UNIT ED S TAT ES COU RT OF A PP EALS F OR THE S ECOND C IRCU IT

__________________ August Term, 2001 (Argued: May

13, 2002 Decided: July 21, 2003)

Docket Nos. 01-7795, 01-7797

__________________ O NEIDA I

NDIAN N ATION OF N EW Y ORK ,

Plaintiff-Counter-Defendant-Appellee, RAY H ALBRI TTER , K ELLER G EORGE , C HUCK F OUGNIER , M ARIL YN J OHN , C LI NT H ILL , D ALE R OOD , D ICK L YNCH , K EN P HILL IPS , B EULAH G REEN , R UTH B URR , B RIAN P ATTERSON , and I VA R ODGERS , Consolidate d-Defen dants-App ellees, — v.— C ITY OF S HERRILL , N EW Y ORK ,

Defenda nt-Counte

r-Claiman t-Appell

ant, M ADIS ON C OUNTY , Amicus Curiae-Appellant , O NEIDA C OUNTY , Amicus Curiae , S TAT E OF N EW Y ORK , Amicus Curiae

.

__________________ B e f o r e :

VANGRAAF EIL AND , M ESKILL , and B. D. P ARKER , J R
. , Circuit Judges

.__________________

The City of Sherrill and Madison County appeal from a judgment of the United States District Court for the Northern District of New York (David N. H urd, Judge ) establishing that propert y ow ned by the Oneid

a Indian Nati on of New

York in She

rrill and Madison is

within India n country and, con sequentl

y, i s exempt fr

om local ta

xes. We aff

irm with re spect to Sh errill and vacate with respect to Madison. Judge Van Graafeiland dissents in part in a separa te opinion.

__________________ I RA S. S ACKS , Fried, Frank Harris, Shriver & Jacobsen New York, NY, for Defendant-Counter-Claimant-Appellant

. M ICHAEL R. S MITH , Zuckerman Spaeder, L LP, Washington, DC (William W. Taylor, I

II , David A. Reiser, of counsel), for Plaintif f-Counter

Defendant-Appellee and Consolidated-Defendants-Appellees

. G. R OBER T W ITMER , J R ., Nixon Peabo dy L LP, Roc hester, NY (David M. Shraver, of counsel), for Amici C uriae-Ap pellants M

adison Coun ty and Oneid

a County

. ANDREW D. B ING , Ass ista nt So lic itor

Gen era l, A lba ny , NY (Ca itli n J. Halligan, Daniel Smirlock, Peter H. Schiff, of counsel, for Eliot Spitzer, Attorney Genera

l of the State of New York), for Amicus Curiae Stat

e of New York

.

__________________

B. D. P ARKER , J R ., Circuit Judge : This case, consisting of four actions, addresses whe ther properties reacquired by the Oneida I ndian Na tion of Ne

w York (“ OIN ” or “the

Oneidas ”) are

subject to

taxation by

the City1 Despite o ur use of the “OI N” acr ony m, the One ida I

ndian Na tion of Ne

w York sho

uld not be confused with the original Oneida I ndian Nation, which is not a federally recognized tribe and is not a party to these c onsolidated cases. As discussed infra , the original Oneida I ndian Nation be came divided into th ree disti nct bands , the New

York One idas, the

Wisconsin O neidas, an d t he Ca na di an On ei da s, by t he mi dd le of th e n in et ee nt h c en tu ry.

2 Located in Oneida County , Sherrill is the State’s smallest city, occupying one-and-onehalf square miles with a population of approximately 3000 and an annual budget of $2.4 million. of Sherrill, New York and Madison County , New York. The OI N is a federally

recognized India n tribe, g overned

by a Nation Re

present ative an d a Triba l Council. 1 The Oneidas lived on what bec ame cen

tral New York State

long be fore the

founding of the Un

ited State s. In

the late eighteenth century

most of the Oneidas’ ancestral land was formally set aside by Cong

ress as reservation land. During the nineteenth ce ntury much of it was sold to non-members of the tribe. But star ting in th e 1990s me

mbers of the tribe reacqu ired par cels in op en-mar

ket tran sactions , and in 199 7 and 1998 the purchases inc luded sev eral bus inesses a nd prope rties in She

rrill. 2 These properties include two upon which the Oneidas opera te a gasoline station, a convenience store, and a textile manufacturing and distribution facility (the “Sherrill Properties” or the “properties”). Contending that these proper ties are within their reservation and are, consequently, not subject to taxation, the Oneidas re fused to pay the pr operty taxes or to collect sales taxes on merchandise sold at the businesses. Following this refusal, Sherrill purchased three of the properties at tax sales and, two years la ter, recorded deeds. Sherrill also started for mal eviction proceedings. I n response, the Oneidas sued Sherrill in the United States District Court for the Northern District of New Yor k (the “Lead c ase”), contending that the land, as par t of their historic reservation recognized principally by

the 1794 Treaty

of Canandaigua, is exempt from state and municipal taxation. The3 It ap pears th at the She

rrill Prop erties w ere tra

nsferr ed to an in

dividual O IN me

mber in 1805 and b y th at member to a non-I

ndian in 18 07, and we

re ther eafter owned by

severa l private parties until their reacquisition. suit sought declaratory

and injunctive relief prohibiting the evictions and the imposition of property taxes. Although the Sherrill Properties were purchased from non-One idas, the Oneidas claim that their purchases reestablished the properties a s reservation land because the fede ral government – which alone has the power to do so – ha s never changed the rese rvation status of the land. 3 Sherrill c ounterc laimed, se eking d eclara tory and injunc

tive reli ef and da

mages, asserting that, for a variety of reasons, the land had lost its reservation status and that the OI N has been unjustly enriche d by municipal benefits re ceived, but not paid for, after reacquisition. Sherrill also petitioned the New York State Supreme Court, Oneida County , to order the eviction of the OIN from the pr operties (the “Eviction case”). The OI N, citing federal preemption, removed to federal court, contending that sovereign immunity ba rred Sherrill’s claims. In response to this defense, Sher rill filed an action against the individual members of the Tribal Council (the “Members case”). Sherrill ag ain sought eviction and also sought injunctive

re li ef , f or bi dd in g c ou nc il me mb er s f ro m p ur ch as in g a dd it io na l p ro pe rt ie s i n t he ci ty. These three cases were r

elated to an additional action (the “Related case” ), brought by the OIN agains t Madison Co

unty , conce

rning th irteen p arcels

of land a lso purch ased by

the OI N in the 1990s. As in the Lead case , the Oneidas sought declaratory relief that these properties are not subject to taxation, c ontending

that, notw

ithstandin g inter vening non-I ndian poss ession, th ese properties have remained reserva tion land. Procedural strife followed. I n the Lead case , Sherrill moved for summary judg ment, forinjunctive relief, and to amend its answer to add various affir mative defenses. The OI

N opposed the motions and cross-moved for summary judgment in the Lead and E viction cases, asserting principally that the par

cels in question were non-taxable because they were located on reservation land in Indian country

. See 18 U.S.C. § 1151. In the Members

case, th e OI

N office rs moved t

o stay or, in the alterna

tive, to dismiss principally on grounds of sover eign immunity and the fa ilure to name the OIN as a pa

rty. Madison moved to dismiss the Related case f or failure to join two allegedly indispensable parties: the Wisconsin and Thames Oneidas. I n November 2000, the State of New York, Madison and Oneida Counties, and a public company , Oneida Ltd., filed briefs a s amici curiae in the Lead case in support of Sher rill’s motion for summary judgment a nd in opposition to the OIN’s cross-motion. After th e dust set

tled, the District C ourt issue d a well- reasone d opinion r esolving these various motions. Oneida v . City of Sherr ill , 145 F. Supp. 2d 226 (N.D.N.Y. 2001) (“ Oneida IV ”). It considered a

number of issues but devoted a good deal of attention to what the pa rties consider ed – and w

hat we a gree – to be the b asic que stion pose d: whethe r the pro perties a re in Indian country

. One id a IV , 145 F. Supp. 2d at 241. The court concluded that, for a number of

reasons , they

are. Th e proper

ties are part of the Oneida s’ abori ginal la nds and fe derally
recog nized res ervatio n. The re servatio n’s status was gua rantee d by

treaty obligat ions – principally in the 1794 Trea ty of Canandaig

ua – and Sherrill did not carry its burden of demonstrating congressional action disestablishing the reservation. Accordingly , the District Court concluded that, as they are in Indian country

, neither the Sherrill nor Madison Properties are taxable by Sher

rill and Madison County, and gr anted the OIN judg

ment on its claims in the4 Sherrill appeals from the three separate judg ments entered by

the District Court on June 4, 2001, in the Lead, Eviction and Members Case , considered under docket number 01-7795. Madison appeals from the District Court’s entry of judgment in the Related case, as well as the court’s order deny

ing its motion to dismiss, considered under docket number 01-7797. On appea l, Madison , Oneida

County , and the S tate of N ew York have app eared a s amici curiae on the Lead, Eviction, and Members cases. They will be referred to collectively as the

“ amici .” Lead case. Id. at 254-259. Determining that the OI

N was entitled to sovereign immunity , the court also granted judgmen t on Sherr ill’s coun terclai ms in the L ead cas e and de nied Sher rill leav e to amen

d its complaint. Id. at 258-59 . The cou rt gra nted the O IN ju

dgment i n the Evic tion case

as well, concludi ng that i t was enti tled to sov ereig

n immunity . It a

lso gra nted the c ouncil me

mbers’ moti on to dism iss i n the M embers case, c onclu ding t hat th ey too were entit led to sover eign immunity and that, in any event, Sherrill had failed to join the OIN, w hich the court found to be an indispe

nsable pa rty . Finally

, the cour t sua sponte

granted the OIN j udgmen t on t he ple adings in the Related case, concluding that its findings with respec t to the Sherrill Properties applied also to those located in Madison. Separat ely , the cour

t denied M adison Cou

nty ’s motion to dismiss that case. Oneida I ndian Na tion of N.Y . v. Madison County , 145 F. Supp. 2d 268, 270- 71 (N.D.N.Y. 2001). Sherrill and Madison appealed. 4 We agree with the District Court’s principal conclusion that the OIN’s Sher rill Properties are not taxable, and therefore aff irm the judgment in the Lead, Eviction, and Me mbers cases. Because we find, however, that the court’s sua sponte

grant of judgment on the pleading s in the Related case was procedurally improper, we

vacate this judg ment and r

emand fo r furthe

r proce edings.BACKGROUND

I. Treatie s Gover ning Rights t o the OIN’ s Land Since the land in question has been the subject of federal litiga tion off and on for more that one hundred and fifty years, be fore looking at the controlling lega l issues, we briefly r

eview how we re ached th

is point in ti

me. As pre

viously noted, the

parties c ontest whe

ther land first occupied by the

Oneidas in upstate New York before the founding of this country is, upon reacquisition by the One idas, subject to taxation by New York State and its municipalities. The Oneidas are the direct desce ndants of members of the original Oneida I ndian Nation, one of the six nations of

the I roquois Co nfeder

acy (the “Six Na

tions”), which we

re the mo st powerful Indian tribes in the northe astern United States at the time of the American Revolution. County of Oneida, N.Y. v. Oneida Indian Nation of N.Y., 470 U.S. 226, 230 (1985) (“ One id a II ”) (citing B. Gray

mont, The Iroquois in the American Re volution (1972)). The Six Nations are the Cayuga s, Mohawks, Oneidas, Onondagas, Senecas, a nd Tuscaroras. New York Indians , 170 U.S. 1, 36 (1898) (“ New Yor k Ind ian s II ”). From time immemorial through the Revolutionary period, the Oneidas inhabited what is now central New York State. The ir aboriginal lands covered approximately six million acres, from the Pennsy lvania border to the St. Lawre nce River, and from the shores of Lake

Ontario to the western foothills of the Adirondack Mountains. Oneida II , 470 U.S. at 230.

A. Nonintercourse Act and Canandaigua Treaty With the adoption of the Constitution, Indian relations came exclusively under federalauthority. See One id a II , 470 U.S. a t 234; Oneida Indian Nation of N.Y . v. New York ,194 F. Supp. 2d 104, 146 (N.D.N.Y. 2002) ( Oneida II Ib) (“[A]ny rights [in I

ndian land] possessed by the State prior to ratification of the Constitution were ceded by the State to the federal government by

the State’s ratification of the Constitution.”). Article I, section 8, clause 3 of the Constitution , the I

ndian Comme

rce Clau se, esta

blished Con

gress’ s power “ [t]o regul ate Commerce

with fore ign Nat

ions, and a

mong the severa l States, a nd with the

India n Tribes. ” U.S. Const., art. I, § 8, cl. 3. In 17 90, Cong

ress pas sed the f

irst I ndian Tra de and I ntercou rse Act ( the “Non interco urse Act”), 1 Stat. 137, sharply limiting th e aliena

bility of In dian land . In e ssence, the Nonin tercourse Act requ ired fe deral c onsent fo r all land purchas es from I

ndian nat ions. The 1793 amen

dments to the Act , which c ontain the langua ge cur rently in effe ct, provi ded: No purch ase, g

rant, le ase, or o ther con

vey ance of lands, or of any title or c laim thereto, from any

Indian nation or tribe of I ndians, shall be of any va lidity in law or equity, unless the same be made by trea

ty or convention enter

ed into pursuant to the Constitution. Act of Ma

rch 1, 17 93, 1 Stat. 3 29 (1793)(codifie d at 25 U.S. C. § 177 (20 00)); see ge nerally Mohegan Tribe v. Connecticut , 638 F.2d 612, 616-18 (2d Cir. 1980) (discussing history of and amendments to Nonintercourse Act). The Supreme Court has consistently a pplied the principle, embodied in the Nonintercourse Act, that federal conse nt is required for purchases of I ndian land or for the termination of aboriginal title. See, e .g. , One id a II , 470 U.S. a t 232; United St ates v. Sant a Fe Pacific R. Co. , 314 U.S. 339, 345 (1941) (“Unquestionably it has been the policy of

the Federal Government from the beginning to respe ct the Indian right of oc cupancy , which could only be5 Prior to 1794, the Oneidas ceded substantial portions of their aboriginal lands to New

York State. In 1785, by

the Treaty

of Fort Herkimer, the Oneidas cede d approximately 300,000 acres to New York State. Oneida Indian Nation of N.Y . v. New York , 860 F.2d 1145, 1148 (2d Cir. 1988) . In 1788, by

the Treaty

of Fort Schuyle

r, the Oneidas ceded approximately 5 million more acres to the State and retained 300,000 ac res as a reservation. One id a II , 470 U.S. at 231, One id a IIIb , 194 F. Supp. 2d at 112 . The Sherrill Properties and, it appears, the Madison properties, were part of the territory reserved to the Oneidas. One id a IV , 145 F. Supp. 2d at 234. interfered with or determined by the United States.”) (citing, among other a uthorities , Johnson v. McIn tosh , 8 Wheat. 543 (1823) (refusing to recog nize land titles originating in grants by Indians to private parties i n 1773 and

1775 bec ause the

y w ere con

trary to princip le that I

ndian title

could only be extinguished by

or with consent of federal gover nment)). The absence of feder al consent is the Oneidas’ central argument in this litigation. Another pivotal enactment was the 1794 Treaty of Canandaigua, 7 Stat. 44 (Nov. 11, 1794). Th

is treaty recog nized that t

he Oneid a reser vation co vered a

pproximate ly 3 00,000 ac

res, 5 and the federal government unde rtook that it “[would] never claim [this land], nor disturb [the Oneidas ] . . . in the f

ree use and enjoy

ment ther eof: but th e said re servations shall re main theirs, until they choose to

sell the sa

me to the p eople of

the Unite d States, w

ho have th e right

to purchase.” 7 Stat. 45. On the strength of this treaty , which remains in force, the Oneidas contend that the land in Madison and Sherrill is reservation land in I ndian country and, upon reacquisition, must be treated as such.

B. Indian Removal and the Treaty of Buffalo Creek Notwithstanding the Nonintercourse Act’s prohibition on purchases of I ndian land, and6 Colonel Timothy Pickering, the United States Sec retary of War following the Treaty of Canandaigua, upon the recommendation of the United States A ttorney Gene

ral, ordered the Superintendent of the Affairs of the Six Nations not to aid New York in any purchases of Indian land and forwarded to New York Gove rnor George Clinton a copy of the Attorney G eneral’s opinion tha

t title to the

Six Nations’ land coul d be exting uished onl

y by a treaty entere d into under authority of the

United States. See Seneca Nation of India ns v. New York , 206 F. Supp. 2d 448, 494 (W.D.N.Y. 2002). de sp it e f ed er al go ve rn me nt ad vi ce to th e c on tr ar y, 6 New York State repeatedly purchased Indian land withi

n its borde

rs. I n a 1795 tr

ansacti on, for in stance, the OI N convey ed virtua lly a ll of its remaining land to New York in exchange for annual cash pay

ments. One id a II , 470 U.S. at 232. Overall, more than thirty

treaties of purchase were made with various segments of the tribe during the late eighteenth and ea rly nineteenth ce

nturies. See Jack Campisi, Oneida , in15 Handbook of North American I ndians 484 (Bruce G. Trigg er ed., 1978) (hereinafter “ Campisi”). The Madison properties purportedly were convey

ed to the State in this manner. As Oneida lands

were tr ansfer red to the State, the y w ere sur

vey ed and la id out in tow

nships, wh

ich even tually

were su bdivided a

nd sold to pr

ivate pa rties. Individual Oneidas also sold land to private parties. The Sherrill Properties fall into this group of convey ances. The Oneidas contend that to the extent any of the purcha ses lacked congressional approva l, they violated the Noninterc ourse Act and the Treaty

of Canandaigua. Early in the ninetee

nth century, fe deral policy c oncerning eastern I ndians changed from maintenance of their right of occupa ncy in ance stral lands to their removal west of the Mississippi River. This change was spurred bythe states’ desire to control the remaining unceded Indian land within their bounda ries, by the incursion of se ttlers onto treaty-prote cted Indian land, and by the pe

rceived inability of the

Indians to assimilate. See David H. Getches et al.,7 Ogden Land Company , which held preemption rights to India n lands in New York State, wished to free the remaining rese rvation land in the State from Indian title. Eleazar Williams, an Epis copal lay reader a nd cat echis t who h ad mov ed to t he Onei da rese rvati on, pe rsuad ed a lar ge group of Oneidas and members of other tr ibes to emigrate and assisted in making the arrangements for their re

moval with the Wisconsin tribes. Francis Paul Prucha, American Indian Treaties 96, 202 (1997) (hereinafter “Prucha” ); Campisi at 485. Williams’ motive, however, differe d from tha

t of the Sta

te and Og den; he so

ught the “establ ishment of

an I roquois ecclesiastical empire with himself as its leader . . . rese ttled in the vastness of Wisconsin.” Campisi at 485.

8 The purchase was made on behalf of the Six Nations (excluding the Mohawks, who had withdraw n to Canad

a) and th e St. Reg is, Stockbr idge, a nd Munsee

tribes. T he terms o f this purchase and another made in 1822 were memorialized in a treaty be tween the federal gover nment and

the Menom

inee in 18 31, to whic

h the New

York I ndians g ave thei

r assent in 1832. See New Yor k Ind ian s II , 170 U.S. a t 14; Trea ty o f Buffa

lo Creek, 7 Stat. 550, Preamble (1838) (proclaimed April 4, 1840). Cases and Materials on Federal I ndian Law 93-95 (4 th ed. 199 4) (her einafte r “Getc hes”); F elix S. Cohen, Handbook of Federal I ndian Law

53-54 (1942) (hereinafter “Cohen” ). Removal was deemed necessary

to “mak[e] available for white settlement a vast area and solving the problem of conflict of authority

caused by a

presence of I

ndian nations within state boundaries.” Cohen at 53. Betwee

n 1810 and

1816, the Six Nations, f

acing p ressure from New

York State

to

remove, 7 purchased approximately 500,000 a cres in Wisconsin from the Menominee and Winnebag o tribes. 8 New Yor k Ind ian s II , 170 U.S. at 11-14

. Several hundred Oneidas moved there during the 1820s, with only a small number remaining in New York. Id. at 14, 36; United States v. Boylan , 265 F. 165, 167 (2d Cir. 1920); Campisi at 485. Those who staye d “held a single and undivided tract reserved out of the or iginal Oneida reservation.” Boylan , 265 F. at 167. In 1830, Congress passed the Indian Removal Act, which ref lected this shift in federal9 The impetus for the Removal Act was a conflict between G eorgia and its Cherokee

Indian inhabitants. Georg ia, desiring complete jurisdiction over the lands within its territory , had signed a compact with the federal g overnment in 1802 by which the sta te relinquished its western lands (which ultimately bec ame the states of Mississippi and Alabama) in return for a promise by the United States to extinguish Cherokee Indian title to Georg ia lands “as early

as the same can be peaceably

obtained on reasonable terms.” Prucha at 156. When the fe deral government failed to live up to its part of the bargain, Georgia itself de nied the Indians’ title and jurisdiction over the lands in question and considered the treaties it had signed with the I ndians – which recognized India

n title and political autonomy – invalid. Id. at 157. Th ese act ions led to significant objections by

the northern states. After heated debate s in Congress concerning I ndian rights, in particular the relative sanctity of their treaty -making power, the I ndian Removal Act was passed, and the Cherokees’ removal fr om Georgia was complete by 1838. Id. at 161-65. policy and allow ed I

ndians to e

xchange their ea stern lan

ds for la nds set as ide in the

west. 9 See Act of May 28, 1830, 4 Stat. 411. The Act provided: That it sha

ll and may

be lawfu l for the P residen

t of the Un

ited State s to cause

so much of a ny t erritor y be longing

to the Unit

ed States , west of t

he river Mississippi , not included in any state or or ganized territory , and to which the Indian title has been extin

guished , as he ma

y ju dge ne cessar

y, t o be divide d into a sui

table number of districts, for the reception of such tribes or nations of I ndians as may choose to exchange the lands where they now reside, and remove there . . . . Ch. 148, 4 Stat. at 411-12 The 1838 Treaty

of Buffalo Creek, 7 Stat. 550 (Jan. 15, 1838), was enacted pursuant to this removal policy. Prucha a t 202. Stimulated by the desire of B uffalo city lea ders to “make room for the expansion of the city onto adja cent Seneca reservation lands,” Ne w York began a “full-scale drive . . . to eliminate the I ndians from the state and move them to lands west of Missouri.” Id. Under the Treaty , the Six Nations and the St. Regis Indians agree d to remove from thei r New Yo rk and Wisc onsin res ervatio n lands to a pproximate ly 1 .8 million a cres in Kansas, which had been set aside as I ndian territory. The

Treaty pr ovided that the new reservation lands were to provide “a pe rmanent home for all the New York I ndians, now residingin the State of New York, or in Wisconsin, or elsewhere in the United States, who have no

permanent homes.” Buffalo Creek Tr eaty, ar t. 2. The Treaty

authorized a payment of

$400,000 to cover the costs of removal. As discussed below, Sherrill and Madison claim that it effe cted the dises tablishme

nt of the O neidas’ reserv ation and the forma

l relinqui shment, wi

th congressional approval, of their possessory claim to the lands at issue. The first eight articles and Article 15 of the Tr eaty set for

th this basic bargain. Id. , arts. 1- 8, 15. Articles 9 through 14 reflect specific a greements between the g overnment and individual tribes. Id. , arts. 9-14. In Article 10, for example, the Senecas agreed to remove within five years to land in eastern Kansas, and the governme nt approved the sale of their remaining Ne w York land to two individuals, Thomas L. Ogden of the Og den Land Company

and Joseph Fellows. Id. , art. 10; see New York Indians , 72 U.S. (5 Wall.) 761, 767 (1867) (“ New Yor k Ind ians I ”). The Tuscaroras made a similar removal commitment in Article 14, which also c onfirmed the sale of their New York land to Ogden and F ellows. Buffalo Creek Treaty , art. 14. At the time of the Treaty , only approximately 5000 of the original 300,000 acres of Oneida r eserva tion land r

emained in their ha

nds, the r est havin g been sold to New

York or to private parties. Around 620 Oneidas still resided in New York. B uffalo Creek Treaty , Sch. A, Add. 29. Article 13 of the Treaty provided for the removal of these Oneidas, but only upon certain condition s: The Unite d States wi ll pay the sum of

four thou sand dolla

rs, to be p aid to Ba

ptista Powlis, and the chiefs of the first Christian party residing at Oneida, and the sum of two thousand dollars shall be paid to William Day, and the c hiefs in securing the Gree n Bay country , and the s ettlemen

t of a por tion there of; and they her eby agree to remove to their new homes in the I ndian territory, a s soon as they can make satisfactory

arrangements with the Government of the State of New York for the purchase of their lands at Oneida

.Buffalo Creek Treaty , art. 13 (emphasis added). The whole sale re

moval of th e New Yo rk In dians to Ka

nsas cont emplated by t he Trea ty never occurred. See New Yor k Ind ian s II , 170 U.S. a t 26-27 (n oting tha t provision

was only made for the “actual removal of more tha n about 260 individuals of the claimant tribes,” and that none of th e thirty

two I ndians who actual ly r

eceive d Kansas

allotment s ever se

ttled per manently there). For thei

r part, th e Oneida s residing in New Yo rk and Wisc onsin ref used to re locate to Kansas. See New Yor k Ind ian s II , 170 U.S. at 9-10. Hundreds of New York Oneidas moved instead to Wisconsin and to Ontario, Canada. By 1848 only approximately 200 Oneidas resided in New Yo rk. Campis i at 485. Th us, by the middle

of the nin eteenth century, thre e distinct bands of the tribe existed: the New York Oneidas, the Wisconsin Oneidas, and the Canadian (“Thames”) Oneidas. One id a IV , 145 F. Supp. 2d at 235. The record does not reflect any large block sales of reserva tion land to New York State by the Oneidas after 1842, when 1100 acre s were convey ed. But as the exodus of members continued over the next half-century , reservation acreag e inhabited by One idas shrank significantly, by

some accounts to less than 100 acres. See Boylan , 265 F. at 165 (discussing action br ought by federa l gover nment, on b ehalf of

Oneidas , seeking

ejectme nt of def endants from thir ty- two acre s of land, forming part of o rigina

l Oneida r eserva tion); Ann

ual Repor t, Commissione

r of I ndian Af fairs, 1 890, 1893 ( stating

that the O neida re servation contained only approximately 350 acre s in 1890, and approximately 100 acre s in 1893 when the tribe’s New York branch itself numbered less than 200).

II. Land Claim s Involving t he OINLitig ation invo lving the OIN and other New Yor k Ind ians followed the T

reaty of Buff alo Creek. Ogden and Fellows, who held f ee title to Seneca lands under the Treaty , sued New York to void pre-removal tax assessments after the parcels had be en sold to third parties because of the Senecas’ nonpay

ment of state taxes. New Yor k Ind ians I , 72 U.S. at 764-65 . In 1867, the Supreme C ourt held that

the taxatio n of the pa

rcels wa s “prema

ture and illega l” beca use it interfered with the India

ns’ possessory rig

hts guaranteed by

the federal government. “Until the Indians have sold their lands, and re moved from them in pursuance of the treaty stipulations, they are to be regarded a s still in their ancient possession, and are in under their original rig hts, and entitled to the undisturbed enjoyment of them.” Id. at 770. As noted, most of the Six Nations Indians did not remove to Kansas. The federal government disposed of the Wisconsin lands convey ed to it by the I

ndians, appropriated the unoccupied Kansas land and placed it in the public domain for sale to se ttlers. New York Indians II , 170 U.S. at 4, 24. The New York India ns sued, claiming entitlement to the Kansas lands ceded to them under the Treaty, and seeking the value of the land sold and the money the government had agre ed to pay on their r emoval. Id. at 1-2. Eventually the ca se reached the Supreme Court, which held in l898 that the Buff alo Creek Treaty effec ted a pre sent gr

ant of the Kansas la

nds to the I

ndians an d that for feiture of these lands could occur only

through legislative action. Simply opening the land to settlement, as the federal government had done, w as insufficient. Accordingly , the Court concluded that the New York Indians, including the One idas, were entitled to money damages. Id. at 25-36. Litigation involving the Oneidas’ pr oprietary r

ights in their New York reservation lands began in the late

ninetee nth century . In 1 885, some Oneidas c onvey ed rese rvation p arcels

tonon-Indians but continued to live on the land. After the Indian occupants failed to mee t mortgage obligations, the owner brought a foreclosure action and, f ollowing partition, the Indians were ejected. Reaffirming the principles embodied in the Nonintercourse Act, we held the ejectment improper because the orig inal conveya nce lacked the approval of the fede ral government: the “tribe could not sell, nor the individual members, for they have not an undivided interest in the tribal lands, nor alienable interest in any particular tract.” Boylan , 265 F. at 174. We emphasized that “[a] transfer of the allotment to [non-Indians] is not simply a violation of the proprietary

rights of the Indians; it violates the g overnment rights of the United States.” Id. at 173. Many

decade s later, i

n 1970, the

Oneidas sued One ida and Ma

dison Count

ies as a consequence of their occupation of an a pproximately 900-acre tr

act ceded by

the OIN to New York in 1795. The Oneidas claimed that the occupation violated the Noninterc ourse Act and sought to recove r the lan d’s fair rental v alue for

a two-y ear per iod in the 1 960s. The

case reache d the Supre

me Court, w

hich ag ain aff

irmed the Oneidas ’ aborig

inal posse ssory

rights, concluding that the Noninterourse Act and ce rtain treaty oblig ations prohibited termination of these rights without federal approval. See Oneida Indian Nation of N.Y . v. County of Oneida , 414 U.S. 671, 675-78 (“ Oneida I ”) (stating that the Oneidas had asserted “ the not insubstantial claim that federal law now protects, and has continuously protected from the time of the formation of the United States, possessory rights to tribal lands, wholly apa rt from the application of state law principles which normally and separately

protect a valid right of possession”). On remand, the district court found the counties liable to the Oneidas, and we affirmed.10 The damages phase of this case ha s just recently conc luded, more than thirty y ears after the case commenced, with the Oneidas rec eiving approximately $35,000 plus prejudg ment interest from Oneida and Madison Counties. See Oneida Indian Nation of N.Y . v. County of Oneida, N.Y. , 217 F. Supp. 2d 292 (N.D.N.Y. 2002). Oneida Indian Nation of N.Y . v. County of Oneida , 719 F.2d 525 (2d Cir. 1983). Hearing the case for a second time, the Supreme C ourt ag ain aff irmed, ho lding tha

t the Onei das could maintain a

federa l common la

w action b ased on th e countie s’ alleg edly illega l occupa tion of the ir lands and that the Nonintercourse Act did not preempt the tribe’s cla ims. One id a II , 470 U.S. at 236-40. The watershed decisions in Oneida I and One id a II establish ed the OI N’s rig ht to challen ge the d eprivat ion of its hi storic titl e by

the sale s to New Y ork in the late eig hteenth and early ninetee nth centuri es. 10 In 1974, the OI

N and the Wisconsin Oneidas brought a similar suit against Oneida and Madison Counties, but of considerably g reater scope. The Oneidas alleged that betwee n 1795 and 1846, pursuant

to some thir

ty a greements, Ne

w York Sta

te illeg ally

acquire d approxima

tely 250,000 acres of Oneida reserva tion land in violation of the Nonintercourse Act. See Oneida Indian Nation of N.Y. v. County of Oneida, N.Y. , 199 F.R.D. 61, 66 & n.3 (N.D.N.Y. 2000) (“ One id a IIIa ”). The case was inactive during the pendency

of Oneida I

and II . In 1998, the United Sta

tes inter vened a nd joined t

he Oneid as in movin

g to add as defe ndants ap proximatel

y 20,000 private landowners whom the Oneidas claimed were either liable for money

damages or should be ejected. In September 2000, the di stri ct cou rt con clude d, fol lowi ng One id a II , that the Oneidas could sue state entities f or damag es based

on the ille gal occ

upation of

their hist oric reservation land but that ejectment and money damages from the individual landowners was not available, and the court declined to permit their joinder. See One id a IIIa , 199 F.R.D. at 79-94.In 19 78 and 197 9, the One idas also challen ged Ne w York Sta

te’s pur chases o f their aboriginal lands in 1785 and 1788, under the Treaties of F ort Herkimer and Fort Schuy ler, as violations of the Articles of Confederation, the Treaty of Fort Stanwix, and the 1783 Proclamation. We concluded, however, that the State had the rig ht to make such purchases during the confederal period a nd dismissed the action. See Oneida Indian Nation of N.Y . v. New York , 860 F.2d 1145 (2d Cir. 1988). The next major litigation to reach our court was this group of c onsolidated cases where, as we have seen, the District Court grante d summary judgme nt to the OIN, determining that the Sherrill and Madison Properties remained reservation land immune from loca l taxation.

DISCUSSION We revie w the gr ant of a motion to dism

iss or a mot

ion for su mmary judgmen t de novo , drawing all reasonable infere nces in favor of the nonmoving party

. See Chambers v. Time Warner , 282 F.3d

147, 152 ( 2d Cir. 200 2); Young v. County of F ulton , 160 F.3d 899, 902 (2d Cir. 1998) . In reviewing

a dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), we accept as true all material facts alleg ed in the complaint. Chambers , 282 F.3d at 152. “Dismissal is inappropriate unless it appears bey ond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief.” Id. (citatio n and inte rnal quot ation mar ks omitted) . We apply this same standard in reviewing a gr ant of judgment on the pleadings pursuant to Rule 12(c). Burnette v. Carothers , 192 F.3d 52, 56 (2d Cir. 1999). Summary judg ment is appropriate if there are no genuine issues of material fa ct and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).I. Basic Principles

Three basic principles inform the disposition of this action. The first is the I ndians’ right of occup ancy

on tribal l and, or “ India

n country ,” which “may extend fr om gene ration to
gener ation, an d will cea se only

by d issolution o f the trib e, or the ir conse nt to sell to

the part y possessed of the right of pre-emption.” New Yor k Ind ian s I , 72 U.S. at 771. The second, embodied by t he Nonint

ercour se Act, is

federa l preeminence ov er the di sposition o f land in Indian country . Since “Congress alone has the right to say when the [United States’] guardianship over the I

ndians may cea se,” Boylan , 265 F. at 171, the sale or convey ance of reservation land can only be made with congressional sanction, that is, “by treaty or c onvention entered into pursuant to the Constitution.” 25 U.S.C. § 177 (2000). The third is federal preemption, which prohibits states from imposing property taxes upon Indian reservation land without congressional approval. New Yor k Ind ians I , 72 U.S. at 771; see also Merrion v. Jicarilla Apache Tribe , 455 U.S. 130, 137 (1982) (“The power to tax is an essential attribute of Indian sovereig

nty because

it is a necessary

instrument of self-government and territorial
manage ment.”) ; cf. Boylan , 265 F. at 170. There is no mater ial dispute

that the Sh errill Pr

opertie s were p art of the

Oneidas ’ aborig inal land

and the tr

ibe’s re servatio

n as rec ognized by th e Treat y of Cananda igua. Sh errill contends, however, that because the prope rties are no longer within I ndian country and the Oneidas no longer exist as a tribe, they are subject to taxation. We first address these contentions and then t urn to the District C ourt’s pr

ocedura l ruling s.

II. Indian Country11 Althoug h § 1151 is a

criminal statute, i t “gene rally applies a s well to qu

estions of civil jurisdiction.” DeCoteau v. District County Court , 420 U.S. 425, 428 n.2 (1975). It codified the Act of June 25, 1948, 62 Stat. 757, which was passed to correct jurisdictional conflicts arising from allotment policy and the subseque nt restoration of surplus lands to tribal ownership in the Indian Reorga

nization Act. Hagen v. Utah , 510 U.S. 399, 425 (1994) (Blackmun, J., dissenting). Its practical eff

ect “was to designate as I ndian country all lands set a side by whateve r means for the residence of tribal I

ndians under federal protection, togethe r with trust and restricted Indian allotments.” Okla. Tax Comm’n v. Sac & Fox Nation , 508 U.S. 114, 125 (1993) (quotation omitted). In gener al, “Indian country

” refers to the geog

raphic area in which tribal and fede ral laws normally apply

and state laws do not. Section 1151 of Title 18 of the United States Code, defining “Indian coun

try ,” provid

es: The term “Indian countr

y” . . . means ( a) all land within the limits of any I ndian reserv ation unde

r the juri sdiction o f the Unit ed States Governm ent, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all depende nt Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all I ndian allotments, the Indian titles to which have not been extinguished, including rights-of-way

running through the same. 18 U.S.C. § 1151 (2000). 11 Dependent Indian communities enc ompass any “a rea . . . validly se

t apart for the use of the Indians as such, under the supe rintendence of the Government.” Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe , 498 U.S. 505, 511 (1991) . Ind ian allotm ents are

those parcels allocated to tribes, as opposed to those opened to settlers, under federal policies designed to accommodate the westward movement of settlers and to promote the integ ration of Indians into the wider society. See ge nerally Cass County, Minn. v. L eech Lake B and of Chippewa Indians , 524 U.S. 103, 106-07 (1998) (discussing federal allotment policy ). Under § 1151, “[o]nce a reserv ation has

been est ablished , or a dep endent I ndian com

munity shown to e xist, itwill remain Indian country until terminated by Congre ss, irrespective of the nature of the land ownership.” Robert N. Clinton, Criminal Jurisdiction Over Indian La nds: A Journey Through a Jurisd ictio nal Ma

ze , 18 Ariz. L. Rev. 503, 513 (1976). As noted, land in I

ndian cou ntry , includin

g rese rvation la nd, is not su

bject to st ate taxation absent express congressional authorization. “The treaties and laws of the U nited States contemplate the Indian terr itory as completely

separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the g overnment of the union.” Worceste r v. Geor gia , 31 U.S. 51 5, 557 (18 32); see also White Mountain Apache Tribe v. Bracker , 448 U.S. 1 36, 151 (1 980); Montana v. Blackfeet Tribe of I ndians , 471 U.S. 759, 765 (1985) ( “[T]he Cour

t consiste ntly has held t

hat it will f

ind the I ndians’ e xemption fr

om state taxes lifted only when Congre ss has made its intention to do so unmistakably clear.”) ; McClanahan v. Ariz. State Tax Comm’n , 411 U.S. 1 64, 173-8 1 (1973); Mescalero Apache Tribe v. Jones , 411 U.S. 145, 148 (1973). “The pol icy

of leavi ng I ndians fr ee from state jur isdiction a

nd contro l is deeply

rooted in the Nation’s history.” Rice v. Olson , 324 U.S. 786, 789 (1945). It traces fr om the “doctrine of discover y,” the law of

India n land ten ure whic h the Supre

me Court de

veloped i n the ear ly nineteenth century

to reflect European policy toward the Indians and to explain I ndian sovereignty

relative to colonial authority. See Johnson v. Mc Intosh , 21 U.S. (8 Wheat.) 543, 572-74 (1823). The doctrine provided that the “discovering ” European nations (and later the United States) held fee title to Indian abor iginal lands, subject to the Indians’ r ight of occupancy and use. One id a II , 470 U.S. a t 234. As a

result, no one cou

ld purcha se In

dian land or other wise terminate aboriginal title without the consent of the discovering nation’s sovereign. Id. As ChiefJustice Marshall explained in Johnson v. Mc Intosh :

In the establishment of these rela tions, the rights of the original inhabitants were, in no insta

nce, en tirely disreg arded; b

ut were necessa

rily , to a cons iderabl e extent, impaired. They w ere admitted to be the rightful occupants of the soil, with a leg al as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty , as independent nations, were necessa rily diminished , and thei

r power to dispose

of the soi l at their

own will, to whomsoever they

pleased, was denied by

the original fundamental principle, that discover y g ave exclu sive title

to those wh

o made it. Johnson , 21 U.S. (8 Wheat.) at 574. Genera lly s peaking , ninetee

nth and tw entieth c entury federa l policy was cons istent with this appr oach to I ndian sove

reignt y, d espite a notably inconsiste

nt vision of

the I ndians’ relationship to non-Indian citizens. While the tribes exercise inherent sovere ign authority ove r their mem

bers and land loca ted within

state bou ndaries , they

are nev erthele ss “domes tic dependent nations” under federal protec tion. Cheroke e Nation v . Georg ia , 30 U.S. 1, 17 (1831); see also Boylan , 265 F. at 172. The land they occupy is owned by

the United States, which has retained the authority

to regulate convey

ances. As we have observed, “[w]hile the state[s] ha[ve] a right to make treaties with the I ndians, [they] cannot interfere with the right[s] and obligations of the federal government.” Boylan , 265 F. a t 173. Altho

ugh I ndians’ d epende nt status pr

ohibits domestic and international political recognition, “it does assure them self- government, free of most state law strictures, over their territory and members, and, to a more limited extent, over non-I ndians.” Getche s at 373-7 4; see Boylan , 265 F. at 174. This “pla tonic notion[] of sover

eignty ,” embodi ed in the s o-calle d “I ndian sove

reignt y doctrine,” historically g ave state law “no role to play ” within a tribe’s territorial boundaries. McClanahan , 411 U.S. 164, 168, 172 (1973). While courts have moved towards reliance onfirmer, more textua lly b ased con

cepts suc h as fede ral pre emption to d

efinitive ly r

esolve th e right s of Indian tribes vis-à-vis the states, see id. , the Indian sovereig nty doctrine re

mains relevant because it provides a backdrop ag ainst which the applicable treaties and federa l statutes must be read.

A. Set Aside and Superintendence Sherrill contends that, even accepting the proposition that the prope rties are located within the Oneida reservation’s historic boundaries, the parc els are taxable because they are not currently loc ated within Indian country . Principally rely ing on Alaska v. Native Village of Venetie Tribal Gov’t , 522 U.S. 520 (1998), Sherrill asserts that the properties are not in I ndian country bec ause they we

re neither set aside by

the federal government for I ndian use nor placed under federal superintendence. Rather, the properties were acquire d in private, open-market

transactions and r

eceive service s from She

rrill, not the fede ral gov ernment

. In Alaska , the Supreme Court considered whether certain nonr eservation land owned by members of the Venetie tribe in fee simple was locate d in Indian country

. Id. at 527. The land had bee n part of the Neets’aii Gw

ich’in re servation, which h ad been disestab lished pursuant to the Alaska Native Claims Settlement Act, 43 U.S.C. §§ 1601 et seq. Title was then conv ey ed to the Venetie native corporations as tenants in common, which in turn transfe rred title to the tribe. Id. at 524. Because the reserva tion had been disestablished, and because no allotments were involved, “whether the Tribe’s land is I ndian country depe

nd[ed] on whether it f[e]ll[] within the ‘dependent Indian c ommunities’ prong of the statute, § 1151(b).” Id. at 527. The Court concluded that the land was not India n country bec ause it neither had been “set aside by the12 The Alaska Court itself noted that it “had also held, not surprisingly , that Indian reservations were I

ndian country.” 522 U .S. at 528 n.3 ; see also id. at 528-30 (discussing cases where the Court had found “that I ndian lands that were notre se rv at io ns co ul d b e In di an co un tr y” (emphasis added)).

13 Sherrill’ s argum ent that th e Oneida s’ land do es not mee t feder al set asi de requi

rements because it was originally

allocated to the Indians by New York State, rather than the United States, is i

ncorre ct. The 300,000 acres were a ca rve-out from the 1788 Treaty of Fort Schuyler , and repr esented that porti on of the I

ndians’ a boriginal homela

nd that ha d not been

convey ed to New York and thus never became state land. One id a II , 470 U.S. at 231, One id a IIIb , 194 F. Supp. 2d at

139 (notin

g that A rticle 2 o f the tre aty

“specif ically states tha t the Onei das ‘hold

to themselves and their posterity f orever’ the ‘reserved lands’ ”) ; id. at 140 (concluding that “the Treaty of Fort Sc

huy ler can not reas onably

be understood to ha

ve divest ed the On eidas of

their aboriginal title”). After the feder al government assumed complete control over I ndian affairs Federal Government for the use of the Indians as I

ndian land” nor was “under federa l superintendence” – two req uiremen ts, the Cour

t found, th at applie d equally to reser vations, dependencies, and allotments. Id. at 527, 532-34. Sherrill argues that because the OI N, like the Venetie, purchased the properties in fe e and can freely alienate them, the land cannot be in I ndian country. We disag

ree. While questions may arise a s to whether nonreservation property owned by I

ndians is in Indian country , there are no such questions wi

th rega rd to res ervatio n land, wh ich by its nature was set a side by

Congre ss for Indian use under f

ederal supervision. See United States v. John , 437 U.S. 634, 638-47 (1978) (holding that tribe ’s fee s imple par cels on hi storic re servatio n were u nder fe deral c ontrol de spite the fac t that fed

eral sup ervision

of the tri be had no t been continuous) ; cf. Donnelly v. United States , 228 U.S. 243, 269 (1913) (holding that reservation land is I ndian country). 12 Because the Sherrill Properties are loc ated on the Oneidas’ historic reservation land set aside for the tribe under the Treaty of Canandaigua, they

satisfy the set aside a

nd superintendence requirements of 18 U.S.C. § 1151. 13 Moreove r, just as Alaska

concluded that the “merewith the r

atifica tion of the

Constitution , the Cana

ndaigua Treat

y r ecogn ized the Oneidas’ 300,000- acre r

eserva tion in fed

eral ter ms, stating

that it “sh all rema

in theirs, until they

choose to sell the same to the people of the United States, who have the right to purc hase.” 7 Stat. 45.

14 Section 465 of the 1934 Indian Reorg anization Act allowed some of the land alienated under allotment to return to Indian hands. The section “grants the Secretary of the Interior authority to place land in trust, to be he ld by the feder al government for the benefit of the I ndians and to be exempt from state and local taxation after assuming such status.” Cass County , 524 U.S. at 114. provision” of federal services on the tribe’s pr operty did not make it I

ndian country, the pr

ovision of certain state services to the Oneidas by Sherrill does not eliminate that status. See Alaska , 522 U.S. at 534.

B. Alienability Alternatively, Sherr

ill argues that the properties are not in I ndian country bec ause they a re freely alienable. Relying

on Cass County

, Sherril l contend s that the r eacquis ition of fr

eely alienabl e, fo rmer

rese rvat ion la nd by an I ndia n trib e “do es no t cau se the land to re sume t

axexempt status . . . unless and until [it is] restored to federal trust protection under [25 U.S.C. § 465].” 14 Sherr ill Br . at 35 (quot ing Cass County , 524 U.S. at 115). Cass County , however, offers Sherrill l ittle help . There , Congre ss explicitly had made

land in I ndian cou ntry freely alienab le by providing f

or the “complete cession and relinquishment” of all tribal title in Minnesota. Cass County , 524 U.S. at 108. Afterwards, the land h ad been subject to

federa l allotmen

t and sold t

o non-Indians. Bec ause “alienability e quals taxability,” the Court found the land in question to be taxable. Id. at 109 , 113 ( citi ng County of Yakima

v. Confed

erated Tribes & Bands of Yakima Nation , 502 U.S. 2 51 (1992) ; Goudy v. Meath , 203 U.S. 1 46 (1906) ). In contras t, the Sher

rillProperties are located on reservation land, a status which Congress has never chang ed. Since Congre ss has not d

one so, the

propert ies did not

become f reely alienab le and ta

xable simply because the OI

N purchased them on the open market and curr ently holds them in fee simple. See Solem v. B artlett , 465 U.S. 463, 471 (1984) (“Once a block of land is set aside for a n Indian reservation and no matter what happens to the title of individual plots within the area, the e ntire block retains its reservation status until Congress explicitly indica tes otherwise.”). State and local governments may

not tax reservation land “[a]bsent cession of jurisdiction or other federal statutes permitting it.” County of Yakima , 502 U.S. at 258. Sherrill can point to neither. Sherrill i s trouble d by

the seem ing “imp ossibility

” that the Oneidas ’ free -market purcha se of land within their ancient ancestral homeland could instantly render the parcels free

from taxation and by the potential hardship to local municipalities and re sidents resulting from the Oneidas’ “recreat[ion]” of “a tribal homeland.” Sherrill Br. at 37. It sug gests th at this re sult is inconsistent with the conclusion of other courts that, even when a reser vation has not been disestab lished, I

ndians who no long er own pa rcels on the rese rvation c annot bas e claims t o possessory rig

hts on the Nonintercourse Act. Id. at 32- 34 (ci ting One id a IIIa ; Cayuga Indian Nation v. Cuomo , Nos. 80-CV-930, 80-CV-960, 1999 WL 509442 (N.D.N.Y. July 1, 1999)). But there is no inconsistency . The authorities Sherrill points to address the judicial remedies available for interfere nce with the possessory r ights of Indian plaintiffs, not the existence of those rights. In Yankton Sioux Tribe of Indians v. United States , 272 U.S. 351, 357- 59 (1926), for example, the Supreme Court held that the proper remedy for the wrongful taking of Indian land that was subsequently settled and developed was monetary damages rather than
reposse ssion by

the tribe . This prin

ciple be came known as the “impossibi lity” doctri

ne beca useit was based on the impracticability of uprooting current property owners where I

ndians held a valid possessory claim to land on which other s had settled. Our cas e is diffe

rent. Rec ognizing

the Oneid

as’ posse ssory

rights in their hist oric reservation land, and the accompany ing exemption from state taxation, does not require uprooting current property owners, because the Oneidas curr ently own the proper

ties in question. Consequently, the threat f rom eviction present in One id a IIIa and Cayuga is not present here. And Sherrill’s argument that the removal of proper ty from local tax rolls is a “hardship” that “upsets settled expectations” only beg s the question whether the city is authorized to tax the propert ies. The critical dichotomy, w hich Sherrill does not acknowledge, is between historic I ndian title and f ee owne rship of th e land itse lf. I

ndian or a boriginal title is t

he righ t of a trib e to use and occupy

lands it has inhabited from time immemorial. See One id a II , 470 U.S. at 234. When a reservation has been disestablished, as in Alaska or Cass County

, Indian title is extinguished and the only pertinent inquiry for ownership purposes is fee title. But when I ndian land has been alienated in way s inconsistent with federal law, Indian title remains with the tribe. The Indiancountry status of the a

lienated land is irrelevant for tax purposes when non-I ndians hold fee title, since they pay

state taxes. But when the tribe holding I ndian title reacquires former reserva tion land, both forms of title coexist. Cf. United States v. Sandoval , 231 U.S. 28, 48 (1913) (rejecting position that Indian lands held in fee simple by Pueblo cannot be Indian country). The Indiancountry status of the land the refore becomes fully

relevant: the state cannot tax it and the tribe can no lon

ger le gally

alienate it, at lea st without f

ederal approva l. At first glance, this “coexistence” of titles appears uneasy, bec ause the validity of theOneidas’ Indian title depends on a finding that the properties were alienate d in violation of the Nonintercourse Act. And if this is so, then the chain of fee simple title, of which the One idas are now part, is invalid. This unease is ultimately unwar ranted, however, because the OI N’s possessory rig

hts are grounded in its unextinguished I ndian title, just as they were pr ior to the 1805 conveya

nce. Acquisition of the properties, as the tribe asserts, was the le ast disruptive means of effectuating these possessor y rights. B ecause the previous fee owners r elinquished any claims to the land, the OIN’s rig hts may be fully

realized. Accordingly , we conclude that the OIN’s purchase

of the Sherrill Properties in fee simple neither rendered the m freely a

lienable nor deprive d them of th eir I

ndian-c ountry

status.

III. Effect of the Buffalo Creek Treaty on Oneida’s Property Rights Both of Sherrill’s arguments for why the properties are not in India n country re st on the claim that the land is no longer in an I ndian reservation. This claim is grounded in the 1838 Buffalo Creek Treaty

which, Sherrill and the amici contend, formally disesta blished the Oneida

reserv ation. Ag ain, we d isagre e. Bef

ore ret urning t o the text of

this trea ty, it is helpf

ul to note certain basic canons of I

ndian treaty c onstruction.

A. Canons of Indian Treaty Construction Treatie s are g eneral ly more close ly li nked to the

historica l events s urroundi ng their negotiation and passage than ar e private agreements. They are, accordingly

, “construed more liberally . . . , and to asc ertain their meaning we may look beyond the written wor ds to the history of the treaty , the negotiations, and the practical construction adopted by the parties.” Choctaw15 This canon has bee n applied on numero

us occas ions to exemp t tribes f rom state taxation. See, e .g. , Bry

an v. I tasca Cou nty , 426 U.S. 3 73, 392-9 3 (1976); McClanahan, 411 U.S. at 174-75 (1973); Squire v. Capoeman , 351 U.S. 1 , 6-8 (195 6); Carpenter v. Shaw , 280 U.S. 363, 366-67 (1 930); Choate v. Trapp , 224 U.S. 6 65, 675-7 9 (1912); The Kansas Indians , 72 U.S. (5 Wall.) 737, 760 (1867). Nation of Indians v. United States , 318 U.S. 4 23, 431-3 2 (1943). This is par ticularl y tr ue with regard to I

ndian treaties. “‘The canons of construction applica ble in Indian law are r

ooted in the unique trust relationship between the United States and the I ndians [with respect to tribal lands],’ and the Indians’ unequal ba rgaining power when a

greements were neg otiated.” Hagen , 510 U.S. at 423 n.1 (Bl ackmu n, J. diss entin g) (quo ting One id a II , 470 U.S. at 247). This relationship, and the notions of Indian sovereig nty and self-g overnment embodied in it, “provide[] an important ‘backdrop’ against which vag ue or ambiguous federal enac tments must always be measure d.” White Mountain Apache Tribe v. Bracker , 448 U .S. 1 36, 14 3 (198 0) (qu otin g McClanahan , 411 U.S. at 172 (1973)). It is, moreover, “well established tha t treaties should be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their be nefit.” One id a II , 470 U.S. at 247 (citations omitted). Any finding that Cong

ress has abrog ated I

ndian tre aty

rights is inappropriate “[a]bsent explicit statutory language .” One id a II , 470 U.S. at 247 (citation and internal quotation marks omitted) ; cf. Or. Dep’t of Fish & Wildlife v. Klamath I ndian Tribe , 473 U.S. 753, 774 (1985). Congress’s intention in that regard, in other w ords, must be “clearly

expressed.” 15 Hagen , 510 U.S. at 423 & n.1 (Blackmun J., dissenting).

B. Disestabl

ishment and Dimini shment Generally16 Beginning in the late-ninetee nth century, Cong

ress passed a series so-called “surplus land acts,” forcing I

ndians onto individual allotments carved out of reservations and opening unalloted lands to non-Indian settlers. The Supreme Court applied and elaborated these ca nons in considering issues of

reserv ation dise stablishme nt and dimin

ishment mos t recen

tly i n the “sur plus land a

ct” cas es. 16 These cases dealt with land claims arising from the a llotment era and specifically addressed whether certain unallotted lands opened for settlement to non-I ndians remained in Indian country

. Solem v. B artlett , 465 U.S. 463 (1984), for example, involved a writ of habeas corpus soug ht by a non-Indian who had be en tried and convicted in state court for a cr ime committed on a Sioux reservation. The question presented was whethe r the state had jurisdiction over the petitioner by virtue of the Cheye

nne River Act, which had authorized the I nterior Secretary

to allot a portion of the reservation to homesteaders. I n concluding that the reservation had not been diminished, the Court set forth the standard for identify ing the “clear” expressions of cong ressional intent needed to find diminishment. It began by noting that only Congre ss can divest a reservation of its land and diminish its boundaries. Once a block of land is set aside for an I ndian Reservation and no matter what happens to the title

of individ

ual plots w

ithin the a rea, the entire b lock ret

ains its reserv ation stat

us until Cong

ress explic itly

indicate s otherwi se . . . . Con gress [must] clearly evince an intent to chang e boundaries

. Id. at 470 (emphasis added) (citations and internal quotation marks omitted). Although “[e]xplicit reference to cession or other langua ge evidencing the prese

nt and total surrender of all tribal interests” can be helpf ully probative, particula

rly when buttresse d by fixed compensation for the opened lands, id. , this language is not a prerequisite for a finding of diminishment. Rather, an act’s legislative history and the subsequent treatment of the land(including settlement patterns), may also suffice: When events surrounding the passage . . . – pa rticularly the manne

r in which the transaction was negotiated with the tribes involved and the tenor of legislative Reports presented to Congress -- unequivocally reveal a widely

held, contempo raneous

understa nding tha t the aff ected r eserva tion would shrink as a result of the propo sed leg islation, w e have b een willi ng to inf er that Congress shared the understanding that its action would diminish the reservation, notwithsta

nding the presenc e of statu

tory langua ge that would othe

rwise sug gest reserv ation boun

daries r emained unchang ed. To a l esser e xtent, we ha ve also looked to events that occurred after the passa ge of a surplus land Act to decipher Congre ss’ intent

ions. Cong

ress’ ow n treatme nt of the a

ffecte d areas , partic

ularly in the years immediate ly following the ope ning, has some evidentiary value, as does the manner in which the Bureau of I ndian Affairs and local judicial authorities dealt with unalloted open lands. On a more pragmatic le vel, we have recognized that who actually moved onto opened reservation lands is also relevant to deciding whether a surplus land Act diminished a reser vation. Where non-Indian settlers flooded into the opene d portion of a reservation and the area has long since los t its In

dian cha racter , we have

acknowl edged

that de fact

o , if not de jure , diminishment may have occur red. In addition to the obvious practical advantages of acquiescing to de facto diminishment, we look to the subsequent demogr aphic his tory

of opene d lands as

one addit ional clue as to wh at Congr ess expected would hap

pen once land on a p articula

r reser vation wa s opened

to non-I ndian set tlers. Solem , 465 U.S. a

t 471-72 ( citations

omitted); see also South Dakota v. Yankton Sioux Tribe , 522 U .S. 32 9, 344

(199 8) (s tatin

g tha t the C ourt may

cons ider “‘th e hist oric al co ntext surrounding the passage of the sur plus land Acts,’ and to a lesser extent, the subsequent

treat ment o f the ar ea in q uesti on and the pa ttern of set tlem ent th ere” (q uoti ng Hagen , 510 U.S. at 411)). But when these elements, considered in their totality , “fail to provide substantial and compelling evidence of a cong ressional intention to diminish Indian lands, we are bound by our traditional solicitude for the Indian tribes to rule that diminishment did not take place a nd that the old reservation boundaries survived the opening.” Solem , 465 U.S. a t 472. The

same ana lys isapplies to the termination or disestablishment of a reservation. See DeCotea u v. Dist. Co

unty Court for the Tenth

Judicial Dis t. , 420 U.S. 425, 444 (1975) ( “[The Supreme Court] does not lightly conclude

that an Indian reser

vation has been terminated . . . . ‘[T]he Court requires that the congressional determination to terminate . . . be expressed on the f ace of the Act or be clear from t he sur round ing cir cumst ances a nd legi slati ve his tory.’” (q uoti ng Mattz v. Ar nett , 412 U.S. 481, 505 (1973)). Applying these

principles, the Supreme Court has found language supporting diminishment in cases where the operative portion of a surplus land act re flects an Indian agreement to “cede, se ll, relinquish and convey” opened lands. See, e .g. , Yankton , 522 U.S. at 344; DeCoteau , 420 U.S. a t 439, 441 n .22; Rosebud Sio ux Tribe v. K

neip , 430 U.S. 584, 591 & n.8 (1977). Similarly, in Hagen v. Utah , the operative language provided that “all the unallotted lands within said reservation shall be r estored to the publ ic domain ,” 510 U.S . at 412 (e mphasis added), which the Court found indicated a cong ressional intent to diminish. Id. at 414. In e ach of th ese cas es, the Sup reme Cour

t found a t

extually ground ed intent ion to diminish supported by legislative history . To varying degrees the Court also found other support such as contemporaneous congressional a nd administrative statements, proclamations opening the reservation to settlement, the state’s assumption of jurisdiction over the opened lands, and the subsequent pattern of settlement. See Yankton , 522 U.S. a t 351-57; Hagen , 510 U.S. at 416-21; DeCoteau , 420 U.S. a

t 437-49; Rosebud , 430 U.S. at 592-615.

C. The Buffalo Creek Treaty As we have seen, Articles 1 and 2 of the B uffalo Creek Treaty summarize the central17 Sherrill and the State rely upon A rticle 2 of the Treaty , asserting that the Oneidas agreed to the Kansas tract “as a permane nt home for all th e New York In dians, now

residing in the State of New York.” Buffalo Cree k Treaty, A

rt. 2 (emphasis added). This provision, however, applies only

to those Indians “who have no per manent homes.” It is therefor e not applicable to the OIN, who ha d a permanent residence in New Yor k State. Even if it were applicable, the article does no more than Article 13 in re vealing an intent by

Congress or the Oneidas to disestablish their reservation in New York. bargain between the New Y ork Indians and the fede ral government: the cession of the New Yor k Indians’ Wisconsin lands in exchange for r eservation land in Kansas. Most of the remainder of the Treaty

addresses the Kansas tract and various other tribe-specific arrange

ments. Articles 10 and 14 contain explicit cession language for the N ew York territory of two tribes, the Senecas and Tuscaroras. Buffa

lo Creek T

reaty, arts. 10 , 14; see New Yor k Ind ian s II , 170 U.S. at 21 (stating that the Senecas’ and Tuscaroras’ a greements “indicate[d] an intention on the part, both of the Government and the Indians, that they should take immediate possession of the tracts set apart for them in Kansas”). In contra st, Article 13, which addresses the Oneidas, contains no such language: The United States will pay [certa in sums to certain Oneidas] . . . for expenses incurred and services rendere d in securing the Green Ba y country , and the se tt le me nt of

a p or ti on th er eo f; an d t he y hereby a gree to removeto their new homes in the Indian territory , as soon as

they can make

satisfac tory arrang ements with the Governor of the State of New York for the purchase of their lands at Oneida. Buffalo Creek Treaty

, art. 13 (emphases added). Nothing in its text provides “substantial and compelling” evidence of Congr ess’s intention to diminish or disestablish the Oneidas’ New York reservation. 17 There is no specif ic cession l angua

ge, an d no fixed- sum pay

ment for o

pened la nd in New Y ork; rather ther e is only the possibility of a sale for “ uncertain future proceeds.” DeCoteau , 420 U.S. at 448 (describing18 Contrary to the contention of Sher rill and New York State, consideration of the Gillet declaration here is proper. See Minnesota v. Mille Lacs Band of Chippew a Indians , 526 U.S. 172, 196 (1999). Senate amendments to the Buffalo Creek Tr eaty in June 1838 required a federal commissioner to explain its meaning to the tribes before it could take effect. F ollowing Gillet’s declar ation to the

Oneidas , the tribe

assente d to the tre aty , and this a ssent – wh ich ref ers to Gillet’s declaration and includes his affirmation that the assent was voluntary – appear as addenda to the document as ratified. See New Yor k Ind ian s II , 170 U.S. at 24 (“[A] written declaration annexed to a treaty at the time of its ratification was as obligatory as if the provision had be en ins erted i n the b ody of the treat y itself. ”) (cit ing Doe v. Braden , 57 U.S. (16 How.) 635, 656 (1853)). arrangement in Mattz , 412 U.S. 4 81). Arti cle 13 at best is amb iguous a

bout whet her removal to Kansas was required. More properly , it reflects a simple agreement to ag ree. While the Oneidas agreed to remove, removal wa s conditioned on speculative future arrang ements between the Indians and a third party

, New York’s governor. See New Yor k Ind ian s II , 170 U.S. at 28 (“It . . . appears, from the eleventh, twelfth, and thirteenth finding s [of the Treaty], that the President never fixed any time for

[the Indians’] removal, as was contemplated in the third ar ticle.”) This contingency

is reflected by

the comments of Ransom Gillet, a federal I ndian commissioner who participated in the Treaty negotiations and whose declaration is appended to the f inal document. Gillet stated that, in obtaining the Oneidas’ consent to the treaty , he “most solemnly assure[d] them that the treaty

does not a

nd is not inte

nded to co mpel the O neidas to remove f rom their reservation in the State of New York . . . . The treaty

gives them lands if they

go to them and settle the re but the y ne ed not g o unless th ey wish to. Whe

n they wish to re

move they

can sell their lands to the Governor of the State of New York and then e migrate. But they

will not be compelled to sell or remove.” 18 Statement of Ransom H. Gillet at Oneida Castle, Aug. 9, 1838 (emphas is added) ; see also Report of the Committee of Indian Affa irs, State of New York, Mar. 24, 1847, at 4 (transcribing statement by a federal I

ndian commissioner to the Six Nations that19 This statu te give s the cour

ts of New York civil jurisdiction in ac tions “be tween I ndians” or “between one or more I ndians and any other

person or persons.” 25 U.S.C. § 233 (2000). Notably, it also provides that nothing in it “shall be c onstrued as subjecting the lands within any Indian reserva

tion in the State of New York to taxation for State or local purposes.” Id. they were not obligated to remove west). As it turned out, the sales to New York State w ere never accomplished, and the planned removal never took plac e. One id a IIIb , 194 F. Supp. 2d at 142. Article 3 of the Treaty , moreover, contemplates that some tribes might not remove from their Ne w York la nds: [S]uch of the

tribes of the New Y ork I

ndians as do not accept and agree to remove to the country set apa

rt for their new homes within fiv e y ears, or such othe

r time as the President may, f

rom time to time, appoint, shall forfeit all interest in the lands so se

t apart, to the Unit

ed States

. Buffa lo Creek T

reaty, art. 3 ( emphasis

added); see New Yor k Ind ian s II , 170 U.S. at 28. Accordingly , the Treaty ’s text contains neither an obligation to remove nor any indication of a congressional intention to disestablish the Oneidas’ New York re servation. Sherrill and the amici nonetheless observe that certain legislative a nd administrative documents, such as “representative” re ports of the Commissioner of Bureau of I ndian Affairs spanning the period 1890 to 1997 and a 1981 Senate Report prec eding the passage of Ne w York’s Indian jurisdictional statute, 25 U.S.C. § 233, 19 demonstrate that the Oneidas no longer have a New York reservation. While congressional and administrative refer ences to the reservation may bear some general re levance to congressional intent, see Yankton , 522 U.S. at 351, the references cited by Sherrill, the earliest of which was decided a half- century a fter the Treaty ’s proclamation, indicate little if anything a bout Congress’s intent in 1838. Given the absence of any thing in the Buffalo Creek Treaty ’s text or legislative history supporting disestablishment, we conclude that20 Most of these documents, in particular those published by the Department of the Interior and the Commissioner of I ndian Affairs, appear to rely on one another. And one of them, the Department of the Inte rior’s 1997 Annual Report on Indian land, a cknowledges that thirty-two acre s in Madison County is under the jurisdiction of the Bure au of Indian Affa irs (“BIA” ). This is, presumably, the same la nd we referred to as fede

rally protected land in Boylan

. 265 F. at 165-68. Further, the fact that certain cong ressional documents and maps of the area, introduced by New York State on appeal, omit mention of an Oneida reser vation in New York State does not conclusively indicate dise stablishment. In fact, other rela tively rece

nt maps and documents, as the amici recognize, do reveal such a re servation.

21 Contrary to the sug gestion of Madison and Oneida Counties, the fact that, under the 1843 law, individual Indians could hold the land in common, and could sell it to non-I ndians under specified circumstances, does not ref lect the disestablishment of the reservation. these la ter docu ments do no t “unequi

vocally reveal ” the inte

ntion nec essary

to demonst

rate disestab lishment. 20 Solem , 465 U.S. at 471. Moreove r, two en actments

in the wak

e of the B uffalo Cr

eek Tre aty

weigh a gainst disestablishment. Under an 1842 treaty between the Oneidas and New York, c ertain Indians who had not migrated to Wisconsin sold a portion of their New York land (amounting to some 1100 acres) to the State. This treaty provided for the convey

ance of certain lots to the State and other lots to non-removing Indians to be held as “ common property.” Boylan , 265 F. at 168 (quoting Treaty of 1842, arts. 1, 6). We later described this purchase as “suc h portion of the reservation as represented the equitable share in the propor tion to the number of Indians who migra ted.” Id. at 167-68 (emphasis added). Finally , an 1843 enactment of the New York leg islature, which sought to allow th e Oneida s to hold the ir lands in severa lty a nd (impro perly ) to alienate them by ma

jority vote of the chiefs and head men of the tribe, make s explicit reference to “lands and property in the Oneida reservation .” Id. at 169 (e mphasis a dded) (q uoting A ct Relativ e to the On eida I ndians, Law s of the Sta

te of New York, 66t

h Sess., 244-46, Ch. 185, Sec. 1 (Apr. 8, 1843)). 21Sherrill a nd New York State a

lso sugg est that f

ederal India n remova l policy , refle cted in the Buffalo Creek Treaty , itself requires a finding that Congress intended to disestablish the reservation. In par

ticular, the State argues that the “remova l policy’s goa

l of reducing conflicting state and tribal sovereignty could be accomplished only if Oneida sovereignty

over the area from which the Nation wa s obliga

ted to re move was

terminat ed.” Ne w York B r. at 13. B ut this argument ignores both the require ment that removal language be “ clearly e xpressed,” as well as the text of the Removal Act, which permits the President to provide western lands to “such tribes

or na ti on s o f In di an s a s m ay choose to exchange the lands where they now reside, and move there.” 4 Stat. 411 (emphasis added). The State’s arg ument also ignores the success of the Buffalo Creek Treaty

in facilitating the removal of tribes other than the OI N. As the lower court found, the

Treaty provided for the a bsolute c ession of

New Yor k land for certain tribes, in particular the Senecas and Tuscaror as. The fact that certain parts of the Tre aty provided for cession and other parts did not demonstrates that when Congress wished to disestablish a

re se rv at io n, it kn ew wh at la ng ua ge to em pl oy. Sherrill and the amici next arg ue that th e subsequ

ent trea tment of th e reser

vation, in particular the pattern of its settlement and its jurisdictional history , reflects a congressional intention to disestablish. They point out that few Oneida I ndians reside today in Ma dison and Oneida Co

unties, a nd they contend t hat the unabated r

eduction over time

of the re servation’s members a

nd acre age su

pports de facto disestablishment. At the time of the Buffalo Creek Treaty ’s proclamation, however, only 5000 of the original 300,000 acres remained under Oneida ownership, principally due to sales of land to the State. And, according to the amici ’s evide nce, by far the large st influx of n

on-I ndians to b othMadison and Oneida Counties likewise occurred prior to 1840. Br. of Amici Curiae Madison

County and Onei da County

at 11 (ta ble); id. at 2, 7 ( st at in g t ha t “ [b ]y t he ea rl y ni ne te en th ce nt ur y, the area had lost its Indian cha racter and had been settled and deve loped by non-I ndians”) . Not surprisingly, the most sig nificant population changes occurre d when the bulk of the land was alienated. Id. at 11. The fact that the India n population and reservation acreag e further decreased betwee n 1840 and

1920 is not p ersuasi

ve evide nce that the Buf falo Cre ek Trea

ty w as meant

to disestablish the reservation. In any event, subsequent settlement patterns are of limited use in demonstrating disestablishment. Yankton Sioux , 522 U.S. a t 356 (fin ding de mographic evide

nce the “ least compelling” because “[e]very surplus land Act necessarily resulted in a surge of non-I ndian settlement and degraded the ‘I ndian character’ of the rese rvation, yet we ha

ve repeatedly

stated that not e very surplus la

nd Act dimi

nished the

affected rese

rvation” ); Hagen , 510 U.S. at 440-41 (Blackmun, J., dissenting) (“Absent other plain and unambiguous e vidence of a congressional intent, we never ha ve relie d upon con

tempora ry demogr aphic or jurisdict ional con siderati ons to find diminishment.”). Because the Oneidas sold most of their land to the State or private pa rties well bef ore the B uffalo Cr

eek Tre aty

and the f lood of non -Ind

ians into th e area

is not clea

rly linked to the Treaty, the

gradual reduction in the number of Oneida s living on their reservation does not r eflect a clear c ongre ssional int

ent to dise stablish it

. Finally , Sherril l contend s that the c ontinued e xistence o f the One idas’ re servatio n is incompatible with the damage award they received in New Yor k Ind ian s II as a consequence of the appropriation of their Kansas land. Recall that in New Yor k Ind ian s II , the Supreme Court fou nd t hat th e Bu ffa lo Cre ek T rea ty ha d ef fec ted a pr ese nt gra nt of t he K ans as l and s t o t he O INand that, because the land had been improperly appropriated and settled by non-Indians, the tribes were entitled to damages in the amount the g overnment had received as the sale pric e. 170 U.S. at 19-21, 36 . The fa

ct that the OIN receiv ed a port

ion of the resulting $2 million a

ward, She rrill argues, evidences an “e

xchange” of the Oneidas’ New Yor k land for land in Kansas, which supports a finding of disestablishment. The focus of the Buffalo Creek Tr eaty, howe

ver, was the exchange of Wisconsin land – not New York land – for that in Kansas. See Buffa lo Creek T

reaty, arts. 1, 2. The Supr eme Court’s decision in New Yor k Ind ian s II , as Sherrill acknowledges, reflec ts this bargain. See 170 U.S. at 2 (

petition st

ated tha t “the cla imants ce ded and r

elinquish ed to the U

nited State s all their right, title, and interest in and to certain lands of the claimants at Gre en Bay , State of Wisconsin”); id. at 19, 29 (discussing case in terms of the “seizure and sale of the Wisconsin lands”). The divestitur e by the Senec as and Tu scaror as of the ir New Yo

rk land, a s the Court

pointed ou

t, indicated those tribes’ “intention . . . that they should take immediate possession of the tracts set apart for them in Kansas.” Id. at 21. The Court said nothing about such a divestiture by the Oneidas

. Sherrill contends that the damage award “ logic[ally]” incorpora tes the unstated conclusion that the Oneidas’ New York reserva tion had been disestablished. Sherrill Br. at 40. This argument, for which Sherrill has provided no authority , ignores what was decided in New York Indi ans II . T he ex ch an ge of Wi sc on si n f

or Ka ns as la nd s u nd er th e T re at y itself was the r ationale for the award; the fact that some of the One idas’ land had not been convey ed to the government was irre levant. T

he few th ousand a cres of New Yor k reser vation la nd at issue

appear even les s signific ant to the

award w hen one c onsiders

that the T

reaty included a 65,000- acre c arve-o

ut in22 The case against disestablishment is further supported by the text of Article 3, which preserves Indian title to the Ka nsas lands (by pre

venting forfeiture of such title) as long as the tribe ha s agreed

to remove ; there is

no divesti

ture re quireme

nt or othe r exchang e. The Supreme Court in New Yor k Ind ian s II pointed ou t that the O neidas ha

d met the c ondition to

avoid forfeiture merely

by their ag

reement to remove. 170 U.S. at 26. Contrary to the State’s sugge stion, the

Oneidas ’ agre ement to r

emove is d

istinguishable fr

om an ag reemen t to cede their reservation; the latter could have occurr ed as a result of the former, but it never did beca use the applicable conditions were not satisfied. Wisconsin so the Oneidas could maintain a reservation there. Buffa lo Creek Treaty , art. 1. 22 Construing

the Buf falo Cre ek Trea

ty li berally and reso lving, a s we must, a ll ambigu ities in the On eidas ’ favor , we con clude that n eithe r its text nor th e circu mstan ces su rroun ding i ts pas sage and im pl eme nt ati on e st abl is h a c lea r co ngr ess io nal pur pos e to di ses tab li sh o r di mi ni sh t he O IN reservation.

IV. Continuous Tribal Existence Sherrill further argues that there a re, at a minimum, “disputed issues of fact” as to whether the OIN has maintained its tribal existence so as to be entitled to claim the pr operties as

reserv ation land. It a

rgues t hat the f act that t he OI N is a cur rently recog nized tribe

is irrele vant, because as a practical matter it has not existed continuously over the last century . In support of this arg ument, She

rrill chr onicles th e grad

ual redu ction in po

pulation o f the OI

N, pointing

to statistics reflec ting the

non-I ndian inf lux to Madison

and Onei da Countie s. Any lapse in tribal identity, Sherrill concludes, re ndered the OIN’ s land freely alienable and precludes the tribe from asserting rights in its historic reservation land. Such a deter mination would, in turn, defeat the OIN’s claims to tax exemption. Sherrill’s argument assumes that a tribe’s land loses its reserva tion status in the event of a23 Nor do any of the authorities listed by the dissent. I t is true that some groups of Indians claiming tribal status, which were notfedera lly r ecogn ized tribe s, have b een req uired to demonstr ate “co ntinuous tr

ibal existe

nce” in order to e stablish st anding under the Noninter course Act. See One id a IIIb , 194 F. Supp. 2d at 121 n.11 (citing Mashpee Tribe v. New Seabury Corp. , 592 F.2d 575 (1 st Cir. 1979) ( Mashpee I ), and Canadian St. Regis Band of Mohawk I ndians v. State of N.Y. , 146 F. Supp. 2d 170, 184 (N.D.N.Y. 2001)). But Sherrill and Madison have challen ged ne ither the

OIN ’s standin

g nor its curren t tribal sta tus. I n other c ases, wh en rele

vant, courts have quite logically noted that tribes can only r ecover under the Nonintercourse Ac t if they “were tribes at the time the land was alienated.” Mashpee Tribe v. Secretary of the Interior , 820 F.2d 480, 482 (1 st Cir. 1987) ( Mas hpe e II ). But there is no question that the OIN was a tribe and in a trust relationship with the federal government at the time of the conveya nces at issue. Neither the dissent nor Sherrill has identified any authority for the pr

oposition that to sustain a claim und er the Noninterc ourse Act a fede rally recog nized I ndian trib e must demonstrate t hat its tribal structure remained intact continuously after unlawful convey

ances of tribal land. temporary la

pse of tribal organization or identity . We find, however, no requirement in the law that a fe derally

recog nized tribe

demonstr

ate its continuous e

xistence in

order to assert a claim to its reservation land. Indeed, the Supreme Court held in United States v. John that a Mississippi resident of Choctaw Indian blood wa s properly under federal jurisdiction when he committed a crime on Choctaw land which had been designa ted a reservation, even though the tribe w as “merely a remnant of a larger g

roup of Indians, long a

go removed . . . [and] federal supervision over them has not been continuous.” 437 U.S. 634, 653 (1978). The authority upon which Sher rill relies, which concerns the Nonintercourse Ac t, does not indicate otherwise. 23 In Golden Hill Paugusett Tribe v. Weicker , 39 F.3d 51, 56 (2d Cir. 1994), we stated that, in order to make a prima facie c ase based on a violation of the Act, a group claiming to be an I ndian trib e must esta

blish that: “(1) it is

an I ndian trib e, (2) the land [cla imed to have been alienated in violation of the Act] is tribal land, (3) the United States has neve r consented to or approved the alienation of this tribal land, and (4) the trust re lationship between24 Sherr ill, citi ng Mas hpe e II , argues that a temporary lapse of tribal status, however involuntary or unintended, c auses “Non-Inter course Act coverage

[to] terminate[].” Sherrill Br. at 44. Bu t Mashpee I

makes cl ear tha

t an “invo luntary

process of assimil ation” is i

nsuffic ient to constitute abandonment of tribal status, which can only occur voluntarily a

nd willingly. See Mashpee I , 592 F.2d at 587. This requirement underscores the fa ct that a temporary

lapse of tribal organization is insufficient to sever the trust relationship between a fe derally re cognized tribe and the federal gover nment. See The Kansas Indians , 72 U.S. at 757. the United States and the tribe has not been terminated or abandone d.” All four elements are satisfied here. It is undisputed that the OI N is federally

recognized and the Bureau of Indian Affairs exercises jurisdiction over, at a minimum, a thirty-two acre parcel of land within Madison County, which formed par t of the OIN’s historic rese rvation. This reservation has never been disestablished, and accordingly , the “trust relationship” between the federa l government and the Oneidas has neve r been te rminated . Nor hav e the One idas eve r volunta rily abandon ed this tru st relationship by “choos[ing] to terminate tribal e xistence.” Mashpee Tribe v. New Seabury Corp. , 592 F.2d 575, 587 (1 st Cir. 1979) ( Mashpee I ). 24 Finally, the fe deral government never appr oved the alienation of the land at issue. Moreover, contrary

to Sherrill’s contentions, even if continuous tribal existence were required, the record before us shows it. Once a tribe has been recog nized, the removal of that recognition, like reservation diminishment or disestablishment, is a question for other branche s of government, not the courts. See United States v. Holliday , 70 U.S . (3 Wa ll ) 40 7, 4 19 ( 186 5) ( “In reference to all matters [of tribal orga nization], it is the rule of this court to follow the action of the execu tive and o ther polit

ical dep artments

of the g overnme

nt, whose more spe cial duty

it is to determine such af

fairs.” ); see also Mashpee Tribe v. Secretary of the Interior , 820 F.2d 480, 484 (1 st Cir. 1987) ( Mas hpe e II ) (same). The OI N is a federally

recognized tribe that is a direct25 These authorities also include a decision of the Northern District of N ew York, United

States v. E lm , 25 F.Ca s. 1006, 10 08 (N.D. N.Y. 1877 ), stating that since

1838, the Oneidas ’ “tribal government ha[d] ceased as to those who remaine d in this state.” However, the decision also suggests continued tribal status, as the Oneidas “c ontinued to designate one of their number as chief ,” albei t for ce rtain financial ta sks, and st ates tha t there a re “20 f amilies wh

ich const itute the remn ant of the

Oneidas resid[ing ] in the vici

nity of their o rigina l reserv ation . . . t

heir dwellings . . . interspersed with the habitations of the whites.” Id.

26 Felix Cohen, whom Sherrill also cites, relies on the same source as the 1916 letter, a 1915 memorandum by a law yer in the Of

fice of Indian Af

fairs. Cohen at 416-17 n.6 (1942). descendant of the original Oneida I ndian Nation. One id a II , 470 U.S. a t 230; One id a IIIb , 194 F. Supp. 2d at 119. And Sherrill has identified no legislative or executive action withdrawing recognition. Rather, the authorities offered by Sherrill merely re flect the opinions of a handful of government officials and commentators, at var ious points in the last century, that Oneida tribal relations had ceased. 25 In pa rticular , letters

from the A ssistant Co mmissioner of In dian Aff airs in 1916 and 1925 stated that the tribe no longer existed in New York. 26 This conc lusion is, to some degre e, understandabl e, since most of the

Oneida r eserva tion land h ad been

sold to the

State, wit

h the remaining parcels divided among me mbers who, increasingly , lived separately from one another and received state service s. See Boylan , 265 F. at 167-70. But these informal conclusions are ultimately irr elevant because they

do not supply the necessar y feder al action withdrawing the tribe from governme nt protection we held was required in Boylan

. Id. at 171. Moreover, this Court determined in Boylan in 1920 – be

tween the time of the

two lette rs in question – that the Oneida tribe did in fact exist. Id. at 171-72. Because the Oneidas’ rese rvation was not disestablished and because the Sherr ill Properties are located within that reservation, we c onclude that Sherrill can neither tax the land27 We also agree with the lower court’s c onclusion that Sherrill’s counterclaims were

improper because the tribe is immune from suit in federal court. See One id a IV , 145 F. Supp. 2d at 258-59 ; see Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe , 498 U.S. 505, 509 (1991) (stat ing th at sui ts and cross -suit s again st Indi an tri bes are barred by tribal sover eign immu nity abse nt a cl ear wai ver by the t ribe o r congre ssio nal ab rogati on) (ci ting United States Fidelity & G

uaranty Co. , 309 U.S. 506, 511-13 (1940)). nor evict the Oneidas. Accordingly , we: (i) affirm the denial of Sherrill’s motion for summary judgmen t or for a prelimina

ry injunction

based on its counte

rclaims i n the L ead cas e; and (i i) affirm the grant of the OI N’s cross-motion for summary judgment on its taxation claim and Sherrill’ s counter

claims 27 in the Lead case a nd its cross-motion for summary judg ment in the Eviction case.

V. Sherrill’s Rule 56(f) Motion Sherrill and the State of New York contend, in the alternative, that the D istrict Court prematurely

decided the OIN’ s cross-motions for summary judg ment without affording Sherrill an adequate opportunity to c onduct discovery on c ertain critical matters, in particular: (i) whether the Sherrill Properties are located within the boundaries of the re servation recognized by the Cananda igua Tr eaty ; (ii) whe

ther Cong ress modif

ied the Ca

nandaig ua Trea ty via the Bu

ffalo Creek Treaty

or otherwise; (iii) the Oneidas’ continuous tribal existence; (iv) whether the properties were encompassed by the 1805 and 1807 land transfers; and (v) whether those tr ansfers violated the Nonin

tercourse Act. Federal Rule of Civil Procedure 56(f) provides a n opportunity to postpone consideration of a motion for summary judg ment and to obtain additional discovery by describing: (i) the information sought and how it will be obtained; (ii) how it is reasonably expected to raise agenuin e issue of materia l fact; ( iii) prior

efforts to obtain th

e informa tion; and ( iv) why

those efforts were unsuccessful. Sage Re alty Corp. v. I

ns. Co. of N . Am. , 34 F.3d 124, 128 (2d Cir. 1994). Th e Distric t Court den ied Sherr ill’s motion

principa lly b ecause

Sherrill f ailed to explain why it was unable to obtain the discove ry soug ht, much of which was a matter of public record, before the close of briefing. The court also noted that Sherrill had failed to identify the information sought with particularity . We review a lower court’s denial of a Rule 56(f ) motion for abuse of discretion. Paddington Partners v. Bouchard , 34 F.3d 1132, 1137 (2d Cir. 1994). Sherrill’s Rule 56(f) affidavit is simply a list of issues on which it desires more information. No specific facts or documents are r equested, and Sherrill fails to indicate how any of the information sought could be expected to create g enuine factual issues. Sherrill, moreover, has had a sufficient opportunity to develop and contest the issues on which it now claims to need additional discovery. Sherr ill, like the amici , has submi tted volumi

nous evide

nce in sup

port of its position on disestablishment, tribal existence, and the Nonintercourse Act, evidence which the District Court fully considered. Sher rill was the first party to move f or summary judg

ment – five months into discovery – on the issue of the OI N’s tax liability. Under these circumstanc es, we conclude that the District Court did not abuse its discretion in deny ing the motion.

VI. Sherrill’ s Motion for Leave to Amend In the L ead case, Sherrill moved for leave to amend its answe r to add the affirmative defenses of statute of limitations, laches, waiver, estoppel, in pari delicto , and ratification, all of which the lower court denied on futility grounds. One id a IV , 145 F. Supp. 2d at 259-60. On appeal, Sherrill contends that the District Court improperly denied it the opportunity to advancethese defenses. We disagree.

We review the denial of a motion for leave to amend for abuse of discretion. Jones v. N.Y. State Div. of Military & Naval Affairs , 166 F.3d 45, 49 (2d Cir. 1999). Where, as here, the denial was based on an interpretation of law, we r eview that legal conclusion de novo . Id. While leave to amend a pleading shall be fre ely g ranted when justice so requires, Fed. R. Civ. P. 15(a), amendment is not warranted in the case of, among other things, “futility.” Foman v. Davis , 371 U.S. 178, 182 (1962). A proposed amendment to a pleading would be futile if it could not withstand a motion to dismiss pursuant to Rule 12(b)(6). Ricciuti v. N.Y.C. Transit Auth. , 941 F.2d 119, 123 (2d Cir. 1991). We agree with the lower court that Sherrill’s propose d defenses would not survive such a motion. We find the in pari delicto and ratification defenses insufficient. One id a IV , 145 F. Supp. 2d at 260. Addressing delay -based arguments in One id a II , the Supreme Court held that no federa l limitation s period a

pplied an d that it wo

uld be impr

ovident to apply a paral lel state requirement in this uniquely fe deral context. 470 U.S. at 240-44. As the Court pointed out , there is no time-bar for claims brought by the United States on behalf of Indians “ to establish title to, or right of possession of, real or personal proper ty.” Id. at 241-43 & n.15. The One id a II majority also strongly suggested that a laches defense is improper for similar reasons. Id. at 244-45 & n.16 (“[T]he application of laches would appear to be inconsistent with established fede ral policy.”) (citing Ewert v. Bluejacket , 259 U.S. 129, 137-38 (1922) (doctrine of laches cannot bar a suit by individual Indians challenging land transactions for violating federal statutory restrictions on alienation)). We likewise have found – in ruling on the merits of a defense in an action involving anOneida la

nd claim –

that time-

bars ar e inconsi stent with

establish ed fede

ral polic y, b ecause

“to permit a state to enact and invoke a time-bar would in eff ect allow a state to terminate the relationship of trust and guardianship between the United States a nd the Oneidas . . . [which] may only be terminated by

federal law.” Oneida Indian Nation of N.Y . v. New York , 691 F.2d 1070, 1084 (2d Ci

r. 1982); see also Oneida Indian Nation of N.Y . v. New York , 860 F.2d 1145 (2d Cir. 1988) (a cceptin g reje ction of la

ches def ense as l aw of the

case). The resu

lt would be

the same regardless of whether the la ches defense were asser

ted under federal or state law. Oneida Indian Nation , 691 F.2d at 1084. In a sserting

its waive r and est oppel def enses, Sh errill c ontends th at the OI N’s clai m to aboriginal title in the properties is inconsistent with its open-market purchases. As discussed, there is, however, no inconsistency ; Indian title and fee simple ownership of r eservation land are distinct. We

see no re ason why

a tribe h olding bo th fee sim ple title a nd In dian title in a prope

rty should be prevented from suing based on the latter. Ac cordingly , we agree with the lower c ourt’s conclusion that Sherrill’s proposed amendment to its answer in the L ead case was futile.

VII. Motion to

Dismiss the Mem

bers Case In the Members case , Sherrill contends that the OIN’s off icers violated state law by failing to pay proper

ty taxes and collect state sales ta xes on the Sherrill Properties. Its claims against the office rs with re gard to

propert y ta xes are in sufficie

nt for the same re ason its c ounterc laims ag ainst the tribe are insu fficien

t: the par cels ar e not taxab le. Sherr

ill itself a cknowle dged th e possibili ty of this result in its brief on appeal. See Sherrill Br. at 59 (“I f . . . this Court reverses the finding of Indian country

. . . then the pleading in the Members Case is sufficient . . . . ”).28 We need not address the additional ground upon which the District Court found the

Members case insufficient, namely , that Sherrill failed to add the OIN a s a necessary and indispensable party. See One id a IV , 145 F. Supp. 2d at 263-64. Sherrill seeks damages for unjust enrichment ar ising out of the officers’ allege d nonpayment of state sa

les taxes, in particular for goods sold to non-I ndians. Compl., Members Case, ¶¶ 25-27, 41-45. While individual tribal officers may be liable for nonpay

ment of state sales taxes where they

act outside the authority of the tribe, see Potawato mi , 498 U .S. at 514 (c itin g Ex parte Young , 209 U.S. 1 23 (1908) ); Bassett v. Mashantucket Pequot Tribe , 204 F.3d 343, 355, 358-59 (2d Cir. 2000), there is no allegation that the OI N’s officers – whom Sherrill sued in their official capaci ties – did so

here. Co nsequen

tly, Sherrill’ s claim for damag es aga inst the OI

N’s offi cers is

no di ff er en t f ro m a cl ai m a ga in st th e t ri be it se lf fo r n on -p aym en t o f s al es ta xe s. Ac co rd in gl y, since the District Court correctly concluded that these officers were immune from suit on the claims re lated to c ollection of sales taxes, we affirm the dismissal of the Members case. 28

VIII. Motions in t he Relat ed Case Madison a

ppeals f rom (i) th e District Court’s d enial of its motion to

dismiss pur suant to Federal Rule of Civil Procedure 19 for failure to add the Wisconsin and Thames Oneidas as plaintiff s in the Rel ated ca se; and ( ii) the Dis trict Cour t’s sua sponte

award of judgment on the pleadings to the OIN. See One id a IV , 145 F. Su pp. 2d at 2 64; Oneida Indian Nation of N.Y . v. Madison Co

unty , 145 F. Supp. 2d 268 (N.D.N.Y. 2001).A. Rule 19

Reviewing for abuse of discretion, Viacom Int’l, I nc. v. Kearney , 212 F.3d 721, 725 (2d Cir. 2000), we affirm the lower court’s determination that the Wisconsin and Thame s Oneidas were not necessary

(and hence not indispensable) parties. Fede ral Rule of Civil Procedure 19(a) provides : A person who is subject to service of process and whose joinder will not deprive the cour t of jurisd iction ove r the subj ect matte

r of the a ction sha ll be joine d as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those alrea dy parties, or ( 2) the person claims an interest relating to the subj ect of th e action and is so si

tuated th at the disp osition of t he actio n in the person’s absence may (i) as a practical matter impair or impede the pe rson’s ability to protect that interest or (ii) le ave any of the persons already

parties subject to a substan tial risk o f incurr

ing doub le, multipl e, or othe rwise inconsistent obligations by rea son of the claimed interest. Should a dis trict cou

rt deter mine that a

non-par ty is necessa ry but is not a

ble to join h

im, Rule 19(b ) requir

es it to con sider, a

mong othe

r things , “to what extent a judgment rendered in the person’s absence might be prejudicial to the pe rson or those already

parties,” in determining whether the action must be dismissed. Madison contends that the Wisconsin and Thames Oneidas are necessar y and indispens able par

ties in the Related c ase bec ause of t heir invo lvement in

other la nd claim litigation currently

pending in the Northern District of New York. See supra Par t II ; One id a IIIa , 199 F.R.D . 61; One id a IIIb , 194 F. Supp. 2d 104. The parties whose interests Madison contends require protection, however, deny they require

it. On the contrary , the Wisconsin and Thames Oneidas insist that their interests are aligned with, and adequa tely protected by

, the OIN and they will not be prejudiced if they are not joined. See 6/15/00 Aff. of Arlinda Locklea r; 6/23/00 Aff. of Carey R. Ramos (submitted in 00-CV-506). Moreover, the OIN can obtain the requesteddeclaratory and injunctive relief without the other branches as parties. A ccordingly , the District Court did not abuse its discretion in determining that the Wisconsin and Thames Oneidas are not
necessary , and hence not indispensable, parties. See ConnTech Dev. v. Univ. of Conn. Ed. Props., Inc. , 102 F.3d 677, 682 (2d Cir. 1996).

B. Judgment on the Pleadings In awarding

judgment on the pleadings in the Related case to the OI N, the District Court determined that: [a]ll the facts in the Lead Case likewise apply in this case. Moreover, as Madison County appeare d as amicus curiae in the Le ad Case, it had a full opportunity to be heard on the taxation issue. Accordingly , based upon the foregoing dete rmination that the properties at issue are I ndian Country and there fore not taxable, the Nation is entitled to judgment on the pleadings. One id a IV , 145 F. Supp. 2d at 264. We believ e that this sua sponte dismissal of the Related case “on the pleadings” wa s procedurally

improper. Under Federal Rule of Civil Procedure 12( c), a party may move for judgment on the pleadings only “[a]fter the pleadings are closed.” Althoug h Madison had moved to dismiss th e compla

int under Rule 19(a

) for fa ilure to jo in neces sary

and indisp ensable

parties, it has not an swered

the compl aint. Mad

ison conte

nds that, i f it had a

n opportun

ity t o answer , it would ra ise defe nses distin

ct from those of She

rrill – al though it neglec ts to artic ulate tho se defenses. Further, the sole gr ound the court provided for its decision to dismiss the case was that “[a]ll the facts in the Lead Case apply in this case.” Different parcels, howeve r, are at issue. And although there is some evidence in the rec ord indicating that the Madison properties were par t of the Oneidas’ historical reservation, this evidence is meag er. It may well be that the lower court’sinstincts on the merits of Madison’s claims are correct. But rathe r than attempt to decide the issue based on an incomplete record, we vac ate this portion of the judgment and remand for further
procee dings.

CONCLUSION For the foregoing r

easons, we affirm: (i) the denial of Sherrill’s motion for summary judgment or, in the alternative, for a preliminary injunction based on its counterclaims in the Lead case; (ii) the denial of Sherrill’s motion for leave to amend its answer in the Lead case; (iii) the denial of Sherrill’s Rule 56(f) motion; (iv) the grant of the OI N’s cross-motion for summary judgmen t in the L ead and

Eviction c ases; an

d (v) the grant o f the OI

N’s offi cers’ mo tion to dismiss the Members case. We vacate the dismissal of the Related case a nd remand for further proceedings consistent with this opinion.

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