Oneida Indian Nation v. Madison County

1
05-6408-cv (L)
Oneida Indian Nation v. Madison County
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2007 3
(Argued: November 6, 2007; Originally Decided: April 27, 2010; 4
Vacated and Remanded by the Supreme Court of the United States: 5
January 10, 2011; Final Submission on Remand: February 7, 6
2011; Decided: October 20, 2011) 7
Docket Nos. 05-6408-cv (L); 06-5168-cv (CON); 06-5515-cv (CON) 8
------------------------------------- 9
ONEIDA INDIAN NATION OF NEW YORK, 10
Plaintiff-Counter-Defendant-Appellee, 11
- v - 12
MADISON COUNTY AND ONEIDA COUNTY, NEW YORK, 13
Defendants-Counter-Claimants-Appellants, 14
STOCKBRIDGE-MUNSEE COMMUNITY, BAND OF MOHICAN INDIANS, 15
Putative Intervenor-Appellant. 16
------------------------------------- 17
Before: CABRANES, SACK, and HALL, Circuit Judges. 18
Consolidated appeals from judgments of the United 19
States District Court for the Northern District of New York 20

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2
(David N. Hurd, Judge). In separate actions, the Oneida Indian 1
Nation of New York (OIN) brought suit against Madison County and 2
Oneida County to enjoin them from assessing property tax on OIN- 3
owned property, acquired on the open market in the 1990s, and 4
from enforcing those taxes through tax sale or foreclosure. On 5
cross-motions for summary judgment in each action, the district 6
court entered judgment in favor of the OIN on four separate 7
grounds: (1) tribal sovereign immunity from suit; (2) the 8
Nonintercourse Act, 25 U.S.C. § 177; (3) constitutional due 9
process; and (4) property-tax exemptions under New York state 10
law. On appeal, we affirmed solely on the basis that the OIN's 11
tribal sovereign immunity from suit barred the Counties from 12
undertaking foreclosure proceedings against it. See Oneida 13
Indian Nation of N.Y. v. Madison County, 605 F.3d 149 (2d Cir. 14
2010). The U.S. Supreme Court granted the Counties' petition for 15
a writ of certiorari, after which the OIN declared that it had 16
waived its tribal sovereign immunity from suit. The Supreme 17
Court then vacated our prior decision and remanded for further 18
proceedings. See Madison County v. Oneida Indian Nation of N.Y., 19
131 S. Ct. 704 (2011) (per curiam). Upon the return of these 20
appeals to our Court, we conclude that the OIN has abandoned its 21
claims premised on tribal sovereign immunity from suit as well as 22
its claims based upon the Nonintercourse Act. In proceeding to 23

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3
review the remaining two grounds supporting the district court's 1
judgments, we conclude that the district court erred in ruling 2
that the Counties' redemption-notice procedures failed to comport 3
with due process. We further conclude that the district court 4
should not exercise supplemental jurisdiction over the OIN's 5
state-law claims. Finally, we affirm as to several ancillary 6
matters. 7
Affirmed in part, reversed in part, and vacated in 8
part, with instructions. 9
On original appeal: DAVID M. SCHRAVER, David H. Tennant, 10
John J. Field, Nixon Peabody LLP, 11
Rochester, NY, for Defendants-Counter- 12
Claimants-Appellants Madison County, New 13
York, and Oneida County, New York. 14
MICHAEL R. SMITH, David A. Reiser, 15
Zuckerman Spaeder LLP, Washington, DC; 16
Peter D. Carmen, Oneida Nation Legal 17
Department, Verona, NY, for Plaintiff- 18
Counter-Defendant-Appellee Oneida Indian 19
Nation of New York. 20
DON B. MILLER, Don B. Miller, P.C., 21
Boulder, CO, for Putative Intervenor- 22
Appellant Stockbridge-Munsee Community, 23
Band of Mohican Indians. 24
ANDREW D. BING, Assistant Solicitor 25
General (Barbara D. Underwood, Solicitor 26
General; Daniel Smirlock, Deputy 27
Solicitor General; and Peter H. Schiff, 28
Senior Counsel, on the brief; Dwight A. 29
Healy, White & Case LLP, New York, NY, 30
of counsel) for Andrew M. Cuomo, 31
Attorney General, for Amicus Curiae 32
State of New York. 33

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4
Ronald J. Tenpas, Assistant Attorney 1
General, Samuel C. Alexander, Elizabeth 2
Ann Peterson, Kathryn E. Kovacs, U.S. 3
Department of Justice, Environment & 4
Natural Resources Division, Appellate 5
Section, Washington, DC; Thomas Blaser, 6
U.S. Department of the Interior, 7
Washington, DC, for Amicus Curiae United 8
States of America. 9
On remand from 10
U.S. Supreme Court: David M. Schraver, Nixon Peabody LLP, 11
Rochester, NY, for Defendants-Counter- 12
Claimants-Appellants Madison County, New 13
York, and Oneida County, New York. 14
Seth P. Waxman, Wilmer Cutler Pickering 15
Hale & Dorr LLP, Washington, DC, for 16
Plaintiff-Counter-Defendant-Appellee 17
Oneida Indian Nation of New York. 18
Don B. Miller, Don B. Miller, P.C., 19
Boulder, CO, for Putative Intervenor- 20
Appellant Stockbridge-Munsee Community, 21
Band Of Mohican Indians. 22
Andrew D. Bing, Deputy Solicitor General 23
(Barbara D. Underwood, Solicitor 24
General, on the brief), for Eric T. 25
Schneiderman, Attorney General, for 26
Amicus Curiae State of New York. 27
SACK, Circuit Judge: 28
These consolidated appeals, which have been returned to 29
us on remand from the United States Supreme Court, once again 30
call upon us to consider whether -- and, if so, on what grounds 31
-- the plaintiff-appellee, the Oneida Indian Nation of New York 32
(the "OIN"), is entitled to restrain the defendants-appellants, 33
Madison County and Oneida County (the "Counties"), from 34
foreclosing upon certain fee-title properties, acquired on the 35

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5
open market by the OIN in the 1990s, for which the OIN has 1
refused to pay property tax. In our previous opinion, Oneida 2
Indian Nation of N.Y. v. Madison County, 605 F.3d 149 (2d Cir. 3
2010) ("Oneida I"), we concluded that the Counties were barred 4
from foreclosing on these properties by virtue of the OIN's 5
tribal sovereign immunity from suit. We therefore affirmed the 6
judgments of the United States District Court for the Northern 7
District of New York (David N. Hurd, Judge), which had issued 8
parallel injunctions barring the Counties from enforcing their 9
property-tax regimes against the OIN's properties through tax 10
sale or foreclosure. See Oneida Indian Nation v. Oneida County, 11
432 F. Supp. 2d 285, 292 (N.D.N.Y. 2006) ("Oneida County I"); 12
Oneida Indian Nation of N.Y. v. Madison County, 401 F. Supp. 2d 13
219, 231-32 (N.D.N.Y. 2005) ("Madison County I"). Although the 14
district court rested its grant of judgment in each case on four 15
independent grounds -- (1) the OIN's tribal sovereign immunity 16
from suit; (2) federal restrictions on the alienation of tribal 17
lands under the Nonintercourse Act, 25 U.S.C. § 177; (3) 18
inadequate notice to the OIN of the expiration of the Counties' 19
respective redemption periods, in violation of due process; and 20
(4) the exemption of "Indian reservation[s]" from property tax 21
under New York state law, see Oneida County I, 432 F. Supp. 2d at 22
289-90; Madison County I, 401 F. Supp. 2d at 227-31 -- our 23
decision on appeal affirmed the judgments solely on the basis of 24

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6
tribal sovereign immunity from suit. See Oneida I, 605 F.3d at 1
160. 2
Subsequent to our decision in Oneida I, the Counties 3
successfully petitioned the United States Supreme Court for a 4
writ of certiorari. While the case was pending before the 5
Supreme Court, however, the OIN notified the Court that it had 6
voluntarily waived its tribal sovereign immunity from suit. In 7
light of that factual development, the Supreme Court vacated our 8
judgment in Oneida I and remanded for further proceedings. The 9
Court has instructed us, on remand, to "address, in the first 10
instance, whether to revisit [our] ruling on sovereign immunity 11
in light of this new factual development, and -- if necessary -- 12
proceed to address other questions in the case consistent with 13
[our] sovereign immunity ruling." Madison County v. Oneida 14
Indian Nation of N.Y., 131 S. Ct. 704, 704 (2011) (per curiam). 15
After reviewing the parties' submissions on remand from 16
the Supreme Court, we conclude that the district court's 17
judgments can no longer be sustained on the basis we relied upon 18
in Oneida I. The OIN has affirmatively disclaimed any reliance 19
on the doctrine of tribal sovereign immunity from suit, and it 20
thereby abandoned its declaratory claims against the Counties to 21
the extent that they depended on such immunity. We further 22
conclude that the OIN has abandoned its declaratory claims 23
premised upon the Nonintercourse Act, 25 U.S.C. § 177. 24

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7
Those dispositions leave two grounds remaining in 1
support of the district court's judgments: the OIN's due-process 2
claims, based upon the Counties' alleged failure to provide 3
adequate notice to the OIN of the expiration of the redemption 4
periods applicable to each County's respective tax-enforcement 5
proceedings, and the OIN's claims that its properties are exempt 6
from taxation under New York Indian Law § 6 and New York Real 7
Property Tax Law § 454. 8
With respect to the due-process claims, we conclude 9
that the district court erred in ruling that the redemption 10
notices failed to comport with due process. We reverse the 11
district court to the extent that it entered judgment in the 12
OIN's favor on its claims for violations of the Fourteenth 13
Amendment. 14
With respect to the OIN's claims arising under state 15
tax law, we conclude that concerns of comity, fairness, and 16
judicial economy warrant that we and the district court decline 17
to exercise supplemental jurisdiction over them. We vacate the 18
district court's judgments to the extent that they rest upon a 19
determination that the OIN is entitled to property-tax exemptions 20
under state law, and we remand with instructions to the district 21
court to dismiss without prejudice the OIN's state-law claims. 22
Because no grounds remain in support of the district court's 23

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8
award of permanent injunctive relief, we also vacate both 1
injunctions in their entirety. 2
Finally, we affirm, in whole or in part, the district 3
court's determinations as to several ancillary matters: First, 4
we affirm the district court's subsidiary ruling in the Oneida 5
County litigation (a ruling also arguably implicit in the Madison 6
County litigation) that the OIN is not liable to pay penalties or 7
interest for unpaid taxes accruing prior to March 29, 2005, on 8
the ground that the Counties have forfeited their defense on this 9
issue. Second, as in Oneida I, we affirm the district court's 10
decision to decline to abstain from this litigation. Third, we 11
affirm the denial of a motion by the Stockbridge-Munsee 12
Community, Band of Mohican Indians seeking to intervene in this 13
litigation. Lastly, we affirm the district court's dismissal of 14
the Counties' counterclaims seeking a declaration that the Oneida 15
Nation's ancient reservation was disestablished. 16
BACKGROUND 17
The background facts of this protracted and 18
procedurally convoluted litigation are set forth in various 19
opinions of this and other Courts. See, e.g., City of Sherrill 20
v. Oneida Indian Nation of N.Y., 544 U.S. 197, 203-12 (2005) 21
("Sherrill III"); Oneida I, 605 F.3d at 152-56; Oneida Indian 22
Nation of N.Y. v. City of Sherrill, 337 F.3d 139, 146-52 (2d Cir. 23
2003) ("Sherrill II"), rev'd, Sherrill III, 544 U.S. 197; Oneida 24

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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
Indian Nation of N.Y. v. City of Sherrill, 145 F. Supp. 2d 226, 1
232-36 (N.D.N.Y. 2001) ("Sherrill I"), aff'd in part, vacated and 2
remanded in part, Sherrill II, 337 F.3d 139, rev'd, Sherrill III, 3
544 U.S. 197. 1 We repeat them only insofar as we think necessary 4
to an understanding of our resolution of these appeals. 5
The Oneida Nation's Ancient Reservation 6
The OIN is a federally recognized Indian tribe that is 7
directly descended from the original Oneida Indian Nation 8
("Oneida Nation"), one of six Iroquois nations. 2 Sherrill III, 9
544 U.S. at 203. The Oneida Nation's homeland once encompassed 10
"some six million acres in what is now central New York [State]." 11

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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
Id. In 1788, pursuant to the Treaty of Fort Schuyler between the 1
Oneida Nation and the State of New York, the Oneida Nation ceded 2
title to the vast majority of its lands and retained a 3
reservation of approximately 300,000 acres. Id. In 1790, 4
Congress passed the first Indian Trade and Intercourse Act, also 5
known as the Nonintercourse Act, a law barring the alienation of 6
tribal land absent the acquiescence of the federal government. 3
7
See Act of July 22, 1790, ch. 33, 1 Stat. 137. In 1794, the 8
United States and various Iroquois nations, including the Oneida 9
Nation, entered into the Treaty of Canandaigua. "That treaty 10
both 'acknowledge[d]' the Oneida Reservation as established by 11
the Treaty of Fort Schuyler and guaranteed the Oneidas' 'free use 12
and enjoyment' of the reserved territory." Sherrill III, 544 13
U.S. at 204-05 (brackets in original) (quoting Act of Nov. 11, 14
1794, art. II, 7 Stat. 44). 15
Despite the provisions of the Nonintercourse Act, 16
substantial portions of the Oneida Nation's remaining reservation 17
lands were thereafter conveyed to New York State and private 18
parties without federal permission. See id. at 205-06; Sherrill 19
II, 337 F.3d at 147-48. And by the early nineteenth century, the 20

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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
federal government itself, in apparent disregard of its 1
commitments under the Treaty of Canandaigua, "pursued a policy 2
designed to open reservation lands to white settlers and to 3
remove tribes westward." Sherrill III, 544 U.S. at 205. 4
By 1838, the Oneida Nation had sold all but 5,000 acres 5
of its reservation. Id. at 206. That year, the United States 6
and various Indian tribes in New York, including the Oneida 7
Nation, entered into the Treaty of Buffalo Creek, an agreement 8
that contemplated the eventual removal of all remaining Native 9
Americans in New York to reservation lands in Kansas. 4 See Act 10
of Jan. 15, 1838, 7 Stat. 550. These efforts were not completed, 11
however, and federal efforts to relocate the New York Oneidas to 12
Kansas ended by 1860. See Sherrill III, 544 U.S. at 207. 13
Nonetheless, by 1920, only thirty-two acres of the Oneida 14
Nation's ancient reservation remained in tribal possession. See 15
id. 16
In the mid-twentienth century, descendants of the 17
Oneida Nation began seeking legal relief -- first through 18
proceedings before the Indian Claims Commission, and later 19
through litigation in federal court -- for the allegedly unlawful 20
dispossession of their ancestral lands. Id. at 207-08. In 1970, 21

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12
the OIN and the Oneida Indian Tribe of Wisconsin instituted a 1
"test case" against Oneida County and Madison County alleging 2
that the Oneida Nation's cession of some 100,000 acres to the 3
State of New York in 1795 had violated the federal Nonintercourse 4
Act and therefore had not terminated the Oneidas' legal right to 5
possess those lands. Id. at 208. The Oneidas subsequently 6
received several favorable decisions from the United States 7
Supreme Court. See Oneida Indian Nation of N.Y. v. Oneida 8
County, 414 U.S. 661 (1974) ("County of Oneida I") (upholding 9
federal jurisdiction over the Oneidas' complaint); Oneida County 10
v. Oneida Indian Nation of N.Y., 470 U.S. 226 (1985) ("County of 11
Oneida II") (ruling that the Oneidas had stated a claim for 12
damages under federal common law). In 1974, a few months after 13
the Oneidas' success in the Supreme Court in County of Oneida I, 14
the OIN initiated a more comprehensive land claim against the 15
Counties. See Oneida Indian Nation of N.Y. v. County of Oneida, 16
No. 5:74-CV-187 (N.D.N.Y. filed May 3, 1974) (the "Land Claim 17
Litigation"). Later, the United States intervened as a 18
plaintiff, and the State of New York was added as a defendant. 19
That litigation, which centers on the OIN's claims to more than 20
250,000 acres of ancestral lands that are not currently in the 21
OIN's possession, continues to the present day. See Oneida 22
Indian Nation of N.Y. v. County of Oneida, 617 F.3d 114, 119-21 23
(2d Cir. 2010) (surveying procedural history of the Land Claim 24

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13
Litigation), cert. denied, ––- U.S. ----, 2011 WL 1933740, 2011 1
U.S. LEXIS 7494 (U.S. Oct. 17, 2011). However, the Land Claim 2
Litigation is not directly at issue in the present appeals. The 3
appeals before us are only about lands that the OIN reacquired on 4
the open market in the 1990s and now possesses. 5
The OIN's Land Purchases and the 6
City of Sherrill Litigation 7
In the early 1990s, the OIN began to reacquire, through 8
voluntary, free-market transactions, lands that had once been a 9
part of the Oneida Nation's reservation, but which later passed 10
into the possession of New York State or private, non-Indian 11
titleholders, who thereafter held title to them in fee simple. 12
See Sherrill II, 337 F.3d at 144, 156. Before the OIN's recent 13
reacquisition of these fee-title lands -- which are located 14
within Madison County and Oneida County and in various cities 15
therein, including the City of Sherrill -- the lands had been 16
subject to property taxation. 17
After acquiring the lands in the 1990s, the OIN refused 18
to pay property tax upon them. The OIN contended that these 19
properties fell within the Oneida Nation's reservation as 20
recognized by the Treaties of Fort Schuyler and Canandaigua and 21
that the OIN's re-purchase of those lands had resuscitated the 22
tribe's "sovereign dominion over the parcels." Sherrill III, 544 23
U.S. at 213. In asserting that the fee-title lands remained part 24
of its reservation, the OIN principally relied upon the Supreme 25

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14
Court's 1985 decision in County of Oneida II, which held that the 1
OIN was entitled to bring suit under federal common law for the 2
wrongful alienation of its ancestral lands, see 470 U.S. at 253- 3
54. 4
One of the taxing authorities within whose jurisdiction 5
some of the reacquired lands fell, the City of Sherrill, 6
responded to the OIN's refusal to pay property taxes by selling 7
three of the OIN's properties at a tax sale. See Sherrill I, 145 8
F. Supp. 2d at 232-33. The City itself purchased the properties, 9
and it later began formal eviction proceedings. Id. In 10
response, in February 2000, the OIN brought suit against the City 11
of Sherrill in the United States District Court for the Northern 12
District of New York seeking a declaration that the lands in 13
question were "Indian country" as defined by federal law, see 18 14
U.S.C. § 1151, and were therefore exempt from state and municipal 15
taxation. Id. at 237. Two weeks later, the City of Sherrill 16
began a summary eviction proceeding in state court seeking to 17
evict the OIN from the three parcels. The OIN removed the 18
eviction action to federal court. See id. at 233, 238. At about 19
the same time, the OIN also brought a declaratory-judgment suit 20
against Madison County, which had initiated in rem tax- 21
foreclosure proceedings on certain OIN-owned properties. Id. at 22
239-40. These three cases, along with a fourth lawsuit brought 23
by the City of Sherrill against individual OIN members, were 24

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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
designated as related and assigned to Judge David N. Hurd. See 1
generally Sherrill II, 337 F.3d at 144-45 (identifying and 2
describing these four cases); Sherrill I, 145 F. Supp. 2d at 236- 3
40 (same). 4
The district court, accepting the OIN's theory that the 5
repurchased fee-title lands constituted "Indian country" within 6
the meaning of 18 U.S.C. § 1151, granted summary judgment in the 7
OIN's favor in all of the related lawsuits and enjoined both the 8
City of Sherrill and Madison County from further attempts to 9
collect property tax. 5 See Sherrill I, 145 F. Supp. 2d at 267- 10
68. On appeal, we affirmed the district court's judgments in 11
each of the three lawsuits involving the City of Sherrill, see 12
Sherrill II, 337 F.3d at 155-69, but vacated the judgment in the 13
suit involving Madison County on procedural grounds, see id. at 14
146, 170-71. The City of Sherrill successfully petitioned the 15
United States Supreme Court for a writ of certiorari, and the 16
OIN's lawsuit against Madison County was held in abeyance pending 17
the outcome of the City of Sherrill's Supreme Court appeal. 18
In 2005, in reviewing our decision in Sherrill II, the 19
Supreme Court focused its attention on a question that it had 20

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16
reserved two decades before: "'whether equitable considerations 1
should limit the relief available to the present day Oneida 2
Indians.'" Sherrill III, 544 U.S. at 209 (quoting County of 3
Oneida II, 470 U.S. at 253 n.27). Answering that question in the 4
affirmative, the Supreme Court held that "standards of federal 5
Indian law and federal equity practice preclude[d] the [OIN] from 6
rekindling embers of sovereignty that long ago grew cold." Id. 7
at 214 (internal quotation marks omitted). The Court explained: 8
[T]he distance from 1805 to the present day, 9
the Oneidas' long delay in seeking equitable 10
relief against New York or its local units, 11
and developments in the city of Sherrill 12
spanning several generations, evoke the 13
doctrines of laches, acquiescence, and 14
impossibility, and render inequitable the 15
piecemeal shift in governance this suit seeks 16
unilaterally to initiate. 17
Id. at 221; see also id. at 215 n.9. The Supreme Court therefore 18
reversed our judgment in Sherrill II, which had affirmed the 19
injunctions entered in the OIN's favor. But the Court 20
acknowledged that it had not squarely addressed all of the 21
questions that the parties had briefed, see Sherrill III, 544 22
U.S. at 214 n.8, including whether the ancient Oneida Nation 23
reservation had been disestablished or diminished by the 1838 24
Treaty of Buffalo Creek, see id. at 215 n.9. 25
The Counties' Subsequent Attempts 26
to Foreclose on the OIN's Land 27
28
Following the Supreme Court's ruling in Sherrill III 29
that the OIN did not possess "sovereign authority" over the 30

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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
reacquired properties, id., the OIN reached a settlement with the 1
City of Sherrill. See Madison County I, 401 F. Supp. 2d at 223 2
n.2 (noting settlement). The OIN was unable, however, to reach 3
agreement with two other taxing authorities: Madison County and 4
Oneida County. 5
Madison County. Beginning in 1999, Madison County 6
commenced annual in rem tax-enforcement proceedings against 7
parcels of land that had been repurchased by the OIN in the 1990s 8
and on which the OIN had refused to pay taxes. 6 From 2000 9
onward, however -- after the filing of the Madison County 10
litigation in the Northern District of New York -- Madison County 11
followed a practice of initiating such proceedings only to 12
withdraw them without prejudice in anticipation of a resolution 13
of the taxability question in federal court. It continued to do 14
so until, in 2003, this Court separated the ongoing Madison 15
County litigation from the City of Sherrill litigation and 16
remanded the Madison County suit to the district court for 17
further proceedings. See Sherrill II, 337 F.3d at 171. 18
On November 14, 2003, Madison County began a tax- 19
enforcement process with respect to some ninety-eight parcels of 20
OIN-owned property by including those parcels on a list of 21

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18
delinquent taxes filed with the county clerk. This time, 1
however, Madison County did not abandon the tax-enforcement 2
process as to the OIN-owned parcels. Instead, in December 2004, 3
the County proceeded to execute a petition of foreclosure in New 4
York state court. Notice of this filing was sent to the OIN by 5
certified mail on December 8, 2004, and published in local 6
newspapers in December 2004 and January 2005. The notice 7
established March 31, 2005, as the last day that the properties 8
could be redeemed from foreclosure by full payment of back taxes, 9
plus penalties and interest. Id. Just two days before the final 10
day for redemption, on March 29, 2005, the Supreme Court decided 11
Sherrill III. See 544 U.S. 197. In light of this development, 12
Madison County subsequently extended the redemption period for 13
the OIN's properties until June 3, 2005, and later to July 14, 14
2005. 15
In the meantime, on March 30, 2005, the OIN filed a 16
verified answer in the state-court foreclosure action. On April 17
28, 2005, Madison County moved for summary judgment in the state- 18
court action. Madison County maintains that as of May 15, 2005, 19
the OIN owed it approximately $3 million in unpaid property 20
taxes, penalties, and interest. 21
Oneida County. Similarly, in the years prior to 2005, 22
Oneida County appears to have followed a practice of beginning, 23
but not completing, its tax-enforcement procedures with respect 24

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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 However, after the Supreme Court's decision 1
in Sherrill III in March 2005, Oneida County began to implement 2
fully its tax-enforcement procedures against OIN-owned 3
properties. On June 3, 2005, Oneida County's Deputy Commissioner 4
of Finance hand-delivered notices to the OIN with regard to 5
fifty-nine parcels that had been sold at tax sale three years 6
prior. Oneida County I, 432 F. Supp. 2d at 288. These notices 7
specified that the OIN would have until July 29, 2005, to remit 8
all unpaid taxes, penalties, and interest or else forever lose 9
its legal interest in the properties. Id. Oneida County 10
subsequently delivered additional final-redemption notices to the 11
OIN for another sixty-two parcels on September 26, 2005, and an 12
additional sixty-six parcels on October 27, 2005. Id. Oneida 13
County maintains that, as of November 30, 2005, the OIN owed it 14
approximately $5 million in unpaid property taxes, penalties, and 15
interest. 16
The Post-Sherrill III District Court Proceedings 17

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20
In an effort to prevent each of the Counties from 1
completing its respective tax-enforcement procedures, the OIN 2
sought declaratory and injunctive relief in federal court. As to 3
Madison County, against which litigation had been pending since 4
March 2000, the OIN moved in June 2005 for a preliminary 5
injunction to restrain all further efforts to foreclose upon OIN- 6
owned property. The district court granted that motion and 7
issued such an injunction on July 1, 2005. See Oneida Indian 8
Nation of N.Y. v. Madison County, 376 F. Supp. 2d 280, 283 9
(N.D.N.Y. 2005) (awarding injunction). 10
As to Oneida County, the OIN filed suit against it for 11
the first time in July 2005. The OIN obtained a temporary 12
restraining order against Oneida County on October 28, 2005, 13
barring it from further tax-enforcement efforts with respect to 14
the OIN's property. This restraining order was then effectively 15
converted into a preliminary injunction by stipulation of the 16
parties. See Oneida County I, 432 F. Supp. 2d at 286 (describing 17
procedural history with respect to preliminary relief). 18
The parties then brought cross-motions for summary 19
judgment in each lawsuit. The district court granted the OIN's 20
respective motions and entered judgment in its favor in each 21
case. See Oneida County I, 432 F. Supp. 2d at 292; Madison 22
County I, 401 F. Supp. 2d at 232-33. In concluding that the 23
Counties could not enforce their property taxes through tax sale 24

-- 20 of 78 --

21
or foreclosure, the district court rested its determination on 1
four independent grounds: (1) the OIN's tribal sovereign immunity 2
from suit, see Oneida County I, 432 F. Supp. 2d at 289; Madison 3
County I, 401 F. Supp. 2d at 228-29; (2) the Nonintercourse Act's 4
restrictions on the alienability of tribal land, see Oneida 5
County I, 432 F. Supp. 2d at 289; Madison County I, 401 F. Supp. 6
2d at 227-28; (3) the Counties' failures to give the OIN adequate 7
notice of the expiration of the respective redemption periods in 8
violation of principles of due process, see Oneida County I, 432 9
F. Supp. 2d at 289-90; Madison County I, 401 F. Supp. 2d at 230; 10
and (4) the exemption of OIN-owned properties from property 11
taxation as a matter of state law, see Oneida County I, 432 F. 12
Supp. 2d at 290; Madison County I, 401 F. Supp. 2d at 231. The 13
district court also concluded that the OIN could not be compelled 14
to pay penalties or interest on any unpaid taxes by virtue of the 15
OIN's tribal sovereign immunity from suit. See Oneida Indian 16
Nation of N.Y. v. Oneida County, No. 6:05-CV-945, slip op. at 2-3 17
(N.D.N.Y. Nov. 2, 2006), ECF No. 41 ("Oneida County II"); Madison 18
County I, 401 F. Supp. 2d at 230. Finally, the district court 19
issued declarations in each case that the Oneida Nation had not 20
been disestablished by the 1838 Treaty of Buffalo Creek. See 21
Oneida County I, 432 F. Supp. 2d at 292; Madison County I, 401 F. 22
Supp. 2d at 231, 233. 23

-- 21 of 78 --

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 defendant-
intervenor. 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
At a different point in each litigation, the district 1
court also denied motions by the Stockbridge-Munsee Community, 2
Band of Mohican Indians ("Stockbridge") to intervene as of right 3
pursuant to Fed. R. Civ. P. 24(a), based upon Stockbridge's claim 4
to a six-square-mile reservation encompassing some of the parcels 5
in dispute. See Oneida Indian Nation of N.Y. v. Madison County, 6
235 F.R.D. 559, 562-63 (N.D.N.Y. 2006) ("Madison County II"); 7
Oneida County I, 432 F. Supp. 2d at 291-92. 8
8
The Proceedings on Appeal to this Court: Oneida I 9
Following a round of post-judgment motion practice in 10
each lawsuit, each County appealed from the grant of summary 11
judgment and entry of injunctive relief against it. Stockbridge 12

-- 22 of 78 --

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
also appealed, asserting error in the district court's denial of 1
its motion to intervene in the Oneida County litigation. We 2
consolidated the three appeals. The State of New York appeared 3
as amicus curiae in support of the Counties, while the United 4
States, upon order of this Court, also appeared as amicus 5
supporting the OIN. 6
After a brief stay and several rounds of supplementary 7
submissions, 9 we affirmed the district court's judgments in the 8
OIN's favor, but solely on the basis that tax sale and 9
foreclosure of the OIN's properties were barred by the doctrine 10

-- 23 of 78 --

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
of tribal sovereign immunity from suit. See Oneida I, 605 F.3d 1
at 156-60. We expressly declined to reach any of the "other 2
three rationales relied upon by the district court" in ruling in 3
the OIN's favor. 10 Id. at 160. 4
With respect to Stockbridge, we affirmed the denial of 5
its motion to intervene, agreeing with the district court that it 6
"lacked an interest in the instant litigation." Id. at 162; see 7
id. at 161-63. We also noted that our ground for decision 8
"render[ed] minimal the likelihood that Stockbridge w[ould] be 9
prejudiced by its failure to be allowed to intervene." Id. at 10
163. 11
The Proceedings Before the Supreme Court in 2010-11 12
Following our decision in Oneida I, the Counties 13
petitioned the United States Supreme Court for a writ of 14
certiorari, proposing two questions for review: (1) "whether 15
tribal sovereign immunity from suit, to the extent it should 16
continue to be recognized, bars taxing authorities from 17
foreclosing to collect lawfully imposed property taxes"; and (2) 18
"whether the ancient Oneida reservation in New York was 19
disestablished or diminished." Petition for Writ of Certiorari 20
at i, Madison County v. Oneida Indian Nation of N.Y., No. 10-72 21

-- 24 of 78 --

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 government-
to-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
(U.S. July 9, 2010) ("Counties' Cert. Petition"). The Supreme 1
Court granted the Counties' petition, see 131 S. Ct. 459 (2010), 2
and ordered merits briefing. 3
On November 29, 2010, the OIN's tribal council convened 4
and issued a declaration and ordinance waiving "[the OIN's] 5
sovereign immunity to enforcement of real property taxation 6
through foreclosure by state, county and local governments within 7
and throughout the United States." 11 Oneida Indian Nation of 8

-- 25 of 78 --

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
N.Y., Declaration of Irrevocable Waiver of Immunity, Ordinance 1
No. O-10-1 (Nov. 29, 2010) (the "Waiver Declaration"). The next 2
day, the OIN sent a letter notifying the Supreme Court that the 3
OIN had waived its immunity with respect to "the pending tax 4
foreclosure proceedings directly at issue in this case and to all 5
future tax foreclosure proceedings involving the [OIN]'s land." 6
Letter from Seth P. Waxman, Esq., to Hon. William K. Suter, Clerk 7
of the Supreme Court of the United States, at 1, Madison County 8
v. Oneida Indian Nation of N.Y., No. 10-72 (U.S. Nov. 30, 2010). 9
The OIN suggested that in light of this development, "the Court 10
may wish to direct the parties to address how this matter should 11
proceed." Id. 12
The Counties responded by letter dated December 1, 13
2010. Emphasizing that the OIN's Waiver Declaration occurred 14
just four days before the submission deadline for their opening 15
merits brief, the Counties asserted that the OIN's waiver 16
"appear[ed] to be a classic example of a litigant 'attempting to 17
manipulate the Court's jurisdiction to insulate a favorable 18
decision from review.'" Letter from David M. Schraver, Esq., to 19
Hon. William K. Suter, Clerk of the Supreme Court of the United 20

-- 26 of 78 --

12 See supra note 9.
27
States, at 1, Madison County v. Oneida Indian Nation of N.Y., No. 1
10-72 (U.S. Dec. 1, 2010) (quoting City of Erie v. Pap's A.M., 2
529 U.S. 277, 288 (2000)). The Counties also questioned the 3
scope and permanence of the Waiver Declaration, arguing that the 4
OIN's waiver was susceptible both of being read narrowly and of 5
being revoked by a future tribal council. The Counties therefore 6
argued that the waiver had not caused the question of tribal 7
sovereign immunity from suit to become moot. See id. at 2-4. 8
The OIN replied the next day. See Letter from Seth P. 9
Waxman, Esq., to Hon. William K. Suter, Clerk of the Supreme 10
Court of the United States, Madison County v. Oneida Indian 11
Nation of N.Y., No. 10-72 (U.S. Dec. 2, 2010) ("OIN December 2 12
Letter"). The OIN conceded that the timing of its waiver "at 13
this stage of the litigation [was] unusual," id. at 1, but argued 14
that the waiver had not been intended to frustrate the Court's 15
jurisdiction. Instead, the OIN characterized its Waiver 16
Declaration as a "good-faith effort[]" to address the Counties' 17
concerns about the sufficiency of certain letters of credit that 18
the OIN had posted as part of the federal land-into-trust 19
process. 12 Id. at 2. The Waiver Declaration, according to the 20
OIN, was "intended to remove any doubt" surrounding the letters 21
of credit by providing the Counties with "the necessary 22
assurances that any amounts [of taxes, penalties, and interest] 23

-- 27 of 78 --

28
due will be paid once they are judicially determined." Id. at 1- 1
2. The OIN also responded to the Counties' concerns about the 2
scope and permanence of the Waiver Declaration by representing 3
that the waiver covered all taxes, penalties, and interest that 4
were "lawfully due" and that the waiver was "irrevocable and 5
perpetual." Id. at 2 (brackets and internal quotation marks 6
omitted). Finally, the OIN posited that its waiver had "removed 7
[the issue of sovereign immunity from suit] from the case," id. 8
at 3, and suggested that the Court "direct submissions from the 9
parties to address whether the decision below [i.e., Oneida I] 10
should be vacated with instructions to address the other grounds 11
for the injunctions," id. at 4. 12
A final letter from the Counties followed later the 13
same day. See Letter from David M. Schraver, Esq., to Hon. 14
William K. Suter, Clerk of the Supreme Court of the United 15
States, Madison County v. Oneida Indian Nation of N.Y., No. 10-72 16
(U.S. Dec. 2, 2010). The Counties expressed their "strong[] 17
disagree[ment]" with the OIN's view that its Waiver Declaration 18
had caused the issue of tribal sovereign immunity from suit to 19
become moot. Id. at 1. The Counties agreed with the OIN, 20
however, that "the Court should direct them to file separate 21
submissions addressing the impact, if any," of the OIN's Waiver 22
Declaration. Id. Despite this flurry of letters, the Counties 23
proceeded to file their opening merits brief the next day. 24

-- 28 of 78 --

29
The Supreme Court did not direct further submissions 1
from the parties about the effect of the Waiver Declaration. 2
Instead, on January 10, 2011, the Supreme Court issued a brief 3
per curiam order referencing and briefly describing the parties' 4
letter submissions of late November and early December 2010. See 5
Madison County, 131 S. Ct. at 704. The Court did not identify or 6
address the parties' arguments concerning whether the issue of 7
tribal sovereign immunity from suit had become moot. Instead, 8
the Court stated: 9
We vacate the judgment and remand the case to 10
the United States Court of Appeals for the 11
Second Circuit. That court should address, 12
in the first instance, whether to revisit its 13
ruling on sovereign immunity in light of this 14
new factual development, and -- if necessary 15
-- proceed to address other questions in the 16
case consistent with its sovereign immunity 17
ruling. 18
Id. 19
Proceedings on Remand 20
On remand, we directed the parties to provide us with 21
supplemental letter-briefing. The OIN; the Counties; the 22
putative intervenor, Stockbridge; and the State of New York (as 23
amicus curiae) have each made such submissions. 24
DISCUSSION 25
I. Standard of Review 26
"We review a district court's grant of summary judgment 27
de novo, construing the evidence in the light most favorable to 28

-- 29 of 78 --

30
the non-moving party and drawing all reasonable inferences in its 1
favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2
2005). "Summary judgment is appropriate where there exists no 3
genuine issue of material fact and, based on the undisputed 4
facts, the moving party is entitled to judgment as a matter of 5
law." 10 Ellicott Square Court Corp. v. Mtn. Valley Indem. Co., 6
634 F.3d 112, 119 (2d Cir. 2011) (internal quotation marks 7
omitted); see also Fed. R. Civ. P. 56(a). 8
II. The OIN's Claims Based Upon Tribal Sovereign 9
Immunity From Suit and the Nonintercourse Act 10
Our decision in Oneida I affirming the district court's 11
judgments rested solely on our determination that the OIN 12
possessed tribal sovereign immunity from suit. See Oneida I, 605 13
F.3d at 160. Since that decision, the OIN has professed to 14
"waive[], irrevocably and perpetually, its sovereign immunity to 15
enforcement of real property taxation through foreclosure by 16
state, county and local governments within and throughout the 17
United States." Waiver Declaration. 18
In its letter-brief to this Court on remand from the 19
Supreme Court, the OIN represents that its waiver of immunity was 20
"duly enacted" by the OIN's tribal council; that the waiver is 21
"expressly perpetual and irrevocable," meaning that it is "not 22
subject to invalidation" by a future tribal council; and that the 23
waiver "covers all taxes, interest, and penalties held to be 24
lawfully due" to the Counties. OIN's Ltr.-Br. at 4. The OIN has 25

-- 30 of 78 --

31
also indicated that it "'consider[s] itself judicially estopped 1
from raising sovereign immunity as a defense to foreclosure 2
actions to enforce state, county, or local real property taxes.'" 3
Id. (brackets in original) (quoting OIN December 2 Letter at 3). 4
Finally, the OIN has "invite[d] the entry of an order reflecting 5
the irrevocability" of its waiver. OIN December 2 Letter at 3. 6
In response, the Counties argue that tribal sovereign 7
immunity from suit is still a live issue, inasmuch as the parties 8
continue to disagree about whether the OIN ever possessed, in the 9
first instance, any entitlement to immunity that it could 10
subsequently waive. They also contend that the OIN has not 11
sufficiently disclaimed its authority to re-assert its tribal 12
sovereign immunity from suit in the future. They argue, citing 13
United States v. Government of Virgin Islands, 363 F.3d 276 (3d 14
Cir. 2004), that the "OIN has 'not chang[ed] its substantive 15
stance'" on the question of whether it possesses immunity, but 16
instead has only ceded the argument for the "'purely practical 17
reason[]'" of avoiding Supreme Court review. Counties' Ltr.-Br. 18
at 3 (first brackets in original) (quoting Virgin Islands, 363 19
F.3d at 286). The Counties therefore urge us to revisit our 20
immunity analysis from Oneida I and conclude, in light of the 21
Supreme Court's intervening grant of a writ of certiorari, that 22
our prior reasoning must have been incorrect. In the 23
alternative, they ask that we declare that the OIN's waiver has 24

-- 31 of 78 --

32
forever barred it from asserting the defense of tribal sovereign 1
immunity from suit in "in rem foreclosure proceedings and all 2
related tax collection proceedings." Id. at 6 (emphasis in 3
original). 4
There may well be, as the Counties urge, remaining 5
disagreements as to whether the OIN possessed tribal sovereign 6
immunity from suit at the time that these cases were before the 7
district court and then on appeal to us in the first instance. 8
But these questions have now become academic. The OIN, which had 9
prevailed on the issue of tribal sovereign immunity from suit 10
before both the district court and this Court, now assures us, as 11
it did the Supreme Court, that it will no longer invoke the 12
doctrine of tribal sovereign immunity from suit as a basis for 13
preventing the Counties from enforcing property taxes through tax 14
sale or foreclosure. See Waiver Declaration. The OIN has thus 15
effectively announced that it has abandoned its argument that it 16
possesses tribal sovereign immunity from suit and, therefore, has 17
indicated that it is no longer seeking declaratory and injunctive 18
relief against the Counties on that basis. 19
Under the circumstances presented here, we accept the 20
OIN's abandonment of its immunity-based claims. Contrary to the 21
Counties' arguments that the Waiver Declaration may not be 22
sufficiently binding, we understand the waiver to be complete, 23
unequivocal, and irrevocable. Neither do we have any reason to 24

-- 32 of 78 --

33
think that the OIN is using its waiver as a tactic to overturn an 1
existing unfavorable decision. To the contrary, our decision in 2
Oneida I was in its favor. 3
Moreover, the Counties' concern that the OIN might 4
attempt to revoke its Waiver Declaration is unfounded. The OIN 5
is bound by the doctrine of judicial estoppel. See, e.g., New 6
Hampshire v. Maine, 532 U.S. 742, 749 (2001) ("Where a party 7
assumes a certain position in a legal proceeding, and succeeds in 8
maintaining that position, he may not thereafter . . . assume a 9
contrary position, especially if it be to the prejudice of the 10
party who has acquiesced in the position formerly taken by him." 11
(brackets and internal quotation marks omitted)). As the OIN 12
itself has stated: 13
[E]ven if the Nation's "irrevocabl[e] and 14
perpetual[]" waiver were not sufficient to 15
protect the Counties' rights, the doctrine of 16
judicial estoppel would be. . . . [T]he 17
Nation considers itself judicially estopped 18
from raising sovereign immunity as a defense 19
to foreclosure actions to enforce state, 20
county, or local real property taxes; invites 21
the entry of an order reflecting the 22
irrevocability of its declaration and 23
ordinance; and expressly disclaims any 24
intention ever to revoke its waiver. 25
OIN December 2 Letter at 2-3 (citations and footnote omitted). 26
We take the OIN at its word, and we expect that future courts 27
will as well. Accordingly, the OIN's immunity-based claims are 28
no longer before this Court. 29
We similarly regard the OIN's claims based upon the 30

-- 33 of 78 --

34
Nonintercourse Act as having been abandoned on appeal. In its 1
letter-brief, the OIN declares that "[i]n light of [its] 2
representation [that it has waived its tribal sovereign immunity 3
from suit], the Nation no longer invokes the Nonintercourse Act's 4
statutory restrictions on the alienation of Indian land as a 5
defense to tax foreclosures." OIN's Ltr.-Br. at 10. We take the 6
OIN's statement that it "no longer invokes" the Nonintercourse 7
Act as an indication that the OIN has abandoned its claims 8
premised on that statute. As a result, the district court's 9
judgments in the OIN's favor may no longer be sustained on the 10
ground that foreclosure would violate the anti-alienation 11
provisions of the Nonintercourse Act. We therefore need not 12
consider the merits of the Counties' and the State's arguments 13
that the Nonintercourse Act does not bar property-tax enforcement 14
through tax sale or foreclosure. 15
The decision whether to vacate the judgment of the 16
district court in cases where a claim has been abandoned or has 17
become moot on appeal is a discretionary one and "depends on the 18
equities of the case." Russman v. Bd. of Educ., 260 F.3d 114, 19
121 (2d Cir. 2001). But vacatur is common where it is the 20
"unilateral action of the party who prevailed below" that causes 21
a judgment to become unreviewable. U.S. Bancorp Mortg. Co. v. 22
Bonner Mall P'ship, 513 U.S. 18, 25 (1994); accord Brooks v. 23
Travelers Ins. Co., 297 F.3d 167, 172 (2d Cir. 2002); Russman, 24

-- 34 of 78 --

35
260 F.3d at 121-22. It has been said that the winning party in 1
the district court should not be able to prevent appellate review 2
of a perhaps-erroneous decision by attempting to render the 3
district court's judgment unappealable. See Penguin Books USA 4
Inc. v. Walsh, 929 F.2d 69, 73 (2d Cir. 1991). In other words, 5
the party aggrieved by a district-court judgment should not be 6
required to "suffer the adverse res judicata effects" of that 7
judgment if the appeal was terminated through no fault of his or 8
her own. Associated Gen. Contractors of Conn., Inc. v. City of 9
New Haven, 41 F.3d 62, 67 (2d Cir. 1994); see also Van Wie v. 10
Pataki, 267 F.3d 109, 115 (2d Cir. 2001); Mfrs. Hanover Trust Co. 11
v. Yanakas, 11 F.3d 381, 383 (2d Cir. 1993). 12
Here, the OIN has voluntarily abandoned its claims 13
based upon the doctrine of tribal sovereign immunity from suit 14
and the Nonintercourse Act. It would therefore be prejudicial to 15
the Counties to leave the district court's judgments in place 16
insofar as they rested upon these grounds. Accordingly, we 17
conclude that the proper course in this instance is to vacate so 18
much of the district court's judgments as rests upon the doctrine 19
of tribal sovereign immunity from suit and the Nonintercourse 20
Act. See, e.g., Arave v. Hoffman, 552 U.S. 117, 118 (2008) 21
(partially vacating judgment after habeas-corpus petitioner, who 22
prevailed before court of appeals, abandoned his ineffective- 23
assistance claim after Supreme Court granted writ of certiorari); 24

-- 35 of 78 --

36
City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 1
188, 199-200 (2003) (partially vacating judgment after plaintiff, 2
who prevailed before court of appeals, abandoned one of its 3
claims); Arizonans for Official English v. Arizona, 520 U.S. 43, 4
71-72 (1997) (vacating district court judgment in plaintiff's 5
favor where plaintiff had resigned her public-sector employment, 6
out of which her claims arose, while case was pending before 7
court of appeals); see also 13C Charles Alan Wright et al., 8
Federal Practice & Procedure § 3533.10.1, at 578-79 (3d ed. 9
2008). We also conclude that under these circumstances -- 10
because the OIN assures the world at large and us in particular 11
that its Waiver Declaration is irrevocable and subject to the 12
doctrine of judicial estoppel -- those claims must be dismissed 13
with prejudice. See Arave, 552 U.S. at 118-19; Deakins v. 14
Monaghan, 484 U.S. 193, 200-01 (1988). And we also direct the 15
district court, on remand, to include in its amended judgment in 16
each lawsuit that the OIN's waiver of its tribal sovereign 17
immunity from suit is "irrevocable" and subject to the doctrine 18
of judicial estoppel. 19
III. Due Process 20
Having determined that the OIN abandoned two of its 21
claims for relief, we proceed to consider the third rationale 22
supporting the district court's judgments: that the Counties' 23

-- 36 of 78 --

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
notices to the OIN of the expiration of its right of redemption 1
failed to comport with federal due-process requirements. 13
2

-- 37 of 78 --

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
A. Governing Law 1
Our analysis of procedural-due-process claims 2
ordinarily proceeds in two steps. First, we ask "whether there 3
exists a . . . property interest of which a person has been 4
deprived." Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011). If 5
so, we then "ask whether the procedures followed by the State 6
were constitutionally sufficient." Id.; accord, e.g., Adams v. 7
Suozzi, 517 F.3d 124, 127 (2d Cir. 2008). 8
Property interests "are not created by the 9
Constitution," but "are created and their dimensions are defined 10
by existing rules or understandings that stem from an 11
independent source such as state law." Bd. of Regents v. Roth, 12
408 U.S. 564, 577 (1972); accord O'Connor v. Pierson, 426 F.3d 13
187, 196 (2d Cir. 2005). The Counties do not appear to dispute 14
that the OIN possesses a cognizable property interest under New 15
York law in the right to redeem its property from foreclosure. 16
See Orange County Comm'r of Fin. v. Helseth, 875 N.Y.S.2d 754, 17
760 (N.Y. Sup. Ct. 2009) ("Notice of a right to redeem one's 18
property from the municipality into which title vests following 19
a tax lien foreclosure sale enjoys constitutional procedural due 20
process protection."); cf. In re Pontes, 310 F. Supp. 2d 447, 21
454 n.8 (D.R.I. 2004) ("The right of redemption is a property 22

-- 38 of 78 --

39
interest distinct and separate [under Rhode Island law] from an 1
owner's right of ownership in the underlying property itself."). 2
But cf. Weigner v. City of New York, 852 F.2d 646, 652 (2d Cir. 3
1988) (stating that once a government sends personal notice that 4
a "foreclosure action had been initiated," it is "not required 5
to send additional notices as each step in the foreclosure 6
proceeding [is] completed or when each of the available remedies 7
[is] about to lapse"), cert. denied, 488 U.S. 1005 (1989). We 8
assume, for the purpose of resolving these appeals, that the OIN 9
has a constitutionally protected property interest in its right 10
to redemption from foreclosure. 11
The Fourteenth Amendment to the United States 12
Constitution provides that "[n]o state shall . . . deprive any 13
person of . . . property[] without due process of law." U.S. 14
Const. amend. XIV, § 1. "Before a State may take property and 15
sell it for unpaid taxes, the Due Process Clause of the 16
Fourteenth Amendment requires the government to provide the 17
owner 'notice and opportunity for hearing appropriate to the 18
nature of the case.'" Jones v. Flowers, 547 U.S. 220, 223 19
(2006) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 20
U.S. 306, 313 (1950)). 21
The OIN's claims center on the requirement of notice. 22
It is axiomatic that where notice is legally required, the Due 23
Process Clause of the Fourteenth Amendment requires notice that 24

-- 39 of 78 --

40
is "'reasonably calculated, under all the circumstances, to 1
apprise interested parties of the pendency of the action and 2
afford them an opportunity to present their objections.'" 3
Jones, 547 U.S. at 226 (quoting Mullane, 339 U.S. at 314). 4
Notice must be of "such nature as reasonably to convey the 5
required information," Mullane, 339 U.S. at 314, and "[t]he 6
means employed must be such as one desirous of actually 7
informing the [recipient] might reasonably adopt to accomplish 8
it," id. at 315. The notice provided also "must afford a 9
reasonable time for those interested to make their appearance." 10
Id. at 314 (citing Roller v. Holly, 176 U.S. 398 (1900)). In 11
assessing the adequacy of a particular form of notice, we must 12
"balanc[e] the 'interest of the State' against 'the individual 13
interest sought to be protected by the Fourteenth Amendment.'" 14
Jones, 547 U.S. at 229 (quoting Mullane, 339 U.S. at 314). But 15
"[i]n the context of a wide variety of proceedings[,] . . . the 16
Supreme Court has consistently held that mailed notice satisfies 17
the requirements of due process." Grievance Comm. for S. Dist. 18
of N.Y. v. Polur, 67 F.3d 3, 6 (2d Cir. 1995) (ellipsis in 19
original; internal quotation marks omitted), cert. denied, 517 20
U.S. 1196 (1996); see also Mullane, 339 U.S. at 313 ("Personal 21
service of written notice . . . is the classic form of notice 22
[that is] always adequate in any type of proceeding."). 23

-- 40 of 78 --

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
We have observed that the Fourteenth Amendment 1
"requires as much notice as is practicable to inform a [property 2
owner] of legal proceedings against his property," Brody v. 3
Vill. of Port Chester, 434 F.3d 121, 130 (2d Cir. 2005) (citing 4
Mullane, 339 U.S. at 315), and that "a property owner must be 5
given notice of foreclosure proceedings before foreclosure can 6
occur," Akey v. Clinton County, 375 F.3d 231, 235 (2d Cir. 7
2004); accord Jones, 547 U.S. at 234. But due process requires 8
only that a state take steps reasonably calculated to provide 9
actual notice, 14 not that the notice actually reach the 10
recipient. "Due process does not require that a property owner 11
receive actual notice before the government may take his 12
property." Jones, 547 U.S. at 226; accord Miner v. Clinton 13
County, 541 F.3d 464, 471 (2d Cir. 2008), cert. denied, 129 S. 14
Ct. 1625 (2009). 15
However, although due process does not require actual 16
notice, actual notice satisfies due process -- so long as that 17

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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
notice "apprises [a party] of the pendency of the action and 1
affords [it] an opportunity to respond." Baker, 72 F.3d at 254. 2
Indeed, state and federal courts have frequently decided, in 3
cases where a plaintiff received actual notice, that the Due 4
Process Clause was not offended even though the defendant had 5
failed to fulfill all technical notice requirements imposed by 6
statute or rule. See, e.g., United Student Aid Funds, Inc. v. 7
Espinosa, 130 S. Ct. 1367, 1378 (2010); In re Medaglia, 52 F.3d 8
451, 455 (2d Cir. 1995); United States v. One 1987 Jeep 9
Wrangler, 972 F.2d 472, 482 (2d Cir. 1992); Sendel v. Diskin, 10
277 A.D.2d 757, 759, 716 N.Y.S.2d 471, 473 (3d Dep't 2000); 11
Pompe v. City of Yonkers, 179 A.D.2d 628, 629-30, 578 N.Y.S.2d 12
585, 587 (2d Dep't 1992). 13
B. The Counties' Procedures 14
The Counties employ different statutory procedures for 15
property-tax enforcement. 16
1. Madison County. Madison County employs the 17
default tax-enforcement procedure established by Article 11 of 18
the New York Real Property Tax Law (the "RPTL"). The RPTL 19
provides for a two-year, pre-foreclosure redemption period. 15
20
The redemption period starts to run on the "lien date," which 21

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43
is the date on which unpaid taxes and other assessments 1
automatically become a lien against the property. Id. §§ 902, 2
1102(4). If taxes are not paid within the first month after 3
the lien date, interest and penalties begin to accrue. Id. 4
§§ 924, 924-a, 936(2). Ten months after the lien date, a list 5
of delinquent taxes is prepared and filed with the county 6
clerk. Id. § 1122. Twenty-one months after the lien date 7
(i.e., three months before the end of the redemption period), 8
the enforcing authority executes a petition of foreclosure. 9
Id. § 1123(1)-(2). The filing of this petition is accompanied 10
by published notice, id. § 1124(1), as well as personal notice 11
by certified and regular first-class mail to the property 12
owner, id. § 1125(1). These notices must include the last date 13
on which the properties may be redeemed. Id. § 1125(2). 14
Although personalized tax statements are mailed annually to all 15
property owners, see id. § 922, the only personal notice sent 16
to owners which specifically identifies the expiration of the 17
redemption period is the notice sent twenty-one months after 18
the lien date pursuant to RPTL § 1125. See generally Kennedy 19
v. Mossafa, 100 N.Y.2d 1, 6-8, 789 N.E.2d 607, 759 N.Y.S.2d 429 20
(2003) (describing the RPTL tax-foreclosure procedures). 21
In early December 2004, Madison County executed a 22
petition of foreclosure in state court with respect to some 23
ninety-eight parcels of OIN-owned property to enforce overdue 24

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44
taxes owed since the lien date of January 1, 2003. The County 1
mailed personal notice to the OIN on December 8, 2004, and the 2
OIN has not disputed receipt. According to that notice, the 3
specified last day for redemption of the ninety-eight parcels 4
was March 31, 2005. After the Supreme Court issued its decision 5
in Sherrill III on March 29, 2005, Madison County unilaterally 6
extended the OIN's redemption deadline to June 3, 2005, and 7
later to July 14, 2005, providing notice of the extensions to 8
the OIN in each instance. The OIN successfully obtained a 9
preliminary injunction from the district court on July 1, 2005, 10
preventing Madison County from undertaking further tax- 11
enforcement efforts. 12
2. Oneida County. Unlike Madison County, Oneida 13
County has opted out of the RPTL procedures. See, e.g., RPTL 14
§ 1104(2) (creating opt-out mechanism). Instead, it employs its 15
own two-step process: first, a tax sale of the property, and 16
second, administrative transfer of title or judicial 17
foreclosure, at the tax-sale purchaser's option. See 1902 Laws 18
of N.Y. ch. 559, §§ 1 to 16, amended by 1918 Laws of N.Y. ch. 19
474, 1920 Laws of N.Y. ch. 111, 1922 Laws of N.Y. ch. 200, 1937 20
Laws of N.Y. ch. 800, 1943 Laws of N.Y. ch. 712, and 1944 Laws 21
of N.Y. ch. 342 (collectively, "Oneida County Tax Law"); see 22
also Aff. of Daniel Yerdon, Deputy Comm'r of Fin., Oneida 23
County, Oneida County II, No. 6:05-CV-945 (N.D.N.Y. Jan. 6, 24

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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
2006), ECF Doc. 23, attach. 40 ("Yerdon Aff."). Taxes come due 1
each year on January 1, but may be paid without penalty or 2
interest through January 31. See Yerdon Aff. ¶ 4. In February 3
of each year, a tax-delinquency notice is sent to the record 4
owner of each delinquent parcel. 16 Id. ¶ 5. On the last 5
business day of December, a tax auction is held at which the 6
County sells all properties for which taxes have been delinquent 7
for six months or more. See Oneida County Tax Law §§ 5-6; 8
Yerdon Aff. ¶ 8. Since 1973, however, the County has had the 9
authority to purchase delinquent properties without first 10
offering them to public bidders. With respect to each of the 11
187 OIN-owned parcels at issue in this litigation, Oneida County 12
exercised its option to purchase the properties without a public 13
sale. 14
Following the tax sale, a post-sale redemption period 15
begins. 17 See Oneida County Tax Law § 8; Yerdon Aff. ¶¶ 11, 15- 16
17. The redemption period, as it has come to be applied, lasts 17

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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 See Yerdon Aff. ¶¶ 15-18. 1
The Oneida County Tax Law dictates that notice of the expiration 2
of the redemption period is to be published "within the three 3
months immediately preceding the expiration." Oneida County Tax 4
Law § 9; see also Yerdon Aff. ¶¶ 12-14. However, as a matter of 5
standard administrative practice, 19 Oneida County also sends by 6
certified mail a "Final Notice Before Redemption" to the record 7
owner thirty days prior to expiration. See Yerdon Aff. ¶ 18. 8
The Final Notice Before Redemption advises the owner that the 9
property was sold at tax sale and provides the final date on 10
which the property can be redeemed. See id. According to the 11
County, the foregoing process was followed with respect to all 12
187 parcels of OIN-owned property at issue. 20 See id. ¶¶ 19-21. 13

-- 46 of 78 --

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
C. Analysis 1
The district court concluded that each County's 2
redemption notices failed to comport with due process. We 3
conclude to the contrary that both Counties are entitled to 4
summary judgment on the OIN's due-process claims. 5
In explaining our conclusion, it may be useful to 6
begin by noting what is not at issue. First, the OIN does not 7
contest that each County sent to it personal notice by mail of 8
the expiration of the respective redemption periods. Second, 9
the OIN does not deny that it actually received these notices, a 10
fact that distinguishes this litigation from the much more 11
common due-process challenge in which a plaintiff contests the 12
sufficiency of a notice that failed to reach its intended 13
recipient. See, e.g., Jones, 547 U.S. at 225; Miner, 541 F.3d 14
at 471-73; Akey, 375 F.3d at 235-37. Third, the OIN does not 15
dispute the Counties' assertions that they complied with their 16
respective statutory and administrative requirements for 17
notifying owners of the final date for redemption, including 18
sending personal notice at least three months in advance of 19

-- 47 of 78 --

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
expiration (as to Madison County) and at least thirty days in 1
advance of expiration (as to Oneida County). 21 The OIN's 2
argument, therefore, is not that it failed to receive actual 3
notice of the expiration of the redemption periods at the time 4
mandated by each County's tax enforcement procedures, but that 5
the notices provided pursuant to these procedures were not given 6
sufficiently in advance of the respective expiration dates to 7
satisfy federal due-process standards. 8
As the basis for the proposition that the Counties' 9
notices were constitutionally insufficient, the OIN and the 10
district court each have relied principally on McCann. There, 11
the New York Court of Appeals struck down the tax-enforcement 12
procedures of Nassau County, New York, as inconsistent with the 13
Due Process Clause of the Fourteenth Amendment. See McCann, 71 14
N.Y.2d at 177-78. The Nassau County statute provided for a two- 15
step scheme somewhat similar to Oneida County's: first, the sale 16
of a tax lien upon the property, followed by a two-year post- 17
sale redemption period; and second, the transfer of title to the 18
purchaser of the tax lien following the expiration of that 19
redemption period. See Oneida County I, 432 F. Supp. 2d at 290 20
(observing that Oneida County's procedures are "strikingly 21

-- 48 of 78 --

49
similar" to those at issue in McCann). Crucially, however, 1
Nassau County did not provide any personal notice to the owner 2
prior to the tax lien sale. It required only that notice of the 3
tax lien sale be "published three times in a newspaper of 4
general circulation." McCann, 71 N.Y.2d at 170. The Court of 5
Appeals, relying on Mennonite Board of Missions v. Adams, 462 6
U.S. 791 (1983), concluded that Nassau County's "failure to 7
provide [property owners] with actual notice of the tax lien 8
sales . . . deprived them of due process of law," id. at 172, 9
because the tax-lien sale itself constituted an event that 10
"substantially affected" the owner's property interest, id. at 11
176; see also, e.g., id. (describing the tax-lien sale as "the 12
event that moves the Sword of Damocles directly over the head of 13
a property owner"). The Court of Appeals thereby overruled one 14
of its previous decisions, Botens v. Aronauer, 32 N.Y.2d 243, 15
298 N.E.2d 73, 344 N.Y.S.2d 892 (1973), appeal dismissed, 414 16
U.S. 1059 (1973), which had held that due-process standards did 17
not require that personal notice of tax-sale proceedings be sent 18
to a property owner, so long as constructive notice by 19
publication was given. See McCann, 71 N.Y.2d at 176. 20
In the course of its decision in McCann, the Court of 21
Appeals also considered Nassau County's argument that its 22
statute was constitutional because, even though the statute did 23
not require personal notice of the tax-lien sale, it did at 24

-- 49 of 78 --

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
least provide for personal notice of the expiration of the two- 1
year post-sale redemption period. See id. at 177. Rejecting 2
that argument, the Court of Appeals observed that the statute 3
required such notice only at the point at which three months in 4
the redemption period remained, id. at 177-78, which the court 5
concluded was too late in the overall tax-enforcement process to 6
provide the owner with timely notice of the proceedings. In 7
that connection, the Court of Appeals also took note of an 8
apparent tension between the fact that the statute created a 9
two-year statutory redemption period, but only provided three 10
months' advance notice of its expiration. Id. It reasoned that 11
the statute's failure to provide for notice of the tax lien sale 12
at the first stage of the process also effectively frustrated 13
the "legislative intention" that owners be afforded two years in 14
which to redeem their properties. 22 Id. 15
The OIN, latching onto these final steps of the Court 16
of Appeals' analysis, broadly construes McCann as dictating that 17
the Due Process Clause requires that written notice of the date 18
of expiration of a statutory redemption period always be given 19
at the beginning of that period. It argues that McCann "held 20
that it offends due process principles for taxing jurisdictions 21

-- 50 of 78 --

51
to truncate statutory redemption periods by serving notice of 1
redemption rights and deadlines that are much shorter than the 2
redemption period." OIN Br. at 27; see also id. at 95 3
("McCann's holding as to taxation is that, when the Legislature 4
establishes a redemption period of specified duration, due 5
process requires that notice of redemption rights be sent to 6
taxpayers at the outset of that period."). The district court, 7
accepting the OIN's reading of McCann, concluded that, in each 8
of the OIN's lawsuits against the City of Sherrill, Madison 9
County, and Oneida County, the defendants' failures to send 10
notice to the OIN of the date of expiration of the redemption 11
period "at the beginning of the redemption period[] violate[d] 12
the [OIN's] right to due process." Oneida County I, 432 F. 13
Supp. 2d at 290; accord Madison County I, 401 F. Supp. 2d at 230 14
(concluding that because the RPTL provides a two-year redemption 15
period, "in order to comport with due process [Madison] County 16
must have given the Nation notice two years prior to expiration 17
of the redemption period"); Sherrill I, 145 F. Supp. 2d at 257- 18
58 (concluding that the City of Sherrill's foreclosure 19
procedures violated due process for the same reason). 20
We are not persuaded that McCann should be read as the 21
OIN suggests. The decision primarily concerned the 22
constitutionality of a statute that provided a two-step tax- 23
enforcement process, but did not require that any personal 24

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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 one-
year 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
notice be given to property owners of the first step in that 1
process, the tax lien sale. See McCann, 71 N.Y.2d at 176-77. 2
To the extent that the Court of Appeals also considered the 3
question of personal notice during the post-sale redemption 4
period, it concluded only that such notice, if given late in the 5
redemption period, does not make up for the fact that no 6
personal notice had been given of the tax-lien sale in the first 7
place. Id. at 177-78. We therefore conclude that the OIN 8
misreads McCann in interpreting that decision to impose a rigid 9
requirement that the commencement of the redemption period, and 10
personal notice of the date of expiration of that period, be 11
perfectly contemporaneous, no matter the surrounding 12
circumstances. 13
However, even if McCann could be read as articulating 14
a requirement that personal notice of the date of expiration of 15
a redemption period be given at the commencement of that period 23
16

-- 52 of 78 --

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
-- or as suggesting that three months' advance notice of the 1
expiration of a period is constitutionally insufficient -- 2
neither we nor the district court are bound by any such holding. 3
McCann rested solely on an interpretation of the Due Process 4
Clause of the Fourteenth Amendment. See id. at 169-70; id. at 5
179 (Simons, J., dissenting). Federal courts are not bound to 6
follow a state court's interpretation of the federal 7
Constitution. See Carvajal v. Artus, 633 F.3d 95, 109 (2d Cir. 8
2011); CFCU Cmty. Credit Union v. Hayward, 552 F.3d 253, 266 (2d 9
Cir. 2009). 10

-- 53 of 78 --

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 two-
year 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
Moreover, we do not regard as persuasive an 1
interpretation of the Due Process Clause that would impose a 2
rigid requirement as to the precise timing with which notice 3
must be given. 24 "The due process right to fair notice is 4
a . . . general rule of law that demands a substantial element 5
of judgment and [that] can hardly be implemented mechanically." 6
Ortiz v. N.Y.S. Parole in Bronx, N.Y., 586 F.3d 149, 157 (2d 7
Cir. 2009) (citation and internal quotation marks omitted); see 8
also Gilbert v. Homar, 520 U.S. 924, 930 (1997); Baker, 72 F.3d 9
at 254; In re Drexel Burnham Lambert Grp. Inc., 995 F.2d 1138, 10
1144 (2d Cir. 1993) (observing that due-process notice 11
requirement should not be interpreted "so inflexibly as to make 12

-- 54 of 78 --

55
it an 'impractical or impossible obstacle[].'" (quoting Mullane, 1
339 U.S. at 314)(alteration in In re Drexel)). 2
Having considered and rejected the OIN's reading of 3
McCann, we conclude that the OIN has failed to demonstrate that 4
the notice it received from the Counties was constitutionally 5
insufficient. The OIN does not deny that it received actual 6
notice of the date of expiration of the redemption periods and 7
that, in each case, it received such notice well in advance of 8
the deadline -- indeed, further in advance than the Counties' 9
standard practices require. Cf. Goodrich v. Ferris, 214 U.S. 10
71, 81 (1909) ("[O]nly in a clear case will a notice authorized 11
by the legislature be set aside as wholly ineffectual on account 12
of the shortness of the time." (internal quotation marks 13
omitted)). 14
And, critically, the OIN has not proffered any 15
evidence that it suffered injury from the Counties' alleged 16
failure to provide personal notice of the expiration of the 17
redemption period any earlier. As the State of New York argues 18
in its amicus brief, "[t]he OIN has not suggested that its 19
vigorous defense of the foreclosure proceedings was 20
disadvantaged in any particular way by the length of the notice 21
it received." New York State Amicus Br. at 21 n.8. 22
To the contrary, the record reflects that the OIN had 23
sufficient notice of the Counties' tax-enforcement proceedings 24

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56
to apprise it of its right of redemption and to enable it to 1
take appropriate steps to protect its property interests before 2
the redemption period expired. The OIN proved able, among other 3
things, to file a detailed answer in March 2005 to Madison 4
County's state-court petition for foreclosure; to initiate 5
litigation and seek relief in federal court against each County 6
prior to the expiration of the respective redemption deadlines; 7
to redeem properties in a timely fashion when it saw fit to do 8
so; and to negotiate with the Counties to extend redemption 9
deadlines on mutually agreeable terms. And the OIN does not 10
deny that it long has had actual knowledge of the Counties' 11
respective tax-enforcement efforts. 12
The OIN argues that it is immaterial that it had 13
actual knowledge of the Counties' tax-enforcement activities, 14
because it asserts that the redemption periods could not even 15
begin to run until the OIN was first served with personal notice 16
of the date of expiration of the redemption period. We 17
disagree. "Process is not an end in itself," Holcomb v. Lykens, 18
337 F.3d 217, 224 (2d Cir. 2003) (internal quotation marks 19
omitted), and "due process is not offended by requiring a person 20
with actual, timely knowledge of an event that may affect [the 21
person's] right to exercise due diligence and take necessary 22
steps to preserve that right," Medaglia, 52 F.3d at 455. The 23
OIN may not rely upon the dictates of procedural due process as 24

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57
a means of forestalling the Counties' foreclosure efforts 1
because, here, the requirements of the Due Process Clause -- 2
notice and an opportunity to respond -- were plainly fulfilled. 3
The OIN has thus failed to establish any genuine 4
dispute as to the fact that it received notice sufficient to 5
"'apprise [it] of the pendency of the action and afford [it] an 6
opportunity to present [its] objections.'" Jones, 547 U.S. at 7
226 (quoting Mullane, 339 U.S. at 314); see also NYCTL 1998-2 8
Trust v. Avila, 29 A.D.3d 965, 966, 815 N.Y.S.2d 725, 727 (2d 9
Dep't 2006) (affirming foreclosure where respondent "failed to 10
demonstrate any prejudice to a substantial right as a result of 11
the alleged deficiency in notice"). The Counties are entitled 12
to summary judgment in their favor on the OIN's due-process 13
claims. 14
We have considered the parties' remaining arguments 15
with respect to the OIN's due-process claims, and we conclude 16
that they are either without merit or no longer require 17
consideration in light of our resolution of these appeals. 18
IV. State Tax Law 19
The final ground for the district court's judgments 20
was its determination that the OIN's properties are exempt from 21
taxation as a matter of New York state law. See Oneida County 22
I, 432 F. Supp. 2d at 290; Madison County I, 401 F. Supp. 2d at 23
231. In reaching that conclusion, the court relied upon New 24

-- 57 of 78 --

58
York RPTL § 454, which provides in pertinent part that "[t]he 1
real property in any Indian reservation owned by the Indian 2
nation, tribe or band occupying them shall be exempt from 3
taxation," (emphasis added), and upon New York Indian Law 4
("NYIL") § 6, which provides that "[n]o taxes shall be assessed, 5
for any purpose whatever, upon any Indian reservation in this 6
state, so long as the land of such reservation shall remain the 7
property of the nation, tribe or band occupying the same" 8
(emphasis added). 9
These state-law claims fell, at the time, within the 10
district court's supplemental jurisdiction. See 28 U.S.C. 11
§ 1367(a). Although federal courts may exercise jurisdiction 12
over related state-law claims where an independent basis of 13
subject-matter jurisdiction exists, see, e.g., Monterfiore Med. 14
Ctr. v. Teamsters Local 272, 642 F.3d 321, 332 (2d Cir. 2011), 15
such a court may, for various reasons, nonetheless "decline to 16
exercise supplemental jurisdiction over a claim," 28 U.S.C. 17
§ 1367(c). These reasons include that "the claim raises a novel 18
or complex issue of State law," id. § 1367(c)(1); that "the 19
claim substantially predominates over the claim or claims over 20
which the district court has original jurisdiction," 21
id. § 1367(c)(2); that "the district court has dismissed all 22
claims over which it has original jurisdiction," 23
id. § 1367(c)(3); or that "exceptional circumstances" exist such 24

-- 58 of 78 --

59
that "there are other compelling reasons for declining 1
jurisdiction," id. § 1367(c)(4). "'[T]he issue whether 2
[supplemental] jurisdiction has been properly assumed is one 3
which remains open throughout the litigation.'" Rounseville v. 4
Zahl, 13 F.3d 625, 631 (2d Cir. 1994) (quoting United Mine 5
Workers of Am. v. Gibbs, 383 U.S. 715, 727 (1966)); accord Itar- 6
Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 7
445 (2d Cir. 1998) (noting that the supplemental-jurisdiction 8
inquiry should be undertaken "at every stage of the litigation" 9
(internal quotation marks omitted)). 10
Although the decision whether to decline to exercise 11
supplemental jurisdiction is "purely discretionary," Carlsbad 12
Tech., Inc. v. HIF Bio, Inc., 129 S. Ct. 1862, 1866 (2009), that 13
discretion is, of course, subject to boundaries. For example, 14
we have repeatedly said that "if a plaintiff's federal claims 15
are dismissed before trial, 'the state law claims should be 16
dismissed as well.'" Brzak v. United Nations, 597 F.3d 107, 17
113-14 (2d Cir. 2010) (quoting Cave v. E. Meadow Union Free Sch. 18
Dist., 514 F.3d 240, 250 (2d Cir. 2008)), cert. denied, 131 S. 19
Ct. 151 (2010). 20
In Carnegie-Mellon University v. Cohill, 484 U.S. 343 21
(1988), the Supreme Court enumerated several factors that courts 22
should weigh in considering whether to exercise supplemental 23
jurisdiction -- "the values of judicial economy, convenience, 24

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60
fairness, and comity," id. at 350 -- and suggested that "in the 1
usual case in which all federal-law claims are eliminated before 2
trial, the balance of [those] factors . . . will point toward 3
declining to exercise jurisdiction over the remaining state-law 4
claims." Id. at 350 n.7; accord Klein & Co. Futures, Inc. v. 5
Bd. of Trade, 464 F.3d 255, 262-63 (2d Cir. 2006), cert. 6
granted, 550 U.S. 956, cert. dismissed, 552 U.S. 1085 (2007); 7
Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 8
2006); Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305-06 (2d 9
Cir. 2003) (collecting cases). This Court has concluded that 10
declining to exercise jurisdiction after all original- 11
jurisdiction claims have been dismissed is especially 12
appropriate where the pendent claims present novel or unsettled 13
questions of state law. See, e.g., Cave, 514 F.3d at 250; Klein 14
& Co., 464 F.3d at 263 n.5; Kolari, 455 F.3d at 124 (favoring 15
principle that "state-law claims raising unsettled questions of 16
law" should be dismissed without prejudice under 28 U.S.C. 17
§ 1367(c)(3), and collecting cases); Valencia, 316 F.3d at 306- 18
08. 19
Because we have now ordered that the OIN's due process 20
claims be dismissed, there remain no further federal claims 21
supporting the district court's award of injunctive relief. The 22
OIN argues, however, that we should exercise our discretion in 23
favor of retaining supplemental jurisdiction over the OIN's 24

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61
state-law claims even if all of its federal claims are 1
dismissed. In its letter-brief on remand, the OIN urges us to 2
affirm the district court's judgments on the basis that the 3
properties in question constitute lands within "any Indian 4
reservation" for the purposes of RPTL § 454 and NYIL § 6. They 5
rely upon the recent case of Cayuga Indian Nation of New York v. 6
Gould, 14 N.Y.3d 614, 930 N.E.2d 233, 904 N.Y.S.2d 312 (2010), 7
in which the New York Court of Appeals concluded that fee-title 8
lands purchased by the Cayuga Indian Nation fell within the 9
definition of "qualified reservation" for the purposes of two 10
New York cigarette-sales-tax statutes, N.Y. Tax Law §§ 470(16) 11
and 471-e. See Gould, 14 N.Y.3d at 635-46. The New York Court 12
of Appeals decided that "when the Legislature used the term 13
'reservation' in Tax Law § 470(16)(a), it intended to refer to 14
any reservation recognized by the United States government." 15
Id. at 637; see also id. at 638 ("[T]he 'qualified reservation' 16
question distills to whether the convenience store parcels are 17
viewed as reservation property under federal law."). The Court 18
then determined that "the United States government continues to 19
recognize the existence of a Cayuga reservation in New York," 20
id. at 640, and observed that the Supreme Court's decision in 21
Sherrill III "d[id] not establish that the convenience stores 22
are not located on a reservation," id. at 643. The OIN now 23
argues that by virtue of the Court of Appeals' decision in 24

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62
Gould, the OIN's properties would also necessarily constitute 1
lands on "any Indian reservation" for the purposes of RPTL § 454 2
or NYIL § 6. 3
We do not think that Gould settled the open questions 4
presented by the OIN's remaining state-law claims. Indeed, in 5
Gould itself, the majority expressly reserved the question 6
whether fee-title lands purchased by Indian tribes on the open 7
market would count as "reservation" land for the purposes of 8
RPTL § 454 and NYIL § 6. See id. at 646 (explaining that "terms 9
found in Tax Law § 470(16)(a) will not necessarily be accorded 10
the same meaning when they appear in other statutory contexts," 11
expressly including NYIL § 6 and RPTL § 454). The Court of 12
Appeals set forth various reasons why the meaning of the term 13
"reservation" could be different under other state statutes. 14
See id. (noting, inter alia, that Tax Law § 470(16)(a) was 15
explicitly patterned after a federal statute; that the state 16
statute was enacted after the Supreme Court's decision in 17
Sherrill III; and that its statutory structure reflected a 18
distinction between an Indian nation's exercise of "governmental 19
power" and the "reservation status" of its land). We therefore 20
cannot say with any certainty or authority how the Court of 21
Appeals would interpret NYIL § 6 or RPTL § 454. 22
We think that at this stage of the litigation, several 23
grounds enumerated by section 1367(c) for declining to exercise 24

-- 62 of 78 --

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
supplemental jurisdiction are implicated. First, the OIN's 1
declaratory claims under NYIL § 6 and RPTL § 454 raise "novel 2
[and] complex issue[s] of State law." 25 28 U.S.C. § 1367(c)(1). 3
As the Supreme Court has warned, "[a] federal tribunal risks 4
friction-generating error when it endeavors to construe a novel 5
state Act not yet reviewed by the State's highest court." 6
Arizonans for Official English, 520 U.S. at 79; see also Rivkin 7
v. Century 21 Teran Realty LLC, 494 F.3d 99, 103-04 (2d Cir. 8
2007). 9
Second, almost all of the OIN's federal claims -- with 10
just one narrow exception 26 -- have now been dismissed. Cf. 28 11

-- 63 of 78 --

may be exercised under section 1367(c).
64
U.S.C. § 1367(c)(3). Even if the existence of one narrow 1
surviving federal claim means that not "all claims over which 2
[the district court] has original jurisdiction" have been 3
dismissed, id. (emphasis added), it has nonetheless become clear 4
that the state-law claims now "substantially predominate[]" in 5
this litigation, id. § 1367(c)(2). "Once it appears that a 6
state claim constitutes the real body of a case, to which the 7
federal claim is only an appendage, the state claim may fairly 8
be dismissed." Gibbs, 383 U.S. at 727; see also, e.g., Dargis 9
v. Sheahan, 526 F.3d 981, 991 (7th Cir. 2008) (survival of one 10
federal due-process claim does not require court to retain 11
jurisdiction over seven state-law claims); Garro v. Connecticut, 12
23 F.3d 734, 737 (2d Cir. 1994) (survival of an "insubstantial 13
federal claim" does not require that jurisdiction be retained 14
over state-law claim). 15
To be sure, the fact that one or more of the grounds 16
for declining to exercise supplemental jurisdiction set forth in 17
section 1367(c) applies does not mean that dismissal is 18
mandated. See 28 U.S.C. § 1367(c) (providing that "[t]he 19
district courts may decline to exercise supplemental 20
jurisdiction" (emphasis added)). For this reason, we have said 21
that "where at least one of the subsection 1367(c) factors is 22
applicable," the court should not decline jurisdiction "unless 23

-- 64 of 78 --

65
it also determines that [exercising supplemental jurisdiction] 1
would not promote the values . . . [of] economy, convenience, 2
fairness, and comity." Jones v. Ford Motor Credit Co., 358 F.3d 3
205, 214 (2d Cir. 2004) (citation omitted); see also Itar-Tass 4
Russian News Agency, 140 F.3d at 446. 5
Here, though, we conclude -- in light of the 6
"circumstances of the particular case, the nature of the state 7
law claims, the character of the governing state law, and the 8
relationship between the state and federal claims," City of 9
Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997) 10
(citing Cohill, 484 U.S. at 350) -- that the proper course is to 11
decline to exercise jurisdiction over the OIN's supplemental 12
state-law claims. Certification to the New York Court of 13
Appeals might provide an alternate method for resolving these 14
claims. See 2d Cir. Local R. 27.2; N.Y. Comp. Codes & Regs. 15
tit. 22, § 500.27(a) (2008). However, under these 16
circumstances, we think that it makes more sense for a New York 17
state court to decide the OIN's state-law claims itself based on 18
its understanding of its own law and its own findings of fact, 19
than for us to assist a federal district court to do so 20
indirectly by certification in a case that no longer presents 21
any federal claims. It is also significant that there are 22
already pending state-court proceedings in which the OIN appears 23
to have raised the issue of its claimed state tax-law 24

-- 65 of 78 --

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 We therefore vacate the district court's grant of 1
summary judgment with respect to the OIN's state-law claims, and 2
remand with instructions to dismiss these claims without 3
prejudice to re-filing in state court. 4
We have considered the parties' other arguments as to 5
the legal status of the OIN's reservation under federal or state 6
law, and we conclude that they are either without merit or they 7
are no longer necessary to decide in light of our resolution of 8
these appeals. And because no claims remain in support of the 9
district court's injunctions restraining the Counties from 10
foreclosing on OIN-owned property, nor has the OIN shown that 11
injunctive relief is warranted in any other respect, we vacate 12
those injunctions in their entirety. 13
V. Ancillary Matters 14
A. Penalties and Interest 15
In each of the parallel lawsuits, the district court 16
ruled that by virtue of the OIN's tribal sovereign immunity from 17
suit, the OIN was not liable to pay any penalties or interest on 18

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67
back taxes, and it entered injunctive relief accordingly. See 1
Oneida County II, slip op. at 2; Madison County I, 401 F. Supp. 2
2d at 230. But, in light of the OIN's intervening waiver of 3
immunity, we can no longer sustain the district court's 4
injunction restraining the Counties from collecting penalties 5
and interest on the basis of the OIN's tribal sovereign immunity 6
from suit. 7
The OIN maintains, however, that there is an 8
independent basis for restraining the Counties from assessing 9
and collecting penalties and interest on back taxes, at least 10
for the period of time prior to the Supreme Court's decision in 11
Sherrill III issued on March 29, 2005. It contends that it 12
would be inequitable to subject it to liability for penalties 13
and interest for a period of time during which the decisional 14
law -- as reflected, inter alia, by this Court's decision in 15
Sherrill II -- held that the OIN was not liable to pay property 16
taxes at all. 17
The procedural history with respect to the issue of 18
penalties and interest is somewhat convoluted. In seeking 19
summary judgment in the Madison County litigation, the OIN 20
argued that the Counties should be prevented from collecting 21
penalties and interest on two grounds: (1) reasons of equity (as 22
to the pre-Sherrill III period only), and (2) tribal sovereign 23
immunity from suit (as to all periods). In its opposing 24

-- 67 of 78 --

68
filings, Madison County did not appear to respond to either 1
argument. The district court, ruling in the OIN's favor, 2
concluded that Madison County had acquiesced to the OIN's 3
argument that it was not liable to pay penalties or interest at 4
all. See Madison County I, 401 F. Supp. 2d at 230. 5
In the Oneida County suit, by contrast, the issue of 6
penalties and interest was contested. In seeking summary 7
judgment, the OIN argued -- just as it had in Madison County -- 8
that penalties and interest were barred both by principles of 9
equity (as to the pre-Sherrill III period only) and by the OIN's 10
tribal sovereign immunity from suit (as to all periods). Oneida 11
County responded by arguing that the OIN did not possess tribal 12
immunity from liability for penalties and interest, but it did 13
not squarely address the OIN's separate, equity-based argument. 14
The district court initially ruled in the OIN's favor on the 15
equity theory only, deciding that "[i]t would be inequitable to 16
permit Oneida County to assess interest and penalties for non- 17
payment of taxes during a time when it was the law that the 18
lands were not taxable." Oneida County I, 432 F. Supp. 2d at 19
291; see also Madison County II, 235 F.R.D. at 560 n.1 (noting 20
contrast between district court's rulings on penalties and 21
interest in the Oneida County and Madison County lawsuits). 22
The OIN then filed a post-judgment motion in the 23
Oneida County litigation pursuant to Fed. R. Civ. P. 59 24

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69
requesting that the district court amend its judgment so as to 1
note that penalties and interest were barred not merely for the 2
pre-Sherrill III period, but for all periods, by virtue of the 3
OIN's tribal sovereign immunity from suit. The district court 4
granted that motion and issued an amended judgment restraining 5
Oneida County from assessing or collecting penalties and 6
interest on unpaid taxes generally. See Oneida County II, slip 7
op. at 2. Ultimately, then, the district court's decisions in 8
both Madison County and Oneida County on the matter of penalties 9
and interest rested on the same ground: tribal sovereign 10
immunity from suit. 11
The OIN's positions on appeal with respect to this 12
issue are difficult to reconcile. First, the OIN argued that 13
because the Counties did not adequately brief the question of 14
penalties and interest in their opening brief, the Counties 15
should be held to have forfeited their defense on that issue. 16
See OIN Br. at 58-59. Later, however, the OIN represented to 17
the Supreme Court that "the parties continue to dispute . . . 18
whether penalties and interest may be imposed for periods in 19
which the lands were held to be tax-exempt," and that the issue 20
"remain[s] to be litigated." OIN December 2 Letter at 2. Now, 21
on remand, the OIN has reverted to its previous position, 22
asserting that because the Counties did not challenge on appeal 23
any of the district court's rulings with respect to penalties 24

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70
and interest, they forfeited their right to contest the OIN's 1
entitlement to relief from penalties and interest, including 2
relief on equitable grounds as to the pre-Sherrill III period 3
alone. 4
Despite this apparent inconsistency, we agree with the 5
OIN that the Counties have forfeited their arguments in 6
opposition to the OIN's argument that it is not liable for 7
interest or penalties on taxes or related assessments that 8
accrued prior to March 29, 2005. In the summary-judgment 9
proceedings before the district court, neither County actively 10
opposed the OIN's argument that it was entitled on grounds of 11
equity to a declaration that it did not owe interest or 12
penalties for the pre-Sherrill III period. To the contrary, 13
Oneida County's summary-judgment briefing appeared implicitly to 14
concede the point, even as it disputed the OIN's arguments with 15
respect to the post-March 29, 2005 period. The OIN also 16
correctly observes that in the Counties' opening brief on 17
appeal, they barely mentioned the issue of penalties and 18
interest, only arguing in a footnote that the Supreme Court's 19
decision in Sherrill III "is fairly read to authorize local 20
taxing authorities to collect penalties and interest from OIN." 21
Counties' Br. at 52 n.16. Even after the OIN argued in its 22
responsive brief that "[e]quity also bars imposition of 23
penalties and interest for nonpayment of taxes prior to the 24

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71
Supreme Court's City of Sherrill decision," OIN Br. at 25; see 1
also id. at 62-66, the Counties did not directly respond to that 2
argument, but instead asserted only that the amount of interest 3
and penalties imposed was reasonable, see Counties' Reply Br. at 4
26. 5
Of course, the district court's rulings that the OIN 6
was not liable to pay penalties or interest ultimately rested on 7
the basis of tribal sovereign immunity from suit, not upon 8
principles of equity. Based upon the district court's initial 9
ruling in Oneida County I, however, we understand the district 10
court also to have credited the OIN's argument that it was 11
entitled to be free from paying penalties or interest as to the 12
pre-March 29, 2005 period on equitable grounds. See Oneida 13
County I, 432 F. Supp. 2d at 292 ("Equity precludes the 14
imposition of penalties and interest for taxes unpaid during a 15
time when the properties were tax-exempt under the law."); id. 16
at 290-91 (similar). That ruling was sufficient to put the 17
Counties on notice of the OIN's equitable argument. 18
We conclude that the OIN is entitled to a declaration 19
that it is not liable to pay penalties or interest on taxes or 20
related assessments that accrued prior to the Supreme Court's 21
decision in Sherrill III. Because the OIN has not shown that a 22
permanent injunction is necessary to protect its interests in 23
this respect, we also conclude that this declaratory relief 24

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72
should suffice. Cf. Wooley v. Maynard, 430 U.S. 705, 711 (1977) 1
("[A] district court can generally protect the interests of a 2
federal plaintiff by entering a declaratory judgment, and 3
therefore the stronger injunctive medicine will be unnecessary." 4
(internal quotation marks omitted)). 5
B. Abstention 6
When this case was originally before us on appeal, the 7
Counties argued that the district court erred as a matter of law 8
by refusing to abstain from jurisdiction on the grounds that 9
federal litigation would impermissibly interfere with state tax 10
administration. The Counties relied upon 28 U.S.C. § 1341, 11
which provides that "[t]he district courts shall not enjoin, 12
suspend or restrain the assessment, levy or collection of any 13
tax under State law where a plain, speedy and efficient remedy 14
may be had in the courts of such State." In our original 15
decision, we rejected this argument, concluding that the Supreme 16
Court has "created an exception to the general rule barring 17
federal interference with state tax administration" for suits 18
brought by Indian tribes that the United States could have 19
brought on a tribe's behalf as trustee. Oneida I, 605 F.3d at 20
160 (internal quotation marks omitted) (citing Moe v. 21
Confederated Salish & Kootenai Tribes of Flathead Reservation, 22
425 U.S. 463, 474-75 (1976)). 23
In their petition for certiorari to the Supreme Court, 24

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the Counties did not challenge our ruling with respect to the 1
matter of abstention. Nor do they address abstention in their 2
letter-briefing on remand. But because our decision in Oneida I 3
has been vacated, and because "a district court's determination 4
not to abstain . . . implicates the court's subject matter 5
jurisdiction," Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 6
90 (2d Cir. 2004), we raise the issue sua sponte and affirm the 7
district court's decision not to abstain for substantially the 8
same reasons outlined in our prior panel decision. See Oneida 9
I, 605 F.3d at 160-61. 10
C. Stockbridge's Motions to Intervene 11
On appeal, the putative intervenor, Stockbridge, 12
argues (1) that the district court erred in the Oneida County 13
lawsuit by denying its Rule 24(a) motion to intervene as of 14
right, and (2) that the district court erred in the Madison 15
County lawsuit by refusing to grant leave to Madison County to 16
file a Rule 19 motion to dismiss for failure to join Stockbridge 17
as a party. In its reply letter-brief, Stockbridge asserts that 18
"should this Court conclude that the issue of sovereign immunity 19
is now moot . . . and proceed to address the question whether 20
the [OIN's] land is tax-exempt under New York law, it should 21
reconsider its ruling that Stockbridge does not have an interest 22
in the subject of this litigation." Stockbridge Reply Ltr.-Br. 23
at 4. 24

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We need not reconsider our ruling in Oneida I. Here, 1
as in Oneida I, the manner in which we resolve these appeals 2
does not bear upon the question of the disputed boundaries 3
between the OIN's and Stockbridge's respective land claims. See 4
Oneida I, 605 F.3d at 163. Indeed, insofar as our resolution of 5
these appeals does not reach "the question whether the [OIN's] 6
land is tax-exempt under New York law," Stockbridge Reply Ltr.- 7
Br. at 4, but dismisses those claims without prejudice instead, 8
it would appear that Stockbridge concedes that it is unnecessary 9
for us to revisit our prior ruling at this time. 10
Therefore, for substantially the same reasons stated 11
in our decision in Oneida I, see id. at 161-63 & n.9, we affirm 12
the district court's denial of Stockbridge's Rule 24(a) 13
intervention motion in Oneida County and its denial of Madison 14
County's motion to file a Rule 19 motion to dismiss in Madison 15
County. 16
D. Disestablishment or Diminishment 17
Finally, we address the Counties' appeals from the 18
district court's declarations that the ancient Oneida Nation's 19
reservation was not disestablished by the 1838 Treaty of Buffalo 20
Creek. See Oneida County I, 432 F. Supp. 2d at 292 (decreeing 21
that "[the OIN's] reservation was not disestablished"); Madison 22
County I, 401 F. Supp. 2d at 233 (same). In so ruling, the 23

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district court effectively dismissed the Counties' counterclaims 1
seeking a declaration to the opposite effect. 2
When this case was previously before us on appeal, we 3
declined to reach the Counties' argument that the OIN's 4
reservation had been disestablished, in light of our conclusion 5
that foreclosure was barred in any event by virtue of the OIN's 6
tribal sovereign immunity from suit. Oneida I, 605 F.3d at 157 7
n.6. We nonetheless observed that the Supreme Court in Sherrill 8
III had "explicitly declined to resolve the question of whether 9
the Oneida reservation had been 'disestablished.'" Id. We 10
concluded that "[o]ur prior holding on this question -- that 11
'the Oneidas' reservation was not disestablished' -- therefore 12
remains the controlling law of this circuit." Id. (citation 13
omitted) (quoting Sherrill II, 337 F.3d at 167). 14
Following our decision in Oneida I, the Counties 15
petitioned for a writ of certiorari to review, inter alia, the 16
question "whether the ancient Oneida reservation in New York was 17
disestablished or diminished." Counties' Cert. Petition at i. 18
Because the Supreme Court vacated our judgment in light of the 19
OIN's professed waiver of immunity and remanded for further 20
proceedings, however, the Court did not have occasion to rule 21
upon the disestablishment question. Nonetheless, relying upon 22
the Supreme Court's intervening grant of certiorari, the 23

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Counties urge us to revisit our decision in Sherrill II that the 1
Oneidas' reservation was not disestablished. 2
We decline the Counties' invitation. "This panel is 3
bound by the decisions of prior panels until such time as they 4
are overruled either by an en banc panel of our Court or by the 5
Supreme Court." In re Zarnel, 619 F.3d 156, 168 (2d Cir. 2010) 6
(internal quotation marks omitted). It remains the law of this 7
Circuit that "the Oneidas' reservation was not disestablished," 8
Sherrill II, 337 F.3d at 167. As we previously observed in 9
Oneida I, the Supreme Court's decision in Sherrill III did not 10
upset that determination. See Oneida I, 605 F.3d at 157 n.6. 11
Nor do we think that the fact that the Supreme Court 12
granted certiorari to review our decision in Oneida I renders 13
our decision in Sherrill II without legal effect. Our Court has 14
spoken on the question of disestablishment. We therefore affirm 15
the dismissal of the Counties' counterclaims. 16
CONCLUSION 17
For the foregoing reasons: 18
1. We vacate the district court's judgments to the 19
extent that they granted summary judgment to the OIN on its 20
now-abandoned claims related to: (1) the doctrine of tribal 21
sovereign immunity from suit and (2) the Nonintercourse Act. 22
We remand with instructions to the district court to dismiss 23
those two claims with prejudice. Moreover, as the OIN has 24

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suggested, the amended judgments shall reflect this Court's 1
understanding that the OIN's waiver of its tribal sovereign 2
immunity from suit is "irrevocable." OIN December 2 Letter at 3
3. 4
2. We reverse the district court's judgments to the 5
extent that they granted summary judgment on the OIN's claims 6
that the Counties' redemption notices failed to comport with 7
federal or state due-process requirements. We remand with 8
instructions to enter judgment in favor of the Counties on 9
these claims and to dismiss them with prejudice. 10
3. We vacate the district court's judgments to the 11
extent that they granted summary judgment to the OIN on its 12
claims that it is entitled under state law to exemptions from 13
state and local property taxes. We remand with instructions to 14
the district court to decline to exercise supplemental 15
jurisdiction over these claims and to dismiss them without 16
prejudice to their being brought in state court. 17
4. We affirm, but solely as to property taxes and 18
related assessments accruing prior to March 29, 2005, the 19
district court's ruling that the OIN is not liable for payment 20
of penalties or interest, and we conclude that the OIN is 21
entitled to a declaration to that effect. 22
5. We affirm the district court's decisions: 23
declining to abstain from this litigation under 28 U.S.C. 24

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§ 1341; denying Stockbridge's motions to intervene and denying 1
Madison County's motion for leave to file a Rule 19 motion to 2
dismiss; and dismissing each County's declaratory 3
counterclaims. 4
6. Because no claims remain that would entitle the 5
OIN to injunctive relief barring the Counties from carrying out 6
their respective tax-enforcement procedures, and because the 7
OIN has not shown that injunctive relief is warranted in any 8
other respect, we vacate the district court's injunctions in 9
their entirety. 10
7. We direct the district court to enter an amended 11
judgment in each lawsuit reflecting these rulings. 12
Costs of these proceedings shall be borne by the OIN. 13

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