05-6408cv(l).amicus curiae state of ny

8/7/2019 05-6408cv(L).Amicus Curiae State of NY

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THE CAPITOL,ALBANY,NEWYORK 12224-0341 PHONE (518)474-7201 FAX(518)473-8963*NOT FORSERVICE OF PAPERS

http://ag.ny.gov

STATE OF NEWYORK

OFFICE OF THEATTORNEYGENERAL

ERICT.SCHNEIDERMAN

ATTORNEYGENERAL

BARBARAD.UNDERWOO

SOLICITORGENERAL

January 26, 2011

Hon. Catherine OHagan Wolfe

Clerk of the Court

U.S. Court of Appeals for the Second Circuit

40 Foley Square

New York, New York 10007

Re: Oneida Indian Nation v. Madison County

Docket Nos. 05-6408-cv(L), 06-5168-cv(CON), 06-5515-cv(CON)

Dear Ms. OHagan Wolfe:

This case has been remanded by the Supreme Court for this Court "to revisit

its ruling on sovereign immunity in light of [the Tribe's waiver of tribal sovereign

immunity from real property tax foreclosure proceedings], and -- if necessary --

proceed to address other questions in the case consistent with its sovereign

immunity ruling." See Madison County, N.Y. v. Oneida Indian Nation of N.Y., 562

U.S. __, 2011 WL 55360 (January 10, 2011). This Court has requested letter briefs

regarding what further action may be appropriate. The State of New York submits

this letter in support of appellants Madison County and Oneida County, for the

same reasons that have led the State to submit briefs amicus curiae at every prior

stage of this litigation.


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The district court in these cases granted a permanent injunction barring

foreclosure on four distinct grounds. This Court affirmed the injunction squarely

addressing only one - the tribal claim of sovereign immunity. On this remand, this

Court should consider and reject each of the four grounds on which the district

court's injunction rests.

A. The OIN's Claim of Sovereign Immunity to Tax Foreclosure

Proceedings Is Both Waived and Meritless.

First, this Court should hold that the Oneida Indian Nation ("OIN") is barred

from asserting any claim of sovereign immunity to these tax foreclosure

proceedings, both because the Nation has waived the claim and because it is

meritless. This Court's prior opinion upholding that claim, Oneida Indian Nation of

N.Y. v. Madison County and Oneida County, N.Y., 605 F.3d 149 (2d Cir. 2010), has

been deprived of precedential effect by the Supreme Court's decision vacating it, see

Los Angeles County v. Davis, 440 U.S. 625, 634 n. 6 (1979). And this Court should

not adhere to that holding, not only for the reasons previously set forth in the briefs

of the Counties and the State, and not only because two members of the panel have

already recognized that the earlier decision was "anomalous" and "defie[d] common

sense," Madison County, 605 F.3d at 163-64 (Judges Cabranes and Hall,

concurring), but also because the OIN has implicitly recognized that the claim of

sovereign immunity was meritless by abruptly abandoning the claim after

strenuously litigating the immunity issue for a decade, including two trips to this

Court and the Supreme Court.


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If this Court decides that the sovereign immunity issue has become moot as

a result of the OIN's waiver, it should vacate the district court's judgments to the

extent based on tribal sovereign immunity and remand with a direction to the

district court to dismiss the OIN's sovereign immunity claim. See U.S. Bancorp

Mortgage Company v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994) (vacatur

required when mootness results from the unilateral action of the party that

prevailed below).

B. Sherrill, Cayuga, and Oneida Bar the Nonintercourse Act Claim.

The district court mistakenly held that the counties' tax foreclosures were

barred because they would result in the conveyance of the OIN's recently acquired

lands to the counties without federal consent in violation of the Nonintercourse Act,

25 U.S.C. 177 ("NIA"). The OIN's NIA claim is a disruptive land claim barred by

laches and related equitable considerations under the Supreme Court's decision in

City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005), and this

Court's two land claim decisions following Sherrill, see Cayuga Indian Nation of

N.Y. v. Pataki, 413 F.3d 266 (2d Cir. 2005), cert. denied, 547 U.S. 1128 (2006), and

Oneida Indian Nation of N.Y. v. County of Oneida, 617 F.3d 114 (2d Cir. 2010).

In Sherrill, the OIN made the same claim that they made successfully in the

district court here: that "the federally protected possessory right that barred

New York from transferring Oneida land even in voluntary transactions also bars

New York and its political subdivisions from taking Oneida land from the Oneidas

today through tax foreclosures and evictions." Brief for Respondents in No. 03-855,


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City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., at 16 (Jt. App. 519). But

Sherrill implicitly rejected that claim by holding that the OIN was barred by laches

and related equitable considerations from asserting sovereignty as a defense to an

eviction proceeding, 544 U.S. at 214 n.7. And Sherrill likewise rejected the OIN's

theory that its open-market acquisitions of land that had been freely alienable for

nearly 200 years united the OIN's current fee title with its prior possessory interest.

See id. at 213-14. Thus the Supreme Court necessarily rejected the OIN's claim

that foreclosure would be barred because the lands suddenly became restricted by

the NIA when the OIN acquired them.

In Cayuga, this Court correctly recognized that "Sherrill's holding is not

narrowly limited to claims identical to that brought by the Oneidas, seeking a

revival of sovereignty, but rather, . . . these equitable defenses apply to 'disruptive'

Indian land claims more generally." Cayuga, 413 F.3d at 274. Based on "the same

considerations that doomed the Oneidas claim in Sherrill," this Court dismissed the

Cayugas' tribal land claims for possession and monetary relief. Id. at 277.

So too in Oneida, this Court properly followed the analysis in Sherrill and

Cayuga and dismissed various possessory and nonpossessory land claims brought

by the OIN and other Oneida plaintiffs. In particular, this Court specifically held

that Cayuga barred the Oneida plaintiffs' NIA claims. See Oneida, 617 F.3d at 135-

37. The Court explained that the equitable defense recognized in Sherrill "is

properly applied to bar any ancient land claims that are disruptive of significant

and justified societal expectations that have arisen as a result of a lapse of time


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during which the [OIN] did not seek relief." Id. at 135. The Court held that "[t]he

Nonintercourse Act claim proposed by the Oneidas and by the United States is

disruptive in precisely this fashion" id. at 136. The Court reasoned that the NIA

claim "effectively 'asks this Court to overturn years of settled land ownership.'" id.

at 137, quoting Cayuga, 413 F.3d at 275, since "the invalidity of the sale ab initio is

the underlying premise of a Nonintercourse Act claim and any theory of recovery

plaintiffs could seek pursuant to this claim." Id.

This Courts application of Sherrill and Cayuga to bar the disruptive NIA

claim in Oneida governs here also. A determination that the OIN's recently

acquired lands remain subject to the NIA after more than a century and a half of

non-tribal ownership and governance would be inherently disruptive under Oneida

both because it is grounded in the OIN's argument here that it did not validly

convey the lands in the first place (Br. at 66-67) and also because it interferes with

the counties' enforcement of their real property taxes. Therefore, the OIN's

disruptive claim based on the NIA is barred.1

1 In the aftermath ofSherrill, the Associate Deputy Secretary of the Interiorinitially agreed with the view that the NIA did not bar foreclosure, stating, we do

not agree with [the assertion by the OINs counsel] that the Courts ruling in

Sherrill recognizes the continuation of restriction on alienation protections over

recently re-acquired lands . . . [i]n the event these [real property] taxes are not paid,

we believe such lands are subject to foreclosure. Letter of James E. Cason to Hon.

Ray Halbritter, June 10, 2005 (Jt. App. 488).


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C. The Notice of Foreclosure Given the OIN Satisfied Due Process.

The district court also mistakenly held that Madison County gave the OIN

constitutionally inadequate notice of the commencement of the foreclosure

proceedings. See Oneida Indian Nation of N.Y. v. Madison County, 401 F. Supp. 2d

219, 230 (N.D.N.Y. 2005). The county complied with New York Real Property Tax

Law (RPTL) 1125 (McKinney Supp. 2010), which requires actual notice by mail

to property owners of the commencement of foreclosure proceedings three months

before the expiration of the redemption period. See Jt. App. 385-386. However, the

court found that, because the RPTL generally provides a two-year redemption

period, see RPTL 1110(2), anything less than two years' notice of the expiration of

the redemption period was inadequate under the Due Process Clause.2 The court

effectively held the three-month notice requirement of 1125 to be facially

unconstitutional.

The district court's holding conflicts with well-settled due process principles

governing what notice of proceedings is due interested parties. In Jones v. Flowers,

547 U.S. 220, 226 (2006), the Supreme Court reiterated the standard set forth in

2 RPTL 1110 (2) (McKinney 2000) provides a two-year redemption period

measured from the lien date. The lien date is the date on which the tax becomes a

lien (RPTL 1102(4) (McKinney 2000)), which is generally January 1 of the year forwhich the tax is levied. See RPTL 902 (McKinney 2000). RPTL 1123 (McKinney

2000) provides that the petition for foreclosure is filed 21 months after the lien date

(i.e., three months before the expiration of the redemption period), and notice of the

foreclosure must be given "forthwith" by publication (RPTL 1124(1) (McKinney

2000)) and mail (RPTL 1125). The mailed notice must include the last date to

redeem. RPTL 1125(2).


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Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950): "due

process requires the government to provide 'notice reasonably calculated, under all

the circumstances, to apprise interested parties of the pendency of the action and

afford them an opportunity to present their objections.'" See alsoMiner v. Clinton

County, N.Y., 541 F.3d 464, 471-72 (2d Cir. 2008) (same), cert. denied, 129 S.Ct.

1625 (2009); Luessenhop v. Clinton County, 466 F.3d 259, 269 (2d Cir. 2006) (same);

Akey v. Clinton County, 375 F.3d 231, 235 (2d Cir. 2004) (same). The notice "must

afford a reasonable time for those interested to make their appearance." Mullane,

339 U.S. at 314 (citing Roller v. Holly, 176 U.S. 398, 407-13 (1900) (five days notice

given to a Virginia resident requiring him to appear in Texas and defend a suit to

foreclose a vendors lien upon his land violated due process)). "[T]he time . . . must

be such that with reasonable effort [the interested party] will be enabled to attend

and present his objections." Bellingham Bay & B.C.R. Co. v. New Whatcom,

172 U.S. 314, 319 (1899) (ten days notice upheld). If, "with due regard for the

practicalities and peculiarities of the case these conditions are reasonably met, the

constitutional requirements are satisfied." Mullane, 339 U.S. at 314-15. "[O]nly in

a clear case will a notice authorized by the legislature be set aside as wholly

ineffectual on account of the shortness of the time." Goodrich v. Ferris, 214 U.S. 71,

81 (1909) (quoting BellinghamBay, 172 U.S. at 318, and dismissing for want of

jurisdiction a claim that ten days statutory notice was insufficient).

In the present case, the RPTL required the county, three months before the

expiration of the two-year redemption period, to give actual notice of the


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statutes exempted them from real property taxation. In the Supreme Court, the

OIN characterized this issue as a disputed issue of New York law. See No. 10-72,

Letter of Seth Waxman to Hon. William K. Suter, dated Nov. 30, 2010, at 3, n. 3.

The district court erred. First, the OIN's claim of reservation status, like the

NIA claim discussed above, is a disruptive claim barred by Sherrill as applied by

this Court in Cayuga and Oneida. Second, if this Court were to consider the merits

of that claim, it should find that the ancient Oneida reservation was disestablished,

for the reasons set forth in depth in our Supreme Court amicus brief in Sherrill.

See Brief of State of New York as Amicus Curiae in No. 03-855, City of Sherrill, N.Y

v. Oneida Indian Nation of N.Y., 2004 WL 1835367.

Finally, if this Court views the reservation status issue as a question of New

York law, then the district court should not have considered it at all. Because (as

explained above) the OIN's federal claims (sovereign immunity, NIA, due process)

must be dismissed, the district court should have declined to exercise pendent

jurisdiction over the state law claim. See 28 U.S.C. 1367(c)(3); Giordano v. City of

New York, 274 F.3d 740, 754-55 (2d Cir. 2001) (when all federal claims have been

dismissed, pendent state claims may be dismissed without prejudice to be resolved

in state courts). Here, the issue should be decided in the pending state cases where

it is squarely presented. SeeOneida Indian Nation of N.Y. v. Pifer, 840 N.Y.S.2d

672, 674 (N.Y. App. Div. 2007) (question of tax exemption of OIN lands under state

law should be resolved by state courts); see alsoCayuga Indian Nation of N.Y. v.

Gould, 930 N.E.2d 233, 251-52 (N.Y.), cert. denied, 131 S.Ct. 353 (2010) (finding


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Cayuga lands to be a reservation for purposes of the State's Tax Law but expressing

no view as to the resolution of the reservation issue in the RPTL and Indian Law

contexts). Accordingly, the judgments of the district court should be reversed and

the OIN's complaints dismissed in their entirety.

Respectfully submitted,

ERIC T. SCHNEIDERMAN

Attorney General of the

State of New York

BARBARA D. UNDERWOODSolicitor General

___/s/ Andrew D. Bing________

ANDREW D. BING

Deputy Solicitor General

(518) 474-5487

cc: Seth P. Waxman

Wilmer Cutler Pickering Hale

and Dorr LLP

1875 Pennsylvania Avenue, N.W.

Washington, DC 20006

Michael R. Smith, Esq.

Zuckerman Spaeder, LLP

1800 M. Street, N.W.

Washington, D.C. 20036

Don B. Miller, Esq.

1305 Cedar Avenue

Boulder, Colorado 80304

Kathryn E. Kovacs, Esq.

U.S. Dept. of Justice

Environment & Natural Resources

Division, Appellate Section

P.O. Box 23795 L'Enfant Plaza Sta.

Washington, D.C. 20026

David M. Schraver, Esq.

Nixon Peabody LLP

1100 Clinton Square

P.O. Box 31051Rochester, New York 14603-1051


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AFFIRMATION OF SERVICE

Oren L. Zeve, being duly sworn, deposes and says:

(1) I am over eighteen years of age and an employee in the office of Eric T.Schneiderman, Attorney General of the State of New York, attorney for Amicus

Curiae State of New York herein.

(2) On the 26th day of January, 2011 I served the attached Letter Brief in the

following manner:

(i) one paper copy/copies by U.S. Postal Service first-class/priority mail;

and

(ii) one Portable Document Format (PDF) copy by electronic mail, in

accordance with Interim Local Rule 25.2,upon the following named person(s):

____/s/ Oren L. Zeve__________________Oren L. Zeve

Seth P. WaxmanWilmer Cutler Pickering Haleand Dorr LLP1875 Pennsylvania Avenue, N.W.Washington, DC [email protected]

Kathryn E. Kovacs, Esq.U.S. Dept. of JusticeEnvironment & Natural ResourcesDivision, Appellate SectionP.O. Box 23795 L'Enfant Plaza Sta.Washington, D.C. [email protected]

Michael R. Smith, Esq.Zuckerman Spaeder, LLP1800 M. Street, N.W.Washington, D.C. [email protected]

Don B. Miller, Esq.1305 Cedar Avenue

Boulder, Colorado [email protected]

David M. Schraver, Esq.Nixon Peabody LLP1100 Clinton SquareP.O. Box 31051Rochester, New York [email protected]


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