Amicus Curiae Brief — Upper Skagit Indian Tribe, Petitioner v. Sharline Lundgren, et vir

NO. 17-387

In the Supreme Court of the United States

UPPER SKAGIT INDIAN TRIBE,

Petitioner,

v.

SHARLINE LUNDGREN AND RAY LUNDGREN,

Respondents.

On Writ of Certiorari to the

Supreme Court of Washington

BRIEF OF AMICUS CURIAE SENECA COUNTY,

NEW YORK IN SUPPORT OF RESPONDENTS

Brian Laudadio

Counsel of Record

Louis P. DiLorenzo

Mary P. Moore

Bond, Schoeneck & King PLLC

350 Linden Oaks, Third Floor

Rochester, New York 14625

(585) 362-4700

laudadb@bsk.com

dilorel@bsk.com

mmoore@bsk.com

Frank Fisher

Seneca County Attorney

County Office Building

One DiPronio Drive

Waterloo, New York 13165

(315) 539-1989

Counsel for Amicus Curiae Seneca County, New York

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE AMICUS CURIAE . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. The Bounds Of Tribal Sovereign Immunity From

Suit Do Not Extend To In Rem Proceedings

Involving Freely Alienable, Non-Sovereign

Lands Owned In Fee Title By An Indian Tribe . 5

A. Yakima Upheld The Assertion Of In Rem

Jurisdiction Over Freely Alienable, FeeTitled Lands . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. Sherrill Upheld The Assertion Of In Rem

Jurisdiction Over Fee-Titled Lands Where

The Indian Nation’s “Embers Of Sovereignty

. . . Long Ago Grew Cold.” . . . . . . . . . . . . . . . 9

C. The Principles Underlying Sovereign

Immunity Do Not Justify The Extension of

Tribal Sovereign Immunity To In Rem

Proceedings Involving Land Owned By An

Indian Tribe Outside of Its Sovereign

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1. Federal and State Sovereign Immunity

Applies Within The Sovereign’s Own

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . 15

2. Foreign Sovereign Immunity Does Not

Extend To In Rem Actions To Establish

Rights In Immovable Property . . . . . . . . 19

ii

D. The Extension Of Tribal Sovereign Immunity

To Off Reservation Commercial Activities

Does Not Provide A Basis To Extend

Immunity To In Rem Proceedings To

Determine Rights In Freely Alienable, Fee

Titled Land . . . . . . . . . . . . . . . . . . . . . . . . . . 21

II. Even If This Court Declines To Affirm the

Washington Supreme Court’s Decision, The

Quiet Title Proceeding At Issue Here Is

Potentially Distinguishable From An In Rem

Tax Foreclosure Proceeding . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iii

TABLE OF AUTHORITIES

CASES

Alden v. Maine,

527 U.S. 706 (1999) . . . . . . . . . . . . . . . . . . . . . . 16

Allyn v. Markowitz,

373 N.Y.S.2d 293 (N.Y. Cnty. Ct. 1975) . . . . . . 10

Arizona v. Rumsey,

467 U.S. 203 (1984) . . . . . . . . . . . . . . . . . . . . . . 25

Asociacion de Reclamantes v. United Mexican States,

735 F.2d 1517 (D.C. Cir. 1984) . . . . . . . . . . . . . 19

Belknap v. Schild,

161 U.S. 10 (1896) . . . . . . . . . . . . . . . . . . . . . . . 16

Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold

Casino & Resort,

629 F.3d 1173 (10th Cir. 2010) . . . . . . . . . . . . . . 6

Buffalo v. Cargill, Inc.,

44 N.Y.2d 7 (N.Y. 1978) . . . . . . . . . . . . . . . . . . . 10

California v. Cabazon Band of Mission Indians,

480 U.S. 202 (1987) . . . . . . . . . . . . . . . . . . . . 5, 22

Cass County Joint Water Resource District v. 1.43

Acres of Land, 643 N.W.2d 685 (2002) . . . . 17, 18

Cayuga Indian Nation v. Pataki,

413 F.3d 266 (2d Cir. 2005) . . . . . . . . . . . . . . . . 14

Cayuga Indian Nation of New York v. Seneca

County, 716 F.3d 218 (2d Cir. 2014) . . . . . . . . 1, 2

Cayuga Indian Nation v. Vill. of Union Springs,

390 F. Supp. 2d 203 (N.D.N.Y. 2005) . . . . . . . . 14

iv

City of N.Y. v. Perm. Mission of India to the UN,

446 F.3d 365 (2d Cir. 2006) . . . . . . . . . . . . . . 8, 19

City of Sherrill v. Oneida Indian Nation,

544 U.S. 197 (2005) . . . . . . . . . . . . . . . . . . passim

County of Yakima v. Confederated Tribes & Bands of

the Yakima Indian Nation,

502 U.S. 251 (1992) . . . . . . . . . . . . . . . . . . passim

Georgia v. City of Chattanooga,

264 U.S. 472 (1924) . . . . . . . . . . . . . . . . . . . . 3, 17

Hagen v. Utah,

510 U.S. 399 (1994) . . . . . . . . . . . . . . . . . . . . . . 23

Idaho v. Coeur d’Alene Tribe of Idaho,

521 U.S. 261 (1997) . . . . . . . . . . . . . . . . . . . . . . 18

Kiowa Tribe v. Mfg. Techs.,

523 U.S. 751 (1998) . . . . . . . . . . . . . . . . . . . . . passim

Michigan v. Bay Mills Indian Cmty.,

134 S. Ct. 2024 (2014) . . . . . . . . . 5, 21, 22, 24, 25

Moe v. Confederated Salish & Kootenai Tribes of

Flathead Reservation, 425 U.S. 463 (1976) . . . . . 8

Nevada v. Hall,

440 U.S. 410 (1979) . . . . . . . . . . . . . . 3, 15, 16, 17

New Mexico v. Mescalero Apache Tribe,

462 U.S. 324 (1983) . . . . . . . . . . . . . . . . . . . . . . 22

Okla. Tax Comm’n v. Chickasaw Nation,

515 U.S. 450 (1995) . . . . . . . . . . . . . . . . . . . . . . 21

Okla. Tax Comm’n v. Citizen Band of Potowatomi

Tribe of Okla., 498 U.S. 505 (1991) . . . . . 5, 22, 24

v

Oneida Indian Nation v. City of Sherrill,

145 F. Supp. 2d 226 (N.D.N.Y. 2001) . . 9, 10, 11, 25

Oneida Indian Nation v. City of Sherrill,

337 F.3d 139 (2d Cir. 2003) . . . . . . . . . . . . . . . . 11

Oneida Tribe of Indians v. Vill. of Hobart,

542 F. Supp. 2d 908 (E.D. Wis. 2008) . . . . . . . . 25

People ex rel. Hoagland v. Streeper,

145 N.E.2d 625 (1957) . . . . . . . . . . . . . . . . . . . . 17

Perm. Mission of India to the UN v. City of N.Y.,

551 U.S. 193 (2007) . . . . . . . . . . . . 3, 4, 19, 20, 21

Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978) . . . . . . . . . . . . . . . . . . . . . . . . 5

Schooner Exchange v. M’Faddon,

11 U.S. 116 (1812) . . . . . . . . . . . . . . . . . . 8, 19, 20

Shaffer v. Heitner,

433 U.S. 186 (1977) . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Hudson,

231 Minn. 127 (1950) . . . . . . . . . . . . . . . . . . . . . 17

The Siren,

74 U.S. 152 (1869) . . . . . . . . . . . . . . . . . . . . . . . 16

Three Affiliated Tribes of Fort Berthold Reservation

v. Wold Eng’g, P.C., 476 U.S. 877 (1986) . . . . . . 5

STATUTES

25 U.S.C. § 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

25 U.S.C. § 465 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

28 U.S.C. § 1604 . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

vi

28 U.S.C. § 1605 . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

28 U.S.C. § 1605(a)(4) . . . . . . . . . . . . . . . . . . . . . . . 19

28 U.S.C. § 1607 . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

N.Y. RPTL § 1120 . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

N.Y. RPTL § 1124 . . . . . . . . . . . . . . . . . . . . . . . . . . 10

N.Y. Real Property Actions and Proceedings

Law § 713(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Wash. Rev. Code § 84.60.020 . . . . . . . . . . . . . . . . . . 8

OTHER AUTHORITIES

Rasch’s Landlord and Tenant (5th ed. 2017) . . . . . 10

Restatement (Second) of Foreign Relations Law of

the United States (1965) . . . . . . . . . . . . . . . 19, 20

Restatement (Third) of Foreign Relations Law of the

United States (1987) . . . . . . . . . . . . . . . . . . . . 20

Warren’s Weed N.Y. Real Property (2017) . . . . . . . 10

1

INTEREST OF THE AMICUS CURIAE1

Seneca County, New York (“Seneca County”) is a

political subdivision of the State of New York. Seneca

County has a strong interest in the question presented

in this case because it regularly deals with regulation

and taxation of real property within its jurisdiction

that is owned in fee simple by the Cayuga Indian

Nation of New York (the “Cayuga Nation”), another

federally recognized Indian Nation. In particular, the

issue of whether tribal sovereign immunity bars an in

rem foreclosure proceeding for nonpayment of real

property taxes against Cayuga Nation-owned lands is

a dispute that is currently before the United States

District Court for the Western District of New York on

cross-motions for summary judgment. See Cayuga

Indian Nation of New York v. Seneca County, Civil

Action No. 11-cv-6004-CJS (W.D.N.Y.). The Upper

Skagit Indian Tribe’s argument before this Court relies

upon the Second Circuit’s affirmance of the preliminary

injunction that was previously granted in Cayuga

Indian Nation of New York v. Seneca County. See Br.

for Pet. at 20, 23-24 (citing Cayuga Indian Nation of

New York v. Seneca County, 716 F.3d 218, 221 (2d Cir.

2014)).

In its cross-motion for summary judgment currently

pending before the District Court, Seneca County has

argued that the doctrine of tribal sovereign immunity

does not bar an in rem tax foreclosure proceeding

1

This amicus brief is presented pursuant to Rule 37.4 of the Rules

of the Supreme Court of the United States, as this brief is

presented on behalf of a county and is submitted by its authorized

law officer.

2

against Cayuga Nation-owned properties owned in fee

simple and over which the Cayuga Nation does not

have sovereign control. The Cayuga Nation maintains

that the in rem foreclosure proceeding is indeed barred

due to tribal sovereign immunity. Thus, this Court’s

answer to the question presented here—i.e. whether

tribal sovereign immunity deprives a state court of

jurisdiction to hear an in rem proceeding concerning

real property owned by an Indian Nation in fee

simple—could potentially determine the outcome of the

pending dispute in Cayuga Indian Nation of New York

v. Seneca County.

SUMMARY OF THE ARGUMENT

I. This Court’s decisions in County of Yakima v.

Confederated Tribes & Bands of the Yakima Indian

Nation, 502 U.S. 251 (1992) (“Yakima”), and City of

Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005)

(“Sherrill”), demonstrate that tribal sovereign

immunity does not extend to in rem proceedings

involving real property owned in fee simple by an

Indian Nation. The principles underlying sovereign

immunity generally (whether of the U.S. government,

one of the several States, a foreign sovereign, or an

Indian Nation) do not justify extension of tribal

sovereign immunity to in rem proceedings involving

unrestricted fee titled lands, located outside of an

Indian tribe’s sovereign control.

A. Yakima dealt with more than tribal immunity

from taxation. This Court held that the power to

assess and to collect real property taxes imposed on

unrestricted fee lands (through in rem foreclosure

proceedings) does not implicate tribal sovereignty or its

3

corollary—immunity from suit. Yakima, 502 U.S. at

263-64.

B. In Sherrill, which arose from an in rem eviction

proceeding, this Court rejected the Oneida Indian

Nation’s asserted sovereign immunity from taxation

and from enforcement thereof with respect to lands

over which the Nation’s “embers of sovereignty [had]

long ago [grown] cold.” Sherrill, 544 U.S. at 214. This

Court affirmed the City of Sherrill’s authority to both

foreclose on the tribe’s land for nonpayment of taxes

and to evict the Oneida Indian Nation based upon such

foreclosure, reversing the Second Circuit’s decision,

which had expressly held that the Oneida Indian

Nation was entitled to sovereign immunity from the

eviction proceeding.

C. While sovereign immunity bars disputes

concerning real property claimed by a sovereign from

being heard within the sovereign’s own courts, disputes

concerning real property owned by a sovereign outside

of its jurisdiction may be heard in the courts of the

second sovereign. States are not immune from suit

with respect to property owned in a different State

because such a suit “could hardly interfere with [the

State’s] capacity to fulfill its own sovereign

responsibilities.” See Nevada v. Hall, 440 U.S. 410, 424

n. 24 (1979); see also Georgia v. City of Chattanooga,

264 U.S. 472, 480 (1924) (Georgia could not “claim

privilege or immunity” with respect to a condemnation

proceeding involving land it owned within Tennessee).

Furthermore, as a matter of international practice, a

foreign state is not immune from suit within the

United States as to “any case . . . in which . . . rights in

immovable property . . . are in issue.” See Perm.

4

Mission of India to the UN v. City of N.Y., 551 U.S. 193,

199 (2007).

D. The extension of tribal sovereign immunity to in

personam suits against Indian tribes related to off

reservation commercial activity is based upon notions

of “promot[ing] economic development and tribal selfsufficiency.” See, e.g., Kiowa Tribe v. Mfg. Techs., 523

U.S. 751, 757 (1998). The goal of tribal self-sufficiency

does not provide a basis to extend tribal sovereign

immunity to in rem proceedings to determine rights in

freely alienable fee titled lands.

II. To the extent this Court is inclined to overturn the

Washington Supreme Court’s decision, it should decline

to make a sweeping determination that tribal sovereign

immunity bars all in rem proceedings directed to any

property owned in fee title by an Indian Nation. Such

a holding would eviscerate this Court’s holding in

Sherrill. Moreover, it would be contrary to this Court’s

continued concern that taxing authorities—which have

no adequate alternatives to tax foreclosure and have no

control over Indian Nations purchasing properties

within the State’s jurisdiction—are left without a

remedy.

5

ARGUMENT

I. The Bounds Of Tribal Sovereign Immunity

From Suit Do Not Extend To In Rem

Proceedings Involving Freely Alienable, NonSovereign Lands Owned In Fee Title By An

Indian Tribe.

Tribal sovereign immunity bars suits against Indian

tribes unless “Congress has authorized the suit or the

tribe has waived its immunity.” Kiowa, 523 U.S. at

754; see also Michigan v. Bay Mills Indian Cmty., 134

S. Ct. 2024, 2030 (2014) (Indian tribes are “domestic

dependent nations” and thus “are subject to plenary

control by Congress”). As noted by Petitioner, tribal

immunity from suit is a common law doctrine that

developed as “a necessary corollary to Indian

sovereignty and self-governance.” Three Affiliated

Tribes of Fort Berthold Reservation v. Wold Eng’g, P.C.,

476 U.S. 877, 890 (1986) (citing Santa Clara Pueblo v.

Martinez, 436 U.S. 49 (1978)); see also Br. of Pet. at 14.

This Court has been reluctant to dispense with or limit

the doctrine given “Congress’ desire to promote the

‘goal of Indian self-government, including its

‘overriding goal’ of encouraging tribal self-sufficiency

and economic development.” Okla. Tax Comm’n v.

Citizen Band of Potowatomi Tribe of Okla., 498 U.S.

505, 510 (1991) (quoting Cali. v. Cabazon Band of

Mission Indians, 470 U.S. 202, 216 (1987)).

But tribal sovereign immunity is “a judicial

doctrine” and this Court has “taken the lead in

6

drawing” its “bounds.”2 Kiowa, 523 U.S. at 759. In

other words, courts define the reach of the doctrine,

and defer to Congress to define any exceptions thereto.

It is clear that tribal sovereign immunity bars suits

against Indian tribes themselves. But this Court’s

decisions in Yakima and Sherrill also make clear that

the bounds of tribal sovereign immunity do not reach in

rem proceedings involving real property owned in fee

simple by an Indian Nation, like any other private

landowner.

The principles underlying sovereign

immunity generally (whether the sovereign is the U.S.

government, one of the several States, a foreign

sovereign, or an Indian Nation) do not justify extension

of tribal sovereign immunity to in rem proceedings

involving unrestricted fee titled lands, located outside

of an Indian tribe’s sovereign control.

A. Yakima Upheld The Assertion Of In Rem

Jurisdiction Over Freely Alienable, FeeTitled Lands.

In Yakima, this Court upheld efforts by the County

of Yakima in Washington State to foreclose on real

2

That tribal sovereign immunity is a judicial doctrine—the bounds

of which are drawn by the courts—is further demonstrated by

lower court decisions extending tribal sovereign immunity to tribal

entities deemed to be an “arm of the tribe.” See, e.g., Breakthrough

Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d

1173, 1181 (10th Cir. 2010) (allowing tribal entities to share in an

Indian tribe’s immunity from suit depending on: “(1) the method

of creation of the economic entities; (2) their purpose; (3) their

structure, ownership, and management, including the amount of

control the tribe has over the entities; (4) the tribe’s intent with

respect to the sharing of its sovereign immunity; and (5) the

financial relationship between the tribe and the entities”).

7

property held in fee title by an Indian tribe for

delinquent property taxes. See Yakima, 502 U.S. at

264-65. The land at issue was located in the Yakima

Indian Reservation, which was established by treaty in

1855. Eighty percent of the reservation land was held

in trust by the United States for the tribe’s benefit, and

the remaining twenty percent was owned in fee title,

including by the Yakima Indian Nation itself. Id. at

254-56. This fee-titled land had been freed from

restrictions on alienation through the Indian General

Allotment Act of 1887 (“IGA”), in an effort “to

extinguish tribal sovereignty.” Id.

Yakima County had imposed an ad valorem tax on

the tribe’s fee-titled properties located within its

reservation “without incident for some time.” Id. at

256. But when the tribe stopped paying these taxes,

the County brought in rem proceedings to foreclose

properties owned by the tribe in fee title, among others.

Id. The tribe argued that federal law prohibited the

imposition of taxes on lands owned by the tribe because

they were reservation lands. Id. This Court held that

while states are typically without power to tax

reservation lands, a 1906 amendment to the IGA (i.e.

the Burke Act proviso) unequivocally subjected Indian

allottees thereunder to state tax laws. Id. at 258. As

a result, the County could lawfully tax the fee-titled

reservation lands.

Importantly, the Court went on to also hold that the

County could assert jurisdiction over the fee-titled

lands in Yakima because “the jurisdiction [was] in rem

8

rather than in personam.”3 Id. at 265. It reasoned that

“[w]hile the in personam jurisdiction over reservation

Indians at issue in Moe [v. Confederated Salish &

Kootenai Tribes of Flathead Reservation, 425 U.S. 463

(1976),] would have been significantly disruptive of

tribal self-government, the mere power to assess and

collect a tax on certain real estate is not.” Id. at 265;

see also City of N.Y. v. Perm. Mission of India to the

UN, 446 F.3d 365, 374 (2d Cir. 2006) (citing Schooner

Exchange v. M’Faddon, 11 U.S. 116, 125 (1812)) (noting

the longstanding principle that “property ownership is

not an inherently sovereign function”). Because the

land had been “rendered . . . alienable and

encumberable” under to the IGA, the land was also

“render[ed] . . . subject to assessment and forced sale

for taxes.” Yakima, 502 U.S. at 263-64. So in Yakima,

this Court held that the power to assess and to collect

(through in rem foreclosure proceedings) real property

taxes imposed on unrestricted fee lands does not

implicate tribal sovereignty or its corollary—immunity

from suit.

Petitioner argues that Yakima only dealt with

“tribal immunity from taxation.” See Br. of Pet. at 17.

But if that was true, the Court could have ended its

analysis of the ad valorem tax issue with the Burke Act

proviso. Yakima arose from an in rem foreclosure

proceeding and the Supreme Court’s express holding

3

This Court held, pursuant to Washington State foreclosure law,

that the real property taxes “create[d] a burden on the property

alone,” and that the “[l]iability for the ad valorem taxes flows

exclusively from ownership of realty on the annual date of

assessment.” Yakima, 502 U.S. at 266 (Wash. Rev. Code

§ 84.60.020).

9

that the County could collect the taxes through a forced

sale demonstrates that the Court had remedies, not

only rights, in mind when it decided Yakima.

B. Sherrill Upheld The Assertion Of In Rem

Jurisdiction Over Fee-Titled Lands Where

The Indian Nation’s “Embers Of

Sovereignty . . . Long Ago Grew Cold.”

In Sherrill, this Court affirmed the City of Sherrill’s

right to assess and to collect, including through in rem

proceedings, ad valorem property taxes on fee lands

recently purchased by the Oneida Indian Nation. That

decision did not draw a distinction between the right to

tax the land and the right to enforce those taxes

through in rem foreclosure and eviction proceedings,

and indeed no such valid distinction may be drawn.

Sherrill arose from an eviction proceeding, following

the City of Sherrill having obtained title to the parcels

through tax foreclosure proceedings.4 See Oneida

4

In rem and in personam jurisdiction are described in Shaffer v.

Heitner, 433 U.S. 186 (1977):

If a court’s jurisdiction is based on its authority over the

defendant’s person, the action and judgment are

denominated “in personam” and can impose a personal

obligation on the defendant in favor of [the plaintiff]. If

jurisdiction is based on the court’s power over property

within its territory, the action is called “in rem” or “quasi

in rem.” The effect of a judgment in such a case is limited

to the property that supports jurisdiction and does not

impose a personal liability on the property owner, since he

is not before the court.

Id. at 199. Under New York law, a tax foreclosure proceeding is in

rem. See N.Y. Real Property Tax Law (“RPTL”) § 1120. No

personal judgment may be entered under an in rem tax foreclosure

10

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

232-33 (N.D.N.Y. 2001). The Oneida Indian Nation

had purchased fee title to the parcels through open

market transactions in 1997 and 1998. Sherrill, 544

U.S. at 202. The parcels were located within the

Oneida Indian Nation’s historical reservation area,

which was last possessed by the Oneidas as a tribal

entity in 1805. Id.

Invoking tribal sovereign immunity, the Oneida

Indian Nation sought a declaration that its lands were

not subject to taxation, and declarations that the City

“may not . . . attempt to collect property taxes based

upon lands owned and possessed by the Nation within

Sherrill . . . that Sherrill’s purported conveyances of the

properties for delinquency of taxes are null and void,

and that Sherrill may not evict the Nation from its

lands . . .” Id. at 237 (emphasis added); Joint App’x,

City of Sherrill v. Oneida Indian Nation, 2004 U.S.

S. Ct. Briefs LEXIS 493, at *JA27 (Aug. 12, 2004)

(Complaint filed by the Oneida Indian Nation on

Feb. 2, 2000 in N.D.N.Y. Case No. 00-cv-223). The

Oneida Indian Nation sought an injunction prohibiting

the City from taxing its properties, and “prohibiting it

from interfering with the Nation’s ownership and

possession of its lands and from any effort to evict the

proceeding. See Buffalo v. Cargill, Inc., 44 N.Y.2d 7, 15 (N.Y.

1978) (citing N.Y. RPTL § 1124). Similarly, a summary eviction

proceeding to recover possession of real property is in rem and

“purely possessory.” N.Y. Real Property Actions and Proceedings

Law § 713(5); Allyn v. Markowitz, 373 N.Y.S.2d 293, 294 (N.Y.

Cnty. Ct. 1975); see also 12-129 Warren’s Weed N.Y. Real Property,

§ 129.157 (2017) (same); Rasch’s Landlord and Tenant § 29:7 (5th

ed. 2017) (“A summary proceeding is a legal process of purely

possessory character, and relates to real property only.”).

11

Nation from such lands . . .” Oneida Indian Nation,

145 F. Supp. 2d at 237 (emphasis added).

The basis for the relief sought was the assertion

that the Nation’s sovereign immunity prevented not

only the imposition of tax, but also the collection of tax

through in rem foreclosure and eviction proceedings.

See Sherrill Joint App’x, 2004 U.S. S. Ct. Briefs LEXIS

493, at *JA25 (alleging that the City’s effort to foreclose

on and evict the Nation from its properties “violate[s]

the Nation’s sovereign immunity, which derives from

. . . federal common law”); Oneida Indian Nation, 145

F. Supp. 2d at 237-38; Oneida Indian Nation v. City of

Sherrill, 337 F.3d 139, 144 (2d Cir. 2003). The Oneida

Nation specifically asserted tribal sovereign immunity

as an affirmative defense to the eviction action. Oneida

Indian Nation, 145 F. Supp. 2d at 237-38; Oneida

Indian Nation, 337 F.3d at 144. And the district court

expressly held that the Nation was entitled to

sovereign immunity from the in rem eviction petition.

Oneida Indian Nation, 145 F. Supp. 2d at 260

(dismissing eviction petition because “the Nation [was]

entitled to sovereign immunity from suit”) (emphasis

added).

Thus, the Oneida Indian Nation expressly put at

issue sovereign immunity from enforcement

mechanisms—including in rem foreclosure and

subsequent eviction—not only sovereign immunity

from taxation. The Oneida Indian Nation continued to

press these arguments to this Court, to which it argued

that the City’s efforts to tax its real property “and to

enforce the tax by evicting the Oneidas from the land”

were impermissible. Br. of Resp. at 1, City of Sherrill

v. Oneida Indian Nation, U.S. Case No. 03-855

12

(emphasis added); see also id. at 12 (arguing that its

properties could not “be removed from Oneida

possession through a state law property tax

foreclosure”).

The Court rejected the Oneida Indian Nation’s

argument that the City did not have regulatory

authority over the parcels on the basis that the

“acquisition of fee title to discrete parcels of historic

reservation land [had] revived the Oneidas’ ancient

sovereignty piecemeal over each parcel.” See Sherrill,

544 U.S. at 202, 214. The Court stated as follows:

Given the longstanding, distinctly non-Indian

character of the area and its inhabitants, the

regulatory authority constantly exercised by

New York State and its counties and towns, and

the Oneidas’ long delay in seeking judicial relief

against parties other than the United States, we

hold that the Tribe cannot unilaterally revive its

ancient sovereignty, in whole or in part, over the

parcels at issue.

The Oneidas long ago

relinquished the reins of government and cannot

regain them through open-market purchases

from current titleholders.

Id. at 202-203. It held that “‘standards of federal

Indian law and federal equity practice’ preclude the

Tribe from rekindling embers of sovereignty that long

ago grew cold.” Id. at 214. Thus, the Oneida Indian

Nation’s tribal patchwork of land owned in fee simple

was deemed subject to the full jurisdiction and taxing

authority of State and local governments.

This Court’s decision rejected every aspect of the

Oneida Nation’s asserted sovereign immunity from

13

taxation and from enforcement thereof, affirming the

City of Sherrill’s authority to both foreclose on the

tribe’s land for nonpayment of taxes and to evict the

Oneida Indian Nation based upon such foreclosure. It

reversed the Second Circuit’s decision, which had

expressly affirmed that the Oneida Indian Nation was

entitled to sovereign immunity from the eviction

proceeding—immunity from suit, not merely “tax

immunity.” This Court expressly stated that tribal

immunity would not bar the in rem eviction proceeding:

The dissent suggests that, compatibly with

today’s decision, the Tribe may assert tax

immunity defensively in the eviction proceeding

initiated by Sherrill. We disagree.

Sherrill, 544 U.S. at 214 n. 7. As a result, Sherrill

necessarily reached, and rejected, the Oneida Indian

Nation’s claim that its sovereign immunity barred the

underlying in rem eviction proceeding, and that the

conveyances resulting from in rem foreclosure

proceeding were therefore null and void.

C. The Principles Underlying Sovereign

Immunity Do Not Justify The Extension of

Tribal Sovereign Immunity To In Rem

Proceedings Involving Land Owned By An

Indian Tribe Outside of Its Sovereign

Jurisdiction.

Although the Upper Skagit Indian Tribe asserts

that the parcel at issue here is located within its

“ancestral lands,” the Tribe sold its lands in

Washington State to the United States by treaty in

1855, the Tribe acquired fee title to the parcel in 2013

by statutory warranty deed, and the parcel is not held

14

in trust by the United States or located within a

reservation. See Br. of Pet. at 5-6 (noting that the

Tribe intends to apply to the federal government to

take the parcel into trust, on the basis that it is

contiguous with 500 acres of trust land previously

secured). There is no basis to conclude that the parcel

is not freely alienable or that the Tribe exercises

sovereign control over it.5

As such, the parcel is akin to those at issue in

Sherrill—i.e. the Upper Skagit Indian Tribe recently

purchased the parcel through an open market

transaction within its purported ancestral lands that

were last possessed by the Tribe in 1855. So unless

and until the parcel is taken into trust, the Tribe may

not exercise sovereignty over it and it is subject to

regulation by the State of Washington. See Sherrill,

544 U.S. at 220-21 (recognizing the land into trust

process under 25 U.S.C. § 465 as the proper mechanism

“to regain sovereign control over” tribal ancestral

lands); Cayuga Indian Nation v. Vill. of Union Springs,

390 F. Supp. 2d 203, 206 (N.D.N.Y. 2005) (concluding,

in light of Sherrill, that repurchased ancestral lands

are subject to state and local zoning laws and

regulations).

5

Amici National Congress of American Indians, et al., suggest that

the in rem proceeding is barred by tribal sovereign immunity

because the lands at issue are inalienable “tribal lands.” See Br.

of Amici Curiae at 36. But the Upper Skagit Indian Tribe has not

argued that the parcel at issue here is subject to restrictions on

alienation under 25 U.S.C. § 177, and indeed such an argument

could not withstand Sherrill given that the fee parcel was recently

acquired on the open market. See Br. of Amici Curiae at 3; Cayuga

Indian Nation v. Pataki, 413 F.3d 266, 269, 275-80 (2d Cir. 2005)

(applying Sherrill to bar claim under the 25 U.S.C. § 177).

15

The law regarding sovereign immunity

demonstrates that the application of immunity to

disputes concerning land owned by a sovereign—

whether the sovereign is the U.S. government, one of

the several States, or a foreign government—depends

on where the land is situated. While sovereign

immunity bars disputes concerning real property

claimed by a sovereign from being heard within the

sovereign’s own courts, disputes concerning real

property owned by a sovereign outside of its

jurisdiction may be heard in the courts of the second

sovereign.

1. Federal and State Sovereign Immunity

Applies Within The Sovereign’s Own

Jurisdiction.

Petitioner and its supporting amici argue in

conclusory fashion that tribal sovereign immunity is

coextensive with the sovereign immunity accorded to

disputes over real property owned by the U.S.

government or any of the several States within their

own courts, even where the dispute involves real

property located outside of the tribe’s sovereign

jurisdiction. But there is significant difference between

the absolute immunity that a sovereign enjoys within

its own jurisdiction and the immunity that a sovereign

might enjoy in another sovereign’s jurisdiction. Indeed,

the “doctrine of sovereign immunity is an amalgam of

two quite different concepts, one applicable to suits in

the sovereign’s own courts and the other to suits in the

courts of another sovereign.” See Nevada v. Hall, 440

U.S. 410, 414 (1979) (describing “the source and scope

of the traditional doctrine of sovereign immunity”).

16

On the one hand, “the immunity of a truly

independent sovereign from suit in its own courts has

been enjoyed as a matter of absolute right for centuries.

Only the sovereign’s own consent could qualify the

absolute character of that immunity.” Id. at 414

(emphasis added); Alden v. Maine, 527 U.S. 706, 715

(1999) (“When the Constitution was ratified, it was well

established in English law that the Crown could not be

sued without consent in its own courts.”) (emphasis

added). That is why the United States is immune from

suit with respect to disputes concerning real property

claimed by it within its own jurisdiction, as referenced

in several cases cited by Petitioner and supporting

amici. See, e.g., Belknap v. Schild, 161 U.S. 10, 16

(1896) (“‘It is a familiar doctrine of the common law,

that the sovereign cannot be sued in his own courts

without his consent . . . This doctrine of the common

law is equally applicable to the supreme authority of

the nation, the United States.’”) (quoting The Siren, 74

U.S. 152 (1869)) (emphasis added).

On the other hand, whether or not a State enjoys

immunity within the courts of another State is “a

matter of comity”—i.e. “the voluntary decision of the

second [sovereign] to respect the dignity of the first

[sovereign]”—not a legal requirement. Nevada, 440

U.S. at 416; see also id. 418-19 (noting that “the

question whether one State might be subject to suit in

the courts of another State was apparently not a

matter of concern when the new Constitution was

being drafted and ratified”). States are not immune

from suit in the courts of a different State as a matter

of law because such a suit “could hardly interfere with

[the State’s] capacity to fulfill its own sovereign

responsibilities.” Nevada, 440 U.S. at 424 n. 24.

17

As such, in Georgia v. City of Chattanooga, 264 U.S.

472 (1924), this Court held that the State of Georgia

“cannot claim privilege or immunity” with respect to a

condemnation proceeding involving land it owned

within Tennessee. Id. at 480. The land Georgia had

acquired within Tennessee “was held subject to the

laws of the latter and to all the incidents of private

ownership,” and the “sovereignty of Georgia was not

[thereby] extended into Tennessee.”6 Id. at 481; see

also State v. Hudson, 231 Minn. 127, 130 (1950) (same);

People ex rel. Hoagland v. Streeper, 145 N.E.2d 625,

629 (1957) (same).

The Supreme Court of North Dakota relied on

Chattanooga in Cass County Joint Water Resource

District v. 1.43 Acres of Land, 643 N.W.2d 685 (2002),

to affirm a state court’s exercise of jurisdiction over an

in rem condemnation action involving “private land”

that had been “purchased in fee by an Indian tribe,”

and which, like here, did not constitute reservation or

trust lands. Id. at 693. The Court held that, “[u]nder

these circumstances, the State may exercise territorial

jurisdiction over the land, including an in rem

condemnation action, and the Tribe’s sovereign

immunity is not implicated.” Id. By extension of these

principles, the Upper Skagit Indian Tribe cannot assert

6

Chattanooga did not turn on a general “consent” granted by the

States to be sued by a sister State, as is urged by Amici Seneca

Nation of Indians, et al. See Br. of Amici Curiae at 25 n 8. On the

contrary, Chattanooga held that the “power of the city to condemn

does not depend upon the consent or suability of the owners.” 264

U.S. at 482-83 (noting further that Georgia’s acceptance of the

permission given it to acquire railroad land in Tennessee is

inconsistent with an assertion of its own sovereign privileges in

respect of that land).

18

its tribal sovereign immunity to bar an in rem

proceeding regarding unrestricted fee title land over

which it does not have sovereign control.

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261

(1997), which is relied upon by Petitioner and

highlighted by its supporting amici, is inapposite

because that case involved a claim by the Coeur d’Alene

Tribe to Lake Coeur d’Alene, and various navigable

rivers and streams that form part of its water system,

located within the State of Idaho. The Court held that

the case implicated Idaho’s sovereign immunity

because it involved a claim to “Idaho’s sovereign

interest in its lands and waters.” Id. at 287. The Court

held that the case was “unusual” in that it was

essentially a “quiet title action which implicates special

sovereignty interests” given that it sought to “divest

the State of its sovereign control over submerged lands,

lands with a unique status in the law and infused with

a public trust the State itself is bound to respect.” Id.

at 281 (noting further that “navigable waters have

historically been considered ‘sovereign lands,’” and that

state ownership of navigable waters is “an essential

attribute of sovereignty”).

In contrast, the Upper Skagit Indian Tribe does not

have a sovereign interest or obligation with respect to

the parcel at issue here, which is owned like any other

private land within the State of Washington.

19

2. Foreign Sovereign Immunity Does Not

Extend To In Rem Actions To Establish

Rights In Immovable Property.

It is noteworthy that Petitioner fails entirely to

mention, and its supporting amici only barely mention,

that immunity does not apply to disputes concerning

“rights in” real property owned by a foreign sovereign

within the United States. Under foreign sovereign

immunities law, a foreign state is not immune from

“the jurisdiction of courts of the United States . . . in

any case. . .in which. . .rights in immovable property

situated in the United States are in issue.” 28 U.S.C.

§ 1605(a)(4) (emphasis added). Foreign sovereign

immunities law is codified in the Foreign Sovereign

Immunities Act (“FSIA”) of 1976. See 28 U.S.C. § 1604,

1605, 1607.

That statute is a “codification of

international [common] law at the time of the FSIA’s

enactment.” Perm. Mission of India to the UN v. City

of N.Y., 551 U.S. 193, 199 (2007).

In particular, FSIA “‘codif[ied]. . .the pre-existing

real property exception to sovereign immunity

recognized by international practice.’” Id. at 200

(quoting Asociacion de Reclamantes v. United Mexican

States, 735 F.2d 1517, 1521 (D.C. Cir. 1984) (J. Scalia)).

“This principle—when owning property here, a foreign

state must follow the same rules as everyone else—long

predated the restrictive theory of sovereign immunity

and the FSIA.” City of N.Y. v. Perm. Mission of India

to the UN, 446 F.3d 365, 374 (2d Cir. 2006) (citing

Schooner Exchange v. M’Faddon, 11 U.S. 116, 125

(1812)). For example, a foreign sovereign may not raise

sovereign immunity as a defense in a state in rem

condemnation action. Id. at 372 (citing Restatement

20

(Second) of Foreign Relations Law of the United States

§ 68(b), cmt. d). This exception comports with the

longstanding principle that “property ownership is not

an inherently sovereign function.” Perm. Mission, 551

U.S. at 199 (citing Schooner, 11 U.S. at 116).

Although referred to as an immovable property

“exception” to foreign sovereign immunity, that a

foreign state is not immune from suit with respect to

rights in immovable property is really a limitation on

the reach of foreign sovereign immunity. See Perm.

Mission, 551 U.S. at 199 (“a foreign sovereign’s

immunity does not extend to ‘an action to obtain

possession of or establish a property interest in

immovable property located in the territory of the state

exercising jurisdiction’”) (quoting Restatement (Second)

of Foreign Relations Law of the United States § 68(b)

(1965)); see also Restatement (Third) of Foreign

Relations Law of the United States § 455(1) (1987))

(“Under international law, a state is not immune from

the jurisdiction of the courts of another state with

respect to claims . . . (c) to immovable property in the

state of the forum.”); id., cmt. b (“Title to land and to

buildings on land traditionally is subject to

adjudication by the courts of the state where the land

is situated.”).

Thus, in Permanent Mission of India to the UN, this

Court held that the Permanent Mission of India to the

United States was not immune from suit by the City of

New York to declare the validity of tax liens against

real property held by the sovereign for the purpose of

housing its employees. 551 U.S. at 195. Like

21

Respondent’s quiet title action, an action to establish

validity of a tax lien “directly implicate[d] rights in

property” and thus immunity did not apply. Id. at 201.

These principals of foreign sovereign immunities

law, which predate codification in the FSIA, support

the conclusion that tribal sovereign immunity does not

extend to bar an in rem quiet title proceeding to

determine rights in a real property parcel located

within the jurisdiction of the State of Washington. To

allow an Indian Nation to assert immunity with respect

to an in rem proceeding concerning unrestricted fee

titled lands located within a State’s sovereign

jurisdiction would give it “super-sovereign authority to

interfere with another jurisdiction’s sovereign right[s]

. . . within that jurisdiction’s limits.” Okla. Tax

Comm’n v. Chickasaw Nation, 515 U.S. 450, 466 (1995).

D. The Extension Of Tribal Sovereign

Immunity To Off Reservation Commercial

Activities Does Not Provide A Basis To

Extend Immunity To In Rem Proceedings

To Determine Rights In Freely Alienable,

Fee Titled Land.

Tribal sovereign immunity has been extended to in

personam suits against Indian tribes related to off

reservation commercial activities. See Kiowa, 523 U.S.

at 758, 760 (“[t]ribes enjoy immunity from suits on

contracts, whether those contracts involve

governmental or commercial activities and whether

they were made on or off a reservation”); Bay Mills, 134

S. Ct. at 2028-29 (applying sovereign immunity to bar

a suit to enjoin gaming “off a reservation or other

Indian lands”). These cases are distinguishable from,

and do not support extending, tribal sovereign

22

immunity to bar an in rem proceeding concerning off

reservation or other Indian lands.

In California v. Cabazon Band of Mission Indians,

480 U.S. 202, 216, (1987), this Court precluded the

State of California from exercising its jurisdiction to

enforce state gambling laws on tribal bingo enterprises.

Id. at 216. It held that allowing this state regulation

would impermissibly burden “traditional notions of

Indian sovereignty and the congressional goal of Indian

self-government, including its ‘overriding goal’ of

encouraging tribal self-sufficiency and economic

development.” Id. (quoting New Mexico v. Mescalero

Apache Tribe, 462 U.S. 324, 334-335 (1983)).

Similarly, in Kiowa, while noting that “[t]here are

reasons to doubt the wisdom of perpetuating the [tribal

sovereign immunity] doctrine,” this Court noted that

the doctrine had been retained “on the theory that

Congress had failed to abrogate it in order to promote

economic development and tribal self-sufficiency.”

Kiowa, 523 U.S. at 757 (citing Potawatomi, 498 U.S. at

510); see also Bay Mills, 134 S. Ct. at 2041 (basing the

“continued recognition of tribal sovereign immunity,

including for off-reservation commercial conduct” upon

the notion that “[i]f Tribes are ever to become more

self-sufficient, and fund a more substantial portion of

their own governmental functions, commercial

enterprises will likely be a central means of achieving

that goal”).

So, the application of tribal sovereign immunity to

in personam suits against Indian tribes for off

reservation commercial activities is an extension of the

doctrine’s purpose to encourage tribal self-sufficiency

and economic development. Thus Kiowa and Bay Mills

23

do not, however, provide a basis to extend tribal

sovereign immunity to in rem proceedings to determine

rights in freely alienable fee titled lands.

II. Even If This Court Declines To Affirm the

Washington Supreme Court’s Decision, The

Quiet Title Proceeding At Issue Here Is

Potentially Distinguishable From An In Rem

Tax Foreclosure Proceeding.

To the extent this Court is inclined to overturn the

Washington Supreme Court’s decision, it should decline

to make a sweeping determination that tribal sovereign

immunity bars all in rem proceedings directed to

property owned by an Indian Nation. Such a holding

would eviscerate this Court’s holding in Sherrill, which

rejected the Oneida Indian Nation’s claim that its

sovereign immunity barred the underlying in rem

eviction proceeding, or that the in rem foreclosure

proceeding was null and void. See Sherrill, 544 U.S. at

214.

Notably, while allowing an in rem foreclosure

proceeding against freely alienable lands owned by an

Indian Nation does not inherently implicate its

sovereignty, barring such a proceeding would seriously

burden the ability of the state and local municipalities

to govern. See id. at 202 (noting that “a checkerboard

of state and tribal jurisdiction—created unilaterally at

[the tribe’s] behest—would ‘seriously burde[n] the

administration of state and local governments’ and

would adversely affect landowners neighboring the

tribal patches) (quoting Hagen v. Utah, 510 U.S. 399,

421 (1994)).

24

Additionally, extending the bounds of tribal

sovereign immunity to bar an in rem tax foreclosure

proceeding would be contrary to this Court’s continued

concern that taxing authorities—which have no control

over Indian Nations purchasing fee title to properties

on the open market within the State’s jurisdiction—not

be left without a remedy. In Potawatomi, the Court

noted that while “sovereign immunity bar[red] the

State from pursuing the most efficient remedy,” it still

had “adequate alternatives” to remedy the alleged

wrong, including seeking damages from individual

tribe members, collecting the sales tax from cigarette

wholesalers, or by assessing wholesalers who supplied

unstamped cigarettes to the tribal stores. Potawatomi,

498 U.S. at 514. In Bay Mills, it was similarly

significant to the Court’s decision not to revisit Kiowa

that Michigan had many “alternative remedies” to

pursue the illegal gambling at issue and thus “ha[d] no

need to sue the Tribe to right the wrong it allege[d].”

Bay Mills, 134 S. Ct. at 2036 n. 8.

But this Court questioned whether it would extend

tribal sovereign immunity to off reservation claims

where the plaintiff has no alternative remedies for the

alleged wrong:

We need not consider whether the situation

would be different if no alternative remedies

were available. We have never, for example,

specifically addressed (nor, so far as we are

aware, has Congress) whether immunity should

apply in the ordinary way if a tort victim, or

other plaintiff who has not chosen to deal with a

tribe, has no alternative way to obtain relief for

off-reservation commercial conduct.

The

25

argument that such cases would present a

‘special justification’ for abandoning precedent is

not before us.

Bay Mills, 134 S. Ct. at 2036 n. 8 (quoting Arizona v.

Rumsey, 467 U.S. 203, 212 (1984)).

In Bay Mills, “Michigan could bring a suit against

tribal officials or employees for gambling without a

license or could potentially prosecute anyone who

maintains or frequents an unlawful gambling

establishment.” Bay Mills, 134 S. Ct. at 2035. In

contrast, a foreclosure proceeding is the only means to

recover unpaid real property taxes.7 See Oneida Tribe

of Indians v. Vill. of Hobart, 542 F. Supp. 2d 908, 921

(E.D. Wis. 2008) (noting that “no other means of

recovery for unpaid property taxes exists”); Oneida

Indian Nation, 145 F. Supp. 2d at 263 (concluding that

it was “clear that the [Oneida Nation] representatives

cannot be held personally liable for the unpaid property

taxes”). Thus, to the extent this Court overturns the

Washington Supreme Court decision, its determination

should be limited to the facts presented here—an in

rem quiet title proceeding brought by private parties to

protect private rights.

7

Respondents are in the best position to respond to the argument

that they had adequate alternatives to the in rem quiet title action.

26

CONCLUSION

For the foregoing reasons, and for the reasons

expressed in the Brief for Respondents, the judgment

of the Washington Supreme Court should be affirmed.

Respectfully submitted,

Brian Laudadio

Counsel of Record

Louis P. DiLorenzo

Mary P. Moore

Bond, Schoeneck & King PLLC

350 Linden Oaks, Third Floor

Rochester, New York 14625

(585) 362-4700

laudadb@bsk.com

dilorel@bsk.com

mmoore@bsk.com

Frank Fisher

Seneca County Attorney

County Office Building

One DiPronio Drive

Waterloo, New York 13165

(315) 539-1989

Counsel for Amicus Curiae Seneca County, New York