filed respondents brief in opposition to petition for writ of certiorari

8/7/2019 Filed Respondents Brief in Opposition to Petition for Writ of Certiorari

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No. 10-72IN THE

Oupren t e court of tbe iffititeb ibtattoMA DISON COUNTY AND ONEIDA CO UNTY, NEW YORKPeti t ioners ,

V .ONEIDA INDIAN NATION OF NEW Y ORK ,Responden t .

On P etition for a W rit of Certiorari to theUnited States Court of A ppealsfor the Second C ircuit

RESPONDEN TS BRIEF lN OPPOSITION

RICHARD G . TAR AN TOFARR & TARANTO1150 18th Street , N.W .W ashington, D C 20036(202) 775-0184PETER D . CARMENMEGHAN MURPHY BEAICMANONEIDA NATION

LEGAL DEPARTMENT5218 Patrick RoadV erona, NY 13478(315) 361-8687

MICHAEL R. SMITHC o u n s e l o f R e c o r dD A V I D A . REISERZ U C I C E R M A N SP A E D E R LLP1800 M S treet, N.W.Washington, DC 20036(202) [email protected]

Counsel for RespondentWILSON-EPES P RINTING CO., INC. - (202) 789-0096 - WASHINGTON, D. C. 20002


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TABLE OF CONTENTSTABLE OF CONTENTSABLE OF AUTHORITIESNTRODUCTIONSTATEMENTREASONS FOR DENYING THE PETITIONI. THE RULING ON SOVEREIGNIMMUNITY FROM TAXFORECLOSURE PROCEEDINGS DOESNOT WARRANT REVIEWA . The Second Circuit Correctly FollowedThis Court's Decisions1B . Sherrill Did Not Involve, or Alter theLaw on, Sovereign Immunity from

Suit1C. Y ak i m a Did Not Involve, or Alter theLaw on, Sovereign Immunity fromSuit4D . There Is No Basis for Revisiting theIssue to Consider Judicially Imposinga New Limit on Immunity5II. THE DISESTABLISHMENT QUESTION

WAS NOT DECIDED BELOW ANDDOES NOT WARRANT REVIEW1CONCLUSION5


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vi25 U.S.C. 462025 U.S.C. 463025 U.S.C. 465assim25 U.S.C. 476425 U.S.C. 270128 U.S.C. 1605(a)(4)928 U.S.C. 1609-16119TREATIESTreaty with the Six Nations (Ft. Stanwix), 7Stat. 15 (Oct. 22, 1784)2Treaty With the Six Nations (Canandaigua),7 Stat. 44 (Nov. 11, 1794)Treaty of Buffalo Creek, 7 Stat. 550 (Jan. 15, 1838),amended 7 Stat. 586 (May 20, 1842)1, 33REGULATIONS25 C.F.R. 151.10Wm. W. Bishop, Jr., Immunity FromTaxation of Foreign State-OwnedProperty, 46 Am J Int'l L. 239 (1952)H.R. Rep. No. 81-30 (1950)U.S. Amicus Br., Cas s Coun t y , M in ne s o ta v .Lee ch Lake Band o f Ch ipp ewa In d ian s , No.97-174, 1998 WL 25517Pet., City o f Sher r i ll v . One id a Ind ianNa t i o n , No. 03-855Pet. Br., City o f Sher r i ll v . One id a Ind ianNa t i o n , No. 03-855, 2004 WL 2246333U.S. Amicus Br., City o f She rr i ll v . One id aIndian Nation, No. 03-855, 2004 WL2246334Pet. Br., Coun ty o f Y ak ima v . Con f e d e rat e dTr ibe s an d Bon d s o f the Yakima IndianN a t i o n , Nos. 90-408, 90-577, 1991 WL521727Resp. Br., Coun ty o f Y ak ima v . Con f e d e rat e dTr ibe s an d Bo nd s o f th e Y ak ima In d ianNa t i o n , Nos, 90-408, 90-577, 1991 WL521292Tr. Oral Arg., Coun ty o f Y ak ima v .C o n f e d e r at e d T r i b e s an d B o n d s o f t h eY ak im a I n d i an N a ti o n , Nos. 90-408, 90-577, 1991 WL 636297OTHER AUTHORITIES5 Op. Atty. Gen. Mass. 445 (1920)8


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U.S. A micus Br . , County of Y akima v.Confederated Tribes and Bonds of th eY ak im a I n d i an N a ti o n , Nos. 90-408, 90-577, 1991 WL 1100927

. Hugo, M anual for Use of the Legislatureof the State of New York 270 (1918)estatement (Se cond) of Foreign RelationsLaw of the U nited States, 65, Comm entd (1965)estatement (Se cond) of Foreign RelationsLaw of the United States, 68 (1965). Rep. 100-446 (1988)8, 2534181929viii INTRODUCTIONThis case involves the fundamental distinctionbetween a Tribe's sovereign authority to goverlandw hich was at issue in City of Sherrill v. OneidIndian Nation of New Y ork, 544 U .S . 197 (2005)and a Tribe's sovereign immunity from suitwhichwas not at issue in Sherrill. The Second Circuit ithis case applied that basic distinction, following thedecisions of this Court including K iowa Tribe of Oklav. Mfg. Tech., Inc., 523 U.S. 751 (1998), and OklaTax Comm'n v. Citizen Band Potawatomi Tribe, 49U.S . 505 (1991). The U nited States as invited amicucuriae supported the Tribe's immunity fromforeclosure, recognizing that the distinction betweena sovereign's governance authority (over specificterritory) and a sovereign's immunity fromenforcement proceedings (an immunity not tied tparticular territory) is well established andimportant outside as well as within Indian lawNeither this Court nor Congress has curtailed triba

sovereign immunity for tax foreclosures, and theCourt has stressed that i t is for Congress to m ake thepolicy judgments about any new limits on tribasovereign immunity. The Second Circuit thucorrectly upheld the Tribe's immunity fromforeclosure proceedings that petitioners initiated topreempt the very process of placing land in federatrust that this Court pointed to in Sherrill.No ground for certiorari is present hereNeither petitioners nor amici have cited a singlother case that has even presented the questionwhether sovereign immunity protects tribal landfrom tax foreclosure, let alone resolved it in conflicwith the Second Circuit. Nor is the issue of nationa


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significance: petitioners and amici rely only onhypotheticals, not any actual tax foreclosure caseinvolving tribal land.This unique caseinvolving the immediatepost-Sherrill transition and an attempt to preemptthe federal-agency trust processalso is singularly

undeserving of review to consider the judicial changeof law petitioners seek. The United States hasagreed to take most of the land at issue into federaltrust, a decision pending judicial review for tw o yearsnow. In connection with the trust process, theOneida Nation has posted bank letters of creditcovering all the land here at issue, not just the landapproved for trust. The Counties have requested andcan obtain a determination of taxes due under statelaw and that determination would guaranteepayment (through private letters of credit) of anytaxes held to be due, whether or not any trust isapproved. There is, thus, no immunity impedimentto petitioners' receiving all past taxes due.Prospe ctively, moreov er, all land taken into trust willindisputably be immune from taxes. As to theremaining land, it would simply be inappropriate topresume that the traditional means of disputeresolution involving tribal sovereigns will proveunsuccessful. Indeed, the payment mechanismadopted in the trust process and the Oneida Nation'spos t -Sherr i l l tax agreements with localities otherthan petitioners, including the City of Sherrill,confirm the lack of any nee d suddenly to override theestablished sovereign immunity from enforcementactions.

The petition's immunity question thus does notmerit review. Nor does the second question, which

the Second Circuit expressly declined to reach andwh ich this Court de clined to decide after full briefingin Sherrill.

STATEMENTThe judgments under review are permanentinjunctions to prevent Petitioners Madison and

Oneida Counties from foreclosing on land that theOneida Nation applied to have taken into federatrust status following Sherri ll . All of the land aissue is within the Oneida reservation acknowledgedin the 1794 Treaty of Canandaigua, 7 Stat. 44 (Nov11, 1794), Pet. App. 36a (Oneida County parcels), 55a(M adison County parcels), and was reacquired by theOneida Nation before this Court decided SherrillSince the district court enjoined the foreclosures, thfederal government has agreed to take most of theland into trust. As part of the trust process, letters ocredit now readily allow the Counties to obtain pastaxes ruled to be due.a. The Sherri ll decision. On M arch 292005, this Court held that the Oneida Nation did noregain sovereign governance authority over land breacquiring it after long dispossession and thereforelacked the immunity from state land taxation thaarises from such governance authority. 544 U.S. a221. The Court pointed to the federal trust statuteand an implementing regulation (25 U.S.C. 465 an25 C.F.R. 151.10) as creating the "proper avenuefor the Oneida Nation to regain sovereignty over portion of its federal treaty reservation. Id. The trusprocess, the Court explained, could best address thcompeting interests of the Oneida Nation and thlocal non-Indian community. Id .


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bhe trust application. W ithin days ofthe Sherrill decision, the Oneida Nation filed a trustapplication with the Department of the Interior. CAApp. A326. Petitioners Madison and OneidaCounties immediately opposed taking any land intotrust. Id. A362-64. After a thorough review, basedon an Administrative Record comprising tens ofthousands of pages, on M ay 20, 2008, theDepartment agreed to take 13,004 acres of theOneida Nation's 17,370 acres of land into trust. Pet.App. 12a; 73 Fed. Reg. 30144-46 (notice of agencydetermination).

Before granting the application, theDepartment directed the Oneida Nation to post, andthe Oneida Nation did post, bank letters of creditsecuring payment of all taxes, penalties, and interestdetermined to be due on all Nation-owned parcels,not just those approved for trust status. Id. at 13a.1Because a private bank is obligated on the letters ofcredit, enforcement of the letters of credit raises notribal sovereign immunity issue. Petitioners andothers, including New York State, have sued tochallenge the Department's trust decision. 2 In the1The D epartment required the letters of credit to cover only aportion of the taxes on the Oneida Nation's casino parcelbecause it concluded that a part of the tax violated the federalIndian Gam ing Regulatory Act, 25 U.S .C. 2701 et seq. TheDepartment's decision (the "Record of Decision"), in 7.5.4,requires a further letter of credit if a challenge to thatconclusion is still pending when the Department formallyaccepts the land into trust.2 ee New Y ork v. Salazar, No. 08-cv-644 (N.D.N.Y., filedJune 19, 2008); Town of Verona v. Salazar, No. 08-cv-647(N.D.N.Y . , fi led June 19, 2008); City of Oneida v. Salazar, No.08-cv-648 (N.D.N.Y . , fi led June 19, 2008); Upstate Citizens for

review proceeding, the Counties can obtain adetermination of a critical state-tax-exemption issue(not addressed by the Second Circuit below) andhence a determ ination of liability for taxes, penaltiesand interest, triggering the bank's payment of anyamounts dueas to all the land at issue in thepresent case, not just the trust land, and regardlessof whether the trust is approved. See id. at 13a; idat 32a n.1 (C abranes, J., concurring).3

Thus, no enforcement immunity stands in theway of the Counties' receiving any past taxesdetermined to be due. Prospectively, if Interior'strust decision is affirmed, most of the land (75% byacreage, 93% by assessed value) will be immune fromtaxation. 25 U.S.C . 465.c.he post-Sherrill tax disputes andthe injunctions against foreclosure. The O neidNation successfully negotiated tax agreements withthe Cities of Sherrill and Oneida after the Court'sSherrill decision. 4 Moreover, even before Sherril

Equality, Inc. v. United States, No. 08-cv-633 (N.D.N .Y., fileJune 16, 2008); Central N. Y. Fair Business Ass'n v. SalazarNo. 08-cv-660 (N.D.N.Y ., filed June 21, 2008).3The letters of credit were drafted prior to the truslitigation. The Oneida Nation must periodically renew theletters of credit to address taxes accruing while the trusdecision is under judicial review; it has now am ended the letterof credit to include the trust litigation as well.4 As to S herrill, see Stipulation of Dism issal [D.E. 10 4], OneidIndian Nation v. City of Sherrill, No. 00-cv-223 (N.D.N.Y ., fileOct. 18, 2005); CA App. A 1633-37. As to the City of Oneida, seeCaitlin Traynor, Oneida Nation Paid City $300,000 in 2009Oneida Daily Dispatch (July 13, 2010) available a


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held that its land was not federally immune fromtaxation, the Oneida Nation was paying millions ofdollars in lieu of taxes to localities. CA A pp. A 646-47(Madison County); A788 (school districts); A1609(localities within Oneida County); A1649-50 (generalformula). In the case of Oneida C ounty, for example,the amounts paid to government entities within theCounty (for which the County acts as collector)exceeded the total taxes (and penalties and interest)claimed for just such tax liabilities by the County(which, however, refused to recognize those paymentsand sought foreclosure for unpaid taxes anyway). Id .at A1971.

Unlike the Cities of Sherrill and Oneida,petitioners Madison County and Oneida Countyrefused to negotiate with the Oneida Nation overpayment of penalties and interest (id. at A631) andnot only opposed but sought to preempt the trustprocess after Sherrill. On April 28, 2005, beforeInterior could act on the Oneida Nation's trustapplication, Madison County moved in state court toforeclose on the Oneida Nation's land. Id. at A373-83. To prevent a foreclosure that as a practicalmatter would preclude a trust transfer, the OneidaNation requested and won a preliminary injunctionagainst foreclosure in already-pending federallitigation against Madison County. Pet. App. 56a.W hen O neida County moved to foreclose through anadministrative process, the Oneida Nation filed anew action and obtained a preliminary injunctionthere too. Id. at 35a.ht tp: / /on eickidi spcztch .com /articles /2010/07/13/news / doc4c3d2 17fa3b 477473 7537 6 . tx t (renewal of agreement).

Subsequently, in both cases, the district courtgranted summary judgment for the Oneida Nationand permanently enjoined foreclosure based on fivedeterminations: (a) the Oneida Nation was immunefrom foreclosure; (b) the land at issue was subject tofederal statutory restrictions against alienation; (c)the Counties had failed to give the required noticeand violated the due process clause; (d) the land waswithin a reservation that had not been disestablishedand was therefore tax exempt under state statutes;and (e) the O neida Nation was not liable for penaltiesand interest and was not subject to foreclosure tocollect them. Id. at 65a-76a (M adison County); 41a-46a (Oneida County). The Counties appealed to theSecond Circuit.

d. The decision below. A fter requestingbriefing from the United States, the Second Circuitaffirmed the injunctions on the basis of tribalsovereign immunity without reaching the othergrounds relied on by the district court. 5 The court ofappeals carefully analyzed, and rejected, theCounties' claim that this Court's Sherrill decisiondisposed of tribal sovereign immunity against taxenforcement in holding that the Oneida Nationlacked sovereign authority over the land, authoritythat (where it exists) entails immunity from taxation."We think that this argument improperly conflatestwo distinct doctrines: tribal sovereign auth ority overreservation lands and tribal sovereign immunityfrom suit." Pet. App. 14a; see id. at 16a. Reviewing5The United States supported the district court's ruling thatthe Oneida Nation's sovereign immunity barred the attemptedforeclosure. U.S. Amicus Br. in Support of Appellee andAffirmance, No. 05-6408 (2d Cir.), 2008 WL 6086315, at *9-20.


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the development of those two distinct doctrines, andthe availability of sovereign imm unity from suit evenwhere underlying tax immunity is absent, as re-affirmed in both Okla. Tax Comm 'n v. Citizen BandPo tawatom i Ind ian T r ibe o f Okla. , 498 U.S. 505(1991 ), and Kiowa Tribe of Okla. v. Mfg. Tech., Inc.,523 U.S. 7 51 (199 8), the court concluded:In light of this history, we do not readSherr i l l as implicitly abrogating the OIN'simmunity from suit. No such statement ofabrogation was made by the Sherrill Court,nor does the opinion call into question theKiowa Court's approach, that any abrogationshould be left to Congress. Sherr i l l dealtwith "the right to demand compliance withstate laws." Kiowa, 523 U.S. at 755. It didnot address "the means available to enforce"those laws." Id.

Pet. App. 20a.Having ruled that Sherrill did not carve out a

special exception to tribal sovereign immunity fromsuit for the Oneidas, the court pointed to Potowatomias rejecting the Counties' argument that immunityagainst tax enforcement was inconsistent withamenability to taxation. Id . at 21a-22a. Two judgesconcurred in an opinion objecting to the outcome onpolicy grounds but agreeing that it was comp elled by"unambiguous guidance from the S upreme Court" ontribal sovereign immunity from suit even in theabsence of immunity from underlying tax liabilities.Id . at 32a-33a.That determination sufficed to affirm theinjunctions, regardless of whether the land in

question was still reservation land In a footnote, thepanel said that it need not revisit whether the 1838Treaty of Buffalo Creek disestablished the Oneidareservationwhile noting that its earlier holdingthat the reservation was not disestablished, remainsthe law of the Circuit. Pet. App. 16a-17a & n.6. TheSecond Circuit also did not decide whether (as thedistrict court ruled) the Oneida Nation was entitledto the state-law tax exemptions for reservation landin tribal possession. N.Y. Indian L. 6; N.Y. ReaProperty Tax L. 454.

REASONS FOR DENYING THE PETITIONI. THE RULING ON SOVEREIGNIMMUNITY FROM TAX FORECLOSURE

PROCEEDINGS DOES NOT WARRANTR E V I E W .Petitioners and amici have shown no basis foreview under established certiorari standards: noinconsistency with this Court's precedents, no lowecourt conflict, no real-world significance for practices

elsewhere, not even a concrete nonspeculative harmto petitioners' interests regarding taxation of thparticular land at issue. Those are reasons enough tdeny review, but the unique context of this case alsomakes it particularly inappropriate for this Court'intervention to consider a new judicially imposelimitation on tribal sovereign imm unityThe present case arose in the speciatransition circumstances that followed this Court'decision in Sherrill . That decision reversed the lowecourts' recognition of the Oneida Nation's sovereigauthority over the land at issue and its concomitanimmunity from state taxation, thus newly settlin


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101that question to deny such underlying immunity.Sherrill also set in motion the congressionallyestablished federal agency process for taking the landinto trust, identifying it as the "proper avenue" forresolving sovereignty questions. Petitionersimmediately sought to preempt that process bymoving to foreclose on the land, and refused todiscuss an agreement even on penalties involving theperiod during which the governing federal courtdecisions explicitly affirmed the Oneida Nation's taximmu nity or credit for the O neida Nation's paymentsin lieu of taxes.These circumstances furnish no ground forspeculating that the usual immunity-respectinggovernmental negotiations will fail once underlyinggovernance and taxation authority is settled. Theyalso show the fa lsity of the picture th e pe tition paintsof the Oneida Nation as defying this Court's Sherrilldecision. As soon as this Court made clear that theOneida Nation's land had no federal immunity fromstate taxation, the Oneida Nation promptly

negotiated agreements to discharge past and futuretax obligations with the local taxing jurisdictions(unlike petitioners) that were willing to do so.Although the Towns of Vernon and Verona, in theiramicus brief, point to various disputes about localland use (at 9-10), those disputes all occurred beforethis Court resolved the sovereign-authority issue inSherrill. It was not Oneida Nation post-Sherrillobstructionism, but petitioners' efforts to short-circuit theSherrill-recommended agency trustprocess concerning land, all within the OneidaNation's treaty reservation, that led to thisforeclosure-imm unity dispute.

As to regulatory issues not presented here, inthe trust process, Interior thoroughly examined theOneida Nation's past practices and disputes, evenfrom before this Court's decision in Sherrill, and itconcluded that the combination of Oneida Nationstandards, government-to-government agreements,and federal oversight will ensure that local concernsare met. R ecord of Decision 7.6, at 60-68; see id. a46-47, 51-52, 57-58. And, as to tax payments on theland specifically at issue, the trust process hasalready guaranteed that there is no sovereign-immunity obstacle to the Counties' ability to receivepast taxes, penalties, and interest properly due,through letters of credit described above. Thecircumstances of this case thus provide no warrant toconsider a judicial curtailment of recognized tribalsovereign immunity that Congress has seen noreason to limit.A.he Second Circuit CorrectlyFollowed This Court's Decisions.This Court has expressly recognized thefundamental distinction between a sovereign'sauthority to govern land (w ith certain implications ofsubstantive immunity from other sovereignsgovernance authority over that land, including theirtaxing authority) and a sovereign's immunity fromenforcement proceedings. Unambiguous precedenestablishes that the latter, which Congress has nolimited for Tribes, applies here, as the Second Circuitunanimously held. See Pet. App. 33a (Cabranes, J.,concurring) (finding "unambiguous guidance" fromthis Court's precedents).1.otowatomi & Kiowa. In Potowatomithis Court considered both a question of substantive


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123tax immunity and a question of sovereign immunityfrom enforcement, answering the former in favor ofthe State and the latter in favor of the Tribe. As tothe former, the Court held that tribal sovereigntyover its reservation did not prevent Oklahoma fromrequiring the Tribe to collect and remit taxes oncigarette sales to non-Indians. 498 U.S. at 512-13.Nevertheless, the Tribe's sovereign immunity fromsuit barred the State's action to enforce thatobligation. Id. at 514.

Specifically rejecting the State's request tocarve out tax enforcement from tribal sovereignimmunity against suit, the Court recognized that"[a]lthough Congress has occasionally authorizedlimited classes of suits against Indian tribes, it hasnever authorized suits to enforce tax assessments.Instead, Congress has consistently reiterated itsapproval of the immunity doctrine." Id. at 510 Likethe Counties here (Pet. 9), Oklahoma argued that therulings were self-contradictory and nullified theTribe's tax obligation, but the Court disagreed. Itexplained that the tax obligation was not actuallynullified and that it was up to Congress to addressany problems with respecting traditionalenforcement immunity:

In view of our conclusion with respect tosovereign imm unity of the Tribe from suit bythe State, Oklahoma complains that, ineffect, decisions such as [Moe v. Salish &Kootenai Tribes, 425 U.S. 463 (1975)] and[Washington v. Confederated Tribes of theColville Indian Reservation, 447 U.S. 134(1980)] give them a right without anyremedy. There is no doubt that sovereign

immunity bars the State from pursuing themost efficient remedy, but we are notpersuaded that it lacks any adequatealternatives. We have never held thatindividual agents or officers of a tribe are n otliable for damages in actions brought by theState. See Ex parte Y oung, 209 U.S. 123(1908). And under today's decision, Statesmay of course collect the sales tax fromcigarette wholesalers, either by seizingunstamped cigarettes off the reservation,Colville, supra, at 161-162, or by assessingwholesalers who supplied unstampedcigarettes to the tribal stores, City Vending ofMuskogee, Inc. v. Oklahoma Tax Comm 'n,898 F.2d 122 (CA10 1990). States may alsoenter into agreements with the tribes toadopt a mutually satisfactory regime for thecollection of th is sort of tax. See 48 S tat . 987 ,as amended, 25 U.S.C. 47 6. And if Oklahomaand other States similarly situated find thatnone of these alternatives produce therevenues to wh ich they are enti tled, they m ayof course seek appropriate legislation fromCongress.

498 U .S. at 514.6

6Amicus Town of Lenox points to the Potowatomi Court'reference to "seizing unstamped cigarettes off the reservation"as a permissible means of enforcement. Lenox Br. 18-19 & n.14That cannot justify the land foreclosures here. The Court wasdiscussing such a me asure against "wholesalers," not the TribeMoreover, the cited authority, Colville, 447 U .S. at 161-62, waaddressing unlawfully possessed, in-transit, off-reservation"contraband." The seizure of contraband such as unstamped


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145In Kiowa, the Court once again rejected arequest that it limit a Tribe's sovereign immunityfrom suit to proceedings involving "transactions onreservations and governmental activities." 523 U.S.at 755. The petitioner argued that the scope of tribalsovereign immunity from suit should coincide withtribal governance. The Court explained thatsovereign immunity from suitthe doctrine at issuein Kiowawas different from the substantiveimmunity from state law that attends a Tribe'sgovernance authority over certain land, persons, oractivities:

Our cases allowing States to apply theirsubstantive laws to tribal activities are not tothe contrary. We have recognized that aState may have authority to tax or regulatetribal activities occurring within the Statebut outside Indian country. See MescaleroApache Tribe v. Jones, 411 U.S. 145, 148-149(1973); see also Organized Village of Kake v.Egan, 369 U.S. 60, 75 (1962). To saysubstantive state laws apply to off-reservation conduct, however, is not to saythat a tribe no longer enjoys immunity fromsuit. In Potawatomi, for example, wereaffirmed that while Oklahoma may taxcigarette sales by a Tribes store tononmem bers, the Tribe enjoys immunity froma suit to collect unpaid state taxes. 498 U.S.,at 510. There is a difference between theright to demand compliance with state laws

cigarettes is different from proceedings to foreclose on lawfullypossessed tribal land.

and the means available to enforce them. Se eid., at 514.

Id. at 755. And the Court reiterated that it was up toCongress to weigh the policy interests, includingwhether or not there was any practical need to limitthe historic sovereign immunity of this Continent'sfirst sovereigns. Id. at 758 ("we defer to the roleCongress may wish to exercise in this importantjudgment").

This Court has thus repeatedly considered andrejected the very arguments petitioners make forjudicial abrogation of a traditional sovereignimmunity from tax enforcement even where there isno imm unity from und erlying state obligations.2.here Is No Sovereign ImmunityException for Tax Foreclosures. Contrary to thesubmission of petitioners and amici, there is nogeneral "in rem" exception stripping away sovereignimmunity in enforcement actions (as here) involvingproperty in a sovereign's possession. To holdotherwise for Tribes would be inconsistent with, andundermine, the background principle of federasovereign immunity that protects other sovereigns(unless changed by Congress or, in the foreign-sovereign context, the President).For States, Eleventh Amendment immunityprotects against in rem libel actions in federaadmiralty against ships in the State's possession ( s e

California v. Deep Sea Research, Inc., 523 U.S . 491(1998) (discussing cases, distinguishing case of shipnot in State's possession)) and also protects againsquiet title actions (see Idaho v. Coeur d'Alene Tribe oIdaho, 521 U.S. 261, 281-82 (1997)). For foreign


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16Nations, the traditional immunity protected theirships, whether w arships or comm ercial ships, from inrem libel actions. The Schoon e r Exchange v .McFaddon , 11 U.S. 116 (1812); Ber i zz i Bros . Co . v .The Pe saro , 271 U.S. 562 (1926) (ship owned andpossessed by a foreign government and operatedcomm ercially imm une to in rem libel action); see alsoLon g v. The Tampico, 16 F. 491 (S.D .N.Y. 1883); F.W .Stone Eng 'g v . Pe t ro leos M ex icanos d e M ex ico , D.F. ,352 Pa. 12 (1945) (bank account of foreigninstrumentality). For the federal government, it islong settled that state foreclosures on federalproperty for non-payment of taxes are barred bysovereign immunity even when Congress has liftedtax immunity. 7 Likewise as to foreign sovereigns:the background rule (subject to congressional orpresidential limitation) is imm unity from foreclosure,even wh en the property is taxable.87United States v. Lewis County, 175 F.3d 671, 674 (9th C ir .1998); United States v. County of Richland, 500 F. Supp. 312,315-16 (D.S.C. 1980); United S tates v. Davidson, 139 F.2d 908,911 (5th Cir. 1943); United S tates v. Alabama, 313 U.S. 274,281-82 (1941); BF Partners, LLC u. Estate of Mc S o r l e y , 2005 W L1335150, at *7 n.4 (W.D. Mich. June 6, 2005) (GNMA notsubject to tax foreclosure); Detroit Leasing Co. v. Yepez, 2005U.S. D ist. LEXIS 20422, at *8 (E.D. M ich. 2005); c f . S ec ' y HUDv. Sky Meadow Ass'n, 117 F. Supp. 2d 970 (C.D. Cal. 2000)(foreclosure by hom eowner's association); United States v. CityofNewark, 2009 WL 3230892 (D.N.J. Sept. 29, 2009)(foreclosure for unpaid water and sewer fees).

Restatement (Second) of Foreign Relations Law of theUnited States, 65, Comment d (1965); City of Englewood v.Socialist People's Libyan Arab Jamahiriya, 773 F.2d 31, 36 (3dCir. 1985); In the Matter of Foreclosure oTax Liens, 255N.Y.S.2d 178 (Westchester Cty. Ct. 1964) (immunity toforeclosure of tax lien on residences for diplomats); cf.

17Seeking to show otherwise for foreignsovereigns, amicus Town of Lenox (though notpetitioners or the State amici) latches onto andmisreads this Court's decision in Permanen t Miss ionof Indian v. City of New Y ork, 551 U.S. 19 3 (2007), asif it ruled that a longstanding "immovable property"exception to foreign sovereign immunity allowed acountry to foreclose on another country's (non-

consular) real property located in the former'sterritory. Lenox Br. 5 (alleging "blackletter federalcommon law for nearly 200 years"). That contentionis wrong, about both Permanen t Mi s s i on (which didnot involve or rule on foreclosure or any form ofexecution) and the historical "immovable property"exception (for which Lenox cites not a single caseshowing its invocation to support a tax foreclosureagainst real property). The "immovable property"exception and foreclosure have always been separatesubjects, and Lenox is fundamentally wrong inconflating them .A t comm on law, a foreign nation had sovereign

immunity against enforcement actions involving itsproperty. Se e K i owa, 523 U.S. at 759 ("While theholding was narrow, '[The Schoon er Exchange ] cameto be regarded as extending virtually absoluteimmunity to foreign sovereigns.") (citation omitted).The Schooner Exchange confirmed the broadsovereign immunity from the execution of processagainst a foreign nation's property (in that case aship), while noting that a "person who happens to bea prince" (11 U.S. at 145) might lack sovereignKnocklong Corp. v. Kingdom of Afghanistan, 167 N.Y.S.2d 285(Nassau Cty. Ct. 1957) (dismissing suit by private party toenforce tax deed on property acquired for diplomatic residence).


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18immunity against actions involving property he ownsas an individual (see id. at 144 (same distinction)).9Lenox identifies no authority establishing arecognized realty exception to the absolute immunityof foreign sovereigns to execution, whether for taxcollection or private suits. As late as 1965, theRestatem ent (Second) of Foreign Relations Law , afternoting the fundamental distinction between a state's"prescriptive" jurisdiction to tax or regulate and itsimmunity from enforcement, stated withoutexception that "no case has been found in which theproperty of a foreign government has been subject toforeclosure of a tax lien or a tax sale" and that "[t]he[immunity] rule stated in this Section prevents theactual enforcement against the property of a foreignstate of a tax claim of the territorial state." 65, cmt.d (emp hasis added).

The "immovable property" exception toimm unity allowe d local courts to decide "all disputesover use or right to use real property within its owndomain" (Asociacion de Reclamantes v. UnitedMexican States, 735 F.2d 1517, 1521 (D.C. Cir.1984)), it did not curtail, or even address, sovereignimmunity from foreclosure or other execution. Eventhe 1965 Restatement (updating traditionalimmunity law), in stating an "immovable property"exception to the general Section 65 immunity rule(see 68(b) & cmt. d), expressly stated that the9 ee French Republic v. Bd. of Supervisors, 200 Ky. 18, 21-22(1923) (exempting French government-owned tobacco fromtaxation in part because sovereign immunity precludescollection); 5 Op. Atty. Gen. Mass. 445 (1920) (same as toproperty stored by foreign governments within the state); W m.W. Bishop, Jr., Immunity From Taxation of Foreign State-Ow ned Property, 46 Am. J. Int'l L. 239, 255 (1952).

19immunity rule of Section 65 governed for taxenforcementit "prevents [tax] enforcement" ( 65cmt. d))confirming that the Section 68 exceptionwas not an exception for tax foreclosures. Similarly,when Congress in 1976 enacted the ForeignSovereign Immunity Act (FSIA), it treated the"immovable property" exception (28 U.S.C. 1605(a)(4)) sep arately from m atters of execution suchas foreclosure (28 U.S.C . 1609-1611). These havealways been distinct matters. In Permanent Missionitself, this Court held that the FSIA "immovableproperty" exception allowed a declaratory judgmenaction to establish the validity of a tax lien, but it didnot address foreclosure, except to note the City'sconcession that it could not foreclose even once thelien was confirmed. 551 U.S. at 197 n.1 (despiteinability to foreclose, confirmation of tax lienmattered because of effect on future sale, voluntarycompliance, and federal government pressure).

Even in the foreign-nation setting, thereforethe background rule provided for sovereign imm unityagainst foreclosure. O f course, in the FSL A, C ongreslimited that background rule for foreign sove reigns incertain respects, in the execution sections of thestatute, after weighing the various policy interestsinvolved. Permanent Mission, 551 U.S . a t 199 (FS IAadopted restrictive theory). But Congress has nochanged the rule for Tribes, and it is up to Congresto decide whether to eliminate immunity againsforeclosure. Kiowa, 523 U.S. at 758. Leaving thajudgment to Congress is particularly important fotribal /andhere, land within the Tribe's aboriginaterritory and treaty reservationwhich C ongress halong accorded distinctive protection, including theprocesses for creation of trust status involved here


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201See, e.g., 25 U.S.C. 177 (restrictions againstalienation); 25 U.S.C. 462, 463 (restoring triballand rights and extending re strictions).The Town of Lenox (like the Counties below,but not in this Court) also relies on Georgia v. City ofChattanooga, 264 U.S. 472 (1924), and itsdetermination that railroad property acquired byGeorgia in Tennessee was subject to Tennessee'spower of eminent domain. But City of Chattanoogadoes not conflict with the Second Circuit's decision,for at least two reasons. First, and decisively, aState's recognition of any immunity of other Statesfrom suit in its own courts is a matter of state law,not of federal law. Nevada v . Hall, 440 U.S. 410(1979). This Court already has indicated that City ofChattanooga merely exemplifies the Hall principle,which allows a State to make its own policyjudgments about its own recognition of immunity ofother States in its courts. Id. at 426 n.29. For tribalsovereign immunity, a matter of federal law, suchjudgments are up to Congress. Second, City ofChattanooga did not involve a tax foreclosure but anexercise of eminent dom ain, which presents differentissues. 1010 Eminent dom ain is not a form of enforcem ent; it involves asovereign's need to use a particular piece of p roperty w ithin itsterritory, not an interest in mere proceeds to satisfy someobligation that could be satisfied by other means; it mustprotect the property owner's financial interests through justcompensation; and the property owner cannot halt theproceeding by satisfying an underlying obligation. "Liens,whether equitable or legal, are merely a means of satisfying aclaim for the recovery of money." Dep't of Army v. Blue Fox,Inc., 525 U.S. 255, 262 (1999) (equitable lien does not avoidfederal sovereign immunity). A foreclosure case is not an

Thus, in every relevant context, the federalbackground rule of sovereign immunity, unlessaltered by Congress, contains no enforcementexception allowing tax foreclosures.Bherrill Did Not Involve, or Alterthe Law on, Sovereign Immunityfrom Suit.

Contrary to the primary submission of thepetition, the Second Circuit's ruling is perfectlyconsistent with this Court's Sherrill decision. Theissues presented to and decided by this Court wereentirely about governance (including taxation)authority over particular land. There was no issue ofimmunity from suit, and the Court did not silentlyalter the longstanding separate doctrine of tribalsovereign immunity from suit. The petition, inrelying on Sherrill, ignores the well-establisheddistinction between the two topics.The Oneida Nation in Sherrill had arguedthat, when it reacquired reservation land that had

been alienated from its possession contrary to federallaw, the land reverted to sovereign Indian land withconcomitant immunity from state property taxation.When the Second Circuit agreed, the petitionpresented four questions for review, all concerninggovernance authority over that land. 03-855 Pet. i.This Court rejected that theory and held, as theOneida Nation acknowledged in the Second Circuitbelow, "that equity has stripped away the Oneidas'federal tax immunity and sovereignty overreacquired lands." Oneida Nation CA Br. 1. Theappropriate vehicle for addressing distinctive aspects of eminentdomain.


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22ruling, resting on "equitable considerations" (544U .S. at 214), was entirely about governance authorityover land, as the Court's repeated statements of theissue and its holding confirm. 544 U.S. at 221(history "render[ed] inequitable the piecem eal shift ingovernance this suit seeks unilaterally to initiate"),202 ("governance"; "regulatory authority"), 202-03("We hold that the Tribe cannot unilaterally reviveits ancient sovereignty, in whole or in part, over theparcels at issue."), 212 ("the imposition of propertytaxes"; "tax exempt"), 213 ("sovereign dominion overthe parcels"), 214 ("sovereign immunity from localtaxation on parcels of land"; "governance"), 215("sovereignty over land"), 215-16 ("regulatoryjurisdiction"), 218 ("dominion and sovereignty overterritory"; "sovereign control over territory"), 21 9("sovereign control over land"), 220 ("sovereigncontrol" by Tribe would "free the parcels from localzoning or other regulatory controls"), 220-21sovereign control over territory"), 221 (" sove r e ignauthority over territory"; "piecemeal shift ingovernance"). (All emphases added).There was no issue of sovereign immunityfrom suit (enforcement), which is not territory-dependent but only party-status-based, in this Courtin Sherrill. A lthough the lower courts addressed oneissue of sovereign immunity from suit, that issue wasnot presented to or addressed by this Court." When11 The City of Sherrill had sued tribal officials for, inter alia,failing to remit sales taxes. The S econd C ircuit held that claimto be "no different from a claim ag ainst the tribe itself for non-payment of sales taxes," and concluded: "since the DistrictCourt correctly concluded that these officers were im mune fromsuit on the claims related to collection of sales taxes, we affirmthe dismissal of' the claim against the officials. 337 F.3d at

23this Court, in footnote 7, stated that "tax immunity"was not a defense to eviction, it was not discussingsovereign immunity from suit, but the unavailabilityof immunity from the underlying taxation, whetherasserted affirmatively or defensively. 544 U .S. at 214n.7 (responding to 544 U.S. at 225-26 (Stevens, J.,dissenting)). See CA A pp. 864 (State's concession).And when the Court used the phrase "sovereignimmunity," it did not use the phrase alone, but aspart of "sovereign imm unity from local taxation" (544U.S. at 214 (emphasis added)), again referring to theunderlying legal obligation, not the distinctimmunity from suit.

The Second Circuit thus correctly understoodthat Sherrill addressed a different issue from theissue here and left the doctrine of tribal sovereignimmu nity from suit untouched. 12

169. The City did not petition from, and this Court nowherediscussed, that ruling (New York had followed and continuesto follow a policy of sales tax forbearance for tribes. See N.YAss'n of Convenience Stores v. Urbach, 712 N.Y.S.2d 220 (N.YApp. 2000), lv. to appeal den., 96 N.Y. 2d 717 (2001)).12 In Cayuga Indian N ation v. Pataki, 413 F.3d 266, 273 (2Cir. 2005), the Second Circuit, speaking through JudgeCabranes (who concurred here), relied on Sherrill to bar a tribasuit for rental damages. More recently, the Second Circuiconstrued Sherrill (and Cayuga) to require dismissal of thOneida N ation's and U nited States ' claims for disgorgement othe State's profits from the purch ase of One ida land in violatioof federal law. Oneida Indian N ation v. N ew Y ork, F.3d 2010 W L 3078266 (2d Cir. Aug. 9, 2010).


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24

C. akima Did Not Involve, or Alterthe Law on, Sovereign Immunityfrom Suit.

Petitioners and amici are incorrect in claimingthat the Court decided that tribal sovereignimmunity allows tax foreclosures of tribally ownedland in Coun ty o f Y ak ima v . Con f e d e ra t e d T r ibe s a ndBands of Y akima Nation, 502 U.S. 251 (1992). Pet.10. Quite simply, there was no tribal sovereignimmunity issue presented in that case and no issue offoreclosure of tribally owned land. Rather, as theCourt made explicit, the case presented and theCourt decided only questions of state taxingauthority, not tax enforcement. Id. at 253 ("Thequestion presented by these consolidated cases iswhether the County of Yakima may impose an advalorem tax on so-called `fee-patented' land locatedwithin the Y akima Indian Reservation, and an excisetax on sales of such land."); id. at 270 ("W e hold thatthe General A llotment Act perm its Yakima County toimpose an ad valorem tax on reservation landpatented in fee pursuant to the Act"); see also id. at270 (Blackmun, J., dissenting in part) ("I dissentfrom [the Court's] conclusion that the county mayimpose ad valorem taxes on Indian-owned fee-patented lands.").

The parties presented contentions only aboutthe State's imposition of legal obligations (taxliability). They did not ask for a ruling on anyforeclosure against Tribe-owned property. That wasno accident: the case was prompted by foreclosureproceedings against members (who could not claimsovereign immunity from suit); and the Tribepresented only arguments that applied equally to its

25property and that of i ts me mbers. 1 3ak ima thus didnot alter the uniform background law of tribalsovereign imm unity that bars foreclosure.

D. There Is No Basis for Revisiting theIssue to Consider JudiciallyImposing a New Limit on Immunity.

Petitioners and amici demonstrate no lower-court conflict or other reason for this Court to revisittribal sovereign immunity from suit, with itsestablished application to foreclosure actions. Anyrevision of immunity should be left to Congress,which can readily balance competing interests.There is no justification for this Court's intervention,certainly not at this time .

1.here Is No Lower Court ConflictOr Real-World Problem. Neither petitioners noramici identify a single other federal-law caseinvolving or approving a tax foreclosure against aTribeto which the relevant question presented is13 The p etitions in Yakima presented questions about state taxauthority on tribal land, none involving tax foreclosure or otheenforcement . Pet. Br . , 1991 W L 521727, a t *i; Resp. Br . , 1991WL 521292, at *i. The parties nowhere sought a ruling onenforcement immunity. The United States has explained thatinY akima, "Nile Tribe did not urge any distinction in theanalysis to be applied to the two categories of land," Tribeowned and member-owned, partly because the underlyingforeclosures triggering the federal case were against membersSee U.S. Amicus Br., Cass County, Minnesota v. Leech LakBand of Chippewa Indians, 1998 WL 25517, at 11 n.2. S e e Trof Oral Argument in Y akima, 1991 W L 636297, at *27 ("Thiaction was instituted by the Yakima Nation in response to thforeclosure and the pending tax sales of the lands and homes o31 members of the tribe."); U.S. A micus Br. in Y akima, 1991 W11009207, at *2 (same); Resp. Br., 1991 WL 521292, at *9(same)


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26limited (Pet. i). That means, first, that there is nodecisional conflict warranting this Court's attentionand, second, that there is no real-world probleminvolving tribal sovereign immunity and taxforeclosures.

No other federal court of appe als has disagreedwith the Second Circuit or even addressed the issuehere. The petition nowhere alleges an intercircuitconflict. It cites only two federal-court decisions,both by district courts (one from the Second Circuit).Neither involved sovereign immunity fromforeclosure to enforce a tax obligation.

New Y ork v. Shinnecock Indian Nation, 523 F.Sup p. 2d 185 (E.D .N.Y . 2007), is far afield. It did notinvolve an "in rem" proceeding at all, or taxation orforeclosure. It involved suits, against a Tribe and itsofficials, seeking personal injunctions to enforcecertain land use regulations involving a constructionproject. The district court's clearly overbroadstatement about Sherrill (id. at 298) was triplyunnecessary to the decision where the Tribe w as (andis) not yet federally recognized, and where the courtheld that the Tribe had waived any sovereignimmunity from suit (id. at 297-98) and that theTribe's presence was immaterial because sovereignimmunity was no barrier to prospectively enjoiningthe co-defendant tribal off icials (id. at 298-99). Thatmisreading has been corrected by the SecondCircuit's decision below, and would not, in any ev ent,justify review of the quite different foreclosure issuehere. Unlike Shinnecock, this case presents noregulatory enforcement issue.

The other district court decision cited bypetitioners (in a footnote, Pet. 18 n.11), Oneida Tribe

27of Indians of Wisconsin v. Village of Hobart, 542 F.Supp. 2d 908 (E.D. Wis. 2008), involved neitherforeclosure nor, indeed, tribal sovereign immunity.Rather, it involved condemnation of land for a road,and the Tribe did not raise a sovereign immunitydefense at all, relying instead on federal restrictionsagainst alienation. The district court concluded thatCongress had authorized state condemnation of landthat had previously been allotted. See 25 U .S .C . 357. Its discussion of tax foreclosure and sovereignimmunity is pure dicta.

Amici Town of Lenox (at 16) and Towns ofVerona and Vernon (at 17-18) cite two decisions ofstate supreme courts.either involved taxforeclosure. Both also involved eleventh-hourtransfers of land owned by non-Indians to a Tribe forthe specific purpose of trying to thwart certainadjudications by m eans of tribal sovereign imm unity.Anderson & Middleton Lum ber Co. v. Quinault

Indian N ation, 929 P.2d 379 (W ash. 1996), involved apending quiet-title and partition action. In allowingit to proceed, the court noted not only that theinterests at issue had been transferred to the Tribeafter the suit commenced (id. at 381) but that theTribe "would lose no prope rty or interest for which itholds legal title" in the case (id. at 385). And CassCounty Joint Water Res. Dist. v. 1.43 Acres of Land,643 N.W.2d 685 (N.D. 2002), involved an eminentdomain proceeding. The court stressed that the Tribehad acquired its interest on the eve of the long-planned action and was not even a necessary party toa proceeding that, after all, the Tribe could not stopby satisfying any underlying liability (which was notat issue). Id. at 688-90. Despite some broad


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28language in both opinions, both cases are plainlydifferent from the present case.

Petitioners and amici, including the States(Pet. 15-18; State Br. 13), cannot point to any lowercourt conflict on the tax foreclosure issue presented.They therefore must resort to positing a hypotheticalproblem of widespread tribal acquisition of non-reservation land, refusal to pay property taxes, andinvocation of sovereign immunity from suit. But thatsuggestioneve n apart from its inapplicability to theland at issue here, all within the Tribe's aboriginalterritory and treaty reservationis entirelyhypothetical.

There is no real-world problem of this sort.There are good reasons that no such problem existsor is likely to develop, including the practical need forgood-neighbor relations, the strong role of the federalgovernment in overseeing tribal actions (hereincluding its trust authority), and the ever-presentpossibility of congressional action if tribal actionsthreatened substantial state and local interests.Those are reasons not to expect the positedhypothetical to materialize now any more than it didafter Potowatomi or Kiowa. In any event, the plainfact is that no such problem exists now to warrantintervention.2. Any New Limitations On ImmunityFrom Suit Should Be Left To Congress. Kiowaand Potowatomi reaffirmed tribal sovereignimm unity, which, as shown above, includes immunityagainst tax enforcement. The petition nowheredirectly asks this Court to overrule precedent, sayingonly that Kiowa and Potowatomi are "inapposite"(Pet. 13, 15) and v aguely urging the Court to "revisit"

29tribal sovereign immunity generally (Pet. 15-19).Absent a direct request to overrule existingprecedent, the C ourt generally declines to do so.

In any event, whether viewed as a request foroverruling or as a request for a dramatic new judiciallimitation, petitioners' arguments cannot justifyreversal of the Second Circuit's recognition ofimmunity here. Both as a matter of stare decisis andindependently of that doctrine, there are especiallystrong reasons to respect the immunity principleuntil Congress decides to limit it.

Stare decisis is particularly strong whereCongress can act but has not. See Watson v. UnitedStates, 552 U .S. 74 , 83 (2007) (congressional inactionfor 14 years increases the precedential force of earliedecision); IBP, Inc. v. Alvarez, 546 U.S . 21, 32 (2005)More particularly, this Court in both Kiowa an dPotowatomi noted that revision of tribal sovereignimmunity is for Congressa principle of deferencehaving particularly strong application when thecongressionally established trust process andhistorical tribal land are at stake. Congress is fullyaware of tribal sovereign immunity. But, even whileacting in the area, Congress has not curtailed thaimm unity since Kiowa or Potowatomi, and there is nreason to think the political process in any wayinadequate or unresponsive to concrete stateconcerns. 1 4f. S. Rep. 100-446, at 3-4 (198814 In the 105th Congress, shortly after Kiowa, Senator Gortointroduced the American Indian Contract Enforcement Ac(S.2299) and the A merican Indian Tort Liability Insurance Ac(S.2302). R eferring to the Court's decision, the bills would havsubstantially limited tribal sovereign immunity, but they wernot reported out of committee. In 2000, after hearing


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30(congressional response to Cabazon decision on tribalgaming).

In bothKiowa(523 U.S. at 758), andPotowatomi (498 U.S. at 510), the Court rejectedarguments to restrict tribal sovereign immunitybased on the expansion of tribal business activity onand off reservations, much like the Counties'argument here. Pet. 15-17. Instead, the Court inboth cases deferred to Congress to make the policyjudgment about the interests of non-Indiangovernments and the important sovereign characterof Tribes. Any curtailment of the latter would affectmore than 500 federally recognized Tribes. It wouldtherefore require, at the very least, significant real-world harm to the former. Only Congress can makethat judgment, and the plain fact is that thepredictions of extreme abuses in Potowatom i an dKiowahave proved falseas the absence ofcongressional action in the years since Potowatomiand Kiowa confirms.

As to this case particularly, the specificcircumstances and consequences undermine, ratherthan bolster, the argument for review. In addition,the district court relied on several alternativegrounds to enjoin foreclosure in this case. Pet. App.23a (state tax exemptions, due process, and federalrestrictions against alienation of tribal land); Pet.Congress enacted the Indian Tribal Economic Dev elopment andContract Encouragement Act of 2000, Pub. L. 106-179 , 114 Stat.46, which required only disclosure or waiver of sovereignimmunity in certain contracts requiring federal approval. Inthe 108th Congress, S.521 would have required certaindisclosures related to tribal sovereign imm unity in leases, but itwas amended to eliminate that requirement and never enacted.

31App. 65a-68a (restrictions); 72a-73a (due process);73a-74a (state tax exemptions). The Second Circuitdid not reach those grounds. The strength of thosealternative grounds to reach the same result, whilenot precluding review on the ground adopted by theSecond Circuit, further weakens any argument forreview of this particular case.II. THE DISESTABLISHMENT QUESTIONWAS NOT DECIDED BELOW AND DOESN O T W A R R A N T R E V I E W .

The question whether the 1838 Treaty ofBuffalo Creek, 7 S tat. 550 (Jan. 15, 1838), amended 7Stat. 586 (May 20, 1842), disestablished the Oneidareservation is not worthy of this Court's review,either independently or in conjunction with thesovereign immunity issue. The S econd C ircuit belowdid not decide it. Resolution of that fact-intensivequestion affects only the Oneida Nation, because thecontrolling treaty language and negotiating historyare specific to the Oneidas. The disestablishmentquestion was fully briefed in Sherrill, but the Courtdeclined to decide i t. 544 U.S . at 215 n.9 . There is noreason to do so in this case.

The petition argues for review based on thepotential effect of the decision in other cases (Pet.22), but if the question matters in those cases, it canbe decided if properly raised there (rather than inthis case, where the Second Circuit found iunnecessary to decide the question and the Countiesraised it only in passing (Counties CA Br. 99-103Counties CA Reply Br. 34)) . M oreover, the only suchcase the petition identifies is Cayuga Indian Nationv. Gould, 14 N.Y.3d 614 (2010), which could no


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323justify review here even aside from the fact that theState has promulgated new regulations to supersedethe law at issue in Gould. 14 N.Y.3d at 629 n.6(noting proposed regulations). Gould involves adifferent Tribe (the Cayugas) w ith rights governed bydifferent treaty language and a different treatyhistoryas illustrated by the fact that the amicusbrief filed by Cayuga and Seneca Counties in thepresent matter dwells on Cayuga history (such as anarbitral award having nothing to do with the OneidaNation) without even analyzing the distinct Oneidahistory. Cayuga B r. 10.15

15 In Gould, the court held that land that the Cayugas hadreacquired within their federal reservation boundary was a" qualified reservation" entitled to special treatment under statetax law, notwithstanding the conceded absence of any tribalsovereignty over the land, because the Cayuga reservation wasstill federally recognized 14 N.Y.3d at 635-45. The court citedthe Second Circuit's opinion below (noting the earlier rulingthat the Oneida reservation was still recognized) merely asconfirming that loss of tribal sovereign authority because ofSherrill does not eliminate federal recognition of thereservation. Id. at 642. The three dissenters in Gould did notquestion the reservation-status conclusion. Id. at 654-55. Thecourt explicitly reserved the state-law question of reservationstatus for purposes of the state property-tax exemption. Id. at646.

The petition for certiorari, Gould v. Cayuga IndianNation, No. 10-20 6 (filed Aug. 9 , 2010), insofar as it discussesfederal treaties, makes arguments specific to the Cayugas. Theargument that the Cayuga reservation lacked federal treatyprotection is inapplicable to the O neida Nation, whose land hadbeen indisputably protected (before the first land sale at issue)by a separate federal treaty provision not applicable to theCayugas. S e e Treaty with the Six Nations (Ft. Stanwix), 7 Stat.15 (O ct. 22, 1784) ("The Oneida and Tuscarora nations shall besecured in the possession of the lands on which they are

The S econd C ircuit observed that its holding inthe Sherrill case that the Oneida reservation was notdisestablisheda conclusion this Court exp ressly leftundisturbed in Sherrill (544 U.S. at 215 n.9)"remains the controlling law of this circuit" (Pet. A pp.16a-17a n.6). That observation does not warrantreview. It is indisputably true, and it does not alterthe fact that the court did not rely on any conclusionabout disestablishment in its judgment here. Thejudgment in this case rests solely on the court'sresolution of the tribal sovereign immunity issue,regardless of reservation status. See MississippiUniv. for Women v. Hogan, 458 U.S. 718, 723 n.7(1982) (declining to reach claims of discriminationaddressed in court of appeals' opinion but notinvolved in the judgment); FCC v. PacificaFoundation, 438 U.S. 726, 734 (1978) (declining toreach constitutionality of speech addressed by FCCruling but outside the factual context of the case ).

The Second Circuit was also correct in itsSherrill opinion that the reservation was notdisestablished. 337 F.3d at 158-65. The petitionprincipally argues (Pet. 20, 22-23) for a kind ofequitable disestablishment, but this Court alreadyrejected such a notion in Sherrill, reaffirming thatonly Congress can disestablish a reservation. 544U.S. at 215 n.9. The full merits briefing in Sherrillby the Oneida Nation (03-855 Resp. Br. 29-42) andthe United States (03-855 U.S. Amicus Br. 16-24)showed that the Treaty of Buffalo Creek did notsettled."). The argument that the Treaty of Buffalo Creekdisestablished the Cayuga reservation depends on specifictreaty language and negotiating history different from theOneidas'.


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34disestablish the Oneida reservation because thetreaty did not address the land illegally alienatedbefore the treaty and because the federalcommissioner assured the Oneidas that they werenot required to move or to sell the land they stillpossessed. See Minnesota v. Mille Lacs Band, 526U .S. 172 (19 99 ) (treaty does not cede tribal rights notreferred to); Ci ty o f Sh e r r il l v . On e i da In d ian N a ti o n ,337 F.3d at 161-62 (federal treaty commissionerassured the Oneidas they need not sell land ormove). 16

35CONCLUSION

The petition for a writ of certiorari should bedenied.Resp ectfully submitted,

Richard G. Tarantoichael R. SmithFarr & Tarantoo u n s e l o f R e c o rd1150 18 th Street, N.W.avid A. ReiserW ashington, D C 20036uckerman Spaeder LLP(202) 775-0184800 M Street , N.W .W ashington, DC 20036Peter D. Carmen202) 778-1800Meghan Murphy BeakmanOneida Nation Legal Department5218 Patrick RoadVerona, New York 13478(315) 361-8687Counsel for Respondent

16Petitioners' unsupported assertion that the Oneidareservation had "no physical existence in New York forapproxim ately 200 years" (Pet. 22) is false. Judicial rulings andgovernmental determinations are to the contrary. See F. Hugo,M anual for Use of the Legislature of the State of New Y ork 270(1918) (list ing Oneida reservation among "Indian reservationsin New York" in 1855, 1865, 1875, 1892, 1910, and 1915);United S tates v. Boylan, 265 F. 165 (2d Cu.1920) (upholdingfinding of continuous tribal possession); Compilation of MaterialRelating to the Indians of the U nited States, H.R. R ep. No. 81 -30, at 80 (1950) (listing Oneida reservation in New York);Waterman v. Mayor, 280 N.Y.S .2d 927, 930 (Sup. Ct. 1967) ("theOne ida Indian Reservation does now exist"). M aps prepared forthe Com missioner of Indian Affairs between 1883 and 1917 andlodged with the Court in Sherrill show the Oneida reservationin New York.


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W I L S O N .0 i t I ,

RIM ING

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775 H Street, N.E.Washington, D.C. 20002Tel (202) 789-0096Fax (202) 842-4896

No. 10-72

MADISON COUNTY AND ONEIDA COUNTY, NEW YORKPetitioners,

V.ONEIDA INDIAN NATION OF NEW YORK,

Respondent.

AFFIDAVIT OF SERVICEI HEREBY CERTIFY that all parties required to be served, have been served on this 10th day ofSeptember, 2010, in accordance with U.S. Supreme Court Rule 29.5(c), three (3) copies of theforegoing RESPONDENT'S BRIEF IN OPPOSITION by placing said copies in the U.S. Mail,first class postage prepaid, addressed as listed below:CIIARLES G . CURTIS JRARNOLD & PORTER L L P555 Twelfth Street, NWWashington, DC 20004(202) 942-6462Counsel for Town of L e n o x , N e w Y o rkJAMES J DEVINE JR.128 main StreetOneida, NY 13421(315) 363-6600Counsel for Citizens Equal Rights

Foundation, et al.PHILIP G . SPELLANEHARRIS BEACH PLLC99 Garnsey RoadPittsford, NY 14534(585) 419-8800Counsel for Cayuga County, and

Seneca County

DAVID M. SCHRAVERNIXON PEABODY L L PClinton SquareRochester, NY 14604(585) 263-1000Counsel for Madison County, New York et al.CORNELIUS D . M U R R A YO'CONNELL AND ARONOWITZ54 State StreetAlbany, NY 12207-2501(518) 462-5601Counsel for Town of Verona, andT o w n of V e r n o n , N e w Y o rkB A R B A R A D. U N D E R W O O DSolicitor GeneralOFFICE OF THE ATTORNEY GENERAL120 BroadwayNew York, NY 10272-0332(212) 416-8020C o u n s e l f o r N ew Y o r k , e t al.

The following addresses have been served electronically:[email protected]@[email protected]@[email protected]


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CHRISTOPIIENOTARY PUBLICDistrict of Columbia

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No. 10-72

IN THEiupretue Court of tbe Ettiteb Optatess

M A D I S O N C O U N T Y A N D O N E ID A C O U N T Y , N E W Y O R KPetitioners,

V .O N E I D A IN D I A N N A T IO N O F N E W Y O R K ,

Respondent.

On Petition for a Writ of Certiorari to theUnited States Court of Appealsfor the Second Circuit

RE S POND E NT 'S B RIE F IN OPPOS IT ION

CERTIFICATE OF COMPLIANCEAs required by Supreme Court Rule 33.1(h), I certify that the document contains8,850 words, excluding the parts of the document that are exempted by the SupremeC ourt Rule 33.1(d).I declare under p enalty of perjury that the foregoing is true and corre ct.

Executed on Septem ber 10, 2010

Christopher R. DorseyW ilson-Epes Printing Co., Inc.

filed respondents brief in opposition to petition for writ of certiorari

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