Oneida Indian Nation v. Madison County, No. 05-6408 (2d Cir. 2010)

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The court issued a subsequent related opinion or order on October 20, 2011.

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05-6408-cv (L); 06-5168-cv (CON); 06-5515-cv (CON) Oneida Indian Nation v. Madison County 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 (Argued: 5 November 6, 2007 Decided: Final Submission: July 20, 2009 April 27, 2010) 6 Docket No. 05-6408-cv (L); 06-5168-cv (CON); 06-5515-cv (CON) 7 ------------------------------------- 8 ONEIDA INDIAN NATION OF NEW YORK, 9 Plaintiff-Counter-Defendant-Appellee, 10 - v - 11 MADISON COUNTY AND ONEIDA COUNTY, NEW YORK, 12 Defendants-Counter-Claimants-Appellants, 13 STOCKBRIDGE-MUNSEE COMMUNITY, BAND OF MOHICAN INDIANS, 14 Putative Intervenor-Appellant.* 15 ------------------------------------- 16 17 18 Before: 19 CABRANES, SACK, and HALL, Circuit Judges. Judge Cabranes, joined by Judge Hall, concurs in a separate opinion. Appeal from a judgment of the United States District 20 Court for the Northern District of New York (David N. Hurd, 21 Judge). 22 Indian Nation of New York (the "OIN") brought suit against 23 Madison and Oneida Counties to enjoin them from foreclosing on 24 OIN-owned property for non-payment of taxes. * In separate actions consolidated on appeal, the Oneida On cross-motions The Clerk of Court is directed to amend the official caption of this appeal in accordance with the foregoing. 1 for summary judgment, the district court ruled in favor of the 2 OIN. 3 Counties' foreclosure actions under the principle that "[a]s a 4 matter of federal law, an Indian tribe is subject to suit only 5 where Congress has authorized the suit or the tribe has waived 6 its immunity." 7 U.S. 751, 754 (1998). 8 Nation of N.Y., 544 U.S. 197 (2005) is not to the contrary. 9 Separately, we conclude that the district court did not abuse its We agree. We conclude that the OIN is immune from the Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 City of Sherrill, N.Y. v. Oneida Indian 10 discretion by denying the motion to intervene brought by the 11 Stockbridge-Munsee Community, Band of Mohican Indians. 12 Cabranes concurs in the judgment and opinion of the Court and 13 files a separate opinion, in which Judge Hall concurs. 14 Judge Affirmed. 15 16 17 DAVID M. SCHRAVER, Nixon Peabody LLP, Rochester, NY, for Defendants-CounterClaimants-Appellants. 18 19 20 21 22 23 MICHAEL R. SMITH, Zuckerman Spaeder LLP (David A. Reiser, of counsel; Peter D. Carmen of Oneida Nation Legal Department, Verona, NY, on the brief), Washington, DC, for Plaintiff-CounterDefendant-Appellee. 24 25 26 DON B. MILLER, Don. B. Miller, P.C., Boulder, CO, for Putative IntervenorAppellant. 27 28 29 30 31 32 33 ANDREW D. BING, Assistant Solicitor General, State of New York (Andrew M. Cuomo, Attorney General, on the brief; Barbara D. Underwood, Solicitor General; Daniel Smirlock, Deputy Solicitor General; and Peter H. Schiff, Senior Counsel, of counsel; Dwight A. Healy, 2 1 2 White & Case LLP, co-counsel), New York, NY, for Amicus Curiae State of New York. 3 4 5 6 7 8 9 10 RONALD J. TENPAS, Assistant Attorney General; Samuel C. Alexander, Elizabeth Ann Peterson, and Kathryn E. Kovacs, U.S. Department of Justice Environment & Natural Resources Division, Appellate Section; and Thomas Blaser, U.S. Department of the Interior, Washington, DC, for Amicus Curiae United States. 11 SACK, Circuit Judge: 12 This appeal is but the latest chapter in a lengthy 13 dispute over the payment of state and local taxes by the 14 plaintiff-appellee Oneida Indian Nation of New York (the "OIN"). 15 The Supreme Court most recently addressed the OIN's tax 16 obligations in City of Sherrill, N.Y. v. Oneida Indian Nation of 17 N.Y., 544 U.S. 197 (2005) ("Sherrill"). 18 OIN's contention that parcels of lands allegedly within the 19 boundaries of an Indian reservation once occupied by the Oneidas, 20 which were sold to non-Indians during the early 19th century and 21 bought back by the OIN on the open market in the 1990s, thereby 22 came under the sovereign dominion of the OIN and were therefore 23 exempt from municipal taxation.1 The Court rejected the The OIN nonetheless now seeks 1 The OIN's suit against Madison County, which is one of the actions consolidated in this appeal, was once consolidated with three other actions involving the City of Sherrill. See Oneida Indian Nation of N.Y. v. Madison County, 401 F. Supp. 2d 219, 223 (N.D.N.Y. 2005) (explaining history). In Oneida Indian Nation of N.Y. v. City of Sherrill, N.Y., 337 F.3d 139 (2d Cir. 2003), this Court ruled in favor of the OIN with respect to those three other actions, but vacated the Madison County action, which we found to have been dealt with in a "procedurally improper" manner by the district court. Id. at 170; see also id. at 14546, 171. The Supreme Court granted certiorari with respect to the three actions in which we had ruled in the OIN's favor, and 3 1 to enjoin the defendants-appellants Madison and Oneida Counties 2 (the "Counties") from foreclosing on this property for non- 3 payment of county taxes. 4 brought in both of the cases that are consolidated on this 5 appeal, the district court ruled in favor of the OIN. 6 Indian Nation v. Oneida County, 432 F. Supp. 2d 285, 292 7 (N.D.N.Y. 2006) ("Oneida County"); Oneida Indian Nation of N.Y. 8 v. Madison County, 401 F. Supp. 2d 219, 232-33 (N.D.N.Y. 2005) 9 ("Madison County"). On cross-motions for summary judgment See Oneida We affirm on the ground that the OIN is 10 immune from suit under the long-standing doctrine of tribal 11 sovereign immunity. 12 available to the Counties. 13 The remedy of foreclosure is therefore not The Stockbridge-Munsee Community, Band of Mohican 14 Indians ("Stockbridge")2 filed a motion to intervene in Oneida 15 County pursuant to Federal Rule of Civil Procedure 24(a), with 16 the goal of obtaining dismissal of that action to the extent that 17 the land at issue was found to overlap with Stockbridge's 18 purported six-square-mile reservation. 19 rejected Stockbridge's motion, finding that Stockbridge could not 20 demonstrate an interest in the Oneida County litigation. The district court See 432 reversed in Sherrill, 544 U.S. 197. The instant case is thus closely related to Sherrill, although it does not involve any identical actions. 2 Stockbridge is referred to by various similar names in the papers before us. We employ that used by its counsel in its brief submitted to this Court. 4 1 F. Supp. 2d at 291-92. 2 We conclude that this was not an abuse of discretion. BACKGROUND 3 4 The history of the land at issue here and transactions 5 affecting it has been set forth at some length in several other 6 opinions of this and other courts. 7 at 203-12; Oneida Indian Nation of N.Y. v. City of Sherrill, 8 N.Y., 337 F.3d 139, 146-52 (2d Cir. 2003) ("Oneida Indian Nation 9 of N.Y."), rev'd, Sherrill, 544 U.S. 197; Oneida Indian Nation of See, e.g., Sherrill, 544 U.S. 10 N.Y. v. City of Sherrill, N.Y., 145 F. Supp. 2d 226, 232-36 11 (N.D.N.Y. 2001), aff'd in part, vacated and remanded in part, 12 Oneida Indian Nation of N.Y., 337 F.3d 139, rev'd, Sherrill, 544 13 U.S. 197. 14 for an understanding of our resolution of this appeal. We recite only those facts that we think are necessary 15 The OIN's Land 16 The OIN is a federally recognized Indian Tribe that is 17 directly descended from the Oneida Indian Nation ("Oneida 18 Nation").3 The Oneida Nation's lands once encompassed some six 3 Despite our use of the "OIN" acronym, the Oneida Indian Nation of New York should not be confused with the original Oneida Indian Nation, which is not a federally recognized tribe and is not a party to these consolidated cases. . . . [T]he original Oneida Indian Nation became divided into three distinct bands, the New York Oneidas, the Wisconsin Oneidas, and the Canadian Oneidas, by the middle of the nineteenth century. Oneida Indian Nation of N.Y., 337 F.3d at 144 n.1. 5 1 million acres in what is now central New York State. 2 pursuant to the Treaty of Fort Schuyler between the Oneida Nation 3 and the State of New York, the Nation ceded title to nearly all 4 of its land to the State, retaining a reservation of only 5 approximately 300,000 acres. 6 In 1788, Sherrill, 544 U.S. at 203. In 1790, Congress passed the first Indian Trade and 7 Intercourse Act. See Act of July 22, 1790, ch. 33, 1 Stat. 137 8 ("Nonintercourse Act"). 9 substantially in force today, bars the sale of tribal land The Nonintercourse Act, which remains 10 without federal government acquiescence. Sherrill, 544 U.S. at 11 204. 12 the 18th century and at the beginning of the 19th century, the 13 Oneida Nation sold substantial portions of the remaining 14 reservation land to New York State and to private parties without 15 the federal supervision that the Act required. 16 06; Oneida Indian Nation of N.Y., 337 F.3d at 147-48. 17 United States v. Oneida Nation of N.Y., 477 F.2d 939, 940 (Ct. 18 Cl. 1973) (concluding that the federal government owed a 19 fiduciary duty to protect members of the Oneida Nation in 20 connection with their land dealings with New York State between 21 1795 and 1846). 22 in free-market transactions. 23 City of Sherrill, N.Y., 145 F. Supp. 2d at 234 & n.3. 24 the Oneida Nation had sold all but 5,000 acres of the reservation 25 that had been created by the Treaty of Fort Schuyler. In spite of the provisions of the Act, towards the end of See id. at 205See also That land was subsequently sold to non-Indians See Oneida Indian Nation of N.Y. v. 6 By 1838, See 1 Sherrill, 544 U.S. at 206. 2 thirty-two acres. 3 By 1920, that number had dwindled to Id. at 207. Beginning in 1970, descendants of members of the Oneida 4 Nation pursued federal litigation against local governments in 5 New York in an effort to assert that certain of New York State's 6 purchases of reservation land during the late 18th and early 19th 7 centuries had been in violation of the Nonintercourse Act, and 8 therefore had not terminated the Oneidas' right to possess the 9 land. See id. at 208-11 (summarizing cases). In the 1990s, OIN 10 tribe members also began to purchase, through open-market 11 transactions, land that had once been a part of the Oneida 12 Nation's reservation. 13 at 144. See Oneida Indian Nation of N.Y., 337 F.3d 14 The Supreme Court's Decision in Sherrill 15 At issue in Sherrill were parcels of land in the city 16 of Sherrill (located in Oneida County, New York) that had 17 originally been part of the Oneida Nation reservation as 18 established by the Treaty of Fort Schuyler, but that had been 19 transferred by the Oneida Nation to one of its members in 1805, 20 and then in 1807 sold by that person to a non-Indian. 21 544 U.S. at 211. 22 market in 1997 and 1998. 23 these properties were exempt from taxation, arguing 24 25 that because the Court in [Oneida County, N.Y. v. Oneida Indian Nation of N.Y., 470 Sherrill, The OIN re-acquired these parcels on the open Id. In Sherrill, the OIN asserted that 7 U.S. 226 (1985)4] 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. 1 2 3 4 5 6 7 8 Id. at 213. Based on that contention, the OIN had brought suit 9 in the United States District Court for the Northern District of 10 New York seeking injunctive and declaratory relief that would 11 require recognition of its present and future sovereign immunity 12 from local taxation on the land. 13 basis that "land in Indian country . . . is not subject to state 14 taxation absent express congressional authorization." 15 Indian Nation of N.Y., 337 F.3d at 154 (citing, inter alia, 16 Worcester v. State of Ga., 31 U.S. 515, 557 (1832), White 17 Mountain Apache Tribe v. Bracker, 448 U.S. 136, 151 (1980), and 18 Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 765 (1985)). 19 Id. at 214. The Supreme Court reversed. We agreed on the Oneida It "reject[ed] the 20 unification theory of OIN and the United States and h[e]ld that 21 'standards of federal Indian law and federal equity practice' 22 preclude[d] the Tribe from rekindling embers of sovereignty that 23 long ago grew cold." 24 "justifiable expectations, grounded in two centuries of New 25 York's exercise of regulatory jurisdiction, until recently Sherrill, 544 U.S. at 214. 4 Noting that In this 1985 case, the Court permitted the OIN to seek monetary damages for the sale of its land in the late 18th and early 19th centuries, but "reserved for another day the question whether 'equitable considerations' should limit the relief available to the present-day Oneidas." Sherrill, 544 U.S. at 213 (citing Oneida County, N.Y., 470 U.S. at 253, n.27). 8 1 uncontested by OIN, merit heavy weight," id. at 215-16, the Court 2 concluded: 3 4 5 6 7 8 9 10 11 12 13 [T]he 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 initiate. Id. at 221. 14 Madison County's Actions 15 Madison County has regularly assessed taxes with 16 respect to the parcels of land in the county that were purchased 17 by the OIN in the 1990s that are claimed to lie within the 18 boundaries of the reservation described in the Treaty of Fort 19 Schuyler. 20 in which the OIN failed to pay property taxes, Madison County 21 would initiate foreclosure proceedings against the OIN-owned 22 parcels as part of its yearly foreclosure actions in state court. 23 See Madison County, 401 F. Supp. 2d at 223. Each year Madison County would then abandon the foreclosure proceedings 24 against the OIN-owned parcels, in anticipation of a resolution of 25 the taxability question in Sherrill, when it became clear that 26 the Sherrill litigation would continue for another year. 27 Madison County initiated and then abandoned foreclosure 28 proceedings in this manner in each year until 2003, id., when 29 this Court effectively separated the on-going Madison County 30 litigation from the Sherrill litigation and remanded it to the 9 Id. 1 district court for further proceedings, see Oneida Indian Nation 2 of N.Y., 337 F.3d at 171. 3 On November 14, 2003, the county instituted a 4 foreclosure action with respect to such OIN-owned property in New 5 York State court. 6 time, however, the county did not abandon these foreclosure 7 proceedings as it has done in previous years. 8 Notice of Foreclosure was mailed to the owners of property that 9 the county was seeking foreclosure upon for non-payment of taxes, Madison County, 401 F. Supp. 2d at 223. This A Petition and 10 including the OIN, on December 8, 2004, and was published in 11 December 2004 and January 2005. 12 2005, as the last day for redemption of these properties.5 13 The Supreme Court decided Sherrill on March 29, 2005, just two 14 days before this final day of redemption. 15 2005, Madison County moved for summary judgment in the 2003 state 16 court foreclosure action. 17 proceedings, however, which had been pending in the district 18 court following this Court's remand in 2003, the district court 19 issued a preliminary injunction enjoining the state foreclosure Id. Id. It specified March 31, Id. Id. On April 28, In the instant federal 5 New York Real Property Tax Law § 1110 requires at least two years of notice prior to the expiration of a redemption period. The OIN contends, and the district court agreed, that it was a violation of constitutional due process guarantees for the county to fail to comply with this two-year notice provision by issuing notice on December 8, 2004, that the redemption period would expire on March 31, 2005, less than two years later. Because we decide this case on other grounds, we need not and do not reach this ruling. We also do not reach a similar due process argument that is made with respect to Oneida County's foreclosure procedures. 10 1 proceedings. See id.; Oneida Indian Nation of N.Y. v. Madison 2 County, 376 F. Supp. 2d 280, 283 (N.D.N.Y. 2005). 3 Oneida County's Actions 4 Oneida County follows a property tax foreclosure 5 procedure that is different from Madison County's. 6 county law, the county arranges for and advertises a tax auction 7 for the sale of any property on which taxes, which are uniformly 8 due on January 31, are delinquent by six months or more. 9 See Oneida County, 432 F. Supp. 2d at 287. The tax sale is held 10 on the last business day of December. The delinquent 11 taxpayer then has three years to redeem the property, and an 12 additional thirty days following receipt of a Final Notice Before 13 Redemption. 14 respect to all 280 OIN-owned parcels located within both Oneida 15 County and, allegedly, the reservation boundaries established by 16 the Treaty of Fort Schuyler. 17 of 2005, Final Notices Before Redemption were delivered to the 18 OIN regarding 187 of those parcels. 19 2005, the OIN sought and received a restraining order preventing 20 further foreclosure efforts against any of the 280 parcels, 21 pending this outcome of this litigation. Id. at 287-88. Id. Pursuant to This process was adhered to with During the summer and early autumn Id. at 288. On October 28, See id. 22 Stockbridge 23 Stockbridge seeks to intervene in these proceedings 24 based on its contention that fifty-two land parcels (two in 25 Oneida County and fifty in Madison County) are part of an 26 undiminished reservation of the Stockbridge Band rather than the 11 1 Oneidas. There is litigation pending addressing this claim in 2 the Northern District of New York. 3 State of New York, No. 3:86-CV-1140 (N.D.N.Y. Oct. 15, 1986). 4 Stockbridge argues that the Treaty of Fort Schuyler set aside a 5 six-square-mile permanent reservation for the Stockbridge Band, 6 separate from a surrounding 250,000 acre tract reserved for the 7 Oneidas. See Stockbridge-Munsee v. 8 District Court Proceedings 9 In both of the cases consolidated on appeal, the 10 district court concluded that the remedy of foreclosure was not 11 available to the Counties on four independent grounds: 1) the 12 Nonintercourse Act renders the OIN's properties inalienable and 13 therefore not subject to foreclosure, see Madison County, 401 F. 14 Supp. 2d at 227; Oneida County, 432 F. Supp. 2d at 289; 2) tribal 15 sovereign immunity bars suit against the OIN, see Madison County, 16 401 F. Supp. 2d at 228-29; Oneida County, 432 F. Supp. 2d at 289; 17 3) the Due Process Clause of the Fifth Amendment was violated by 18 the Counties' failure to give the OIN adequate notice of the 19 expiration of the redemption period, see Madison County, 401 F. 20 Supp. 2d at 230; Oneida County, 432 F. Supp. 2d at 289-90; and 4) 21 the land in question is exempt from taxation under New York State 22 law, see Madison County, 401 F. Supp. 2d at 231; Oneida County, 23 432 F. Supp. 2d at 290. 24 25 The district court denied Stockbridge's motion to intervene in Oneida County on the ground that Stockbridge could 12 1 not demonstrate sufficient interest in the litigation. 2 F. Supp. 2d at 291-92. 3 See 432 The Counties appeal from the grant of summary judgment 4 against them. Stockbridge appeals from the district court's 5 denial of its motion to intervene. 6 as amicus curiae in support of the Counties, urging us to reverse 7 the decision of the district court. 8 the United States also submitted a brief as amicus curiae. 9 that brief, the United States urges us to affirm on the ground The State of New York appears Upon order of this Court, In 10 that the OIN's tribal sovereign immunity bars the Counties' 11 efforts to foreclose on OIN-owned land. 12 Since this Court heard oral argument in this matter, 13 there have been several developments that affect the practical 14 implications of this Court's decision on Madison and Oneida 15 Counties. 16 issues before this Court on appeal, we think it useful to 17 describe them briefly. 18 While these developments do not render moot any of the In a Record of Decision issued on May 20, 2008, in 19 response to the OIN's application, the Department of the Interior 20 determined that it would take 13,003.89 acres of the OIN-owned 21 land at issue in this appeal into trust, pursuant to 25 U.S.C. 22 § 465 and 25 C.F.R. Part 151. 23 Record of Decision, May 20, 2008 ("Record of Decision"). 24 of this decision was published in the Federal Register on May 23, 25 2008. 26 to state or local taxation. 73 Fed. Reg. 30144. See Department of the Interior, Notice This land will no longer be subject 25 U.S.C. § 465. 13 As a result, only 1 approximately 4,000 of the 17,000 acres of property originally at 2 issue in this case will remain subject to state and local 3 taxation in the future. 4 In connection with the land trust, in order to satisfy 5 the trust regulations, the OIN has posted letters of credit 6 securing the payment of all taxes, penalties, and interest 7 determined by the courts to be due on the land at issue and has 8 agreed to supplement or replace those letters to secure payment 9 of any additional penalties and interest that may accrue while 10 litigation concerning the trust decision is pending. Record of 11 Decision at 53. 12 penalties, and interest assessed on all of the OIN-owned property 13 at issue in this case, including those parcels that the 14 Department of the Interior has decided not to take into trust. 15 Accordingly, notwithstanding this Court's decision on this 16 appeal, it appears that the Counties will receive back payment of 17 all taxes, penalties, and interest due on the property at issue 18 in this lawsuit. 19 implications it has for the parties in this case, we reiterate 20 that it does not render moot any of the issues raised on nor 21 affect our consideration of this appeal. These letters cover substantially all taxes, Despite this development and the practical DISCUSSION 22 23 I. Standard of Review 24 "We review a district court's grant of summary judgment 25 de novo, construing the evidence in the light most favorable to 26 the non-moving party and drawing all reasonable inferences in its 14 1 favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2 2005). "[S]ummary judgment is appropriate where there exists no 3 genuine issue of material fact and, based on the undisputed 4 facts, the moving party is entitled to judgment as a matter of 5 law." 6 see also Fed. R. Civ. Pro. 56(c). 7 D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998); II. Tribal Sovereign Immunity 8 9 10 11 A. 12 in Sherrill requires reversal here because the Sherrill Court 13 ruled that the land in question is not sovereign tribal land, and 14 it is therefore subject to taxation. 15 Sherrill to hold that the OIN cannot assert sovereign immunity to 16 prevent a foreclosure action on such land. 17 The Distinction Between Sovereign Authority Over Reservation Lands And Sovereign Immunity From Suit The Counties assert that the Supreme Court's decision The Counties interpret We think that this argument improperly conflates two 18 distinct doctrines: tribal sovereign authority over reservation 19 lands and tribal sovereign immunity from suit. 20 state taxation, in the broader context of immunity from state 21 regulation, which is addressed in Sherrill, arises from a tribe's 22 sovereign authority over its reservation lands. 23 authority was examined by the Supreme Court as early as 1832: 24 25 26 27 28 29 30 31 The freedom from This sovereign From the commencement of our government, congress has passed acts to regulate trade and intercourse with the Indians; which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate. All these acts . . . manifestly consider the several Indian nations as distinct political 15 1 2 3 communities, having territorial boundaries, within which their authority is exclusive . . . . 4 Worcester v. State of Ga., 31 U.S. 515, 556-57 (1832) (Marshall, 5 C.J.), abrogated on other grounds as recognized by Nevada v. 6 Hicks, 533 U.S. 353, 361-62 (2001) (remarking that "the Indians' 7 right to make their own laws and be governed by them does not 8 exclude all state regulatory authority on the reservation."). 9 "The conceptual clarity of Mr. Chief Justice Marshall's view in 10 Worcester . . . has given way to more individualized treatment of 11 particular treaties and specific federal statutes." 12 Apache Tribe v. Jones, 411 U.S. 145, 148 (1973). Mescalero 13 But the Supreme Court has "categorical[ly]" maintained 14 that "[a]bsent cession of jurisdiction or other federal statutes 15 permitting it, . . . a State is without power to tax reservation 16 lands and reservation Indians." 17 Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 258 18 (1992) (internal quotation marks omitted). 19 been traced in later Supreme Court decisions to Worcester and 20 other cases of its era. 21 U.S. at 148; Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 22 764 (1985). County of Yakima v. Confederated This principle has See, e.g., id. at 257-58; Mescalero, 411 23 When the Supreme Court held in Sherrill that the OIN 24 could not "rekindl[e] embers of sovereignty that long ago grew 25 cold," 544 U.S. at 214, the sovereignty to which it was referring 26 was of the sort described in Worcester and its progeny. 27 the decision of this Court that Sherrill reversed had focused on 16 Indeed, 1 this land-based "Indian sovereignty doctrine," Oneida Indian 2 Nation of N.Y., 337 F.3d at 155 (internal quotation marks 3 omitted), that had emerged from Worcester and other 19th century 4 cases, see id. at 153-55. 5 doctrine to the facts at hand in Sherrill when rejecting the 6 OIN's prayer for relief. 7 The Supreme Court applied this That doctrine is different, however, from the doctrine 8 of tribal immunity from suit. While the tax exemption of 9 reservation land arises from a tribe's exercise of sovereignty 10 over such land, and is therefore closely tied to the question of 11 whether the specific parcel at issue is "Indian reservation 12 land," Cass County, Minn. v. Leech Lake Band of Chippewa Indians, 13 524 U.S. 103, 110 (1998), a tribe's immunity from suit is 14 independent of its lands.6 See Kiowa Tribe of Okla. v. Mfg. 6 Thus, we need not reach the Counties' argument that the OIN's reservation has been disestablished. Our conclusion does not depend upon it. We note, however, that the Supreme Court in Sherrill explicitly declined to resolve the question of whether the Oneida reservation had been "disestablished," thus rendering the land in question no longer part of a reservation or otherwise part of "Indian country" as defined by 18 U.S.C. § 1151. Compare Sherrill, 544 U.S. at 214 n.8 ("We resolve this case on considerations not discretely identified in the parties' briefs . . . .") with City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., 2004 WL 1835364 at *i, 2004 U.S. S. Ct. Briefs LEXIS 492 at **1 (U.S. Aug. 12, 2004) (Appellate Br. for Pet.) (stating that one of the questions presented for review was "[w]hether alleged reservation land is Indian country pursuant to 18 U.S.C. § 1151 . . . ."). Our prior holding on this question -- that "the Oneidas' reservation was not disestablished," Oneida Indian Nation of N.Y., 337 F.3d at 167 -- therefore remains the controlling law of this circuit. See, e.g., Roman v. Abrams, 822 F.2d 214, 226 (2d Cir. 1987) (deciding that remand by the Supreme Court did not disturb the precedent set by the portions of the remanded case that the Supreme Court did not reach). 17 1 Tech., Inc., 523 U.S. 751, 754 (1998) ("[O]ur cases have 2 sustained tribal immunity from suit without drawing a distinction 3 based on where the tribal activities occurred."). 4 The doctrine of tribal immunity from suit has a 5 distinctive history in the Supreme Court. 6 As the Court explained in Kiowa: 7 8 9 10 11 12 13 14 15 Though the doctrine of tribal immunity [from suit] is settled law and controls this case, we note that it developed almost by accident. The doctrine is said by some of our own opinions to rest on the Court's opinion in Turner v. United States, 248 U.S. 354 (1919). Though Turner is indeed cited as authority for the immunity, examination shows it simply does not stand for that proposition. 16 . . . . 17 18 19 20 21 22 23 24 25 26 27 28 29 Turner's passing reference to immunity, however, did become an explicit holding that tribes had immunity from suit. We so held in [United States v. U.S. Fidelity & Guar. Co., 309 U.S. 506 (1940)], saying: "These Indian Nations are exempt from suit without Congressional authorization." [Id.] at 512 (citing Turner, supra, at 358). As sovereigns or quasi sovereigns, the Indian Nations enjoyed immunity "from judicial attack" absent consent to be sued. Later cases, albeit with little analysis, reiterated the doctrine. 30 31 32 33 34 35 36 The doctrine of tribal immunity came under attack a few years ago in [Okla. Tax Comm'n v. Citizen Band] Potawatomi [Indian Tribe of Okla., 498 U.S. 505 (1991)] . . . . We retained the doctrine, however, on the theory that Congress had failed to abrogate it . . . . 37 38 39 40 41 42 43 [There are] considerations [that] might suggest a need to abrogate tribal immunity, at least as an overarching rule. Respondent does not ask us to repudiate the principle outright, but suggests instead that we confine it to reservations or to noncommercial activities. We decline to draw 18 1 2 3 this distinction in this case, as we defer to the role Congress may wish to exercise in this important judgment. 4 5 6 7 8 Congress has acted against the background of our decisions. It has restricted tribal immunity from suit in limited circumstances. And in other statutes it has declared an intention not to alter it. 9 . . . 10 11 12 13 14 15 16 17 Congress "has occasionally authorized limited classes of suits against Indian tribes" and "has always been at liberty to dispense with such tribal immunity or to limit it." Potawatomi, supra, at 510. It has not yet done so. 523 U.S. at 756-59 (citations omitted). The Kiowa Court highlighted the separate and 18 independent natures of the doctrines of tribal immunity from 19 taxation and other powers of the state, and tribal immunity from 20 suit that controls the case at bar: 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 We have recognized that a State may have authority to tax or regulate tribal activities occurring within the State but outside Indian country. To say substantive state laws apply to off-reservation conduct, however, is not to say that a tribe no longer enjoys immunity from suit. In Potawatomi, for example, we reaffirmed that while Oklahoma may tax cigarette sales by a Tribe's store to nonmembers, the Tribe enjoys immunity from a suit to collect unpaid state taxes. There is a difference between the right to demand compliance with state laws and the means available to enforce them. Id. at 755. (citations omitted). While the doctrine of tribal sovereign authority over 37 land has "undergone considerable evolution [in the Supreme Court] 38 in response to changed circumstances," McClanahan v. State Tax 19 1 Comm'n of Ariz., 411 U.S. 164, 171 (1973), the doctrine of tribal 2 immunity from suit has not. 3 portion of the opinion set forth above that it looks to Congress 4 for any such change. 5 The Kiowa Court indicated in the In light of this history, we do not read Sherrill as 6 implicitly abrogating the OIN's immunity from suit. No such 7 statement of abrogation was made by the Sherrill Court, nor does 8 the opinion call into question the Kiowa Court's approach, that 9 any such abrogation should be left to Congress. Sherrill dealt 10 with "the right to demand compliance with state laws." 11 523 U.S. at 755. 12 enforce" those laws. 13 B. 14 Kiowa, It did not address "the means available to Id. Application to the Case at Bar We are left then with the rule stated in Kiowa: "As a 15 matter of federal law, an Indian tribe is subject to suit only 16 where Congress has authorized the suit or the tribe has waived 17 its immunity." 18 court that the remedy of foreclosure is not available to the 19 Counties unless and until Congress authorizes such suits or the 20 OIN consents to such suits. 21 occurred, the foreclosure actions are barred by the OIN's 22 immunity from suit. 23 Id. at 754. We therefore agree with the district Because neither of these events has The Counties argue that the notion that they may tax 24 but not foreclose is inconsistent and contradictory. 25 the result is reminiscent of words of the nursery rhyme: 26 Mother, may I go out to swim? 20 To be sure, 1 2 3 Yes, my darling daughter; Hang your clothes on a hickory limb, And don't go near the water.7 4 Or, as the Counties more soberly assert, such a rule 5 "eviscerates" Sherrill, "making that essential right of 6 government [to tax properties] meaningless." 7 51. 8 9 Appellants' Br. at But a similar argument was rejected by the Supreme Court in Potawatomi.8 There, the Court held that Oklahoma had 10 the authority to tax certain cigarette sales made at the tribe's 11 convenience store. 12 ruled that the tribe's immunity from suit prevented the state 13 from bringing suit to collect unpaid taxes. 14 these two rulings thus: Potawatomi, 498 U.S. at 512. The Court also The Court reconciled 7 Quoted in, e.g., Rose Cecil O'Neill, "The Hickory Limb" (1907), available at www.gutenberg.org/files/28886/28886-8.txt (last visited Mar. 19, 2010). 8 The Counties argue that a right without a remedy is meaningless. Despite Chief Justice Marshall's eloquent statement that the government of the United States cannot be called a government of laws "if the laws furnish no remedy for the violation of a vested legal right," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803), our courts often conclude that there is no remedy to vindicate the violation of a right. Consider the doctrine of qualified immunity. In cases raising the issue of qualified immunity, a state actor may have violated the plaintiff's constitutional rights, but the court nevertheless decides that the actor is entitled to qualified immunity. See, e.g., Moore v. Andreno, 505 F.3d 203 (2d Cir. 2007) (holding that plaintiff's Fourth Amendment rights were violated but that defendants were entitled to qualified immunity because that right was not clearly established). In these cases, there was a "violation of a vested legal right," but the "laws furnish no remedy." Marbury, 5 U.S. at 163. 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Oklahoma complains that, in effect, decisions such as Moe[ v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U.S. 463 (1976),] and [Washington v. Confederated Tribes of] Colville [Reservation, 447 U.S. 134 (1980), (authorizing taxation in certain circumstances)] give them a right without any remedy. There is no doubt that sovereign immunity bars the State from pursuing the most efficient remedy, but we are not persuaded that it lacks any adequate alternatives. We have never held that individual agents or officers of a tribe are not liable for damages in actions brought by the State . . . . States may also enter into agreements with the tribes to adopt a mutually satisfactory regime for the collection of this sort of tax. And if Oklahoma and other States similarly situated find that none of these alternatives produce the revenues to which they are entitled, they may of course seek appropriate legislation from Congress. 498 U.S. at 514 (citations omitted). Individual tribal members and tribal officers in their 27 official capacity remain susceptible to suits for damages and 28 injunctive relief. 29 State of Wash., 433 U.S. 165, 171 (1977) ("[W]hether or not the 30 Tribe itself may be sued in a state court without its consent or 31 that of Congress, a suit to enjoin violations of state law by 32 individual tribal members is permissible."). 33 be enjoined from violations of state law. 34 enforcement mechanisms fail and if no agreement can be reached 35 between the Counties and the OIN, the Counties' ultimate recourse 36 will be to Congress, as we understand the Supreme Court to have 37 instructed. See Puyallup Tribe, Inc. v. Dep't of Game of 22 They may therefore But if such 1 Because we affirm on the ground that the foreclosure 2 actions are barred by the OIN's sovereign immunity from suit, we 3 need not and do not reach the other three rationales relied upon 4 by the district court. 5 III. Abstention 6 The Counties argue that the district court "erred as a 7 matter of law in refusing to abstain from interfering with the 8 Counties' tax foreclosure process." 9 evaluate a district court's determination not to abstain . . . de Appellants' Br. at 105. 10 novo, because it implicates the court's subject matter 11 jurisdiction." 12 90 (2d Cir. 2004). 13 County, 401 F. Supp. 2d at 225, that abstention is not 14 "We appropriate here. 15 Hartford Courant Co. v. Pellegrino, 380 F.3d 83, We agree with the district court, see Madison The Counties' abstention argument appears to be based 16 on 28 U.S.C. § 1341, which states that "[t]he district courts 17 shall not enjoin, suspend or restrain the assessment, levy or 18 collection of any tax under State law where a plain, speedy and 19 efficient remedy may be had in the courts of such State." 20 Counties note, though, in Moe v. Confederated Salish and Kootenai 21 Tribes of Flathead Reservation, 425 U.S. 463 (1976), the Supreme 22 Court created an "exception to the general rule barring federal 23 interference with state tax administration." 24 106. 25 permitted to bring federal lawsuits that the United States could 26 have brought on a tribe's behalf as trustee -- a principle that As the Appellants' Br. at The Moe Court concluded that Indian tribes should be 23 1 the Court found expressed in the legislative history of 28 U.S.C. 2 § 1362, which provides that "[t]he district courts shall have 3 original jurisdiction of all civil actions, brought by any Indian 4 tribe or band with a governing body duly recognized by the 5 Secretary of the Interior, wherein the matter in controversy 6 arises under the Constitution, laws, or treaties of the United 7 States." 8 [was] not barred by § 1341 from seeking to enjoin the enforcement 9 of a state tax law, . . . the Tribe [was] not barred from doing 10 The Court decided that inasmuch as "the United States so . . . ." Moe, 425 U.S. at 474-75 (citation omitted). 11 The Counties argue that this exception is inapplicable 12 here because "Sherrill held that local government -- and not OIN 13 -- has full sovereignty over the land at issue." 14 at 106. 15 sovereignty over any particular land. 16 because of Sherrill or otherwise, the holding of Moe should not 17 apply to the case at bar. 18 district court to abstain from exercising jurisdiction over this 19 matter. Appellants' Br. But Moe does not depend on whether a tribe has We perceive no reason why, Accordingly, we decline to order the 20 IV. Stockbridge's Motion to Intervene 21 Stockbridge appeals from the district court's denial of 22 its motion to intervene in the Oneida County litigation as a 23 matter of right pursuant to Federal Rule of Civil Procedure 24 24(a)(2).9 We review the district court's denial of a Rule 24(a) 9 Stockbridge does not appeal the district court's denial of its motion to intervene in the Madison County case. 24 1 motion for abuse of discretion. 2 Educ., 260 F.3d 123, 128 (2d Cir. 2001). 3 Brennan v. N.Y. City Bd. of Rule 24(a)(2) states: "On timely motion, the 4 [district] court must permit anyone to intervene who . . . claims 5 an interest relating to the property or transaction that is the 6 subject of the action, and is so situated that disposing of the 7 action may as a practical matter impair or impede the movant's 8 ability to protect its interest, unless existing parties 9 adequately represent that interest." 10 11 12 13 14 15 16 17 18 19 20 21 Intervention as of right under Rule 24(a)(2) is granted when all four of the following conditions are met: (1) the motion is timely; (2) the applicant asserts an interest relating to the property or transaction that is the subject of the action; (3) the applicant is so situated that without intervention, disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect its interest; and (4) the applicant's interest is not adequately represented by the other parties. 22 MasterCard Int'l Inc. v. Visa Int'l Serv. Ass'n, Inc., 471 F.3d 23 377, 389 (2d Cir. 2006). 24 Stockbridge sought to intervene for the sole purpose of 25 seeking dismissal of this case insofar as it relates to the 26 parcels of land that are allegedly part of the Stockbridge Stockbridge does, however, argue as amicus curiae, see Stockbridge Br. at 11 n.4 and 40 n.10, that it was an abuse of discretion for the district court to deny Madison County's motion to file a Rule 19 motion to dismiss for failure to join an indispensable party in that case. For the reasons set forth in the Rule 24 analysis, we conclude that Stockbridge is not an indispensable party to these actions, and that the district court therefore did not abuse its discretion in denying Madison County's Rule 19 motion to dismiss. 25 1 reservation. 2 to assert was that "Stockbridge is a necessary and indispensable 3 party which enjoys sovereign immunity from suit and cannot be 4 forced to join this action. 5 proceed and must be dismissed as to all Oneida County lands 6 situated within the 1788 Stockbridge treaty reservation." 7 Stockbridge Mot. to Intervene at 2, Oneida County, dated November 8 25, 2005. 9 required party under Federal Rule of Civil Procedure 19(a)(1), 10 but that joinder is not feasible as a result of Stockbridge's 11 immunity from suit, and dismissal is therefore warranted under 12 Rule 19(b) because Stockbridge is an indispensable party under 13 that rule. 14 The ground for dismissal that Stockbridge proposed In its absence, the suit cannot In other words, Stockbridge asserts that it is a Rule 19(a), governing "Required Joinder of Parties," 15 and Rule 24(a)(2), covering "Intervention of Right,"10 under 16 which Stockbridge asserts its claim here, "are intended to mirror 17 each other." 18 parties to be joined if joinder is feasible and if the parties 19 are necessary to "accord complete relief among existing parties," 20 Fed. R. Civ. P. 19(a)(1)(A), or if, under specified 21 circumstances, disposing of the case without that party might 22 "(i) as a practical matter impair or impede the person's ability 23 to protect the interest; or (ii) leave an existing party subject MasterCard, 471 F.3d at 390. 10 Rule 19(a) requires This subsection covers such intervention other than that provided for by federal statute, which is covered by subsection (a)(1) and is not at issue here. 26 1 to a substantial risk of incurring double, multiple, or otherwise 2 inconsistent obligations because of the interest," Fed. R. Civ. 3 P. 19(a)(1)(B).11 4 19(a), then it cannot satisfy the test for intervention as of 5 right under Rule 24(a)(2)." 6 "[I]f a party is not 'necessary' under Rule MasterCard, 471 F.3d at 389. Stockbridge argues that it is a necessary party under 7 both Rule 19(a)(1)(B)(i) and (ii) because disposing of this 8 matter in its absence might "as a practical matter impair or 9 impede Stockbridge's ability to protect its interest" relating to 10 the subject of the action, Stockbridge Br. at 8, and might also 11 "leave the County subject to a substantial risk of incurring 11 Federal Rule of Civil Procedure 19(a)(1) reads in its entirety: (a) Persons Required to Be Joined if Feasible. (1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A) in that person's absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. Id. (emphasis in original). 27 1 double, multiple, or otherwise inconsistent obligations," id. at 2 48.12 3 it "claims an interest relating to the subject of the action." 4 Fed. R. of Civ. P. 19(a)(1)(B). 5 F.3d at 390, and discussed above, Rule 24 requires a similar 6 showing if Stockbridge is to establish the ability to intervene 7 as a matter of right. But under either theory, Stockbridge must first show that 8 9 As explained in MasterCard, 471 The district court determined that Stockbridge lacked an interest in the instant litigation and therefore denied its 10 motion to intervene. 11 Oneida County, 432 F. Supp. 2d at 292. We agree. 12 13 14 15 16 17 18 [F]or an interest to be cognizable under Rule 24(a)(2), it must be direct, substantial, and legally protectable. An interest that is remote from the subject matter of the proceeding, or that is contingent upon the occurrence of a sequence of events before it becomes colorable, will not satisfy the rule. 19 Brennan, 260 F.3d at 129 (citations and internal quotation marks 20 omitted). 21 from the fact that it is currently involved in litigation in 22 which it is asserting that a portion of the land at issue here is 23 in fact part of the Stockbridge reservation. 24 Munsee v. State of New York, No. 3:86-CV-1140 (N.D.N.Y. Oct. 15, Stockbridge's purported interest in this case stems 12 See Stockbridge- Although Stockbridge includes this statutory language in its argument, it has failed to identify any possibility that a failure to join them would subject the existing parties to inconsistent obligations. 28 1 1986).13 2 litigation could hinder its efforts to protect its property 3 interest in that land. 4 Stockbridge is therefore concerned that the present The parties to this litigation do not, however, purport 5 to put at issue the boundaries of the OIN's or Stockbridge's 6 reservation. 7 state law, do the Tribe's arguments so much as touch on the issue 8 of the continued existence of the reservation irrespective of its 9 boundaries. Nor, with the exception of the OIN's claims under We think that Sherrill's rejection of the 10 "unification theory," 544 U.S. at 214, under which the OIN argued 11 that it had "unified fee and aboriginal title and may [therefore] 12 assert sovereign dominion over the parcels," id. at 213, has 13 taken the question of the reservation boundaries off the table 14 for purposes of this appeal. 15 assertion that it is immune from suit even if it does not have 16 sovereign control over the land in question. 17 contrary assertion is that they can foreclose on land owned by 18 the OIN irrespective of whether it is now or ever was part of the 19 tribe's reservation. 20 is therefore remote at best, because these assertions are 21 unrelated to the question of reservation boundaries.14 What is relevant now is the OIN's The Counties' Stockbridge's interest in this litigation 13 The OIN and both of the Counties are parties to that litigation. 14 The Madison County district court did refer to "[t]he properties at issue" in the litigation being "located within the [Oneida] Nation's reservation." 401 F. Supp. 2d at 231. We hardly think that this sort of comment made by a district court -- or an appellate court for that matter -- in this case, 29 1 Finally, we note that the manner in which we decide 2 this appeal also renders minimal the likelihood that Stockbridge 3 will be prejudiced by its failure to be allowed to intervene.15 CONCLUSION 4 5 6 For the foregoing reasons, we affirm the judgment of the district court. where neither the issue nor a party claiming otherwise is before the court, is cause for a legitimate concern on the part of Stockbridge that its rights may be adversely affected in this litigation. 15 In light of our conclusion, we need not reach the argument raised by the United States, as amicus curiae, that the appeal of the denial of the motion to intervene was not timely filed. 30 JOSÃ A. CABRANES, Circuit Judge, with whom JUDGE PETER W. HALL joins, concurring: The holding in this case comes down to this: an Indian tribe can purchase land (including land that was never part of a reservation); refuse to pay lawfully-owed taxes; and suffer no consequences because the taxing authority cannot sue to collect the taxes owed.1 This rule of decision defies common sense. But absent action by our highest Court, or by Congress, it is the law. In the last twenty years, the Supreme Court has twice held that, although states may have a right to demand compliance with state laws by Indian tribes, they lack the legal means to enforce that right. See Kiowa Tribe of Okla. v. Mfg. Tech., Inc., 523 U.S. 751, 755 (1998) ( There is a difference between the right to demand compliance with state laws and the means available to enforce them. ); Okla. Tax Comm n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 514 (1991) (holding that states have a right to collect taxes on certain cigarette sales on an Indian reservation, but the tribe is immune from suit seeking to enforce that right). In light of this unambiguous guidance from the Supreme Court, I am bound to concur with the conclusion that, although the Counties may tax the property at issue here, see City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005), they may not foreclose on those properties because the tribe is immune from suit. This result, however, is so anomalous that it calls out for the Supreme Court to revisit Kiowa and Potawatomi. I wish that we were empowered to revisit those decisions, but, alas, that is not a privilege extended to intermediate appellate courts. If law and logic are to be reunited in this area of the law, it will have to be done by our highest Court, or by Congress. Accordingly, I concur in the judgment of the Court and in the careful and comprehensive opinion of Judge Sack. 1 The Department of the Interior has agreed to accept roughly 13,000 of the tribe s 17,000 acres into trust. Department of the Interior, Record of Decision, May 20, 2008. Once the land is held in trust, it will no longer be subject to state and local taxation. 25 U.S.C. § 465. To be taken into trust, however, the tribe must pay all back taxes, penalties, and interest owed on the land before it was taken into trust. 25 C.F.R. § 151.13. Accordingly, the practical effect on the Counties of our holding is limited to the 4,000 acres that will remain out of the trust.

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