January 26, 2011 Hon. Catherine O’Hagan Wolfe Clerk of the Court U.S. Court of Appeals for the Second Circuit 40 Foley Square New York, New York 10007 Re: Oneida Indian Nation v. Madison County Docket Nos. 05-6408-cv(L), 06-5168-cv(CON), 06-5515-cv(CON)

Dear Ms. O’Hagan Wolfe: This case has been remanded by the Supreme Court for this Court "to revisit its ruling on sovereign immunity in light of [the Tribe's waiver of tribal sovereign immunity from real property tax foreclosure proceedings], and -- if necessary -proceed to address other questions in the case consistent with its sovereign immunity ruling." See Madison County, N.Y. v. Oneida Indian Nation of N.Y., 562 U.S. __, 2011 WL 55360 (January 10, 2011). This Court has requested letter briefs regarding what further action may be appropriate. The State of New York submits this letter in support of appellants Madison County and Oneida County, for the same reasons that have led the State to submit briefs amicus curiae at every prior stage of this litigation.

THE CAPITOL, ALBANY, NEW YORK 12224-0341 • PHONE (518) 474-7201 • FAX (518) 473-8963 *NOT FOR SERVICE OF PAPERS

Hon. Catherine O’Hagan Wolfe Page 2 The district court in these cases granted a permanent injunction barring foreclosure on four distinct grounds. This Court affirmed the injunction squarely addressing only one - the tribal claim of sovereign immunity. On this remand, this Court should consider and reject each of the four grounds on which the district court's injunction rests. A. The OIN's Claim of Sovereign Immunity to Tax Foreclosure Proceedings Is Both Waived and Meritless. First, this Court should hold that the Oneida Indian Nation ("OIN") is barred from asserting any claim of sovereign immunity to these tax foreclosure proceedings, both because the Nation has waived the claim and because it is meritless. This Court's prior opinion upholding that claim, Oneida Indian Nation of N.Y. v. Madison County and Oneida County, N.Y., 605 F.3d 149 (2d Cir. 2010), has been deprived of precedential effect by the Supreme Court's decision vacating it, see Los Angeles County v. Davis, 440 U.S. 625, 634 n. 6 (1979). And this Court should not adhere to that holding, not only for the reasons previously set forth in the briefs of the Counties and the State, and not only because two members of the panel have already recognized that the earlier decision was "anomalous" and "defie[d] common sense," Madison County, 605 F.3d at 163-64 (Judges Cabranes and Hall, concurring), but also because the OIN has implicitly recognized that the claim of sovereign immunity was meritless by abruptly abandoning the claim after strenuously litigating the immunity issue for a decade, including two trips to this Court and the Supreme Court.

Hon. Catherine O’Hagan Wolfe Page 3 If this Court decides that the sovereign immunity issue has become moot as a result of the OIN's waiver, it should vacate the district court's judgments to the extent based on tribal sovereign immunity and remand with a direction to the district court to dismiss the OIN's sovereign immunity claim. See U.S. Bancorp Mortgage Company v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994) (vacatur required when mootness results from the unilateral action of the party that prevailed below). B. Sherrill, Cayuga, and Oneida Bar the Nonintercourse Act Claim. The district court mistakenly held that the counties' tax foreclosures were barred because they would result in the conveyance of the OIN's recently acquired lands to the counties without federal consent in violation of the Nonintercourse Act, 25 U.S.C. § 177 ("NIA"). The OIN's NIA claim is a disruptive land claim barred by laches and related equitable considerations under the Supreme Court's decision in City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005), and this Court's two land claim decisions following Sherrill, see Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d 266 (2d Cir. 2005), cert. denied, 547 U.S. 1128 (2006), and Oneida Indian Nation of N.Y. v. County of Oneida, 617 F.3d 114 (2d Cir. 2010). In Sherrill, the OIN made the same claim that they made successfully in the district court here: that "the federally protected possessory right that barred New York from transferring Oneida land even in voluntary transactions also bars New York and its political subdivisions from taking Oneida land from the Oneidas today through tax foreclosures and evictions." Brief for Respondents in No. 03-855,

Hon. Catherine O’Hagan Wolfe Page 4 City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., at 16 (Jt. App. 519). But Sherrill implicitly rejected that claim by holding that the OIN was barred by laches and related equitable considerations from asserting sovereignty as a defense to an eviction proceeding, 544 U.S. at 214 n.7. And Sherrill likewise rejected the OIN's theory that its open-market acquisitions of land that had been freely alienable for nearly 200 years united the OIN's current fee title with its prior possessory interest. See id. at 213-14. Thus the Supreme Court necessarily rejected the OIN's claim that foreclosure would be barred because the lands suddenly became restricted by the NIA when the OIN acquired them. In Cayuga, this Court correctly recognized that "Sherrill's holding is not narrowly limited to claims identical to that brought by the Oneidas, seeking a revival of sovereignty, but rather, . . . these equitable defenses apply to 'disruptive' Indian land claims more generally." Cayuga, 413 F.3d at 274. Based on "the same considerations that doomed the Oneidas’ claim in Sherrill," this Court dismissed the Cayugas' tribal land claims for possession and monetary relief. Id. at 277. So too in Oneida, this Court properly followed the analysis in Sherrill and Cayuga and dismissed various possessory and nonpossessory land claims brought by the OIN and other Oneida plaintiffs. In particular, this Court specifically held that Cayuga barred the Oneida plaintiffs' NIA claims. See Oneida, 617 F.3d at 13537. The Court explained that the equitable defense recognized in Sherrill "is properly applied to bar any ancient land claims that are disruptive of significant and justified societal expectations that have arisen as a result of a lapse of time

Hon. Catherine O’Hagan Wolfe Page 5 during which the [OIN] did not seek relief." Id. at 135. The Court held that "[t]he Nonintercourse Act claim proposed by the Oneidas and by the United States is disruptive in precisely this fashion" id. at 136. The Court reasoned that the NIA claim "effectively 'asks this Court to overturn years of settled land ownership.'" id. at 137, quoting Cayuga, 413 F.3d at 275, since "the invalidity of the sale ab initio is the underlying premise of a Nonintercourse Act claim and any theory of recovery plaintiffs could seek pursuant to this claim." Id. This Court’s application of Sherrill and Cayuga to bar the disruptive NIA claim in Oneida governs here also. A determination that the OIN's recently

acquired lands remain subject to the NIA after more than a century and a half of non-tribal ownership and governance would be inherently disruptive under Oneida both because it is grounded in the OIN's argument here that it did not validly convey the lands in the first place (Br. at 66-67) and also because it interferes with the counties' enforcement of their real property taxes. disruptive claim based on the NIA is barred.1 Therefore, the OIN's

In the aftermath of Sherrill, the Associate Deputy Secretary of the Interior initially agreed with the view that the NIA did not bar foreclosure, stating, “we do not agree with [the assertion by the OIN’s counsel] that the Court’s ruling in Sherrill recognizes the continuation of restriction on alienation protections over recently re-acquired lands . . . [i]n the event these [real property] taxes are not paid, we believe such lands are subject to foreclosure.” Letter of James E. Cason to Hon. Ray Halbritter, June 10, 2005 (Jt. App. 488).

Hon. Catherine O’Hagan Wolfe Page 6 C. The Notice of Foreclosure Given the OIN Satisfied Due Process. The district court also mistakenly held that Madison County gave the OIN constitutionally inadequate notice of the commencement of the foreclosure proceedings. See Oneida Indian Nation of N.Y. v. Madison County, 401 F. Supp. 2d 219, 230 (N.D.N.Y. 2005). The county complied with New York Real Property Tax Law (“RPTL”) § 1125 (McKinney Supp. 2010), which requires actual notice by mail to property owners of the commencement of foreclosure proceedings three months before the expiration of the redemption period. See Jt. App. 385-386. However, the court found that, because the RPTL generally provides a two-year redemption period, see RPTL § 1110(2), anything less than two years' notice of the expiration of the redemption period was inadequate under the Due Process Clause.2 The court effectively held the three-month notice requirement of § 1125 to be facially unconstitutional. The district court's holding conflicts with well-settled due process principles governing what notice of proceedings is due interested parties. In Jones v. Flowers, 547 U.S. 220, 226 (2006), the Supreme Court reiterated the standard set forth in

RPTL § 1110 (2) (McKinney 2000) provides a two-year redemption period measured from the lien date. The lien date is the date on which the tax becomes a lien (RPTL § 1102(4) (McKinney 2000)), which is generally January 1 of the year for which the tax is levied. See RPTL § 902 (McKinney 2000). RPTL § 1123 (McKinney 2000) provides that the petition for foreclosure is filed 21 months after the lien date (i.e., three months before the expiration of the redemption period), and notice of the foreclosure must be given "forthwith" by publication (RPTL § 1124(1) (McKinney 2000)) and mail (RPTL § 1125). The mailed notice must include the last date to redeem. RPTL § 1125(2).

Hon. Catherine O’Hagan Wolfe Page 7 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950): "due process requires the government to provide 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" See also Miner v. Clinton County, N.Y., 541 F.3d 464, 471-72 (2d Cir. 2008) (same), cert. denied, 129 S.Ct. 1625 (2009); Luessenhop v. Clinton County, 466 F.3d 259, 269 (2d Cir. 2006) (same); Akey v. Clinton County, 375 F.3d 231, 235 (2d Cir. 2004) (same). The notice "must afford a reasonable time for those interested to make their appearance." Mullane, 339 U.S. at 314 (citing Roller v. Holly, 176 U.S. 398, 407-13 (1900) (five days notice given to a Virginia resident requiring him to appear in Texas and defend a suit to foreclose a vendor’s lien upon his land violated due process)). "[T]he time . . . must be such that with reasonable effort [the interested party] will be enabled to attend and present his objections." Bellingham Bay & B.C.R. Co. v. New Whatcom, If, "with due regard for the

172 U.S. 314, 319 (1899) (ten days notice upheld).

practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied." Mullane, 339 U.S. at 314-15. "[O]nly in a clear case will a notice authorized by the legislature be set aside as wholly ineffectual on account of the shortness of the time." Goodrich v. Ferris, 214 U.S. 71, 81 (1909) (quoting Bellingham Bay, 172 U.S. at 318, and dismissing for want of jurisdiction a claim that ten days statutory notice was insufficient). In the present case, the RPTL required the county, three months before the expiration of the two-year redemption period, to give actual notice of the

Hon. Catherine O’Hagan Wolfe Page 8 commencement of the foreclosure proceedings and of the last date to redeem. See RPTL § 1125(2). This three-month notice cannot be called unreasonably short in light of the urgency of the county's need for tax revenues, and it affords property owners a reasonable time to appear and present their objections. On its face, RPTL § 1125 complies with Mullane's "reasonable time" requirement. See Mullane, 339 U.S. at 314; see generally Harner v. County of Tioga, 833 N.E.2d 255 (N.Y. 2005); Kennedy v. Mossafa, 789 N.E.2d 607 (N.Y. 2003). Nor was the notice actually provided to the OIN here inadequate. In fact, the district court found that the county initially gave nearly four months' notice and later extended the redemption period by another two months. Madison County, 401 F. Supp. 2d at 230. Thus, the OIN had sufficient actual notice of the foreclosure proceedings to satisfy due process requirements, and it has not suggested that its vigorous defense of the foreclosure proceedings was disadvantaged in any particular way by the length of the notice it received. The notice provided to the OIN satisfied due process requirements. D. The Court Should Dismiss the OIN's Reservation Claim. The court below erred in holding that New York law precludes the assessment and enforcement of taxes on the recently acquired lands. See Madison County, 401 F. Supp. 2d at 231. The court cited two New York statutes that exempt tribally-owned land in any Indian reservation from taxation. See N.Y. Real

Property Tax Law § 454 (McKinney 2008); N.Y. Indian Law § 6 (McKinney 2001). The court held that because the lands were a reservation, the two New York

Hon. Catherine O’Hagan Wolfe Page 9 statutes exempted them from real property taxation. In the Supreme Court, the OIN characterized this issue as a disputed issue of New York law. See No. 10-72, Letter of Seth Waxman to Hon. William K. Suter, dated Nov. 30, 2010, at 3, n. 3. The district court erred. First, the OIN's claim of reservation status, like the NIA claim discussed above, is a disruptive claim barred by Sherrill as applied by this Court in Cayuga and Oneida. Second, if this Court were to consider the merits of that claim, it should find that the ancient Oneida reservation was disestablished, for the reasons set forth in depth in our Supreme Court amicus brief in Sherrill. See Brief of State of New York as Amicus Curiae in No. 03-855, City of Sherrill, N.Y v. Oneida Indian Nation of N.Y., 2004 WL 1835367. Finally, if this Court views the reservation status issue as a question of New York law, then the district court should not have considered it at all. Because (as explained above) the OIN's federal claims (sovereign immunity, NIA, due process) must be dismissed, the district court should have declined to exercise pendent jurisdiction over the state law claim. See 28 U.S.C. § 1367(c)(3); Giordano v. City of New York, 274 F.3d 740, 754-55 (2d Cir. 2001) (when all federal claims have been dismissed, pendent state claims may be dismissed without prejudice to be resolved in state courts). Here, the issue should be decided in the pending state cases where it is squarely presented. See Oneida Indian Nation of N.Y. v. Pifer, 840 N.Y.S.2d 672, 674 (N.Y. App. Div. 2007) (question of tax exemption of OIN lands under state law should be resolved by state courts); see also Cayuga Indian Nation of N.Y. v. Gould, 930 N.E.2d 233, 251-52 (N.Y.), cert. denied, 131 S.Ct. 353 (2010) (finding

Hon. Catherine O’Hagan Wolfe Page 10 Cayuga lands to be a reservation for purposes of the State's Tax Law but expressing no view as to the resolution of the reservation issue in the RPTL and Indian Law contexts). Accordingly, the judgments of the district court should be reversed and the OIN's complaints dismissed in their entirety. Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York BARBARA D. UNDERWOOD Solicitor General ___ /s/ Andrew D. Bing ________ ANDREW D. BING Deputy Solicitor General (518) 474-5487


Seth P. Waxman Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue, N.W. Washington, DC 20006 Michael R. Smith, Esq. Zuckerman Spaeder, LLP 1800 M. Street, N.W. Washington, D.C. 20036 Kathryn E. Kovacs, Esq. U.S. Dept. of Justice Environment & Natural Resources Division, Appellate Section P.O. Box 23795 L'Enfant Plaza Sta. Washington, D.C. 20026 Don B. Miller, Esq. 1305 Cedar Avenue Boulder, Colorado 80304 David M. Schraver, Esq. Nixon Peabody LLP 1100 Clinton Square P.O. Box 31051 Rochester, New York 14603-1051


Oren L. Zeve, being duly sworn, deposes and says: (1) I am over eighteen years of age and an employee in the office of Eric T. Schneiderman, Attorney General of the State of New York, attorney for Amicus Curiae State of New York herein. (2) On the 26th day of January, 2011 I served the attached Letter Brief in the following manner: (i) one paper copy/copies by U.S. Postal Service first-class/priority mail; and (ii) one Portable Document Format (PDF) copy by electronic mail, in accordance with Interim Local Rule 25.2, upon the following named person(s): Seth P. Waxman Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue, N.W. Washington, DC 20006 Kathryn E. Kovacs, Esq. U.S. Dept. of Justice Environment & Natural Resources Division, Appellate Section P.O. Box 23795 L'Enfant Plaza Sta. Washington, D.C. 20026 Michael R. Smith, Esq. Zuckerman Spaeder, LLP 1800 M. Street, N.W. Washington, D.C. 20036 Don B. Miller, Esq. 1305 Cedar Avenue Boulder, Colorado 80304 David M. Schraver, Esq. Nixon Peabody LLP 1100 Clinton Square P.O. Box 31051 Rochester, New York 14603-1051

____/s/ Oren L. Zeve __________________ Oren L. Zeve

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