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Court and Tribunal Decisions - USA
Supreme Court of the United States (Rehnquist CJ, Ginsburg, O’Connor, Scalia, Kennedy, Souter, Thomas, Breyer and Souter JJ; Stevens J dissenting)
Certiorari to the United States Court of Appeals for the Second Circuit
29 March 2005
No 03–855
Respondent Oneida Indian Nation of New York (‘OIN’ or ‘Tribe’) is a direct descendant of the Oneida Indian Nation (‘Oneida Nation’), whose aboriginal homeland, at the Nation’s birth, comprised some six million acres in what is now central New York State (‘State’): see, eg, Oneida Indian Nation of NY v County of Oneida, [1974] USSC 15; 414 US 661, 664 (‘Oneida I’).
In 1788, the State and the Oneida Nation entered into a treaty whereby the Oneidas ceded all their lands to the State, but retained a reservation of about 300 000 acres for their own use: see County of Oneida v Oneida Indian Nation of NY, [1985] USSC 97; 470 US 226, 231 (‘Oneida II’). The Federal Government initially pursued a policy protective of the New York Indians. In 1790, Congress passed the first Indian Trade and Intercourse Act (‘Nonintercourse Act’), barring sales of tribal land without the Government’s acquiescence. And in the 1794 Treaty of Canandaigua, the United States ‘acknowledge[d]’ the Oneidas’ 300 000 acre reservation and guaranteed their ‘free use and enjoyment’ of the reserved territory: Act of Nov 11, 1794, 7 Stat 44, 45, Art III.
Nevertheless, New York continued to purchase reservation land from the Oneidas. Although the Washington administration objected, later administrations made not even a pretence of interfering with New York’s purchases, and ultimately pursued a policy designed to open reservation lands to white settlers and to remove tribes westward. Pressured by the removal policy, many Oneidas left the State. Those who stayed continued to diminish in number and, during the 1840’s, sold most of their remaining lands to New York. By 1920, the New York Oneidas retained only 32 acres in the State.
Although early litigation over Oneida land claims trained on monetary recompense from the United States for past deprivations, the Oneidas ultimately shifted to suits against local governments. In 1970, they filed a federal ‘test case’ against two New York counties, alleging that the cession of 100,000 acres to the State in 1795 violated the Nonintercourse Act and thus did not terminate the Oneidas’ right to possession. They sought damages measured by the fair rental value, for the years 1968 and 1969, of 872 acres of their ancestral land owned and occupied by the two counties. The District Court, affirmed by the Court of Appeals, dismissed the complaint for failure to state a federal claim. This Court reversed in Oneida I, 414 US, at 675, 682, holding that federal jurisdiction was properly invoked.
After the Oneidas prevailed in the lower courts, this Court held, inter alia, that the Oneidas could maintain their claim to be compensated ‘for violation of their possessory rights based on federal common law’: Oneida II, 470 US, at 236, but reserved ‘[t]he question whether equitable considerations should limit the relief available to present day Oneida Indians’: at 253, n. 27.
In 1997 and 1998, OIN purchased separate parcels of land in petitioner city of Sherrill, New York. These properties, once contained within the historic Oneida Reservation, were last possessed by the Oneidas as a tribal entity in 1805. In that year, the Oneida Nation transferred the parcels to one of its members, who sold the land to a non-Indian in 1807. The properties thereafter remained in non-Indian hands until OIN reacquired them in open-market transactions.
For two centuries, governance of the area in which the properties are located has been provided by the State and its county and municipal units. According to the 2000 census, over 99% of the area’s present-day population is non-Indian. Nevertheless, because the parcels lie within the boundaries of the reservation originally occupied by the Oneidas, OIN maintained that the properties are tax exempt and accordingly refused to pay property taxes assessed by Sherrill. Sherrill initiated state-court eviction proceedings, and OIN brought this federal-court suit. In contrast to Oneida I and II, which involved demands for monetary compensation, OIN sought equitable relief prohibiting, currently and in the future, the imposition of property taxes. The District Court concluded that the parcels are not taxable, and the Second Circuit affirmed.
In this Court, OIN resists the payment of the property taxes on the ground that OIN’s acquisition of fee title to discrete parcels of historic reservation land revived the Oneidas’ ancient sovereignty piecemeal over each parcel, so that regulatory authority over the newly purchased properties no longer resides in Sherrill.
Given the longstanding, distinctly non-Indian character of central New York and its inhabitants, the regulatory authority over the area constantly exercised by the State and its counties and towns for 200 years, and the Oneidas’ long delay in seeking judicial relief against parties other than the United States, standards of federal Indian law and federal equity practice preclude the Tribe from unilaterally reviving its ancient sovereignty, in whole or in part, over the parcels at issue. The Oneidas long ago relinquished governmental reins and cannot regain them through open-market purchases from current titleholders: pp 12–21.
1. The Court rejects the theory of OIN and the United States that, because Oneida II recognized the Oneidas’ aboriginal title to their ancient reservation land and because the Tribe has now acquired the specific parcels at issue in the open market, it has unified fee and aboriginal title and may now assert sovereign dominion over the parcels. The Oneidas sought only money damages in Oneida II: see 470 US, at 229, and the Court reserved the question whether ‘equitable considerations’ should limit the relief available to the present-day Oneidas: at 253, n. 27. Substantive questions of rights and duties are very different from remedial questions.
Here, OIN seeks declaratory and injunctive relief recognizing its present and future sovereign immunity from local taxation on parcels the Tribe purchased in the open market, properties that had been subject to state and local taxation for generations. The appropriateness of such relief must be evaluated in light of the long history of state sovereign control over the territory.
From the early 1800’s into the 1970’s, the United States largely accepted, or was indifferent to, New York’s governance of the land in question and the validity vel non of the Oneidas’ sales to the State. Moreover, the properties here involved have greatly increased in value since the Oneidas sold them 200 years ago. The longstanding assumption of jurisdiction by the State over an area that is predominantly non-Indian in population and land use creates ‘justifiable expectations’: eg, Rosebud Sioux Tribe v Kneip, [1977] USSC 52; 430 US 584, 604–605.
Similar justifiable expectations, grounded in two centuries of New York’s exercise of regulatory jurisdiction, until recently uncontested by OIN, merit heavy weight here. The wrongs of which OIN complains occurred during the early years of the Republic, whereas, for the past two centuries, New York and its local units have continuously governed the territory. The Oneidas did not seek to regain possession of their aboriginal lands by court decree until the 1970’s. And not until the 1990’s did OIN acquire the properties in question and assert its unification theory to ground its demand for exemption of the parcels from local taxation. This long lapse of time, during which the Oneidas did not seek to revive their sovereign control through equitable relief in court, and the attendant dramatic changes in the character of the properties, preclude OIN from gaining the disruptive remedy it now seeks: pp. 12–16.
2. The distance from 1805 to the present day, the Oneidas’ long delay in seeking equitable relief against New York or its local units, and developments in 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. This Court has long recognized that the passage of time can preclude relief. For example, the doctrine of laches focuses on one side’s inaction and the other’s legitimate reliance to bar long-dormant claims for equitable relief: see, eg, Badger v Badger[1864] USSC 9; , 2 Wall 87, 94. Moreover, long acquiescence may have controlling effect on the exercise of States’ dominion and sovereignty over territory: eg, Ohio v Kentucky[1973] USSC 54; , 410 US 641, 651. This Court’s original-jurisdiction state-sovereignty cases do not dictate a result here, but they provide a helpful point of reference: When a party belatedly asserts a right to present and future sovereign control over territory, longstanding observances and settled expectations are prime considerations.
It has been two centuries since the Oneidas last exercised regulatory control over the properties here or held them free from local taxation. Parcel-by-parcel revival of their sovereign status, given the extraordinary passage of time, would dishonor ‘the historic wisdom in the value of repose’: Oneida II, 470 US, at 262. Finally, this Court has recognized the impracticability of returning to Indian control land that generations earlier passed into numerous private hands: see, eg, Yankton Sioux Tribe v United States[1926] USSC 199; , 272 US 351, 357. The unilateral reestablishment of present and future Indian sovereign control, even over land purchased at the market price, would have disruptive practical consequences similar to those that led the Yankton Sioux Court to initiate the impossibility doctrine: Sherrill and the surrounding area are today overwhelmingly populated by non-Indians, and a checkerboard of state and tribal jurisdiction – created unilaterally at OIN’s behest – would ‘seriously burde[n] the administration of state and local governments’ and would adversely affect landowners neighboring the tribal patches: Hagen v Utah, 510 US 399, 421.
If OIN may unilaterally reassert sovereign control and remove these parcels from the local tax rolls, little would prevent it from initiating a new generation of litigation to free the parcels from local zoning or other regulatory controls that protect all landowners in the area: see Felix, 145 US, at 335. Recognizing these practical concerns, Congress has provided, in 25 USC §465, a mechanism for the acquisition of lands for tribal communities that takes account of the interests of others with stakes in the area’s governance and well being. Section 465 provides the proper avenue for OIN to reestablish sovereign authority over territory last held by the Oneidas 200 years ago: pp 16–21.
3. The question of damages for the Tribe’s ancient dispossession, resolved in Oneida II, is not at issue here, and the Court leaves undisturbed its Oneida II holding: p 21.
This case involves an Indian tribe’s claim to tax immunity on its own property located within its reservation. It does not implicate the tribe’s immunity from other forms of state jurisdiction, nor does it concern the tribe’s regulatory authority over property owned by non-Indians within the reservation.
For the purposes of its decision the Court assumes that the District Court and the Court of Appeals correctly resolved the major issues of fact and law that the parties debated in those courts and that the City of Sherrill (‘City’) presented to us in its petition for certiorari. Thus, we accept those courts’ conclusions that the Oneida Indian Nation of New York (‘Tribe’) is a federally recognized Indian Tribe; that it is the successor-in-interest to the original Oneida Nation; that in 1788 the Treaty of Fort Schuyler created a 300 000 acre reservation for the Oneida; that in 1794 the Treaty of Canandaigua established that tract as a federally protected reservation; and that the reservation was not disestablished or diminished by the Treaty of Buffalo Creek in 1838. It is undisputed that the City seeks to collect property taxes on parcels of land that are owned by the Tribe and located within the historic boundaries of its reservation.
Since the outset of this litigation it has been common ground that if the Tribe’s properties are ‘Indian Country’, the City has no jurisdiction to tax them without express congressional consent.[1] For the reasons set forth at length in the opinions of the District Court and the Court of Appeals, it is abundantly clear that all of the land owned by the Tribe within the boundaries of its reservation qualifies as Indian country. Without questioning the accuracy of that conclusion, the Court today nevertheless decides that the fact that most of the reservation has been occupied and governed by non-Indians for a long period of time precludes the Tribe ‘from rekindling embers of sovereignty that long ago grew cold’ ... This is a novel holding, and in my judgment even more unwise than the Court’s holding in County of Oneida v Oneida Indian Nation of NY, [1985] USSC 97; 470 US 226 (1985), that the Tribe may recover damages for the alleged illegal conveyance of its lands that occurred in 1795. In that case, I argued that the ‘remedy for the ancient wrong established at trial should be provided by Congress, not by judges seeking to rewrite history at this late date’: at 270 (opinion dissenting in part). In the present case, the Tribe is not attempting to collect damages or eject landowners as a remedy for a wrong that occurred centuries ago; rather, it is invoking an ancient immunity against a city’s present-day attempts to tax its reservation lands.
Without the benefit of relevant briefing from the parties, the Court has ventured into legal territory that belongs to Congress. Its decision today is at war with at least two bedrock principles of Indian law. First, only Congress has the power to diminish or disestablish a tribe’s reservation.[2] Second, as a core incident of tribal sovereignty, a tribe enjoys immunity from state and local taxation of its reservation lands, until that immunity is explicitly revoked by Congress.[3] Far from revoking this immunity, Congress has specifically reconfirmed it with respect to the reservation lands of the New York Indians.[4] Ignoring these principles, the Court has done what only Congress may do – it has effectively proclaimed a diminishment of the Tribe’s reservation and an abrogation of its elemental right to tax immunity. Under our precedents, whether it is wise policy to honor the Tribe’s tax immunity is a question for Congress, not this Court, to decide.
As a justification for its lawmaking decision, the Court relies heavily on the fact that the Tribe is seeking equitable relief in the form of an injunction. The distinction between law and equity is unpersuasive because the outcome of the case turns on a narrow legal issue that could just as easily, if not most naturally, be raised by a tribe as a defense against a state collection proceeding. In fact, that scenario actually occurred in this case: the City brought an eviction proceeding against the Tribe based on its refusal to pay property taxes; that proceeding was removed to federal court and consolidated with the present action; the District Court granted summary judgment for the Tribe; and the Court of Appeals affirmed on the basis of tribal tax immunity.[5] Either this defensive use of tax immunity should still be available to the Tribe on remand, but see ante, at 14, n 7, or the Court’s reliance on the distinctions between law and equity and between substantive rights and remedies, see ante, at 13, is indefensible.
In any event, as a matter of equity I believe that the ‘principle that the passage of time can preclude relief’: ante, at 16, should be applied sensibly and with an even hand. It seems perverse to hold that the reliance interests of non-Indian New Yorkers that are predicated on almost two centuries of inaction by the Tribe do not foreclose the Tribe’s enforcement of judicially created damages remedies for ancient wrongs, but do somehow mandate a forfeiture of a tribal immunity that has been consistently and uniformly protected throughout our history. In this case, the Tribe reacquired reservation land in a peaceful and lawful manner that fully respected the interests of innocent landowners – it purchased the land on the open market. To now deny the Tribe its right to tax immunity – at once the most fundamental of tribal rights and the least disruptive to other sovereigns – is not only inequitable, but also irreconcilable with the principle that only Congress may abrogate or extinguish tribal sovereignty. I would not decide this case on the basis of speculation about what may happen in future litigation over other regulatory issues.[6] For the answer to the question whether the City may require the Tribe to pay taxes on its own property within its own reservation is pellucidly clear. Under settled law, it may not.
Accordingly, I respectfully dissent.
[1] The District Court noted that ‘[n]o argument is made that should a finding be made that the properties in question are Indian Country, they are nonetheless taxable’: 145 F Supp 2d 226, 241, n 7 (NDNY 2001).
[2] See South Dakota v Yankton Sioux Tribe, [1998] USSC 10; 522 US 329, 343 (1998) (‘Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights. Accordingly, only Congress can alter the terms of an Indian treaty by diminishing a reservation, and its intent to do so must be “clear and plain”’ (citations omitted)); Solem v Bartlett, [1984] USSC 37; 465 US 463, 470 (1984) (‘Once a block of land is set aside for an Indian reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise’).
[3] See Montana v Blackfeet Tribe, [1985] USSC 141; 471 US 759, 764–765 (1985) (noting that the Court has ‘never wavered’ from the view that a State’s attempt to tax Indian reservation land is illegal and inconsistent with Indian title) (citing The Kansas Indians[1866] USSC 54; , 5 Wall 737 (1867), and The New York Indians[1866] USSC 72; , 5 Wall 761 (1867)); Cass County v Leech Lake Band of Chippewa Indians, 524 US 103, 110 (1998) (‘We have consistently declined to find that Congress has authorized such taxation unless it has “made its intention to do so unmistakably clear”’).
[4] In providing New York state courts with jurisdiction over civil actions between Indians, Congress emphasized that the statute was not to be ‘construed as subjecting the lands within any Indian reservation in the State of New York to taxation for State or local purposes’: 25 USC §233. See Oneida Indian Nation of NY v County of Oneida[1974] USSC 15; , 414 US 661, 680–681, n 15 (1974) (‘The text and history of the new legislation are replete with indications that congressional consent is necessary to validate the exercise of state power over tribal Indians and, most significantly, that New York cannot unilaterally deprive Indians of their tribal lands or authorize such deprivations. The civil jurisdiction law, to make assurance doubly sure, contains a proviso that explicitly exempts reservations from state and local taxation ... Moreover, both federal and state officials agreed that the bills would retain ultimate federal power over the Indians and that federal guardianship, particularly with respect to property rights, would continue’ (quoting Gunther, Governmental Power and New York Indian Lands – A Reassessment of a Persistent Problem of Federal-State Relations, 8 Buffalo L Rev 1, 16 (1958))).
[5] See [2003] USCA2 279; 337 F 3d 139, 167 (CA2 2003). Additionally, to the extent that we are dealing with genuine equitable defenses, these defenses are subject to waiver. Here, the City sought to add the defense of laches to its answer; the District Court refused on the ground of futility: 145 F Supp 2d, at 259; the Court of Appeals upheld this determination: 337 F 3d, at 168–169; and the City failed to preserve this point in its petition for certiorari or brief on the merits. The City similarly failed to preserve its impossibility defense in its submissions to this Court, and there is no indication that the City ever raised an acquiescence defense in the proceedings below.
[6] It is not necessary to engage in any speculation to recognize that the majority’s fear of opening a Pandora’s box of tribal powers is greatly exaggerated. Given the State’s strong interest in zoning its land without exception for a small number of Indian-held properties arranged in checkerboard fashion, the balance of interests obviously supports the retention of state jurisdiction in this sphere. See California
v Cabazon Band of Mission Indians[1987] USSC 25; , 480 US 202, 215 (1987) (‘[I]n exceptional circumstances a State may assert jurisdiction over the on-reservation activities of tribal members’). Nor, as the Tribe acknowledges: Brief for Respondents 19, n 4, could it credibly assert the right to tax or exercise other regulatory authority over reservation land owned by non-Indians. See Atkinson Trading Co v Shirley, [2001] USSC 35; 532 US 645 (2001); Strate v A-1 Contractors, [1997] USSC 32; 520 US 438, 456 (1997) (denying tribal jurisdiction in part because the Tribe could not ‘assert a landowner’s right to occupy and exclude’ over the land in question); see also Brendale v Confederated Tribes and Bands of Yakima Nation, 492 US 408, 444–445 (1989) (opinion of Stevens J) (‘Because the Tribe no longer has the power to exclude nonmembers from a large portion of this area, it also lacks the power to define the essential character of the territory [through zoning]’).
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