.Y., (2005),they may not foreclose

L.Ed.2d 386 properties the tribe is

on those because

immune from suit. result, however,

This is so anomalous it calls out for Kiowa I

reconsider and Potawatomi that we were to revisit empowered

wish decisions, alas, but, not

those appel- extended intermediate

privilege If to be logic

late courts. law and are law, have

reunited this area of the will Court, our highest

to be done

Congress. I

Accordingly, judgment in the concur compre- careful and

the Court opinion of Judge

hensive Sack.

Case Details

Case Name: Oneida Indian Nation of NY v. Madison County

Court Name: Court of Appeals for the Second Circuit

Date Published: Apr 27, 2010

Citation: 605 F.3d 149

Docket Number: Docket 05-6408-cv (L), 06-5168-cv (CON), 06-5515-cv (CON)

Court Abbreviation: 2d Cir.