1

05-6408-cv (L)

Oneida Indian Nation v. Madison County

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2007

4 (Argued: November 6, 2007; Originally Decided: April 27, 2010;

5 Vacated and Remanded by the Supreme Court of the United States: 

6 January 10, 2011; Final Submission on Remand: February 7,

7 2011; Decided: October 20, 2011)

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

9 -------------------------------------

10 ONEIDA INDIAN NATION OF NEW YORK,

11 Plaintiff-Counter-Defendant-Appellee,

12 - v -

13 MADISON COUNTY AND ONEIDA COUNTY, NEW YORK,

14 Defendants-Counter-Claimants-Appellants,

15 STOCKBRIDGE-MUNSEE COMMUNITY, BAND OF MOHICAN INDIANS,

16 Putative Intervenor-Appellant.

17 -------------------------------------

18 Before: CABRANES, SACK, and HALL, Circuit Judges. 

19 Consolidated appeals from judgments of the United

20 States District Court for the Northern District of New York
2

1 (David N. Hurd, Judge). In separate actions, the Oneida Indian

2 Nation of New York (OIN) brought suit against Madison County and

3 Oneida County to enjoin them from assessing property tax on OIN4 owned property, acquired on the open market in the 1990s, and

5 from enforcing those taxes through tax sale or foreclosure. On

6 cross-motions for summary judgment in each action, the district

7 court entered judgment in favor of the OIN on four separate

8 grounds: (1) tribal sovereign immunity from suit; (2) the

9 Nonintercourse Act, 25 U.S.C. § 177; (3) constitutional due

10 process; and (4) property-tax exemptions under New York state

11 law. On appeal, we affirmed solely on the basis that the OIN's

12 tribal sovereign immunity from suit barred the Counties from

13 undertaking foreclosure proceedings against it. See Oneida

14 Indian Nation of N.Y. v. Madison County, 605 F.3d 149 (2d Cir.

15 2010). The U.S. Supreme Court granted the Counties' petition for

16 a writ of certiorari, after which the OIN declared that it had

17 waived its tribal sovereign immunity from suit. The Supreme

18 Court then vacated our prior decision and remanded for further

19 proceedings. See Madison County v. Oneida Indian Nation of N.Y.,

20 131 S. Ct. 704 (2011) (per curiam). Upon the return of these

21 appeals to our Court, we conclude that the OIN has abandoned its

22 claims premised on tribal sovereign immunity from suit as well as

23 its claims based upon the Nonintercourse Act. In proceeding to
3

1 review the remaining two grounds supporting the district court's

2 judgments, we conclude that the district court erred in ruling

3 that the Counties' redemption-notice procedures failed to comport

4 with due process. We further conclude that the district court

5 should not exercise supplemental jurisdiction over the OIN's

6 state-law claims. Finally, we affirm as to several ancillary

7 matters.

8 Affirmed in part, reversed in part, and vacated in

9 part, with instructions.

10 On original appeal: DAVID M. SCHRAVER, David H. Tennant,

11 John J. Field, Nixon Peabody LLP,

12 Rochester, NY, for Defendants-Counter13 Claimants-Appellants Madison County, New

14 York, and Oneida County, New York.

15 MICHAEL R. SMITH, David A. Reiser,

16 Zuckerman Spaeder LLP, Washington, DC;

17 Peter D. Carmen, Oneida Nation Legal

18 Department, Verona, NY, for Plaintiff19 Counter-Defendant-Appellee Oneida Indian

20 Nation of New York.

21 DON B. MILLER, Don B. Miller, P.C.,

22 Boulder, CO, for Putative Intervenor23 Appellant Stockbridge-Munsee Community,

24 Band of Mohican Indians.

25 ANDREW D. BING, Assistant Solicitor

26 General (Barbara D. Underwood, Solicitor

27 General; Daniel Smirlock, Deputy

28 Solicitor General; and Peter H. Schiff,

29 Senior Counsel, on the brief; Dwight A.

30 Healy, White & Case LLP, New York, NY,

31 of counsel) for Andrew M. Cuomo,

32 Attorney General, for Amicus Curiae

33 State of New York.
4

1 Ronald J. Tenpas, Assistant Attorney

2 General, Samuel C. Alexander, Elizabeth

3 Ann Peterson, Kathryn E. Kovacs, U.S.

4 Department of Justice, Environment &

5 Natural Resources Division, Appellate

6 Section, Washington, DC; Thomas Blaser,

7 U.S. Department of the Interior,

8 Washington, DC, for Amicus Curiae United

9 States of America.

10 On remand from 

11 U.S. Supreme Court: David M. Schraver, Nixon Peabody LLP,

12 Rochester, NY, for Defendants-Counter13 Claimants-Appellants Madison County, New

14 York, and Oneida County, New York.

15 Seth P. Waxman, Wilmer Cutler Pickering

16 Hale & Dorr LLP, Washington, DC, for

17 Plaintiff-Counter-Defendant-Appellee

18 Oneida Indian Nation of New York.

19 Don B. Miller, Don B. Miller, P.C.,

20 Boulder, CO, for Putative Intervenor21 Appellant Stockbridge-Munsee Community,

22 Band Of Mohican Indians.

23 Andrew D. Bing, Deputy Solicitor General

24 (Barbara D. Underwood, Solicitor

25 General, on the brief), for Eric T.

26 Schneiderman, Attorney General, for

27 Amicus Curiae State of New York.

28 SACK, Circuit Judge:

29 These consolidated appeals, which have been returned to

30 us on remand from the United States Supreme Court, once again

31 call upon us to consider whether -- and, if so, on what grounds

32 -- the plaintiff-appellee, the Oneida Indian Nation of New York

33 (the "OIN"), is entitled to restrain the defendants-appellants,

34 Madison County and Oneida County (the "Counties"), from

35 foreclosing upon certain fee-title properties, acquired on the
5

1 open market by the OIN in the 1990s, for which the OIN has

2 refused to pay property tax. In our previous opinion, Oneida

3 Indian Nation of N.Y. v. Madison County, 605 F.3d 149 (2d Cir.

4 2010) ("Oneida I"), we concluded that the Counties were barred

5 from foreclosing on these properties by virtue of the OIN's

6 tribal sovereign immunity from suit. We therefore affirmed the

7 judgments of the United States District Court for the Northern

8 District of New York (David N. Hurd, Judge), which had issued

9 parallel injunctions barring the Counties from enforcing their

10 property-tax regimes against the OIN's properties through tax

11 sale or foreclosure. See Oneida Indian Nation v. Oneida County,

12 432 F. Supp. 2d 285, 292 (N.D.N.Y. 2006) ("Oneida County I");

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

14 219, 231-32 (N.D.N.Y. 2005) ("Madison County I"). Although the

15 district court rested its grant of judgment in each case on four

16 independent grounds -- (1) the OIN's tribal sovereign immunity

17 from suit; (2) federal restrictions on the alienation of tribal

18 lands under the Nonintercourse Act, 25 U.S.C. § 177; (3)

19 inadequate notice to the OIN of the expiration of the Counties'

20 respective redemption periods, in violation of due process; and

21 (4) the exemption of "Indian reservation[s]" from property tax

22 under New York state law, see Oneida County I, 432 F. Supp. 2d at

23 289-90; Madison County I, 401 F. Supp. 2d at 227-31 -- our

24 decision on appeal affirmed the judgments solely on the basis of
6

1 tribal sovereign immunity from suit. See Oneida I, 605 F.3d at

2 160. 

3 Subsequent to our decision in Oneida I, the Counties

4 successfully petitioned the United States Supreme Court for a

5 writ of certiorari. While the case was pending before the

6 Supreme Court, however, the OIN notified the Court that it had

7 voluntarily waived its tribal sovereign immunity from suit. In

8 light of that factual development, the Supreme Court vacated our

9 judgment in Oneida I and remanded for further proceedings. The

10 Court has instructed us, on remand, to "address, in the first

11 instance, whether to revisit [our] ruling on sovereign immunity

12 in light of this new factual development, and -- if necessary --

13 proceed to address other questions in the case consistent with

14 [our] sovereign immunity ruling." Madison County v. Oneida

15 Indian Nation of N.Y., 131 S. Ct. 704, 704 (2011) (per curiam). 

16 After reviewing the parties' submissions on remand from

17 the Supreme Court, we conclude that the district court's

18 judgments can no longer be sustained on the basis we relied upon

19 in Oneida I. The OIN has affirmatively disclaimed any reliance

20 on the doctrine of tribal sovereign immunity from suit, and it

21 thereby abandoned its declaratory claims against the Counties to

22 the extent that they depended on such immunity. We further

23 conclude that the OIN has abandoned its declaratory claims

24 premised upon the Nonintercourse Act, 25 U.S.C. § 177. 
7

1 Those dispositions leave two grounds remaining in

2 support of the district court's judgments: the OIN's due-process

3 claims, based upon the Counties' alleged failure to provide

4 adequate notice to the OIN of the expiration of the redemption

5 periods applicable to each County's respective tax-enforcement

6 proceedings, and the OIN's claims that its properties are exempt

7 from taxation under New York Indian Law § 6 and New York Real

8 Property Tax Law § 454. 

9 With respect to the due-process claims, we conclude

10 that the district court erred in ruling that the redemption

11 notices failed to comport with due process. We reverse the

12 district court to the extent that it entered judgment in the

13 OIN's favor on its claims for violations of the Fourteenth

14 Amendment.

15 With respect to the OIN's claims arising under state

16 tax law, we conclude that concerns of comity, fairness, and

17 judicial economy warrant that we and the district court decline

18 to exercise supplemental jurisdiction over them. We vacate the

19 district court's judgments to the extent that they rest upon a

20 determination that the OIN is entitled to property-tax exemptions

21 under state law, and we remand with instructions to the district

22 court to dismiss without prejudice the OIN's state-law claims. 

23 Because no grounds remain in support of the district court's
8

1 award of permanent injunctive relief, we also vacate both

2 injunctions in their entirety. 

3 Finally, we affirm, in whole or in part, the district

4 court's determinations as to several ancillary matters: First,

5 we affirm the district court's subsidiary ruling in the Oneida

6 County litigation (a ruling also arguably implicit in the Madison

7 County litigation) that the OIN is not liable to pay penalties or

8 interest for unpaid taxes accruing prior to March 29, 2005, on

9 the ground that the Counties have forfeited their defense on this

10 issue. Second, as in Oneida I, we affirm the district court's

11 decision to decline to abstain from this litigation. Third, we

12 affirm the denial of a motion by the Stockbridge-Munsee

13 Community, Band of Mohican Indians seeking to intervene in this

14 litigation. Lastly, we affirm the district court's dismissal of

15 the Counties' counterclaims seeking a declaration that the Oneida

16 Nation's ancient reservation was disestablished.

17 BACKGROUND

18 The background facts of this protracted and

19 procedurally convoluted litigation are set forth in various

20 opinions of this and other Courts. See, e.g., City of Sherrill

21 v. Oneida Indian Nation of N.Y., 544 U.S. 197, 203-12 (2005)

22 ("Sherrill III"); Oneida I, 605 F.3d at 152-56; Oneida Indian

23 Nation of N.Y. v. City of Sherrill, 337 F.3d 139, 146-52 (2d Cir.

24 2003) ("Sherrill II"), rev'd, Sherrill III, 544 U.S. 197; Oneida
1

 The short-form citations employed in this decision differ

from those used in our previous decision of April 2010. For

example, the 2003 Second Circuit decision that we previously

referred to as "Oneida I" is now referred to as "Sherrill II."

2

 We have previously cautioned:

Despite our use of the "OIN" acronym, the

Oneida Indian Nation of New York should not

be confused with the original Oneida Indian

Nation, which is not a federally recognized

tribe and is not a party to these

consolidated cases. . . . [T]he original

Oneida Indian Nation became divided into

three distinct bands, the New York Oneidas,

the Wisconsin Oneidas, and the Canadian

Oneidas, by the middle of the nineteenth

century.

Sherrill II, 337 F.3d at 144 n.1. Today, those three bands are

known as the Oneida Indian Nation of New York (i.e., the OIN);

the Oneida Tribe of Indians of Wisconsin; and the Oneida Nation

of the Thames, respectively. See Oneida Indian Nation of N.Y. v.

Madison County, 145 F. Supp. 2d 268, 269-70 (N.D.N.Y. 2001),

rev'd, Sherrill II, 337 F.3d 139, rev'd, Sherrill III, 544 U.S.

197. 

9

1 Indian Nation of N.Y. v. City of Sherrill, 145 F. Supp. 2d 226,

2 232-36 (N.D.N.Y. 2001) ("Sherrill I"), aff'd in part, vacated and

3 remanded in part, Sherrill II, 337 F.3d 139, rev'd, Sherrill III,

544 U.S. 197.1 4 We repeat them only insofar as we think necessary

5 to an understanding of our resolution of these appeals.

6 The Oneida Nation's Ancient Reservation

7 The OIN is a federally recognized Indian tribe that is

8 directly descended from the original Oneida Indian Nation

("Oneida Nation"), one of six Iroquois nations.2 9 Sherrill III,

10 544 U.S. at 203. The Oneida Nation's homeland once encompassed

11 "some six million acres in what is now central New York [State]." 
3

 The Nonintercourse Act remains substantially in force

today. See Sherrill III, 544 U.S. at 204 & n.2. The statute,

codified at 25 U.S.C. § 177(a), bars the "purchase, grant, lease,

or other conveyance of lands . . . from any Indian nation or

tribe of Indians . . . unless the same be made by treaty or

convention entered into pursuant to the Constitution." See also

25 C.F.R. § 152.22(b).

10

1 Id. In 1788, pursuant to the Treaty of Fort Schuyler between the

2 Oneida Nation and the State of New York, the Oneida Nation ceded

3 title to the vast majority of its lands and retained a

4 reservation of approximately 300,000 acres. Id. In 1790,

5 Congress passed the first Indian Trade and Intercourse Act, also

6 known as the Nonintercourse Act, a law barring the alienation of

tribal land absent the acquiescence of the federal government.3 7

8 See Act of July 22, 1790, ch. 33, 1 Stat. 137. In 1794, the

9 United States and various Iroquois nations, including the Oneida

10 Nation, entered into the Treaty of Canandaigua. "That treaty

11 both 'acknowledge[d]' the Oneida Reservation as established by

12 the Treaty of Fort Schuyler and guaranteed the Oneidas' 'free use

13 and enjoyment' of the reserved territory." Sherrill III, 544

14 U.S. at 204-05 (brackets in original) (quoting Act of Nov. 11,

15 1794, art. II, 7 Stat. 44).

16 Despite the provisions of the Nonintercourse Act,

17 substantial portions of the Oneida Nation's remaining reservation

18 lands were thereafter conveyed to New York State and private

19 parties without federal permission. See id. at 205-06; Sherrill

20 II, 337 F.3d at 147-48. And by the early nineteenth century, the
4

 As we will discuss further below, the parties vigorously

dispute whether the Treaty of Buffalo Creek effected a legal

disestablishment or diminishment of the Oneida Nation's ancient

reservation.

11

1 federal government itself, in apparent disregard of its

2 commitments under the Treaty of Canandaigua, "pursued a policy

3 designed to open reservation lands to white settlers and to

4 remove tribes westward." Sherrill III, 544 U.S. at 205. 

5 By 1838, the Oneida Nation had sold all but 5,000 acres

6 of its reservation. Id. at 206. That year, the United States

7 and various Indian tribes in New York, including the Oneida

8 Nation, entered into the Treaty of Buffalo Creek, an agreement

9 that contemplated the eventual removal of all remaining Native

Americans in New York to reservation lands in Kansas.4 10 See Act

11 of Jan. 15, 1838, 7 Stat. 550. These efforts were not completed,

12 however, and federal efforts to relocate the New York Oneidas to

13 Kansas ended by 1860. See Sherrill III, 544 U.S. at 207. 

14 Nonetheless, by 1920, only thirty-two acres of the Oneida

15 Nation's ancient reservation remained in tribal possession. See

16 id.

17 In the mid-twentienth century, descendants of the

18 Oneida Nation began seeking legal relief -- first through

19 proceedings before the Indian Claims Commission, and later

20 through litigation in federal court -- for the allegedly unlawful

21 dispossession of their ancestral lands. Id. at 207-08. In 1970,
12

1 the OIN and the Oneida Indian Tribe of Wisconsin instituted a

2 "test case" against Oneida County and Madison County alleging

3 that the Oneida Nation's cession of some 100,000 acres to the

4 State of New York in 1795 had violated the federal Nonintercourse

5 Act and therefore had not terminated the Oneidas' legal right to

6 possess those lands. Id. at 208. The Oneidas subsequently

7 received several favorable decisions from the United States

8 Supreme Court. See Oneida Indian Nation of N.Y. v. Oneida

9 County, 414 U.S. 661 (1974) ("County of Oneida I") (upholding

10 federal jurisdiction over the Oneidas' complaint); Oneida County

11 v. Oneida Indian Nation of N.Y., 470 U.S. 226 (1985) ("County of

12 Oneida II") (ruling that the Oneidas had stated a claim for

13 damages under federal common law). In 1974, a few months after

14 the Oneidas' success in the Supreme Court in County of Oneida I,

15 the OIN initiated a more comprehensive land claim against the

16 Counties. See Oneida Indian Nation of N.Y. v. County of Oneida,

17 No. 5:74-CV-187 (N.D.N.Y. filed May 3, 1974) (the "Land Claim

18 Litigation"). Later, the United States intervened as a

19 plaintiff, and the State of New York was added as a defendant. 

20 That litigation, which centers on the OIN's claims to more than

21 250,000 acres of ancestral lands that are not currently in the

22 OIN's possession, continues to the present day. See Oneida

23 Indian Nation of N.Y. v. County of Oneida, 617 F.3d 114, 119-21

24 (2d Cir. 2010) (surveying procedural history of the Land Claim
13

1 Litigation), cert. denied, ––- U.S. ----, 2011 WL 1933740, 2011

2 U.S. LEXIS 7494 (U.S. Oct. 17, 2011). However, the Land Claim

3 Litigation is not directly at issue in the present appeals. The

4 appeals before us are only about lands that the OIN reacquired on

5 the open market in the 1990s and now possesses. 

6 The OIN's Land Purchases and the 

7 City of Sherrill Litigation

8 In the early 1990s, the OIN began to reacquire, through

9 voluntary, free-market transactions, lands that had once been a

10 part of the Oneida Nation's reservation, but which later passed

11 into the possession of New York State or private, non-Indian

12 titleholders, who thereafter held title to them in fee simple. 

13 See Sherrill II, 337 F.3d at 144, 156. Before the OIN's recent

14 reacquisition of these fee-title lands -- which are located

15 within Madison County and Oneida County and in various cities

16 therein, including the City of Sherrill -- the lands had been

17 subject to property taxation. 

18 After acquiring the lands in the 1990s, the OIN refused

19 to pay property tax upon them. The OIN contended that these

20 properties fell within the Oneida Nation's reservation as

21 recognized by the Treaties of Fort Schuyler and Canandaigua and

22 that the OIN's re-purchase of those lands had resuscitated the

23 tribe's "sovereign dominion over the parcels." Sherrill III, 544

24 U.S. at 213. In asserting that the fee-title lands remained part

25 of its reservation, the OIN principally relied upon the Supreme
14

1 Court's 1985 decision in County of Oneida II, which held that the

2 OIN was entitled to bring suit under federal common law for the

3 wrongful alienation of its ancestral lands, see 470 U.S. at 253-

4 54.

5 One of the taxing authorities within whose jurisdiction

6 some of the reacquired lands fell, the City of Sherrill,

7 responded to the OIN's refusal to pay property taxes by selling

8 three of the OIN's properties at a tax sale. See Sherrill I, 145

9 F. Supp. 2d at 232-33. The City itself purchased the properties,

10 and it later began formal eviction proceedings. Id. In

11 response, in February 2000, the OIN brought suit against the City

12 of Sherrill in the United States District Court for the Northern

13 District of New York seeking a declaration that the lands in

14 question were "Indian country" as defined by federal law, see 18

15 U.S.C. § 1151, and were therefore exempt from state and municipal

16 taxation. Id. at 237. Two weeks later, the City of Sherrill

17 began a summary eviction proceeding in state court seeking to

18 evict the OIN from the three parcels. The OIN removed the

19 eviction action to federal court. See id. at 233, 238. At about

20 the same time, the OIN also brought a declaratory-judgment suit

21 against Madison County, which had initiated in rem tax22 foreclosure proceedings on certain OIN-owned properties. Id. at

23 239-40. These three cases, along with a fourth lawsuit brought

24 by the City of Sherrill against individual OIN members, were
5 In a separate opinion, the district court also denied

Madison County's motion to dismiss pursuant to Fed. R. Civ. P. 19

based upon the OIN's failure to join two parties: the Oneida

Tribe of Indians of Wisconsin and the Oneida of the Thames. See

Oneida Indian Nation of N.Y. v. Madison County, 145 F. Supp. 2d

268 (N.D.N.Y. 2001). We affirmed that determination on appeal. 

See Sherrill II, 337 F.3d at 169-70. 

15

1 designated as related and assigned to Judge David N. Hurd. See

2 generally Sherrill II, 337 F.3d at 144-45 (identifying and

3 describing these four cases); Sherrill I, 145 F. Supp. 2d at 236-

4 40 (same). 

5 The district court, accepting the OIN's theory that the

6 repurchased fee-title lands constituted "Indian country" within

7 the meaning of 18 U.S.C. § 1151, granted summary judgment in the

8 OIN's favor in all of the related lawsuits and enjoined both the

9 City of Sherrill and Madison County from further attempts to

collect property tax.5 10 See Sherrill I, 145 F. Supp. 2d at 267-

11 68. On appeal, we affirmed the district court's judgments in

12 each of the three lawsuits involving the City of Sherrill, see

13 Sherrill II, 337 F.3d at 155-69, but vacated the judgment in the

14 suit involving Madison County on procedural grounds, see id. at

15 146, 170-71. The City of Sherrill successfully petitioned the

16 United States Supreme Court for a writ of certiorari, and the

17 OIN's lawsuit against Madison County was held in abeyance pending

18 the outcome of the City of Sherrill's Supreme Court appeal. 

19 In 2005, in reviewing our decision in Sherrill II, the

20 Supreme Court focused its attention on a question that it had
16

1 reserved two decades before: "'whether equitable considerations

2 should limit the relief available to the present day Oneida

3 Indians.'" Sherrill III, 544 U.S. at 209 (quoting County of

4 Oneida II, 470 U.S. at 253 n.27). Answering that question in the

5 affirmative, the Supreme Court held that "standards of federal

6 Indian law and federal equity practice preclude[d] the [OIN] from

7 rekindling embers of sovereignty that long ago grew cold." Id.

8 at 214 (internal quotation marks omitted). The Court explained: 

9 [T]he distance from 1805 to the present day,

10 the Oneidas' long delay in seeking equitable

11 relief against New York or its local units,

12 and developments in the city of Sherrill

13 spanning several generations, evoke the

14 doctrines of laches, acquiescence, and

15 impossibility, and render inequitable the

16 piecemeal shift in governance this suit seeks

17 unilaterally to initiate. 

18 Id. at 221; see also id. at 215 n.9. The Supreme Court therefore

19 reversed our judgment in Sherrill II, which had affirmed the

20 injunctions entered in the OIN's favor. But the Court

21 acknowledged that it had not squarely addressed all of the

22 questions that the parties had briefed, see Sherrill III, 544

23 U.S. at 214 n.8, including whether the ancient Oneida Nation

24 reservation had been disestablished or diminished by the 1838

25 Treaty of Buffalo Creek, see id. at 215 n.9. 

26 The Counties' Subsequent Attempts 

27 to Foreclose on the OIN's Land

28

29 Following the Supreme Court's ruling in Sherrill III

30 that the OIN did not possess "sovereign authority" over the
6

 Madison County's tax-enforcement procedures, which are

governed by Article 11 of the New York Real Property Tax Law, are

described in further detail in Part III.B.1 of the Discussion

section, below.

17

1 reacquired properties, id., the OIN reached a settlement with the

2 City of Sherrill. See Madison County I, 401 F. Supp. 2d at 223

3 n.2 (noting settlement). The OIN was unable, however, to reach

4 agreement with two other taxing authorities: Madison County and

5 Oneida County. 

6 Madison County. Beginning in 1999, Madison County

7 commenced annual in rem tax-enforcement proceedings against

8 parcels of land that had been repurchased by the OIN in the 1990s

and on which the OIN had refused to pay taxes.6 9 From 2000

10 onward, however -- after the filing of the Madison County

11 litigation in the Northern District of New York -- Madison County

12 followed a practice of initiating such proceedings only to

13 withdraw them without prejudice in anticipation of a resolution

14 of the taxability question in federal court. It continued to do

15 so until, in 2003, this Court separated the ongoing Madison

16 County litigation from the City of Sherrill litigation and

17 remanded the Madison County suit to the district court for

18 further proceedings. See Sherrill II, 337 F.3d at 171.

19 On November 14, 2003, Madison County began a tax20 enforcement process with respect to some ninety-eight parcels of

21 OIN-owned property by including those parcels on a list of
18

1 delinquent taxes filed with the county clerk. This time,

2 however, Madison County did not abandon the tax-enforcement

3 process as to the OIN-owned parcels. Instead, in December 2004,

4 the County proceeded to execute a petition of foreclosure in New

5 York state court. Notice of this filing was sent to the OIN by

6 certified mail on December 8, 2004, and published in local

7 newspapers in December 2004 and January 2005. The notice

8 established March 31, 2005, as the last day that the properties

9 could be redeemed from foreclosure by full payment of back taxes,

10 plus penalties and interest. Id. Just two days before the final

11 day for redemption, on March 29, 2005, the Supreme Court decided

12 Sherrill III. See 544 U.S. 197. In light of this development,

13 Madison County subsequently extended the redemption period for

14 the OIN's properties until June 3, 2005, and later to July 14,

15 2005. 

16 In the meantime, on March 30, 2005, the OIN filed a

17 verified answer in the state-court foreclosure action. On April

18 28, 2005, Madison County moved for summary judgment in the state19 court action. Madison County maintains that as of May 15, 2005,

20 the OIN owed it approximately $3 million in unpaid property

21 taxes, penalties, and interest. 

22 Oneida County. Similarly, in the years prior to 2005,

23 Oneida County appears to have followed a practice of beginning,

24 but not completing, its tax-enforcement procedures with respect
7

 Unlike Madison County, Oneida County does not follow

Article 11 of the New York Real Property Tax Law; instead, it

follows its own tax-enforcement procedures, which provide for a

tax sale followed by transfer of title. See Oneida County I, 432

F. Supp. 2d at 287. These procedures are described in Part

III.B.2 of the Discussion section, below. 

Despite the fact that Oneida County employs a tax-sale

procedure rather than simple foreclosure, we occasionally use the

term "foreclosure" generically in this opinion to refer to the

tax-enforcement procedures of both Madison County and Oneida

County.

19

to OIN-owned lands.7 1 However, after the Supreme Court's decision

2 in Sherrill III in March 2005, Oneida County began to implement

3 fully its tax-enforcement procedures against OIN-owned

4 properties. On June 3, 2005, Oneida County's Deputy Commissioner

5 of Finance hand-delivered notices to the OIN with regard to

6 fifty-nine parcels that had been sold at tax sale three years

7 prior. Oneida County I, 432 F. Supp. 2d at 288. These notices

8 specified that the OIN would have until July 29, 2005, to remit

9 all unpaid taxes, penalties, and interest or else forever lose

10 its legal interest in the properties. Id. Oneida County

11 subsequently delivered additional final-redemption notices to the

12 OIN for another sixty-two parcels on September 26, 2005, and an

13 additional sixty-six parcels on October 27, 2005. Id. Oneida

14 County maintains that, as of November 30, 2005, the OIN owed it

15 approximately $5 million in unpaid property taxes, penalties, and

16 interest. 

17 The Post-Sherrill III District Court Proceedings
20

1 In an effort to prevent each of the Counties from

2 completing its respective tax-enforcement procedures, the OIN

3 sought declaratory and injunctive relief in federal court. As to

4 Madison County, against which litigation had been pending since

5 March 2000, the OIN moved in June 2005 for a preliminary

6 injunction to restrain all further efforts to foreclose upon OIN7 owned property. The district court granted that motion and

8 issued such an injunction on July 1, 2005. See Oneida Indian

9 Nation of N.Y. v. Madison County, 376 F. Supp. 2d 280, 283

10 (N.D.N.Y. 2005) (awarding injunction). 

11 As to Oneida County, the OIN filed suit against it for

12 the first time in July 2005. The OIN obtained a temporary

13 restraining order against Oneida County on October 28, 2005,

14 barring it from further tax-enforcement efforts with respect to

15 the OIN's property. This restraining order was then effectively

16 converted into a preliminary injunction by stipulation of the

17 parties. See Oneida County I, 432 F. Supp. 2d at 286 (describing

18 procedural history with respect to preliminary relief). 

19 The parties then brought cross-motions for summary

20 judgment in each lawsuit. The district court granted the OIN's

21 respective motions and entered judgment in its favor in each

22 case. See Oneida County I, 432 F. Supp. 2d at 292; Madison

23 County I, 401 F. Supp. 2d at 232-33. In concluding that the

24 Counties could not enforce their property taxes through tax sale
21

1 or foreclosure, the district court rested its determination on

2 four independent grounds: (1) the OIN's tribal sovereign immunity

3 from suit, see Oneida County I, 432 F. Supp. 2d at 289; Madison

4 County I, 401 F. Supp. 2d at 228-29; (2) the Nonintercourse Act's

5 restrictions on the alienability of tribal land, see Oneida

6 County I, 432 F. Supp. 2d at 289; Madison County I, 401 F. Supp.

7 2d at 227-28; (3) the Counties' failures to give the OIN adequate

8 notice of the expiration of the respective redemption periods in

9 violation of principles of due process, see Oneida County I, 432

10 F. Supp. 2d at 289-90; Madison County I, 401 F. Supp. 2d at 230;

11 and (4) the exemption of OIN-owned properties from property

12 taxation as a matter of state law, see Oneida County I, 432 F.

13 Supp. 2d at 290; Madison County I, 401 F. Supp. 2d at 231. The

14 district court also concluded that the OIN could not be compelled

15 to pay penalties or interest on any unpaid taxes by virtue of the

16 OIN's tribal sovereign immunity from suit. See Oneida Indian

17 Nation of N.Y. v. Oneida County, No. 6:05-CV-945, slip op. at 2-3

18 (N.D.N.Y. Nov. 2, 2006), ECF No. 41 ("Oneida County II"); Madison

19 County I, 401 F. Supp. 2d at 230. Finally, the district court

20 issued declarations in each case that the Oneida Nation had not

21 been disestablished by the 1838 Treaty of Buffalo Creek. See

22 Oneida County I, 432 F. Supp. 2d at 292; Madison County I, 401 F.

23 Supp. 2d at 231, 233. 
8

 More specifically, Stockbridge asserts that fifty-two of

the parcels in dispute -- two in Oneida County, and fifty in

Madison County -- are part of its own undiminished reservation as

recognized by the 1794 Treaty of Canandaigua. Before the

district court, Stockbridge argued that the existence of its land

claim made it an indispensable party to these proceedings, and

that its tribal sovereign immunity from suit would, in turn,

require dismissal of the lawsuit at least with respect to those

parcels over which Stockbridge lays claim. The district court

denied Stockbridge's motion to intervene on the basis that

Stockbridge had failed to demonstrate a sufficient interest in

the instant litigation. See Oneida County I, 432 F. Supp. 2d at

291-92; Madison County II, 235 F.R.D. at 562-63. 

Stockbridge is seeking the adjudication of its land claim in

a separate lawsuit pending in the Northern District of New York,

litigation within which the OIN has appeared as a defendantintervenor. See Amended Complaint, Stockbridge-Munsee Cmty. v.

New York, No. 3:86-CV-1140 (N.D.N.Y. Aug. 5, 2004), ECF No. 228. 

That lawsuit is currently stayed pending a decision by the

Supreme Court whether to grant a writ of certiorari to review our

Court's decision in Oneida Indian Nation of N.Y. v. County of

Oneida, 617 F.3d 114 (2d Cir. 2010).

22

1 At a different point in each litigation, the district

2 court also denied motions by the Stockbridge-Munsee Community,

3 Band of Mohican Indians ("Stockbridge") to intervene as of right

4 pursuant to Fed. R. Civ. P. 24(a), based upon Stockbridge's claim

5 to a six-square-mile reservation encompassing some of the parcels

6 in dispute. See Oneida Indian Nation of N.Y. v. Madison County,

7 235 F.R.D. 559, 562-63 (N.D.N.Y. 2006) ("Madison County II");

Oneida County I, 432 F. Supp. 2d at 291-92.8 8 

9 The Proceedings on Appeal to this Court: Oneida I

10 Following a round of post-judgment motion practice in

11 each lawsuit, each County appealed from the grant of summary

12 judgment and entry of injunctive relief against it. Stockbridge
9

 Both the stay and the supplementary submissions resulted

from ongoing factual developments. These developments, which are

described in our previous opinion, see Oneida I, 605 F.3d at 155-

56, involved efforts by the OIN to have the lands at issue

(amounting to roughly 17,000 acres) taken into trust by the

federal government as authorized by 25 U.S.C. § 465, thereby

exempting them from state or local taxation. As required by

federal trust regulations, see 25 C.F.R. pt. 151, the OIN posted

letters of credit securing the payment of all taxes, penalties,

and interest determined by the courts to be lawfully due. Three

years after the OIN filed its initial request, by Record of

Decision issued on May 20, 2008, the Department of the Interior

determined that it would take approximately 13,000 acres of the

land into trust. See 73 Fed. Reg. 30,144 (May 23, 2008).

Thereafter, a number of entities -- including the State of

New York, Madison County, Oneida County, various cities and

towns, the Stockbridge tribe, and several local citizens' groups

-- filed suit against the Secretary of the Interior to challenge

his decision to take the OIN's lands into trust. See, e.g., New

York v. Salazar, No. 6:08-CV-644, 2009 WL 3165591, at *1 n.2,

2009 U.S. Dist. LEXIS 90071, at *3 n.2 (N.D.N.Y. Sept. 29, 2009)

(identifying related cases filed in Northern District of New

York). All but one of those lawsuits remain pending, and as a

result, the transfer of lands into trust has not yet been

finalized. Those lawsuits do not affect our disposition of the

instant appeals.

23

1 also appealed, asserting error in the district court's denial of

2 its motion to intervene in the Oneida County litigation. We

3 consolidated the three appeals. The State of New York appeared

4 as amicus curiae in support of the Counties, while the United

5 States, upon order of this Court, also appeared as amicus

6 supporting the OIN.

7 After a brief stay and several rounds of supplementary

submissions,9 8 we affirmed the district court's judgments in the

9 OIN's favor, but solely on the basis that tax sale and

10 foreclosure of the OIN's properties were barred by the doctrine
10 One of the members of this panel filed a separate

concurrence, for himself and another member of this panel,

inviting Supreme Court review of our application of the doctrine

of tribal sovereign immunity from suit. See Oneida I, 605 F.3d

at 163-64 (Cabranes, J., concurring). 

24

1 of tribal sovereign immunity from suit. See Oneida I, 605 F.3d

2 at 156-60. We expressly declined to reach any of the "other

3 three rationales relied upon by the district court" in ruling in

the OIN's favor.10 4 Id. at 160. 

5 With respect to Stockbridge, we affirmed the denial of

6 its motion to intervene, agreeing with the district court that it

7 "lacked an interest in the instant litigation." Id. at 162; see

8 id. at 161-63. We also noted that our ground for decision

9 "render[ed] minimal the likelihood that Stockbridge w[ould] be

10 prejudiced by its failure to be allowed to intervene." Id. at

11 163.

12 The Proceedings Before the Supreme Court in 2010-11

13 Following our decision in Oneida I, the Counties

14 petitioned the United States Supreme Court for a writ of

15 certiorari, proposing two questions for review: (1) "whether

16 tribal sovereign immunity from suit, to the extent it should

17 continue to be recognized, bars taxing authorities from

18 foreclosing to collect lawfully imposed property taxes"; and (2)

19 "whether the ancient Oneida reservation in New York was

20 disestablished or diminished." Petition for Writ of Certiorari

21 at i, Madison County v. Oneida Indian Nation of N.Y., No. 10-72
11 The declaration reads as follows:

TO OUR BROTHERS, on 2 December 1794, here at our

homelands of the Oneida Nation, a Treaty was entered

into with the United States of America which reflected

the unique and special relationship between our

governments . . . ; and

BROTHERS, just one month before, on 11 November 1794,

the United States made the Treaty of Canandaigua, . . .

confirming, among other things, the ongoing governmentto-government relationship between the United States

and the Nation; and

BROTHERS, the Nation chooses to preserve its

sovereignty and also its rights acknowledged by the

United States in its treaty relationship with the

Nation, and also wishes to promote a peaceful and

harmonious relationship with its neighbors today and

unto the Seventh Generation; and

BROTHERS, that peaceful and harmonious relationship

would be served by removing any controversy or doubt as

to the Nation's ongoing commitment to resolve disputes.

NOW, THEREFORE, PURSUANT TO THE AUTHORITY VESTED IN THE

NATION BY VIRTUE OF ITS SOVEREIGNTY AND INHERENT POWERS

OF SELF GOVERNMENT,

The Nation hereby waives, irrevocably and perpetually,

its sovereign immunity to enforcement of real property

25

1 (U.S. July 9, 2010) ("Counties' Cert. Petition"). The Supreme

2 Court granted the Counties' petition, see 131 S. Ct. 459 (2010),

3 and ordered merits briefing.

4 On November 29, 2010, the OIN's tribal council convened

5 and issued a declaration and ordinance waiving "[the OIN's]

6 sovereign immunity to enforcement of real property taxation

7 through foreclosure by state, county and local governments within

and throughout the United States."11 8 Oneida Indian Nation of
taxation through foreclosure by state, county and local

governments within and throughout the United States. 

The Nation does not waive any other rights, challenges

or defenses it has with respect to its liability for,

or the lawful amount of, real property taxes.

ENACTED THIS 29th DAY OF NOVEMBER, 2010.

26

1 N.Y., Declaration of Irrevocable Waiver of Immunity, Ordinance

2 No. O-10-1 (Nov. 29, 2010) (the "Waiver Declaration"). The next

3 day, the OIN sent a letter notifying the Supreme Court that the

4 OIN had waived its immunity with respect to "the pending tax

5 foreclosure proceedings directly at issue in this case and to all

6 future tax foreclosure proceedings involving the [OIN]'s land." 

7 Letter from Seth P. Waxman, Esq., to Hon. William K. Suter, Clerk

8 of the Supreme Court of the United States, at 1, Madison County

9 v. Oneida Indian Nation of N.Y., No. 10-72 (U.S. Nov. 30, 2010). 

10 The OIN suggested that in light of this development, "the Court

11 may wish to direct the parties to address how this matter should

12 proceed." Id.

13 The Counties responded by letter dated December 1,

14 2010. Emphasizing that the OIN's Waiver Declaration occurred

15 just four days before the submission deadline for their opening

16 merits brief, the Counties asserted that the OIN's waiver

17 "appear[ed] to be a classic example of a litigant 'attempting to

18 manipulate the Court's jurisdiction to insulate a favorable

19 decision from review.'" Letter from David M. Schraver, Esq., to

20 Hon. William K. Suter, Clerk of the Supreme Court of the United
12 See supra note 9.

27

1 States, at 1, Madison County v. Oneida Indian Nation of N.Y., No.

2 10-72 (U.S. Dec. 1, 2010) (quoting City of Erie v. Pap's A.M.,

3 529 U.S. 277, 288 (2000)). The Counties also questioned the

4 scope and permanence of the Waiver Declaration, arguing that the

5 OIN's waiver was susceptible both of being read narrowly and of

6 being revoked by a future tribal council. The Counties therefore

7 argued that the waiver had not caused the question of tribal

8 sovereign immunity from suit to become moot. See id. at 2-4. 

9 The OIN replied the next day. See Letter from Seth P.

10 Waxman, Esq., to Hon. William K. Suter, Clerk of the Supreme

11 Court of the United States, Madison County v. Oneida Indian

12 Nation of N.Y., No. 10-72 (U.S. Dec. 2, 2010) ("OIN December 2

13 Letter"). The OIN conceded that the timing of its waiver "at

14 this stage of the litigation [was] unusual," id. at 1, but argued

15 that the waiver had not been intended to frustrate the Court's

16 jurisdiction. Instead, the OIN characterized its Waiver

17 Declaration as a "good-faith effort[]" to address the Counties'

18 concerns about the sufficiency of certain letters of credit that

19 the OIN had posted as part of the federal land-into-trust

process.12 20 Id. at 2. The Waiver Declaration, according to the

21 OIN, was "intended to remove any doubt" surrounding the letters

22 of credit by providing the Counties with "the necessary

23 assurances that any amounts [of taxes, penalties, and interest]
28

1 due will be paid once they are judicially determined." Id. at 1-

2 2. The OIN also responded to the Counties' concerns about the

3 scope and permanence of the Waiver Declaration by representing

4 that the waiver covered all taxes, penalties, and interest that

5 were "lawfully due" and that the waiver was "irrevocable and

6 perpetual." Id. at 2 (brackets and internal quotation marks

7 omitted). Finally, the OIN posited that its waiver had "removed

8 [the issue of sovereign immunity from suit] from the case," id.

9 at 3, and suggested that the Court "direct submissions from the

10 parties to address whether the decision below [i.e., Oneida I]

11 should be vacated with instructions to address the other grounds

12 for the injunctions," id. at 4. 

13 A final letter from the Counties followed later the

14 same day. See Letter from David M. Schraver, Esq., to Hon.

15 William K. Suter, Clerk of the Supreme Court of the United

16 States, Madison County v. Oneida Indian Nation of N.Y., No. 10-72

17 (U.S. Dec. 2, 2010). The Counties expressed their "strong[]

18 disagree[ment]" with the OIN's view that its Waiver Declaration

19 had caused the issue of tribal sovereign immunity from suit to

20 become moot. Id. at 1. The Counties agreed with the OIN,

21 however, that "the Court should direct them to file separate

22 submissions addressing the impact, if any," of the OIN's Waiver

23 Declaration. Id. Despite this flurry of letters, the Counties

24 proceeded to file their opening merits brief the next day.
29

1 The Supreme Court did not direct further submissions

2 from the parties about the effect of the Waiver Declaration. 

3 Instead, on January 10, 2011, the Supreme Court issued a brief

4 per curiam order referencing and briefly describing the parties'

5 letter submissions of late November and early December 2010. See

6 Madison County, 131 S. Ct. at 704. The Court did not identify or

7 address the parties' arguments concerning whether the issue of

8 tribal sovereign immunity from suit had become moot. Instead,

9 the Court stated:

10 We vacate the judgment and remand the case to

11 the United States Court of Appeals for the

12 Second Circuit. That court should address,

13 in the first instance, whether to revisit its

14 ruling on sovereign immunity in light of this

15 new factual development, and -- if necessary

16 -- proceed to address other questions in the

17 case consistent with its sovereign immunity

18 ruling.

19 Id.

20 Proceedings on Remand

21 On remand, we directed the parties to provide us with

22 supplemental letter-briefing. The OIN; the Counties; the

23 putative intervenor, Stockbridge; and the State of New York (as

24 amicus curiae) have each made such submissions. 

25 DISCUSSION

26 I. Standard of Review

27 "We review a district court's grant of summary judgment

28 de novo, construing the evidence in the light most favorable to
30

1 the non-moving party and drawing all reasonable inferences in its

2 favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir.

3 2005). "Summary judgment is appropriate where there exists no

4 genuine issue of material fact and, based on the undisputed

5 facts, the moving party is entitled to judgment as a matter of

6 law." 10 Ellicott Square Court Corp. v. Mtn. Valley Indem. Co.,

7 634 F.3d 112, 119 (2d Cir. 2011) (internal quotation marks

8 omitted); see also Fed. R. Civ. P. 56(a).

9 II. The OIN's Claims Based Upon Tribal Sovereign

10 Immunity From Suit and the Nonintercourse Act

11 Our decision in Oneida I affirming the district court's

12 judgments rested solely on our determination that the OIN

13 possessed tribal sovereign immunity from suit. See Oneida I, 605

14 F.3d at 160. Since that decision, the OIN has professed to

15 "waive[], irrevocably and perpetually, its sovereign immunity to

16 enforcement of real property taxation through foreclosure by

17 state, county and local governments within and throughout the

18 United States." Waiver Declaration.

19 In its letter-brief to this Court on remand from the

20 Supreme Court, the OIN represents that its waiver of immunity was

21 "duly enacted" by the OIN's tribal council; that the waiver is

22 "expressly perpetual and irrevocable," meaning that it is "not

23 subject to invalidation" by a future tribal council; and that the

24 waiver "covers all taxes, interest, and penalties held to be

25 lawfully due" to the Counties. OIN's Ltr.-Br. at 4. The OIN has
31

1 also indicated that it "'consider[s] itself judicially estopped

2 from raising sovereign immunity as a defense to foreclosure

3 actions to enforce state, county, or local real property taxes.'" 

4 Id. (brackets in original) (quoting OIN December 2 Letter at 3). 

5 Finally, the OIN has "invite[d] the entry of an order reflecting

6 the irrevocability" of its waiver. OIN December 2 Letter at 3.

7 In response, the Counties argue that tribal sovereign

8 immunity from suit is still a live issue, inasmuch as the parties

9 continue to disagree about whether the OIN ever possessed, in the

10 first instance, any entitlement to immunity that it could

11 subsequently waive. They also contend that the OIN has not

12 sufficiently disclaimed its authority to re-assert its tribal

13 sovereign immunity from suit in the future. They argue, citing

14 United States v. Government of Virgin Islands, 363 F.3d 276 (3d

15 Cir. 2004), that the "OIN has 'not chang[ed] its substantive

16 stance'" on the question of whether it possesses immunity, but

17 instead has only ceded the argument for the "'purely practical

18 reason[]'" of avoiding Supreme Court review. Counties' Ltr.-Br.

19 at 3 (first brackets in original) (quoting Virgin Islands, 363

20 F.3d at 286). The Counties therefore urge us to revisit our

21 immunity analysis from Oneida I and conclude, in light of the

22 Supreme Court's intervening grant of a writ of certiorari, that

23 our prior reasoning must have been incorrect. In the

24 alternative, they ask that we declare that the OIN's waiver has
32

1 forever barred it from asserting the defense of tribal sovereign

2 immunity from suit in "in rem foreclosure proceedings and all

3 related tax collection proceedings." Id. at 6 (emphasis in

4 original). 

5 There may well be, as the Counties urge, remaining

6 disagreements as to whether the OIN possessed tribal sovereign

7 immunity from suit at the time that these cases were before the

8 district court and then on appeal to us in the first instance. 

9 But these questions have now become academic. The OIN, which had

10 prevailed on the issue of tribal sovereign immunity from suit

11 before both the district court and this Court, now assures us, as

12 it did the Supreme Court, that it will no longer invoke the

13 doctrine of tribal sovereign immunity from suit as a basis for

14 preventing the Counties from enforcing property taxes through tax

15 sale or foreclosure. See Waiver Declaration. The OIN has thus

16 effectively announced that it has abandoned its argument that it

17 possesses tribal sovereign immunity from suit and, therefore, has

18 indicated that it is no longer seeking declaratory and injunctive

19 relief against the Counties on that basis.

20 Under the circumstances presented here, we accept the

21 OIN's abandonment of its immunity-based claims. Contrary to the

22 Counties' arguments that the Waiver Declaration may not be

23 sufficiently binding, we understand the waiver to be complete,

24 unequivocal, and irrevocable. Neither do we have any reason to
33

1 think that the OIN is using its waiver as a tactic to overturn an

2 existing unfavorable decision. To the contrary, our decision in

3 Oneida I was in its favor.

4 Moreover, the Counties' concern that the OIN might

5 attempt to revoke its Waiver Declaration is unfounded. The OIN

6 is bound by the doctrine of judicial estoppel. See, e.g., New

7 Hampshire v. Maine, 532 U.S. 742, 749 (2001) ("Where a party

8 assumes a certain position in a legal proceeding, and succeeds in

9 maintaining that position, he may not thereafter . . . assume a

10 contrary position, especially if it be to the prejudice of the

11 party who has acquiesced in the position formerly taken by him."

12 (brackets and internal quotation marks omitted)). As the OIN

13 itself has stated:

14 [E]ven if the Nation's "irrevocabl[e] and

15 perpetual[]" waiver were not sufficient to

16 protect the Counties' rights, the doctrine of

17 judicial estoppel would be. . . . [T]he

18 Nation considers itself judicially estopped

19 from raising sovereign immunity as a defense

20 to foreclosure actions to enforce state,

21 county, or local real property taxes; invites

22 the entry of an order reflecting the

23 irrevocability of its declaration and

24 ordinance; and expressly disclaims any

25 intention ever to revoke its waiver. 

26 OIN December 2 Letter at 2-3 (citations and footnote omitted). 

27 We take the OIN at its word, and we expect that future courts

28 will as well. Accordingly, the OIN's immunity-based claims are

29 no longer before this Court.

30 We similarly regard the OIN's claims based upon the
34

1 Nonintercourse Act as having been abandoned on appeal. In its

2 letter-brief, the OIN declares that "[i]n light of [its]

3 representation [that it has waived its tribal sovereign immunity

4 from suit], the Nation no longer invokes the Nonintercourse Act's

5 statutory restrictions on the alienation of Indian land as a

6 defense to tax foreclosures." OIN's Ltr.-Br. at 10. We take the

7 OIN's statement that it "no longer invokes" the Nonintercourse

8 Act as an indication that the OIN has abandoned its claims

9 premised on that statute. As a result, the district court's

10 judgments in the OIN's favor may no longer be sustained on the

11 ground that foreclosure would violate the anti-alienation

12 provisions of the Nonintercourse Act. We therefore need not

13 consider the merits of the Counties' and the State's arguments

14 that the Nonintercourse Act does not bar property-tax enforcement

15 through tax sale or foreclosure. 

16 The decision whether to vacate the judgment of the

17 district court in cases where a claim has been abandoned or has

18 become moot on appeal is a discretionary one and "depends on the

19 equities of the case." Russman v. Bd. of Educ., 260 F.3d 114,

20 121 (2d Cir. 2001). But vacatur is common where it is the

21 "unilateral action of the party who prevailed below" that causes

22 a judgment to become unreviewable. U.S. Bancorp Mortg. Co. v.

23 Bonner Mall P'ship, 513 U.S. 18, 25 (1994); accord Brooks v.

24 Travelers Ins. Co., 297 F.3d 167, 172 (2d Cir. 2002); Russman,
35

1 260 F.3d at 121-22. It has been said that the winning party in

2 the district court should not be able to prevent appellate review

3 of a perhaps-erroneous decision by attempting to render the

4 district court's judgment unappealable. See Penguin Books USA

5 Inc. v. Walsh, 929 F.2d 69, 73 (2d Cir. 1991). In other words,

6 the party aggrieved by a district-court judgment should not be

7 required to "suffer the adverse res judicata effects" of that

8 judgment if the appeal was terminated through no fault of his or

9 her own. Associated Gen. Contractors of Conn., Inc. v. City of

10 New Haven, 41 F.3d 62, 67 (2d Cir. 1994); see also Van Wie v.

11 Pataki, 267 F.3d 109, 115 (2d Cir. 2001); Mfrs. Hanover Trust Co.

12 v. Yanakas, 11 F.3d 381, 383 (2d Cir. 1993). 

13 Here, the OIN has voluntarily abandoned its claims

14 based upon the doctrine of tribal sovereign immunity from suit

15 and the Nonintercourse Act. It would therefore be prejudicial to

16 the Counties to leave the district court's judgments in place

17 insofar as they rested upon these grounds. Accordingly, we

18 conclude that the proper course in this instance is to vacate so

19 much of the district court's judgments as rests upon the doctrine

20 of tribal sovereign immunity from suit and the Nonintercourse

21 Act. See, e.g., Arave v. Hoffman, 552 U.S. 117, 118 (2008)

22 (partially vacating judgment after habeas-corpus petitioner, who

23 prevailed before court of appeals, abandoned his ineffective24 assistance claim after Supreme Court granted writ of certiorari);
36

1 City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S.

2 188, 199-200 (2003) (partially vacating judgment after plaintiff,

3 who prevailed before court of appeals, abandoned one of its

4 claims); Arizonans for Official English v. Arizona, 520 U.S. 43,

5 71-72 (1997) (vacating district court judgment in plaintiff's

6 favor where plaintiff had resigned her public-sector employment,

7 out of which her claims arose, while case was pending before

8 court of appeals); see also 13C Charles Alan Wright et al.,

9 Federal Practice & Procedure § 3533.10.1, at 578-79 (3d ed.

10 2008). We also conclude that under these circumstances --

11 because the OIN assures the world at large and us in particular

12 that its Waiver Declaration is irrevocable and subject to the

13 doctrine of judicial estoppel -- those claims must be dismissed

14 with prejudice. See Arave, 552 U.S. at 118-19; Deakins v.

15 Monaghan, 484 U.S. 193, 200-01 (1988). And we also direct the

16 district court, on remand, to include in its amended judgment in

17 each lawsuit that the OIN's waiver of its tribal sovereign

18 immunity from suit is "irrevocable" and subject to the doctrine

19 of judicial estoppel.

20 III. Due Process

21 Having determined that the OIN abandoned two of its

22 claims for relief, we proceed to consider the third rationale

23 supporting the district court's judgments: that the Counties'
13 In its several complaints, the OIN alleged that each

County's foreclosure procedures violated both federal and state

constitutional due-process standards. In granting summary

judgment to the OIN on its due-process claims, the district court

did not state whether its rulings rested upon the Fourteenth

Amendment to the U.S. Constitution, or Article I, section 6 of

the New York Constitution, or both. See Oneida County I, 432 F.

Supp. 2d at 289-90 (referencing only "the [OIN's] right to due

process"); Madison County I, 401 F. Supp. 2d at 230-31 (same). 

But the district court relied principally on McCann v. Scaduto,

71 N.Y.2d 164, 519 N.E.2d 309, 524 N.Y.S.2d 398 (1987), a

decision in which the New York Court of Appeals held that Nassau

County's tax-enforcement procedures "violated the Federal

constitutional guarantee of due process of law." Id. at 170

(emphasis added); see also id. at 179 (Simons, J., dissenting). 

And in the summary-judgment proceedings in the district court,

the OIN appeared to frame its due-process argument primarily in

terms of federal constitutional standards. It has not relied

upon its state-law claims on appeal. 

With some exceptions, New York courts have interpreted the

due-process guarantees of the New York Constitution and the

United States Constitution to be coextensive -- or assumed that

they are. See, e.g., Economico v. Village of Pelham, 50 N.Y.2d

120, 124-25, 405 N.E.2d 694, 428 N.Y.S.2d 213 (1980) (appearing

to treat state and federal constitutional standards as

coextensive for purpose of resolving procedural due process

claim), abrogated on other grounds by Prue v. Hunt, 78 N.Y.2d

364, 366, 581 N.E.2d 1052, 575 N.Y.S.2d 806 (1991); Cent. Sav.

Bank in City of N.Y. v. City of N.Y., 280 N.Y. 9, 19 N.E.2d 659

(1939) (per curiam); People ex rel. Newcomb v. Metz, 64 A.D.2d

219, 222, 409 N.Y.S.2d 554, 556 (3d Dep't 1978). But see

Hernandez v. Robles, 7 N.Y.3d 338, 362, 855 N.E.2d 1, 821

N.Y.S.2d 770 (2006) (R.S. Smith, J., plurality opinion) (citing

cases involving criminal defendants or prisoners in which the

Court of Appeals has interpreted the state due-process clause to

provide greater protections than its federal analogue). 

We need not decide, however, whether Article I, section 6 of

the New York Constitution provides any greater relief than does

the Fourteenth Amendment to the United States Constitution,

inasmuch as the OIN has not asserted that it is entitled to any

greater due-process protection under state constitutional law

than under federal constitutional law. The argument,

37

1 notices to the OIN of the expiration of its right of redemption

failed to comport with federal due-process requirements.13 2
irrespective of its plausibility, is therefore forfeited on

appeal. See, e.g., City of N.Y. v. Mickalis Pawn Shop, LLC, 645

F.3d 114, 137 (2d Cir. 2011). 

38

1 A. Governing Law

2 Our analysis of procedural-due-process claims

3 ordinarily proceeds in two steps. First, we ask "whether there

4 exists a . . . property interest of which a person has been

5 deprived." Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011). If

6 so, we then "ask whether the procedures followed by the State

7 were constitutionally sufficient." Id.; accord, e.g., Adams v.

8 Suozzi, 517 F.3d 124, 127 (2d Cir. 2008).

9 Property interests "are not created by the

10 Constitution," but "are created and their dimensions are defined

11 by existing rules or understandings that stem from an

12 independent source such as state law." Bd. of Regents v. Roth,

13 408 U.S. 564, 577 (1972); accord O'Connor v. Pierson, 426 F.3d

14 187, 196 (2d Cir. 2005). The Counties do not appear to dispute

15 that the OIN possesses a cognizable property interest under New

16 York law in the right to redeem its property from foreclosure. 

17 See Orange County Comm'r of Fin. v. Helseth, 875 N.Y.S.2d 754,

18 760 (N.Y. Sup. Ct. 2009) ("Notice of a right to redeem one's

19 property from the municipality into which title vests following

20 a tax lien foreclosure sale enjoys constitutional procedural due

21 process protection."); cf. In re Pontes, 310 F. Supp. 2d 447,

22 454 n.8 (D.R.I. 2004) ("The right of redemption is a property
39

1 interest distinct and separate [under Rhode Island law] from an

2 owner's right of ownership in the underlying property itself."). 

3 But cf. Weigner v. City of New York, 852 F.2d 646, 652 (2d Cir.

4 1988) (stating that once a government sends personal notice that

5 a "foreclosure action had been initiated," it is "not required

6 to send additional notices as each step in the foreclosure

7 proceeding [is] completed or when each of the available remedies

8 [is] about to lapse"), cert. denied, 488 U.S. 1005 (1989). We

9 assume, for the purpose of resolving these appeals, that the OIN

10 has a constitutionally protected property interest in its right

11 to redemption from foreclosure. 

12 The Fourteenth Amendment to the United States

13 Constitution provides that "[n]o state shall . . . deprive any

14 person of . . . property[] without due process of law." U.S.

15 Const. amend. XIV, § 1. "Before a State may take property and

16 sell it for unpaid taxes, the Due Process Clause of the

17 Fourteenth Amendment requires the government to provide the

18 owner 'notice and opportunity for hearing appropriate to the

19 nature of the case.'" Jones v. Flowers, 547 U.S. 220, 223

20 (2006) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339

21 U.S. 306, 313 (1950)). 

22 The OIN's claims center on the requirement of notice. 

23 It is axiomatic that where notice is legally required, the Due

24 Process Clause of the Fourteenth Amendment requires notice that
40

1 is "'reasonably calculated, under all the circumstances, to

2 apprise interested parties of the pendency of the action and

3 afford them an opportunity to present their objections.'" 

4 Jones, 547 U.S. at 226 (quoting Mullane, 339 U.S. at 314). 

5 Notice must be of "such nature as reasonably to convey the

6 required information," Mullane, 339 U.S. at 314, and "[t]he

7 means employed must be such as one desirous of actually

8 informing the [recipient] might reasonably adopt to accomplish

9 it," id. at 315. The notice provided also "must afford a

10 reasonable time for those interested to make their appearance." 

11 Id. at 314 (citing Roller v. Holly, 176 U.S. 398 (1900)). In

12 assessing the adequacy of a particular form of notice, we must

13 "balanc[e] the 'interest of the State' against 'the individual

14 interest sought to be protected by the Fourteenth Amendment.'" 

15 Jones, 547 U.S. at 229 (quoting Mullane, 339 U.S. at 314). But

16 "[i]n the context of a wide variety of proceedings[,] . . . the

17 Supreme Court has consistently held that mailed notice satisfies

18 the requirements of due process." Grievance Comm. for S. Dist.

19 of N.Y. v. Polur, 67 F.3d 3, 6 (2d Cir. 1995) (ellipsis in

20 original; internal quotation marks omitted), cert. denied, 517

21 U.S. 1196 (1996); see also Mullane, 339 U.S. at 313 ("Personal

22 service of written notice . . . is the classic form of notice

23 [that is] always adequate in any type of proceeding.").
14 The lexicon employed in this context can be confusing. 

The term "actual notice" is sometimes used to refer to personal

notice sent by mail, as opposed to constructive notice by

publication. See, e.g., Weigner, 852 F.2d at 651 n.6; McCann,

71 N.Y.2d at 174. Other times, "actual notice" is used to

signify the successful receipt of notice by its intended

recipient, as opposed to the act of its sending. See, e.g.,

Dusenbery v. United States, 534 U.S. 161, 170 n.5 (2002); Baker

v. Latham Sparrowbush Assocs., 72 F.3d 246, 254 (2d Cir. 1995). 

In this opinion, we use the term "actual notice" to denote the

successful receipt of notice, and the term "personal notice" to

denote the sending of notice by mail to the record owner. Cf.

N.Y. Real Prop. Tax Law § 1125 (referring to mailed notice as

"personal notice").

41

1 We have observed that the Fourteenth Amendment

2 "requires as much notice as is practicable to inform a [property

3 owner] of legal proceedings against his property," Brody v.

4 Vill. of Port Chester, 434 F.3d 121, 130 (2d Cir. 2005) (citing

5 Mullane, 339 U.S. at 315), and that "a property owner must be

6 given notice of foreclosure proceedings before foreclosure can

7 occur," Akey v. Clinton County, 375 F.3d 231, 235 (2d Cir.

8 2004); accord Jones, 547 U.S. at 234. But due process requires

9 only that a state take steps reasonably calculated to provide

actual notice,14 10 not that the notice actually reach the

11 recipient. "Due process does not require that a property owner

12 receive actual notice before the government may take his

13 property." Jones, 547 U.S. at 226; accord Miner v. Clinton

14 County, 541 F.3d 464, 471 (2d Cir. 2008), cert. denied, 129 S.

15 Ct. 1625 (2009).

16 However, although due process does not require actual

17 notice, actual notice satisfies due process -- so long as that
15 Specifically, RPTL § 1110(1) provides that "[r]eal

property subject to a delinquent tax lien may be redeemed by

payment to the enforcing officer, on or before the expiration of

the redemption period, of the amount of the delinquent tax lien

or liens, including all charges authorized by law."

42

1 notice "apprises [a party] of the pendency of the action and

2 affords [it] an opportunity to respond." Baker, 72 F.3d at 254. 

3 Indeed, state and federal courts have frequently decided, in

4 cases where a plaintiff received actual notice, that the Due

5 Process Clause was not offended even though the defendant had

6 failed to fulfill all technical notice requirements imposed by

7 statute or rule. See, e.g., United Student Aid Funds, Inc. v.

8 Espinosa, 130 S. Ct. 1367, 1378 (2010); In re Medaglia, 52 F.3d

9 451, 455 (2d Cir. 1995); United States v. One 1987 Jeep

10 Wrangler, 972 F.2d 472, 482 (2d Cir. 1992); Sendel v. Diskin,

11 277 A.D.2d 757, 759, 716 N.Y.S.2d 471, 473 (3d Dep't 2000);

12 Pompe v. City of Yonkers, 179 A.D.2d 628, 629-30, 578 N.Y.S.2d

13 585, 587 (2d Dep't 1992). 

14 B. The Counties' Procedures

15 The Counties employ different statutory procedures for

16 property-tax enforcement.

17 1. Madison County. Madison County employs the

18 default tax-enforcement procedure established by Article 11 of

19 the New York Real Property Tax Law (the "RPTL"). The RPTL

provides for a two-year, pre-foreclosure redemption period.15 20

21 The redemption period starts to run on the "lien date," which
43

1 is the date on which unpaid taxes and other assessments

2 automatically become a lien against the property. Id. §§ 902,

3 1102(4). If taxes are not paid within the first month after

4 the lien date, interest and penalties begin to accrue. Id.

5 §§ 924, 924-a, 936(2). Ten months after the lien date, a list

6 of delinquent taxes is prepared and filed with the county

7 clerk. Id. § 1122. Twenty-one months after the lien date

8 (i.e., three months before the end of the redemption period),

9 the enforcing authority executes a petition of foreclosure. 

10 Id. § 1123(1)-(2). The filing of this petition is accompanied

11 by published notice, id. § 1124(1), as well as personal notice

12 by certified and regular first-class mail to the property

13 owner, id. § 1125(1). These notices must include the last date

14 on which the properties may be redeemed. Id. § 1125(2). 

15 Although personalized tax statements are mailed annually to all

16 property owners, see id. § 922, the only personal notice sent

17 to owners which specifically identifies the expiration of the

18 redemption period is the notice sent twenty-one months after

19 the lien date pursuant to RPTL § 1125. See generally Kennedy

20 v. Mossafa, 100 N.Y.2d 1, 6-8, 789 N.E.2d 607, 759 N.Y.S.2d 429

21 (2003) (describing the RPTL tax-foreclosure procedures). 

22 In early December 2004, Madison County executed a

23 petition of foreclosure in state court with respect to some

24 ninety-eight parcels of OIN-owned property to enforce overdue
44

1 taxes owed since the lien date of January 1, 2003. The County

2 mailed personal notice to the OIN on December 8, 2004, and the

3 OIN has not disputed receipt. According to that notice, the

4 specified last day for redemption of the ninety-eight parcels

5 was March 31, 2005. After the Supreme Court issued its decision

6 in Sherrill III on March 29, 2005, Madison County unilaterally

7 extended the OIN's redemption deadline to June 3, 2005, and

8 later to July 14, 2005, providing notice of the extensions to

9 the OIN in each instance. The OIN successfully obtained a

10 preliminary injunction from the district court on July 1, 2005,

11 preventing Madison County from undertaking further tax12 enforcement efforts. 

13 2. Oneida County. Unlike Madison County, Oneida

14 County has opted out of the RPTL procedures. See, e.g., RPTL

15 § 1104(2) (creating opt-out mechanism). Instead, it employs its

16 own two-step process: first, a tax sale of the property, and

17 second, administrative transfer of title or judicial

18 foreclosure, at the tax-sale purchaser's option. See 1902 Laws

19 of N.Y. ch. 559, §§ 1 to 16, amended by 1918 Laws of N.Y. ch.

20 474, 1920 Laws of N.Y. ch. 111, 1922 Laws of N.Y. ch. 200, 1937

21 Laws of N.Y. ch. 800, 1943 Laws of N.Y. ch. 712, and 1944 Laws

22 of N.Y. ch. 342 (collectively, "Oneida County Tax Law"); see

23 also Aff. of Daniel Yerdon, Deputy Comm'r of Fin., Oneida

24 County, Oneida County II, No. 6:05-CV-945 (N.D.N.Y. Jan. 6,
16 This delinquency notice is not formally required by the

Oneida County Tax Law, but is sent as a matter of standard

administrative practice in order to align the County's

practices with RPTL § 987. See Yerdon Aff. ¶ 5. 

17 The Oneida County Tax Law provides, in pertinent part

and as amended, that "[t]he owner, occupant, or any other person

may redeem any real estate sold for taxes . . . at any time

within one year after the last day of such sale, by paying to the

country treasurer . . . the sum of one dollar plus the sum

mentioned in his certificate of sale together with the interest

thereon." Oneida County Tax Law § 8; see also Yerdon Aff. ¶ 11.

45

1 2006), ECF Doc. 23, attach. 40 ("Yerdon Aff."). Taxes come due

2 each year on January 1, but may be paid without penalty or

3 interest through January 31. See Yerdon Aff. ¶ 4. In February

4 of each year, a tax-delinquency notice is sent to the record

owner of each delinquent parcel.16 5 Id. ¶ 5. On the last

6 business day of December, a tax auction is held at which the

7 County sells all properties for which taxes have been delinquent

8 for six months or more. See Oneida County Tax Law §§ 5-6;

9 Yerdon Aff. ¶ 8. Since 1973, however, the County has had the

10 authority to purchase delinquent properties without first

11 offering them to public bidders. With respect to each of the

12 187 OIN-owned parcels at issue in this litigation, Oneida County

13 exercised its option to purchase the properties without a public

14 sale. 

15 Following the tax sale, a post-sale redemption period

begins.17 16 See Oneida County Tax Law § 8; Yerdon Aff. ¶¶ 11, 15-

17 17. The redemption period, as it has come to be applied, lasts
18 The statute itself provides for only a one-year

redemption period. See Oneida County Tax Law § 8. However,

"[d]espite the expiration of the one-year redemption period,

the County does not recognize this event as being the final

foreclosure of the right of redemption and, instead, gives the

property owner an additional two-year redemption period." 

Yerdon Aff. ¶ 15. At the end of this three-year period, the

County sends the Final Notice Before Redemption, and then

affords the owner an additional thirty days to redeem the

property. Id. ¶¶ 16-18. 

19 The statute provides that, aside from constructive notice

by publication, "[n]o other further or different notice of the

expiration of the time to redeem shall be required to be

published, served upon or given to any person whatsoever." 

Oneida County Tax Law § 9.

20 The Final Notices for these 187 parcels were served on

the OIN in three batches. First, on June 3, 2005, the County

delivered notices to the OIN with regard to 59 parcels, with a

redemption expiration date of July 29, 2005. Second, on

September 26, 2005, the County delivered notices for 62 parcels

with a redemption expiration date of October 29, 2005. 

46

for three years and thirty days.18 1 See Yerdon Aff. ¶¶ 15-18. 

2 The Oneida County Tax Law dictates that notice of the expiration

3 of the redemption period is to be published "within the three

4 months immediately preceding the expiration." Oneida County Tax

5 Law § 9; see also Yerdon Aff. ¶¶ 12-14. However, as a matter of

standard administrative practice,19 6 Oneida County also sends by

7 certified mail a "Final Notice Before Redemption" to the record

8 owner thirty days prior to expiration. See Yerdon Aff. ¶ 18. 

9 The Final Notice Before Redemption advises the owner that the

10 property was sold at tax sale and provides the final date on

11 which the property can be redeemed. See id. According to the

12 County, the foregoing process was followed with respect to all

187 parcels of OIN-owned property at issue.20 13 See id. ¶¶ 19-21. 
Finally, on October 27, 2005, the County delivered notices for

a final 66 parcels, whose redemption expiration dates are not

in the record. 

As to the 59 parcels identified in the first batch of

Final Notices, the OIN and Oneida County reached agreement on

August 1, 2005 to extend the redemption period indefinitely 

for those parcels, pending the resolution of this litigation. 

In exchange, the OIN made a nonrefundable payment to Oneida

County of $650,000 as an advance payment of any back taxes

later held to be lawfully due. 

47

1 C. Analysis

2 The district court concluded that each County's

3 redemption notices failed to comport with due process. We

4 conclude to the contrary that both Counties are entitled to

5 summary judgment on the OIN's due-process claims.

6 In explaining our conclusion, it may be useful to

7 begin by noting what is not at issue. First, the OIN does not

8 contest that each County sent to it personal notice by mail of

9 the expiration of the respective redemption periods. Second,

10 the OIN does not deny that it actually received these notices, a

11 fact that distinguishes this litigation from the much more

12 common due-process challenge in which a plaintiff contests the

13 sufficiency of a notice that failed to reach its intended

14 recipient. See, e.g., Jones, 547 U.S. at 225; Miner, 541 F.3d

15 at 471-73; Akey, 375 F.3d at 235-37. Third, the OIN does not

16 dispute the Counties' assertions that they complied with their

17 respective statutory and administrative requirements for

18 notifying owners of the final date for redemption, including

19 sending personal notice at least three months in advance of
21 Indeed, Madison County gave notice of the end of the

redemption period approximately four months in advance of the

original deadline, longer than the three-month period

contemplated by RPTL § 1125. And Oneida County gave such notice

approximately six weeks in advance of expiration, longer than the

thirty-day period that the County normally provides.

48

1 expiration (as to Madison County) and at least thirty days in

advance of expiration (as to Oneida County).21 2 The OIN's

3 argument, therefore, is not that it failed to receive actual

4 notice of the expiration of the redemption periods at the time

5 mandated by each County's tax enforcement procedures, but that

6 the notices provided pursuant to these procedures were not given

7 sufficiently in advance of the respective expiration dates to

8 satisfy federal due-process standards. 

9 As the basis for the proposition that the Counties'

10 notices were constitutionally insufficient, the OIN and the

11 district court each have relied principally on McCann. There,

12 the New York Court of Appeals struck down the tax-enforcement

13 procedures of Nassau County, New York, as inconsistent with the

14 Due Process Clause of the Fourteenth Amendment. See McCann, 71

15 N.Y.2d at 177-78. The Nassau County statute provided for a two16 step scheme somewhat similar to Oneida County's: first, the sale

17 of a tax lien upon the property, followed by a two-year post18 sale redemption period; and second, the transfer of title to the

19 purchaser of the tax lien following the expiration of that

20 redemption period. See Oneida County I, 432 F. Supp. 2d at 290

21 (observing that Oneida County's procedures are "strikingly
49

1 similar" to those at issue in McCann). Crucially, however,

2 Nassau County did not provide any personal notice to the owner

3 prior to the tax lien sale. It required only that notice of the

4 tax lien sale be "published three times in a newspaper of

5 general circulation." McCann, 71 N.Y.2d at 170. The Court of

6 Appeals, relying on Mennonite Board of Missions v. Adams, 462

7 U.S. 791 (1983), concluded that Nassau County's "failure to

8 provide [property owners] with actual notice of the tax lien

9 sales . . . deprived them of due process of law," id. at 172,

10 because the tax-lien sale itself constituted an event that

11 "substantially affected" the owner's property interest, id. at

12 176; see also, e.g., id. (describing the tax-lien sale as "the

13 event that moves the Sword of Damocles directly over the head of

14 a property owner"). The Court of Appeals thereby overruled one

15 of its previous decisions, Botens v. Aronauer, 32 N.Y.2d 243,

16 298 N.E.2d 73, 344 N.Y.S.2d 892 (1973), appeal dismissed, 414

17 U.S. 1059 (1973), which had held that due-process standards did

18 not require that personal notice of tax-sale proceedings be sent

19 to a property owner, so long as constructive notice by

20 publication was given. See McCann, 71 N.Y.2d at 176.

21 In the course of its decision in McCann, the Court of

22 Appeals also considered Nassau County's argument that its

23 statute was constitutional because, even though the statute did

24 not require personal notice of the tax-lien sale, it did at
22 The Court of Appeals also stated that "[t]he truncated

three-month period would in any event be troubling," in light of

the substantial amount of interest and penalties that would have

accrued in the twenty-one months since the tax sale. McCann, 71

N.Y.2d at 178. But it did not explicitly hold that three months

was too short a time to "produce the funds necessary to avoid

forfeiture of the title." Id.

50

1 least provide for personal notice of the expiration of the two2 year post-sale redemption period. See id. at 177. Rejecting

3 that argument, the Court of Appeals observed that the statute

4 required such notice only at the point at which three months in

5 the redemption period remained, id. at 177-78, which the court

6 concluded was too late in the overall tax-enforcement process to

7 provide the owner with timely notice of the proceedings. In

8 that connection, the Court of Appeals also took note of an

9 apparent tension between the fact that the statute created a

10 two-year statutory redemption period, but only provided three

11 months' advance notice of its expiration. Id. It reasoned that

12 the statute's failure to provide for notice of the tax lien sale

13 at the first stage of the process also effectively frustrated

14 the "legislative intention" that owners be afforded two years in

which to redeem their properties.22 15 Id.

16 The OIN, latching onto these final steps of the Court

17 of Appeals' analysis, broadly construes McCann as dictating that

18 the Due Process Clause requires that written notice of the date

19 of expiration of a statutory redemption period always be given

20 at the beginning of that period. It argues that McCann "held

21 that it offends due process principles for taxing jurisdictions
51

1 to truncate statutory redemption periods by serving notice of

2 redemption rights and deadlines that are much shorter than the

3 redemption period." OIN Br. at 27; see also id. at 95

4 ("McCann's holding as to taxation is that, when the Legislature

5 establishes a redemption period of specified duration, due

6 process requires that notice of redemption rights be sent to

7 taxpayers at the outset of that period."). The district court,

8 accepting the OIN's reading of McCann, concluded that, in each

9 of the OIN's lawsuits against the City of Sherrill, Madison

10 County, and Oneida County, the defendants' failures to send

11 notice to the OIN of the date of expiration of the redemption

12 period "at the beginning of the redemption period[] violate[d]

13 the [OIN's] right to due process." Oneida County I, 432 F.

14 Supp. 2d at 290; accord Madison County I, 401 F. Supp. 2d at 230

15 (concluding that because the RPTL provides a two-year redemption

16 period, "in order to comport with due process [Madison] County

17 must have given the Nation notice two years prior to expiration

18 of the redemption period"); Sherrill I, 145 F. Supp. 2d at 257-

19 58 (concluding that the City of Sherrill's foreclosure

20 procedures violated due process for the same reason).

21 We are not persuaded that McCann should be read as the

22 OIN suggests. The decision primarily concerned the

23 constitutionality of a statute that provided a two-step tax24 enforcement process, but did not require that any personal
23 At least one Appellate Division case has relied upon

McCann for the proposition that a taxing authority may not

provide a notice period significantly shorter in length than the

redemption period to which the notice is addressed. In Yagan v.

Bernardi, 256 A.D.2d 1225, 684 N.Y.S.2d 117 (4th Dep't 1998), the

court ruled that the City of Syracuse failed to afford due

process to a property owner because, after expiration of a oneyear redemption period (during which no personal notice was

given), the City mailed a notice to the owner permitting him only

three weeks in which to redeem the property. The Yagan court

ruled that the notice "ha[d] the effect of reducing the

redemption period from one year to three weeks" and that it

therefore "'d[id] not afford a realistic opportunity to produce

the funds necessary to avoid forfeiture of the title or sell the

encumbered property.'" Id. at 1226, 684 N.Y.S.2d at 119 (quoting

McCann, 71 N.Y.2d at 178); see also Lyon v. Estate of Cornell,

52

1 notice be given to property owners of the first step in that

2 process, the tax lien sale. See McCann, 71 N.Y.2d at 176-77. 

3 To the extent that the Court of Appeals also considered the

4 question of personal notice during the post-sale redemption

5 period, it concluded only that such notice, if given late in the

6 redemption period, does not make up for the fact that no

7 personal notice had been given of the tax-lien sale in the first

8 place. Id. at 177-78. We therefore conclude that the OIN

9 misreads McCann in interpreting that decision to impose a rigid

10 requirement that the commencement of the redemption period, and

11 personal notice of the date of expiration of that period, be

12 perfectly contemporaneous, no matter the surrounding

13 circumstances. 

14 However, even if McCann could be read as articulating

15 a requirement that personal notice of the date of expiration of

a redemption period be given at the commencement of that period23 16
269 A.D.2d 737, 738, 703 N.Y.S.2d 325, 326 (4th Dep't 2000)

(relying on Yagan and holding that 18 days' advance notice of a

tax sale was "insufficient as a matter of law to provide the

Estate with sufficient time to present its objections"). 

Most New York courts that have cited McCann, however, appear

instead to rely on that decision for its principal holding that

due process requires personal notice to a landowner prior to a

tax-lien sale, and that subsequent personal notice of the

expiration of the redemption period alone does not suffice. See,

e.g., Zaccaro ex rel. Zaccaro v. Cahill, 100 N.Y.2d 884, 889, 800

N.E.2d 1096, 768 N.Y.S.2d 730 (2003); Garden Homes Woodlands Co.

v. Town of Dover, 95 N.Y.2d 516, 519, 742 N.E.2d 593, 720

N.Y.S.2d 79 (2000); Szal v. Pearson, 289 A.D.2d 562, 562, 735

N.Y.S.2d 200, 201 (2d Dep't 2001); Meadow Farm Realty Corp., Ltd.

v. Pekich, 251 A.D.2d 634, 635-36, 676 N.Y.S.2d 203, 205 (2d

Dep't 1998); Anthony v. Town of Brookhaven, 190 A.D.2d 21, 26,

596 N.Y.S.2d 459, 461-62 (2d Dep't 1993); T.E.A. Marine Auto.

Corp. v. Scaduto, 181 A.D.2d 776, 779-80, 581 N.Y.S.2d 370, 373-

74 (2d Dep't 1992); Metz v. Dorsey, 146 A.D.2d 845, 846-47, 536

N.Y.S.2d 250, 252 (3d Dep't 1989); LVF Realty Co. v. Harrington,

146 A.D.2d 607, 609, 536 N.Y.S.2d 840, 841-42 (2d Dep't 1989);

see also Quinn v. Wright, 72 A.D.3d 1052, 1053-54, 900 N.Y.S.2d

135, 136-37 (2d Dep't 2010) (citing Szal v. Pearson and

confirming that "[a] notice to redeem that is served after the

tax sale in a manner that provides adequate due process

protections to the property owner does not alleviate a failure to

provide constitutionally-adequate notice of the tax sale").

53

1 -- or as suggesting that three months' advance notice of the

2 expiration of a period is constitutionally insufficient --

3 neither we nor the district court are bound by any such holding. 

4 McCann rested solely on an interpretation of the Due Process

5 Clause of the Fourteenth Amendment. See id. at 169-70; id. at

6 179 (Simons, J., dissenting). Federal courts are not bound to

7 follow a state court's interpretation of the federal

8 Constitution. See Carvajal v. Artus, 633 F.3d 95, 109 (2d Cir.

9 2011); CFCU Cmty. Credit Union v. Hayward, 552 F.3d 253, 266 (2d

10 Cir. 2009). 
24 If McCann had indeed intended to hold that perfect

temporal alignment is required between the commencement of a

redemption period and the notice of that period's date of

expiration, the New York courts themselves have not followed

that rule. See, e.g., Carney v. Philippone, 1 N.Y.3d 333, 342-

43, 806 N.E.2d 131, 136-37, 774 N.Y.S.2d 106, 111-12 (2004)

(interpreting the Onondaga County Tax Act as providing a twoyear redemption period and requiring six months' advance

personal notice of expiration, and holding that that

arrangement was "consonant with the requirements of due

process"). Moreover, Article 11 of the RPTL -- the statute

governing the tax-enforcement process followed by Madison

County -- has routinely been held or assumed to be

constitutional. See, e.g., Harner v. County of Tioga, 5 N.Y.3d

136, 141, 833 N.E.2d 255, 258, 800 N.Y.S.2d 112, 115 (2005) (no

due process violation where County's notice procedures "fully

compl[ied]" with Article 11 of the RPTL); Kennedy, 100 N.Y.2d

at 9 (observing that "RPTL 1125 essentially encapsulated the

two requirements of Mullane and Mennonite" and explicitly

upholding its notice procedures as constitutional); see also In

re Foreclosure of Tax Liens by County of Schuyler, 83 A.D.3d

1243, 1246, 921 N.Y.S.2d 376, 379 (3d Dep't 2011); In re

Foreclosure of Tax Liens by County of Sullivan, 79 A.D.3d 1409,

1411, 912 N.Y.S.2d 786, 788 (3d Dep't 2010); In re Foreclosure

of Tax Liens, 72 A.D.3d 1636, 1637, 900 N.Y.S.2d 524, 525 (4th

Dep't 2010); In re City of Lockport, 187 A.D.2d 993, 993, 593

N.Y.S.2d 472, 472-73 (4th Dep't 1992).

54

1 Moreover, we do not regard as persuasive an

2 interpretation of the Due Process Clause that would impose a

3 rigid requirement as to the precise timing with which notice

must be given.24 4 "The due process right to fair notice is

5 a . . . general rule of law that demands a substantial element

6 of judgment and [that] can hardly be implemented mechanically." 

7 Ortiz v. N.Y.S. Parole in Bronx, N.Y., 586 F.3d 149, 157 (2d

8 Cir. 2009) (citation and internal quotation marks omitted); see

9 also Gilbert v. Homar, 520 U.S. 924, 930 (1997); Baker, 72 F.3d

10 at 254; In re Drexel Burnham Lambert Grp. Inc., 995 F.2d 1138,

11 1144 (2d Cir. 1993) (observing that due-process notice

12 requirement should not be interpreted "so inflexibly as to make
55

1 it an 'impractical or impossible obstacle[].'" (quoting Mullane,

2 339 U.S. at 314)(alteration in In re Drexel)).

3 Having considered and rejected the OIN's reading of

4 McCann, we conclude that the OIN has failed to demonstrate that

5 the notice it received from the Counties was constitutionally

6 insufficient. The OIN does not deny that it received actual

7 notice of the date of expiration of the redemption periods and

8 that, in each case, it received such notice well in advance of

9 the deadline -- indeed, further in advance than the Counties'

10 standard practices require. Cf. Goodrich v. Ferris, 214 U.S.

11 71, 81 (1909) ("[O]nly in a clear case will a notice authorized

12 by the legislature be set aside as wholly ineffectual on account

13 of the shortness of the time." (internal quotation marks

14 omitted)).

15 And, critically, the OIN has not proffered any

16 evidence that it suffered injury from the Counties' alleged

17 failure to provide personal notice of the expiration of the

18 redemption period any earlier. As the State of New York argues

19 in its amicus brief, "[t]he OIN has not suggested that its

20 vigorous defense of the foreclosure proceedings was

21 disadvantaged in any particular way by the length of the notice

22 it received." New York State Amicus Br. at 21 n.8.

23 To the contrary, the record reflects that the OIN had

24 sufficient notice of the Counties' tax-enforcement proceedings
56

1 to apprise it of its right of redemption and to enable it to

2 take appropriate steps to protect its property interests before

3 the redemption period expired. The OIN proved able, among other

4 things, to file a detailed answer in March 2005 to Madison

5 County's state-court petition for foreclosure; to initiate

6 litigation and seek relief in federal court against each County

7 prior to the expiration of the respective redemption deadlines;

8 to redeem properties in a timely fashion when it saw fit to do

9 so; and to negotiate with the Counties to extend redemption

10 deadlines on mutually agreeable terms. And the OIN does not

11 deny that it long has had actual knowledge of the Counties'

12 respective tax-enforcement efforts. 

13 The OIN argues that it is immaterial that it had

14 actual knowledge of the Counties' tax-enforcement activities,

15 because it asserts that the redemption periods could not even

16 begin to run until the OIN was first served with personal notice

17 of the date of expiration of the redemption period. We

18 disagree. "Process is not an end in itself," Holcomb v. Lykens,

19 337 F.3d 217, 224 (2d Cir. 2003) (internal quotation marks

20 omitted), and "due process is not offended by requiring a person

21 with actual, timely knowledge of an event that may affect [the

22 person's] right to exercise due diligence and take necessary

23 steps to preserve that right," Medaglia, 52 F.3d at 455. The

24 OIN may not rely upon the dictates of procedural due process as
57

1 a means of forestalling the Counties' foreclosure efforts

2 because, here, the requirements of the Due Process Clause --

3 notice and an opportunity to respond -- were plainly fulfilled.

4 The OIN has thus failed to establish any genuine

5 dispute as to the fact that it received notice sufficient to

6 "'apprise [it] of the pendency of the action and afford [it] an

7 opportunity to present [its] objections.'" Jones, 547 U.S. at

8 226 (quoting Mullane, 339 U.S. at 314); see also NYCTL 1998-2

9 Trust v. Avila, 29 A.D.3d 965, 966, 815 N.Y.S.2d 725, 727 (2d

10 Dep't 2006) (affirming foreclosure where respondent "failed to

11 demonstrate any prejudice to a substantial right as a result of

12 the alleged deficiency in notice"). The Counties are entitled

13 to summary judgment in their favor on the OIN's due-process

14 claims.

15 We have considered the parties' remaining arguments

16 with respect to the OIN's due-process claims, and we conclude

17 that they are either without merit or no longer require

18 consideration in light of our resolution of these appeals. 

19 IV. State Tax Law

20 The final ground for the district court's judgments

21 was its determination that the OIN's properties are exempt from

22 taxation as a matter of New York state law. See Oneida County

23 I, 432 F. Supp. 2d at 290; Madison County I, 401 F. Supp. 2d at

24 231. In reaching that conclusion, the court relied upon New
58

1 York RPTL § 454, which provides in pertinent part that "[t]he

2 real property in any Indian reservation owned by the Indian

3 nation, tribe or band occupying them shall be exempt from

4 taxation," (emphasis added), and upon New York Indian Law

5 ("NYIL") § 6, which provides that "[n]o taxes shall be assessed,

6 for any purpose whatever, upon any Indian reservation in this

7 state, so long as the land of such reservation shall remain the

8 property of the nation, tribe or band occupying the same"

9 (emphasis added). 

10 These state-law claims fell, at the time, within the

11 district court's supplemental jurisdiction. See 28 U.S.C.

12 § 1367(a). Although federal courts may exercise jurisdiction

13 over related state-law claims where an independent basis of

14 subject-matter jurisdiction exists, see, e.g., Monterfiore Med.

15 Ctr. v. Teamsters Local 272, 642 F.3d 321, 332 (2d Cir. 2011),

16 such a court may, for various reasons, nonetheless "decline to

17 exercise supplemental jurisdiction over a claim," 28 U.S.C.

18 § 1367(c). These reasons include that "the claim raises a novel

19 or complex issue of State law," id. § 1367(c)(1); that "the

20 claim substantially predominates over the claim or claims over

21 which the district court has original jurisdiction,"

22 id. § 1367(c)(2); that "the district court has dismissed all

23 claims over which it has original jurisdiction,"

24 id. § 1367(c)(3); or that "exceptional circumstances" exist such
59

1 that "there are other compelling reasons for declining

2 jurisdiction," id. § 1367(c)(4). "'[T]he issue whether

3 [supplemental] jurisdiction has been properly assumed is one

4 which remains open throughout the litigation.'" Rounseville v.

5 Zahl, 13 F.3d 625, 631 (2d Cir. 1994) (quoting United Mine

6 Workers of Am. v. Gibbs, 383 U.S. 715, 727 (1966)); accord Itar7 Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442,

8 445 (2d Cir. 1998) (noting that the supplemental-jurisdiction

9 inquiry should be undertaken "at every stage of the litigation"

10 (internal quotation marks omitted)).

11 Although the decision whether to decline to exercise

12 supplemental jurisdiction is "purely discretionary," Carlsbad

13 Tech., Inc. v. HIF Bio, Inc., 129 S. Ct. 1862, 1866 (2009), that

14 discretion is, of course, subject to boundaries. For example,

15 we have repeatedly said that "if a plaintiff's federal claims

16 are dismissed before trial, 'the state law claims should be

17 dismissed as well.'" Brzak v. United Nations, 597 F.3d 107,

18 113-14 (2d Cir. 2010) (quoting Cave v. E. Meadow Union Free Sch.

19 Dist., 514 F.3d 240, 250 (2d Cir. 2008)), cert. denied, 131 S.

20 Ct. 151 (2010). 

21 In Carnegie-Mellon University v. Cohill, 484 U.S. 343

22 (1988), the Supreme Court enumerated several factors that courts

23 should weigh in considering whether to exercise supplemental

24 jurisdiction -- "the values of judicial economy, convenience,
60

1 fairness, and comity," id. at 350 -- and suggested that "in the

2 usual case in which all federal-law claims are eliminated before

3 trial, the balance of [those] factors . . . will point toward

4 declining to exercise jurisdiction over the remaining state-law

5 claims." Id. at 350 n.7; accord Klein & Co. Futures, Inc. v.

6 Bd. of Trade, 464 F.3d 255, 262-63 (2d Cir. 2006), cert.

7 granted, 550 U.S. 956, cert. dismissed, 552 U.S. 1085 (2007);

8 Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.

9 2006); Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305-06 (2d

10 Cir. 2003) (collecting cases). This Court has concluded that

11 declining to exercise jurisdiction after all original12 jurisdiction claims have been dismissed is especially

13 appropriate where the pendent claims present novel or unsettled

14 questions of state law. See, e.g., Cave, 514 F.3d at 250; Klein

15 & Co., 464 F.3d at 263 n.5; Kolari, 455 F.3d at 124 (favoring

16 principle that "state-law claims raising unsettled questions of

17 law" should be dismissed without prejudice under 28 U.S.C.

18 § 1367(c)(3), and collecting cases); Valencia, 316 F.3d at 306-

19 08.

20 Because we have now ordered that the OIN's due process

21 claims be dismissed, there remain no further federal claims

22 supporting the district court's award of injunctive relief. The

23 OIN argues, however, that we should exercise our discretion in

24 favor of retaining supplemental jurisdiction over the OIN's
61

1 state-law claims even if all of its federal claims are

2 dismissed. In its letter-brief on remand, the OIN urges us to

3 affirm the district court's judgments on the basis that the

4 properties in question constitute lands within "any Indian

5 reservation" for the purposes of RPTL § 454 and NYIL § 6. They

6 rely upon the recent case of Cayuga Indian Nation of New York v.

7 Gould, 14 N.Y.3d 614, 930 N.E.2d 233, 904 N.Y.S.2d 312 (2010),

8 in which the New York Court of Appeals concluded that fee-title

9 lands purchased by the Cayuga Indian Nation fell within the

10 definition of "qualified reservation" for the purposes of two

11 New York cigarette-sales-tax statutes, N.Y. Tax Law §§ 470(16)

12 and 471-e. See Gould, 14 N.Y.3d at 635-46. The New York Court

13 of Appeals decided that "when the Legislature used the term

14 'reservation' in Tax Law § 470(16)(a), it intended to refer to

15 any reservation recognized by the United States government." 

16 Id. at 637; see also id. at 638 ("[T]he 'qualified reservation'

17 question distills to whether the convenience store parcels are

18 viewed as reservation property under federal law."). The Court

19 then determined that "the United States government continues to

20 recognize the existence of a Cayuga reservation in New York," 

21 id. at 640, and observed that the Supreme Court's decision in

22 Sherrill III "d[id] not establish that the convenience stores

23 are not located on a reservation," id. at 643. The OIN now

24 argues that by virtue of the Court of Appeals' decision in
62

1 Gould, the OIN's properties would also necessarily constitute

2 lands on "any Indian reservation" for the purposes of RPTL § 454

3 or NYIL § 6.

4 We do not think that Gould settled the open questions

5 presented by the OIN's remaining state-law claims. Indeed, in

6 Gould itself, the majority expressly reserved the question

7 whether fee-title lands purchased by Indian tribes on the open

8 market would count as "reservation" land for the purposes of

9 RPTL § 454 and NYIL § 6. See id. at 646 (explaining that "terms

10 found in Tax Law § 470(16)(a) will not necessarily be accorded

11 the same meaning when they appear in other statutory contexts,"

12 expressly including NYIL § 6 and RPTL § 454). The Court of

13 Appeals set forth various reasons why the meaning of the term

14 "reservation" could be different under other state statutes. 

15 See id. (noting, inter alia, that Tax Law § 470(16)(a) was

16 explicitly patterned after a federal statute; that the state

17 statute was enacted after the Supreme Court's decision in

18 Sherrill III; and that its statutory structure reflected a

19 distinction between an Indian nation's exercise of "governmental

20 power" and the "reservation status" of its land). We therefore

21 cannot say with any certainty or authority how the Court of

22 Appeals would interpret NYIL § 6 or RPTL § 454. 

23 We think that at this stage of the litigation, several

24 grounds enumerated by section 1367(c) for declining to exercise
25 The OIN and the Counties appear to agree that the term

"Indian reservation," as used within NYIL § 6 and RPTL § 454,

should be defined by reference to federal law. See, e.g., OIN

Br. at 86 (arguing that the state exemptions are "really issues

of federal reservation status"); Counties' Reply Ltr.-Br. at 5

(arguing that the New York Court of Appeals would likely "look[]

to federal law to resolve the reservation issue"). The district

court also appeared to assume, in the course of interpreting

those state statutes, that the existence vel non of an "Indian

reservation" should be defined by federal law. See Oneida County

I, 432 F. Supp. 2d at 290; Madison County I, 401 F. Supp. 2d at

231. Although that interpretation of the state statutes may

ultimately be proven correct, we disagree that it is appropriate

for us to make such an assumption at this time. It is for the

state courts, not us, to determine ultimately and definitively

whether a term used in a state statute possesses an autonomous

meaning under state law.

26 As we explain below, we conclude that the OIN is entitled

under federal common law to a declaration that it is not liable

for penalties and interest on taxes that accrued prior to the

Supreme Court's March 29, 2005 decision in Sherrill III. That

ruling does not, however, entitle the OIN to restrain the

Counties from foreclosing on their properties. We do not regard

our partial affirmance on the issue of penalties and interest as

material to our analysis as to whether supplemental jurisdiction

63

1 supplemental jurisdiction are implicated. First, the OIN's

2 declaratory claims under NYIL § 6 and RPTL § 454 raise "novel

[and] complex issue[s] of State law."25 3 28 U.S.C. § 1367(c)(1). 

4 As the Supreme Court has warned, "[a] federal tribunal risks

5 friction-generating error when it endeavors to construe a novel

6 state Act not yet reviewed by the State's highest court." 

7 Arizonans for Official English, 520 U.S. at 79; see also Rivkin

8 v. Century 21 Teran Realty LLC, 494 F.3d 99, 103-04 (2d Cir.

9 2007). 

10 Second, almost all of the OIN's federal claims -- with

just one narrow exception26 11 -- have now been dismissed. Cf. 28
may be exercised under section 1367(c).

64

1 U.S.C. § 1367(c)(3). Even if the existence of one narrow

2 surviving federal claim means that not "all claims over which

3 [the district court] has original jurisdiction" have been

4 dismissed, id. (emphasis added), it has nonetheless become clear

5 that the state-law claims now "substantially predominate[]" in

6 this litigation, id. § 1367(c)(2). "Once it appears that a

7 state claim constitutes the real body of a case, to which the

8 federal claim is only an appendage, the state claim may fairly

9 be dismissed." Gibbs, 383 U.S. at 727; see also, e.g., Dargis

10 v. Sheahan, 526 F.3d 981, 991 (7th Cir. 2008) (survival of one

11 federal due-process claim does not require court to retain

12 jurisdiction over seven state-law claims); Garro v. Connecticut,

13 23 F.3d 734, 737 (2d Cir. 1994) (survival of an "insubstantial

14 federal claim" does not require that jurisdiction be retained

15 over state-law claim). 

16 To be sure, the fact that one or more of the grounds

17 for declining to exercise supplemental jurisdiction set forth in

18 section 1367(c) applies does not mean that dismissal is

19 mandated. See 28 U.S.C. § 1367(c) (providing that "[t]he

20 district courts may decline to exercise supplemental

21 jurisdiction" (emphasis added)). For this reason, we have said

22 that "where at least one of the subsection 1367(c) factors is

23 applicable," the court should not decline jurisdiction "unless
65

1 it also determines that [exercising supplemental jurisdiction]

2 would not promote the values . . . [of] economy, convenience,

3 fairness, and comity." Jones v. Ford Motor Credit Co., 358 F.3d

4 205, 214 (2d Cir. 2004) (citation omitted); see also Itar-Tass

5 Russian News Agency, 140 F.3d at 446. 

6 Here, though, we conclude -- in light of the

7 "circumstances of the particular case, the nature of the state

8 law claims, the character of the governing state law, and the

9 relationship between the state and federal claims," City of

10 Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997)

11 (citing Cohill, 484 U.S. at 350) -- that the proper course is to

12 decline to exercise jurisdiction over the OIN's supplemental

13 state-law claims. Certification to the New York Court of

14 Appeals might provide an alternate method for resolving these

15 claims. See 2d Cir. Local R. 27.2; N.Y. Comp. Codes & Regs.

16 tit. 22, § 500.27(a) (2008). However, under these

17 circumstances, we think that it makes more sense for a New York

18 state court to decide the OIN's state-law claims itself based on

19 its understanding of its own law and its own findings of fact,

20 than for us to assist a federal district court to do so

21 indirectly by certification in a case that no longer presents

22 any federal claims. It is also significant that there are

23 already pending state-court proceedings in which the OIN appears

24 to have raised the issue of its claimed state tax-law
27 In addition to the pending foreclosure proceedings

involving Madison County, the OIN has also initiated various

declaratory proceedings in state court under RPTL Article 7 or

CPLR Article 78, against Madison County and others, seeking a

ruling that its property is exempt from taxation as a matter of

state law. It appears that the OIN sought to discontinue that

proceeding in preference to this federal lawsuit, but that

request was denied. See Oneida Indian Nation of N.Y. v. Pifer,

43 A.D.3d 579, 840 N.Y.S.2d 672 (3d Dep't 2007) (affirming

trial court's denial of OIN's motion to discontinue lawsuit

without prejudice). It is not clear to us what the status of

that proceeding is at this time.

66

exemptions.27 1 We therefore vacate the district court's grant of

2 summary judgment with respect to the OIN's state-law claims, and

3 remand with instructions to dismiss these claims without

4 prejudice to re-filing in state court.

5 We have considered the parties' other arguments as to

6 the legal status of the OIN's reservation under federal or state

7 law, and we conclude that they are either without merit or they

8 are no longer necessary to decide in light of our resolution of

9 these appeals. And because no claims remain in support of the

10 district court's injunctions restraining the Counties from

11 foreclosing on OIN-owned property, nor has the OIN shown that

12 injunctive relief is warranted in any other respect, we vacate

13 those injunctions in their entirety.

14 V. Ancillary Matters

15 A. Penalties and Interest

16 In each of the parallel lawsuits, the district court

17 ruled that by virtue of the OIN's tribal sovereign immunity from

18 suit, the OIN was not liable to pay any penalties or interest on
67

1 back taxes, and it entered injunctive relief accordingly. See

2 Oneida County II, slip op. at 2; Madison County I, 401 F. Supp.

3 2d at 230. But, in light of the OIN's intervening waiver of

4 immunity, we can no longer sustain the district court's

5 injunction restraining the Counties from collecting penalties

6 and interest on the basis of the OIN's tribal sovereign immunity

7 from suit.

8 The OIN maintains, however, that there is an

9 independent basis for restraining the Counties from assessing

10 and collecting penalties and interest on back taxes, at least

11 for the period of time prior to the Supreme Court's decision in

12 Sherrill III issued on March 29, 2005. It contends that it

13 would be inequitable to subject it to liability for penalties

14 and interest for a period of time during which the decisional

15 law -- as reflected, inter alia, by this Court's decision in

16 Sherrill II -- held that the OIN was not liable to pay property

17 taxes at all. 

18 The procedural history with respect to the issue of

19 penalties and interest is somewhat convoluted. In seeking

20 summary judgment in the Madison County litigation, the OIN

21 argued that the Counties should be prevented from collecting

22 penalties and interest on two grounds: (1) reasons of equity (as

23 to the pre-Sherrill III period only), and (2) tribal sovereign

24 immunity from suit (as to all periods). In its opposing
68

1 filings, Madison County did not appear to respond to either

2 argument. The district court, ruling in the OIN's favor,

3 concluded that Madison County had acquiesced to the OIN's

4 argument that it was not liable to pay penalties or interest at

5 all. See Madison County I, 401 F. Supp. 2d at 230. 

6 In the Oneida County suit, by contrast, the issue of

7 penalties and interest was contested. In seeking summary

8 judgment, the OIN argued -- just as it had in Madison County --

9 that penalties and interest were barred both by principles of

10 equity (as to the pre-Sherrill III period only) and by the OIN's

11 tribal sovereign immunity from suit (as to all periods). Oneida

12 County responded by arguing that the OIN did not possess tribal

13 immunity from liability for penalties and interest, but it did

14 not squarely address the OIN's separate, equity-based argument. 

15 The district court initially ruled in the OIN's favor on the

16 equity theory only, deciding that "[i]t would be inequitable to

17 permit Oneida County to assess interest and penalties for non18 payment of taxes during a time when it was the law that the

19 lands were not taxable." Oneida County I, 432 F. Supp. 2d at

20 291; see also Madison County II, 235 F.R.D. at 560 n.1 (noting

21 contrast between district court's rulings on penalties and

22 interest in the Oneida County and Madison County lawsuits). 

23 The OIN then filed a post-judgment motion in the

24 Oneida County litigation pursuant to Fed. R. Civ. P. 59
69

1 requesting that the district court amend its judgment so as to

2 note that penalties and interest were barred not merely for the

3 pre-Sherrill III period, but for all periods, by virtue of the

4 OIN's tribal sovereign immunity from suit. The district court

5 granted that motion and issued an amended judgment restraining

6 Oneida County from assessing or collecting penalties and

7 interest on unpaid taxes generally. See Oneida County II, slip

8 op. at 2. Ultimately, then, the district court's decisions in

9 both Madison County and Oneida County on the matter of penalties

10 and interest rested on the same ground: tribal sovereign

11 immunity from suit.

12 The OIN's positions on appeal with respect to this

13 issue are difficult to reconcile. First, the OIN argued that

14 because the Counties did not adequately brief the question of

15 penalties and interest in their opening brief, the Counties

16 should be held to have forfeited their defense on that issue. 

17 See OIN Br. at 58-59. Later, however, the OIN represented to

18 the Supreme Court that "the parties continue to dispute . . .

19 whether penalties and interest may be imposed for periods in

20 which the lands were held to be tax-exempt," and that the issue

21 "remain[s] to be litigated." OIN December 2 Letter at 2. Now,

22 on remand, the OIN has reverted to its previous position,

23 asserting that because the Counties did not challenge on appeal

24 any of the district court's rulings with respect to penalties
70

1 and interest, they forfeited their right to contest the OIN's

2 entitlement to relief from penalties and interest, including

3 relief on equitable grounds as to the pre-Sherrill III period

4 alone. 

5 Despite this apparent inconsistency, we agree with the

6 OIN that the Counties have forfeited their arguments in

7 opposition to the OIN's argument that it is not liable for

8 interest or penalties on taxes or related assessments that

9 accrued prior to March 29, 2005. In the summary-judgment

10 proceedings before the district court, neither County actively

11 opposed the OIN's argument that it was entitled on grounds of

12 equity to a declaration that it did not owe interest or

13 penalties for the pre-Sherrill III period. To the contrary,

14 Oneida County's summary-judgment briefing appeared implicitly to

15 concede the point, even as it disputed the OIN's arguments with

16 respect to the post-March 29, 2005 period. The OIN also

17 correctly observes that in the Counties' opening brief on

18 appeal, they barely mentioned the issue of penalties and

19 interest, only arguing in a footnote that the Supreme Court's

20 decision in Sherrill III "is fairly read to authorize local

21 taxing authorities to collect penalties and interest from OIN." 

22 Counties' Br. at 52 n.16. Even after the OIN argued in its

23 responsive brief that "[e]quity also bars imposition of

24 penalties and interest for nonpayment of taxes prior to the
71

1 Supreme Court's City of Sherrill decision," OIN Br. at 25; see

2 also id. at 62-66, the Counties did not directly respond to that

3 argument, but instead asserted only that the amount of interest

4 and penalties imposed was reasonable, see Counties' Reply Br. at

5 26. 

6 Of course, the district court's rulings that the OIN

7 was not liable to pay penalties or interest ultimately rested on

8 the basis of tribal sovereign immunity from suit, not upon

9 principles of equity. Based upon the district court's initial

10 ruling in Oneida County I, however, we understand the district

11 court also to have credited the OIN's argument that it was

12 entitled to be free from paying penalties or interest as to the

13 pre-March 29, 2005 period on equitable grounds. See Oneida

14 County I, 432 F. Supp. 2d at 292 ("Equity precludes the

15 imposition of penalties and interest for taxes unpaid during a

16 time when the properties were tax-exempt under the law."); id.

17 at 290-91 (similar). That ruling was sufficient to put the

18 Counties on notice of the OIN's equitable argument. 

19 We conclude that the OIN is entitled to a declaration

20 that it is not liable to pay penalties or interest on taxes or

21 related assessments that accrued prior to the Supreme Court's

22 decision in Sherrill III. Because the OIN has not shown that a

23 permanent injunction is necessary to protect its interests in

24 this respect, we also conclude that this declaratory relief
72

1 should suffice. Cf. Wooley v. Maynard, 430 U.S. 705, 711 (1977)

2 ("[A] district court can generally protect the interests of a

3 federal plaintiff by entering a declaratory judgment, and

4 therefore the stronger injunctive medicine will be unnecessary."

5 (internal quotation marks omitted)).

6 B. Abstention

7 When this case was originally before us on appeal, the

8 Counties argued that the district court erred as a matter of law

9 by refusing to abstain from jurisdiction on the grounds that

10 federal litigation would impermissibly interfere with state tax

11 administration. The Counties relied upon 28 U.S.C. § 1341,

12 which provides that "[t]he district courts shall not enjoin,

13 suspend or restrain the assessment, levy or collection of any

14 tax under State law where a plain, speedy and efficient remedy

15 may be had in the courts of such State." In our original

16 decision, we rejected this argument, concluding that the Supreme

17 Court has "created an exception to the general rule barring

18 federal interference with state tax administration" for suits

19 brought by Indian tribes that the United States could have

20 brought on a tribe's behalf as trustee. Oneida I, 605 F.3d at

21 160 (internal quotation marks omitted) (citing Moe v.

22 Confederated Salish & Kootenai Tribes of Flathead Reservation,

23 425 U.S. 463, 474-75 (1976)).

24 In their petition for certiorari to the Supreme Court,
73

1 the Counties did not challenge our ruling with respect to the

2 matter of abstention. Nor do they address abstention in their

3 letter-briefing on remand. But because our decision in Oneida I

4 has been vacated, and because "a district court's determination

5 not to abstain . . . implicates the court's subject matter

6 jurisdiction," Hartford Courant Co. v. Pellegrino, 380 F.3d 83,

7 90 (2d Cir. 2004), we raise the issue sua sponte and affirm the

8 district court's decision not to abstain for substantially the

9 same reasons outlined in our prior panel decision. See Oneida

10 I, 605 F.3d at 160-61. 

11 C. Stockbridge's Motions to Intervene

12 On appeal, the putative intervenor, Stockbridge,

13 argues (1) that the district court erred in the Oneida County

14 lawsuit by denying its Rule 24(a) motion to intervene as of

15 right, and (2) that the district court erred in the Madison

16 County lawsuit by refusing to grant leave to Madison County to

17 file a Rule 19 motion to dismiss for failure to join Stockbridge

18 as a party. In its reply letter-brief, Stockbridge asserts that

19 "should this Court conclude that the issue of sovereign immunity

20 is now moot . . . and proceed to address the question whether

21 the [OIN's] land is tax-exempt under New York law, it should

22 reconsider its ruling that Stockbridge does not have an interest

23 in the subject of this litigation." Stockbridge Reply Ltr.-Br.

24 at 4. 
74

1 We need not reconsider our ruling in Oneida I. Here,

2 as in Oneida I, the manner in which we resolve these appeals

3 does not bear upon the question of the disputed boundaries

4 between the OIN's and Stockbridge's respective land claims. See

5 Oneida I, 605 F.3d at 163. Indeed, insofar as our resolution of

6 these appeals does not reach "the question whether the [OIN's]

7 land is tax-exempt under New York law," Stockbridge Reply Ltr.-

8 Br. at 4, but dismisses those claims without prejudice instead,

9 it would appear that Stockbridge concedes that it is unnecessary

10 for us to revisit our prior ruling at this time. 

11 Therefore, for substantially the same reasons stated

12 in our decision in Oneida I, see id. at 161-63 & n.9, we affirm

13 the district court's denial of Stockbridge's Rule 24(a)

14 intervention motion in Oneida County and its denial of Madison

15 County's motion to file a Rule 19 motion to dismiss in Madison

16 County. 

17 D. Disestablishment or Diminishment

18 Finally, we address the Counties' appeals from the

19 district court's declarations that the ancient Oneida Nation's

20 reservation was not disestablished by the 1838 Treaty of Buffalo

21 Creek. See Oneida County I, 432 F. Supp. 2d at 292 (decreeing

22 that "[the OIN's] reservation was not disestablished"); Madison

23 County I, 401 F. Supp. 2d at 233 (same). In so ruling, the
75

1 district court effectively dismissed the Counties' counterclaims

2 seeking a declaration to the opposite effect. 

3 When this case was previously before us on appeal, we

4 declined to reach the Counties' argument that the OIN's

5 reservation had been disestablished, in light of our conclusion

6 that foreclosure was barred in any event by virtue of the OIN's

7 tribal sovereign immunity from suit. Oneida I, 605 F.3d at 157

8 n.6. We nonetheless observed that the Supreme Court in Sherrill

9 III had "explicitly declined to resolve the question of whether

10 the Oneida reservation had been 'disestablished.'" Id. We

11 concluded that "[o]ur prior holding on this question -- that

12 'the Oneidas' reservation was not disestablished' -- therefore

13 remains the controlling law of this circuit." Id. (citation

14 omitted) (quoting Sherrill II, 337 F.3d at 167).

15 Following our decision in Oneida I, the Counties

16 petitioned for a writ of certiorari to review, inter alia, the

17 question "whether the ancient Oneida reservation in New York was

18 disestablished or diminished." Counties' Cert. Petition at i. 

19 Because the Supreme Court vacated our judgment in light of the

20 OIN's professed waiver of immunity and remanded for further

21 proceedings, however, the Court did not have occasion to rule

22 upon the disestablishment question. Nonetheless, relying upon

23 the Supreme Court's intervening grant of certiorari, the
76

1 Counties urge us to revisit our decision in Sherrill II that the

2 Oneidas' reservation was not disestablished. 

3 We decline the Counties' invitation. "This panel is

4 bound by the decisions of prior panels until such time as they

5 are overruled either by an en banc panel of our Court or by the

6 Supreme Court." In re Zarnel, 619 F.3d 156, 168 (2d Cir. 2010)

7 (internal quotation marks omitted). It remains the law of this

8 Circuit that "the Oneidas' reservation was not disestablished,"

9 Sherrill II, 337 F.3d at 167. As we previously observed in

10 Oneida I, the Supreme Court's decision in Sherrill III did not

11 upset that determination. See Oneida I, 605 F.3d at 157 n.6. 

12 Nor do we think that the fact that the Supreme Court

13 granted certiorari to review our decision in Oneida I renders

14 our decision in Sherrill II without legal effect. Our Court has

15 spoken on the question of disestablishment. We therefore affirm

16 the dismissal of the Counties' counterclaims.

17 CONCLUSION

18 For the foregoing reasons: 

19 1. We vacate the district court's judgments to the

20 extent that they granted summary judgment to the OIN on its

21 now-abandoned claims related to: (1) the doctrine of tribal

22 sovereign immunity from suit and (2) the Nonintercourse Act. 

23 We remand with instructions to the district court to dismiss

24 those two claims with prejudice. Moreover, as the OIN has
77

1 suggested, the amended judgments shall reflect this Court's

2 understanding that the OIN's waiver of its tribal sovereign

3 immunity from suit is "irrevocable." OIN December 2 Letter at

4 3. 

5 2. We reverse the district court's judgments to the

6 extent that they granted summary judgment on the OIN's claims

7 that the Counties' redemption notices failed to comport with

8 federal or state due-process requirements. We remand with

9 instructions to enter judgment in favor of the Counties on

10 these claims and to dismiss them with prejudice. 

11 3. We vacate the district court's judgments to the

12 extent that they granted summary judgment to the OIN on its

13 claims that it is entitled under state law to exemptions from

14 state and local property taxes. We remand with instructions to

15 the district court to decline to exercise supplemental

16 jurisdiction over these claims and to dismiss them without

17 prejudice to their being brought in state court.

18 4. We affirm, but solely as to property taxes and

19 related assessments accruing prior to March 29, 2005, the

20 district court's ruling that the OIN is not liable for payment

21 of penalties or interest, and we conclude that the OIN is

22 entitled to a declaration to that effect. 

23 5. We affirm the district court's decisions:

24 declining to abstain from this litigation under 28 U.S.C.
78

1 § 1341; denying Stockbridge's motions to intervene and denying

2 Madison County's motion for leave to file a Rule 19 motion to

3 dismiss; and dismissing each County's declaratory

4 counterclaims.

5 6. Because no claims remain that would entitle the

6 OIN to injunctive relief barring the Counties from carrying out

7 their respective tax-enforcement procedures, and because the

8 OIN has not shown that injunctive relief is warranted in any

9 other respect, we vacate the district court's injunctions in

10 their entirety. 

11 7. We direct the district court to enter an amended

12 judgment in each lawsuit reflecting these rulings. 

13 Costs of these proceedings shall be borne by the OIN.